29 November 2010

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.

24 November 2010

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

12 November 2010

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”.

11 November 2010

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.

9 November 2010

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.

2 November 2010

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.