30 March 2011

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.

24 March 2011

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].

23 March 2011

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].

22 March 2011

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].

18 March 2011

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

17 March 2011

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.

15 March 2011

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.]

9 March 2011

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.

8 March 2011

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