Employment Law Update Toni McAlindin March 2015 To join the Employment Law network and receive free...
80
Employment Law Update Employment Law Update Toni McAlindin Toni McAlindin March 2015 March 2015 To join the Employment Law network and To join the Employment Law network and receive free bulletins email receive free bulletins email [email protected][email protected]
Employment Law Update Toni McAlindin March 2015 To join the Employment Law network and receive free bulletins email [email protected]
Employment Law Update Toni McAlindin March 2015 To join the
Employment Law network and receive free bulletins email
[email protected]
Slide 2
Fees numbers down and challenge b UNISON challenged application
for judicial review b Argued it is unlawful to introduce fees which
make it prohibitively difficult to enforce European Community law b
Fees indirectly discriminate against women who typically earn less
than men b In Scotland Fox and Partners lodged a petition for
judicial review too. Sought an interim interdict to prevent the
imposition of fees pending a full court hearing. The arguments are
based on the principle of equivalence ie fees for lodging a claim
in the Sheriff Court are modest (87 issue fee, 207 for a day
hearing fee) b July Court of Session declined to grant an interim
interdict strong prima facie case to go to full hearing. Lord
Chancellor has given an undertaking to refund fees post 29 th July
if the fee is held to be unlawful b Note publication of Employment
Tribunal and Employment Appeal Tribunal Fees Stakeholder factsheet
which summarises the new regime b Note claim cannot proceed without
a fee
Slide 3
Challenge result b UNISON lost challenge and will appeal to the
Court of Appeal b High Court looked at impact on number of income
levels and decided that although costly most people would be able
to pay and were helped by the remission system b On the equivalence
argument it was felt that with the ACAS early conciliation scheme
and the likelihood of getting the fee back if the claimant won this
was not a sustainable argument either b However it felt unable to
make a decision on the discrimination aspect as it is too early to
tell b Lord Chancellor will review and if there is discrimination
will take action b Unison given leave to introduce new evidence ie
the up-to- date tribunal figures b Of sufficient general importance
as full impact of fees regime could not be anticipated at start of
claim but now more obvious principle of effectiveness might be
breached
Slide 4
Update on fees b HMCTS annual report fee income generated just
under 4.5m over first 8 months (6.7m over a full year). Figures for
January to March show a 58.4% decrease in the number of single
claim and 67.8% drop in multiple claims b Unison challenge
permission to appeal against High Court decision b Allowed amended
data b Ie April to June 2014 71% drop compared to 2013 b 80% drop
in sex discrimination and 26% in pregnanc70y seems to back up
Unisons view of impact on females b Report by CAB demonstrates 70%
of claims not taken would have been successful b Labour Party
manifesto will scrap tribunal system and replace with a fairer
system where affordability no barrier ? What does this mean
Slide 5
Clamp down on non-payers b A Government-commissioned study of
claimants who were successful at tribunal between May and June 2013
noted that 16% received only part of their award and 35% received
nothing b Common reason outright refusal to pay b More important
now that employees have to pay up to 1200 to take a claim and more
to enforce at civil courts b Government considering clamping down
on employers b May require deposits, impose fixed penalty for late
payment or naming and shaming b Also considering how the individual
gets the award when the business has ceased trading
Slide 6
Update b November 2013 study demonstrated 37% non-payments were
due to company insolvency, 29% were a refusal to pay, 46% of
claimants were unaware that they could enforce their awards through
the Fast Track scheme and through the county court b Government now
proposes to name and shame non-payers provisions in Small Business,
Enterprise and Employment Bill 2014 provide new financial penalties
for late payment on top of the interest awarded if not made within
14 days of judgement b Propose that an enforcement officer would
send defaulting employer a warning notice stating that additional
penalty would be imposed unless paid by a particular date 28 days
to pay b Warning notice will relate to the unpaid compensation
awarded by the tribunal including re-imbursement of fees but does
not include costs penalty notice if default paid to Secretary of
State b Penalty 50% of original award with a minimum of 100 and
maximum of 5,000 reduced by 50% if paid within 14 days b
Non-payment enforcement in county courts
Slide 7
Second appeal b UNISON lost the second appeal despite detailed
figures on the reduced number of claims b These were not enough to
persuade the court that the fees violated the EU law principle of
effectiveness or that they constituted unlawful discrimination b
Although it appeared claimants were less willing to bring claims
there was no evidence that a specific claimant had been deterred b
Nor did the stats show that women, disabled or ethnic minorities
were at a particular disadvantage b Anyway the fees were in pursuit
of three legitimate objectives ie to transfer 1/3 of the annual
cost of running tribunals to the users who benefit from it and can
afford it; to make tribunals more effective and efficient by
removing unmeritorious claims and to encourage alternative methods
of employment dispute resolution
Slide 8
New legislation
Slide 9
Modern workplaces b Flexible working b Family friendly changes
b Working time b Equal pay audits
Slide 10
Early conciliation via ACAS b It is compulsory for almost all
tribunal claims to submit a form but not to engage in the process b
Final details published for implementation 6 May 2014 b Employee
fills in form with basic details (prescribed) ie name, address etc
but no details of claim b Sent to ACAS Early Conciliation Support
Officer will contact person to see if they want to conciliate b If
so matter will be passed to experienced Conciliator b Has one month
from date of receipt of form to reach a settlement can be extended
b Clock stops on tribunal timescale during this period
Slide 11
Early conciliation b Settlement on COT3 or private agreement b
If employee not contactable will assume do not want to conciliate,
employer may not want to or parties may be unwilling or unable to
reach a settlement b In all these cases ACAS will issue a
certificate and the employee can then proceed to tribunal b
Published figures first six months: 37,000 cases (1,000 multiple
covering 8,000 claimants) b 3% requests from employer, 10%
employees reject offer, 10% employers decline to participate; 18%
resulted in a COT3. b Of those that did not 2/ did NOT progress to
a tribunal
Slide 12
Health at work b Government response to Health at work an
independent review of sickness absence b Revise fit note guidance
for GPs from March 2013 to reflect fitness for work not just
current job done also indicates that no need to take GP advice b
Note Government guidance on the fit note which has indicated that
employers need not follow a GPs advice b Can choose to take advice
or within rights to gather other information about fitness from
doctors or healthcare professionals b Dame Sally Davies Chief
Medical Officer England 70 m working days lost to mental illness
cost 70-100 billion. CIPD 43% organisations noticed rise in mental
health problems.
Slide 13
Fit for Work service (rebranding) b Established health and work
assessment and advisory service from 2014 - Advice for employers,
employees and GPs. Awarded to Maximus (also Work capability
assessment programme) b For absences of 4 weeks or more b Free
universal jobmatch scheme for employees unable to return to current
job b Appears to be voluntary originally could lose fit note
(criticised by EEF should be compulsory) b Controversy as to
whether it is about occupational health complaints by BMA to DWP b
Maximum confirms it is not occupational health advice but a return
to work service b Main referrer GP but can also be employer b
Employee will be contacted and assessed promptly with a return to
work plan provided quickly b Guidance for GPs and employers to be
issued by DWP - estimate 36% GPs will refer
Slide 14
Consultation on zero hours b The consultation asks for views on
b What the likelihood of employers avoiding a ban on exclusivity
clauses might be and how it might be achieved; b Whether the
government should do more to deal with potential voidance, how
might that be best achieved and whether to do this alongside the
ban or wait for evidence of whether such avoidance is taking place;
b How potential avoidance could be dealt with; b Whether there
should be consequences for an employer if they circumvent a ban on
exclusivity clauses and if so, what those consequences should be;
and b Whether there are any potentially negative or unintended
consequences as a result of the wording of the legislation.
Slide 15
Code of conduct b The Bill and an accompanying code of conduct
are expected to become law early in 2015. b However instead of a
code there might be industry- led/owned sector-specific codes of
practice. The content could be agreed by employers and unions but
might include When it is appropriate/not appropriate to use a
ZHC;When it is appropriate/not appropriate to use a ZHC; Whether
and how to promote clarity eg job adverts and contracts stating the
type of contract up front;Whether and how to promote clarity eg job
adverts and contracts stating the type of contract up front; The
rights and responsibilities of the individual and the employer and
how to calculate accrued benefits such as annual leave where
appropriate;The rights and responsibilities of the individual and
the employer and how to calculate accrued benefits such as annual
leave where appropriate; Best practice in allocating work; andBest
practice in allocating work; and Recommended practice around notice
of hours of work or cancellation of work.Recommended practice
around notice of hours of work or cancellation of work.
Slide 16
Queens speech b Small Business, Enterprise and Employment Bill
b Strengthen UK employment law by tackling National Minimum Wage
abuses b Legislation will be changed so that employers who fail to
pay NMW will face penalties of up to 20,000 per employee rather
than 20,000 in total b Crack down on zero hour contracts clause 139
provides a definition b Renders any clause which tries to stop the
worker working for somebody else void b Intends to stop highly paid
public sector employees keeping redundancy payments when they come
back to the public sector within a short period of time
Slide 17
Data protection issues b Consultation on revised version of
CCTV Code of Practice b Guidance notes on disclosure of information
under TUPE to coincide with TUPE changes in January 2014 b Have to
decide whether TUPE does apply where possible release information
anonymously, or remove obvious identifiers such as name b Consider
whether all information in personal files is needed b Former
employer may need to keep some b Changes top enforced subject
access requests b Ministry of Justice has announced that enforced
subject access requests will become a criminal offence from 1 st
December 2014 eg where forced by someone like a prospective
employer to make a subject access request and reveal the results to
the employer eg criminal records b ICO intends to produce guidance
of what this means for employers and individuals
Slide 18
Review of strike laws b The Conservative party outlined plans
to tighten strike laws if it wins the 2015 election b It has drawn
up new measures b Any action by unions on behalf of employees will
be subject to a 50% vote threshold (at least half eligible members
will be required to take part) b Unions will also be required to
provide specific details about the nature of the dispute on the
ballot paper including the intended time of industrial action,
length and reason for taking it, which members will be required to
vote on b Code of practice on picketing will become legally binding
will be updated to limit how, where and why picketing can take
place b Time limits after a ballot which would put an end to
rolling mandates criticisms by unions and Vince Cable b Review of
industrial disputes by Bruce Carr QC will not make any proposals
for changes to the law concerned about politicisation of the topic
in lead up to general election
Slide 19
Miscellaneous b Employers with less than ten employees are no
longer required to inform and consult with representatives in
advance of a TUPE transfer but can do so directly. This applies to
transfers after 31st July 2014 where there are no existing
appropriate representatives and the employer has not invited any of
the affected employees to elect representatives; b ACAS has
published a guide on dress code at work which includes tattoos and
body piercings and religious dress; b The Reserve Forces (Payments
to Employers and Partners) Regulations 2014 have been published and
come into force on 1st October 2014. Small and medium employers
will be able to receive up to 500 per month for each full month a
reservist is absent from work; b From 1st October The Equality Act
2010 (Equal Pay Audits) Regulations 2014 come into effect providing
that where an employer is found to be in breach of equal pay
legislation, tribunals will order such employers to carry out equal
pay audits.
Slide 20
Political party proposals b Conservatives New British bill of
rights replace Human Rights Act 1998. UK Parliament and courts
would have final sayNew British bill of rights replace Human Rights
Act 1998. UK Parliament and courts would have final say Modern
Slavery bill to prevent trafficking of workersModern Slavery bill
to prevent trafficking of workers Scrapping exclusivity clauses in
zero-hours contractsScrapping exclusivity clauses in zero-hours
contracts Strike action to relate to recent ballots with minimum
50% turnoutStrike action to relate to recent ballots with minimum
50% turnout Tougher rules for public sector strikesTougher rules
for public sector strikes
Slide 21
Political parties proposals b Labour Increase minimum wage to 8
an hour by end of next Parliament in 2020Increase minimum wage to 8
an hour by end of next Parliament in 2020 Working parents with 3 to
4 year olds to be offered breakfast at school, after school clubs
and 25 hours of free childcare per weekWorking parents with 3 to 4
year olds to be offered breakfast at school, after school clubs and
25 hours of free childcare per week Scrap zero-hours contracts and
give tax breaks to businesses that pay the living wageScrap
zero-hours contracts and give tax breaks to businesses that pay the
living wage Equal rights for the self-employedEqual rights for the
self-employed Reform of tribunal fee system but no clarity on what
this means ie total abolition or clarity onlyReform of tribunal fee
system but no clarity on what this means ie total abolition or
clarity only New legislation requiring businesses of 250 or more to
publish average pay of men and women by gradeNew legislation
requiring businesses of 250 or more to publish average pay of men
and women by grade Public sector organisations to publish data on
the social background of their employeesPublic sector organisations
to publish data on the social background of their employees
Slide 22
Political parties proposals b Liberal Democrats Increase
minimum wage for apprentices in the first year by 1 per hour.
(appears to be a Coalition proposal)Increase minimum wage for
apprentices in the first year by 1 per hour. (appears to be a
Coalition proposal) Promote representation of ethnic minorities on
company boardsPromote representation of ethnic minorities on
company boards Review workers rights to determine clarity of
current framework; what the options are to extend some rights and
whether there is scope to streamline and simplify (appears to be
Coalition ie BIS has already published); look at confusion over
employment status and whether individuals entitled to SSP,
holidays, maternityReview workers rights to determine clarity of
current framework; what the options are to extend some rights and
whether there is scope to streamline and simplify (appears to be
Coalition ie BIS has already published); look at confusion over
employment status and whether individuals entitled to SSP,
holidays, maternity Merging work of various statutory bodies ie
HSE, HM Revenue and Customs and othersMerging work of various
statutory bodies ie HSE, HM Revenue and Customs and others
Introduce a name-blank application form for jobseekers in the
public sectorIntroduce a name-blank application form for jobseekers
in the public sector
Slide 23
Caselaw contracts
Slide 24
Agreed reference in compromise agreement b Melik Camurat v
Thurrock Borough Council b Allegations of inappropriate use by
teacher against pupils b Final warning and compromise agreement and
left b Reference to ISA which decided he should not be banned from
working with children b Despite the reference referral to the
police b Information contained in enhanced criminal record check b
Took 5 years to have it removed b Claim of negligence, breach of
contract, misrepresentation and malicious falsehood dismissed b To
impose a duty of care would discourage those who in good faith
provide assistance to the police on safeguarding issues
Slide 25
Contract variation and lack of objection b Wess v Science
Museum Group b Employed as curator from 1979. b Entitled to six
months notice. b 2003 sent new contract which reduced notice to 12
weeks. b Never signed the contract as requested nor did she object.
b Continued to work until dismissal with lower notice. b Held
impliedly consented to variation. Upheld by EAT. Intelligent,
well-educated, actively involved in trade union. b Change was
apparent and court believed if she did not like it she would have
objected. b In general courts are cautious about finding implied
variation to future change. b Here employer made clear future
employment was offered on basis of an entirely new contract. b
Significant period elapsed with no comment on her part. b Not just
change of term but new contract.
Slide 26
Reference the whole truth? b AB v Chief Constable - senior
police officer with 24 years service left the force to take up
another job b He had been subject to disciplinary proceedings and
had been long term sick b Police provided a standard reference
despite being asked about sickness and disciplinary record b Deputy
chief constable decided to send a further reference which included
the above b Sent to AB who objected b Served police with notice
under s.10 of Data Protection Act stating it would be unlawful for
the police to send out the second reference because it included
sensitive personal data b Police argued it had private and public
law duties to inform the new employer about ABs employment history
b High Court held whilst the first reference was inadequate, duty
of care did not require a second reference duty to act honestly and
with integrity trumped by data protection duties. Had led AB to
believe a standard reference would be provided
Slide 27
Caselaw dismissal
Slide 28
Who owns LinkedIn contacts b Whitmar Publications Ltd v Gamage
b Employer sought injunction to prevent ex-employees using social
media contacts on LinkedIn b Gamage and other senior employees set
up rival business b Whilst working for Whitmar they solicited
clients and employees, removed 450 business cards with client
information and after leaving refused to provide username and
passwords to access the LinkedIn account. b Extracted client
information from LinkedIn to invite clients to drinks reception at
new venture b Court granted injunction forcing employees to give
the company access to LinkedIn and restraining them from doing
anything to stop the company accessing the pages. Prohibited from
entering into any contractual relationship with clients. b No
restrictive covenant but breach of trust and confidence.
Slide 29
Email and internet abuse b Meadows v East Riding of Yorkshire
Council Mr Meadows managed a pensions portfolio on behalf of the
council worth 200 million b Had access to the Bloomberg financial
website which came with an email account b Also had work email
account b Council had policies on internet and email facilities Mr
Meadows had a copy b Personal internet and email use was limited to
lunchtime and before or after normal hours b Anonymous referral
through whistleblowing policy complaining about his consistent
abuse of the internet b Suspended told not to remove documents but
he did b Investigation indicated widespread abuse for personal use
including spread betting and ordering goods and services b
Dismissed for loss of trust and confidence. Claimed overreacti9on.
b Held straightforward misconduct. Fair dismissal.
Slide 30
And again b Mason v CXC Advantage Ltd Ms Masons work included
receiving referrals of contractors from recruitment businesses b
Employee of client asked for her personal email address which she
provided b On her work computer there was an email exchange where
she indicated they should carry on their conversation on their
personal emails b MD of client company mentioned that the emails
were getting saucy between Ms Mason and clients employee b Ms
Masons employer asked for copies but client refused b Employer
dismissed Ms Mason for damaging relationship with client b Ms Mason
produced the emails at tribunal. They were not saucy and had taken
place outside of work. b Held fair dismissal employer genuinely
believed that the emails were saucy and as client would not produce
them had no knowledge of actual content or that they had taken
place outside of working hours b Decision to dismiss was harsh but
within band of reasonable responses
Slide 31
And again b Scarlett and another v Gloucester City Council b
ICT policy set out rules and consequences for breach b Line manager
concerned at level of personal internet use b Arranged covert audit
of such use over one year b At end of year held meetings with staff
with high use staff had not been warned before and no one had
concealed their usage staff agreed to modify behaviour b Despite
this disciplinary proceedings commenced evidence a previous manager
had been more lax b Did not appear to be a policy on use outside of
core hours but several employees said there was an informal policy
most use was outside of core hours b Dismissed for loss of trust
and confidence b Held council had a genuine belief in alleged
misconduct but investigation inadequate should have spoken to
previous manager re core hours policy b Private use not listed as
gross misconduct b Unfair with 35% deduction for contribution
Slide 32
Facebook remarks and dismissal b Alan Blue v Food Standards
Agency b Food inspector sacked after commenting that he liked a
Facebook comment about his boss being attacked with a chair. b
Employer regarded remarks as unprofessional and breach of trust b
ET held dismissal unfair. b Exemplary employment record; no reason
to believe his work would be affected in the future b Company had a
social media policy but only covered workplace and these were
personal remarks.
Slide 33
Offensive tweets b Game Retail Ltd v Laws b L was a risk and
loss prevention investigator with responsibility for over 100
retail stores. b He opened a personal Twitter account in 2012 and
began to follow the Twitter accounts of the stores in order to
monitor their activity. b 65 stores followed his activities. b In
July 2013 a manager anonymously complained of offensive and abusive
tweets. b L was dismissed for gross misconduct. b ET felt dismissal
was too harsh as tweets were for private use. Companys social media
policy not clear about tweeting in private. b EAT disagreed.
Followers were not limited to social acquaintances given that 65
stores followed him and he knew this. b Remitted to a different
tribunal. b Reluctant to give general guidance on social media
cases.
Slide 34
Covert recordings b Punjab National Bank v Gosain - Ms Gosmain
attended a grievance meeting and recorded remarks made both at the
meeting and during private conversations between managers during
breaks b An earlier case Amwell View School Governors v Dogherty
had held that private deliberations of a panel could not be used as
the parties would understand that it would be private b However
here the tribunal held that the situation was different and the
recordings were admissible. The comments ere about issues not
directly relevant to the matters being decided by the panels. b
Upheld by the EAT. Balanced the need to preserve confidentiality of
private deliberations and the general rule that relevant evidence
is admissible
Slide 35
Escalating final warning to dismissal b McMillan v Airedale NHS
Trust Court of Appeal had to decide whether an employer could issue
a higher sanction in an appeal against a final written warning b
Consultant obstetrician disciplined and given final written warning
b Appealed panel upheld complaints and considered what sanction
would be appropriate b She was concerned that they might issue a
higher sanction so commenced legal proceedings seeking an
injunction to prevent it from changing the sanction b Argued that
disciplinary procedure did not allow a higher sanction b Appeal
procedure did not spell out powers in relation to the sanction b
Injunction granted employer appealed b Held can only increase
sanction if policy/procedure allows here it did not
Slide 36
Disciplinary proceedings for inaccurate reference b Coventry
University v Mian b Senior lecturer subjected to disciplinary
proceedings for providing a reference which was blatantly untrue,
misleading, gave glowing views on someone who did not deserve it
and exaggerated qualifications. b It was disputed whether the
signature on the reference was hers. Despite this her computer was
searched and various similar versions of the reference found. She
stated that she never sent any of them. b She went off sick when
disciplinary proceedings started. Discipline went ahead and the
allegations were dismissed. b She claimed damages for psychiatric
damage caused by the universitys negligence. b Court of Appeal held
proper test was whether the decision to commence disciplinary
proceedings was reasonable and within the band of reasonable
responses. Take account of evidence available and what WOULD have
been available after a proper investigation. b Held reasonable to
commence proceedings.
Slide 37
Caselaw discrimination
Slide 38
Disability
Slide 39
ECJ on obesity b Kaltoft v Municipality of Billund b Individual
was a childminder dismissed as his obesity hindered him doing his
work b Weighs 160 kilos, BNI of 54 b Class III obesity or severe,
extreme or morbid obesity under WHO classification b Advocate
General view obesity may amount to a disability for the purpose of
the directive but only if severe b Only obesity with a body mass
index of over 40 would hinder an individuals participation in
professional life to such an extent as to amount to a disabilit b
Appears more complex than UK version
Slide 40
ECJ judgement b ECJ if the obesity entails a limitation
resulting in particular from long-term physical, mental or
psychological impairments which in interaction with various
barriers may hinder the full and effective participation of the
person concerned in professional life on an equal basis with other
workers. b Obesity by itself not a disability. Origins of the
disability are irrelevant. b Focus is on participation in working
life. b UK terminology different ie not working life but normal
day- to-day activities.
Slide 41
Associative disability b Hainsworth v Ministry of Defence EAT
has confirmed that employers do not have a duty of reasonable
adjustment where an individual has an association with a disabled
person????? Whether correct b Dr H brought a disability
discrimination claim arguing that her employer should have made a
reasonable adjustment to facilitate her care duties for her
disabled daughter (original Coleman argument at the ECJ) b Wanted a
change of place of work b The EAT held that the duty of reasonable
adjustment applies only where the applicant is disabled not the
person they are associated with
Slide 42
Sickness management procedures and disability b HMRC
Commissioners v Whiteley b Mrs W had worked for HMRC since 1978.
She had asthma and between 2005 and 2010 she clocked up 54 days of
absence, 13 due to respiratory infections. b Given a formal warning
after 15 absences in a year (policy provided for warning after 10).
b Claimed failure to make a reasonable adjustment. b HMRC had no
medical evidence but relied on her evaluation of her condition. b
Medical evidence that 6-8 viral infections was normal for someone
with asthma. Condition would exacerbate what might be a common
cold. b Held should attempt to analyse what absence was
attributable to disability and what not. b What sort of absences
would the employee reasonably be expected to have for the
disability concerned
Slide 43
Disregarding absence triggers and reasonable adjustments b
Griffiths v Secretary of State for Work and Pensions b Employee had
post-viral fatigue and a high absence level b Triggered a written
improvement warning under attendance policy b Level was 8 days in
any rolling 12 month period although trigger could be increased if
the employee was disabled b Raised a grievance arguing that she was
disabled and a reasonable adjustment would be disregarding her 62
days of absence so that the warning would be removed and increasing
the number of trigger days for future absence b Grievance rejected
b Brought disability discrimination claim for failure to make
reasonable adjustment b Tribunal held employer had not breached its
duty to make reasonable adjustments
Slide 44
Continued b Provision, criterion or practice was the operation
of the attendance policy b In order to succeed she had to show that
the application of the policy put her at a substantial disadvantage
compared to a non- disabled individual b Majority of tribunal
thought that everyone faces the same disciplinary penalty if
absence triggers the policy b So no substantial disadvantage re
sanctions minority felt a disabled person would be likely to have
more absence b Held even if PCP did put her at a substantial
disadvantage the adjustment would not have been reasonable as it
would require the employer to disregard a long period of absence
and permanently put in place a buffer b EAT agreed b However had
the claim been discrimination arising from a disability (where
there is no non-disabled comparator) the employer would have had to
address the RA issue then justify the treatment
Slide 45
Disability-related absence and redundancy selection b Russell v
College of North West London. b Ms R was a lecturer who suffered
from Menieres syndrome regarded as a disability. b She was placed
at risk of redundancy. b In the pool were other disabled people. b
The selection criteria included absence. b The college had
consulted the union over the selection criteria. The union wanted
to ignore all disability-related absences. b The college preferred
to use the Bradford factor and reduced it by 50%. b The EAT held
there was no indirect discrimination. There was no particular
disadvantage due to disability. There was no discrimination arising
from a disability as there was a legitimate aim in having the
selection criteria and it was proportionate and justified as it
ensured there was no adverse impact on disabled employees.
Slide 46
Disregarding final warning over attendance not a reasonable
adjustment b General Dynamics Information Technology Ltd v
Carranza. b Employee suffered from stomach adhesions which was a
disability. b Substantial absence. Sickness panel hearing after 206
days in three years. b He was given a final warning. b Following
this he had two further short absences due to his disability and
then an unrelated three month absence. b He was dismissed and
claimed disability discrimination. b Argued that a reasonable
adjustment would have been to disregard the final written warning.
b He argued he was placed at a particular disadvantage compared to
a non-disabled person because of consideration of his past
disability- related absences. b The EAT disagreed. The case does
not easily lend itself to an indirect discrimination claim. It was
not clear what sort of step could have been taken to avoid
disadvantage. b It was more of a case of disability-related
discrimination but this would have been justified as dismissal was
a proportionate means of achieving the legitimate aim of consistent
attendance at work.
Slide 47
Disability harassment b Gardner v Chief Constable of West
Yorkshire Police and another. b PC Gardner was absent from work for
six weeks due to stress and insomnia. b Attended return-to-work
interview. He covertly recorded it. b Line manager discussed how to
communicate return to work. b Stated absence had been because he
went a bit doolally fucking tap (army slang meaning to lose ones
mind) and made a reference to One Flew over the Cuckoos nest b
Claim for disability harassment. Held comments perceived to be
derogatory and negative. b Line manager had not received equal
opportunities training since 2006 and there was no monitoring. b
Held harassment.
Slide 48
Religion
Slide 49
Blasphemy b M vP Care Home Ltd and others b Managers use of bad
language that included Jesus Christ and God b Not targeted at any
particular employee, said in front of several staff, not intended
to harass b Claim by Christian employee of religious harassment b
Should be judged on the words used not the speakers intention ie
from the claimants subjective view b Not reasonable for the
claimant to perceive the language as creating an adverse
environment for her b Words did not relate to her religion but are
commonly used albeit blasphemous
Slide 50
Age discrimination
Slide 51
Voluntary early retirement b Palmer v RBS b Claimant placed at
risk of redundancy Given the option of voluntary redundancy or
redeployment b Those over 55 were given the option of voluntary
early retirement b This was subsequently offered to those aged 50
to 55 as well b Claimed the right to change her mind even she was
only 49 b If she chose redeployment there was a chance that she
would be still be in employment at 50 and able to take early
retirement b Held no age discrimination. She could not claim early
retirement whereas her comparators could. The prevention of those
under 50 being given early retirement was as a result of the
Finance Act 2004 not the employers choice
Slide 52
Other discrimination
Slide 53
Surrogacy and maternity leave b CD v ST Claimant and her
partner had a child via a surrogate mother but the claimant started
mothering the child within an hour of its birth b Her employer did
not give her any maternity leave or pay as she did not qualify b
Advocate General held that the CJEU should find that the intended
mother should have the right to maternity leave under the directive
b Compulsory leave of at least two weeks should be given to both
mothers and the combination of four weeks should be deducted from
the 14 weeks under the directive and the 10 remaining weeks shared
by the mothers. Surrogacy cannot lead to a doubling up of leave b
Compare Z v A Government Department and the Board of Management of
a Community School AG Wahl held directive does not cover intended
mothers. Purpose of legislation to allow women to recover from
physical and mental constraints of pregnancy and childbirth. No sex
discrimination either as a comparable man whose child was born
through surrogacy would not have time off nor pay. Latter upheld by
full court.
Slide 54
Removing a dog from a police handler b In Metropolitan Police v
Keohane Ms K was a police dog handler. When she started maternity
leave the police took away her dog arguing it needed to be kept
operational b The dog had been with her permanently b EAT held this
produced a risk of impact on career progression and loss of
overtime on return b Loss as a companion would lead to a sense of
grievance b Pregnancy was a factor in the decision without
guaranteeing its return this would have an impact on one gender
over the other
Slide 55
Men on additional paternity leave and enhanced maternity pay b
Shuter v Ford Motor Company b Women on maternity leave were paid
full pay for the duration of their maternity leave b Mr Shuter took
5 months additional paternity leave and only received statutory
payments he claimed direct and indirect discrimination b Held no
direct discrimination. Comparison is not with a woman who has been
pregnant and given birth but with a woman taking additional
paternity leave who would not get any enhancement b Indirect
discrimination but justified by the desire to encourage the
employment of more women
Slide 56
Redundancy during maternity leave b Sefton Borough Council v
Wainwright. b Council initiated a redundancy procedure. b Ms
Wainwrights job would disappear along with that of a male employee
and be combined into a new role. b She was on maternity leave. b
Both were interviewed and the male was felt to be the better
candidate. b Ms W was made redundant. b She claimed she was
entitled to the vacancy under reg.10 of The Maternity and Parental
Leave Regulations 1999. b This requires employers to offer a
suitable alternative vacancy to a woman being made redundant whilst
on maternity leave. This was an automatically unfair dismissal but
not discriminatory as it was not because of her pregnancy or
maternity leave.
Slide 57
Caste b Tirkey v Chandok and another a tribunal has held that
it is already covered (contrary to several other tribunal
decisions). b Ms T worked for the Chandoks in domestic service. She
is from the Adivasi people who are traditionally seen in India as a
servant caste. She claimed she was mistreated on the grounds of
race and religion. b The Chandoks argued that caste was not
currently covered by the Equality Act 2010. Ms T based her
arguments on the Charter of Fundamental Rights of the European
Union and the original 1965 convention on which the Race directive
is based. This includes as part of its definition the concept of
descent. b She also made reference to the Human Rights Act and the
EHRC employment statutory code of practice. She also referred to
Mandla v Lee where the House of Lords defined a racial group. b The
tribunal held that the EU Charter is not relevant as the UK has
opted out of it. However it did hold that the Equality Act 2010
should be interpreted to give effect to the European Convention on
Human Rights which was broad enough to include caste.
Slide 58
Agency temp not paid correct rate after 12 weeks b Stevens v
Northolt High School b Ms Stevens supplied by agency as temporary
head of music b After 12 weeks period should have been paid amount
she would have been paid had she been directly employed by the
school b This was an additional 98 per day b Agency had continually
asked the school but received no information b Claim against agency
and school b Held claim against school. Liability of agency can be
avoided if it can show it took steps to obtain the relevant
information b Amount was over 10k b Agency did not receive enough
from the hirer to pay this
Slide 59
Should agency worker be treated same as permanent b Coles v
Ministry of Defence b Mr C was an agency worker within MOD covering
a role temporarily while restructuring was carried out. b His
assignment could be terminated at any time. b He continued from
2005 to 2013 in an agency role. b In 2013 500 permanent staff were
put in a redeployment pool. b Civil service recruitment has four
stages, the first three gives priority to internal candidates and
stage 4 opens to external. b Jobs are advertised on the internal
website. He was told he could not apply for the job he was doing
until stage 4. The position went to a redundant employee prior to
stage 4. b He claimed breach of the Agency Workers Regulations when
his employment was terminated. b An agency worker is entitled to
the same opportunity as a comparable worker to find permanent
employment with the hirer. b The court held that neither UK nor
European law prevents an employer giving priority to permanent
staff at risk of redundancy.
Slide 60
Caselaw TUPE and collective labour law
Slide 61
Assigned b Costain Ltd v Armitage and another b Project
engineer. Promoted to project manager. Revised duties included
management of projects. b Also responsible for additional
instructions arising out of framework or maintenance contracts. b
His employer was contractor for a number of Welsh Assembly
contracts. b Work came up for retender and went to someone else.
Main work but not ancillary. b Employer argued that he spent 80% of
his time on the work transferred. New employer argued he spent most
of his time on ancillary work. Current employer used three months
work sheets to show he had spent 67% on work transferred. b ET said
he was assigned. EAT remitted to a new tribunal. b Imperative to
identify the organised grouping of resources which had transferred
and decide if he was assigned to it. b Need to distinguish between
main contract and ancillary work.
Slide 62
Organised grouping of resources b London Borough of Hillingdon
v Gormanley b RG was a firm employer three painter and decorators
who did work for the Borough b The work was taken in house. b A
question arose as to whether they were assigned to the transferred
work ie painting of housing stock of the Council. b ET held they
were assigned to the organised grouping of employees doing Council
painting. b Overturned by EAT employees could be called upon to do
other work than for the Council it did not necessarily follow that
they were assigned only or principally to Council work
Slide 63
TUPE relocation and ETO b NSL v Besagni requirement to work in
a different location following a TUPE transfer cannot constitute a
change in the workforce and therefore an ETO reason b Local
authority employer outsourced work and work moved b Claimants
refused to move and were dismissed b Automatically unfair dismissal
and no ETO reason b However 2014 changes provide that a change of
location can come under an ETO reason so this case would be
differently decided if it occurred now
Slide 64
Continued b Abellio London (Formerly Travel London Ltd) b Loss
of bus contract, same route and terms and conditions but worked
from a different depot 6 miles away. Held to be substantial change
to working conditions to the employees material detriment. b
Compare Cetinsoy v London United Busways Ltd b Almost identical
case but 3.5 miles move. Mobility clause in contract not effective
but evidence that employees could be moved a certain distance. b
Held no fundamental breach of contract entitling employees to
resign nor a substantial change to working conditions to the
employees material detriment
Slide 65
Consultation claims against new employer b Allen and others v
Morrison Facilities Services Ltd b Claimants employed by facilities
management company performing housing maintenance contract for
Leeds City Council b Retendering exercise contract transferred to
Morrison Facilities Services TUPE service provision change b
Employees brought claim against old employer and new re failures to
consult b Held tribunals have no jurisdiction to entertain a
freestanding claim by transferred employees against the transferee
for its failure to provide the transferor with information about
measures it envisages it will take in relation to the transferring
employees b The only way to get compensation is to take a claim
against the transferor and for the transferee subsequently to be
made a party to proceedings on the basis of failure to provide the
transferor with the requisite information b This was not possible
here as the claims against the transferor had been settled or
withdrawn
Slide 66
Failure to inform transferee b Eville & Jones (UK) Ltd v
Grants Veterinary Services Ltd b Transferor liable to pay 65,000
for failing to inform the transferee that it would inherit claims
for unpaid salary. b Had given the transferor normal information
required by TUPE. b Later did not have sufficient funds to pay its
employees and knew this prior to the transfer but did not tell the
new employer even though it knew more than 14 days before the
transfer. b Awarded minimum of 500 per employee ie 65,000. b This
was more than the cost of the wages unpaid. b Failure significant
and deliberate. b However reality of recovering from a company in
liquidation.
Slide 67
Redundancy
Slide 68
Woolworths on consultation b USDAW v WW Realisation 1 Limited
(in liquidation) and others Woolworths was liable for failure to
consult adequately when it closed its stores. There were no special
circumstances such as financial position nor going into
administration b The tribunal regarded each store as a separate
establishment thus employees in stores with fewer than 20 people
had no right to a protective award b Questions re definition of
establishment/see Red tape consultation/EU law b Protective award
reduced to 60 days as some consultation APPEAL TO EAT RE
ESTABLISHMENT APPEAL TO EAT RE ESTABLISHMENT
Slide 69
EAT on establishment b Requirement to consult where 20 or more
made redundant at one establishment b Directive gives two options b
Either 10% of workforce in an establishment or 20 redundancies
whatever the number employed in the establishment b UK opted for
the latter but this does not appear to limit the redundancies to a
single establishment ie the UK has merged both definitions b This
has long been contentious b EAT held that the words at one
establishment are to be disregarded ie irrelevant that work at
different establishments b May be that restriction to one
establishment is a breach of the directive b However removing it
without more will make redundancies more complex b Need for
clarification. Government has won right to appeal.
Slide 70
Progress since then b Appeal to Court of Appeal b Referral from
Court of Appeal to ECJ on whether the words at one establishment
should be deleted from the UK definition b Reference to ECJ from
Northern Ireland regarding similar case with Bonmarche b USA v
Nolan to be heard by the Court of Appeal on the subject of when
consultation should begin b Preliminary issue for court was whether
the court could hear the case at all as the ECJ decided that the
directive did not apply to a non-EU state. Court of Appeal decided
that UK law did and goes further than the directive
Slide 71
Advocate General Opinion b The AG believes that the directive
did not require the aggregation of dismissals in all an employers
work establishments in order to verify whether the threshold
triggering the consultation requirement is met b Establishment is
the local employment unit to which the redundant workers were
assigned to carry out their duties b It is for national courts to
decide how the local employment unit should be defined b Full court
decision is awaited
Slide 72
Working time holidays
Slide 73
Holiday pay and carry over b The Sash Window Workshop Ltd v
Dollar b Commission-only salesman ie a worker. b Entitled to
statutory holidays. b Took time away every year but was not paid. b
Took full holidays between 2003 and 2007. b Claimed 24 weeks
backdated pay in respect of untaken and unrequested leave. b ET
agreed and awarded 9,000. No difference in being unable to take due
to sickness and due to being refused. b EAT agreed that not being
paid would deter individuals taking holidays. b However held the ET
was wrong. No proper findings of fact re being prevented from
taking holidays. Sent back. b Also believed not about deduction
from wages but about liquidated damages. He worked and was paid. He
had not tried to take leave and been refused. He had not lost pay
but chance of leave. In such a case he was out of time.
Slide 74
Overtime part of holiday pay b Neal v Freightliner Neal worked
a 35 hour week b Contract provided for overtime when necessary b
Shifts and working hours determined by a roster system b Regularly
worked up to 9 hours a day and sometime more to provide cover b
Received enhanced pay premiums when working b Felt holiday pay
should reflect actual pay b Employer argued overtime was voluntary
and holiday pay should be basic pay b Tribunal held extra hours
intrinsically linked to performance in his role irrelevant whether
overtime was voluntary or not b Holiday pay therefore based on
average over previous 12 weeks b Case settled on appeal
Slide 75
Compare Elms v Balfour Beatty Utilities Solutions Ltd held that
holiday pay should be calculated by reference to basic pay
excluding overtime, discretionary bonus and standby. The court
rejected comparison with Williams v British Airways where the ECJ
included pilot allowances in holiday pay calculation There was no
comparison as the pilots were covered by the Civil Aviation
directive and regulations whereas Mr Elms was covered by the
Working time directive and regulations which had a detailed scheme
for working out a weeks pay and this excluded overtime Overtime was
not compulsory or guaranteed nor were bonuses or standby NOTE BEAR
SCOTLAND LTD, HERTEL (UK) LTD AND AMEC GROUP LTD ON APPEAL TO EAT
OVER THIS ISSUE
Slide 76
Appeals b Bear Scotland etc on appeal b The case concerned
whether non-guaranteed (but compulsory) overtime should be included
in the 12 week average for calculating holidays for those whose pay
might vary as a result of doing overtime (amongst other things) b
Compulsory overtime is included in the calculation b It is not
clear whether as a result of these cases voluntary overtime might
also be included and it is likely to depend on how regular it is
and expected b At the heart of the judgement is what counts as
normal pay and the judgement also looked at other aspects of pay b
The court decided that compulsory (but not guaranteed) overtime
SHOULD be included in the 12 week calculation
Slide 77
Appeals b Reference was made to Williams and others v British
Airways plc which concerned the calculation of holiday pay for
pilots (this was under a different working time directive
specifically for civil aviation and did not have the calculation
used in the Working time regulations) b The court stated that any
element of pay that is intrinsically linked to the performance of
the task the worker is required to carry out and in respect of
which a monetary amount is provided has to be included in the
calculation
Slide 78
Appeals b Consequences what is the averaging period? Should it
be 12 weeks or is that going to disadvantage some individuals. b
For instance in some industries there might be a lot of overtime at
certain times of the year rather than others. b This means that
individuals taking holidays after working a lot of overtime, will
receive more in holiday pay at one time of the year rather than an
another. b The most controversial part of the judgement relates to
whether individuals denied the correct pay in the past can claim a
recalculation retrospectively. b The EAT decided that there could
be no backdated claim if there was more than a three month gap
between such deductions (under the Wages Act such deductions can be
a series and pull in early times)
Slide 79
Government action b A taskforce has been set up to look at the
issue of backdated claims. b It has no employee/union members. b
Unite has decided not to appeal the Bear Scotland case. b Other
individuals might yet make such a claim. b The Government has also
issued Deduction from Wages (Limitation) Regulations 2014. b They
limit all unlawful deduction claims to two years before the date
the ET1 is lodged. b They specifically state that the right to paid
holidays is not incorporated as a term in employment contracts. b
This limits long-term backdated claims. b The Regulations apply to
ET1s presented before 1 st July 2015
Slide 80
Commission as part of holiday pay b Lock v British Gas Trading
Ltd AG held Art.7 of the EU Working time directive requires
commission to be taken into account when calculating the correct
remuneration for holidays b But commission does not have to be paid
for any holidays in excess of the directive b Individual paid
commission on a monthly basis b It fluctuated dependant on sales
but usually about 60% of pay b Whilst on holiday did not generate
commission leading to lower pay after holidays b Principle of leave
is to enable the worker to enjoy relaxation and leisure. Art.7
makes no mention of how to calculate pay