EMPLOYMENT LAW
UPDATE
Darren Newman
March 2010
darren@darrennewman.co.uk
Agenda
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Agency workers
Contracts of Employment
Annual Leave
Unfair Dismissal
TUPE
Discrimination
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Agency Work Regulations
• Regulations now laid before Parliament
• Come into force October 2011
• Right to equality in terms after 12 weeks of
assignment
• No new rights to unfair dismissal or redundancy
• It’s all very difficult
Contracts of employment
• Contract entered into in breach of employer’s
powers was void – but unfair dismissal claim could
still proceed: Shrewsbury and Telford Hospital
NHS Trust v Lairikyengbam
• Employer ‘affirmed contract’ by failing to take steps
in relation to misconduct without reserving their
position: Cook v MSHK Ltd
• No misrepresentation when employee failed to
disclose history of mental health issues:
Cheltenham Borough Council v Laird
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Varying terms and conditions
• Seeking to change terms by agreement
• Collective agreements
• Variation clauses:
• Bateman & ors v Asda Stores Ltd – no limitation on an allencompassing variation clause
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Annual Leave
• Employee can be bound by contractual notice
requirements for annual leave – even if that means
the leave is lost: Lyons v Mitie Security Ltd
• Payment in lieu of leave can be extended to holiday
not taken in previous years if that is what the
contract provides: Beijing Ton Ren Tang (UK) Ltd
v Wang
• Aviation Regulations do not provide for allowances
to be included in holiday pay: British Airways plc v
Williams and ors
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Holidays and sickness: HM Revenue
and Customs v Stringer and ors
• House of Lords dealing with ECJ decision
• Did not look at interpreting what ECJ had said in UK
context – no longer a dispute
• Instead looked only at whether holiday pay can be
claimed as an unlawful deduction – held it can
• Leaves open question of how to interpret WTR in
dealing with long-term absence
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Pereda v Madrid Movilidad SA
(ECJ)
• a worker who is on sick leave during a period of previously scheduled
annual leave has the right, on his request and in order that he may
actually use his annual leave, to take that leave during a period which
does not coincide with the period of sick leave. The scheduling of that
new period of annual leave, corresponding to the duration of the overlap
between the period of annual leave originally scheduled and the sick
leave, is subject to the rules and procedures of national law which are
applicable to the scheduling of workers’ leave, taking into account the
various interests involved, including overriding reasons relating to the
interests of the undertaking.
• If such interests preclude acceptance of the worker’s request for a new
period of annual leave, the employer is obliged to grant the worker a
different period of annual leave proposed by him which is compatible
with those interests, without excluding in advance the possibility that
that period may fall outside the reference period for the annual leave in
question.
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Industrial action dismissals: Sehmi
& ors v Gate Gourmet London Ltd
• No right to claim UD if dismissed while taking part in
unofficial industrial action
• Employees can bring claim if participation had
ended by time of dismissal
• Fair employer is entitled to ‘shoot first and ask
questions later’ in dismissing suspected participants
• Dismissal of those absent without explanation was
fair despite no investigation or hearing
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Reinstatement: Central and North West
London NHS Foundation Trust v
Abimbola
• Employee dismissed following allegations of assault
on patient
• Tribunal finds dismissal unfair because no
reasonable grounds to believe employee was guilty
• Orders reinstatement
• On appeal EAT says reinstatement was
inappropriate because of loss of trust and
confidence in employee and because of other
misconduct which led to final written warning
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Misconduct – London Ambulance
Service NHS Trust v Small
• Employee dismissed for failing to give proper care to
patient
• Court of Appeal hold 10 week delay in interviewing
employee did not make dismissal unfair
• Tribunal had substituted its own view for that of the
employer in holding no reasonable grounds for
believing some allegations
• In particular tribunal made findings in relation to
facts that were disputed in the disciplinary
proceedings
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Witness statements: Rhondda Cynon
Taff Borough Council v Close
• Employer entitled to rely on witness statements
given to police in connection with a separate
investigation
• Witnesses had been asked whether they had
anything to add or alter but no other formal
statement was taken
• Also did not matter that no all of the witnesses
were available for cross-examination
• EAT hold tribunal had made mistake of assessing
the evidence rather than whether the employer
had acted fairly
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Informal Procedures: West London
Mental Health NHS Trust v Sarkar
• Employee accused of bullying
• Initially employer sought to resolve this through the
informal ‘Fair Blame Procedure’
• Further incidents then occurred and formal
procedure was instituted resulting in dismissal
• Tribunal finds that unfair but EAT overturns decision
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Right to Be Represented
• Right to be accompanied under Employment
Relations Act 1999 only extends to colleagues
and union officials
• However in R v Governors of X School, Court
of Appeal rules teacher was entitled to legal
representation in disciplinary hearing
• That was on the basis that the nature of the
accusation meant that if upheld he would be
banned from future posts in teaching
• It was a breach of his Article 6 right to a fair
hearing to prevent the solicitor from representing
him
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Constructive dismissal – Aberdeen
City Council v McNeil
• Claimant could not claim constructive dismissal
based on employer’s breach of contract because he
was in fundamental breach himself
• So handling of disciplinary case cannot give
grounds for constructive dismissal provided
employer can prove employee is guilty of gross
misconduct
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Transfer of Undertakings
• Court of Appeal say transferee not bound by new
collective agreements reached between
transferor and unions post-transfer: Parkwood
Leisure Ltd v Alemo-Herron and ors
• Common sense view of service provision
changes: Metropolitan Resources Ltd v
Churchill Dulwich Ltd and ors
• Meaning of mobility clauses determined by
reference to employment with transferor and not
reinterpreted after transfer: Tapere v South
London and Maudsley Trust
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Equality Bill
• Now bombing through the House of Lords
• May well be passed – but when will it be brought
into force?
• Most discrimination law stays the same
• Important changes to disability including its
extension to indirect discrimination
• Most controversial measure is new rule on positive
discrimination (or positive action if you prefer)
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Positive Action / Discrimination
• Where members of a group are underrepresented,
at a disadvantage or have particular needs
• Can take any action which is a proportionate means
of addressing that (not in relation to recruitment or
promotion)
• In recruitment or promotion, a person (P) can take
action where group is at disadvantage or
underrepresented
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Positive Action - recruitment
(3) That action is treating a person (A) more
favourably in connection with recruitment or
promotion than another person (B) because A has
the protected characteristic but B does not.
(4) But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or
promoted, and
(b) P does not have a policy of treating persons who
share the protected characteristic more favourably
in connection with recruitment or promotion than
persons who do not share it.
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Nelson v Newry and Mourne District
Council (NI Court of Appeal)
• Theft of a tray of bedding plants involving N and a
female colleague
• N given more serious warning than colleague and
transferred
• Tribunal finds discrimination. N treated less
favourably than colleague and employer failed to
discharge burden of proof
• CA say cases were not comparable what mattered
was why the treatment was different. Employer’s
rational explanation meant that discrimination
could not be inferred
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Retirement: The Heyday challenge
• High Court refuses to strike down the default
retirement age
• Retirement age of 65 would not be justified if
introduced today – forthcoming review was
vital
• However JR had to be decided based on
situation in 2006
• Where does that leave stayed / current
claims?
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Vexatious claims
• In order to claim discrimination you must suffer less
favourable treatment and be subjected to a
detriment
• Keane v Investigo and others: EAT holds a job
applicant must want a job in order to suffer
discrimination when it is refused
• Claimant made to pay costs for claiming agaisnt a
large number of employers who advertised for
recent graduates
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Age discrimination
• ECJ case suggests upper age limit on highly
physical jobs may be justified: Wolf v Stadt
Frankfurt am Main
• But rule discounting service below age of 25 was
not proportionate: Kucukdeveci v Swedex
GmbH & Co
• Justification of pay protection arrangements while
phasing out age-based pay: Pulham and ors v
London Borough of Barking and Dagenham
• Length of service in redundancy selection: Rolls
Royce plc v Unite
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Defining Belief: Grainger plc and
ors v Nicholson
• Belief in Climate Change held to be capable of
being a philosophical belief
• Drawing on ECHR case:
• The belief must be genuinely held.
• It must be a belief and not an opinion or viewpoint based on information
currently available.
• It must be a belief as to a weighty and substantial aspect of human life
and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and
importance.
• It must be worthy of respect in a democratic society, not be incompatible
with human dignity and not conflict with the fundamental rights of others.
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Religion and Belief
• Registrar refusing to conduct civil partnerships:
Ladele v Islington Council
• Counsellor with concerns about same sex couples:
Macfarlane v Relate Avon Ltd
• Ewaida v BA. British airways cross case –
employee loses direct discrimination claim on
account of the individual nature o belief and dress
code sees off indirect case
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Coleman v Attridge Law
• Mother claims flexible working to care for disabled
son
• Alleges hostility and abuse based on his disability
• ECJ says must have disability discrimination ‘by
association’
• Tribunal interprets DDA to include those ‘associated’
with a disabled person
• Now upheld by EAT – greatly widens scope for
interpreting UK law in line with EU law
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Meaning of disability: Chief Constable
of Lothian and Borders Police v
Cumming
• Applicant to be police constable rejected because
she failed eyesight test
• Argued that her ability to do the job was unimpaired
• Tribunal held that she was disabled because she
was prevented from pursuing a career
• EAT overturn that. The effect of the condition was
not substantial and failing the eye test was not a
relevant activity
• Since she was not disabled her claim fails
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DDA meaning of ‘likely’: SCA
Packaging Ltd v Boyle
• House of Lords ruling on ‘likely’ as in ‘likely to recur’
or ‘likely to have substantial impact’
• Means ‘could well happen’ rather than ‘more likely
than not’
• Employee with vocal nodules controlled by medical
intervention was disabled because it was ‘likely’ to
have a substantial impact on her if the medical
treatment ceased
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Motive in discrimination cases:
Amnesty International v Ahmed
• Claimant refused job dealing with Sudan because of
her Sudanese nationality
• AI felt that her nationality would compromise
independence and could lead to danger when
travelling in Sudan
• EAT held that benign motive did not alter the fact
that this was race discrimination
• Difference between ‘motive’ and ‘reason’
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Osborne Clarke Services v Purohit,
(EAT)
• Indian national applies for trainee solicitor role
• Automatically excluded because he does not have
permission to work in UK
• Employer relies on BIA guidance saying work
permits only available where resident worker not
available
• Held to be discrimination. Not justified because
employer made no selection on merit. If P was best
for job then employer should have attempted to
obtain work permit.
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Richmond Pharmacology v
Dhaliwal (EAT)
• Manager refers to possibility of employee being
‘married off in India’
• Tribunal finds remark violated dignity and awards
£1K injury to feelings
• EAT find case borderline but uphold decision
• Give guidance on considering harassment cases
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EAT guidance on harassment
• Harassment can have either the purpose OR effect
of violating dignity (etc) – so harassment can in a
sense be unintentional
• While perception of victim must be considered the
test is objective not subjective. If the employee
unreasonably takes offence it is not harassment
• Consideration of harasser’s mental processes not
necessary when the harassment has overtly
discriminatory content
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Abbey National plc v Chagger
• Tribunal awards £2.8 million as compensation for loss of career in
discriminatory redundancy selection
• Court of Appeal confirm that equivalent to Polkey principle applies;
would the employee have been dismissed if there was no
discrimination?
• But tribunal were entitled to calculate loss on basis of whole career
because he would not have left Abbey without an equivalent job to
go to
• Stigma loss is recoverable even though it involves unlawful
victimisation by third parties
• CA does not deal with possibility of other events intervening
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Right to make a training request
• Like right to request flexible working but less
important
• Employee can make a request in relation to training
that improves his or her effectiveness and the
performance of the business
• Employer must hold a meeting and give right to
appeal
• No way of enforcing the training provision agreed only the procedure for asking for it
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Fit notes
• Replaces the old ‘sick notes’ – a real or cosmetic
change?
• Allows doctor to suggest employee may be ‘fit for
some work’ and make suggestions about light duties
or other adjustments
• What will it mean in reality? Will the fit note just
reflect what the employee wants to say?
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