Employment Law Update
Toni McAlindin
March 2012
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2011
A Lean time for employment law
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Traditionally a conservative administration dislikes
new employment law and will try and curtail existing
laws
However a coalition is more complex with liberal
policies having the opposite effect
This is evident over the past 18 months and so there
is little new law but constant confusion as to what will
come next, what might go etc
A number of consultative documents have been
published on reducing laws eg one changing tribunals,
on modern workplaces and on reducing red tape
However these do include proposals for new
legislation
October 2011
Agency regulations
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For many years successive governments rejected an EU
directive on agency workers. In 2008 the CBI and TUC
reached agreement on a possible compromise which allowed
the government to agree the directive. Applies after 12
weeks.
Final regulations in place plus guidance on some of the detail.
Definition of worker that in Working time regulations –
adjusted to reflect triangular relationship between agency
worker, hirer and agency
Excludes self-employed, those working through their own
limited liability company, those on managed service contracts
but includes those contracted to an umbrella company, or
who operate a personal service company or are supplied
through intermediaries. Still not clear re limited companies
other than excludes genuinely self-employed
Agency regulations
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Will be entitled to paid holidays, but not to occupational sick
pay or pension
Equal treatment will apply to conditions which apply generally
in the workplace whether by collective agreement, generally
or by custom and practice
Pay will mean basic pay plus contractual entitlements directly
linked to the work undertaken ie overtime, shift allowances,
unsocial hours premiums/bonuses, payments for difficult or
dangerous duties and some commission payments and
bonuses
It will exclude bonus payments based on organisational
performance, linked to a performance appraisal, payments
due to the long term relationship such as profit-sharing,
share ownership schemes
Agency regulations
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The 12 week period will be calendar weeks
regardless of working patterns
A new qualifying period will begin only if a new
assignment with the same employer is
substantively different or if similar there is a 6 or
more week break before the clock stars again
Annual leave and sick leave will pause the clock,
the clock should continue to tick through
maternity-related absence and where there are
long absences due to sickness or jury service the
clock will be reset after 28 weeks
Agency regulations
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Agency liable for any breach but will have defence if have taken
reasonable steps to obtain necessary information from hirer
Any party in the chain of causation can be named
After 12 weeks the worker can request a written statement from
the agency – 28 days to respond – no separate right of
enforcement
Liability to access to employment and collective facilities
responsibility of hirer
Agency workers count towards thresholds for representative
bodies of agency
Access to employment opportunities from day one
Vocational training to be addressed under a number of measures
Hirer to make adjustments for pregnant worker, liability for
alternative work or pay lies with the agency (for duration of
assignment) – right to paid time off for ante-natal
From October 2011
Guidance on regulations
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Expands on several areas
A great deal on the issue of self-employment, stressing that
only the genuinely self-employed are excluded but providing
little real information of help to those in limited companies
More detail on calculation of the 12 week period
More detail on what makes a position substantively different
More detail on what is included in pay
More detail on the exclusion when the agency is the
employer and has to pay for gaps
Slight change in definition of agency worker – as well as
contract of employment it now includes “or any other
contract with the agency to perform work or services
personally”
Slight change to Swedish regulations
Religious discrimination appeals
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Appeals in religious discrimination cases – Ladele,
McFarlane, Eweida. Referred to the European Court of
Human Rights. Lost on grounds of religious discrimination.
Claims under art. 9 which guarantees freedom of thought,
conscience and religion and provides that freedom to
manifest one’s religion or beliefs shall be subject only to
such limitations as are prescribed by law and are necessary
in a democratic society in the interests of public safety, for
the protection of public order, health or morals or the
protection of the rights and freedom of others.
The question is whether any such right has been interfered
with and if so whether it is justified. Different test to
discrimination law.
Religious discrimination
continued
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Intervention by Equality and Human Rights Commission.
Originally proposed a “reasonable accommodations” approach
similar to reasonable adjustments in disability discrimination
cases. EHRC applied for leave to intervene.
EHRC believes that judges have interpreted the law too
narrowly and have set the bar too high.
However now set out their views in a consultative paper
Legal intervention on religion or belief rights: seeking
your views
It has been given permission to intervene but no longer
mentions reasonable accommodation as it feels it needs more
consideration. It does not intend to support any parties to
litigation but to give its expert opinion on the appropriate
application of the law???????
Minimum wage from October
2011
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From 1st October adult rate rises to £6.08
18-20 £4.98
16-17 £3.68
Apprentices £2.60
Proposals and consultative
documents
New rates
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From 1st February 2012 the maximum
compensatory award for unfair dismissal will rise
from £68,400 to £72,300
The maximum amount of a week’s pay for
redundancy and the basic award will rise from
£400 to £430
From 9 April 2012 statutory maternity, paternity,
adoption, additional paternity and maternity
allowance will rise from £128.73 to £135.45 and
statutory sick pay will rise from £81.60 to £85.85
Resolving workplace disputes
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Consultative document April 2011
Proposals
Greater use of mediation
All claims to be submitted to ACAS in first instance, parties can
use pre-conciliation and hopefully settle. Otherwise still free to
progress to tribunal
Greater powers to tribunals to strike out, costs etc
Allowing employment judges to sit alone in unfair dismissal cases
Increase qualifying service for unfair dismissal to two years
Providing for a fee to progress a claim – consultation on amount to
follow
Making changes to tribunal hearings to make them shorter
Introducing the use of legal officers to deal with certain case
management functions
Results of consultation
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Unfair dismissal qualifying period two years from April 2012
(employment up to 5th one year)
Emphasis on early resolution of disputes
Compromise agreements to be renamed settlement
agreements. Standard text to avoid cost to parties and
Employment Rights Act will be amended so that existing and
future claims can be compromised without having to list all
potential causes of action
Consultation on how to introduce a scheme to provide
quicker, cheaper determinations in low value,
straightforward claims such as holiday pay
Lord Justice Underhill to carry out a comprehensive review
of tribunals by April 2012
Results continued
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A new term “protected conversations” to allow parties to
have a frank conversation about any employment issue
without the existence of a formal dispute
Concerns are raised that this might allow employers to put
pressure on employees and to discriminate without this
information subsequently coming to light at a tribunal
The Government’s justification is that employers are stuck
with under performing employees because they are afraid to
speak to them
Worries that it could be used to bully staff and bypass
agreed procedures
It might become a shortcut to avoid disciplinary processes
Charging fees
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One of the proposals in the disputes paper relates to
charging fees to progress a tribunal claim and a consultative
document has been issued
Two alternative options are put forward. Option 1 if chosen
would be implemented in 2013 whilst option 2 would require
primary legislation so would not be implemented until 2014
Option one – the fee would depend on the nature of the
claim. There will be a fee to initiate the claim and one to
proceed with the hearing. There are three levels as follows
• Level one unpaid wages and redundancy (£150, £250)
• Level two unfair dismissal (£200, £1000)
• Level three discrimination/whistleblowing (£250, £1250)
Fees continued
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Option two
A one-off fee would be paid at the outset again
related to one of the three levels noted above
Provided the claims were under £30,000 the fees
would be
• Level one £200
• Level two £500
• Level three £600
• All claims above £30,000 would be £1,750
No fees will be payable by individuals unable to pay
(based on HM Courts and Tribunals Service
Modern workplaces
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Right to request flexible working was to be extended to
parents of children aged under 18 (currently under 17 unless
disabled) from 6 April 2011. 18th March 2011 Government
announced repeal of regulations.
Confusion until the publication of Modern workplaces which
looks at four specific areas of reform
Three were expected ie equal pay audits, implementation of
the Stringer and Pereda judgements regarding holidays
after long term sickness and flexible working. In the latter
case the government had drawn up regulations to extend
existing law but instead repealed these and are now
proposing flexible working for all
The unexpected fourth area relates to flexible parental
leave which was mooted in January 2011 but without the
detail
Modern workplaces
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Flexible working
• To be introduced for all employees. The existing
statutory procedure will be replaced by a duty to
consider requests “reasonably” and a statutory code of
practice will be issued to give employers guidance on how
to handle requests and demonstrate a reasonable
process. Concerns re competing interests eg childcare,
disability etc
Equal pay
• Employment tribunals would be able to require that
employers that have discriminated on the grounds of sex
in relation to contractual or non-contractual pay matters
conduct an equal pay audit
Modern workplaces
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Working time regulations 1998
• Will be amended to allow four weeks’ statutory annual leave to
be rescheduled and/or carried over into the next leave year
when a worker falls ill during annual leave. For maternity,
paternity, parental and adoption leave it will be 5.6 weeks of
leave. Appears to be no limit to when this can happen.
KHS AG v Winfried Shulte decision by ECJ appears confusing re
the above.
Case asks whether the ability to accrue leave or to carry over is
limited in time. Asks whether Member states can limit a worker’s
entitlement to minimum paid annual leave to the holiday year in
which it accrues, even for those on prolonged sickness and if not
whether it can be limited to 18 months.
ECJ concluded that directive does not preclude capping leave.
Allowing leave to be taken sometime after it has accrued does
not achieve the directive’s purpose.
15 months time limit under German law ok but six months may
be too short a time, for Member states to draw up own
rules??????? Implications for UK.
Modern workplaces
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Parental leave
• 18 weeks maternity leave for the sole use of the mother,
maternity pay and allowance as now
• Fathers would continue to receive two weeks’ paternity
leave at flat rate in first 8 weeks
• Remainder (34 weeks – 21 paid, 13 unpaid) to be shared
between parents, taken when they choose, including
together, in weeks or days depending on business need,
to be reclassified as parental leave available to either
parent on an equal basis (same for adopters or same-sex
couples)
• 21 weeks of pay reclassified as parental pay
Modern workplaces
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Parental leave continued
• Part of the period of flexible parental leave will be
reserved for the exclusive use of each parent ie four
weeks
• This would be paid at the flat rate
• Could be taken when the parties wish after birth and
even together
• Means an extra four weeks in total ie if mother takes
mandatory 18 weeks then flexible 34 there needs to be
another four weeks for the father
• Increase right to existing unpaid parental leave to 18
weeks, consider raising age of child (currently 5) –
postponed to 2013
• Rules on taking leave to take account of business need ie
employer may not be able to accommodate part-time or
short periods of leave
• Consider unpaid ante-natal leave for fathers
Red tape challenge
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Budget announced three year moratorium on new regulations
for small businesses (less than 10) and genuine new start ups
but not paternity or default retirement age
Also Red tape challenge, one in, one out – Consultation October
2011 on employment implications, ie compliance and
enforcement, recruitment, managing staff and terminating
employment
Mention of changes to TUPE, discrimination awards and
consultation periods for redundancy
However many of these not within the competence of the UK
government – much said about discrimination compensation but
in reality only a few high payouts
May have more success with redundancy consultation periods
particularly since the EU is currently reviewing the collective
redundancy directive, the Acquired rights directive and the
overall framework directive on information and consultation
Red tape challenge contd
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Includes
Seeking views on a proposal to introduce compensated no fault
dismissal for micro firms with fewer than 10 employees
Working with ACAS to simplify dismissal processes including the
Code or supplementary guidance for small businesses
Creating a portable CRB check that can be viewed by employers
online from 2013
Carrying on with the review of parental provisions
Implementing the proposals on working time
Further consultation on flexible working
Changes to whistleblowing rules to stop individuals using the
legislation for areas affecting their own contracts of employment
Consultation on reviewing third party harassment
Consultation on integration of tax and national insurance
Red tape challenge contd
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Consultative documents have been issued on a
review of Tupe and redundancy
Tupe is regarded as too complex
The document asks whether there should be a
right to harmonise terms and conditions
The redundancy consultative document asks
questions about reviewing the consultation time
periods for collective redundancies (the directive
has no fixed timescales) and looking at the
definition of an establishment
Health at work
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Health at work – an independent review of sickness
absence notes the huge cost of absence to individuals, their
employers and society at large
It considers that many people signed off work could do some
work
The fit note has not been a major success as GPs are
unwilling or unable to provide meaningful information on
whether an individual could come back to work part-time, on
reduced hours, to different work etc
It proposes that after four weeks absence an individual be
sent to an Independent Assessment Service to make a
judgement on future action – it is not clear who will fund this
nor who will run it – in other words it won’t be the GP who
makes this decision
Rehabilitation periods
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The Government has announced a lowering of rehabilitation
periods before a conviction can be spent under the
Rehabilitation of Offenders Act 1974
Under the Legal Aid, Sentencing and Punishment of
Offenders Bill the periods will be reduced and will run from
when the individual completes his or sentence rather than
date of conviction as at present
Convictions resulting in a custodial sentence of more than
four years will remain unspent
Job applicants will have to declare spent and unspent for
jobs with children and vulnerable adults
Example many offences with a current 5 year term will
reduce to one, 10 years to 4
Caselaw – contracts
2 major cases
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Edwards v Chesterfield Royal Hospitals NHS Foundation Trust
Consultant dismissed for professional misconduct. Could not find
other work and likely to lose large sums over career life time
Claimed trust had not followed contractual disciplinary proceedings
Original case held only entitled to damages for notice period and
period to follow proper procedures
Court of Appeal held this was not about the manner of dismissal
(Johnson) but about breach of contract
He could have sought an injunction to make them go through
procedures (he believed he would not then be dismissed)
Johnson had held no action at common law other than breach of
contract
If loss flows from a contractual term other than notice there is no
law to prevent recovery of financial loss flowing from the breach
Has to prove at full trial he would not be dismissed in order to
succeed
Note will be heard by Supreme Court (plus Botham below) to see
whether such claims fall within the Johnson exclusion or not
Breach of contract as freestanding right
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Botham v Ministry of Defence
Employee won unfair dismissal claim on basis of employer’s
handling of disciplinary procedure
UD compensation was insufficient to cover his legal costs
Sought to recover under common law claiming free-standing
right
On basis of Eastwood could only succeed if the breach of
contract arose prior to dismissal and not as part of the
dismissal process
Johnson holds cannot recover for the manner of his dismissal
Although he also claimed breach of the contractual disciplinary
process this was part and parcel of his unfair dismissal
Note in Mezey v South West London and St George’s Mental
Health NHS Trust - Court of Appeal upheld injunction to
restrain an NHS trust from holding a capability hearing in
breach of its disciplinary procedures
Supreme court consider
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The Supreme court has now reached its conclusion
but there was considerable dissent between
judges as to the proper construction of such
rights
The court held that Johnson operates as a bar to
a claim for damages for the manner of dismissal in
both express and implied terms
Both cases were held to fall on their facts as they
fell within Johnson rather than Eastwood
Two of the Lords thought that Edwards case
related to a cause of action prior to dismissal but
were overruled
Negligent CRB Check
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Many positions require the employer to carry out a criminal
record check
Chief police officer required to provide any information
considered relevant when a check is made
May involve an exercise in judgement particularly when
someone is charged with an offence but not subsequently
prosecuted. This could be for a variety of reasons eg the
victim dropping the case or the police finding the person was
innocent
Desmond v Nottinghamshire Police – individual accused on
of alleged sexual misconduct. Subsequently decided no case
to answer but information given for enhanced criminal
record check which affected his position as a teacher
Held the police do not owe any duty of care in such cases
and cannot be sued in negligence
Caselaw dismissal
Legal representation
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In R (on the application of G) v The Governors of X School
and anor - a teacher was dismissed for kissing a 15 year old
boy. The school was obliged to report him to the Secretary of
State to determine whether he should be placed on a list of
persons prohibited from working with children.
High Court held that due to the serious nature of the allegations
he should have been allowed legal representation at the
disciplinary and appeal hearings
Commented that the case is limited to its own facts ie breach of
human rights – serious impact on future job prospects.
Note Human Rights legislation applies in the public sector – most
cases would concern normal unfair dismissal legislation
Heard by the Court of Appeal who confirmed previous decision
ie that where the decision was determinative of a right to
practice a profession there should be legal representation
Supreme Court decision
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Note heard by the Supreme Court on 11 April 2011
Held there is no right under Article 6 of the ECHR to legal
representation where the dismissal could lead to barring the
individual from his profession, where the barring decision is
sufficiently independent of the dismissal decision
Not engaged at the disciplinary hearing, the nature of the
ISA proceedings, being independent of the employer’s
decision and dealing with a different question – meant no
requirement for Article 6 to be engaged
However did note that where a decision in one set of
proceedings determines the outcome in subsequent
proceedings that determines a person’s civil rights, such a
right may be engaged
Social media dismissal
In Preece v JD Wetherspoons Plc fair dismissal for
gross misconduct for posting inappropriate comments
about customers on Facebook.
Pub manager and whilst still at work posted comments
on Facebook about abusive customers identifying
them by name. Her privacy settings meant that a
wide range of people including the very customers
could see her page. One made a complaint and she was
dismissed for gross misconduct.
Admitted that she was aware of the company’s email
and internet policy and knew she had breached it.
Clearly it is important to have such policies. In this
case she breached the policy whilst at work but
employers need to ensure the policy is broad enough
to cover inappropriate comments whenever made.
Is it the company’s business
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Bates v Cumbria County Council
Mr Bates was head of religious studies. He had had run ins
with the head teacher and with another teacher in his role as
trade union representative but had an excellent record.
Staff had laptops which were used in the classroom and at
home including work and personal emails.
Following earlier interventions staff had been allowed to use
laptops for a certain amount of social networking
The other teacher complained that he was a member of a
dating site and had looked at the site whilst at work (how did
she know)
An IT investigation showed that he had looked at the site for
15 seconds during a lesson when pupils were watching a video
The Head teacher influenced the dismissing panel to dismiss
him on the grounds of – “a seedy picture of someone sending
sexual messages”
Held dismissal unfair – emotive language, head teacher’s
attitude to a dating site coloured her view of the incident
Over reaction!
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Whitham v Club 24 t/a Ventura
Team leader. Company provided customer services
for Skoda, part of Volkswagen and a significant
customer. On site with both organisations
After a bad day posted a comment on her Facebook –
settings only open to 50 friends
Comment related to working in a nursery but not with
plants
Dismissed – company policy held posting information
about the job on the internet might led to disciplinary
action – clean record to date
Held unfair. No real investigation as to consequences
of her comments. Volkswagen not mentioned, no
confidential information on job mentioned, customer
not asked and unlikely to terminate a large
commercial contract on this basis
Dismissal for refusing pay cut
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Garside and Laycock Ltd v Booth company was undergoing
trading difficulties - asked staff to accept a 5% reduction in pay.
Held meetings with staff, balloted, substantial majority agreed.
Mr Booth refused. Various meetings to find alternatives with
him. Refused and was dismissed.
SOSR but was it within the band of reasonable responses. Held
unfair.
EAT disagreed.
Employers may need to make changes even when the situation is
not desperate. If the view of an individual employee regarding
reasonableness was the required test, it would be impossible to
make a decision as most employees would find a detrimental
change unacceptable. The tribunal needs to look at the overall
situation and decide whether it is reasonable. The case was
remitted for a reconsideration
Part of a difficult line of cases ie is the tribunal substituting its
idea of what is fair rather than a range of responses
Dismissal because of someone
else’s behaviour
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In Symes v The Pepperbox Nursery Mrs Symes was a nursery
nurse. Told her employer husband had been arrested for child
pornography.
Reassured re her job. Then got more serious, more images
found, he had been required to leave their home.
The nursery manager passed this information on to Somerset
County Council and to Ofsted.
Later nursery made aware of specific charges and it was
reported in a local newspaper.
Ofsted indicated that if Mr Symes was convicted and Mrs Symes
continued to live with him she would become a “disqualified
person” and unable to work with children.
Others expressed concerned. Eventually dismissed when failed
to reassure nursery.
Dismissal fair – employer had been patient, had anticipated views
of clients, information was on facebook, freely available, knew
she was in difficult position but so were they. Had done all they
could.
Failure to appeal final warning
Davies v Sandwell Metropolitan Borough Council D was
dismissed for misconduct following a number of incidents.
Employer took into account a live final written warning – some
doubt re its fairness and employer offered to rehear but D
declined.
Tribunal regarded that as relevant even though they had doubts
about the final warning. Held failure to appeal allowed the Council
to rely on warning.
EAT disagreed. Failure to appeal irrelevant. If there were
doubts about the FWW and tribunal held it was a nullity if would
affect any subsequent dismissal.
Jacks v BMI Baby Ltd Ms J was a cabin manager for BMI baby.
For a variety of reasons she was demoted and given a final
written warning.
She committed another breach and was
dismissed. Held if there is a dispute re a FWW, not for tribunal
to interfere if it is satisfied FWW given in good faith. Will only
do so in in exceptional circumstances.
Territorial jurisdiction
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A number of new cases
Original decision in Lawson v Serco held that where an
individual works overseas there are three main scenarios
when individuals may have rights in UK courts
• At the time of dismissal the individual is working in Great
Britain;
• The peripatetic employee such as airline staff who have a
base in Great Britain;
• Expatriate employees who although both work and are
based abroad can in certain circumstances benefit for
UK rights
– Employees posted abroad to work for a business
carried on in Great Britain (newspaper
correspondents);
– Employees working for a British employer operating
within a British political or social enclave
Exceptions
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Ravat v Haliburton Manufacturing and Services Ltd Supreme court held that failing to fall within the 3
categories not necessarily fatal to claim. Employee based in
Libya – stronger connection with Great Britain than with
Libya.
Resided in the UK, travel expenses and salary paid in sterling
into UK bank
Supreme court due to hear appeal in Mak – BA’s Hong Kong
airline crew based in Hong Kong
Walker v Church Mission Society – worked 8 years in
Africa, worked overseas, not posted abroad for the
purposes of a business based in Great Britain nor a strong
connection to Great Britain. Oxford-based employer. No
rights.
EU Convention
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Koelzsch v Etat du Grand-Duche de Luxembourg
EU consider which laws apply under 1980 Rome Convention –
looking at all the facts, where he or she performs greater
part of obligations.
Mandatory laws of country in which place of business is
situated ought only to apply where it is not possible to
determine the country in which the work is habitually
carried out.
Possible for peripatetic employees who work in several
countries to habitually work in one. If not the law of the
country in which they are based can apply
Caselaw discrimination
Equal pay
Same employer, different
establishment
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Dumfries and Galloway Council v North and ors
Claimants nursery nurses, classroom assistants employed in
schools . Sought to compare with manual workers working
from depots. Different collective agreements.
Same employer but different establishments.
Can only compare if there is a real possibility of the
comparator doing the same or broadly similar work at
claimant’s place of work as his current place of work
Held should not be assumed that this is the same
employment just because employed by same employer
To make comparison requires uniformity or commonality
between the two employment regimes
If they worked on each other’s premises would they have
their current terms. In reality neither group would ever
work at the premises of the other so no real possibility so
not in same employment
On Appeal Court of Session has overturned using Wilkinson
below
Court of Session - North
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North and others v Dumfries and Galloway Council
Tribunal found the claimants were in the same establishment
for equal pay purposes – looking at a hypothetical comparator
it was possible to state what the terms would be
Overturned by EAT – there must be a real possibility of the
comparators being transferred to the claimants’ establishment
Court of Session – no such extra hurdle – agreed with EAT in
Wilkinson that the intention of the act could be restricted
with this extra hurdle
BUT – case did not succeed. Accepted that terms and
conditions should be considered broadly. Accepted that HR
manager had provided compelling evidence that the male
comparators’ terms and conditions would need to be
significantly varied to make it possible for them to work at
schools. If the hypothetical situation of the male workers’
transfer to the school arose, the terms and conditions common
to other workers at the council would not necessarily apply to
the transferred workers
Same establishment or common
terms
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City of Edinburgh Council v Wilkinson
Administrative and clerical workers claiming equal pay with
grave diggers and refuse collectors all working in different
places
The tribunal, EAT and Court of Session used different
explanations to allow the comparison to proceed
They all worked for the same employer but not at the same
establishment ie physical building but the question was
whether this could be regarded as the same establishment
The ET held they were on common terms and conditions so
establishment was not the issue
The EAT held that they did work at the same establishment
if an establishment was given a broad meaning
Court of Session
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The wording of the legislation was “at” not “in” the same
establishment which indicated a locality rather than a body
or undertaking
They did not therefore work at the same establishment
However there were common terms and conditions as
dictated by the Red Book
A male comparator had he moved to another establishment
would take his current terms and conditions with him (note
the argument in Dumfries above that this is not necessarily
true )
The Court of Session held that it all depended on the nature
of the post and duties irrespective of location (eg it is highly
unlikely that a grave digger can move his post to another
location)
Material factor defence
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Secretary of State for Justice v Bowling
C and her comparator were recruited on like work but he
was placed two points above her on the incremental scale due
to background and experience
Next pay review she had matched his performance
By giving them similar pay rises and merit award there was
still a pay disparity
ET held that the original reason for the disparity ceased to
be a material factor
EAT disagreed – test was whether the original cause for the
disparity ceased to operate as an explanation at the date
under consideration – the explanation in this case was not
time barred
Disability
Extension of sick pay
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RBS v Ashton – employee suffered from migraines leading to
extensive time off work. Normal policy for short absences was to
trigger the sickness management policy.
This could lead to a disciplinary warning once a trigger had been
reached
It also lead to non-payment of sick pay which was described as
discretionary
Despite reaching and bypassing the triggers the employee was not
disciplined nor had sick pay stopped – her absolute entitlement was
to 52 weeks pay which she would never reach on short term
sickness
Eventually management decided it could not carry on and gave her a
warning and stopped sick pay
Claimed failure to make reasonable adjustment. Held it would
rarely be a reasonable adjustment to carry on paying sick pay
other than in exceptional circumstances. Therefore the impact of
the sick pay policy was not less favourable to her than to others
Held practice of giving a warning might disadvantage a disabled
person more but was justified in the circumstances
Reasonable adjustments
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Salford NHS Primary Care Trust v Smith occupational
therapist on long term sick leave with chronic fatigue
syndrome
Job ceased to exist – offered a number of different roles –
all rejected
Offered administrative work and training in IT
Failed to attend meetings
Employer wrote inviting to further meeting and setting out
options including termination
Resigned claimed CD and disability discrimination
ET – employer should have made a job for her even if not
productive or proposed light duties
EAT disagreed – this was not a reasonable adjustment –
which had to alleviate the particular disadvantage –
employer had done all he could – need to pay attention to
statutory test not a general test of reasonableness
Reasonable adjustment
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Cordell v Foreign and Commonwealth Office senior diplomat
Deaf and during a posting to Poland received
assistance from three lip speakers at an annual
cost of £146,000
Offered promotion to Kazakhstan – cost of
support there was £249,500 – more than half the
FCO’s budget for the year – FCO withdrew the
offer
Held – reasonable is what is right and just –
including budget – this was 5 times her salary unsuccessful
RA to redundancy criteria
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Lancaster v TBWA Manchester – Mr L was a senior art
director who suffered from social anxiety and panic
disorder considered as a disability
Selection criteria for redundancy – he got least scores and
was selected
Argued that the selection criteria were a PCP which placed
him at a considerable disadvantage and that they should
have been changed
Evidence that even if the three he mentioned were changed
it would not have changed the eventual result
An adjustment is only reasonable if it helps the disabled
person but not if it makes no difference to the end
result – in any case the employer needs to justify the
relevance of any criteria used
What is the test?
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In Wilcox v Birmingham CAB Services Ltd – the court
considered the proper test for reasonable adjustments
The individual did not want to work in different CAB offices
but wanted to work from home as she had a disability –
agoraphobia and travel anxiety
Her employer did not know this, she refused to see a GP, she
was obstructive in providing a medical report – held no
failure
In order for the duty of RA to apply the employer has to
know (actually or constructively) both that the employee is
disabled and that the employer’s practices put the disabled
person at a disadvantage – only then does the duty arise
Here the employer did not know and was not liable
Religion
Philosophical belief
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Nicholson v Grainger plc - argued selected for redundancy because of
his philosophical belief – case to go ahead accepting that belief in the
importance of the environment and climate change may be a philosophical
belief – upheld on appeal
For a philosophical belief to come within the legislation it must be
• genuinely held;
• be a belief and not an opinion or viewpoint based on the present state
of information available (it was argued that this would exclude a
scientific belief based on conclusions drawn from science and resulting
from research or the gathering of information but the court was not
willing to limit the definition in this way citing Darwinism which was
capable of being a philosophical belief albeit based on science and not
all uncontroversial);
• be a belief as to a weighty and substantial aspect of human life and
behaviour;
• attain a certain level of cogency, seriousness, cohesion and
importance and
• be worthy of respect in a democratic society and not incompatible with
human dignity and or conflict with the fundamental rights of others.
Manifesting or holding belief
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Power v Greater Manchester Police Authority
Police trainer argued that he was dismissed because he
believes in the power of psychics and their usefulness in police
investigations
Successfully argued that spiritualism is capable of being both a
religious and philosophical belief for the purposes of the
regulations
Held spiritualism as well as being capable of being a religious
belief has sufficient “cogency, seriousness, cohesion and
importance” to all into the category of philosophical belief
Question now whether he was dismissed for the possession of
such beliefs or for foisting them onto others – tribunal said
dismissal for misconduct but some of that related to the
unacceptable way he manifested his beliefs
On appeal – if religion part of the misconduct dismissal may be
discriminatory
At full hearing held that his dismissal was not for holding
beliefs but for manifesting them eg coming to training courses
Philosophical belief
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Hashman v Milton Park (Dorset) Ltd t/a Orchard Park - an
animal activist’s opposition to fox-hunting and hare-coursing
was held to amount to a protected philosophical belief within
the meaning of the regulations
Maistry v BBC – a tribunal has held that a belief in the
“higher purpose” of public service broadcasting, to promote
cultural interchange and social cohesion, is a protected
philosophical belief
Mr Maistry’s belief was held to be more than a sincere
commitment to what is the BBC’s mission statement. He
referred to various publications regarding the purpose of
public service broadcasting which provides a “public space” in
which everyone is free to enter and within which they can
encounter culture, education and debate
Kelly andors v Unison – failed in argument re
Marxist/Trotskyist beliefs but on appeal. Nicholson seemed
Philosophical belief
In Farrell v South Yorkshire Police Authority the employee
was a principal intelligence analyst. He had to produce an
annual strategic risk assessment for the police authority’s area.
This was to analyse threats to life and community harm.
His assessment was that the threat of terrorism was internal
not external.
His report described protecting vulnerable
people and tackling crime as irrelevant.
He included headings named “the truth about 7/7” and the
“truth about 9/11”. He referred to the new world order and
outlined his beliefs that 9/11 and 7/7 were false flag
operations authorised by the respective national governments
to give them material to persuade the people to support foreign
wars.
Dismissed – preliminary hearing re whether the grounds could
constitute a philosophical belief
Philosophical belief continued
Held that he genuinely held these views. His views were held to relate
to a weighty and substantial aspect of human life and behaviour.
There was nothing incompatible with human dignity in his beliefs
although they contain shocking statements about the motivation of
certain
people.
Of more difficulty was the test of whether the beliefs attained a
level of “cogency, seriousness, cohesion and importance”. This involved
a level of scrutiny of his beliefs. On examination the evidence was
contradicted by far more evidence and his testimony was incoherent.
Inconsistencies in his beliefs became apparent
He believed that the Twin Towers collapsed due to bomb being
detonated inside the building. Taking all this into account the tribunal
held that there was failure to meet any minimum standard of cogency
or coherence therefore there was no protection under the belief
regulations.
Poppy wearing?
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Lisk v Shield Guardian Co Ltd
Claim of discrimination on the grounds of a
philosophical belief for being prevented from
wearing a poppy at work
He argued that we should pay our respects to
those who have given their lives by wearing a
poppy from 2nd November to Remembrance day
No question of genuineness or seriousness of the
belief – but was it a philosophical belief
No matter how admirable it was too narrow to be a
philosophical belief
Time off to attend Mosque
Cherfi v G4S Security Services Ltd, Mr Cherfi who is a Muslim,
worked as a security guard.
Had been allowed to leave work to attend Friday prayers at a local
mosque.
Under a new contract his employer was obliged to ensure a certain
quota of employees on site at any time. If he was to leave on a
Friday, this was not possible.
Tried to find a solution, including different shift pattern, he
refused, took time off via holidays, sickness etc. Told this was
unacceptable.
He made a religious discrimination claim.
The EAT held that it was objectively justified. Employer had no
choice in requiring a certain quota of employees each day and
there would be commercial ramifications if they did not comply.
He had been offered an alternative shift pattern, there would be
no loss of pay, and there was a prayer room on site.
There was therefore a legitimate aim – ie the commercial
consequences and this was a proportionate means of achieving that
aim.
Handling food
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Chatewal v Wandsworth Borough Council all staff who used
the communal kitchen had to share in cleaning it and the fridge.
Mr C objected as this might bring him into contact with meat
which was forbidden by his faith. He argued the requirement
was indirect race and religious discrimination. He had to
demonstrate that he was part of a group affected compared to
others not of that faith.
The tribunal accepted that he is a member of the Guru Nanak
Nishkam Sewak Jatha (GNNSJ) branch of Amritdhari Sikhs
whose beliefs amount to a religious belief. Sikhism is a race and
a religion.
The requirement to clean out the fridge was a provision,
criterion or practice (PCP).
His claim failed as he could not show that there was a
significant group of others of the same religion or belief as him
who were disadvantaged. He was unable to show that Sikhs as a
race were particularly disadvantaged by this PCP.
EAT remitted back as tribunal failed to explain its reasoning as
to why he was not part of a “group”
Wearing a dagger
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Dhinsa v Serco trainee prison officer. He is an Amritdhari Sikh
and wore a kirpan under his clothes.
Prison policy not to allow such a dagger inside the prison. Serco
discussed alternatives with him such as wearing a replica kirpan or
a temporary assignment outside of the prison whilst the prison
service conducted a review.
Dismissed after refusing to compromise.
No racial discrimination. Sikhs are accepted as a distinct ethnic
group; Amritdhari Sikhs share a common history, culture and
geographical origin with Sikhs generally and are not a distinct
ethnic group in their own right.
There was religious discrimination, indirect because of the PCP on
not wearing a kirpan which put Amritdhari Sikhs at a particular
disadvantage.
But justified - to ensure the health and safety of prisoners,
visitors and employees and so was a legitimate aim.
Given the high incidence of violent assaults in prison it was
important that no weapons were taken into prison. Proportionate
Wearing jewellery
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Eweida v British Airways – Court of Appeal
decided that no indirect discrimination on grounds
of religion due to refusal to allow jewellery
PCP (provision, criterion, practice) applied to all
but disadvantages a particular group
Rejected that one individual could be the subject
of indirect discrimination
Impossible burden on employers
Could be parochial or even facetious beliefs
Needs identifiable section of a workforce
Jehovah’s Witness
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Patrick v IH Sterile Services Ltd
Individual was a Jehovah’s witness. He worked shifts with no
fixed hours on a rota.
The employer accommodated his need to leave early on a
Thursday because of his religion.
Initially the employer could accommodate his desire not to
work Sundays as he used agency staff but this became
uneconomic
He was dismissed (for a variety of reasons) including not
working on a Sunday and claimed religious discrimination
Held he was treated the same as everyone else so there was
no direct discrimination. However there was indirect
discrimination but it was justified. Given the nature of the
work Sunday working was necessary and all employees had to
take their share of it. This was an appropriate means of
achieving the aim
Age discrimination
Enforced compulsory retirement –
note appeal to Supreme Court
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Seldon v Clarkson, Wright & Jakes EAT - EAT had to consider
whether enforcing retirement of a partner in a law firm was age
discrimination (normal exemption does not apply to partners)
This has to be objectively justified otherwise it will be
discriminatory
ET held that 3 aims satisfied the defence ie
• Retaining associates by ensuring the opportunity for
partnership after a reasonable period
• Ensuring effective workforce/succession planning by having a
realistic long-term expectation as to when vacancies would
arise
• Fostering a congenial and supportive culture by limiting the
need to expel partners due to poor performance
The EAT agreed with the first two but held that the third had
not been proved ie there was insufficient evidence of the latter ie
that at 65 performance would deteriorate
Appeal to CA – lost – social policy in Heyday did not apply to
private employers but to the state itself – ON APPEAL TO
ECJ on compulsory retirement
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Rosenbladt v Oellerking Gebaudereinigungsges mBh – ECJ
held that a compulsory retirement age of 65 in a contract of
employment – whilst prima facie discriminatory on grounds of
age – is justified if the following conditions are met
• The contract has been collectively negotiated with a
union
• The employee will receive a pension (state or
occupational) so they have a replacement income and
• Compulsory retirement has been widespread in the
country for a long time without having had any effect on
the levels of employment
ECJ again
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The ECJ in Fuchs v Land Hessen has held that German law
requiring state prosecutors to retire at 65 on a generous
pension was justified.
It appears to hold this on the basis that it would encourage
the promotion of a younger workforce.
It also appears to suggest that it can be legitimate to retire
older workers to prevent possible disputes concerning
employees’ fitness to work beyond a certain age.
It is not clear how this will be applied in the UK given the
abolition of a default retirement age.
And again
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Prigge v Lufthansa – whether a collective
agreement providing for a retirement age of 60 for
pilots was discriminatory and whether could be
justified
Held retirement age could be justified on grounds
of physical attributes ie to stop human failure
causing aeronautical accidents – public security and
protection to health
However applicable national and international law
did this by providing for a retirement age of 65
therefore not necessary to limit to 60
So in general justified retirement age but 65 not
60
Costly retirement
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Woodcock v Cumbria Primary Care Trust – redundancy but
given pay in lieu of notice so that dismissal took place before 50th
birthday which would have resulted in expensive pension costs
Cost to trust around £500,000 to £1m. Whether age
discrimination and if so whether legitimate aim and proportionate.
Held legitimate aim to effect redundancy before incurring
additional costs – cost can be put in the balance with other
justifications, a discriminatory act to avoid employee receiving a
windfall was permissible but ? Cost only aim
On appeal the EAT said that although cost alone is rarely a
justification, an employer can have a legitimate interest in
considering cost alone on the basis that if the cost of avoiding or
rectifying a discriminatory impact would be disproportionately
high, there would be scope for considering proportionality
The appeal therefore failed now to Court of Appeal and other
cases in the pipeline which held there was discrimination eg
Walsh v Tewkesbury – tupe transfer interim work would take
employee over 50 with same consequences – age discrim
But …..
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HM Land Registry v Benson and others
- the employers conducted a VR exercise. It had more applicants
than budget so had to make a selection. It selected on the basis
of who would be cheapest.
This allowed the maximum number of posts to go. A number of
employees claimed age discrimination.
Not surprisingly the older employees cost more due to length of
service but also to the higher cost of awarding an immediate
unreduced pension, making them more expensive to dismiss.
The tribunal accepted that this was the only reasonable criterion
but that it constituted indirect discrimination.
It held that this was not justified as being a proportionate
means of achieving a legitimate aim. They could afford the extra
£19.7 million
The EAT disagreed. The budget of £12 million was part of
HMRL's legitimate aim so the question was whether the selection
criterion was a proportionate means of achieving it. Given the
Tribunal found that it was the only practicable criterion it was
obliged to hold that it was proportionate.
continued
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In addition to the age claim there was a claim of indirect sex
discrimination
Mrs M was excluded from the selection process because she
was on a career break and not due to return for over a year
She was not notified of the VR exercise
If she had been she would have returned to work in the
relevant period
This was held to be indirect sex discrimination
The exclusion of employees on long term career breaks had a
disproportionate impact on females
It might have been capable of being justified but failing to
notify her was unfair and the application of the criteria
therefore not proportionate
Having a degree
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Homer v Chief Constable of West Yorkshire Police
Employers changed their requirements for a particular job now
requiring a law degree to qualify for the higher grade
Individual had worked in this area for some time
He was nearing retirement and therefore had no intention of
working towards such a degree
Argued that such a requirement was indirect age discrimination
Court of Appeal held that this was not indirect age discrimination the reason he could not acquire the degree was not because of his
age but because he would have insufficient time before retirement
to obtain such a qualification
The disadvantage came from his imminent retirement not his age
Left open whether it was age discrimination because someone of 61
would be less likely to have a law degree or find it harder to meet
the requirement
Supreme Court has granted permission to appeal
Sexual orientation
Does not have to be claimant’s
sexual orientation
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Discrimination law is clearer now but provides a wider range of
rights for individuals
Lisboa v Realpubs – London’s first gay pub was experiencing
problems – run down, drugs, prostitution etc
Bought by a company specialising in gastropubs – wanted a
wider clientele – happy with gay clientele too but not
exclusively
Asked employee to put out sign saying “this is not a gay pub”
and to encourage non-gay clients to sit at window seats so
passers by could see that non-gay people were welcome
Held instructions to Mr Lisboa amounted to unlawful
discrimination on the grounds of sexual orientation. Nothing
unlawful in wanting a wider clientele as long a it did not
treat other customers less favourably on the grounds of
their sexual orientation. Held that it did. Mr Lisboa’s
sexuality irrelevant
Appeal in Sanderson
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Thomas Sanderson Blinds Ltd v English
Mr English is heterosexual and this is known to his
colleagues
He suffered homophobic abuse and the Court of Appeal
eventually held that the sexual orientation regulations were
broad enough to cover this situation even though he was not
gay nor perceived to be gay
Full hearing on whether he suffered homophobic harassment
– EAT held tribunal entitled to take account of the fact that
he had equally made offensive remarks on a number of
occasions, that he had not complained for most of his
employment and that he was firm friends with his alleged
tormenters
Concluded that no violation of his dignity or an adverse
working environment
Unintentional
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Bennett v Bivonas LLP – Mr Bennett is a barrister
One day he came across a note in a client’s file
written some years earlier but making reference
to him as a “batty boy” (term used in a rap song to
describe overtly gay men)
Although he was not intended to see the note it
was held to be insulting to him as a gay man
It was irrelevant that the writer did not intend
him to see the note
Complaint upheld
Refusal of a double bed
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Bull and Bull v Hall & Preddy – two men who had entered
into a civil partnership booked a double room at the Bull’s
hotel
When they arrived they were refused access to a double
room
The Bulls held strong Christian beliefs and would not allow
anyone not married to share a double bed although a twin
room was ok – none was available
Held discrimination on the grounds of sexual orientation. A
civil partnership was akin to marriage under UK law. The
only reason therefore for refusing was sexuality.
No comment on whether refusal to a heterosexual couple
not married was ok (no law on marital discrimination)
Pregnancy discrimination
Pregnancy and redundancy
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Highly controversial area ie whether a pregnant woman (or
on maternity leave) can be made redundant and if so what
her rights are to suitable alternative employment
Simpson v Endsleigh Insurances Services Ltd - Reg. 10 of
Maternity and Parental Leave Regulations 1999 – if it is not
practicable by reason of redundancy for the employer to
continue to employ a woman on maternity leave, the employee
is entitled to be offered (not just invited to apply for) SAE.
This gives women on maternity leave priority over other
employees even if they are better qualified
For the right to apply the work must be suitable AND the
terms and conditions including capacity and place must not
be substantially less favourable
In this case redundancy, employer argued new role was
suitable BUT terms and conditions were less favourable
therefore no need to offer to her. ET and EAT agreed.
SO no obligation unless two conditions apply BUT if they do
apply she has an absolute first right to the job
Redundancy - discrimination
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Eversheds Legal Services Ltd v De Belin
Mr De Belin and a female colleague on maternity leave were
assessed when one had to be made redundant. He scored half
a point less than she did.
They were scored against five criteria one of which involved a
measurement of the time which elapsed between completing a
piece of work and receiving fees for it – known as lock-up.
As the female had been on maternity leave during the
assessment period she was given full marks for the period
there being no actual work to review. Had this not been the
case she would have scored lower overall than he did.
Had they used the time before her maternity leave she would
also have received a lower overall score
He claimed sex discrimination and unfair dismissal
Held the obligation to protect pregnant/maternity leave
employees cannot extend to favouring such employees beyond
what is reasonably necessary to compensate them for the
disadvantages occasioned by their condition
“Pregnancy” gossip
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In Nixon v Ross Coates Solicitors – Ms Nixon was seen at a
Christmas party kissing another employee and spending the
night in his room
She also had a relationship with another employee
She told her employer she was pregnant
Staff gossiped about the paternity of her baby
She raised a grievance and asked to be moved
The firm refused and also refused to pay for her absence
during this period
The EAT upheld her pregnancy discrimination claim
The gossip was pregnancy-related, it was distressing, it
amounted to gender-harassment
No reduction due to contribution – the contribution had to
have caused the dismissal – here the contribution was a view
about her personal life
Associative pregnancy
discrimination
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New Equality Act does not extend to pregnancy
discrimination by association
Under the old law, in Kulikaoskas v Macduff Shellfish and
another Mr K and his partner were dismissed from Macduff
Mr K was dismissed because of his poor performance but
considered it was for his partner’s pregnancy
He claimed sex discrimination by association
He argued that although the law did not mention associative
discrimination, that EU required the principle to be
interpreted or extended
The Court held that the law does not prohibit such
discrimination and no reference to the ECJ is necessary
This is to be distinguished from Coleman on disability which
was different
On appeal to the Court of Session – different views as to
whether the new Equality act covers associative pregnancy –
some think it does
Marital discrimination
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The Equality Act includes marriage and civil partnership
discrimination but no mention is made of marital status
Dunn v Institute of Cemetry and Crematorium
Management
Mrs Dunn was a technical services manager who resigned and
claimed constructive dismissal and sex discrimination
She argued that she was less favourably treated because
she was married to Mr Dunn who was in dispute with the
employers
The EAT held that the Equality Act could be construed as
protecting the claimant by reason of her status, not only of
being married but of being married to her husband
Caselaw TUPE and collective
labour law
TUPE and collective
agreements
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In Whent the court held that the new employer was obliged
to honour any subsequently agreed changes eg pay increases.
However the ECJ in Werhof appeared to limit this. It held
that collective agreements are fixed in time and the new
employer is only obliged to honour these but not any
subsequent agreements.
In the present case Alemo-Herron and others v Parkwood
Leisure Ltd the court held that UK law can give better rights
than the directive so that the Whent approach would be
followed. A transferee was therefore bound by pay
increases negotiated after the transfer by the transferor
and the union under a collective agreement which was
incorporated into individual contracts of employment. This
was similar to Whent tie the collective agreement covered
terms negotiated by the National Joint Council for Local
Government Services (NJC).
contd
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Case heard by Court of Appeal, who uphold ECJ view that
collective agreement “static” not “dynamic” as held by EAT.
Upholds rights at time of transfer but cannot bind new
employer to give future rights where new employer not party
to agreement
Heard by Supreme Court – Directive holds CA continues until
the date the agreement terminates or expires or another CA
comes into force. Member states may limit the period as
long as at least one year. No such period in UK law. EAT
therefore upheld the more beneficial view of UK law but CA
disagreed and said “static” not dynamic ie EAT followed
Whent, CA followed Werhof.
Supreme Court have referred the case to the ECJ for a
decision as it is not clear which path to follow
Service provision
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CLECE SA v Maria Socorro Martin Valor and
Ayuntamiento de Cobisa (C-463.09) ECJ
Local authority contracted out cleaning of schools and
premises then took the work back in house
It did not take any of the contractor’s staff nor any assets
It hired new staff
Whether this was a transfer of undertaking under the
Acquired Rights directive
Held that as no assets or staff had transferred the
directive did not apply
Situation would be different in the UK as under TUPE 2006
there is a specific provision for the change of a service
provider including bringing back in house
Transfer within public sector
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Scattolon v Ministero dell’Instruzione,
dell’Universita e della Ricerca
Services such as cleaning provided either by the
State or the local authority – decided to transfer
them all into state control
Not covered by exclusion – not a reorganisation of
public administrative authorities or a transfer of
administrative functions between public
administrative authorities
Not the intention of the directive – such exclusion
only applies to the exercise of public powers
Public sector workers no less covered by the rules ie
structured group of employees engaged in an
economic activity
Continued
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Of more interest is the view that the directive did not
preclude the transferred employees being immediately
covered by the collective agreement in force within the
transferee’s organisation
Provided that terms were no less favourable than before
Those transferred were put on the level of remuneration in
the new collective agreement
A notional length of service was used rather than actual
length of service
Held actual length of service was not a right which
transferred however using notional might disadvantage
those transferring who should be no worse off
This did not mean using actual length of service which might
have made them better of – each case had to be considered
Service changed
In Nottinghamshire Healthcare NHS Trust v Hamshaw and
others the EAT has held that there cannot be a transfer or a
service provision change where the services provided to a client
are not fundamentally or essentially the same as they were
before the change of provider.
Care home closed and residents re-housed into own homes. Care
transferred to 2 independent providers. Trust said tupe,
providers said not.
EAT held that there was no TUPE transfer. There was neither
the transfer of an economic entity retaining its identity nor a
service provision change.
Under the new arrangements the former residents would be
living in their own homes so the care provided was different –
they would be helped to undertake domestic tasks rather than
have it provided within a home.
The economic entity had therefore lost its identity. It was not
the same service – it was fundamentally or essentially different.
Service provision and supply of
goods
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TUPE 2006 applies to the change of a service
provision but it excludes the supply of goods
Sometimes the lines are hard to distinguish
In Pannu v Geo W King Ltd workers on an
assembly line made goods for a client with
components supplied by the client and these were
tested for safety
Held to be a contract “wholly or mainly” for the
supply of goods and not covered
Service provision change
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Hunter v McCarrick – claimant employed by provider
of property services but the latter was wound up
Receivers took control of the properties and
appointed a new provider
Held regulation did not apply when not only was there
a change in contractors but also a change in the
client
Reg 3(1)(b)(ii) provides that a service provision
change arises where activities cease to be carried
out on a client’s behalf and are instead carried out by
a subsequent contractor on the client’s behalf.
No reason to give it a wider meaning
Variation of contract
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Smith v Trustees of Brooklands College
Teaching assistants paid as full-time but working
part-time
College transferred in 2007
Transferee realised employees were being
overpaid and sought to bring them in line
Employees agreed but claimed variation was
ineffective under TUPE ie void if the sole or
principal reason is the transfer
Held – reason for change not TUPE but wrong
payments and a great deal of time had gone past
since the transfer
Dismissal of employees when
company in administration
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An unusual decision on the facts – Spaceright Europe Limited v
Baillavoine – company entered into administration. All staff
dismissed – no buyer.
Eventually sold the business as a going concern.
Mr B argued that his dismissal was automatically unfair as being
for a reason connected with the transfer.
Spaceright argued that it was not connected with the transfer as
at the time of dismissal there was only the possibility of the
transfer (see Spence and Litster earlier cases on the same theme
– Spence dismissal fair as at the time of the transfer no employees
and at the time of dismissal no transfer, Litster employees
dismissed to make way for transfer so connected to and would have
been employed had they not already been unfairly dismissed)
Held – even though no prospective transferee had been identified
at the time of the transfer, it was enough that dismissal had taken
place in order to achieve a transfer at some future date - ???????
Redundancy
Appeal to ECJ at last
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In USA v Nolan the Court of Appeal has referred a point of
general importance to the ECJ
It asks when exactly does the employer’s obligation to
consult arise in collective redundancies
Does it arise before or after a strategic or commercial
decision that will lead to redundancies?
In Nolan a US army based closed and a court held that there
was a failure to collectively consult
Despite much caselaw, it is not clear at what point the
obligation actually arises – eg UK law talks of “proposing to
make redundant”, EU law talks of “contemplating”
The CA asks whether consultation arises when the employer
is prosing but has not yet made a strategic decision or only
when the decision is actually made
Woolworths
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USDAW v WW Realisation 1 Limited (in liquidation) and
others – Woolworths was liable for failure to consult
adequately when it closed its stores. There were no special
circumstances such as financial position nor going into
administration
The tribunal regarded each store as a separate
establishment thus employees in stores with fewer than 20
people had no right to a protective award
Questions re definition of establishment/see Red tape
consultation/EU law
Protective award reduced to 60 days as some consultation
Applying for alternative
employment
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Morgan v The Welsh Rugby Union highlights the
difference between selection for redundancy and selection
for alternative employment the latter being the test for
normal recruitment
Reorganisation and merging of jobs to create new job, two
individuals interviewed
Slight differences in manner of interview (presentation and
questions) and link to job description
Mr Morgan not given job and made redundant
Claimed system was not objective and did not follow the
guidelines in Williams v Compare Maxam re fair selection
(capable of being objectively assessed)
Court held this was not about selecting from a pool where
management could assess past performance, but
assessment for the future ie forward-looking so a
different test
SAE – to whom?
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Readman v Devon Primary Care Trust – Mrs R was a nurse
who was to be made redundant
She was offered three alternative positions, one as a
Hospital Matron was regarded as SAE by the tribunal
She refused the work arguing that she wanted to stay in
community nursing and was denied a redundancy payment
Held the test is whether the work is suitable and whether
refusal is reasonable, the latter is subjective ie whether the
employee in question acted reasonably in refusing the offer
Wanting to stay in community nursing was a sound and
justifiable reason for turning down the offer so she was
entitled to a redundancy payment
Week’s pay for redundancy
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Gilbert & others v Barnsley three employees worked term
time contracts for 44 weeks but were paid over 52 weeks
(including holidays).
Made redundant. Redundancy pay based on 1/52 of annual
salary.
Argued that should be 1/44 based on weeks actually worked.
This would have led to higher pay.
Must be calculated in accordance with s.221-229 of the
Employment Rights Act 1996
Different provisions apply depending on whether or not the
employee has normal working hours.
Accepted that there were normal working hours
Week’s pay
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Employer argued that pay did not vary with the work done as
they were paid the same throughout the year whether
working or not or whether on holiday or not
A week’s pay should therefore be what they were paid each
week of the year ie 1/52
Employees argued that their normal working hours did vary
as there were weeks when they did not work
Remuneration apportionable to any week varied
Even though they were paid throughout the year it could
only be apportionated to the weeks actually worked
In such cases it is necessary to average pay in the 12 weeks
prior to the calculation date ignoring weeks when there is no
pay
This would mean 1/44
EAT agreed but thought that the legislation had not been
drafted to cover such situations
Paying over 12 months was for administrative convenience so
pay did vary with work done
Fixed term contracts and
redundancy
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The ERA provides that the ending of a fixed term contract is a
dismissal. It can therefore be a dismissal on the grounds of
redundancy. Prior to the Fixed term regulations employers could
ask employees to waive unfair dismissal rights where the contract
was for one year or more and redundancy rights where for two
years or more.
These provisions were repealed when the Fixed term regulations
came into force.
If a dismissal can be a redundancy this can have odd implications
for redundancy consultation and selection.
This matter was the subject of an appeal in University of Stirling
v University and College Union
The EAT has held that employees are not dismissed as redundant
and are therefore not subject to collective consultation
In the education sector employees are often engaged on research
work paid for external organisations and are dismissed when
funding ends - dismissal is 'for a reason related to the individual
concerned' not a redundancy dismissal – the employee always
knew it was a fixed term contract coming to an end
Working time holidays
Stringer strictly applied
NHS Leeds v Larner, the employee was absent for the whole
of a holiday year and had not taken or arranged to take any
holidays.
She was dismissed on the grounds of capability but was not
given any payment for untaken holidays.
The employer argued that her right to holidays expired at the
end of the holiday year ie “use them or lose them”.
The EAT disagreed. She was unable to take her holidays due
to sickness and was entitled to take them at a later date. As
she was dismissed this meant in monetary form.
There was no requirement on an employee to request holidays.
It would be different had the employee been at work and had
failed to request or use the holidays.
See Fraser below. The Court of Appeal will consider the
conflict
between
Larner
and
Fraser
Similar argument
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Adams and another v Harwich International Port
Ltd
Two employees had prolonged periods of sickness
absence and had not asked for nor taken any
holidays during their sickness
Later asked to take accrued leave but employer
refused
Held both were entitled to carry over holidays to
the immediately following year
However the tribunal held that this right should
not be open ended and capable of being carried over
from year to year indefinitely otherwise it did not
But ……
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Fraser v St George’s NHS Trust
On sick leave for four years until dismissal
Last two years received no pay
Sought four weeks holiday pay for each of the two
years (according to Stringer and the above cases
this is correct)
EAT held that the claim should fail
An employee is only entitled to holiday pay if she
has actually taken the leave to which the pay
relates and has done so by giving notice as
required by the regulations
Believed that this was not inconsistent with
Pereda
ECJ – time limit to carry over
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KHS AG v Winfried Schulte – under German law
there is a time limit to the carry over of untaken
holidays due to sickness of 15 months after the
holiday year in which it was due
Referral to the ECJ to ask whether this is
consistent with the directive
The ECJ stated that this did not breach the
directive but appears to accept that a six month
period might be insufficient
They acknowledge that it should not be indefinite
as this is not compatible with the directive
Holidays taken from work time?
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Russell v Transocean International is the long running oil
workers case now heard by the Supreme Court
Oil rig workers worked two weeks offshore and had two
weeks rest onshore
They succeeded in an earlier case arguing entitlement to
holidays
The question now was whether such holidays had to be used
from time offshore or could be from time onshore the
employees arguing that it should be from time when they
were otherwise at work
The Supreme Court disagreed holding that it could be
taken from time onshore. They had long periods of rest
away from work. There is no qualitative requirement to
test whether a given period can be counted as rest. A
rest period is simply anything not working time.
Pilots holiday pay
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Pilots not covered by traditional working time regulations
but by Civil Aviation (Working Time) Regulations 2004
Unlike working time regulations, there is no mention of how
to calculate holiday pay
Williams & others v British Airways – airline argued basic
pay only, pilots argued for a number of allowances to be
included
ECJ – if only basic, pilots may not take holidays – health and
safety – as they would lose money
Held general allowances must be included where they relate
to any inconvenient aspect intrinsic to the performance of
the job eg flying allowance but not occasional payment eg
allowance for time away from a base when not working
Pay during leave should be comparable to pay during
periods of work
???? What is in and what is out?
More to come
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Dominguez v Centre informatique due Centre
Ouest Altantique, Prefect of the Centre Region
– AG - right to paid annual leave cannot be
subject to a condition that worker worked a
minimum period during reference period.
National laws can apply a different period
provided it is at least four weeks.
Just because national laws are different does not
mean they are disapplied.
Will be relevant to whether EU decisions apply to
4 weeks or 5.6 weeks
And more
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Neidel v Stadt Frankfurt am Main – asks ECJ to
advise whether the directive covers entitlements
to annual leave where national law provides for
more than four weeks and whether payment in lieu
on termination applies only to the four weeks or
any longer period
Alvarez v Consejeria de la Presidencia, Justicia
e Igualdad del Princapado de Asturias whether temporary incapacity arising during annual
leave only entitles the worker to leave at a later
date in the incapacity involves hospitalisation
Detriment
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Arriva London South Ltd v Nicolaou - employee
a bus driver refused to opt out of the 48 hour
working week.
As a result his employer did not give him any
overtime.
He claimed this was a detriment
The court held that provided the decision by the
employer was genuine there was no detriment
The decision not to offer overtime was due to a
desire to enforce a reasonable and necessary
policy