EMPLOYMENT LAW UPDATE

Darren NewmanMarch 2010

darren@darrennewman.co.uk

Agenda

• Agency workers

• Contracts of Employment

• Annual Leave

• Unfair Dismissal

• TUPE

• Discrimination

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Agency Work Regulations

• Regulations now laid before Parliament

• Come into force October 2011

• Right to equality in terms after 12 weeks of assignment

• No new rights to unfair dismissal or redundancy

• It’s all very difficult

Contracts of employment

• Contract entered into in breach of employer’s powers was void – but unfair dismissal claim could still proceed: Shrewsbury and Telford Hospital NHS Trust v Lairikyengbam

• Employer ‘affirmed contract’ by failing to take steps in relation to misconduct without reserving their position: Cook v MSHK Ltd

• No misrepresentation when employee failed to disclose history of mental health issues: Cheltenham Borough Council v Laird

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Varying terms and conditions

• Seeking to change terms by agreement

• Collective agreements

• Variation clauses:• Bateman & ors v Asda Stores Ltd – no limitation on an all-

encompassing variation clause

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Annual Leave

• Employee can be bound by contractual notice requirements for annual leave – even if that means the leave is lost: Lyons v Mitie Security Ltd

• Payment in lieu of leave can be extended to holiday not taken in previous years if that is what the contract provides: Beijing Ton Ren Tang (UK) Ltd v Wang

• Aviation Regulations do not provide for allowances to be included in holiday pay: British Airways plc v Williams and ors

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Holidays and sickness: HM Revenue and Customs v Stringer and ors

• House of Lords dealing with ECJ decision

• Did not look at interpreting what ECJ had said in UK context – no longer a dispute

• Instead looked only at whether holiday pay can be claimed as an unlawful deduction – held it can

• Leaves open question of how to interpret WTR in dealing with long-term absence

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Pereda v Madrid Movilidad SA (ECJ)

• a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave. The scheduling of that new period of annual leave, corresponding to the duration of the overlap between the period of annual leave originally scheduled and the sick leave, is subject to the rules and procedures of national law which are applicable to the scheduling of workers’ leave, taking into account the various interests involved, including overriding reasons relating to the interests of the undertaking.

• If such interests preclude acceptance of the worker’s request for a new period of annual leave, the employer is obliged to grant the worker a different period of annual leave proposed by him which is compatible with those interests, without excluding in advance the possibility that that period may fall outside the reference period for the annual leave in question.

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Industrial action dismissals: Sehmi & ors v Gate Gourmet London Ltd

• No right to claim UD if dismissed while taking part in unofficial industrial action

• Employees can bring claim if participation had ended by time of dismissal

• Fair employer is entitled to ‘shoot first and ask questions later’ in dismissing suspected participants

• Dismissal of those absent without explanation was fair despite no investigation or hearing

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Reinstatement: Central and North West London NHS Foundation Trust v Abimbola

• Employee dismissed following allegations of assault on patient

• Tribunal finds dismissal unfair because no reasonable grounds to believe employee was guilty

• Orders reinstatement

• On appeal EAT says reinstatement was inappropriate because of loss of trust and confidence in employee and because of other misconduct which led to final written warning

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Misconduct – London Ambulance Service NHS Trust v Small

• Employee dismissed for failing to give proper care to patient

• Court of Appeal hold 10 week delay in interviewing employee did not make dismissal unfair

• Tribunal had substituted its own view for that of the employer in holding no reasonable grounds for believing some allegations

• In particular tribunal made findings in relation to facts that were disputed in the disciplinary proceedings

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Witness statements: Rhondda Cynon Taff Borough Council v Close

• Employer entitled to rely on witness statements given to police in connection with a separate investigation

• Witnesses had been asked whether they had anything to add or alter but no other formal statement was taken

• Also did not matter that no all of the witnesses were available for cross-examination

• EAT hold tribunal had made mistake of assessing the evidence rather than whether the employer had acted fairly

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Informal Procedures: West London Mental Health NHS Trust v Sarkar

• Employee accused of bullying

• Initially employer sought to resolve this through the informal ‘Fair Blame Procedure’

• Further incidents then occurred and formal procedure was instituted resulting in dismissal

• Tribunal finds that unfair but EAT overturns decision

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Right to Be Represented

• Right to be accompanied under Employment Relations Act 1999 only extends to colleagues and union officials

• However in R v Governors of X School, Court of Appeal rules teacher was entitled to legal representation in disciplinary hearing

• That was on the basis that the nature of the accusation meant that if upheld he would be banned from future posts in teaching

• It was a breach of his Article 6 right to a fair hearing to prevent the solicitor from representing him

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Constructive dismissal – Aberdeen City Council v McNeil

• Claimant could not claim constructive dismissal based on employer’s breach of contract because he was in fundamental breach himself

• So handling of disciplinary case cannot give grounds for constructive dismissal provided employer can prove employee is guilty of gross misconduct

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Transfer of Undertakings

• Court of Appeal say transferee not bound by new collective agreements reached between transferor and unions post-transfer: Parkwood Leisure Ltd v Alemo-Herron and ors

• Common sense view of service provision changes: Metropolitan Resources Ltd v Churchill Dulwich Ltd and ors

• Meaning of mobility clauses determined by reference to employment with transferor and not reinterpreted after transfer: Tapere v South London and Maudsley Trust

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Equality Bill

• Now bombing through the House of Lords

• May well be passed – but when will it be brought into force?

• Most discrimination law stays the same

• Important changes to disability including its extension to indirect discrimination

• Most controversial measure is new rule on positive discrimination (or positive action if you prefer)

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Positive Action / Discrimination

• Where members of a group are underrepresented, at a disadvantage or have particular needs

• Can take any action which is a proportionate means of addressing that (not in relation to recruitment or promotion)

• In recruitment or promotion, a person (P) can take action where group is at disadvantage or underrepresented

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(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.

(4) But subsection (2) applies only if—

(a) A is as qualified as B to be recruited or promoted, and

(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.

Positive Action - recruitment

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Nelson v Newry and Mourne District Council (NI Court of Appeal)

• Theft of a tray of bedding plants involving N and a female colleague

• N given more serious warning than colleague and transferred

• Tribunal finds discrimination. N treated less favourably than colleague and employer failed to discharge burden of proof

• CA say cases were not comparable what mattered was why the treatment was different. Employer’s rational explanation meant that discrimination could not be inferred

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Retirement: The Heyday challenge

• High Court refuses to strike down the default retirement age

• Retirement age of 65 would not be justified if introduced today – forthcoming review was vital

• However JR had to be decided based on situation in 2006

• Where does that leave stayed / current claims?

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Vexatious claims

• In order to claim discrimination you must suffer less favourable treatment and be subjected to a detriment

• Keane v Investigo and others: EAT holds a job applicant must want a job in order to suffer discrimination when it is refused

• Claimant made to pay costs for claiming agaisnt a large number of employers who advertised for recent graduates

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Age discrimination

• ECJ case suggests upper age limit on highly physical jobs may be justified: Wolf v Stadt Frankfurt am Main

• But rule discounting service below age of 25 was not proportionate: Kucukdeveci v Swedex GmbH & Co

• Justification of pay protection arrangements while phasing out age-based pay: Pulham and ors v London Borough of Barking and Dagenham

• Length of service in redundancy selection: Rolls Royce plc v Unite

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Defining Belief: Grainger plc and ors v Nicholson

• Belief in Climate Change held to be capable of being a philosophical belief

• Drawing on ECHR case:• The belief must be genuinely held.• It must be a belief and not an opinion or viewpoint based on information

currently available.• It must be a belief as to a weighty and substantial aspect of human life and

behaviour.• It must attain a certain level of cogency, seriousness, cohesion and importance.• It must be worthy of respect in a democratic society, not be incompatible with

human dignity and not conflict with the fundamental rights of others.

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Religion and Belief

• Registrar refusing to conduct civil partnerships: Ladele v Islington Council

• Counsellor with concerns about same sex couples: Macfarlane v Relate Avon Ltd

• Ewaida v BA. British airways cross case – employee loses direct discrimination claim on account of the individual nature o belief and dress code sees off indirect case

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Coleman v Attridge Law

• Mother claims flexible working to care for disabled son• Alleges hostility and abuse based on his disability• ECJ says must have disability discrimination ‘by

association’• Tribunal interprets DDA to include those ‘associated’

with a disabled person• Now upheld by EAT – greatly widens scope for

interpreting UK law in line with EU law

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Meaning of disability: Chief Constable of Lothian and Borders Police v Cumming

• Applicant to be police constable rejected because she failed eyesight test

• Argued that her ability to do the job was unimpaired• Tribunal held that she was disabled because she was

prevented from pursuing a career• EAT overturn that. The effect of the condition was not

substantial and failing the eye test was not a relevant activity

• Since she was not disabled her claim fails

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DDA meaning of ‘likely’: SCA Packaging Ltd v Boyle

• House of Lords ruling on ‘likely’ as in ‘likely to recur’ or ‘likely to have substantial impact’

• Means ‘could well happen’ rather than ‘more likely than not’

• Employee with vocal nodules controlled by medical intervention was disabled because it was ‘likely’ to have a substantial impact on her if the medical treatment ceased

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Motive in discrimination cases: Amnesty International v Ahmed

• Claimant refused job dealing with Sudan because of her Sudanese nationality

• AI felt that her nationality would compromise independence and could lead to danger when travelling in Sudan

• EAT held that benign motive did not alter the fact that this was race discrimination

• Difference between ‘motive’ and ‘reason’

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Osborne Clarke Services v Purohit, (EAT)

• Indian national applies for trainee solicitor role

• Automatically excluded because he does not have permission to work in UK

• Employer relies on BIA guidance saying work permits only available where resident worker not available

• Held to be discrimination. Not justified because employer made no selection on merit. If P was best for job then employer should have attempted to obtain work permit.

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Richmond Pharmacology v Dhaliwal (EAT)

• Manager refers to possibility of employee being ‘married off in India’

• Tribunal finds remark violated dignity and awards £1K injury to feelings

• EAT find case borderline but uphold decision

• Give guidance on considering harassment cases

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EAT guidance on harassment

• Harassment can have either the purpose OR effect of violating dignity (etc) – so harassment can in a sense be unintentional

• While perception of victim must be considered the test is objective not subjective. If the employee unreasonably takes offence it is not harassment

• Consideration of harasser’s mental processes not necessary when the harassment has overtly discriminatory content

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Abbey National plc v Chagger

• Tribunal awards £2.8 million as compensation for loss of career in discriminatory redundancy selection

• Court of Appeal confirm that equivalent to Polkey principle applies; would the employee have been dismissed if there was no discrimination?

• But tribunal were entitled to calculate loss on basis of whole career because he would not have left Abbey without an equivalent job to go to

• Stigma loss is recoverable even though it involves unlawful victimisation by third parties

• CA does not deal with possibility of other events intervening

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Right to make a training request

• Like right to request flexible working but less important

• Employee can make a request in relation to training that improves his or her effectiveness and the performance of the business

• Employer must hold a meeting and give right to appeal

• No way of enforcing the training provision agreed - only the procedure for asking for it

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Fit notes

• Replaces the old ‘sick notes’ – a real or cosmetic change?

• Allows doctor to suggest employee may be ‘fit for some work’ and make suggestions about light duties or other adjustments

• What will it mean in reality? Will the fit note just reflect what the employee wants to say?

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