TUPE: information and consultation

The cap on “a week’s pay” (currently £380) does not apply to compensatory awards for a breaching TUPE information and consultation obligations: Zaman v Kozee Sleep Products Ltd (t/a Dorlux Beds UK) [EAT/0312/10].

Opt-out Agreements

In Arriva South London Ltd v Nicolau [EAT/0280/10], the EAT remitted the following question to the employment tribunal.

Where a worker did not sign an opt-out agreement – did their employer take reasonable steps to ensure that they did not work more than 48 hours per week – if it did not allow them to work for any amount of overtime?

Positive action law will come into force in April 2011

From 6 April 2011 - an employer can appoint or promote a person from an under-represented group if the job applicants are equally qualified: Equality Act 2010 (Commencement No. 5) Order 2011 [SI 2011/96].

On 12 January 2011, the Government Equalities Office published a guide for employers about postive action.

Gender pay reports

The Government will adopt a voluntary approach towards the publication of gender pay reports (GPR) by employers in the private and voluntary sectors. Each year, the Government will review the number of employers that are publishing GPR and the quality of those reports - to assess whether an alternative approach is required – e.g. a mandatory approach via s. 78 of the Equality Act 2010.

Source: Government Equalities Office

National Minimum Wage

Where a worker is provided with sleeping accommodation at the workplace – while they are on-call - the worker is entitled to be paid the national minimum wage (NMW) for the hours they are awake for the purpose of working: South Manchester Abbeyfield Society Ltd v Hopkins [EAT/0079/10].

However, a worker (e.g. a night-watchman) who is working by being present at the workplace - is entitled to be paid the NMW for the total hours of the nightshift - regardless of whether or not they are provided with sleeping accommodation.

Comment: The Hopkins case is good NMW news for employers in sectors where on-call arrangements are common, e.g. the residential care sector.

Re-hiring a disabled person

It is a reasonable adjustment to re-hire a disabled person - after their resignation – without the need for them to re-apply for employment: Hinsley v Chief Constable of West Mercia Constabulary [EAT/0200/10].

Also see Retiring and Re-hiring a Disabled Worker Could be a Reasonable Adjustment.

Extra bank holiday for royal wedding

The Government has announced that there will be an extra bank holiday on 29 April 2011 to celebrate the the marriage of Prince William and Catherine Middleton .

Comment

Whether an employee is entitled to a paid bank holiday on 29 April 2011 will depend on the terms of their contract.

If the contract indicates that the employee is entitled to:

• The normal eight bank/public holidays (in England and Wales) - the employee will not be entitled to a paid bank holiday on 29 April 2011.  Could the employee argue that they are entitled to the extra bank holiday via custom and practice? For example, they received paid leave for the extra bank holidays to celebrate the Millennium and the Queen's Golden Jubilee.
• Paid leave on any bank/public holiday - the employee will be entitled to a paid bank holiday on 29 April 2011.

NHS employers

Pay and benefits for NHS staff (except doctors) in relation to the royal wedding will be determined at local level. Source: NHS employers.

Related legislation

• The School Teachers' Pay and Conditions (Amendment) Order 2011 [SI 2011/192].

Age discrimination was justified

In Woodcock v Cumbria Primary Care Trust [EAT/0489/09], Mr Woodcock was entitled to an enhanced retirement pension (ERP) on his 50th birthday.  The cost of providing an ERP to Mr Woodcock was considerably higher than the cost of making him redundant.

Cumbria Primary Care Trust (CPCT) gave a redundancy dismissal notice (RDN) to Mr Woodcock - before the first consultation meeting had taken place – to ensure that the notice expired before his 50th birthday. The duration of the RDN was one year.

Mr Woodcock claimed that the timing of the RDN was due to his age - and therefore - he was a victim of unlawful age discrimination. The EAT disagreed.

The employment tribunal had found that the age discrimination had been justified on the grounds of cost and other factors.  Mr Woodcock was at risk of redundancy when he was 48 years old. The chance that he would be employed by CPCT on his 50th birthday only arose – because he was employed for almost a year after his job had disappeared – followed by the one-year RDN.

Mr Woodcock had no legitimate expectation when his job disappeared – that he would be employed by CPCT on his 50th birthday – if he did not find any suitable alternative employment.

The EAT also expressed doubt as to whether para. 72 of Cross v British Airways [EAT/0572/04] correctly stated that discrimination could not be justified “solely on considerations of cost”.

Serial tribunal claimant cannot make age discrimination claim

In Berry v Recruitment Revolution [EAT/0190/10], Recruitment Revolution (RR) advertised a “junior administrator” job on the behalf of a client. The job advertisement (JA) stated that the job would be suitable for a school leaver or someone who had recently taken “A” levels.

Mr Berry, a serial tribunal claimant, asked RR if he should apply for the job. He told RR that he was over the age of 50 and had passed his “A” levels a long time ago.

RR invited Mr Berry to apply for the job. RR said that the JA should have stated that school leavers and graduates would also be considered for the job. However, Mr Berry did not apply for the job but he made an age discrimination claim.

The EAT held that Mr Berry could not make such a claim based on the JA if he did not apply for the job.

The EAT said that [see para. 29]:

“the purpose of the [Age Discrimination] Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the claimant in the Investigo case, to find themselves facing a liability for costs.”

Also see the serial litigants website.

When should the consultation begin?

In USA v Nolan [2010] EWCA Civ 1223, the Court of Appeal (CA) was asked about the time that an employer should begin to consult with employee representatives about the closure of a workplace that would lead to redundancies.

Should the consultation begin when the employer proposes to close the workplace - or after the employer decided to close the workplace?

The CA said that the Akavan case (C-44/08) did not provide a clear answer to the question [see paras 54 - 62] – and therefore – it decided that the question should be referred to the ECJ.

In the Akavan case, the ECJ ruled that:

An employer must begin to consult with employee representatives after an authorising person or body (e.g. a board of directors) - had approved a proposal (e.g. a proposal to reduce staff costs) that would lead to redundancies.

The employer is not legally obliged to begin such consultation at the time the authorising person or body is considering the proposal.

Updated guide on preventing illegal working

Today, the UK Border Agency published an updated guide for employers on preventing illegal working.

The updated guide:

• Confirms that an employer may accept an expired passport as evidence of a person’s right to work in the UK [see pages 20 and 32].
• Contains a new section about employing asylum seekers and refugees [see Appendix B].
• Contains a new section about employing students [see Appendix D].

The updated guide is available at the UK Border Agency.

A summary of the guide is also available at the UK Border Agency.

Also see New UK Passports.

Free application forms for additional paternity leave and pay

One of the criteria for taking additional paternity leave and pay (APLP) for a newborn child - is that the child’s father must give proper APLP notice to their employer - at least eight weeks before the start date of the APLP period.

The child’s father may provide such notice by giving a completed Form SC7 to their employer at least eight weeks before the start date of the APLP period.

An employee may complete a Form SC8 in relation to taking APLP for an adopted child or a Form SC9 in relation to taking APLP for a child adopted from abroad.

Fire-fighter’s transfer to an office job was unlawful

In FuB v Stadt Halle (C-243/09), Mr FuB was a fire-fighter who worked more than 48 hours per week. Mr FuB told his employer that he wanted to work for a maximum of 48 hours per week. However, in accordance with German law – the employer transferred Mr FuB to an office job in the fire service control room - so that he could work for a maximum of 48 hours per week.

The ECJ held that the transfer was unlawful under the Working Time Directive. The transfer had deprived Mr FuB of his legal right to work for a maximum of 48 hours per week as a fire-fighter.

Also see FuB v Stadt Halle (C-429/09).

Employer's checklist for additional paternity leave and pay

An employer’s checklist [Form ASPP3] for additional paternity leave and pay (APLP) is available at HMRC.

Eligibility forms and records for additional paternity pay are also available at HMRC.

Further information about APLP is available at Business Link.

Redundancy dismissal was not unfair

Where an employer is proposing to make 20 - 99 redundancies at one establishment within a period of 90 days or less – the consultation period (CP) must begin at least 30 days before the first of the dismissals takes effect: s. 188 of the TULR(C)A 1992.

In Hammonds LLP v Mwitta [EAT/0026/10], Ms Mwitta was made redundant – but the CP did not begin at least 30 days before the date of her dismissal.

However - on the facts of the case - the EAT held that Ms Mwitta’s dismissal was fair. Although the CP did not begin at least 30 days before the date of Ms Mwitta’s dismissal – it did not mean that her dismissal was automatically unfair.

Note: Hammonds LLP paid a protective award of 30 days’ pay to Ms Mwitta because the CP did not begin at least 30 days before the date of her dismissal.

Update [13 October 2010]

However, in Pinewood Repro Ltd v Page [EAT/0028/10], the EAT held that an employee's  redundancy dismissal was unfair due to an unfair consultation. The employer did not explain the basis of the employee's score of 60% for a subjective flexibility criterion to enable the employee to challenge the score [see paras. 43 - 46]. 

Employer's guide about employment rights

The Department for Business, Innovation & Skills (BIS) has published an eight-page guide about:

• The National Minimum Wage
• Working Hours
• Employment Agencies
• Agricultural Workers
• Gangmasters

The guide is available at the BIS. 

On 25 October 2010, the BIS published a guide entitled "Pregnancy and work: What you need to know as an employer - Babies due on or after 3 April 2011".

Gossip about pregnant employee was sexual harassment

In Nixon v Ross Coates Solicitors [EAT/0108/10], Ms Nixon slept with Mr Wright, a work colleague, on the night of their employer's Xmas Party in 2007.

In early 2008, after Ms Nixon had confidentially informed her employer that she was pregnant – she complained (in writing) that Ms O’Hara, the HR manager, was spreading gossip about whether Mr Wright was the father of her baby.  Ms Nixon suggested working at another office in order to avoid Ms O’Hara.

The employer responded by asking Ms Nixon to return to the office - and suggested that she could make a formal complaint about Ms O’Hara when she returned to the office.

Ms Nixon resigned and successfully claimed that she had been constructively dismissed. The EAT said that the employer had breached the implied term of trust and confidence - because it had failed to deal with Ms Nixon’s complaint - and insisted that she should return to a workplace that had become offensive to her.

The EAT added that the gossip about whether Mr Wright was the father of Ms Nixon’s baby was sexual harassment. The gossip was unwanted conduct that was related to Ms Nixon’s pregnancy and the pregnancy was related to her sex.

The Equality Act: positive action

Section 159 of the Equality Act 2010 [EA] provides that an employer can appoint or promote a person from an under-represented group if the job applicants are equally qualified. Please note that this controversial section of the EA will not come into force on 1 October 2010.

[Please see Positive action law will come into force in April 2011]

Also s.14 of the EA [Combined discrimination: dual characteristics] will not come into force on 1 October 2010.

Source: Article 2 of the Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010 [SI 2010/2317].

Further information about the sections of the EA that will come into force on 1 October 2010 is available at Trotman's Employment Law Alerts.

Note: The Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010 (Amendment) Order 2010 [SI 2010/2337] was published on 27 September 2010.

Requirement for “younger” employee was age discrimination

In Canadian Imperial Bank of Commerce v Beck [EAT/0141/10], the EAT held that the tribunal was entitled to infer that the requirement for a “younger” employee amounted to unlawful age discrimination.

Mr Beck was the head of marketing at the Canadian Imperial Bank of Commerce (the bank) until he was made redundant on 8 May 2008. He was aged 42.

However, before Mr Beck was made redundant, the bank sent a person specification (PS) for his job to an employment agency. The PS stated that the person had to be a “younger, entrepreneurial profile (not a headline profile rain maker)”.

The tribunal found that the requirement for a “younger” person meant that the bank had to show that Mr Beck’s dismissal was not influenced by his age.

The tribunal rejected the bank’s explanation that the word “younger” meant “less senior”. If the PS meant to say that the bank was seeking a “less senior” person – it should have said so. The PS went through a series of drafts - but the requirement for a “younger” person remained – even though the bank’s HR executive had advised the bank that it would be inappropriate to search for a “younger” person.

Comment

Page 13 of the ACAS Code of Practice on age discrimination advises employers to avoid using words such as “young” in a person specification (or job advertisement) because such words may imply that they would prefer to employ a person of a certain age.

The advice will continue to be valid after the EHRC’s guides on the Equality Act 2010 come into force on 1 October 2010.

Is it time to stop training?

Today, the Government published a consultation paper about whether the legal right for time off to train:

• Should be repealed.
• Should be retained for businesses employing at least 250 employees.
• Should be extended to any business from 6 April 2011 (as intended by the Labour     Government), e.g. should the extension be delayed until economic conditions improve?

The consultation period will end on 15 September 2010.

The consultation paper is available at the Department for Business, Innovation and Skills website.

More new guides on the Equality Act

The Equality and Human Rights Commission (EHRC) has published seven guides on the Equality Act 2010 for employers. The guides will come into force on 1 October 2010.

The guides state that:

“This guidance applies to England, Scotland and Wales. It has been aligned with the Codes of Practice on Employment and on Equal Pay. Following this guidance should have the same effect as following the Codes. In other words, if a person or an organisation who has duties under the Equality Act 2010’s provisions on employment and other work situations does what this guidance says they must do, it may help them to avoid an adverse decision by a court in proceedings brought under the Equality Act 2010.”

The guides are available at the EHRC website.

There are also guides on the Equality Act 2010 at the Government Equalities Office website.

Employee cannot receive sick pay and do paid work at the same time

In McCann v Clydebank College [EATS/0061/09], Mr McCann, a part-time lecturer, was absent from Clydebank College (the College) due to stress and hypertension. Mr McCann was dismissed for receiving sick pay from the College – while he was doing paid work in his own business – without the consent of the College. The EAT held that the College had fairly dismissed Mr McCann for gross misconduct.

Mr McCann was not dismissed because the College believed that if he was fit to work in his own business – he was also fit to work at the College.

The College had a legitimate interest in preventing Mr McCann from doing any paid work during or outside of his part-time working hours because:

• The other work done by Mr McCann may have hindered his prospects of recovery.
• Mr McCann received sick pay to compensate him for his lost income. If Mr McCann was still able to earn an income – he should have done so with the College’s consent, e.g. the College may have allowed him to do the paid work with reduced sick pay.

Practical Implications for HR Professionals

A sickness absence policy should clearly state that an employee must obtain the written consent of their employer in order to undertake any paid or unpaid work for another employer if they are absent from work due to ill-health.

Disability Discrimination

In Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 910, the Court of Appeal confirmed that the House of Lord’s decision in the housing case of Lewisham Borough Council v Malcolm [2008] UKHL 43 about the correct comparator in disability-related discrimination claims also applied to employment cases.

The Malcolm case overruled the Court of Appeal’s decision in the employment case of Clark v Novacold Ltd [1999] IRLR 318.

Comment: The practical implications of the Aylott case are very limited because s. 15 of the Equality Act 2010 (EA) will resurrect the Novacold case and nullify the Malcolm case. Section 15 of the EA 2010 is expected to come into force on 1 October 2010.

Draft Code of Practice on Equal Pay

A draft Code of Practice on Equal Pay is available at the Equality and Human Rights Commission's website. 

Also see More new guides on the Equality Act.

Constructive dismissal

In Bedford v Pilgrims Group Ltd [EAT/0106/10], the EAT held that an employer’s failure to pay an employee for their outstanding holidays was not a fundamental breach of their contract of employment. Therefore, the employee could not claim that they had been constructively dismissed.

The EAT acknowledged that an employer’s failure to pay wages (including holiday pay) to an employee does not automatically amount to a fundamental breach of their contract of employment: Cantor Fitzgerald International v Callaghan [1999] EWCA Civ 623.

Agency Workers

In RSA Consulting Ltd v Dr Evans [2010] EWCA Civ 866, there was a quadripartite relationship where:

• Parasol Ltd employed Dr Evans to provide services for an end-user either directly or via a client such as RSA Consulting Ltd (RSA).
• Parasol Ltd had a contract with RSA to supply Dr Evans to an end-user (i.e. Pharmanet).
• RSA had a contract with Pharmanet.

Dr Evans made a claim for an unauthorised deduction from her wages against RSA even though there was no written contract between Dr Evans and RSA. The Court of Appeal held that it was arguable that there was an implied contract between the parties and the case was remitted to the employment tribunal.

New guide for Tier 2 or Tier 5 applications

The UK Border Agency has published a new guide for employers about Tier 2 or Tier 5 applications made on or after 19 July 2010.

The guide is available at the UK Border Agency’s website.

Employment Agencies laws will come into force on 1 October 2010

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2010 [SI 2010/1782] will come into force on 1 October 2010.

The regulations provide employment protection rights for workers such as actors, dancers, musicians and models, e.g. an agency cannot charge an upfront fee for work finding services from a model.

Regulation 10 will remove the requirement for agencies to carry out suitability checks for work-seekers if they are not working with a vulnerable person.

A vulnerable person is “any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen.”

Further information about the regulations can be found on the Business Link website.

Limit on redundancy pay was not discriminatory

In Kraft Foods UK Ltd v Hastie [EAT/0024/10], the EAT held that the aim of an enhanced redundancy payment (ERP) scheme - was to compensate an employee for the earnings which they would have earned - if they had remained employed until their retirement at the age of 65.

Therefore, a limit that prevented an employee aged 62 from receiving an ERP that would have been higher than those earnings – did not amount to unlawful age discrimination – since the limit was a proportionate means of achieving a legitimate aim.

The removal of the taper provision for employees aged 64 from the statutory redundancy pay scheme did not automatically mean that a similar taper or limit on an ERP could not be objectively justified.

No allowances for women on maternity suspension

The ECJ has ruled that a woman on maternity suspension is not entitled to be paid an on-call allowance: Gassmayr v Bundesminister fur Wissenschaft und Forschung (C-194/08).

Similarly, the ECJ ruled that a flight attendant who was temporarily transferred to an office job due to her pregnancy is not entitled to be paid certain allowances (e.g. an allowance for long-haul flights) when she was performing the office job: Parvianen v Finnair Oyj (C-471/08).

In both cases, the ECJ said that the payment of the allowance was dependent on the performance of a specific task which the women could not perform during the period of their maternity suspension.

Also see Discrimination on the grounds of maternity leave

New guides on the Equality Act

The Government Equalities Office (GEO) has published some guides on the Equality Act 2010.

The guides are available at the GEO website.

Also see More new guides on the Equality Act 2010.

Time limits for equal pay claims

In North Cumbria University Hospitals NHS Trust v Fox [2010] EWCA Civ 729, the pay terms of the Whitley Council agreement were replaced by the Agenda for Change (AfC) agreement.

The Court of Appeal held that the terms of the AfC agreement did not end the stability of the employment relationship between the hospital and its nurses - e.g. the AfC agreement did not fundamentally alter the job of a nurse or lead to any break in the employment relationship between the hospital and its nurses.

Therefore, the six-month time limit for bringing an equal pay claim did not begin on the date on which the pay terms of the Whitley Council agreement were replaced by the AfC agreement.

Penalty of £20,000 for breaching Information and Consultation laws

In Brown v G4 Security [EAT/0526/09], the EAT imposed a penalty of £20,000 on G4 Security for its failure to arrange the election of information and consultation representatives. The maximum penalty is £75,000 [reg. 23(2) of the Information and Consultation of Employees Regulations 2004].

Also see Darnton v Bournemouth University [EAT/0391/09].

Racial Victimisation

It was possible that a worker could suffer from a detriment – because their employer took disciplinary proceedings against them – even though they had been acquitted of the disciplinary charges: Gayle v Sandwell & West Birmingham Hospitals NHS Trust [EAT/0338/09].

Discrimination: working outside Great Britain

In Neary v Service Children’s Education [EAT/0101/10], Mr Neary worked abroad on various assignments and returned to Great Britain after those assignments were completed.

From April 2007 to November 2008, Mr Neary taught mathematics in Germany. On 25 March 2008, he applied for a teaching job at a school in Cyprus. The job application stated that his home address was in Germany.

On 7 August 2008, Mr Neary was told that his job application had been rejected. As a result of this, Mr Neary claimed disability and age discrimination.

EAT’s decision

The tribunal was entitled to find that Mr Neary was “ordinarily resident” in Germany - on the dates on which his job application was made and rejected - and therefore, he could not pursue his discrimination claims.

Mr Neary had to be “ordinarily resident” in Great Britain in order to pursue his discrimination claims.

The EAT stated that it was possible that a person may be “ordinarily resident” in more than one country at the same time [see para. 44].

Disciplinary Hearings

An employee’s dismissal was fair – where they had received a final written warning for misconduct – and their employer held another disciplinary hearing in relation to the same misconduct and two new allegations of misconduct which led to the employee’s dismissal: Pinto v Gloucestershire NHS Primary Care Trust [EAT/0351/09].

The employee had agreed that the previous and new allegations of misconduct could be heard together at the disciplinary hearing in exchange for putting aside the final written warning. In addition to this, the employee did not challenge the evidence presented by their employer in relation to any of those allegations.

Comment

The employee’s final written warning had not expired at the time of the disciplinary hearing. Therefore, if the hearing was only related to the new allegations of misconduct – the employee’s dismissal may still have been fair - since their employer could have considered the unexpired disciplinary warning.

ID Cards will no longer prove that a person has the legal right to work in the UK

On 27 May 2010, the Identity & Passport Service (IPS) announced that:

“The Government plans for identity cards for British citizens will be scrapped within 100 days”.The IPS added that:

“The Identity Documents Bill is part of a first wave of priority legislation set out in the Queen's Speech on 25 May. The Bill will invalidate the identity card, meaning that holders will no longer be able to use them to prove their identity [my emphasis] or as a travel document in Europe.”

Further information about the cancellation of identity cards is available on the IPS website.

Comment

From 24 November 2009, an employer can accept a person's ID Card (issued under the Identity Cards Act 2006) as proof of their legal right to work in the UK: The Immigration (Restrictions on Employment) (Amendment) Order [SI 2009/2908].

Pre-employment questions about a job applicant’s health

Section 60 of the Equality Act 2010 is expected to come into force in October 2010.

General Rule

The section states that it is unlawful for an employer to ask questions about a job applicant’s health before they are offered a job (on a conditional or unconditional basis) or included in a pool of shortlisted job applicants to be offered a job when a suitable vacancy arises.

Exceptions

However, it is lawful for an employer to ask such a question before the job applicant has been offered a job or shortlisted - if the question is being asked for the purpose of:

• Making a reasonable adjustment to enable the job applicant to participate in the recruitment process, e.g. asking a job applicant who has been invited to attend an interview/test if they would like any reasonable adjustments.

• Establishing whether the job applicant will be able to carry out an intrinsic job function, e.g. if the manual lifting of heavy items is an intrinsic job function – the employer may ask questions about the job applicant’s health to establish whether they are able to do the job (with reasonable adjustments for a disabled job applicant, if required).

• Equal opportunities monitoring.

• Supporting positive action in employment of disabled people.

• Identifying a suitable job applicant where there is a genuine occupational requirement for the job holder to be disabled.

• National security vetting.

Update [2 August 2010]

Further information about health or disability questions can be found on pages 73 - 76 of the guide entitled What equality law means for you as an employer: when you recruit someone to work for you.

The guide will come into force on 1 October 2010.

Blindness in right eye is not a disability

In London Borough of Redbridge v Baynes [EAT/0293/09], Mrs Baynes’ manager changed her job duties when she became blind in her right eye. Mrs Baynes resigned and made a disability discrimination claim.

During the tribunal case, Mrs Baynes repeatedly stated in writing that:

• She was not a disabled person.
• The blindness in her right eye was treated as a disability by her manager.
• Moorefields Eye Hospital had certified in writing that she was fully fit to perform her normal job duties.

The EAT held that Mrs Baynes was not a disabled person for the purposes of the Disability Discrimination Act 1995 – because she had conceded that she was not a disabled person – and there was no medical evidence to show that she was a disabled person.

The EAT added that Mrs Baynes was not entitled to withdraw her concession because it was a clear and informed concession. It was an informed concession because she had received legal advice before and during the tribunal case.

Comment: Perceptive Discrimination

Under s. 13 of the Equality Act 2010 (EA) - Mrs Baynes may have argued that her less favourable treatment was due to her manager’s perception that she was disabled regardless of whether the manager's perception is right or wrong.

Section 13 of the EA 2010 is expected to come into force in October 2010.

Employer is not obliged to believe the complainant or alleged wrongdoer

In Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522, the Court of Appeal upheld the tribunal's decision that the hospital had unfairly dismissed Ms Roldan, an intensive care nurse, for allegedly mistreating a patient.

Employer's liability for the loss of a dismissed employee

The hospital referred the alleged incident to the police in accordance with its procedures. As a result of the referral, the Crown Prosecution Service prosecuted Ms Roldan but she was acquitted.

Ms Roldan could not work for 14 months while she was being prosecuted. Ms Roldan claimed that the tribunal’s award for her unfair dismissal should include her loss due to being unable to work while she was being prosecuted. Her prosecution was a result of the hospital referring her case to the police - and therefore - the hospital was responsible and liable for her loss during the 14-month prosecution period.

The EAT disagreed. However, at the Court of Appeal, the hospital conceded that it was liable for Ms Roldan's loss during the 14-month prosecution period. The Court of Appeal stated that the EAT's decision was wrong and the hospital was right to make the concession [see para. 43].

Employer is not obliged to believe the complainant or alleged wrongdoer

The Court of Appeal added that where the complainant and alleged wrongdoer have presented conflicting accounts of an alleged incident, the employer is not obliged to:

• Believe the complainant and disbelieve the alleged wrongdoer or

• Disbelieve the complainant and believe the alleged wrongdoer.

There may be cases where the employer cannot properly resolve the conflicting evidence - and therefore – it will conclude that the complaint has not been proven. However, such a conclusion does not mean that the employer disbelieves the complainant. 

For example, the employer may tend to believe that a complainant is giving an accurate account of an incident - but at the same time it may be wholly out of character for an employee - who has given years of good service to have acted in the way alleged. It would be perfectly proper in such a case - for the employer to give the benefit of the doubt to the alleged wrongdoer - without feeling compelled to make a decision in favour of the complainant or alleged wrongdoer [see para. 73].

Ex-police officer had a fair tribunal hearing

In Power v Greater Manchester Police Authority [EAT/0087/10], Ms Joyce wrote a letter to Mr Power stating that his psychic beliefs (e.g. being able to contact people after their deaths) were not compatible with his employment as a police officer.

Mr Power was dismissed and he claimed that his dismissal amounted to unlawful religious/belief discrimination. However, Ms Joyce did not attend the tribunal hearing as a witness for the employer.

Mr Power claimed that his right to a fair trial under the Human Rights Act 1998 (HRA) had been breached since he was unable to cross-examine Ms Joyce at the tribunal hearing.

The EAT disagreed. Mr Power’s right to cross-examine Ms Joyce (or his accuser) under Art. 6(3)(d) of the HRA 1998 applied to criminal cases and not to discrimination cases.

Comment

In Greater Manchester Police Authority v Power [EAT/0434/09], the EAT held that Mr Power’s psychic beliefs was a religion/belief under the Employment Equality (Religion or Belief) Regulations 2003.

Also see Power v Greater Manchester Police Authority [EAT/0087/10].

Father is entitled to paid time off to care for his child

In Alvarez v Sesa Start Espana ETT SA (C-104/09), Spanish law permitted a female employee to take paid time off from work to care for her baby until it was nine months’ old. She could take such time off by reducing her working day by 30 minutes or taking paid time off for one hour per working day.

If the baby’s father was an employee – he could take paid time off from work to care for the child – only if the baby’s mother had not taken such time off.

Mr Alvarez, an employee, made a request to take paid time off to care for his child. His request was refused because his wife was self-employed and not an employee. Mr Alvarez argued that the refusal amounted to unlawful sex discrimination under the Equal Treatment Directive. Mr Alvarez claimed that he should have the same independent right as a female employee to take paid time off to care for his child.

The Advocate General agreed and ruled that the ECJ should uphold his claim.

Since the Spanish law was primarily concerned with the care of a baby which could be provided by the baby’s mother or father - Mr Alvarez was not claiming that he was entitled to the same protective rights (e.g. maternity leave and pay) afforded to women in relation to pregnancy or maternity under EU law.

The decision of the ECJ is awaited. The ECJ usually agrees with the ruling of the Advocate General.

Update [30 September 2010]

On 30 September 2010, the ECJ agreed with the ruling of the Advocate General: Alvarez v Sesa Start Espana ETT SA (C-104/09) and the ECJ's press release.

Tribunal Procedure for National Security Cases is not Unlawful

The Closed Material Procedure (CMP) allows an employer to disclose information to a Special Advocate but not to the claimant if the disclosure would be contrary to, e.g. the interests of national security.

A Special Advocate is an appointed lawyer who is instructed to represent the claimant in relation to the information that is kept secret from the claimant and their legal representative.

In Home Office v Tariq [2010] EWCA Civ 462, the Court of Appeal held that the CMP was lawful and did not breach any EU law or Mr Tariq’s right to a fair trial under the Human Rights Act 1998.

The Court of Appeal added that since the Home Office intended to use the undisclosed information as its defence against Mr Tariq’s tribunal claim – it was required to provide a gist of that information to Mr Tariq – to ensure that he had a fair trial.

Retiring and Re-hiring a Disabled Worker Could be a Reasonable Adjustment

Whether an adjustment in relation to a disabled worker is reasonable will depend on the facts and circumstances of each case.

The list of reasonable adjustments (e.g. transferring a disabled worker to fill an existing vacancy) set out in s. 18B(2) of the Disability Discrimination Act 1995 is not exhaustive.

In Chief Constable of South Yorkshire Police v Jelic [EAT/0491/09], the EAT held that an employer’s obligation to make a reasonable adjustment by transferring a disabled worker to another job could involve:

• The disabled worker swapping their job with another worker or
• Retiring and re-hiring the disabled worker.

Swapping Jobs with another Worker

The EAT upheld the tribunal’s decision that the failure by South Yorkshire Police (SYP) - to allow Mr Jelic, a disabled police officer, to swap his job with another police officer – was a failure to make a reasonable adjustment.

Retiring and Re-hiring the Disabled Worker

The tribunal also decided that the failure by SYP - to offer ill-health retirement to Mr Jelic and then re-employ him as a civilian support worker – was a failure to make a reasonable adjustment.

However, the EAT remitted the decision to a different tribunal because the original tribunal did not fully explain how it had reached its decision. But the EAT said that the failure by SYP to retire and re-hire Mr Jelic could be a failure to make a reasonable adjustment.

The EAT added that the employer’s obligation to make a reasonable adjustment by transferring Mr Jelic to a civilian support job arose before he retired on the grounds of ill-health. It was wrong to suggest that the obligation no longer existed once Mr Jelic’s employment as a police officer was terminated.

The fact that Mr Jelic was receiving an ill-health pension in respect of his employment as a police officer – did not prevent the tribunal from considering whether his re-employment as a civilian support worker was a reasonable adjustment.

Also see Re-hiring a Disabled Person.

Age Discrimination

In Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419, West Yorkshire Police introduced a requirement that a legal advisor must have a law degree in order to enter the highest pay grade. Mr Homer, aged 61, was unable to obtain a law degree before he retired. Mr Homer claimed that the requirement amounted to unlawful indirect age discrimination.

The Court of Appeal disagreed.

The requirement to have a law degree in order to enter the highest pay grade did not put older employees at a particular disadvantage when compared with younger employees. The disadvantage suffered by Mr Homer was a consequence of his impending retirement and not a consequence of his age.

ECJ Case: Part-time Workers Discrimination

In the Austrian case of Zentralbetriebsrat der Landeskrankenhauser Tirols v Land Tirol [C-486/08], where a full-time worker became a part-time worker – the remainder of the holidays that they had accrued during their full-time employment - would be:

• Reduced proportionately to the number of their part-time working hours or
• Taken by the worker at their part-time rate of pay

The ECJ ruled that the practice was unlawful. The pro rata principle did not apply to a part-time worker in relation to holidays that they had accrued as a full-time worker.

Fixed-term Discrimination

The ECJ ruled that it was unlawful to exclude fixed-term workers employed for up to six months or on a casual basis from certain employment rights, e.g. holidays. The exclusion was not justified by the Austrian Government.

Parental Leave

The ECJ also ruled that it was unlawful for a worker not to accrue any holidays during the year before the birth of their child if they took two years’ parental leave.

TUPE or not TUPE?

In Ward Hadaway Solicitors v Capsticks Solicitors LLP [EAT/0471/09], Ward Hadaway Solicitors (WH) was contracted to provide legal services for the Nursing & Midwifery Council (NMC) until 30 September 2007. On 1 October 2007, Capsticks Solicitors was awarded a contract to provide legal services to NMC.

WH argued that there was a “service provision change” from WH to Capsticks under TUPE. The EAT held that the tribunal was entitled to find that such a change had not taken place.

The tribunal found that nothing was transferred from WH to Capsticks on or after 1 October 2007. WH continued to work on the NMC’s cases that they had already been working on before 1 October 2007. In fact, WH was still working on some of those cases in March 2009.

There was no “service provision change” from WH to Capsticks since WH had not stopped providing legal services to the NMC on 1 October 2007.

The tribunal also found that the legal work carried out by WH was not the same legal work (or the same activity) carried out by Capsticks, e.g. most of the work previously carried out by WH was now carried out by the NMC’s own legal team.

The Equality Act 2010

The provisions of the Equality Act 2010 [EA] will come into force at different times, e.g. in October 2010; April 2011; 2012; and 2013.

The provisions of the EA 2010 that are expected to come into force in October 2010 include:

Pay Discussions

A term of employment that prevents an employee from disclosing their pay to a work colleague or a former work colleague will be unenforceable [s. 77 of the EA 2010].

Disability Discrimination

It will be unlawful for employers to ask questions about a job applicant’s health before making a job offer, except in certain circumstances [s.60 of the EA 2010].

Further information about such questions is available at: Trotman's Employment Law Alerts

Associative/Perceptive Discrimination

The defintion of direct discrimination will cover a person (e.g. a carer) who is discriminated against - because of their association with another person (e.g. a child) who has a protected characteristic (e.g. a disability) [s. 13 of the EA 2010].

The definition will also apply to discrimination that is based on an employer's perception of an employee’s protected characteristic (e.g. their sexual orientation) regardless of whether the perception is right or wrong.

Gender Reassignment

A person who proposes to undergo; is undergoing; or has undergone the gender reassignment process will no longer have to be under medical supervision in order to be protected by gender reassignment discrimination laws [s. 7 of the EA 2010].

Employment Tribunals

Employment Tribunals can make recommendations in discrimination cases for any other person and not only in relation to the claimant [s. 124(3) of the EA 2010].

Further Information

Further information about the EA 2010 and its Codes of Practice are expected to be available on the Government Equalities Office (GEO) website and the Equality and Human Rights Commission website.

The revised edition [August 2010] of the Explanatory Notes for the Equality Act 2010 can be viewed on the OPSI website.

Update [2 August 2010]

The Equality and Human Rights Commission (EHRC) has published seven guides on the Equality Act 2010 for employers. The guides will come into force on 1 October 2010.

The guides are available at the EHRC website.

Update [20 August 2010]

On 19 August 2010, the GEO published a consultation paper about the public sector equality duty. The consultation period will end on 10 November 2010. The general and specific equality duties are expected to come into force in April 2011.

The consultation paper is available at the GEO website.

Whistleblowers’ Act must be interpreted purposively

In BP plc v (1) Elstone (2) Petrotechnics Ltd [EAT/0141/09], Petrotechnics Ltd (PL) managed its client’s health and safety operations. BP plc was one of its clients. Mr Elstone, a PL worker, made a series of protected disclosures (or “blown the whistle”) to BP plc about his health and safety concerns.

PL considered the disclosures to be confidential and dismissed Mr Elstone for gross misconduct.

After his dismissal, BP plc employed Mr Elstone as a consultant. However, BP plc did not offer any more consultancy work to Mr Elstone after it discovered the reason for his dismissal.

Mr Elstone claimed that BP plc had subjected him to a detriment because he had made a protected disclosure (or “blown the whistle”).

EAT’s Decision

The EAT held that under the Public Interest Disclosure Act 1998 (also known as the Whistleblowers’ Act) - Mr Elstone was permitted to make such a claim – even though he was employed by PL and not BP plc at the time he had made the protected disclosure (or “blown the whistle”).

The Act had to be interpreted purposively in order to provide proper protection for a whistleblower.

Overlapping Disciplinary and Grievance Issues

In Samuel Smith Old Brewery (Tadcaster) v Marshall [EAT/0488/09], Mr and Mrs Marshall were pub managers. Their employer instructed them to reduce their staff working hours by about 50% for the pub's survival following a sharp decline in pub trade.

The managers refused to do so. A grievance hearing was held when they complained that the reduction would lead to an unacceptable increase to their working hours. The employer disagreed with their complaint.

After the grievance hearing, the employer instructed the managers to immediately reduce their staff working hours – with a warning that disciplinary action may be taken against them - if they failed to do so. The managers replied that they would not comply with the instruction until a grievance appeal meeting was held.

The employer responded by inviting the managers to attend a disciplinary hearing for their refusal to reduce their staff working hours. The managers replied that they would not attend such a hearing until a grievance appeal meeting was held.

The disciplinary hearing was held in the managers’ absence and they were dismissed for gross misconduct.

EAT’s Decision

The EAT held that the managers’ dismissals were fair.

An employer is not legally required to hold a grievance appeal hearing or exhaust the grievance procedure - before it could hold a disciplinary hearing - if the reason for the disciplinary action is related to the employee’s grievance.

Where an employer holds a disciplinary hearing before the grievance procedure is exhausted that does not automatically mean that the employer is acting unreasonably.

The managers had refused to reduce their staff working hours for over three months and they could have explained the reasons for their refusal at the disciplinary hearing.

The EAT also stated that the “old” ACAS Code of Practice did not require an employer to exhaust the grievance procedure before holding a disciplinary hearing.

Comment

The EAT’s statement about the “old” ACAS Code of Practice also applies to the “new” ACAS Code that came into force on 6 April 2009.

Paragraph 44 [Overlapping grievance and disciplinary cases] of the “new” ACAS Code only refers to a case where an employee raises a grievance during the disciplinary process.

Time off to Train: has the employee been working for 26 weeks?

The Employee Study and Training (Qualifying Period of Employment) Regulations 2010 [SI 2010/800] have legally confirmed that an employee’s right to time off to train or study is subject to being continuously employed for at least 26 weeks.

From 6 April 2010, the right will apply to an employee in a business employing at least 250 employees.

From 6 April 2011, the right was expected to be extended to an employee in any business. However, on 16 February 2011, the Government announced that the extension of the right to an employee in any business would be delayed.

Note: an employee may be continuously employed for 26 weeks or more even though a contract did not exist during a part of that period (e.g. there was a temporary cessation of work).

Also see Time off to Train: do you employ at least 250 employees? and New right for Time off to Train comes into force on 6 April 2010.

New Guide on Vetting and Barring Scheme

Today, the Government published a guide for employers about the vetting and barring scheme.

The guide is available on the Business Link website.

Source: Home Office.

Dismissal Based on Police Warning was Fair

In A v B [EAT/0206/09], an employee was dismissed on the basis of a police warning that they posed a risk to children even though they had been acquitted of sexually abusing children in Cambodia and did not work with children. The EAT held that the employee was fairly dismissed to avoid the risk of serious damage to the employer’s reputation.

The EAT said that where an employer has received a warning about an employee from the police (or a similar body), it must:

1. Adopt a critical approach towards the warning to determine whether it is reliable.
2. Consider whether the warning is a sufficient reason to dismiss the employee.

Can the Employer Rely on the Warning?

The employer must adopt a critical approach towards the police warning to determine whether it is reliable. The employer may be in a position - either from its own knowledge or from information obtained from the employee - to question the police about the reliability of its warning. The employer should also seek a credible reassurance from the police that its warning has taken all of the relevant factors into account.

However, an employer could not be expected to carry out its own investigation in order to test the reliability of the police warning. It was unlikely that the employer would have the resources or expertise to do so.

The tribunal was entitled to find that the employer had adopted a critical approach towards the police warning. Therefore, the employer could treat the warning as being reliable.

Is the Warning a Sufficient Reason to Dismiss the Employee?

The police warning must provide the employer with a sufficient reason to dismiss the employee.

In this case, the employer was a public body with child-protection responsibilities. The employee’s job involved travelling to other countries. The police was concerned that the employee would sexually abuse children while he was working abroad.

The employer had been officially warned by the police that the employee posed a risk to children – if he was subsequently found to be such a risk – it would seriously damage the employer’s reputation. The damage would be more serious if it was revealed that the employer had been warned about the employee but the employer did nothing about it.

Therefore, the employer had a sufficient reason to dismiss the employee to avoid the risk of serious damage to its reputation.

The EAT expressed its concern that an employee who was dismissed on the basis of a police warning may suffer an injustice [see paras. 48 and 49].

Penalty of £10,000 for Breaching Information and Consultation laws

In Darnton v Bournemouth University [EAT/0391/09], the EAT held that the Central Arbitration Committee was entitled to impose a penalty of £10,000 on Bournemouth University for its failure to arrange the election of information and consultation representatives. The University did not have a reasonable excuse for failing to arrange such an election and the amount of the penalty was appropriate.

Also see Government's statement about information and consultation agreements may be wrong.

Blacklisting of Trade Union Members

From 2 March 2010, the Employment Relations Act 1999 (Blacklists) Regulations 2010 [SI 2010/493] will outlaw the blacklisting of workers for their trade union membership or activities.

It will be unlawful for an employer to dismiss or not employ a worker because they appear on a blacklist.

The Government's guide entitled "The Blacklisting of Trade Unionists" is available on the Deparment for Business, Innovation & Skills website.

Should I stay or should I go?

In Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal held that:

1. The test for determining whether an employer has committed a fundamental breach of the contract of employment is an objective test and not a “range of reasonable responses” test: Western Excavating v Sharp [1978] ICR 221.

2. Once an employer has committed such a breach – it cannot cure the breach while the employee is considering whether to treat it as a constructive dismissal. The employer can only try to persuade the employee to affirm the contract.

Newspaper boy was not an employee

In Bebbington v Palmer (t/a Sturry News) [EAT/0371/09], the tribunal found that a newspaper boy was not obliged to deliver newspapers and the newsagent was not obliged to provide him with such work. Therefore, he was a casual worker and not an employee.

The employment of a child in accordance with s. 18 of the Children and Young Persons Act 1933 does not automatically mean that they are an employee.

New guide about “fit notes”

Today, the Government published a guide for employers about “fit notes”.

The guide is available on the Department for Work and Pensions (DWP) website.

Source: DWP.

Also see New "fit note" will come into force on 6 April 2010.

Time off to Train: do you employ at least 250 employees?

It has been legally confirmed that, from 6 April 2010, the “time to train” right will apply to an employee in a business employing at least 250 employees: Sch. 3 of the Apprenticeships, Skills, Children and Learning Act 2009 (Commencement No. 2 and Transitional and Savings Provisions) Order 2010 [SI 2010/303].

From 6 April 2011, the right was expected to be extended to an employee in any business: Sch. 6 of the Order.  However, on 16 February 2011, the Government announced that the extension of the right to an employee in any business would be delayed.

Calculating the Number of Employees

The employer must calculate its average number of employees over the previous 12 months to determine whether its employees are entitled to the “time to train” right.
The average number of employees is calculated by:

• Determining the number of employees employed in each month over the previous 12 months (whether they were employed throughout the month or not);
• Adding together those monthly figures; and
• Dividing the number by 12.

If the employer has been in existence for less than 12 months (e.g. 9 months), the average number of employees is calculated by:

• Determining the number of employees employed in each month over the previous 9 months (whether they were employed throughout the month or not);
• Adding together those monthly figures; and
• Dividing the number by 9 (i.e. the number of months that the employer has been in existence).

Also see New right for Time off to Train comes into force on 6 April 2010 and Time off to Train: has the employee been working for 26 weeks?

Hirer is not liable for the discriminatory act of an agency worker

In May & Baker Ltd (t/a Sanofi-Aventis Pharma) v Okerago [EAT/0278/09], the EAT held that a hirer was not liable for a racist remark made by an agency worker. For example, the tribunal was not entitled to rule that the hirer was liable for the remark under s. 32 of the Race Relations Act 1976 (RRA) because the agency worker was “treated as an employee on a day-to-day basis and acted as one”. The tribunal did not establish any facts which permitted it to reach such a conclusion.

Aiding Another Person to Discriminate

Section 33 of the RRA 1976 provides that it is unlawful for a person (e.g. an employer) to knowingly aid another person (e.g. a worker) to commit an act of racial discrimination.

The EAT said that in order to knowingly aid the commitment of such an act – the employer must aid the worker to commit the act before or at the time it was committed.

Therefore, an employer’s behaviour after the discriminatory act has taken place did not amount to knowingly aiding a worker to commit such an act, e.g:

• Failing to investigate a complaint about a racist act committed by the worker.
• Allowing an environment to continue where a racist act could take place. Such an environment did not mean that the employer had collaborated with the worker to commit such an act: Anyanwu v South Bank Students' Union and South Bank University [2001] UKHL 14.

Constructive dismissal claims after a TUPE transfer

Where an employee resigned before a TUPE transfer had taken place, they could not pursue a constructive dismissal claim against the transferee if the transfer was not being contemplated at the time of their resignation: KLT Water Engineering Ltd v Irvine [EATS/0005/09].

[Source: Trotman's Employment Law Alerts dated 15 January 2010]

Dress code did not discriminate against Christians

In Eweida v British Airways plc [2010] EWCA Civ 80, the Court of Appeal held that a dress code which did not permit a Christian employee to visibly wear a cross did not amount to indirect religious discrimination. The Christian faith did not mandate that a Christian must visibly wear a cross, and therefore, the dress code did not put Christians at a disadvantage when compared with other persons.

Ms Eweida had made a personal choice to visibly wear a cross but there was no religious requirement for her to do so.

On 1 February 2007, British Airways changed its dress code to allow its employees to visibly wear faith symbols.

Changing the terms of employment without agreement

In Bateman v ASDA Stores Ltd [EAT/0221/09], ASDA’s staff handbook contained incorporated terms of its employees’ pay and conditions of employment.

The EAT upheld the tribunal’s decision that the staff handbook allowed ASDA to impose a new pay structure on some of its employees without their agreement.

The staff handbook stated that:

“The Company reserves the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business and to comply with new legislation.”

The tribunal accepted that ASDA had imposed the new pay structure on the employees due to its changing business needs. The tribunal added that ASDA did not act capriciously; arbitrarily; or in any way which breached the employee’s trust and confidence, e.g. the employees were consulted and given several months’ notice of the new pay structure.

Council must justify productivity bonus

The reason for a productivity bonus not being paid to a predominantly female work group (i.e. carers) - but being paid to predominantly male work groups (e.g. street cleaners) was not directly based on sex - since the bonus could not be applied to a carer’s work (e.g. a carer’s work did not involve a series of repetitive tasks which could be measured or counted): Gibson v Sheffield City Council [EAT/0303/08].

However, the Court of Appeal held that the bonus scheme indirectly discriminated against the carers on the grounds of their sex. The scheme put the Council’s female employees at a disadvantage when compared with male employees, and therefore, the Council had to justify the scheme: Gibson v Sheffield City Council [2010] EWCA Civ 63.

The case was remitted to the tribunal to provide the Council with an opportunity to justify the bonus scheme.