27 February 2012

Changes to tribunal procedures from 6 April 2012

The following changes will apply to an employment tribunal claim that is made on or after 6 April 2012: Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2012 [SI 2012/468].

  • A witness statement will be taken as read unless the tribunal directs otherwise.
  • A costs order can include a payment for the expenses of a tribunal witness
  • The maximum amount of costs for a vexatious tribunal claim will rise from £10,000 to £20,000
  • The maximum amount of a deposit for an unmerited tribunal claim will rise from £500 to £1,000

17 February 2012

No TUPE transfer: dayshift employees were not dedicated to the client

Eddie Stobart Ltd (ES) stored and delivered meat products for its clients, Forza and Vion. Forza and Vion were meat suppliers and supplied meat products to retailers (e.g. ASDA). The retailers would place their orders for meat products at different times for next-day delivery. As a result of this, the nightshift employees at the ES depot (in Manton Wood) mainly worked on tasks required by the Forza contract; and the dayshift employees mainly worked on tasks required by the Vion contract.

FJG Logistics Ltd (FJG) won the Vion contract. The dayshift employees claimed that they had been TUPE transferred to FJG – since they were an organised group of employees whose principal purpose was to work on the Vion contract.

The EAT disagreed. The dayshift employees were not organised by reference to the requirements of the Vion contract (e.g. they were not organised as the Vion team). The dayshift employees mainly worked on the Vion contract - because Vion's work had to be done during the dayshift - in order to deliver the meat products ordered by Vion's customers.

Eddie Stobart Ltd v FJG Logistics Ltd [EAT/0223/11]

10 February 2012

Age discrimination: “cheapest employee” criterion was lawful

In HM Land Registry v Benson [EAT/0197/11], HM Land Registry (HMLR) asked its employees to apply for voluntary redundancy (VR) or early retirement (ER). The VR/ER scheme had a budget of £12 m. HMLR selected the “cheapest employees” (subject to the retention of necessary skills and a proper balance between staff grades) - in order to maximise the number of staff reductions. The “cheapest employees” were the employees who would receive the lowest amounts of redundancy pay.

Five employees who were aged over 50 years unsuccessfully applied for ER. HMLR considered them to be “expensive employees” because they would have received an immediate unreduced pension. The employees claimed that the use of the “cheapest employee” criterion was unlawful indirect age discrimination. The tribunal upheld their claim.

However, the EAT disagreed. The “cheapest employee” criterion was a proportionate means of reducing HMLR’s staff within the budget of £12 m. Therefore, the discrimination was lawful because it had been justified by HMLR. The tribunal had found that HMLR did not have any other alternative to using the "cheapest employee" criterion.

HMLR was not required to show that it had to reduce its staff within a budget of £12 m – because it had no more money - in order to justify the discrimination. However, the EAT warned that whether a “cheapest employee” criterion (or a similar criterion) could be justified will depend on the facts and circumstances of each case.

Indirect sex discrimination

The EAT found that HMLR’s failure to notify a female employee on a career break - that she would have to return to work in order to apply for VR – was unlawful indirect sex discrimination.

Comment

In Woodcock v Cumbria Primary Care Trust, the EAT expressed doubt as to whether para. 72 of Cross v British Airways correctly stated that discrimination could not be justified “solely on considerations of cost”.