employment law update toni mcalindin march 2012 to join the employment law network and receive free...

Employment Law UpdateEmployment Law Update

Toni McAlindinToni McAlindinMarch 2012March 2012To join the Employment Law network and To join the Employment Law network and receive free bulletins email receive free bulletins email [email protected]@tonimcalindin.co.uk

20112011

A Lean time for employment A Lean time for employment lawlaw

Traditionally a conservative administration dislikes Traditionally a conservative administration dislikes new employment law and will try and curtail existing new employment law and will try and curtail existing lawslaws

However a coalition is more complex with liberal However a coalition is more complex with liberal policies having the opposite effectpolicies having the opposite effect

This is evident over the past 18 months and so there is This is evident over the past 18 months and so there is little new law but constant confusion as to what will little new law but constant confusion as to what will come next, what might go etccome next, what might go etc

A number of consultative documents have been A number of consultative documents have been published on reducing laws eg one changing tribunals, published on reducing laws eg one changing tribunals, on modern workplaces and on reducing red tapeon modern workplaces and on reducing red tape

However these do include proposals for new legislationHowever these do include proposals for new legislation

October 2011October 2011

Agency regulationsAgency regulations

For many years successive governments rejected an EU For many years successive governments rejected an EU directive on agency workers. In 2008 the CBI and TUC directive on agency workers. In 2008 the CBI and TUC reached agreement on a possible compromise which reached agreement on a possible compromise which allowed the government to agree the directive. Applies allowed the government to agree the directive. Applies after 12 weeks.after 12 weeks.

Final regulations in place plus guidance on some of the Final regulations in place plus guidance on some of the detail.detail.

Definition of worker that in Working time regulations – Definition of worker that in Working time regulations – adjusted to reflect triangular relationship between agency adjusted to reflect triangular relationship between agency worker, hirer and agencyworker, hirer and agency

Excludes self-employed, those working through their own Excludes self-employed, those working through their own limited liability company, those on managed service limited liability company, those on managed service contracts but contracts but includes includes those contracted to an umbrella those contracted to an umbrella company, or who operate a personal service company or company, or who operate a personal service company or are supplied through intermediaries. Still not clear re are supplied through intermediaries. Still not clear re limited companies other than excludes genuinely self-limited companies other than excludes genuinely self-employedemployed


Will be entitled to paid holidays, but not to occupational Will be entitled to paid holidays, but not to occupational sick pay or pensionsick pay or pension

Equal treatment will apply to conditions which apply Equal treatment will apply to conditions which apply generally in the workplace whether by collective generally in the workplace whether by collective agreement, generally or by custom and practiceagreement, generally or by custom and practice

Pay will mean basic pay plus contractual entitlements Pay will mean basic pay plus contractual entitlements directly linked to the work undertaken ie overtime, shift directly linked to the work undertaken ie overtime, shift allowances, unsocial hours premiums/bonuses, allowances, unsocial hours premiums/bonuses, payments for difficult or dangerous duties and some payments for difficult or dangerous duties and some commission payments and bonusescommission payments and bonuses

It will exclude bonus payments based on organisational It will exclude bonus payments based on organisational performance, linked to a performance appraisal, performance, linked to a performance appraisal, payments due to the long term relationship such as payments due to the long term relationship such as profit-sharing, share ownership schemesprofit-sharing, share ownership schemes


The 12 week period will be calendar weeks The 12 week period will be calendar weeks regardless of working patternsregardless of working patterns

A new qualifying period will begin only if a new A new qualifying period will begin only if a new assignment with the same employer is assignment with the same employer is substantively different or if similar there is a 6 substantively different or if similar there is a 6 or more week break before the clock stars or more week break before the clock stars againagain

Annual leave and sick leave will pause the Annual leave and sick leave will pause the clock, the clock should continue to tick through clock, the clock should continue to tick through maternity-related absence and where there maternity-related absence and where there are long absences due to sickness or jury are long absences due to sickness or jury service the clock will be reset after 28 weeksservice the clock will be reset after 28 weeks

Agency regulationsAgency regulations Agency liable for any breach but will have defence if have taken Agency liable for any breach but will have defence if have taken

reasonable steps to obtain necessary information from hirerreasonable steps to obtain necessary information from hirer Any party in the chain of causation can be named Any party in the chain of causation can be named After 12 weeks the worker can request a written statement from After 12 weeks the worker can request a written statement from

the agency – 28 days to respond – no separate right of the agency – 28 days to respond – no separate right of enforcementenforcement

Liability to access to employment and collective facilities Liability to access to employment and collective facilities responsibility of hirerresponsibility of hirer

Agency workers count towards thresholds for representative Agency workers count towards thresholds for representative bodies of agencybodies of agency

Access to employment opportunities from day oneAccess to employment opportunities from day one Vocational training to be addressed under a number of measuresVocational training to be addressed under a number of measures Hirer to make adjustments for pregnant worker, liability for Hirer to make adjustments for pregnant worker, liability for

alternative work or pay lies with the agency (for duration of alternative work or pay lies with the agency (for duration of assignment) – right to paid time off for ante-natalassignment) – right to paid time off for ante-natal

From October 2011From October 2011

Guidance on regulationsGuidance on regulations

Expands on several areasExpands on several areas A great deal on the issue of self-employment, stressing A great deal on the issue of self-employment, stressing

that only the genuinely self-employed are excluded but that only the genuinely self-employed are excluded but providing little real information of help to those in limited providing little real information of help to those in limited companiescompanies

More detail on calculation of the 12 week periodMore detail on calculation of the 12 week period More detail on what makes a position substantively More detail on what makes a position substantively

different different More detail on what is included in payMore detail on what is included in pay More detail on the exclusion when the agency is the More detail on the exclusion when the agency is the

employer and has to pay for gapsemployer and has to pay for gaps Slight change in definition of agency worker – as well as Slight change in definition of agency worker – as well as

contract of employment it now includes “or any other contract of employment it now includes “or any other contract with the agency to perform work or services contract with the agency to perform work or services personally”personally”

Slight change to Swedish regulationsSlight change to Swedish regulations

Religious discrimination Religious discrimination appealsappeals

Appeals in religious discrimination cases – Appeals in religious discrimination cases – Ladele, Ladele, McFarlane, EweidaMcFarlane, Eweida. Referred to the European Court of . Referred to the European Court of Human Rights. Lost on grounds of religious Human Rights. Lost on grounds of religious discrimination. Claims under art. 9 which guarantees discrimination. Claims under art. 9 which guarantees freedom of thought, conscience and religion and provides freedom of thought, conscience and religion and provides that freedom to manifest one’s religion or beliefs shall be that freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests and are necessary in a democratic society in the interests of public safety, for the protection of public order, health of public safety, for the protection of public order, health or morals or the protection of the rights and freedom of or morals or the protection of the rights and freedom of others.others.

The question is whether any such right has been The question is whether any such right has been interfered with and if so whether it is justified. Different interfered with and if so whether it is justified. Different test to discrimination law.test to discrimination law.

Religious discrimination Religious discrimination continuedcontinued

Intervention by Equality and Human Rights Commission. Intervention by Equality and Human Rights Commission. Originally proposed a “ Originally proposed a “reasonable accommodations”reasonable accommodations” approach similar to reasonable adjustments in disability approach similar to reasonable adjustments in disability discrimination cases. EHRC applied for leave to discrimination cases. EHRC applied for leave to intervene.intervene.

EHRC believes that judges have interpreted the law too EHRC believes that judges have interpreted the law too narrowly and have set the bar too high.narrowly and have set the bar too high.

However now set out their views in a consultative paper However now set out their views in a consultative paper Legal intervention on religion or belief rights: Legal intervention on religion or belief rights: seeking your viewsseeking your views

It has been given permission to intervene but no longer It has been given permission to intervene but no longer mentions reasonable accommodation as it feels it needs mentions reasonable accommodation as it feels it needs more consideration. It does not intend to support any more consideration. It does not intend to support any parties to litigation but to give its expert opinion on the parties to litigation but to give its expert opinion on the appropriate application of the law???????appropriate application of the law???????

Minimum wage from October Minimum wage from October 20112011

From 1From 1stst October adult rate rises to £6.08 October adult rate rises to £6.08 18-20 £4.9818-20 £4.98 16-17 £3.6816-17 £3.68 Apprentices £2.60Apprentices £2.60

Proposals and consultative Proposals and consultative documentsdocuments

New ratesNew rates

From 1From 1stst February 2012 the maximum February 2012 the maximum compensatory award for unfair dismissal will compensatory award for unfair dismissal will rise from £68,400 to £72,300rise from £68,400 to £72,300

The maximum amount of a week’s pay for The maximum amount of a week’s pay for redundancy and the basic award will rise from redundancy and the basic award will rise from £400 to £430£400 to £430

From 9 April 2012 statutory maternity, From 9 April 2012 statutory maternity, paternity, adoption, additional paternity and paternity, adoption, additional paternity and maternity allowance will rise from £128.73 to maternity allowance will rise from £128.73 to £135.45 and statutory sick pay will rise from £135.45 and statutory sick pay will rise from £81.60 to £85.85£81.60 to £85.85

Resolving workplace Resolving workplace disputesdisputes

Consultative document April 2011Consultative document April 2011 ProposalsProposals• Greater use of mediationGreater use of mediation• All claims to be submitted to ACAS in first instance, parties can All claims to be submitted to ACAS in first instance, parties can

use pre-conciliation and hopefully settle. Otherwise still free to use pre-conciliation and hopefully settle. Otherwise still free to progress to tribunalprogress to tribunal

• Greater powers to tribunals to strike out, costs etcGreater powers to tribunals to strike out, costs etc• Allowing employment judges to sit alone in unfair dismissal casesAllowing employment judges to sit alone in unfair dismissal cases• Increase qualifying service for unfair dismissal to two yearsIncrease qualifying service for unfair dismissal to two years• Providing for a fee to progress a claim – consultation on amount Providing for a fee to progress a claim – consultation on amount

to followto follow• Making changes to tribunal hearings to make them shorter Making changes to tribunal hearings to make them shorter • Introducing the use of legal officers to deal with certain case Introducing the use of legal officers to deal with certain case

management functionsmanagement functions

Results of consultationResults of consultation

Unfair dismissal qualifying period two years from April Unfair dismissal qualifying period two years from April 2012 (employment up to 52012 (employment up to 5thth one year) one year)

Emphasis on early resolution of disputesEmphasis on early resolution of disputes Compromise agreements to be renamed settlement Compromise agreements to be renamed settlement

agreements. Standard text to avoid cost to parties and agreements. Standard text to avoid cost to parties and Employment Rights Act will be amended so that existing Employment Rights Act will be amended so that existing and future claims can be compromised without having and future claims can be compromised without having to list all potential causes of actionto list all potential causes of action

Consultation on how to introduce a scheme to provide Consultation on how to introduce a scheme to provide quicker, cheaper determinations in low value, quicker, cheaper determinations in low value, straightforward claims such as holiday paystraightforward claims such as holiday pay

Lord Justice Underhill to carry out a comprehensive Lord Justice Underhill to carry out a comprehensive review of tribunals by April 2012review of tribunals by April 2012

Results continuedResults continued

A new term “protected conversations” to allow parties to A new term “protected conversations” to allow parties to have a frank conversation about any employment issue have a frank conversation about any employment issue without the existence of a formal disputewithout the existence of a formal dispute

Concerns are raised that this might allow employers to put Concerns are raised that this might allow employers to put pressure on employees and to discriminate without this pressure on employees and to discriminate without this information subsequently coming to light at a tribunalinformation subsequently coming to light at a tribunal

The Government’s justification is that employers are stuck The Government’s justification is that employers are stuck with under performing employees because they are afraid with under performing employees because they are afraid to speak to themto speak to them

Worries that it could be used to bully staff and bypass Worries that it could be used to bully staff and bypass agreed proceduresagreed procedures

It might become a shortcut to avoid disciplinary processesIt might become a shortcut to avoid disciplinary processes

Charging feesCharging fees

One of the proposals in the disputes paper relates to One of the proposals in the disputes paper relates to charging fees to progress a tribunal claim and a charging fees to progress a tribunal claim and a consultative document has been issuedconsultative document has been issued

Two alternative options are put forward. Option 1 if chosen Two alternative options are put forward. Option 1 if chosen would be implemented in 2013 whilst option 2 would would be implemented in 2013 whilst option 2 would require primary legislation so would not be implemented require primary legislation so would not be implemented until 2014until 2014

Option one – the fee would depend on the nature of the Option one – the fee would depend on the nature of the claim. There will be a fee to initiate the claim and one to claim. There will be a fee to initiate the claim and one to proceed with the hearing. There are three levels as followsproceed with the hearing. There are three levels as follows• Level one unpaid wages and redundancy (£150, £250)Level one unpaid wages and redundancy (£150, £250)• Level two unfair dismissal (£200, £1000)Level two unfair dismissal (£200, £1000)• Level three discrimination/whistleblowing (£250, £1250)Level three discrimination/whistleblowing (£250, £1250)

Fees continuedFees continued

Option twoOption two A one-off fee would be paid at the outset again related A one-off fee would be paid at the outset again related

to one of the three levels noted aboveto one of the three levels noted above Provided the claims were under £30,000 the fees would Provided the claims were under £30,000 the fees would

bebe• Level one £200Level one £200• Level two £500Level two £500• Level three £600Level three £600• All claims above £30,000 would be £1,750All claims above £30,000 would be £1,750

No fees will be payable by individuals unable to pay No fees will be payable by individuals unable to pay (based on HM Courts and Tribunals Service remission (based on HM Courts and Tribunals Service remission system)system)

Modern workplacesModern workplaces

Right to request flexible working was to be extended to Right to request flexible working was to be extended to parents of children aged under 18 (currently under 17 parents of children aged under 18 (currently under 17 unless disabled) from 6 April 2011. 18unless disabled) from 6 April 2011. 18thth March 2011 March 2011 Government announced repeal of regulations. Government announced repeal of regulations.

Confusion until the publication of Confusion until the publication of Modern workplaces Modern workplaces which looks at four specific areas of reformwhich looks at four specific areas of reform

Three were expected ie equal pay audits, Three were expected ie equal pay audits, implementation of the implementation of the Stringer and Pereda Stringer and Pereda judgements regarding holidays after long term sickness judgements regarding holidays after long term sickness and flexible working. In the latter case the government and flexible working. In the latter case the government had drawn up regulations to extend existing law but had drawn up regulations to extend existing law but instead repealed these and are now proposing flexible instead repealed these and are now proposing flexible working for allworking for all

The unexpected fourth area relates to flexible parental The unexpected fourth area relates to flexible parental leave which was mooted in January 2011 but without leave which was mooted in January 2011 but without the detailthe detail


Flexible workingFlexible working• To be introduced for all employees. The existing To be introduced for all employees. The existing

statutory procedure will be replaced by a duty to statutory procedure will be replaced by a duty to consider requests “reasonably” and a statutory code consider requests “reasonably” and a statutory code of practice will be issued to give employers guidance of practice will be issued to give employers guidance on how to handle requests and demonstrate a on how to handle requests and demonstrate a reasonable process. Concerns re competing reasonable process. Concerns re competing interests eg childcare, disability etcinterests eg childcare, disability etc

Equal payEqual pay• Employment tribunals would be able to require that Employment tribunals would be able to require that

employers that have discriminated on the grounds of employers that have discriminated on the grounds of sex in relation to contractual or non-contractual pay sex in relation to contractual or non-contractual pay matters conduct an equal pay auditmatters conduct an equal pay audit

Modern workplacesModern workplaces Working time regulations 1998Working time regulations 1998

• Will be amended to allow four weeks’ statutory annual leave to be Will be amended to allow four weeks’ statutory annual leave to be rescheduled and/or carried over into the next leave year when a rescheduled and/or carried over into the next leave year when a worker falls ill during annual leave. For maternity, paternity, worker falls ill during annual leave. For maternity, paternity, parental and adoption leave it will be 5.6 weeks of leave. Appears parental and adoption leave it will be 5.6 weeks of leave. Appears to be no limit to when this can happen.to be no limit to when this can happen.

KHS AG v Winfried ShulteKHS AG v Winfried Shulte decision by ECJ appears confusing re the decision by ECJ appears confusing re the above.above.

Case asks whether the ability to accrue leave or to carry over is limited 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 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, 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 even for those on prolonged sickness and if not whether it can be limited to 18 months.limited to 18 months.

ECJ concluded that directive does not preclude capping leave. ECJ concluded that directive does not preclude capping leave. Allowing leave to be taken sometime after it has accrued does Allowing leave to be taken sometime after it has accrued does not achieve the directive’s purpose.not achieve the directive’s purpose.

15 months time limit under German law ok but six months may 15 months time limit under German law ok but six months may be too short a time, for Member states to draw up own be too short a time, for Member states to draw up own rules??????? Implications for UK.rules??????? Implications for UK.


Parental leaveParental leave• 18 weeks maternity leave for the sole use of the 18 weeks maternity leave for the sole use of the

mother, maternity pay and allowance as nowmother, maternity pay and allowance as now• Fathers would continue to receive two weeks’ Fathers would continue to receive two weeks’

paternity leave at flat rate in first 8 weeks paternity leave at flat rate in first 8 weeks • Remainder (34 weeks – 21 paid, 13 unpaid) to be Remainder (34 weeks – 21 paid, 13 unpaid) to be

shared between parents, taken when they choose, shared between parents, taken when they choose, including together, in weeks or days depending on including together, in weeks or days depending on business need, to be reclassified as parental leave business need, to be reclassified as parental leave available to either parent on an equal basis (same available to either parent on an equal basis (same for adopters or same-sex couples)for adopters or same-sex couples)

• 21 weeks of pay reclassified as parental pay21 weeks of pay reclassified as parental pay

Modern workplacesModern workplaces Parental leave continuedParental leave continued

• Part of the period of flexible parental leave will be reserved Part of the period of flexible parental leave will be reserved for the exclusive use of each parent ie four weeksfor the exclusive use of each parent ie four weeks

• This would be paid at the flat rateThis would be paid at the flat rate• Could be taken when the parties wish after birth and even Could be taken when the parties wish after birth and even

togethertogether• Means an extra four weeks in total ie if mother takes Means an extra four weeks in total ie if mother takes

mandatory 18 weeks then flexible 34 there needs to be mandatory 18 weeks then flexible 34 there needs to be another four weeks for the fatheranother four weeks for the father

• Increase right to existing unpaid parental leave to 18 Increase right to existing unpaid parental leave to 18 weeks, consider raising age of child (currently 5) – weeks, consider raising age of child (currently 5) – postponed to 2013postponed to 2013

• Rules on taking leave to take account of business need ie Rules on taking leave to take account of business need ie employer may not be able to accommodate part-time or employer may not be able to accommodate part-time or short periods of leaveshort periods of leave

• Consider unpaid ante-natal leave for fathersConsider unpaid ante-natal leave for fathers

Red tape challengeRed tape challenge

Budget announced three year moratorium on new regulations for Budget announced three year moratorium on new regulations for small businesses (less than 10) and genuine new start ups but small businesses (less than 10) and genuine new start ups but not paternity or default retirement agenot paternity or default retirement age

Also Red tape challenge, one in, one out – Consultation October Also Red tape challenge, one in, one out – Consultation October 2011 on employment implications, ie compliance and 2011 on employment implications, ie compliance and enforcement, recruitment, managing staff and terminating enforcement, recruitment, managing staff and terminating employmentemployment

Mention of changes to TUPE, discrimination awards and Mention of changes to TUPE, discrimination awards and consultation periods for redundancyconsultation periods for redundancy

However many of these not within the competence of the UK However many of these not within the competence of the UK government – much said about discrimination compensation but government – much said about discrimination compensation but in reality only a few high payoutsin reality only a few high payouts

May have more success with redundancy consultation periods May have more success with redundancy consultation periods particularly since the EU is currently reviewing the collective particularly since the EU is currently reviewing the collective redundancy directive, the Acquired rights directive and the redundancy directive, the Acquired rights directive and the overall framework directive on information and consultationoverall framework directive on information and consultation

Red tape challenge contdRed tape challenge contd

IncludesIncludes Seeking views on a proposal to introduce compensated no fault Seeking views on a proposal to introduce compensated no fault

dismissal for micro firms with fewer than 10 employeesdismissal for micro firms with fewer than 10 employees Working with ACAS to simplify dismissal processes including the Working with ACAS to simplify dismissal processes including the

Code or supplementary guidance for small businessesCode or supplementary guidance for small businesses Creating a portable CRB check that can be viewed by employers Creating a portable CRB check that can be viewed by employers

online from 2013online from 2013 Carrying on with the review of parental provisionsCarrying on with the review of parental provisions Implementing the proposals on working timeImplementing the proposals on working time Further consultation on flexible workingFurther consultation on flexible working Changes to whistleblowing rules to stop individuals using the Changes to whistleblowing rules to stop individuals using the

legislation for areas affecting their own contracts of employmentlegislation for areas affecting their own contracts of employment Consultation on reviewing third party harassmentConsultation on reviewing third party harassment Consultation on integration of tax and national insuranceConsultation on integration of tax and national insurance

Red tape challenge contdRed tape challenge contd

Consultative documents have been issued on a Consultative documents have been issued on a review of Tupe and redundancyreview of Tupe and redundancy

Tupe is regarded as too complexTupe is regarded as too complex The document asks whether there should be a The document asks whether there should be a

right to harmonise terms and conditionsright to harmonise terms and conditions The redundancy consultative document asks The redundancy consultative document asks

questions about reviewing the consultation questions about reviewing the consultation time periods for collective redundancies (the time periods for collective redundancies (the directive has no fixed timescales) and looking directive has no fixed timescales) and looking at the definition of an establishmentat the definition of an establishment

Health at workHealth at work

Health at work – an independent review of Health at work – an independent review of sickness absence sickness absence notes the huge cost of absence to notes the huge cost of absence to individuals, their employers and society at largeindividuals, their employers and society at large

It considers that many people signed off work could do It considers that many people signed off work could do some worksome work

The fit note has not been a major success as GPs are The fit note has not been a major success as GPs are unwilling or unable to provide meaningful information unwilling or unable to provide meaningful information on whether an individual could come back to work part-on whether an individual could come back to work part-time, on reduced hours, to different work etctime, on reduced hours, to different work etc

It proposes that after four weeks absence an individual It proposes that after four weeks absence an individual be sent to an Independent Assessment Service to make be sent to an Independent Assessment Service to make a judgement on future action – it is not clear who will 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 fund this nor who will run it – in other words it won’t be the GP who makes this decisionthe GP who makes this decision

Rehabilitation periodsRehabilitation periods

The Government has announced a lowering of The Government has announced a lowering of rehabilitation periods before a conviction can be spent rehabilitation periods before a conviction can be spent under the under the Rehabilitation of Offenders Act 1974Rehabilitation of Offenders Act 1974

Under the Under the Legal Aid, Sentencing and Punishment Legal Aid, Sentencing and Punishment of Offenders Billof Offenders Bill the periods will be reduced and will the periods will be reduced and will run from when the individual completes his or sentence run from when the individual completes his or sentence rather than date of conviction as at presentrather than date of conviction as at present

Convictions resulting in a custodial sentence of more Convictions resulting in a custodial sentence of more than four years will remain unspentthan four years will remain unspent

Job applicants will have to declare spent and unspent for Job applicants will have to declare spent and unspent for jobs with children and vulnerable adultsjobs with children and vulnerable adults

Example many offences with a current 5 year term will Example many offences with a current 5 year term will reduce to one, 10 years to 4reduce to one, 10 years to 4

Caselaw – contractsCaselaw – contracts

2 major cases2 major cases Edwards v Chesterfield Royal Hospitals NHS Foundation TrustEdwards v Chesterfield Royal Hospitals NHS Foundation Trust Consultant dismissed for professional misconduct. Could not find Consultant dismissed for professional misconduct. Could not find

other work and likely to lose large sums over career life timeother work and likely to lose large sums over career life time Claimed trust had not followed contractual disciplinary proceedingsClaimed trust had not followed contractual disciplinary proceedings Original case held only entitled to damages for notice period and Original case held only entitled to damages for notice period and

period to follow proper proceduresperiod to follow proper procedures Court of Appeal held this was not about the manner of dismissal Court of Appeal held this was not about the manner of dismissal

(Johnson) but about breach of contract(Johnson) but about breach of contract He could have sought an injunction to make them go through He could have sought an injunction to make them go through

procedures (he believed he would not then be dismissed)procedures (he believed he would not then be dismissed) Johnson had held no action at common law other than breach of Johnson had held no action at common law other than breach of

contractcontract If loss flows from a contractual term other than notice there is no law If loss flows from a contractual term other than notice there is no law

to prevent recovery of financial loss flowing from the breachto prevent recovery of financial loss flowing from the breach Has to prove at full trial he would not be dismissed in order to Has to prove at full trial he would not be dismissed in order to

succeedsucceed Note will be heard by Supreme Court (plus Botham below) to see Note will be heard by Supreme Court (plus Botham below) to see

whether such claims fall within the Johnson exclusion or notwhether such claims fall within the Johnson exclusion or not

Breach of contract as free-Breach of contract as free-standing rightstanding right

Botham v Ministry of DefenceBotham v Ministry of Defence Employee won unfair dismissal claim on basis of employer’s Employee won unfair dismissal claim on basis of employer’s

handling of disciplinary procedurehandling of disciplinary procedure UD compensation was insufficient to cover his legal costsUD compensation was insufficient to cover his legal costs Sought to recover under common law claiming free-standing Sought to recover under common law claiming free-standing

rightright On basis of Eastwood could only succeed if the breach of On basis of Eastwood could only succeed if the breach of

contract arose prior to dismissal and not as part of the dismissal contract arose prior to dismissal and not as part of the dismissal processprocess

Johnson holds cannot recover for the manner of his dismissalJohnson holds cannot recover for the manner of his dismissal Although he also claimed breach of the contractual disciplinary Although he also claimed breach of the contractual disciplinary

process this was part and parcel of his unfair dismissalprocess this was part and parcel of his unfair dismissal Note in Note in Mezey v South West London and St George’s Mezey v South West London and St George’s

Mental Health NHS Trust Mental Health NHS Trust - Court of Appeal upheld injunction - Court of Appeal upheld injunction to restrain an NHS trust from holding a capability hearing in to restrain an NHS trust from holding a capability hearing in breach of its disciplinary proceduresbreach of its disciplinary procedures

Supreme court considerSupreme court consider

The Supreme court has now reached its conclusion The Supreme court has now reached its conclusion but there was considerable dissent between judges but there was considerable dissent between judges as to the proper construction of such rightsas to the proper construction of such rights

The court held that Johnson operates as a bar to a The court held that Johnson operates as a bar to a claim for damages for the manner of dismissal in claim for damages for the manner of dismissal in both express and implied termsboth express and implied terms

Both cases were held to fall on their facts as they Both cases were held to fall on their facts as they fell within Johnson rather than Eastwoodfell within Johnson rather than Eastwood

Two of the Lords thought that Edwards case Two of the Lords thought that Edwards case related to a cause of action prior to dismissal but related to a cause of action prior to dismissal but were overruledwere overruled

Negligent CRB CheckNegligent CRB Check

Many positions require the employer to carry out a Many positions require the employer to carry out a criminal record checkcriminal record check

Chief police officer required to provide any information Chief police officer required to provide any information considered relevant when a check is madeconsidered relevant when a check is made

May involve an exercise in judgement particularly when May involve an exercise in judgement particularly when someone is charged with an offence but not someone is charged with an offence but not subsequently prosecuted. This could be for a variety of subsequently prosecuted. This could be for a variety of reasons eg the victim dropping the case or the police reasons eg the victim dropping the case or the police finding the person was innocentfinding the person was innocent

Desmond v Nottinghamshire PoliceDesmond v Nottinghamshire Police – individual – individual accused on of alleged sexual misconduct. Subsequently accused on of alleged sexual misconduct. Subsequently decided no case to answer but information given for decided no case to answer but information given for enhanced criminal record check which affected his enhanced criminal record check which affected his position as a teacherposition as a teacher

Held the police do not owe any duty of care in Held the police do not owe any duty of care in such cases and cannot be sued in negligencesuch cases and cannot be sued in negligence

Caselaw dismissalCaselaw dismissal

Legal representationLegal representation

In In R (on the application of G) v The Governors of X School R (on the application of G) v The Governors of X School and anor and anor - a teacher was dismissed for kissing a 15 year old - a teacher was dismissed for kissing a 15 year old boy. The school was obliged to report him to the Secretary of boy. The school was obliged to report him to the Secretary of State to determine whether he should be placed on a list of State to determine whether he should be placed on a list of persons prohibited from working with children.persons prohibited from working with children.

High Court held that due to the serious nature of the allegations High Court held that due to the serious nature of the allegations he should have been allowed legal representation at the he should have been allowed legal representation at the disciplinary and appeal hearingsdisciplinary and appeal hearings

Commented that the case is limited to its own facts ie breach of Commented that the case is limited to its own facts ie breach of human rights – serious impact on future job prospects.human rights – serious impact on future job prospects.

Note Human Rights legislation applies in the public sector – most Note Human Rights legislation applies in the public sector – most cases would concern normal unfair dismissal legislationcases would concern normal unfair dismissal legislation

Heard by the Court of Appeal who confirmed previous decision ie Heard by the Court of Appeal who confirmed previous decision ie that where the decision was determinative of a right to practice that where the decision was determinative of a right to practice a profession there should be legal representationa profession there should be legal representation

Supreme Court decisionSupreme Court decision

Note heard by the Supreme Court on 11 April 2011Note heard by the Supreme Court on 11 April 2011 Held there is no right under Article 6 of the ECHR to legal Held there is no right under Article 6 of the ECHR to legal

representation where the dismissal could lead to barring representation where the dismissal could lead to barring the individual from his profession, where the barring the individual from his profession, where the barring decision is sufficiently independent of the dismissal decision is sufficiently independent of the dismissal decisiondecision

Not engaged at the disciplinary hearing, the nature of the Not engaged at the disciplinary hearing, the nature of the ISA proceedings, being independent of the employer’s ISA proceedings, being independent of the employer’s decision and dealing with a different question – meant no decision and dealing with a different question – meant no requirement for Article 6 to be engagedrequirement for Article 6 to be engaged

However did note that where a decision in one set of However did note that where a decision in one set of proceedings determines the outcome in subsequent proceedings determines the outcome in subsequent proceedings that determines a person’s civil rights, such proceedings that determines a person’s civil rights, such a right may be engageda right may be engaged

Social media dismissalSocial media dismissal

In In Preece v JD Wetherspoons Plc Preece v JD Wetherspoons Plc fair dismissal for gross fair dismissal for gross misconduct for posting inappropriate comments about misconduct for posting inappropriate comments about customers on Facebook.customers on Facebook.

Pub manager and whilst still at work posted comments on Pub manager and whilst still at work posted comments on Facebook about abusive customers identifying them by name. Facebook about abusive customers identifying them by name. Her privacy settings meant that a wide range of people Her privacy settings meant that a wide range of people including the very customers could see her page. One made including the very customers could see her page. One made a complaint and she was dismissed for gross misconduct.a complaint and she was dismissed for gross misconduct.

Admitted that she was aware of the company’s email and Admitted that she was aware of the company’s email and internet policy and knew she had breached it.internet policy and knew she had breached it.

Clearly it is important to have such policies. In this case she Clearly it is important to have such policies. In this case she breached the policy whilst at work but employers need to breached the policy whilst at work but employers need to ensure the policy is broad enough to cover inappropriate ensure the policy is broad enough to cover inappropriate comments whenever made.comments whenever made.

Is it the company’s Is it the company’s businessbusiness

Bates v Cumbria County CouncilBates v Cumbria County Council Mr Bates was head of religious studies. He had had run ins Mr Bates was head of religious studies. He had had run ins

with the head teacher and with another teacher in his role as with the head teacher and with another teacher in his role as trade union representative but had an excellent record.trade union representative but had an excellent record.

Staff had laptops which were used in the classroom and at Staff had laptops which were used in the classroom and at home including work and personal emails.home including work and personal emails.

Following earlier interventions staff had been allowed to use Following earlier interventions staff had been allowed to use laptops for a certain amount of social networkinglaptops for a certain amount of social networking

The other teacher complained that he was a member of a The other teacher complained that he was a member of a dating site and had looked at the site whilst at work (how did dating site and had looked at the site whilst at work (how did she know)she know)

An IT investigation showed that he had looked at the site for 15 An IT investigation showed that he had looked at the site for 15 seconds during a lesson when pupils were watching a videoseconds during a lesson when pupils were watching a video

The Head teacher influenced the dismissing panel to dismiss The Head teacher influenced the dismissing panel to dismiss him on the grounds of – “a seedy picture of someone sending him on the grounds of – “a seedy picture of someone sending sexual messages”sexual messages”

Held dismissal unfair – emotive language, head teacher’s Held dismissal unfair – emotive language, head teacher’s attitude to a dating site coloured her view of the incidentattitude to a dating site coloured her view of the incident

Over reaction!Over reaction! Whitham v Club 24 t/a VenturaWhitham v Club 24 t/a Ventura Team leader. Company provided customer services for Team leader. Company provided customer services for

Skoda, part of Volkswagen and a significant customer. On Skoda, part of Volkswagen and a significant customer. On site with both organisationssite with both organisations

After a bad day posted a comment on her Facebook – After a bad day posted a comment on her Facebook – settings only open to 50 friendssettings only open to 50 friends

Comment related to working in a nursery but not with Comment related to working in a nursery but not with plantsplants

Dismissed – company policy held posting information Dismissed – company policy held posting information about the job on the internet might led to disciplinary about the job on the internet might led to disciplinary action – clean record to dateaction – clean record to date

Held unfair. No real investigation as to consequences of Held unfair. No real investigation as to consequences of her comments. Volkswagen not mentioned, no her comments. Volkswagen not mentioned, no confidential information on job mentioned, customer not confidential information on job mentioned, customer not asked and unlikely to terminate a large commercial asked and unlikely to terminate a large commercial contract on this basiscontract on this basis

Dismissal for refusing pay cutDismissal for refusing pay cut Garside and Laycock Ltd v BoothGarside and Laycock Ltd v Booth company was undergoing company was undergoing

trading difficulties - asked staff to accept a 5% reduction in pay.trading difficulties - asked staff to accept a 5% reduction in pay. Held meetings with staff, balloted, substantial majority agreed. Held meetings with staff, balloted, substantial majority agreed.

Mr Booth refused. Various meetings to find alternatives with Mr Booth refused. Various meetings to find alternatives with him. Refused and was dismissed.him. Refused and was dismissed.

SOSR but was it within the band of reasonable responses. Held SOSR but was it within the band of reasonable responses. Held unfair.unfair.

EAT disagreed. EAT disagreed. Employers may need to make changes even when the situation Employers may need to make changes even when the situation

is not desperate. If the view of an individual employee is not desperate. If the view of an individual employee regarding reasonableness was the required test, it would be regarding reasonableness was the required test, it would be impossible to make a decision as most employees would find a impossible to make a decision as most employees would find a detrimental change unacceptable. The tribunal needs to look at detrimental change unacceptable. The tribunal needs to look at the overall situation and decide whether it is reasonable. The the overall situation and decide whether it is reasonable. The case was remitted for a reconsideration case was remitted for a reconsideration

Part of a difficult line of cases ie is the tribunal substituting its Part of a difficult line of cases ie is the tribunal substituting its idea of what is fair rather than a range of responsesidea of what is fair rather than a range of responses

Dismissal because of Dismissal because of someone else’s behavioursomeone else’s behaviour

In In Symes v The Pepperbox NurserySymes v The Pepperbox Nursery Mrs Symes was a nursery nurse. Mrs Symes was a nursery nurse. Told her employer husband had been arrested for child pornography.Told her employer husband had been arrested for child pornography.

Reassured re her job. Then got more serious, more images found, he had Reassured re her job. Then got more serious, more images found, he had been required to leave their home. been required to leave their home.

The nursery manager passed this information on to Somerset County The nursery manager passed this information on to Somerset County Council and to Ofsted. Council and to Ofsted.

Later nursery made aware of specific charges and it was reported in a local Later nursery made aware of specific charges and it was reported in a local newspaper.newspaper.

Ofsted indicated that if Mr Symes was convicted and Mrs Symes continued 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 to live with him she would become a “disqualified person” and unable to work with children.work with children.

Others expressed concerned. Eventually dismissed when failed to reassure Others expressed concerned. Eventually dismissed when failed to reassure nursery. nursery.

Dismissal fair – employer had been patient, had anticipated views of Dismissal fair – employer had been patient, had anticipated views of clients, information was on facebook, freely available, knew she was in clients, information was on facebook, freely available, knew she was in difficult position but so were they. Had done all they could. difficult position but so were they. Had done all they could.

Failure to appeal final Failure to appeal final warningwarning

Davies v Sandwell Metropolitan Borough CouncilDavies v Sandwell Metropolitan Borough Council D was D was dismissed for misconduct following a number of incidents.dismissed for misconduct following a number of incidents.Employer took into account a live final written warning – some Employer took into account a live final written warning – some doubt re its fairness and employer offered to rehear but D doubt re its fairness and employer offered to rehear but D declined.declined.Tribunal regarded that as relevant even though they had doubts Tribunal regarded that as relevant even though they had doubts about the final warning. Held failure to appeal allowed the Council about the final warning. Held failure to appeal allowed the Council to rely on warning.to rely on warning.EAT disagreed. Failure to appeal irrelevant. If there were doubts EAT disagreed. Failure to appeal irrelevant. If there were doubts about the FWW and tribunal held it was a nullity if would affect about the FWW and tribunal held it was a nullity if would affect any subsequent dismissal. any subsequent dismissal. Jacks v BMI Baby LtdJacks v BMI Baby Ltd Ms J was a cabin manager for BMI baby. Ms J was a cabin manager for BMI baby. For a variety of reasons she was demoted and given a final For a variety of reasons she was demoted and given a final written warning. She committed another breach and was written warning. She committed another breach and was dismissed. Held if there is a dispute re a FWW, not for tribunal to 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 interfere if it is satisfied FWW given in good faith. Will only do so in in exceptional circumstances.in in exceptional circumstances.

Territorial jurisdictionTerritorial jurisdiction

A number of new casesA number of new cases Original decision in Original decision in Lawson v Serco Lawson v Serco held that where an held that where an

individual works overseas there are three main scenarios individual works overseas there are three main scenarios when individuals may have rights in UK courtswhen individuals may have rights in UK courts• At the time of dismissal the individual is working in Great At the time of dismissal the individual is working in Great

Britain;Britain;• The peripatetic employee such as airline staff who have The peripatetic employee such as airline staff who have

a base in Great Britain;a base in Great Britain;• Expatriate employees who although both work and are Expatriate employees who although both work and are

based abroad can in certain circumstances benefit for based abroad can in certain circumstances benefit for UK rights UK rights – Employees posted abroad to work for a business Employees posted abroad to work for a business

carried on in Great Britain (newspaper carried on in Great Britain (newspaper correspondents);correspondents);

– Employees working for a British employer operating Employees working for a British employer operating within a British political or social enclavewithin a British political or social enclave

ExceptionsExceptions

Ravat v Haliburton Manufacturing and Services Ravat v Haliburton Manufacturing and Services Ltd Ltd - Supreme court held that failing to fall within the 3 - Supreme court held that failing to fall within the 3 categories not necessarily fatal to claim. Employee categories not necessarily fatal to claim. Employee based in Libya – stronger connection with Great Britain based in Libya – stronger connection with Great Britain than with Libya.than with Libya.

Resided in the UK, travel expenses and salary paid in Resided in the UK, travel expenses and salary paid in sterling into UK banksterling into UK bank

Supreme court due to hear appeal in Supreme court due to hear appeal in Mak – Mak – BA’s Hong BA’s Hong Kong airline crew based in Hong KongKong airline crew based in Hong Kong

Walker v Church Mission SocietyWalker v Church Mission Society – worked 8 years in – worked 8 years in Africa, worked overseas, not posted abroad for the Africa, worked overseas, not posted abroad for the purposes of a business based in Great Britain nor a purposes of a business based in Great Britain nor a strong connection to Great Britain. Oxford-based strong connection to Great Britain. Oxford-based employer. No rights.employer. No rights.

EU ConventionEU Convention

Koelzsch v Etat du Grand-Duche de LuxembourgKoelzsch v Etat du Grand-Duche de Luxembourg EU consider which laws apply under 1980 Rome EU consider which laws apply under 1980 Rome

Convention – looking at all the facts, where he or she Convention – looking at all the facts, where he or she performs greater part of obligations. performs greater part of obligations.

Mandatory laws of country in which place of business is Mandatory laws of country in which place of business is situated ought only to apply where it is not possible to situated ought only to apply where it is not possible to determine the country in which the work is habitually determine the country in which the work is habitually carried out.carried out.

Possible for peripatetic employees who work in several Possible for peripatetic employees who work in several countries to habitually work in one. If not the law of the countries to habitually work in one. If not the law of the country in which they are based can applycountry in which they are based can apply

Caselaw discriminationCaselaw discrimination

Equal payEqual pay

Same employer, different Same employer, different establishmentestablishment

Dumfries and Galloway Council v North and orsDumfries and Galloway Council v North and ors Claimants nursery nurses, classroom assistants employed in Claimants nursery nurses, classroom assistants employed in

schools . Sought to compare with manual workers working from schools . Sought to compare with manual workers working from depots. Different collective agreements.depots. Different collective agreements.

Same employer but different establishments.Same employer but different establishments. Can only compare if there is a real possibility of the comparator Can only compare if there is a real possibility of the comparator

doing the same or broadly similar work at claimant’s place of doing the same or broadly similar work at claimant’s place of work as his current place of workwork as his current place of work

Held should not be assumed that this is the same employment Held should not be assumed that this is the same employment just because employed by same employerjust because employed by same employer

To make comparison requires uniformity or commonality between To make comparison requires uniformity or commonality between the two employment regimesthe two employment regimes

If they worked on each other’s premises would they have their If they worked on each other’s premises would they have their current terms. In reality neither group would ever work at the current terms. In reality neither group would ever work at the premises of the other so no real possibility so not in same premises of the other so no real possibility so not in same employmentemployment

On Appeal Court of Session has overturned using Wilkinson belowOn Appeal Court of Session has overturned using Wilkinson below

Court of Session - NorthCourt of Session - North North and others v Dumfries and Galloway CouncilNorth and others v Dumfries and Galloway Council Tribunal found the claimants were in the same establishment for Tribunal found the claimants were in the same establishment for

equal pay purposes – looking at a hypothetical comparator it equal pay purposes – looking at a hypothetical comparator it was possible to state what the terms would bewas possible to state what the terms would be

Overturned by EAT – there must be a real possibility of the Overturned by EAT – there must be a real possibility of the comparators being transferred to the claimants’ establishmentcomparators being transferred to the claimants’ establishment

Court of Session – no such extra hurdle – agreed with EAT in Court of Session – no such extra hurdle – agreed with EAT in Wilkinson that the intention of the act could be restricted with Wilkinson that the intention of the act could be restricted with this extra hurdlethis extra hurdle

BUT – case did not succeed. Accepted that terms and conditions BUT – case did not succeed. Accepted that terms and conditions should be considered broadly. Accepted that HR manager had should be considered broadly. Accepted that HR manager had provided compelling evidence that the male comparators’ terms provided compelling evidence that the male comparators’ terms and conditions would need to be significantly varied to make it and conditions would need to be significantly varied to make it possible for them to work at schools. If the hypothetical possible for them to work at schools. If the hypothetical situation of the male workers’ transfer to the school arose, the situation of the male workers’ transfer to the school arose, the terms and conditions common to other workers at the council terms and conditions common to other workers at the council would not necessarily apply to the transferred workerswould not necessarily apply to the transferred workers

Same establishment or Same establishment or common termscommon terms

City of Edinburgh Council v WilkinsonCity of Edinburgh Council v Wilkinson Administrative and clerical workers claiming equal pay with Administrative and clerical workers claiming equal pay with

grave diggers and refuse collectors all working in different grave diggers and refuse collectors all working in different placesplaces

The tribunal, EAT and Court of Session used different The tribunal, EAT and Court of Session used different explanations to allow the comparison to proceedexplanations to allow the comparison to proceed

They all worked for the same employer but not at the same They all worked for the same employer but not at the same establishment ie physical building but the question was establishment ie physical building but the question was whether this could be regarded as the same establishmentwhether this could be regarded as the same establishment

The ET held they were on common terms and conditions so The ET held they were on common terms and conditions so establishment was not the issueestablishment was not the issue

The EAT held that they did work at the same establishment The EAT held that they did work at the same establishment if an establishment was given a broad meaningif an establishment was given a broad meaning

Court of SessionCourt of Session

The wording of the legislation was “at” not “in” the The wording of the legislation was “at” not “in” the same establishment which indicated a locality rather same establishment which indicated a locality rather than a body or undertakingthan a body or undertaking

They did not therefore work at the same establishmentThey did not therefore work at the same establishment However there were common terms and conditions as However there were common terms and conditions as

dictated by the Red Bookdictated by the Red Book A male comparator had he moved to another A male comparator had he moved to another

establishment would take his current terms and establishment would take his current terms and conditions with him (note the argument in Dumfries conditions with him (note the argument in Dumfries above that this is not necessarily true )above that this is not necessarily true )

The Court of Session held that it all depended on the The Court of Session held that it all depended on the nature of the post and duties irrespective of location (eg nature of the post and duties irrespective of location (eg it is highly unlikely that a grave digger can move his it is highly unlikely that a grave digger can move his post to another location)post to another location)

Material factor defenceMaterial factor defence

Secretary of State for Justice v BowlingSecretary of State for Justice v Bowling C and her comparator were recruited on like work but C and her comparator were recruited on like work but

he was placed two points above her on the incremental he was placed two points above her on the incremental scale due to background and experiencescale due to background and experience

Next pay review she had matched his performanceNext pay review she had matched his performance By giving them similar pay rises and merit award there By giving them similar pay rises and merit award there

was still a pay disparitywas still a pay disparity ET held that the original reason for the disparity ceased ET held that the original reason for the disparity ceased

to be a material factorto be a material factor EAT disagreed – test was whether the original cause for EAT disagreed – test was whether the original cause for

the disparity ceased to operate as an explanation at the the disparity ceased to operate as an explanation at the date under consideration – the explanation in this case date under consideration – the explanation in this case was not time barredwas not time barred

DisabilityDisability

Extension of sick payExtension of sick pay RBS v Ashton RBS v Ashton – – employee suffered from migraines leading to employee suffered from migraines leading to

extensive time off work. Normal policy for short absences was to extensive time off work. Normal policy for short absences was to trigger the sickness management policy.trigger the sickness management policy.

This could lead to a disciplinary warning once a trigger had been This could lead to a disciplinary warning once a trigger had been reachedreached

It also lead to non-payment of sick pay which was described as It also lead to non-payment of sick pay which was described as discretionarydiscretionary

Despite reaching and bypassing the triggers the employee was not Despite reaching and bypassing the triggers the employee was not disciplined nor had sick pay stopped – her absolute entitlement was disciplined nor had sick pay stopped – her absolute entitlement was to 52 weeks pay which she would never reach on short term sicknessto 52 weeks pay which she would never reach on short term sickness

Eventually management decided it could not carry on and gave her a Eventually management decided it could not carry on and gave her a warning and stopped sick paywarning and stopped sick pay

Claimed failure to make reasonable adjustment. Held it would rarely Claimed failure to make reasonable adjustment. Held it would rarely be a reasonable adjustment to carry on paying sick pay other than in be a reasonable adjustment to carry on paying sick pay other than in exceptional circumstances. Therefore the impact of the sick pay exceptional circumstances. Therefore the impact of the sick pay policy was not less favourable to her than to otherspolicy was not less favourable to her than to others

Held practice of giving a warning might disadvantage a disabled Held practice of giving a warning might disadvantage a disabled person more but was justified in the circumstancesperson more but was justified in the circumstances

Reasonable adjustmentsReasonable adjustments Salford NHS Primary Care Trust v Smith Salford NHS Primary Care Trust v Smith occupational occupational

therapist on long term sick leave with chronic fatigue therapist on long term sick leave with chronic fatigue syndromesyndrome

Job ceased to exist – offered a number of different roles – all Job ceased to exist – offered a number of different roles – all rejectedrejected

Offered administrative work and training in ITOffered administrative work and training in IT Failed to attend meetingsFailed to attend meetings Employer wrote inviting to further meeting and setting out Employer wrote inviting to further meeting and setting out

options including terminationoptions including termination Resigned claimed CD and disability discriminationResigned claimed CD and disability discrimination ET – employer should have made a job for her even if not ET – employer should have made a job for her even if not

productive or proposed light dutiesproductive or proposed light duties EAT disagreed – this was not a reasonable adjustment EAT disagreed – this was not a reasonable adjustment

– which had to alleviate the particular disadvantage – – which had to alleviate the particular disadvantage – employer had done all he could – need to pay attention employer had done all he could – need to pay attention to statutory test not a general test of reasonablenessto statutory test not a general test of reasonableness

Reasonable adjustmentReasonable adjustment

Cordell v Foreign and Commonwealth Office Cordell v Foreign and Commonwealth Office - - senior diplomat senior diplomat

Deaf and during a posting to Poland received Deaf and during a posting to Poland received assistance from three lip speakers at an annual assistance from three lip speakers at an annual cost of £146,000cost of £146,000

Offered promotion to Kazakhstan – cost of support Offered promotion to Kazakhstan – cost of support there was £249,500 – more than half the FCO’s there was £249,500 – more than half the FCO’s budget for the year – FCO withdrew the offerbudget for the year – FCO withdrew the offer

Held – reasonable is what is right and just – Held – reasonable is what is right and just – including budget – this was 5 times her salary - including budget – this was 5 times her salary - unsuccessfulunsuccessful

RA to redundancy criteriaRA to redundancy criteria

Lancaster v TBWA Manchester – Lancaster v TBWA Manchester – Mr L was a senior Mr L was a senior art director who suffered from social anxiety and panic art director who suffered from social anxiety and panic disorder considered as a disabilitydisorder considered as a disability

Selection criteria for redundancy – he got least scores Selection criteria for redundancy – he got least scores and was selectedand was selected

Argued that the selection criteria were a PCP which Argued that the selection criteria were a PCP which placed him at a considerable disadvantage and that placed him at a considerable disadvantage and that they should have been changedthey should have been changed

Evidence that even if the three he mentioned were Evidence that even if the three he mentioned were changed it would not have changed the eventual resultchanged it would not have changed the eventual result

An adjustment is only reasonable if it helps the An adjustment is only reasonable if it helps the disabled person but not if it makes no difference disabled person but not if it makes no difference to the end result – in any case the employer to the end result – in any case the employer needs to justify the relevance of any criteria usedneeds to justify the relevance of any criteria used

What is the test?What is the test?

In In Wilcox v Birmingham CAB Services LtdWilcox v Birmingham CAB Services Ltd – the court – the court considered the proper test for reasonable adjustmentsconsidered the proper test for reasonable adjustments

The individual did not want to work in different CAB The individual did not want to work in different CAB offices but wanted to work from home as she had a offices but wanted to work from home as she had a disability – agoraphobia and travel anxietydisability – agoraphobia and travel anxiety

Her employer did not know this, she refused to see a GP, Her employer did not know this, she refused to see a GP, she was obstructive in providing a medical report – held she was obstructive in providing a medical report – held no failureno failure

In order for the duty of RA to apply the employer has to In order for the duty of RA to apply the employer has to know (actually or constructively) know (actually or constructively) bothboth that the employee that the employee is disabled is disabled andand that the employer’s practices put the that the employer’s practices put the disabled person at a disadvantage – only then does the disabled person at a disadvantage – only then does the duty ariseduty arise

Here the employer did not know and was not liableHere the employer did not know and was not liable

ReligionReligion

Philosophical beliefPhilosophical belief Nicholson v Grainger plc - Nicholson v Grainger plc - argued selected for redundancy because of argued selected for redundancy because of

his philosophical belief – case to go ahead accepting that belief in the his philosophical belief – case to go ahead accepting that belief in the importance of the environment and climate change may be a importance of the environment and climate change may be a philosophical belief – upheld on appealphilosophical belief – upheld on appeal

For a philosophical belief to come within the legislation it must beFor a philosophical belief to come within the legislation it must be• genuinely held;genuinely held;• be a belief and not an opinion or viewpoint based on the present state 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 of information available (it was argued that this would exclude a scientific belief based on conclusions drawn from science and scientific belief based on conclusions drawn from science and resulting from research or the gathering of information but the court resulting from research or the gathering of information but the court was not willing to limit the definition in this way citing Darwinism was not willing to limit the definition in this way citing Darwinism which was capable of being a philosophical belief albeit based on which was capable of being a philosophical belief albeit based on science and not all uncontroversial);science and not all uncontroversial);

• be a belief as to a weighty and substantial aspect of human life and be a belief as to a weighty and substantial aspect of human life and behaviour;behaviour;

• attain a certain level of cogency, seriousness, cohesion and attain a certain level of cogency, seriousness, cohesion and importance andimportance and

• be worthy of respect in a democratic society and not incompatible be worthy of respect in a democratic society and not incompatible with human dignity and or conflict with the fundamental rights of with human dignity and or conflict with the fundamental rights of others.others.

Manifesting or holding beliefManifesting or holding belief Power v Greater Manchester Police AuthorityPower v Greater Manchester Police Authority Police trainer argued that he was dismissed because he believes in Police trainer argued that he was dismissed because he believes in

the power of psychics and their usefulness in police investigations the power of psychics and their usefulness in police investigations Successfully argued that spiritualism is capable of being both a Successfully argued that spiritualism is capable of being both a

religious and philosophical belief for the purposes of the regulationsreligious and philosophical belief for the purposes of the regulations Held spiritualism as well as being capable of being a religious belief Held spiritualism as well as being capable of being a religious belief

has sufficient “cogency, seriousness, cohesion and importance” to all has sufficient “cogency, seriousness, cohesion and importance” to all into the category of philosophical beliefinto the category of philosophical belief

Question now whether he was dismissed for the possession of such Question now whether he was dismissed for the possession of such beliefs or for foisting them onto others – tribunal said dismissal for beliefs or for foisting them onto others – tribunal said dismissal for misconduct but some of that related to the unacceptable way he misconduct but some of that related to the unacceptable way he manifested his beliefsmanifested his beliefs

On appeal – if religion part of the misconduct dismissal may be On appeal – if religion part of the misconduct dismissal may be discriminatorydiscriminatory

At full hearing held that his dismissal was not for holding beliefs but At full hearing held that his dismissal was not for holding beliefs but for manifesting them eg coming to training courses and showing dvds for manifesting them eg coming to training courses and showing dvds and posters on spiritualismand posters on spiritualism

Philosophical beliefPhilosophical belief

Hashman v Milton Park (Dorset) Ltd t/a Orchard Park Hashman v Milton Park (Dorset) Ltd t/a Orchard Park - an - an animal activist’s opposition to fox-hunting and hare-coursing was animal activist’s opposition to fox-hunting and hare-coursing was held to amount to a protected philosophical belief within the held to amount to a protected philosophical belief within the meaning of the regulationsmeaning of the regulations

Maistry v BBC – Maistry v BBC – a tribunal has held that a belief in the “higher a tribunal has held that a belief in the “higher purpose” of public service broadcasting, to promote cultural purpose” of public service broadcasting, to promote cultural interchange and social cohesion, is a protected philosophical beliefinterchange and social cohesion, is a protected philosophical belief

Mr Maistry’s belief was held to be more than a sincere commitment 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 to what is the BBC’s mission statement. He referred to various publications regarding the purpose of public service broadcasting publications regarding the purpose of public service broadcasting which provides a “public space” in which everyone is free to enter which provides a “public space” in which everyone is free to enter and within which they can encounter culture, education and debateand within which they can encounter culture, education and debate

Kelly andors v Unison – Kelly andors v Unison – failed in argument re Marxist/Trotskyist failed in argument re Marxist/Trotskyist beliefs but on appeal. Nicholson seemed to accept that political beliefs but on appeal. Nicholson seemed to accept that political beliefs might be coveredbeliefs might be covered

Philosophical beliefPhilosophical beliefIn In Farrell v South Yorkshire Police AuthorityFarrell v South Yorkshire Police Authority the employee the employee was a principal intelligence analyst. He had to produce an was a principal intelligence analyst. He had to produce an annual strategic risk assessment for the police authority’s area. annual strategic risk assessment for the police authority’s area. This was to analyse threats to life and community harm. This was to analyse threats to life and community harm.

His assessment was that the threat of terrorism was internal His assessment was that the threat of terrorism was internal not external. His report described protecting vulnerable people not external. His report described protecting vulnerable people and tackling crime as irrelevant.and tackling crime as irrelevant.

He included headings named “the truth about 7/7” and the He included headings named “the truth about 7/7” and the “truth about 9/11”. He referred to the new world order and “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 outlined his beliefs that 9/11 and 7/7 were false flag operations authorised by the respective national governments to give authorised by the respective national governments to give them material to persuade the people to support foreign wars.them material to persuade the people to support foreign wars.

Dismissed – preliminary hearing re whether the grounds could Dismissed – preliminary hearing re whether the grounds could constitute a philosophical beliefconstitute a philosophical belief

Philosophical belief continuedPhilosophical belief continued

Held that he genuinely held these views. His views were held to Held that he genuinely held these views. His views were held to relate to a weighty and substantial aspect of human life and relate to a weighty and substantial aspect of human life and behaviour. There was nothing incompatible with human dignity in his behaviour. There was nothing incompatible with human dignity in his beliefs although they contain shocking statements about the beliefs although they contain shocking statements about the motivation of certain people.motivation of certain people.

Of more difficulty was the test of whether the beliefs attained a level Of more difficulty was the test of whether the beliefs attained a level of “cogency, seriousness, cohesion and importance”. This involved a of “cogency, seriousness, cohesion and importance”. This involved a level of scrutiny of his beliefs. On examination the evidence was level of scrutiny of his beliefs. On examination the evidence was contradicted by far more evidence and his testimony was incoherent. contradicted by far more evidence and his testimony was incoherent. Inconsistencies in his beliefs became apparentInconsistencies in his beliefs became apparent

He believed that the Twin Towers collapsed due to bomb being He believed that the Twin Towers collapsed due to bomb being detonated inside the building. Taking all this into account the tribunal detonated inside the building. Taking all this into account the tribunal held that there was failure to meet any minimum standard of cogency held that there was failure to meet any minimum standard of cogency or coherence therefore there was no protection under the belief or coherence therefore there was no protection under the belief regulations.regulations.

Poppy wearing?Poppy wearing?

Lisk v Shield Guardian Co LtdLisk v Shield Guardian Co Ltd Claim of discrimination on the grounds of a Claim of discrimination on the grounds of a

philosophical belief for being prevented from philosophical belief for being prevented from wearing a poppy at workwearing a poppy at work

He argued that we should pay our respects to He argued that we should pay our respects to those who have given their lives by wearing a those who have given their lives by wearing a poppy from 2poppy from 2ndnd November to Remembrance day November to Remembrance day

No question of genuineness or seriousness of No question of genuineness or seriousness of the belief – but was it a philosophical beliefthe belief – but was it a philosophical belief

No matter how admirable it was too narrow to No matter how admirable it was too narrow to be a philosophical beliefbe a philosophical belief

Time off to attend MosqueTime off to attend Mosque Cherfi v G4S Security Services Ltd, Cherfi v G4S Security Services Ltd, Mr Cherfi who is a Muslim, Mr Cherfi who is a Muslim, worked as a security guard.worked as a security guard.Had been allowed to leave work to attend Friday prayers at a local Had been allowed to leave work to attend Friday prayers at a local mosque.mosque.Under a new contract his employer was obliged to ensure a certain 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, quota of employees on site at any time. If he was to leave on a Friday, this was not possible.this was not possible.Tried to find a solution, including different shift pattern, he refused, Tried to find a solution, including different shift pattern, he refused, took time off via holidays, sickness etc. Told this was unacceptable.took time off via holidays, sickness etc. Told this was unacceptable.He made a religious discrimination claim.He made a religious discrimination claim.The EAT held that it was objectively justified. Employer had no choice 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 in requiring a certain quota of employees each day and there would be commercial ramifications if they did not comply. He had been offered commercial ramifications if they did not comply. He had been offered an alternative shift pattern, there would be no loss of pay, and there an alternative shift pattern, there would be no loss of pay, and there was a prayer room on site. was a prayer room on site. There was therefore a legitimate aim – ie the commercial consequences There was therefore a legitimate aim – ie the commercial consequences and this was a proportionate means of achieving that aim.and this was a proportionate means of achieving that aim.

Handling foodHandling food Chatewal v Wandsworth Borough Council Chatewal v Wandsworth Borough Council all staff who used the all staff who used the

communal kitchen had to share in cleaning it and the fridge. Mr C 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 objected as this might bring him into contact with meat which was forbidden by his faith. He argued the requirement was indirect race forbidden by his faith. He argued the requirement was indirect race and religious discrimination. He had to demonstrate that he was part and religious discrimination. He had to demonstrate that he was part of a group affected compared to others not of that faith.of a group affected compared to others not of that faith.

The tribunal accepted that he is a member of the Guru Nanak The tribunal accepted that he is a member of the Guru Nanak Nishkam Sewak Jatha (GNNSJ) branch of Amritdhari Sikhs whose Nishkam Sewak Jatha (GNNSJ) branch of Amritdhari Sikhs whose beliefs amount to a religious belief. Sikhism is a race and a religion.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 The requirement to clean out the fridge was a provision, criterion or practice (PCP).practice (PCP).

His claim failed as he could not show that there was a significant 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 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 disadvantaged. He was unable to show that Sikhs as a race were particularly disadvantaged by this PCP.particularly disadvantaged by this PCP.EAT remitted back as tribunal failed to explain its reasoning as to EAT remitted back as tribunal failed to explain its reasoning as to why he was not part of a “group”why he was not part of a “group”

Wearing a daggerWearing a dagger

Dhinsa v Serco Dhinsa v Serco trainee prison officer. He is an Amritdhari Sikh and trainee prison officer. He is an Amritdhari Sikh and wore a kirpan under his clothes.wore a kirpan under his clothes.Prison policy not to allow such a dagger inside the prison. Serco Prison policy not to allow such a dagger inside the prison. Serco discussed alternatives with him such as wearing a replica kirpan or a discussed alternatives with him such as wearing a replica kirpan or a temporary assignment outside of the prison whilst the prison service temporary assignment outside of the prison whilst the prison service conducted a review.conducted a review.Dismissed after refusing to compromise.Dismissed after refusing to compromise.No racial discrimination. Sikhs are accepted as a distinct ethnic No racial discrimination. Sikhs are accepted as a distinct ethnic group; Amritdhari Sikhs share a common history, culture and group; Amritdhari Sikhs share a common history, culture and geographical origin with Sikhs generally and are not a distinct ethnic geographical origin with Sikhs generally and are not a distinct ethnic group in their own right.group in their own right.

There was religious discrimination, indirect because of the PCP on not There was religious discrimination, indirect because of the PCP on not wearing a kirpan which put Amritdhari Sikhs at a particular wearing a kirpan which put Amritdhari Sikhs at a particular disadvantage.disadvantage.

But justified - to ensure the health and safety of prisoners, visitors and But justified - to ensure the health and safety of prisoners, visitors and employees and so was a legitimate aim.employees and so was a legitimate aim.

Given the high incidence of violent assaults in prison it was important Given the high incidence of violent assaults in prison it was important that no weapons were taken into prison. Proportionatethat no weapons were taken into prison. Proportionate

Wearing jewelleryWearing jewellery

Eweida v British Airways – Eweida v British Airways – Court of Appeal Court of Appeal decided that no indirect discrimination on grounds decided that no indirect discrimination on grounds of religion due to refusal to allow jewelleryof religion due to refusal to allow jewellery

PCP (provision, criterion, practice) applied to all PCP (provision, criterion, practice) applied to all but disadvantages a particular groupbut disadvantages a particular group

Rejected that one individual could be the subject Rejected that one individual could be the subject of indirect discriminationof indirect discrimination

Impossible burden on employersImpossible burden on employers Could be parochial or even facetious beliefs Could be parochial or even facetious beliefs Needs identifiable section of a workforceNeeds identifiable section of a workforce

Jehovah’s WitnessJehovah’s Witness

Patrick v IH Sterile Services LtdPatrick v IH Sterile Services Ltd Individual was a Jehovah’s witness. He worked shifts with Individual was a Jehovah’s witness. He worked shifts with

no fixed hours on a rota.no fixed hours on a rota. The employer accommodated his need to leave early on a The employer accommodated his need to leave early on a

Thursday because of his religion.Thursday because of his religion. Initially the employer could accommodate his desire not to Initially the employer could accommodate his desire not to

work Sundays as he used agency staff but this became work Sundays as he used agency staff but this became uneconomicuneconomic

He was dismissed (for a variety of reasons) including not He was dismissed (for a variety of reasons) including not working on a Sunday and claimed religious discriminationworking on a Sunday and claimed religious discrimination

Held he was treated the same as everyone else so there Held he was treated the same as everyone else so there was no direct discrimination. However there was indirect was no direct discrimination. However there was indirect discrimination but it was justified. Given the nature of the discrimination but it was justified. Given the nature of the work Sunday working was necessary and all employees work Sunday working was necessary and all employees had to take their share of it. This was an appropriate had to take their share of it. This was an appropriate means of achieving the aimmeans of achieving the aim

Age discriminationAge discrimination

Enforced compulsory Enforced compulsory retirement – note appeal to retirement – note appeal to Supreme CourtSupreme Court

Seldon v Clarkson, Wright & Jakes EAT - Seldon v Clarkson, Wright & Jakes EAT - EAT had to consider EAT had to consider whether enforcing retirement of a partner in a law firm was age whether enforcing retirement of a partner in a law firm was age discrimination (normal exemption does not apply to partners)discrimination (normal exemption does not apply to partners)

This has to be objectively justified otherwise it will be discriminatoryThis has to be objectively justified otherwise it will be discriminatory ET held that 3 aims satisfied the defence ie ET held that 3 aims satisfied the defence ie

• Retaining associates by ensuring the opportunity for partnership Retaining associates by ensuring the opportunity for partnership after a reasonable periodafter a reasonable period

• Ensuring effective workforce/succession planning by having a Ensuring effective workforce/succession planning by having a realistic long-term expectation as to when vacancies would ariserealistic long-term expectation as to when vacancies would arise

• Fostering a congenial and supportive culture by limiting the need Fostering a congenial and supportive culture by limiting the need to expel partners due to poor performanceto expel partners due to poor performance

The EAT agreed with the first two but held that the third had not been 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 proved ie there was insufficient evidence of the latter ie that at 65 performance would deteriorateperformance would deteriorate

Appeal to CA – lost – social policy in Heyday did not apply to private Appeal to CA – lost – social policy in Heyday did not apply to private employers but to the state itself – ON APPEAL TO SUPREME COURTemployers but to the state itself – ON APPEAL TO SUPREME COURT

ECJ on compulsory ECJ on compulsory retirementretirement

Rosenbladt v Oellerking Gebaudereinigungsges Rosenbladt v Oellerking Gebaudereinigungsges mBh – mBh – ECJ held that a compulsory retirement age of 65 ECJ held that a compulsory retirement age of 65 in a contract of employment – whilst in a contract of employment – whilst prima facieprima facie discriminatory on grounds of age – is justified if the discriminatory on grounds of age – is justified if the following conditions are metfollowing conditions are met• The contract has been collectively negotiated with a The contract has been collectively negotiated with a

unionunion• The employee will receive a pension (state or The employee will receive a pension (state or

occupational) so they have a replacement income occupational) so they have a replacement income andand

• Compulsory retirement has been widespread in the Compulsory retirement has been widespread in the country for a long time without having had any effect country for a long time without having had any effect on the levels of employmenton the levels of employment

ECJ againECJ again

The ECJ in The ECJ in Fuchs v Land HessenFuchs v Land Hessen has held that German has held that German law requiring state prosecutors to retire at 65 on a law requiring state prosecutors to retire at 65 on a generous pension was justified. generous pension was justified.

It appears to hold this on the basis that it would It appears to hold this on the basis that it would encourage the promotion of a younger workforce. encourage the promotion of a younger workforce.

It also appears to suggest that it can be legitimate to It also appears to suggest that it can be legitimate to retire older workers to prevent possible disputes retire older workers to prevent possible disputes concerning employees’ fitness to work beyond a certain concerning employees’ fitness to work beyond a certain age. age.

It is not clear how this will be applied in the UK given It is not clear how this will be applied in the UK given the abolition of a default retirement age.the abolition of a default retirement age.

And againAnd again Prigge v LufthansaPrigge v Lufthansa – whether a collective agreement – whether a collective agreement

providing for a retirement age of 60 for pilots was providing for a retirement age of 60 for pilots was discriminatory and whether could be justifieddiscriminatory and whether could be justified

Held retirement age could be justified on grounds of Held retirement age could be justified on grounds of physical attributes ie to stop human failure causing physical attributes ie to stop human failure causing aeronautical accidents – public security and protection aeronautical accidents – public security and protection to healthto health

However applicable national and international law did However applicable national and international law did this by providing for a retirement age of 65 therefore this by providing for a retirement age of 65 therefore not necessary to limit to 60not necessary to limit to 60

So in general justified retirement age but 65 not So in general justified retirement age but 65 not 6060

Costly retirementCostly retirement Woodcock v Cumbria Primary Care Trust – Woodcock v Cumbria Primary Care Trust – redundancy but redundancy but

given pay in lieu of notice so that dismissal took place before 50given pay in lieu of notice so that dismissal took place before 50thth birthday which would have resulted in expensive pension costsbirthday which would have resulted in expensive pension costs

Cost to trust around £500,000 to £1m. Whether age discrimination Cost to trust around £500,000 to £1m. Whether age discrimination and if so whether legitimate aim and proportionate.and if so whether legitimate aim and proportionate.

Held legitimate aim to effect redundancy before incurring Held legitimate aim to effect redundancy before incurring additional costs – cost can be put in the balance with other additional costs – cost can be put in the balance with other justifications, a discriminatory act to avoid employee receiving a justifications, a discriminatory act to avoid employee receiving a windfall was permissible but ? Cost only aimwindfall was permissible but ? Cost only aim

On appeal the EAT said that although cost alone is rarely a On appeal the EAT said that although cost alone is rarely a justification, an employer can have a legitimate interest in justification, an employer can have a legitimate interest in considering cost alone on the basis that if the cost of avoiding or considering cost alone on the basis that if the cost of avoiding or rectifying a discriminatory impact would be disproportionately high, rectifying a discriminatory impact would be disproportionately high, there would be scope for considering proportionalitythere would be scope for considering proportionality

The appeal therefore failed now to Court of Appeal and other cases The appeal therefore failed now to Court of Appeal and other cases in the pipeline which held there was discrimination eg in the pipeline which held there was discrimination eg Walsh v Walsh v Tewkesbury – tupe transfer interim work would take Tewkesbury – tupe transfer interim work would take employee over 50 with same consequences – age discrimemployee over 50 with same consequences – age discrim

But …..But ….. HM Land Registry v Benson and othersHM Land Registry v Benson and others

- the employers conducted a VR exercise. It had more applicants - the employers conducted a VR exercise. It had more applicants than budget so had to make a selection. It selected on the basis of than budget so had to make a selection. It selected on the basis of who would be cheapest.who would be cheapest.

This allowed the maximum number of posts to go. A number of This allowed the maximum number of posts to go. A number of employees claimed age discrimination.employees claimed age discrimination.

Not surprisingly the older employees cost more due to length of Not surprisingly the older employees cost more due to length of service but also to the higher cost of awarding an immediate service but also to the higher cost of awarding an immediate unreduced pension, making them more expensive to dismiss. unreduced pension, making them more expensive to dismiss.

The tribunal accepted that this was the only reasonable criterion but The tribunal accepted that this was the only reasonable criterion but that it constituted indirect discrimination.that it constituted indirect discrimination.

It held that this was not justified as being a proportionate means of It held that this was not justified as being a proportionate means of achieving a legitimate aim. They could afford the extra £19.7 achieving a legitimate aim. They could afford the extra £19.7 millionmillion

The EAT disagreed. The budget of £12 million was part of HMRL's The EAT disagreed. The budget of £12 million was part of HMRL's legitimate aim so the question was whether the selection criterion legitimate aim so the question was whether the selection criterion was a proportionate means of achieving it. Given the Tribunal found 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 that it was the only practicable criterion it was obliged to hold that it was proportionate.was proportionate.

continuedcontinued

In addition to the age claim there was a claim of indirect In addition to the age claim there was a claim of indirect sex discriminationsex discrimination

Mrs M was excluded from the selection process because Mrs M was excluded from the selection process because she was on a career break and not due to return for she was on a career break and not due to return for over a yearover a year

She was not notified of the VR exercise She was not notified of the VR exercise If she had been she would have returned to work in the If she had been she would have returned to work in the

relevant periodrelevant period This was held to be indirect sex discriminationThis was held to be indirect sex discrimination The exclusion of employees on long term career breaks The exclusion of employees on long term career breaks

had a disproportionate impact on femaleshad a disproportionate impact on females It might have been capable of being justified but failing It might have been capable of being justified but failing

to notify her was unfair and the application of the to notify her was unfair and the application of the criteria therefore not proportionatecriteria therefore not proportionate

Having a degreeHaving a degree Homer v Chief Constable of West Yorkshire PoliceHomer v Chief Constable of West Yorkshire Police Employers changed their requirements for a particular job now Employers changed their requirements for a particular job now

requiring a law degree to qualify for the higher graderequiring a law degree to qualify for the higher grade Individual had worked in this area for some timeIndividual had worked in this area for some time He was nearing retirement and therefore had no intention of He was nearing retirement and therefore had no intention of

working towards such a degreeworking towards such a degree Argued that such a requirement was indirect age discriminationArgued that such a requirement was indirect age discrimination Court of Appeal held that this was not indirect age Court of Appeal held that this was not indirect age

discrimination - the reason he could not acquire the degree discrimination - the reason he could not acquire the degree was not because of his age but because he would have was not because of his age but because he would have insufficient time before retirement to obtain such a qualificationinsufficient time before retirement to obtain such a qualification

The disadvantage came from his imminent retirement not his The disadvantage came from his imminent retirement not his ageage

Left open whether it was age discrimination because someone Left open whether it was age discrimination because someone of 61 would be less likely to have a law degree or find it harder of 61 would be less likely to have a law degree or find it harder to meet the requirementto meet the requirement

Supreme Court has granted permission to appealSupreme Court has granted permission to appeal

Sexual orientationSexual orientation

Does not have to be Does not have to be claimant’s sexual orientationclaimant’s sexual orientation

Discrimination law is clearer now but provides a wider range Discrimination law is clearer now but provides a wider range of rights for individualsof rights for individuals

Lisboa v RealpubsLisboa v Realpubs – London’s first gay pub was experiencing – London’s first gay pub was experiencing problems – run down, drugs, prostitution etcproblems – run down, drugs, prostitution etc

Bought by a company specialising in gastropubs – wanted a Bought by a company specialising in gastropubs – wanted a wider clientele – happy with gay clientele too but not wider clientele – happy with gay clientele too but not exclusivelyexclusively

Asked employee to put out sign saying “this is not a gay pub” 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 and to encourage non-gay clients to sit at window seats so passers by could see that non-gay people were welcomepassers by could see that non-gay people were welcome

Held instructions to Mr Lisboa amounted to unlawful Held instructions to Mr Lisboa amounted to unlawful discrimination on the grounds of sexual orientation. discrimination on the grounds of sexual orientation. Nothing unlawful in wanting a wider clientele as long a Nothing unlawful in wanting a wider clientele as long a it did not treat other customers less favourably on the it did not treat other customers less favourably on the grounds of their sexual orientation. Held that it did. grounds of their sexual orientation. Held that it did. Mr Lisboa’s sexuality irrelevantMr Lisboa’s sexuality irrelevant

Appeal in SandersonAppeal in Sanderson

Thomas Sanderson Blinds Ltd v EnglishThomas Sanderson Blinds Ltd v English Mr English is heterosexual and this is known to his Mr English is heterosexual and this is known to his

colleaguescolleagues He suffered homophobic abuse and the Court of Appeal He suffered homophobic abuse and the Court of Appeal

eventually held that the sexual orientation regulations eventually held that the sexual orientation regulations were broad enough to cover this situation even though were broad enough to cover this situation even though he was not gay nor perceived to be gayhe was not gay nor perceived to be gay

Full hearing on whether he suffered homophobic Full hearing on whether he suffered homophobic harassment – EAT held tribunal entitled to take account harassment – EAT held tribunal entitled to take account of the fact that he had equally made offensive remarks of the fact that he had equally made offensive remarks on a number of occasions, that he had not complained on a number of occasions, that he had not complained for most of his employment and that he was firm friends for most of his employment and that he was firm friends with his alleged tormenterswith his alleged tormenters

Concluded that no violation of his dignity or an adverse Concluded that no violation of his dignity or an adverse working environmentworking environment

UnintentionalUnintentional

Bennett v Bivonas LLP Bennett v Bivonas LLP – Mr Bennett is a – Mr Bennett is a barristerbarrister

One day he came across a note in a client’s file One day he came across a note in a client’s file written some years earlier but making reference written some years earlier but making reference to him as a “to him as a “batty boy”batty boy” (term used in a rap song (term used in a rap song to describe overtly gay men)to describe overtly gay men)

Although he was not intended to see the note it Although he was not intended to see the note it was held to be insulting to him as a gay manwas held to be insulting to him as a gay man

It was irrelevant that the writer did not intend It was irrelevant that the writer did not intend him to see the notehim to see the note

Complaint upheldComplaint upheld

Refusal of a double bedRefusal of a double bed

Bull and Bull v Hall & PreddyBull and Bull v Hall & Preddy – two men who had – two men who had entered into a civil partnership booked a double room at entered into a civil partnership booked a double room at the Bull’s hotelthe Bull’s hotel

When they arrived they were refused access to a double When they arrived they were refused access to a double roomroom

The Bulls held strong Christian beliefs and would not The Bulls held strong Christian beliefs and would not allow anyone not married to share a double bed although allow anyone not married to share a double bed although a twin room was ok – none was availablea twin room was ok – none was available

Held discrimination on the grounds of sexual orientation. Held discrimination on the grounds of sexual orientation. A civil partnership was akin to marriage under UK law. A civil partnership was akin to marriage under UK law. The only reason therefore for refusing was sexuality.The only reason therefore for refusing was sexuality.

No comment on whether refusal to a heterosexual No comment on whether refusal to a heterosexual couple not married was ok (no law on marital couple not married was ok (no law on marital discrimination)discrimination)

Pregnancy discriminationPregnancy discrimination

Pregnancy and Pregnancy and redundancyredundancy Highly controversial area ie whether a pregnant woman (or on Highly controversial area ie whether a pregnant woman (or on

maternity leave) can be made redundant and if so what her maternity leave) can be made redundant and if so what her rights are to suitable alternative employmentrights are to suitable alternative employment

Simpson v Endsleigh Insurances Services Ltd Simpson v Endsleigh Insurances Services Ltd - Reg. 10 of - Reg. 10 of Maternity and Parental Leave Regulations 1999 – if it is not Maternity and Parental Leave Regulations 1999 – if it is not practicable by reason of redundancy for the employer to practicable by reason of redundancy for the employer to continue to employ a woman on maternity leave, the employee continue to employ a woman on maternity leave, the employee is entitled to be offered (not just invited to apply for) SAE. This is entitled to be offered (not just invited to apply for) SAE. This gives women on maternity leave priority over other employees gives women on maternity leave priority over other employees even if they are better qualifiedeven if they are better qualified

For the right to apply the work must be suitable AND the terms For the right to apply the work must be suitable AND the terms and conditions including capacity and place must not be and conditions including capacity and place must not be substantially less favourablesubstantially less favourable

In this case redundancy, employer argued new role was In this case redundancy, employer argued new role was suitable BUT terms and conditions were less favourable suitable BUT terms and conditions were less favourable therefore no need to offer to her. ET and EAT agreed.therefore no need to offer to her. ET and EAT agreed.

SO no obligation unless two conditions apply BUT if they do SO no obligation unless two conditions apply BUT if they do apply she has an absolute first right to the jobapply she has an absolute first right to the job

Redundancy - Redundancy - discriminationdiscrimination

Eversheds Legal Services Ltd v De Belin Eversheds Legal Services Ltd v De Belin Mr De Belin and a female colleague on maternity leave were assessed 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 when one had to be made redundant. He scored half a point less than she did. did.

They were scored against five criteria one of which involved a They were scored against five criteria one of which involved a measurement of the time which elapsed between completing a piece of measurement of the time which elapsed between completing a piece of work and receiving fees for it – known as lock-up.work and receiving fees for it – known as lock-up.

As the female had been on maternity leave during the assessment period 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 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 review. Had this not been the case she would have scored lower overall than he did.than he did.

Had they used the time before her maternity leave she would also have Had they used the time before her maternity leave she would also have received a lower overall scorereceived a lower overall score

He claimed sex discrimination and unfair dismissalHe claimed sex discrimination and unfair dismissal Held the obligation to protect pregnant/maternity leave employees cannot Held the obligation to protect pregnant/maternity leave employees cannot

extend to favouring such employees beyond what is reasonably necessary extend to favouring such employees beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their conditionto compensate them for the disadvantages occasioned by their condition

Held £123,000 damages for sex discriminationHeld £123,000 damages for sex discrimination

““Pregnancy” gossipPregnancy” gossip

In In Nixon v Ross Coates SolicitorsNixon v Ross Coates Solicitors – Ms Nixon was – Ms Nixon was seen at a Christmas party kissing another employee and seen at a Christmas party kissing another employee and spending the night in his roomspending the night in his room

She also had a relationship with another employeeShe also had a relationship with another employee She told her employer she was pregnantShe told her employer she was pregnant Staff gossiped about the paternity of her babyStaff gossiped about the paternity of her baby She raised a grievance and asked to be moved She raised a grievance and asked to be moved The firm refused and also refused to pay for her The firm refused and also refused to pay for her

absence during this periodabsence during this period The EAT upheld her pregnancy discrimination claimThe EAT upheld her pregnancy discrimination claim The gossip was pregnancy-related, it was distressing, it The gossip was pregnancy-related, it was distressing, it

amounted to gender-harassmentamounted to gender-harassment No reduction due to contribution – the contribution had No reduction due to contribution – the contribution had

to have caused the dismissal – here the contribution to have caused the dismissal – here the contribution was a view about her personal lifewas a view about her personal life

Associative pregnancy Associative pregnancy discriminationdiscrimination

New Equality Act does not extend to pregnancy discrimination New Equality Act does not extend to pregnancy discrimination by associationby association

Under the old law, in Under the old law, in Kulikaoskas v Macduff Shellfish and Kulikaoskas v Macduff Shellfish and anotheranother Mr K and his partner were dismissed from Macduff Mr K and his partner were dismissed from Macduff

Mr K was dismissed because of his poor performance but Mr K was dismissed because of his poor performance but considered it was for his partner’s pregnancyconsidered it was for his partner’s pregnancy

He claimed sex discrimination by associationHe claimed sex discrimination by association He argued that although the law did not mention associative He argued that although the law did not mention associative

discrimination, that EU required the principle to be interpreted discrimination, that EU required the principle to be interpreted or extendedor extended

The Court held that the law does not prohibit such The Court held that the law does not prohibit such discrimination and no reference to the ECJ is necessary discrimination and no reference to the ECJ is necessary

This is to be distinguished from Coleman on disability which This is to be distinguished from Coleman on disability which was differentwas different

On appeal to the Court of Session – different views as to On appeal to the Court of Session – different views as to whether the new Equality act covers associative pregnancy – whether the new Equality act covers associative pregnancy – some think it doessome think it does

Marital discriminationMarital discrimination

The Equality Act includes marriage and civil partnership The Equality Act includes marriage and civil partnership discrimination but no mention is made of marital statusdiscrimination but no mention is made of marital status

Dunn v Institute of Cemetry and Crematorium Dunn v Institute of Cemetry and Crematorium ManagementManagement

Mrs Dunn was a technical services manager who Mrs Dunn was a technical services manager who resigned and claimed constructive dismissal and sex resigned and claimed constructive dismissal and sex discriminationdiscrimination

She argued that she was less favourably treated because She argued that she was less favourably treated because she was married to Mr Dunn who was in dispute with the she was married to Mr Dunn who was in dispute with the employersemployers

The EAT held that the Equality Act could be construed as The EAT held that the Equality Act could be construed as protecting the claimant by reason of her status, not only protecting the claimant by reason of her status, not only of being married but of being married to her husbandof being married but of being married to her husband

Caselaw TUPE and collective Caselaw TUPE and collective labour lawlabour law

TUPE and collective TUPE and collective agreementsagreements

In In WhentWhent the court held that the new employer was the court held that the new employer was obliged to honour any subsequently agreed changes eg obliged to honour any subsequently agreed changes eg pay increases. However the ECJ in pay increases. However the ECJ in WerhofWerhof appeared to appeared to limit this. It held that collective agreements are fixed in limit this. It held that collective agreements are fixed in time and the new employer is only obliged to honour time and the new employer is only obliged to honour these but not any subsequent agreements.these but not any subsequent agreements.In the present case In the present case Alemo-Herron and others v Alemo-Herron and others v Parkwood Leisure LtdParkwood Leisure Ltd the court held that UK law can the court held that UK law can give better rights than the directive so that the Whent give better rights than the directive so that the Whent approach would be followed. A transferee was therefore approach would be followed. A transferee was therefore bound by pay increases negotiated after the transfer by bound by pay increases negotiated after the transfer by the transferor and the union under a collective the transferor and the union under a collective agreement which was incorporated into individual agreement which was incorporated into individual contracts of employment. This was similar to Whent tie contracts of employment. This was similar to Whent tie the collective agreement covered terms negotiated by the collective agreement covered terms negotiated by the National Joint Council for Local Government Services the National Joint Council for Local Government Services (NJC). (NJC).

contdcontd

Case heard by Court of Appeal, who uphold ECJ view Case heard by Court of Appeal, who uphold ECJ view that collective agreement “static” not “dynamic” as that collective agreement “static” not “dynamic” as held by EAT. Upholds rights at time of transfer but held by EAT. Upholds rights at time of transfer but cannot bind new employer to give future rights where cannot bind new employer to give future rights where new employer not party to agreementnew employer not party to agreement

Heard by Supreme Court – Directive holds CA continues Heard by Supreme Court – Directive holds CA continues until the date the agreement terminates or expires or until the date the agreement terminates or expires or another CA comes into force. Member states may limit another CA comes into force. Member states may limit the period as long as at least one year. No such period the period as long as at least one year. No such period in UK law. EAT therefore upheld the more beneficial in UK law. EAT therefore upheld the more beneficial view of UK law but CA disagreed and said “static” not view of UK law but CA disagreed and said “static” not dynamic ie EAT followed Whent, CA followed Werhof.dynamic ie EAT followed Whent, CA followed Werhof.

Supreme Court have referred the case to the ECJ for a Supreme Court have referred the case to the ECJ for a decision as it is not clear which path to followdecision as it is not clear which path to follow

Service provisionService provision

CLECE SA v Maria Socorro Martin Valor and CLECE SA v Maria Socorro Martin Valor and Ayuntamiento de Cobisa (C-463.09) ECJAyuntamiento de Cobisa (C-463.09) ECJ

Local authority contracted out cleaning of schools and Local authority contracted out cleaning of schools and premises then took the work back in housepremises then took the work back in house

It did not take any of the contractor’s staff nor any assetsIt did not take any of the contractor’s staff nor any assets It hired new staffIt hired new staff Whether this was a transfer of undertaking under the Whether this was a transfer of undertaking under the

Acquired Rights directiveAcquired Rights directive Held that as no assets or staff had transferred the Held that as no assets or staff had transferred the

directive did not applydirective did not apply Situation would be different in the UK as under TUPE Situation would be different in the UK as under TUPE

2006 there is a specific provision for the change of a 2006 there is a specific provision for the change of a service provider including bringing back in houseservice provider including bringing back in house

Transfer within public sectorTransfer within public sector

Scattolon v Ministero dell’Instruzione, Scattolon v Ministero dell’Instruzione, dell’Universita e della Ricercadell’Universita e della Ricerca

Services such as cleaning provided either by the State or Services such as cleaning provided either by the State or the local authority – decided to transfer them all into the local authority – decided to transfer them all into state controlstate control

Not covered by exclusion – not a reorganisation of public Not covered by exclusion – not a reorganisation of public administrative authorities or a transfer of administrative administrative authorities or a transfer of administrative functions between public administrative authoritiesfunctions between public administrative authorities

Not the intention of the directive – such exclusion only Not the intention of the directive – such exclusion only applies to the exercise of public powersapplies to the exercise of public powers

Public sector workers no less covered by the rules ie Public sector workers no less covered by the rules ie structured group of employees engaged in an economic structured group of employees engaged in an economic activityactivity

ContinuedContinued

Of more interest is the view that the directive did not Of more interest is the view that the directive did not preclude the transferred employees being immediately preclude the transferred employees being immediately covered by the collective agreement in force within the covered by the collective agreement in force within the transferee’s organisationtransferee’s organisation

Provided that terms were no less favourable than beforeProvided that terms were no less favourable than before Those transferred were put on the level of remuneration Those transferred were put on the level of remuneration

in the new collective agreementin the new collective agreement A notional length of service was used rather than actual A notional length of service was used rather than actual

length of servicelength of service Held actual length of service was not a right which Held actual length of service was not a right which

transferred however using notional might disadvantage transferred however using notional might disadvantage those transferring who should be no worse offthose transferring who should be no worse off

This did not mean using actual length of service which This did not mean using actual length of service which might have made them better of – each case had to be might have made them better of – each case had to be consideredconsidered

Service changedService changedIn In Nottinghamshire Healthcare NHS Trust v Hamshaw and Nottinghamshire Healthcare NHS Trust v Hamshaw and othersothers the EAT has held that there cannot be a transfer or a service the EAT has held that there cannot be a transfer or a service provision change where the services provided to a client are not provision change where the services provided to a client are not fundamentally or essentially the same as they were before the fundamentally or essentially the same as they were before the change of provider.change of provider.Care home closed and residents re-housed into own homes. Care Care home closed and residents re-housed into own homes. Care transferred to 2 independent providers. Trust said tupe, providers transferred to 2 independent providers. Trust said tupe, providers said not. said not. EAT held that there was no TUPE transfer. There was neither the EAT held that there was no TUPE transfer. There was neither the transfer of an economic entity retaining its identity nor a service transfer of an economic entity retaining its identity nor a service provision change. provision change. Under the new arrangements the former residents would be living in Under the new arrangements the former residents would be living in their own homes so the care provided was different – they would be their own homes so the care provided was different – they would be helped to undertake domestic tasks rather than have it provided helped to undertake domestic tasks rather than have it provided within a home. within a home. The economic entity had therefore lost its identity. It was not the The economic entity had therefore lost its identity. It was not the same service – it was fundamentally or essentially different.same service – it was fundamentally or essentially different.

Service provision and supply Service provision and supply of goodsof goods

TUPE 2006 applies to the change of a service TUPE 2006 applies to the change of a service provision but it excludes the supply of goods provision but it excludes the supply of goods

Sometimes the lines are hard to distinguishSometimes the lines are hard to distinguish In In Pannu v Geo W King LtdPannu v Geo W King Ltd workers on an workers on an

assembly line made goods for a client with assembly line made goods for a client with components supplied by the client and these components supplied by the client and these were tested for safetywere tested for safety

Held to be a contract “Held to be a contract “wholly or mainly”wholly or mainly” for for the supply of goods and not coveredthe supply of goods and not covered

Service provision changeService provision change Hunter v McCarrick Hunter v McCarrick – claimant employed by – claimant employed by

provider of property services but the latter was wound provider of property services but the latter was wound upup

Receivers took control of the properties and appointed Receivers took control of the properties and appointed a new provider a new provider

Held regulation did not apply when not only was there Held regulation did not apply when not only was there a change in contractors but also a change in the clienta change in contractors but also a change in the client

Reg 3(1)(b)(ii) provides that a service provision Reg 3(1)(b)(ii) provides that a service provision change arises where activities cease to be carried out change arises where activities cease to be carried out on a client’s behalf and are instead carried out by a on a client’s behalf and are instead carried out by a subsequent contractor on subsequent contractor on the client’s behalfthe client’s behalf..

No reason to give it a wider meaningNo reason to give it a wider meaning

Variation of contractVariation of contract

Smith v Trustees of Brooklands CollegeSmith v Trustees of Brooklands College Teaching assistants paid as full-time but working part-Teaching assistants paid as full-time but working part-

timetime College transferred in 2007College transferred in 2007 Transferee realised employees were being overpaid Transferee realised employees were being overpaid

and sought to bring them in lineand sought to bring them in line Employees agreed but claimed variation was Employees agreed but claimed variation was

ineffective under TUPE ie void if the sole or principal ineffective under TUPE ie void if the sole or principal reason is the transferreason is the transfer

Held – reason for change not TUPE but wrong Held – reason for change not TUPE but wrong payments and a great deal of time had gone past since payments and a great deal of time had gone past since the transferthe transfer

Dismissal of employees when Dismissal of employees when company in administrationcompany in administration

An unusual decision on the facts – An unusual decision on the facts – Spaceright Europe Spaceright Europe Limited v BaillavoineLimited v Baillavoine – company entered into – company entered into administration. All staff dismissed – no buyer.administration. All staff dismissed – no buyer.

Eventually sold the business as a going concern.Eventually sold the business as a going concern. Mr B argued that his dismissal was automatically unfair as Mr B argued that his dismissal was automatically unfair as

being for a reason connected with the transfer.being for a reason connected with the transfer. Spaceright argued that it was not 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 as at the time of dismissal there was only the possibility of the transfer (see transfer (see Spence and LitsterSpence and Litster earlier cases on the same earlier cases on the same theme – Spence dismissal fair as at the time of the transfer no theme – Spence dismissal fair as at the time of the transfer no employees and at the time of dismissal no transfer, Litster employees and at the time of dismissal no transfer, Litster employees dismissed to make way for transfer so connected employees dismissed to make way for transfer so connected to and would have been employed had they not already been to and would have been employed had they not already been unfairly dismissed)unfairly dismissed)

Held – even though no prospective transferee had been Held – even though no prospective transferee had been identified at the time of the transfer, it was enough that identified at the time of the transfer, it was enough that dismissal had taken place in order to achieve a transfer at dismissal had taken place in order to achieve a transfer at some future date - ???????some future date - ???????

RedundancyRedundancy

Appeal to ECJ at lastAppeal to ECJ at last

In In USA v NolanUSA v Nolan the Court of Appeal has referred a the Court of Appeal has referred a point of general importance to the ECJpoint of general importance to the ECJ

It asks when exactly does the employer’s obligation to It asks when exactly does the employer’s obligation to consult arise in collective redundanciesconsult arise in collective redundancies

Does it arise before or after a strategic or commercial Does it arise before or after a strategic or commercial decision that will lead to redundancies?decision that will lead to redundancies?

In Nolan a US army based closed and a court held that In Nolan a US army based closed and a court held that there was a failure to collectively consultthere was a failure to collectively consult

Despite much caselaw, it is not clear at what point the Despite much caselaw, it is not clear at what point the obligation actually arises – eg UK law talks of “proposing obligation actually arises – eg UK law talks of “proposing to make redundant”, EU law talks of “contemplating”to make redundant”, EU law talks of “contemplating”

The CA asks whether consultation arises when the The CA asks whether consultation arises when the employer is prosing but has not yet made a strategic employer is prosing but has not yet made a strategic decision or only when the decision is actually madedecision or only when the decision is actually made

WoolworthsWoolworths

USDAW v WW Realisation 1 Limited (in USDAW v WW Realisation 1 Limited (in liquidation) and othersliquidation) and others – Woolworths was liable for – Woolworths was liable for failure to consult adequately when it closed its stores. failure to consult adequately when it closed its stores. There were no special circumstances such as financial There were no special circumstances such as financial position nor going into administrationposition nor going into administration

The tribunal regarded each store as a separate The tribunal regarded each store as a separate establishment thus employees in stores with fewer than establishment thus employees in stores with fewer than 20 people had no right to a protective award20 people had no right to a protective award

Questions re definition of establishment/see Red tape Questions re definition of establishment/see Red tape consultation/EU lawconsultation/EU law

Protective award reduced to 60 days as some Protective award reduced to 60 days as some consultationconsultation

Applying for alternative Applying for alternative employmentemployment

Morgan v The Welsh Rugby Union Morgan v The Welsh Rugby Union highlights the difference highlights the difference between selection for redundancy and selection for alternative between selection for redundancy and selection for alternative employment the latter being the test for normal recruitmentemployment the latter being the test for normal recruitment

Reorganisation and merging of jobs to create new job, two Reorganisation and merging of jobs to create new job, two individuals interviewedindividuals interviewed

Slight differences in manner of interview (presentation and Slight differences in manner of interview (presentation and questions) and link to job descriptionquestions) and link to job description

Mr Morgan not given job and made redundantMr Morgan not given job and made redundant Claimed system was not objective and did not follow the Claimed system was not objective and did not follow the

guidelines in Williams v Compare Maxam re fair selection guidelines in Williams v Compare Maxam re fair selection (capable of being objectively assessed)(capable of being objectively assessed)

Court held this was not about selecting from a pool Court held this was not about selecting from a pool where management could assess past performance, where management could assess past performance, but assessment for the future ie forward-looking so a but assessment for the future ie forward-looking so a different testdifferent test

SAE – to whom?SAE – to whom?

Readman v Devon Primary Care TrustReadman v Devon Primary Care Trust – Mrs R was a – Mrs R was a nurse who was to be made redundantnurse who was to be made redundant

She was offered three alternative positions, one as a She was offered three alternative positions, one as a Hospital Matron was regarded as SAE by the tribunalHospital Matron was regarded as SAE by the tribunal

She refused the work arguing that she wanted to stay in She refused the work arguing that she wanted to stay in community nursing and was denied a redundancy paymentcommunity nursing and was denied a redundancy payment

Held the test is whether the work is suitable and whether Held the test is whether the work is suitable and whether refusal is reasonable, the latter is subjective ie whether the refusal is reasonable, the latter is subjective ie whether the employee in question acted reasonably in refusing the offeremployee in question acted reasonably in refusing the offer

Wanting to stay in community nursing was a sound Wanting to stay in community nursing was a sound and justifiable reason for turning down the offer so and justifiable reason for turning down the offer so she was entitled to a redundancy paymentshe was entitled to a redundancy payment

Week’s pay for Week’s pay for redundancyredundancy

Gilbert & others v BarnsleyGilbert & others v Barnsley three employees worked three employees worked term time contracts for 44 weeks but were paid over 52 term time contracts for 44 weeks but were paid over 52 weeks (including holidays).weeks (including holidays).

Made redundant. Redundancy pay based on 1/52 of Made redundant. Redundancy pay based on 1/52 of annual salary.annual salary.

Argued that should be 1/44 based on weeks actually Argued that should be 1/44 based on weeks actually worked. This would have led to higher pay.worked. This would have led to higher pay.

Must be calculated in accordance with s.221-229 of the Must be calculated in accordance with s.221-229 of the Employment Rights Act 1996Employment Rights Act 1996

Different provisions apply depending on whether or not Different provisions apply depending on whether or not the employee has normal working hours.the employee has normal working hours.

Accepted that there were normal working hoursAccepted that there were normal working hours

Week’s payWeek’s pay Employer argued that pay did not vary with the work done as Employer argued that pay did not vary with the work done as

they were paid the same throughout the year whether working they were paid the same throughout the year whether working or not or whether on holiday or notor not or whether on holiday or not

A week’s pay should therefore be what they were paid each A week’s pay should therefore be what they were paid each week of the year ie 1/52week of the year ie 1/52

Employees argued that their normal working hours did vary as Employees argued that their normal working hours did vary as there were weeks when they did not workthere were weeks when they did not work

Remuneration apportionable to any week variedRemuneration apportionable to any week varied Even though they were paid throughout the year it could only Even though they were paid throughout the year it could only

be apportionated to the weeks actually workedbe apportionated to the weeks actually worked In such cases it is necessary to average pay in the 12 weeks In such cases it is necessary to average pay in the 12 weeks

prior to the calculation date ignoring weeks when there is no prior to the calculation date ignoring weeks when there is no paypay

This would mean 1/44This would mean 1/44 EAT agreed but thought that the legislation had not been EAT agreed but thought that the legislation had not been

drafted to cover such situationsdrafted to cover such situations Paying over 12 months was for administrative convenience so Paying over 12 months was for administrative convenience so

pay did vary with work donepay did vary with work done

Fixed term contracts and Fixed term contracts and redundancyredundancy

The ERA provides that the ending of a fixed term contract is a dismissal. 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 It can therefore be a dismissal on the grounds of redundancy. Prior to the Fixed term regulations employers could ask employees to waive the Fixed term regulations employers could ask employees to waive unfair dismissal rights where the contract was for one year or more and unfair dismissal rights where the contract was for one year or more and redundancy rights where for two years or more.redundancy rights where for two years or more.

These provisions were repealed when the Fixed term regulations came These provisions were repealed when the Fixed term regulations came into force.into force.

If a dismissal can be a redundancy this can have odd implications for If a dismissal can be a redundancy this can have odd implications for redundancy consultation and selection.redundancy consultation and selection.

This matter was the subject of an appeal in This matter was the subject of an appeal in University of Stirling v University of Stirling v University and College Union University and College Union

The EAT has held that employees are not dismissed as redundant and are The EAT has held that employees are not dismissed as redundant and are therefore not subject to collective consultationtherefore not subject to collective consultation

In the education sector employees are often engaged on research work In the education sector employees are often engaged on research work paid for external organisations and are dismissed when funding ends - paid for external organisations and are dismissed when funding ends - dismissal is 'for a reason related to the individual concerned' not a dismissal is 'for a reason related to the individual concerned' not a redundancy dismissal – the employee always knew it was a fixed term redundancy dismissal – the employee always knew it was a fixed term contract coming to an end contract coming to an end

Working time holidaysWorking time holidays

Stringer strictly appliedStringer strictly applied

NHS Leeds v LarnerNHS Leeds v Larner, the employee was absent for the , the employee was absent for the whole of a holiday year and had not taken or arranged to whole of a holiday year and had not taken or arranged to take any holidays. take any holidays. She was dismissed on the grounds of capability but was She was dismissed on the grounds of capability but was not given any payment for untaken holidays. not given any payment for untaken holidays. The employer argued that her right to holidays expired at The employer argued that her right to holidays expired at the end of the holiday year ie “use them or lose them”. the end of the holiday year ie “use them or lose them”. The EAT disagreed. She was unable to take her holidays The EAT disagreed. She was unable to take her holidays due to sickness and was entitled to take them at a later due to sickness and was entitled to take them at a later date. As she was dismissed this meant in monetary form. date. As she was dismissed this meant in monetary form. There was no requirement on an employee to request There was no requirement on an employee to request holidays. It would be different had the employee been at holidays. It would be different had the employee been at work and had failed to request or use the holidays.work and had failed to request or use the holidays.See Fraser below. The Court of Appeal will consider the See Fraser below. The Court of Appeal will consider the conflict between Larner and Fraserconflict between Larner and Fraser

Similar argumentSimilar argument Adams and another v Harwich International Port Adams and another v Harwich International Port

LtdLtd Two employees had prolonged periods of sickness Two employees had prolonged periods of sickness

absence and had not asked for nor taken any holidays absence and had not asked for nor taken any holidays during their sicknessduring their sickness

Later asked to take accrued leave but employer refusedLater asked to take accrued leave but employer refused Held both were entitled to carry over holidays to the Held both were entitled to carry over holidays to the

immediately following yearimmediately following year However the tribunal held that this right should not be However the tribunal held that this right should not be

open ended and capable of being carried over from year open ended and capable of being carried over from year to year indefinitely otherwise it did not meet the to year indefinitely otherwise it did not meet the objectives of the directiveobjectives of the directive

But ……But ……

Fraser v St George’s NHS TrustFraser v St George’s NHS Trust On sick leave for four years until dismissalOn sick leave for four years until dismissal Last two years received no payLast two years received no pay Sought four weeks holiday pay for each of the two years Sought four weeks holiday pay for each of the two years

(according to Stringer and the above cases this is correct)(according to Stringer and the above cases this is correct) EAT held that the claim should failEAT held that the claim should fail An employee is only entitled to holiday pay if she has An employee is only entitled to holiday pay if she has

actually taken the leave to which the pay relates and has actually taken the leave to which the pay relates and has done so by giving notice as required by the regulationsdone so by giving notice as required by the regulations

Believed that this was not inconsistent with Believed that this was not inconsistent with PeredaPereda

ECJ – time limit to carry overECJ – time limit to carry over

KHS AG v Winfried SchulteKHS AG v Winfried Schulte – under German – under German law there is a time limit to the carry over of law there is a time limit to the carry over of untaken holidays due to sickness of 15 months untaken holidays due to sickness of 15 months after the holiday year in which it was dueafter the holiday year in which it was due

Referral to the ECJ to ask whether this is Referral to the ECJ to ask whether this is consistent with the directiveconsistent with the directive

The ECJ stated that this did not breach the The ECJ stated that this did not breach the directive but appears to accept that a six directive but appears to accept that a six month period might be insufficientmonth period might be insufficient

They acknowledge that it should not be They acknowledge that it should not be indefinite as this is not compatible with the indefinite as this is not compatible with the directivedirective

Holidays taken from work Holidays taken from work time?time?

Russell v Transocean InternationalRussell v Transocean International is the long running is the long running oil workers case now heard by the Supreme Courtoil workers case now heard by the Supreme Court

Oil rig workers worked two weeks offshore and had two Oil rig workers worked two weeks offshore and had two weeks rest onshoreweeks rest onshore

They succeeded in an earlier case arguing entitlement to They succeeded in an earlier case arguing entitlement to holidaysholidays

The question now was whether such holidays had to be The question now was whether such holidays had to be used from time offshore or could be from time onshore used from time offshore or could be from time onshore the employees arguing that it should be from time when the employees arguing that it should be from time when they were otherwise at workthey were otherwise at work

The Supreme Court disagreed holding that it could The Supreme Court disagreed holding that it could be taken from time onshore. They had long periods be taken from time onshore. They had long periods of rest away from work. There is no qualitative of rest away from work. There is no qualitative requirement to test whether a given period can be requirement to test whether a given period can be counted as rest. A rest period is simply anything counted as rest. A rest period is simply anything not working time.not working time.

Pilots holiday payPilots holiday pay

Pilots not covered by traditional working time regulations Pilots not covered by traditional working time regulations but by but by Civil Aviation (Working Time) Regulations 2004Civil Aviation (Working Time) Regulations 2004

Unlike working time regulations, there is no mention of how Unlike working time regulations, there is no mention of how to calculate holiday payto calculate holiday pay

Williams & others v British AirwaysWilliams & others v British Airways – airline argued – airline argued basic pay only, pilots argued for a number of allowances to basic pay only, pilots argued for a number of allowances to be includedbe included

ECJ – if only basic, pilots may not take holidays – health and ECJ – if only basic, pilots may not take holidays – health and safety – as they would lose moneysafety – as they would lose money

Held general allowances must be included where they relate Held general allowances must be included where they relate to any inconvenient aspect intrinsic to the performance of to any inconvenient aspect intrinsic to the performance of the job eg flying allowance but not occasional payment eg the job eg flying allowance but not occasional payment eg allowance for time away from a base when not workingallowance for time away from a base when not working

Pay during leave should be comparable to pay during Pay during leave should be comparable to pay during periods of workperiods of work

???? What is in and what is out????? What is in and what is out?

More to comeMore to come

Dominguez v Centre informatique due Dominguez v Centre informatique due Centre Ouest Altantique, Prefect of the Centre Ouest Altantique, Prefect of the Centre Region – Centre Region – AG - right to paid annual AG - right to paid annual leave cannot be subject to a condition that leave cannot be subject to a condition that worker worked a minimum period during worker worked a minimum period during reference period.reference period.

National laws can apply a different period National laws can apply a different period provided it is at least four weeks.provided it is at least four weeks.

Just because national laws are different does Just because national laws are different does not mean they are disapplied.not mean they are disapplied.

Will be relevant to whether EU decisions apply Will be relevant to whether EU decisions apply to 4 weeks or 5.6 weeksto 4 weeks or 5.6 weeks

And moreAnd more

Neidel v Stadt Frankfurt am MainNeidel v Stadt Frankfurt am Main – asks – asks ECJ to advise whether the directive covers ECJ to advise whether the directive covers entitlements to annual leave where national entitlements to annual leave where national law provides for more than four weeks and law provides for more than four weeks and whether payment in lieu on termination applies whether payment in lieu on termination applies only to the four weeks or any longer periodonly to the four weeks or any longer period

Alvarez v Consejeria de la Presidencia, Alvarez v Consejeria de la Presidencia, Justicia e Igualdad del Princapado de Justicia e Igualdad del Princapado de Asturias - Asturias - whether temporary incapacity whether temporary incapacity arising during annual leave only entitles the arising during annual leave only entitles the worker to leave at a later date in the incapacity worker to leave at a later date in the incapacity involves hospitalisationinvolves hospitalisation

DetrimentDetriment

Arriva London South Ltd v Nicolaou Arriva London South Ltd v Nicolaou - - employee a bus driver refused to opt out of the employee a bus driver refused to opt out of the 48 hour working week.48 hour working week.

As a result his employer did not give him any As a result his employer did not give him any overtime.overtime.

He claimed this was a detrimentHe claimed this was a detriment The court held that provided the decision by the The court held that provided the decision by the

employer was genuine there was no detrimentemployer was genuine there was no detriment The decision not to offer overtime was due to a The decision not to offer overtime was due to a

desire to enforce a reasonable and necessary desire to enforce a reasonable and necessary policypolicy

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agency b

bonuses b

employment law b

b final regulations

practice b pay

b definition of worker

working patterns b

b annual leave