Opt-out agreements

In Arriva London South Ltd v Nicolaou [EAT/0293/11], Mr Nicolaou was a bus driver who worked an average of 38 hours per week. His employer introduced a policy that it would not offer any overtime to a bus driver unless they signed an opt-out agreement.

Mr Nicolaou claimed that he had been subjected to a detriment because he had not signed an opt-out agreement. The EAT disagreed.

The reason why Mr Nicolaou was not offered any overtime was in order to implement a policy. The policy complied with reg. 4(2) of the Working Time Regulations (WTR) – because it was a reasonable step to ensure - that Mr Nicolaou did not work more than an average of 48 hours per week.

Comment

Was a blanket ban on overtime a reasonable step under reg. 4(2) of the WTR? Mr Nicolaou worked an average of 38 hours per week. Therefore, the employer could have complied with reg. 4(2) of the WTR by allowing Mr Nicolaou to work an average of 10 overtime hours per week.

Tribunal awards will increase from 1 February 2012

From 1 February 2012, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2011.

The main increases are:

• The maximum amount of a week’s pay will increase from £400 to £430.
• The maximum compensatory award for unfair dismissal will increase from £68,400 to £72,300.

• The daily limit on a guarantee payment will increase from £22.20 to £23.50.

What can a worker claim for a breach of a contractual disciplinary procedure?

The Supreme Court has ruled that a worker cannot claim damages for their employer’s failure to follow a contractual disciplinary procedure [CDP] – if the worker's loss was a result of their dismissal.

However, a worker can make such a claim - if their loss was a result of their employer’s conduct before the dismissal – and the conduct did not form a part of the dismissal process.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust & Botham v Ministry of Defence [2011] UKSC 58

Comment

Although a breach of contract claim in relation to a CDP will only succeed if the claim falls outside of the "Johnson exclusion area" [see para. 50] - a disciplinary procedure should clearly state that it is non-contractual – in order to avoid such claims.

TUPE

An employee’s dismissal by an administrator was automatically unfair – because it was connected with a TUPE transfer - although the transfer had not been contemplated - or a transferee had not been identified - at the date of the dismissal.

The Court of Appeal approved the EAT’s decisions in the Harrison Bowden and Morris cases. And it disapproved the EAT’s decision in the Ibex case [see para. 49].

Spaceright Europe Ltd v Baillavoine [2011] EWCA Civ 1565

Statutory payment rates for 2012/13

The statutory payment rates for 2012/13 are as follows.

• The weekly rate of Statutory Sick Pay (SSP) is £85.85.

• The weekly rate of Statutory Maternity Pay (SMP) is 90% of the employee's average weekly earnings for the first six weeks - followed by the lower of 90% of average weekly earnings or £135.45 per week for the remaining weeks of the maternity pay period.
• The weekly rate of Statutory Paternity Pay (SPP), Additional Statutory Paternity Pay (ASPP) or Statutory Adoption Pay (SAP) is the lower of 90% of the employee's average weekly earnings or £135.45 per week.
• The payment of SSP, SMP, SPP, ASPP or SAP is subject to the employee's average earnings being at least £107.00 per week.

Source: Department for Work and Pensions

Offshore worker must take their holidays during a field break

Mr Russell was an offshore worker in the oil and gas industry. He was employed under a contract for the whole of each year. During the year, Mr Russell worked for 26 weeks and he would be onshore for the remaining 26 weeks. The periods that he spent onshore were known as field breaks. He would have a two-week field break after he had worked for two weeks.

During a field break, Mr Russell was free from any work-related obligations.

Mr Russell argued that he could to take his statutory holidays during a period that he was scheduled to work.

The Supreme Court disagreed. The Working Time Directive permitted an employer to ask its workers to take their holidays during a particular period, e.g. during a field break, annual shutdown or school holidays.

A pre-ordained rest period (e.g. a field break) – when a worker is free from any work-related obligations - could be counted towards their statutory holidays.

Russell v Transocean International Resources Ltd [2011] UKSC 57

Criminal Record Certificates

The Government’s response to the review of the criminal records regime is available at the Criminal Records Bureau. The Government has agreed to some of the review’s recommendations, e.g.

• A person who is under 16 years is not eligible for a criminal record certificate (CRC).
• A worker can re-use their CRC with different employers in the same sector - so they won’t need a new CRC when they take up a new role – if there’s no new relevant information.

Discrimination due to being married to a work colleague

Discrimination laws provide that it is unlawful to discriminate against a worker because they are a civil partner or married.

In Dunn v Institute of Cemetery and Crematorium Management, the EAT held that a female worker could make a discrimination claim on the grounds of being married to a particular person (e.g. a work colleague).

However, a worker cannot make a discrimination claim on the grounds of their association with a married person [see para. 45 of the case transcript and para. 3.18 of the Code of Practice].

Holidays: how long is the carry-over period for a sick worker?

In the German case of KHS AG v Schulte (C-214/10), the ECJ held that a collective agreement did not breach the Working Time Directive. The agreement provided, e.g. that a sick worker would lose their 2006 and 2007 holidays - if they did not take those holidays within 15 months - after the end of the relevant holiday year.

The ECJ said that a carry-over period for a long-term sick worker must be substantially longer than the holiday year. The carry-over period of 15 months was longer than the holiday year and it was long enough to ensure that a sick worker could take their holidays.

Also see Holidays: use it or lose it

Holidays: use it or lose it

A worker will accrue statutory holiday pay (SHP) while they are on sick leave. However, the EAT has ruled that such a worker will not receive SHP - if they did not give a holiday notice to their employer.

The EAT said that:

It might appear somewhat artificial for an employee who is not at work anyway to have to give notice of an intention that part of her absence should count as holiday; but that merely reflects the artificiality of a period of long-term sickness counting as holiday at all.

In any event the giving of notice is more than a formality. Without it the employer who is not otherwise paying the employee, or is paying him only sick pay, will not know whether, or – just as importantly – when, he is obliged to make any [holiday] payment …

The EAT added that there is no general duty on employers to inform its workers of their right to take holidays while they are on sick leave.

Fraser v Southwest London St. George’s Mental Health Trust [EAT/0456/10]

New guide on Public Sector Equality Duties

The Government Equalities Office has published a quick start guide on the Equality Act 2010 (Specific Duties) Regulations 2011.

The regulations came into force on 10 September 2011.

Employer was not entitled to withdraw its dismissal notice

In C F Capital plc v Willoughby [2011] EWCA Civ 1115, C F Capital (CFC) dismissed Ms Willoughby when it thought that she had agreed to change her employment status from an employee to a self-employed worker. However, CFC withdrew the dismissal notice after it realised that Ms Willoughby had not agreed to the change.

Ms Willoughby claimed that she had been unfairly dismissed. CFC claimed that Ms Willoughby had not been dismissed. The dismissal notice given to her was a mistake and it had been withdrawn.

The Court of Appeal held that there were no “special circumstances” which entitled CFC to withdraw its dismissal notice. CFC intended to dismiss Ms Willoughby. The dismissal notice was clear and unambiguous; and it had terminated Ms Willoughby’s employment.

Although the dismissal notice given to Ms Willoughby was a mistake – the mistake was not based on a misunderstanding that she had agreed to be dismissed.

Pay protection for trainee doctors

A part-time doctor who moved to a full-time training post in a lower grade was not entitled to protected pay at the full-time equivalent of her previous pay: Barts and The London NHS Trust v Verma [2011] EWCA Civ 1129.

National Minimum Wage

The National Minimum Wage (Amendment) Regulations 2011 have confirmed that the national minimum wage (NMW) will increase from 1 October 2011. For example, the NMW will increase from £5.93 to £6.08 per hour for workers aged 21 or over.

From 1 October 2011, living accommodation that is provided by a higher or further education institution for their full-time students will not count towards the NMW if the student works part-time for the institution: NMW (Amendment) (No. 2) Regulations 2011.

What allowances should be included in a pilot’s holiday pay?

The ECJ has ruled that a pilot’s holiday pay should include an allowance (e.g. a flying time allowance) that is intrinsically linked to the performance of the pilot’s job duties [see para. 24].

However, the law did not require the pilot’s holiday pay to include an allowance (e.g. a time away from base allowance) that is intended to cover ancillary expenses arising from the performance of the pilot’s job duties [see para 25].

Williams v British Airways plc [C-155/10]

Employer lawfully changed the terms of the contract

In Slade v TNT (UK) Ltd [EAT/0113/11], TNT carried out a cost cutting exercise in response to its declining profits. As a part of the exercise, TNT offered to pay “buy out” money to its employees if they agreed to the withdrawal of a bonus scheme. But TNT was unable to obtain the employees' agreement after it had consulted and negotiated with them.

TNT dismissed its employees and offered new contracts to them - after it had warned them that it would do so - if they did not accept its final offer. The employees were not entitled to a bonus under the new contracts.

The EAT held that the dismissals were fair – even though the new contracts were not accompanied with the “buy out” money - that TNT had initially offered to pay to its employees [see paras 38 and 39].

The Equality Act 2010 (Specific Duties) Regulations 2011

The Equality Act 2010 (Specific Duties) Regulations 2011 came into force on 10 September 2011.

Under reg. 3, certain public authorities must publish one or more specific and measurable equality objectives by 6 April 2012. They must continue to publish such objectives within four years after the date of the last publication.

Supplementary guide on Agency Workers Regulations

The Department for Education (DfE) has published a supplementary guide for agency workers who are supply teachers.

The guide is available at the DfE website.

Avoiding liability for a discriminatory act

An employer will avoid liability for a discriminatory act if it took reasonable steps to prevent the act - before the act was committed by a worker.

But the employer will be liable for a discriminatory act - if it took those steps - after the act had been committed by a worker: Fox v Ocean City Recruitment Ltd [EAT/0035/11].

Further information about how an employer can avoid liability for a discriminatory act can be found in paragraphs 10.50 – 10.52 of the Equality Act 2010: Employment Statutory Code of Practice.

Tribunal had no jurisdiction to hear discrimination claim

Mr Martin was employed by Waltham Forest (WF). He also lived in WF. WF prosecuted Mr Martin for making fraudulent claims for housing benefit and council tax benefit.

Mr Martin claimed that WF’s decision to prosecute him (instead of imposing an administrative penalty on him) amounted to unlawful racial discrimination.

The EAT held that WF’s decision to prosecute Mr Martin (instead of imposing an administrative penalty on him) was not an act of discrimination in the employment field. Therefore, the tribunal had no jurisdiction to hear Mr Martin’s claim.

London Borough of Waltham Forest v Martin [EAT/0069/11]

Supreme Court refers TUPE case to the ECJ

In the case of Alemo-Herron v Parkwood Leisure Ltd [2010] EWCA Civ 24, the Court of Appeal held that a private-sector transferee is not legally obliged to comply with any changes (e.g. a pay increase) made to the terms of employees transferred from the public sector - if those changes were agreed by a public-sector negotiating body - after the TUPE transfer had taken place.

The Supreme Court has decided that the case should be referred to the ECJ: Parkwood Leisure Ltd v Alemo-Herron [2011] UKSC 26.

Indirect religious discrimination was justified

In Cherfi v G4S Security Services Ltd [EAT/0379/10], G4S Security Services Ltd (G4S) had a contract to provide security services for Land Securities Trillium (LST).  The contract stated that a certain number of security guards must be on a work site for a certain number of hours each day. As a result of this, G4S required that all of its security guards must stay at their work sites during their lunch breaks.

Mr Cherfi was a Muslim. G4S did not allow him to leave his work site to attend Friday lunchtime prayers at a local mosque. Mr Cherfi claimed that the requirement for him to stay at his work site on Friday lunchtimes was unlawful indirect religious discrimination.

The EAT disagreed. The requirement for Mr Cherfi to stay at work on Friday lunchtimes was a proportionate means of achieving G4S operational needs – in order to comply with the LTS contract. G4S could incur financial penalties if it did not comply with the LTS contract or lose the LTS contract if a certain number of security guards were not at a work site.

G4S had considered changing Mr Cherfi’s working days so that he could attend Friday prayers - it had proposed that Mr Cherfi could work on Saturday or Sunday instead of Friday – but he did not want to work on those days.

Consultation paper on flexible parental leave

The Government has published a consultation paper about flexible parental leave. The consultation period will end on 8 August 2011.

The Government’s proposals set out in the consultation paper include:

Flexible parental leave: replacing additional paternity leave with flexible parental leave

Flexible working: extending the right to request flexible working to any employee who has been employed for 26 weeks.

Equal pay: a tribunal may order the employer to conduct a pay audit where an equal pay claim has been successful.

Working time regulations (WTR): amending the WTR so that annual leave can be carried over to the next leave year.

The consultation paper is available on the BIS website.

New guide on Agency Workers Regulations

A new guide on the Agency Workers Regulations is available at the BIS website.

Equality Act: new guide on the definition of a disability

A new guide on the definition of a disability will come into force on 1 May 2011: The Equality Act 2010 (Guidance on the Definition of Disability) Appointed Day Order 2011 [SI 2011/1195].

It is expected that the new guide will be available at the Equality and Human Rights Commission.

NMW increases from 1 October 2011

From 1 October 2011, the national minimum wage (NMW) will increase from:

• £5.93 to £6.08 per hour for workers aged 21 or over.
• £4.92 to £4.98 per hour for 18 – 20 year olds
• £3.64 to £3.68 per hour for 16 – 17 year olds
• £2.50 to £2.60 per hour for apprentices who are under 19 years old, or who are over 19 years old but in the first year of their apprenticeship.

From 1 October 2011, the maximum amount for living accommodation that can count towards the NMW will increase from £4.61 to £4.73 per day.

Source: Department for Business, Innovation and Skills.

Protection for women on maternity leave must be proportionate

In Eversheds Legal Services Ltd v De Belin [EAT/0444/10], one of the redundancy selection criteria was known as “lock up”. Lock up is the length of time between an employee starting a piece of work for a client and receiving payment for the work.

The minimum lock up score was 0.5 points. The maximum lock up score was 2 points.

Mr De Belin and Ms Reinholz were in the redundancy selection pool. Mr De Belin was awarded a lock up score of 0.5 points. However, a current lock up score could not be awarded to Ms Reinholz because she was on maternity leave. As a result of this, she was awarded a notional score of two points.

The overall redundancy scores for Mr De Belin and Ms Reinholz were 27 and 27.5 points respectively. Since Mr De Belin had the lower overall score – he was made redundant.

Mr De Belin argued that if Ms Reinholz had not been awarded the maximum lock up score – there would have been a tie - or she would have a lower overall score than him. Mr De Belin suggested alternative scoring methods, e.g. awarding an actual lock up score to Ms Reinholz that was based on the last period at which she was at work.

The employer replied that it did not want Ms Reinholz to lose out due to her maternity absence and risk a sex discrimination claim from her.

Mr De Belin claimed that he was a victim of unlawful sex discrimination and unfair dismissal. The EAT agreed.

Read more »

Draft guidance on Agency Workers Regulations

Draft guidance on the Agency Workers Regulations 2010 is available at the Department for Business Innovation & Skills (BIS).

Comments about the guidance should be submitted to the BIS by 15 April 2011.

Repeal of flexible working laws

It has been confirmed that the right to request flexible working - will not be extended to a parent of any child under the age of 18: Flexible Working (Eligibility,Complaints & Remedies) (Amendment) (Revocation) Regulations 2011 [SI 2011/989].

The right will continue to apply to a parent of a child under the age of 17 or a disabled child under the age of 18.  A disabled child is a child who is entitled to a disability living allowance.

Use of successive fixed-term contracts was justified

In Duncombe v Secretary of State for Children, Schools & Families [2011] UKSC 14, the Department for Children, Schools & Families (DCSF) employed Mr Duncombe as a teacher. He was seconded to a European School in Germany under a series of fixed-term contracts for nine years.

The European School’s Internal Regulations provided that the maximum period of a teacher’s secondment was nine years. This was known as the nine-year rule.

Under reg. 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, Mr Duncombe claimed that his fixed-contract should become a permanent contract - since he had been employed under a series of fixed-term contracts for at least four years - and the DCSF could not justify his fixed-term employment.

The Supreme Court disagreed.

The Supreme Court held that Mr Duncombe’s employment under a series of fixed-term contracts had been justified by the nine-year rule - and therefore - his fixed-term contract had not been converted into a permanent contract.

Mr Duncombe was employed to do a particular job which could only last for nine years.

His complaint was about the nine-year rule itself – rather than the use of successive fixed-term contracts during the nine-year period.

Also see paras. 23 – 26 of the case transcript.

Guidance on the Bribery Act 2010

Guidance on the Bribery Act 2010 is available at the Ministry of Justice.

New codes of practice on the Equality Act

The following new Codes of Practice on the Equality Act will come into force on 6 April 2011.

• Equal Pay: Statutory Code of Practice

• Employment: Statutory Code of Practice

Source: The Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011 [SI 2011/857].

Time off to train

It has been confirmed that the right to request time off to train - will not be extended to an employee in a business with fewer than 250 employees – from 6 April 2011: The Apprenticeships, Skills, Children and Learning Act 2009 (Commencement No. 2 and Transitional and Saving Provisions) Order 2010 (Amendment) Order 2011 [SI 2011/882].

2011 Budget

The publication entitled The Plan for Growth: March 2011 – states that the Government will:

TUPE Transfers: Encourage public sector organisations to disclose their TUPE related liabilities at an early stage in the tendering process [para. 2.121].

As a general rule - the transferor should disclosure “employee liability information” to the transferee - at least 14 days before the transfer [reg. 11(6) of the TUPER 2006].

Discrimination: Abolish third-party harassment laws and not introduce dual discrimination laws [page 7].

[When the Labour Government implemented third-party sexual harassment laws on 6 April 2008 – it acknowledged that there is no express provision about such harassment in the Equal Treatment Directive.]

 
National Minimum Wage (NMW): Invite the Low Pay Commission (LPC) to implement a better way of informing employers about changes to the NMW. For example, the LPC may suggest rises to the NMW for two years [page 111].

Bribery Act 2010: Publish guidance about the Bribery Act 2010 for the professional and business services sector [page 109].

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

In Mahood v Irish Centre Housing Ltd [EAT/0228/10], the EAT held that a hirer is only liable for an act of racial or religious harassment committed by an agency worker if:

• They have become an employee of the hirer, or
• They acted as the hirer's agent when the act of harassment was committed.

Comment

The Mahood case arose before the Equality Act 2010 [EA] came into force.

Under the EA 2010, an employee may argue that their employer is liable for an act of racial or religious harassment - committed by an agency worker - because the agency worker is a third-party.

An employer will be liable for third-party harassment if it knows that an employee has been harassed by a third-party on two previous occasions - but it failed to take reasonable steps to protect the employee from further harassment – e.g. displaying notices about third-party harassment at the workplace.

The employer will be liable for the third-party harassment if the employee has been harassed by the same or a different third-party on each occasion.

Working Abroad

Where a HGV driver works in more than one EU country – the law of the country in which they perform most of their work – will be applied to a dispute about their employment rights: Koelzsch v Luxembourg [C-29/10].

Time off to train will not apply to small businesses

The right to request time off to train - will not be extended to an employee in a business with fewer than 250 employees – from 6 April 2011.

Flexible Working

From 6 April 2011, the right to request flexible working will not be extended to a parent of any child under the age of 18.

The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2010 [SI2010/2991] will be repealed.

Source: BIS press release

Private hire driver was not an employee

In Knight v BCCP Ltd[EAT/0413/10], Mr Knight was a licensed private hire driver – who was employed by BCCP Ltd from 1 September 2008 until 14 October 2008. His employment was terminated without notice.

Mr Knight claimed that he was entitled to one week’s statutory notice. The EAT disagreed.

Mr Knight was not an employee of BCCP Ltd - and therefore - he was not entitled to one week’s statutory notice. Mr Knight was not an employee of BCCP Ltd – because he was not obliged to work for BCCP Ltd - and BCCP Ltd was not obliged to provide work for him.

No formal warning for previous misconduct led to unfair dismissal

In Fuller v London Borough of Brent [2011] EWCA Civ 267, Mrs Fuller was employed as an administrator at a special needs school. There were two incidents where she made comments about the treatment of disruptive students whom members of staff were trying to restrain.  The incidents occurred on 22 May 2007 and 19 October 2007.

During the first incident, the head teacher verbally warned Mrs Fuller that she should not interfere with the discipline or restraint of any student. Mrs Fuller was dismissed for her interference during both incidents - even though she did not receive a formal disciplinary warning for the first incident.

The majority of the Court of Appeal held that the tribunal was entitled to find that Mrs Fuller’s dismissal was unfair.  [Lord Justice Moore-Bick (dissenting) said that the case should be remitted to a fresh tribunal.]

Incorrect application of absence policy led to unfair dismissal

In Sakharkar v Northern Foods Grocery Group Ltd [EAT/0442/10], the employer’s absence policy had four stages. A hearing took place at each stage.

A second; third; or fourth hearing was triggered - if an employee had attained a certain level of absences – during the 12 months after the preceding hearing.

At the third stage hearing, Mr Sakharkar was given a final warning. However, the level of Mr Sakharkar’s absences – during the 12 months after the second stage hearing – did not qualify him for the warning. Mr Sakharkar and his employer were unaware of the error.

The invalid final warning and further absences by Mr Sakharkar led to his dismissal at the fourth stage hearing. He claimed that his dismissal was unfair.

Read more »

Workers based in Europe can make tribunal claims

In Ministry of Defence v Wallis [2011] EWCA Civ 231, Mrs Wallis’ husband was a member of the Armed Forces (AF) and he was assigned to NATO’s headquarters in Belgium. During the assignment, Mrs Wallis was employed as a library assistant at a school attached to the headquarters. The school dismissed Mrs Wallis when her husband left the AF (but he continued to work for NATO as a civilian).

The Court of Appeal held that Mrs Wallis could make:

• An unfair dismissal claim in Great Britain (GB) because her employment in Belgium was strongly connected to GB.
• A sex discrimination claim in GB because the territorial limitation imposed by s. 6 (1) of the SDA 1975 had to be interpreted in the light of her direct enforceable rights under the Equal Treatment Directive.

Also see Cabin crew based in Hong Kong can make discrimination claims

Cabin crew based in Hong Kong can make discrimination claims

In British Airways plc v Mak [2011] EWCA Civ 184, the Court of Appeal held that cabin crew based in Hong Kong – who flew to and trained in London – worked partly at an establishment in Great Britain. Therefore, the cabin crew were entitled to make race and age discrimination claims at an employment tribunal.

Also see Workers based in Europe can make tribunal claims

Nurse was unfairly dismissed for making a lewd comment

In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, Ms Bowater, a senior nurse, was helping her work colleagues to restrain a patient who was lying down on a bed. She sat astride on the patient’s ankles because she could not hold his ankles. The patient kicked Ms Bowater in her groin and lifted her so that she landed astride on his naked genitals.

While Ms Bowater sat astride on the patient’s naked genitals – she said: “It’s been a few months since I have been in this position with a man underneath me”.

Ms Bowater was dismissed for making a lewd comment.

The Court of Appeal held that Ms Bowater’s dismissal was unfair. Her dismissal was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case [see paras.12 and 13].

What did the employer know at the disciplinary hearing?

In Orr v Milton Keynes Council [2011] EWCA Civ 62, the employee’s misconduct was provoked by his manager. The Court of Appeal held that the employee’s dismissal was fair - even though the manager did not inform the disciplinary panel – about the mitigating circumstances for the employee’s misconduct.

Comment

The practical implications of the Orr case appear to be very limited because an employee would usually state the mitigating circumstances for their misconduct at a disciplinary hearing. Mr Orr did not attend the disciplinary hearing.

Consultation paper on workplace disputes

The Government has published a consultation paper about resolving workplace disputes. The consultation period will end on 20 April 2011.

The Government’s proposals set out in the consultation paper include:

Unfair dismissal: increasing the qualifying period for unfair dismissal from one year to two years.

Out of court settlements: such a settlement will be “paid in” to the tribunal if it is rejected by a claimant. If the tribunal makes a less favourable award to the claimant – there will be a mechanism for recognising the additional costs incurred by the employer – as a result of the tribunal hearing.

In G4S Security Services (UK) v Rondeau [EAT/0207/09], the EAT ordered Mr Rondeau to pay costs of £3,420 to the employer. Mr Rondeau had acted unreasonably – when he accepted the employer’s offer at the court’s door – but did not respond to the same offer that was made to him on two previous occasions.

Read more »

New codes of practice on the Equality Act

The following new Codes of Practice on the Equality Act are expected to come into force in late February 2011.

• Equal Pay: Statutory Code of Practice

• Employment: Statutory Code of Practice

Source: EHRC's website.

Right to be accompanied at a disciplinary hearing

The right to be accompanied at a disciplinary hearing applies to a person who is a worker within the meaning of s. 13(1) of the Employment Relations Act 1999 [ERA].

In Bullock v Norfolk County Council [EAT/0230/10], the EAT found that a foster carer was not a worker within the meaning of s. 13(1) of the ERA 1999 – because the relationship between the foster carer and Norfolk County Council was not governed by a contract. Therefore, the foster carer was not entitled to be accompanied by a trade union representative at a disciplinary hearing.

TUPE transfer did not take place

In CLECE SA v Valor [C-463/09], the ECJ decided that a TUPE transfer had not taken place - where a municipal authority had “contracted in” a cleaning contract and hired new workers to clean its premises. The economic entity had not retained its identity after the transfer.

Comment

Please note that reg. 3(1)(b)(iii) [service provision change] of the TUPE regulations did not affect the ECJ's decision in the CLECE case.

Statutory maternity pay

In Wade and North Yorkshire Police v HMRC [2011] UKUT B1 (TCC), Mrs Wade took police maternity leave earlier than the 11th week before the expected week of childbirth (EWC). She notified her employer that she wanted to receive her statutory maternity pay (SMP) from the 4th week before the EWC.

The employer argued that Mrs Wade should receive her SMP from the 11th week before the EWC.

The Upper Tribunal disagreed. Mrs Wade could claim her SMP from the 4th week before the EWC. The Statutory Maternity Pay (General) Regulations 1986 allowed Mrs Wade to select the start date of the SMP period.

Government publishes NMW consultation paper

The Government has published a consultation paper about the national minimum wage - in relation to living accommodation that is provided by a higher education institution (HEI) - for a student who works part-time for the HEI.

The consultation period will end on 12 April 2011.

The consultation paper is available on the BIS website.

Disciplinary penalties for a group of employees

In University of Warwick v Gray [EAT/0508/09], the EAT held that Mr Gray’s dismissal was fair. The employer was entitled to take into account Mr Gray’s disciplinary record when it dismissed him - even though it had issued final written warnings to the other employees - who had committed the same disciplinary offence.

Comment

The Gray case provides further confirmation that an employer does not have to issue the same disciplinary penalty – to each member of a group of employees who have committed the same disciplinary offence – if they have different disciplinary records.

Also see London Borough of Harrow v Cunningham [EAT/1098/94].