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.

Dismissal of diabetic employee for viewing pornographic images was unfair

In City of Edinburgh Council v Dickson [EATS/0038/09], Mr Dickson, a diabetic, was employed at the community wing of a school. Visitors to the community wing saw Mr Dickson using the school’s computer to view pornographic images. The Council took disciplinary action against Mr Dickson.

Unfair Dismissal

At the disciplinary hearing, Mr Dickson explained that his behaviour was a result of his diabetic condition. He had suffered from a hypoglycaemic episode during the incident because he could not remember it. The Council rejected his explanation and dismissed him.

The EAT held that the tribunal was entitled to find that Mr Dickson’s dismissal was unfair.
The Council had failed to make a genuine attempt to investigate or understand Mr Dickson’s explanation for his behaviour. Although it was understandable that the Council may have been sceptical about the explanation – it had rejected the explanation without any proper grounds for doing so.

A note from the Council’s doctor stated that Mr Dickson’s explanation could be a reason for his behaviour. The note should have alerted the Council that the explanation deserved serious consideration.

Disability Discrimination

The EAT held although Mr Dickson’s explanation which the Council rejected was based or related to his disability – the Council had not unlawfully discriminated against him on the grounds of his disability.

Also see Dismissal of employee for distributing pornography did not breach their right to freedom of expression. 

Uninterested job applicant cannot make a discrimination claim

In Keane v Investigo [EAT/0389/09], Ms Keane was an experienced accountant aged 50, who unsuccessfully applied for jobs aimed at accounting graduates. Ms Keane claimed that she was not invited to any interviews for those jobs because of her age.

The EAT dismissed the claim and upheld the tribunal’s order for her to pay the employer’s costs.

The EAT said that the tribunal was entitled to find that Ms Keane was a litigious job applicant who made money from tribunal claims. Ms Keane had not suffered from any disadvantage or detriment as a result of her unsuccessful job applications because she had no genuine interest in the jobs. Therefore, she was not a victim of unlawful age discrimination.

An unsuccessful job applicant must have a genuine interest in the job in order for them to suffer from a disadvantage [see para. 22].

New right for Time off to Train comes into force on 6 April 2010

From 6 April 2010, an employee in a business employing at least 250 employees will have the statutory right to request time off to train or study.

Statutory Procedure

An employer must follow the statutory procedure for dealing with such a request, e.g. the employer must hold a meeting to discuss the request within 28 days after the date on which the request was received.

The maximum compensatory award for an employer’s failure to comply with the statutory procedure (e.g. it did not hold a meeting to discuss a request) is eight weeks’ pay.

The statutory procedure for dealing with a request for time off to train or study is set out in the Employee Study and Training (Procedural Requirements) Regulations 2010[SI 2010/155].

The procedure is similar to the statutory procedure for dealing with a flexible working request

Form of the Request

The Employee Study and Training (Eligibility, Complaints and Remedies) Regulations 2010 [SI 2010/156] set out the mandatory form of a request, e.g. the request for time off to train or study must be written and dated.