employment law update toni mcalindin march 2015 to join the employment law network and receive free...

Employment Law Update Toni McAlindin March 2015 To join the Employment Law network and receive free bulletins email [email protected]

Fees numbers down and challenge b UNISON challenged application for judicial review b Argued it is unlawful to introduce fees which make it prohibitively difficult to enforce European Community law b Fees indirectly discriminate against women who typically earn less than men b In Scotland Fox and Partners lodged a petition for judicial review too. Sought an interim interdict to prevent the imposition of fees pending a full court hearing. The arguments are based on the principle of equivalence ie fees for lodging a claim in the Sheriff Court are modest (87 issue fee, 207 for a day hearing fee) b July Court of Session declined to grant an interim interdict strong prima facie case to go to full hearing. Lord Chancellor has given an undertaking to refund fees post 29 th July if the fee is held to be unlawful b Note publication of Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder factsheet which summarises the new regime b Note claim cannot proceed without a fee

Challenge result b UNISON lost challenge and will appeal to the Court of Appeal b High Court looked at impact on number of income levels and decided that although costly most people would be able to pay and were helped by the remission system b On the equivalence argument it was felt that with the ACAS early conciliation scheme and the likelihood of getting the fee back if the claimant won this was not a sustainable argument either b However it felt unable to make a decision on the discrimination aspect as it is too early to tell b Lord Chancellor will review and if there is discrimination will take action b Unison given leave to introduce new evidence ie the up-to- date tribunal figures b Of sufficient general importance as full impact of fees regime could not be anticipated at start of claim but now more obvious principle of effectiveness might be breached

Update on fees b HMCTS annual report fee income generated just under 4.5m over first 8 months (6.7m over a full year). Figures for January to March show a 58.4% decrease in the number of single claim and 67.8% drop in multiple claims b Unison challenge permission to appeal against High Court decision b Allowed amended data b Ie April to June 2014 71% drop compared to 2013 b 80% drop in sex discrimination and 26% in pregnanc70y seems to back up Unisons view of impact on females b Report by CAB demonstrates 70% of claims not taken would have been successful b Labour Party manifesto will scrap tribunal system and replace with a fairer system where affordability no barrier ? What does this mean

Clamp down on non-payers b A Government-commissioned study of claimants who were successful at tribunal between May and June 2013 noted that 16% received only part of their award and 35% received nothing b Common reason outright refusal to pay b More important now that employees have to pay up to 1200 to take a claim and more to enforce at civil courts b Government considering clamping down on employers b May require deposits, impose fixed penalty for late payment or naming and shaming b Also considering how the individual gets the award when the business has ceased trading

Update b November 2013 study demonstrated 37% non-payments were due to company insolvency, 29% were a refusal to pay, 46% of claimants were unaware that they could enforce their awards through the Fast Track scheme and through the county court b Government now proposes to name and shame non-payers provisions in Small Business, Enterprise and Employment Bill 2014 provide new financial penalties for late payment on top of the interest awarded if not made within 14 days of judgement b Propose that an enforcement officer would send defaulting employer a warning notice stating that additional penalty would be imposed unless paid by a particular date 28 days to pay b Warning notice will relate to the unpaid compensation awarded by the tribunal including re-imbursement of fees but does not include costs penalty notice if default paid to Secretary of State b Penalty 50% of original award with a minimum of 100 and maximum of 5,000 reduced by 50% if paid within 14 days b Non-payment enforcement in county courts

Second appeal b UNISON lost the second appeal despite detailed figures on the reduced number of claims b These were not enough to persuade the court that the fees violated the EU law principle of effectiveness or that they constituted unlawful discrimination b Although it appeared claimants were less willing to bring claims there was no evidence that a specific claimant had been deterred b Nor did the stats show that women, disabled or ethnic minorities were at a particular disadvantage b Anyway the fees were in pursuit of three legitimate objectives ie to transfer 1/3 of the annual cost of running tribunals to the users who benefit from it and can afford it; to make tribunals more effective and efficient by removing unmeritorious claims and to encourage alternative methods of employment dispute resolution

New legislation

Modern workplaces b Flexible working b Family friendly changes b Working time b Equal pay audits

Early conciliation via ACAS b It is compulsory for almost all tribunal claims to submit a form but not to engage in the process b Final details published for implementation 6 May 2014 b Employee fills in form with basic details (prescribed) ie name, address etc but no details of claim b Sent to ACAS Early Conciliation Support Officer will contact person to see if they want to conciliate b If so matter will be passed to experienced Conciliator b Has one month from date of receipt of form to reach a settlement can be extended b Clock stops on tribunal timescale during this period

Early conciliation b Settlement on COT3 or private agreement b If employee not contactable will assume do not want to conciliate, employer may not want to or parties may be unwilling or unable to reach a settlement b In all these cases ACAS will issue a certificate and the employee can then proceed to tribunal b Published figures first six months: 37,000 cases (1,000 multiple covering 8,000 claimants) b 3% requests from employer, 10% employees reject offer, 10% employers decline to participate; 18% resulted in a COT3. b Of those that did not 2/ did NOT progress to a tribunal

Health at work b Government response to Health at work an independent review of sickness absence b Revise fit note guidance for GPs from March 2013 to reflect fitness for work not just current job done also indicates that no need to take GP advice b Note Government guidance on the fit note which has indicated that employers need not follow a GPs advice b Can choose to take advice or within rights to gather other information about fitness from doctors or healthcare professionals b Dame Sally Davies Chief Medical Officer England 70 m working days lost to mental illness cost 70-100 billion. CIPD 43% organisations noticed rise in mental health problems.

Fit for Work service (rebranding) b Established health and work assessment and advisory service from 2014 - Advice for employers, employees and GPs. Awarded to Maximus (also Work capability assessment programme) b For absences of 4 weeks or more b Free universal jobmatch scheme for employees unable to return to current job b Appears to be voluntary originally could lose fit note (criticised by EEF should be compulsory) b Controversy as to whether it is about occupational health complaints by BMA to DWP b Maximum confirms it is not occupational health advice but a return to work service b Main referrer GP but can also be employer b Employee will be contacted and assessed promptly with a return to work plan provided quickly b Guidance for GPs and employers to be issued by DWP - estimate 36% GPs will refer

Consultation on zero hours b The consultation asks for views on b What the likelihood of employers avoiding a ban on exclusivity clauses might be and how it might be achieved; b Whether the government should do more to deal with potential voidance, how might that be best achieved and whether to do this alongside the ban or wait for evidence of whether such avoidance is taking place; b How potential avoidance could be dealt with; b Whether there should be consequences for an employer if they circumvent a ban on exclusivity clauses and if so, what those consequences should be; and b Whether there are any potentially negative or unintended consequences as a result of the wording of the legislation.

Code of conduct b The Bill and an accompanying code of conduct are expected to become law early in 2015. b However instead of a code there might be industry- led/owned sector-specific codes of practice. The content could be agreed by employers and unions but might include When it is appropriate/not appropriate to use a ZHC;When it is appropriate/not appropriate to use a ZHC; Whether and how to promote clarity eg job adverts and contracts stating the type of contract up front;Whether and how to promote clarity eg job adverts and contracts stating the type of contract up front; The rights and responsibilities of the individual and the employer and how to calculate accrued benefits such as annual leave where appropriate;The rights and responsibilities of the individual and the employer and how to calculate accrued benefits such as annual leave where appropriate; Best practice in allocating work; andBest practice in allocating work; and Recommended practice around notice of hours of work or cancellation of work.Recommended practice around notice of hours of work or cancellation of work.

Queens speech b Small Business, Enterprise and Employment Bill b Strengthen UK employment law by tackling National Minimum Wage abuses b Legislation will be changed so that employers who fail to pay NMW will face penalties of up to 20,000 per employee rather than 20,000 in total b Crack down on zero hour contracts clause 139 provides a definition b Renders any clause which tries to stop the worker working for somebody else void b Intends to stop highly paid public sector employees keeping redundancy payments when they come back to the public sector within a short period of time

Data protection issues b Consultation on revised version of CCTV Code of Practice b Guidance notes on disclosure of information under TUPE to coincide with TUPE changes in January 2014 b Have to decide whether TUPE does apply where possible release information anonymously, or remove obvious identifiers such as name b Consider whether all information in personal files is needed b Former employer may need to keep some b Changes top enforced subject access requests b Ministry of Justice has announced that enforced subject access requests will become a criminal offence from 1 st December 2014 eg where forced by someone like a prospective employer to make a subject access request and reveal the results to the employer eg criminal records b ICO intends to produce guidance of what this means for employers and individuals

Review of strike laws b The Conservative party outlined plans to tighten strike laws if it wins the 2015 election b It has drawn up new measures b Any action by unions on behalf of employees will be subject to a 50% vote threshold (at least half eligible members will be required to take part) b Unions will also be required to provide specific details about the nature of the dispute on the ballot paper including the intended time of industrial action, length and reason for taking it, which members will be required to vote on b Code of practice on picketing will become legally binding will be updated to limit how, where and why picketing can take place b Time limits after a ballot which would put an end to rolling mandates criticisms by unions and Vince Cable b Review of industrial disputes by Bruce Carr QC will not make any proposals for changes to the law concerned about politicisation of the topic in lead up to general election

Miscellaneous b Employers with less than ten employees are no longer required to inform and consult with representatives in advance of a TUPE transfer but can do so directly. This applies to transfers after 31st July 2014 where there are no existing appropriate representatives and the employer has not invited any of the affected employees to elect representatives; b ACAS has published a guide on dress code at work which includes tattoos and body piercings and religious dress; b The Reserve Forces (Payments to Employers and Partners) Regulations 2014 have been published and come into force on 1st October 2014. Small and medium employers will be able to receive up to 500 per month for each full month a reservist is absent from work; b From 1st October The Equality Act 2010 (Equal Pay Audits) Regulations 2014 come into effect providing that where an employer is found to be in breach of equal pay legislation, tribunals will order such employers to carry out equal pay audits.

Political party proposals b Conservatives New British bill of rights replace Human Rights Act 1998. UK Parliament and courts would have final sayNew British bill of rights replace Human Rights Act 1998. UK Parliament and courts would have final say Modern Slavery bill to prevent trafficking of workersModern Slavery bill to prevent trafficking of workers Scrapping exclusivity clauses in zero-hours contractsScrapping exclusivity clauses in zero-hours contracts Strike action to relate to recent ballots with minimum 50% turnoutStrike action to relate to recent ballots with minimum 50% turnout Tougher rules for public sector strikesTougher rules for public sector strikes

Political parties proposals b Labour Increase minimum wage to 8 an hour by end of next Parliament in 2020Increase minimum wage to 8 an hour by end of next Parliament in 2020 Working parents with 3 to 4 year olds to be offered breakfast at school, after school clubs and 25 hours of free childcare per weekWorking parents with 3 to 4 year olds to be offered breakfast at school, after school clubs and 25 hours of free childcare per week Scrap zero-hours contracts and give tax breaks to businesses that pay the living wageScrap zero-hours contracts and give tax breaks to businesses that pay the living wage Equal rights for the self-employedEqual rights for the self-employed Reform of tribunal fee system but no clarity on what this means ie total abolition or clarity onlyReform of tribunal fee system but no clarity on what this means ie total abolition or clarity only New legislation requiring businesses of 250 or more to publish average pay of men and women by gradeNew legislation requiring businesses of 250 or more to publish average pay of men and women by grade Public sector organisations to publish data on the social background of their employeesPublic sector organisations to publish data on the social background of their employees

Political parties proposals b Liberal Democrats Increase minimum wage for apprentices in the first year by 1 per hour. (appears to be a Coalition proposal)Increase minimum wage for apprentices in the first year by 1 per hour. (appears to be a Coalition proposal) Promote representation of ethnic minorities on company boardsPromote representation of ethnic minorities on company boards Review workers rights to determine clarity of current framework; what the options are to extend some rights and whether there is scope to streamline and simplify (appears to be Coalition ie BIS has already published); look at confusion over employment status and whether individuals entitled to SSP, holidays, maternityReview workers rights to determine clarity of current framework; what the options are to extend some rights and whether there is scope to streamline and simplify (appears to be Coalition ie BIS has already published); look at confusion over employment status and whether individuals entitled to SSP, holidays, maternity Merging work of various statutory bodies ie HSE, HM Revenue and Customs and othersMerging work of various statutory bodies ie HSE, HM Revenue and Customs and others Introduce a name-blank application form for jobseekers in the public sectorIntroduce a name-blank application form for jobseekers in the public sector

Caselaw contracts

Agreed reference in compromise agreement b Melik Camurat v Thurrock Borough Council b Allegations of inappropriate use by teacher against pupils b Final warning and compromise agreement and left b Reference to ISA which decided he should not be banned from working with children b Despite the reference referral to the police b Information contained in enhanced criminal record check b Took 5 years to have it removed b Claim of negligence, breach of contract, misrepresentation and malicious falsehood dismissed b To impose a duty of care would discourage those who in good faith provide assistance to the police on safeguarding issues

Contract variation and lack of objection b Wess v Science Museum Group b Employed as curator from 1979. b Entitled to six months notice. b 2003 sent new contract which reduced notice to 12 weeks. b Never signed the contract as requested nor did she object. b Continued to work until dismissal with lower notice. b Held impliedly consented to variation. Upheld by EAT. Intelligent, well-educated, actively involved in trade union. b Change was apparent and court believed if she did not like it she would have objected. b In general courts are cautious about finding implied variation to future change. b Here employer made clear future employment was offered on basis of an entirely new contract. b Significant period elapsed with no comment on her part. b Not just change of term but new contract.

Reference the whole truth? b AB v Chief Constable - senior police officer with 24 years service left the force to take up another job b He had been subject to disciplinary proceedings and had been long term sick b Police provided a standard reference despite being asked about sickness and disciplinary record b Deputy chief constable decided to send a further reference which included the above b Sent to AB who objected b Served police with notice under s.10 of Data Protection Act stating it would be unlawful for the police to send out the second reference because it included sensitive personal data b Police argued it had private and public law duties to inform the new employer about ABs employment history b High Court held whilst the first reference was inadequate, duty of care did not require a second reference duty to act honestly and with integrity trumped by data protection duties. Had led AB to believe a standard reference would be provided

Caselaw dismissal

Who owns LinkedIn contacts b Whitmar Publications Ltd v Gamage b Employer sought injunction to prevent ex-employees using social media contacts on LinkedIn b Gamage and other senior employees set up rival business b Whilst working for Whitmar they solicited clients and employees, removed 450 business cards with client information and after leaving refused to provide username and passwords to access the LinkedIn account. b Extracted client information from LinkedIn to invite clients to drinks reception at new venture b Court granted injunction forcing employees to give the company access to LinkedIn and restraining them from doing anything to stop the company accessing the pages. Prohibited from entering into any contractual relationship with clients. b No restrictive covenant but breach of trust and confidence.

Email and internet abuse b Meadows v East Riding of Yorkshire Council Mr Meadows managed a pensions portfolio on behalf of the council worth 200 million b Had access to the Bloomberg financial website which came with an email account b Also had work email account b Council had policies on internet and email facilities Mr Meadows had a copy b Personal internet and email use was limited to lunchtime and before or after normal hours b Anonymous referral through whistleblowing policy complaining about his consistent abuse of the internet b Suspended told not to remove documents but he did b Investigation indicated widespread abuse for personal use including spread betting and ordering goods and services b Dismissed for loss of trust and confidence. Claimed overreacti9on. b Held straightforward misconduct. Fair dismissal.

And again b Mason v CXC Advantage Ltd Ms Masons work included receiving referrals of contractors from recruitment businesses b Employee of client asked for her personal email address which she provided b On her work computer there was an email exchange where she indicated they should carry on their conversation on their personal emails b MD of client company mentioned that the emails were getting saucy between Ms Mason and clients employee b Ms Masons employer asked for copies but client refused b Employer dismissed Ms Mason for damaging relationship with client b Ms Mason produced the emails at tribunal. They were not saucy and had taken place outside of work. b Held fair dismissal employer genuinely believed that the emails were saucy and as client would not produce them had no knowledge of actual content or that they had taken place outside of working hours b Decision to dismiss was harsh but within band of reasonable responses

And again b Scarlett and another v Gloucester City Council b ICT policy set out rules and consequences for breach b Line manager concerned at level of personal internet use b Arranged covert audit of such use over one year b At end of year held meetings with staff with high use staff had not been warned before and no one had concealed their usage staff agreed to modify behaviour b Despite this disciplinary proceedings commenced evidence a previous manager had been more lax b Did not appear to be a policy on use outside of core hours but several employees said there was an informal policy most use was outside of core hours b Dismissed for loss of trust and confidence b Held council had a genuine belief in alleged misconduct but investigation inadequate should have spoken to previous manager re core hours policy b Private use not listed as gross misconduct b Unfair with 35% deduction for contribution

Facebook remarks and dismissal b Alan Blue v Food Standards Agency b Food inspector sacked after commenting that he liked a Facebook comment about his boss being attacked with a chair. b Employer regarded remarks as unprofessional and breach of trust b ET held dismissal unfair. b Exemplary employment record; no reason to believe his work would be affected in the future b Company had a social media policy but only covered workplace and these were personal remarks.

Offensive tweets b Game Retail Ltd v Laws b L was a risk and loss prevention investigator with responsibility for over 100 retail stores. b He opened a personal Twitter account in 2012 and began to follow the Twitter accounts of the stores in order to monitor their activity. b 65 stores followed his activities. b In July 2013 a manager anonymously complained of offensive and abusive tweets. b L was dismissed for gross misconduct. b ET felt dismissal was too harsh as tweets were for private use. Companys social media policy not clear about tweeting in private. b EAT disagreed. Followers were not limited to social acquaintances given that 65 stores followed him and he knew this. b Remitted to a different tribunal. b Reluctant to give general guidance on social media cases.

Covert recordings b Punjab National Bank v Gosain - Ms Gosmain attended a grievance meeting and recorded remarks made both at the meeting and during private conversations between managers during breaks b An earlier case Amwell View School Governors v Dogherty had held that private deliberations of a panel could not be used as the parties would understand that it would be private b However here the tribunal held that the situation was different and the recordings were admissible. The comments ere about issues not directly relevant to the matters being decided by the panels. b Upheld by the EAT. Balanced the need to preserve confidentiality of private deliberations and the general rule that relevant evidence is admissible

Escalating final warning to dismissal b McMillan v Airedale NHS Trust Court of Appeal had to decide whether an employer could issue a higher sanction in an appeal against a final written warning b Consultant obstetrician disciplined and given final written warning b Appealed panel upheld complaints and considered what sanction would be appropriate b She was concerned that they might issue a higher sanction so commenced legal proceedings seeking an injunction to prevent it from changing the sanction b Argued that disciplinary procedure did not allow a higher sanction b Appeal procedure did not spell out powers in relation to the sanction b Injunction granted employer appealed b Held can only increase sanction if policy/procedure allows here it did not

Disciplinary proceedings for inaccurate reference b Coventry University v Mian b Senior lecturer subjected to disciplinary proceedings for providing a reference which was blatantly untrue, misleading, gave glowing views on someone who did not deserve it and exaggerated qualifications. b It was disputed whether the signature on the reference was hers. Despite this her computer was searched and various similar versions of the reference found. She stated that she never sent any of them. b She went off sick when disciplinary proceedings started. Discipline went ahead and the allegations were dismissed. b She claimed damages for psychiatric damage caused by the universitys negligence. b Court of Appeal held proper test was whether the decision to commence disciplinary proceedings was reasonable and within the band of reasonable responses. Take account of evidence available and what WOULD have been available after a proper investigation. b Held reasonable to commence proceedings.

Caselaw discrimination

Disability

ECJ on obesity b Kaltoft v Municipality of Billund b Individual was a childminder dismissed as his obesity hindered him doing his work b Weighs 160 kilos, BNI of 54 b Class III obesity or severe, extreme or morbid obesity under WHO classification b Advocate General view obesity may amount to a disability for the purpose of the directive but only if severe b Only obesity with a body mass index of over 40 would hinder an individuals participation in professional life to such an extent as to amount to a disabilit b Appears more complex than UK version

ECJ judgement b ECJ if the obesity entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. b Obesity by itself not a disability. Origins of the disability are irrelevant. b Focus is on participation in working life. b UK terminology different ie not working life but normal day- to-day activities.

Associative disability b Hainsworth v Ministry of Defence EAT has confirmed that employers do not have a duty of reasonable adjustment where an individual has an association with a disabled person????? Whether correct b Dr H brought a disability discrimination claim arguing that her employer should have made a reasonable adjustment to facilitate her care duties for her disabled daughter (original Coleman argument at the ECJ) b Wanted a change of place of work b The EAT held that the duty of reasonable adjustment applies only where the applicant is disabled not the person they are associated with

Sickness management procedures and disability b HMRC Commissioners v Whiteley b Mrs W had worked for HMRC since 1978. She had asthma and between 2005 and 2010 she clocked up 54 days of absence, 13 due to respiratory infections. b Given a formal warning after 15 absences in a year (policy provided for warning after 10). b Claimed failure to make a reasonable adjustment. b HMRC had no medical evidence but relied on her evaluation of her condition. b Medical evidence that 6-8 viral infections was normal for someone with asthma. Condition would exacerbate what might be a common cold. b Held should attempt to analyse what absence was attributable to disability and what not. b What sort of absences would the employee reasonably be expected to have for the disability concerned

Disregarding absence triggers and reasonable adjustments b Griffiths v Secretary of State for Work and Pensions b Employee had post-viral fatigue and a high absence level b Triggered a written improvement warning under attendance policy b Level was 8 days in any rolling 12 month period although trigger could be increased if the employee was disabled b Raised a grievance arguing that she was disabled and a reasonable adjustment would be disregarding her 62 days of absence so that the warning would be removed and increasing the number of trigger days for future absence b Grievance rejected b Brought disability discrimination claim for failure to make reasonable adjustment b Tribunal held employer had not breached its duty to make reasonable adjustments

Continued b Provision, criterion or practice was the operation of the attendance policy b In order to succeed she had to show that the application of the policy put her at a substantial disadvantage compared to a non- disabled individual b Majority of tribunal thought that everyone faces the same disciplinary penalty if absence triggers the policy b So no substantial disadvantage re sanctions minority felt a disabled person would be likely to have more absence b Held even if PCP did put her at a substantial disadvantage the adjustment would not have been reasonable as it would require the employer to disregard a long period of absence and permanently put in place a buffer b EAT agreed b However had the claim been discrimination arising from a disability (where there is no non-disabled comparator) the employer would have had to address the RA issue then justify the treatment

Disability-related absence and redundancy selection b Russell v College of North West London. b Ms R was a lecturer who suffered from Menieres syndrome regarded as a disability. b She was placed at risk of redundancy. b In the pool were other disabled people. b The selection criteria included absence. b The college had consulted the union over the selection criteria. The union wanted to ignore all disability-related absences. b The college preferred to use the Bradford factor and reduced it by 50%. b The EAT held there was no indirect discrimination. There was no particular disadvantage due to disability. There was no discrimination arising from a disability as there was a legitimate aim in having the selection criteria and it was proportionate and justified as it ensured there was no adverse impact on disabled employees.

Disregarding final warning over attendance not a reasonable adjustment b General Dynamics Information Technology Ltd v Carranza. b Employee suffered from stomach adhesions which was a disability. b Substantial absence. Sickness panel hearing after 206 days in three years. b He was given a final warning. b Following this he had two further short absences due to his disability and then an unrelated three month absence. b He was dismissed and claimed disability discrimination. b Argued that a reasonable adjustment would have been to disregard the final written warning. b He argued he was placed at a particular disadvantage compared to a non-disabled person because of consideration of his past disability- related absences. b The EAT disagreed. The case does not easily lend itself to an indirect discrimination claim. It was not clear what sort of step could have been taken to avoid disadvantage. b It was more of a case of disability-related discrimination but this would have been justified as dismissal was a proportionate means of achieving the legitimate aim of consistent attendance at work.

Disability harassment b Gardner v Chief Constable of West Yorkshire Police and another. b PC Gardner was absent from work for six weeks due to stress and insomnia. b Attended return-to-work interview. He covertly recorded it. b Line manager discussed how to communicate return to work. b Stated absence had been because he went a bit doolally fucking tap (army slang meaning to lose ones mind) and made a reference to One Flew over the Cuckoos nest b Claim for disability harassment. Held comments perceived to be derogatory and negative. b Line manager had not received equal opportunities training since 2006 and there was no monitoring. b Held harassment.

Religion

Blasphemy b M vP Care Home Ltd and others b Managers use of bad language that included Jesus Christ and God b Not targeted at any particular employee, said in front of several staff, not intended to harass b Claim by Christian employee of religious harassment b Should be judged on the words used not the speakers intention ie from the claimants subjective view b Not reasonable for the claimant to perceive the language as creating an adverse environment for her b Words did not relate to her religion but are commonly used albeit blasphemous

Age discrimination

Voluntary early retirement b Palmer v RBS b Claimant placed at risk of redundancy Given the option of voluntary redundancy or redeployment b Those over 55 were given the option of voluntary early retirement b This was subsequently offered to those aged 50 to 55 as well b Claimed the right to change her mind even she was only 49 b If she chose redeployment there was a chance that she would be still be in employment at 50 and able to take early retirement b Held no age discrimination. She could not claim early retirement whereas her comparators could. The prevention of those under 50 being given early retirement was as a result of the Finance Act 2004 not the employers choice

Other discrimination

Surrogacy and maternity leave b CD v ST Claimant and her partner had a child via a surrogate mother but the claimant started mothering the child within an hour of its birth b Her employer did not give her any maternity leave or pay as she did not qualify b Advocate General held that the CJEU should find that the intended mother should have the right to maternity leave under the directive b Compulsory leave of at least two weeks should be given to both mothers and the combination of four weeks should be deducted from the 14 weeks under the directive and the 10 remaining weeks shared by the mothers. Surrogacy cannot lead to a doubling up of leave b Compare Z v A Government Department and the Board of Management of a Community School AG Wahl held directive does not cover intended mothers. Purpose of legislation to allow women to recover from physical and mental constraints of pregnancy and childbirth. No sex discrimination either as a comparable man whose child was born through surrogacy would not have time off nor pay. Latter upheld by full court.

Removing a dog from a police handler b In Metropolitan Police v Keohane Ms K was a police dog handler. When she started maternity leave the police took away her dog arguing it needed to be kept operational b The dog had been with her permanently b EAT held this produced a risk of impact on career progression and loss of overtime on return b Loss as a companion would lead to a sense of grievance b Pregnancy was a factor in the decision without guaranteeing its return this would have an impact on one gender over the other

Men on additional paternity leave and enhanced maternity pay b Shuter v Ford Motor Company b Women on maternity leave were paid full pay for the duration of their maternity leave b Mr Shuter took 5 months additional paternity leave and only received statutory payments he claimed direct and indirect discrimination b Held no direct discrimination. Comparison is not with a woman who has been pregnant and given birth but with a woman taking additional paternity leave who would not get any enhancement b Indirect discrimination but justified by the desire to encourage the employment of more women

Redundancy during maternity leave b Sefton Borough Council v Wainwright. b Council initiated a redundancy procedure. b Ms Wainwrights job would disappear along with that of a male employee and be combined into a new role. b She was on maternity leave. b Both were interviewed and the male was felt to be the better candidate. b Ms W was made redundant. b She claimed she was entitled to the vacancy under reg.10 of The Maternity and Parental Leave Regulations 1999. b This requires employers to offer a suitable alternative vacancy to a woman being made redundant whilst on maternity leave. This was an automatically unfair dismissal but not discriminatory as it was not because of her pregnancy or maternity leave.

Caste b Tirkey v Chandok and another a tribunal has held that it is already covered (contrary to several other tribunal decisions). b Ms T worked for the Chandoks in domestic service. She is from the Adivasi people who are traditionally seen in India as a servant caste. She claimed she was mistreated on the grounds of race and religion. b The Chandoks argued that caste was not currently covered by the Equality Act 2010. Ms T based her arguments on the Charter of Fundamental Rights of the European Union and the original 1965 convention on which the Race directive is based. This includes as part of its definition the concept of descent. b She also made reference to the Human Rights Act and the EHRC employment statutory code of practice. She also referred to Mandla v Lee where the House of Lords defined a racial group. b The tribunal held that the EU Charter is not relevant as the UK has opted out of it. However it did hold that the Equality Act 2010 should be interpreted to give effect to the European Convention on Human Rights which was broad enough to include caste.

Agency temp not paid correct rate after 12 weeks b Stevens v Northolt High School b Ms Stevens supplied by agency as temporary head of music b After 12 weeks period should have been paid amount she would have been paid had she been directly employed by the school b This was an additional 98 per day b Agency had continually asked the school but received no information b Claim against agency and school b Held claim against school. Liability of agency can be avoided if it can show it took steps to obtain the relevant information b Amount was over 10k b Agency did not receive enough from the hirer to pay this

Should agency worker be treated same as permanent b Coles v Ministry of Defence b Mr C was an agency worker within MOD covering a role temporarily while restructuring was carried out. b His assignment could be terminated at any time. b He continued from 2005 to 2013 in an agency role. b In 2013 500 permanent staff were put in a redeployment pool. b Civil service recruitment has four stages, the first three gives priority to internal candidates and stage 4 opens to external. b Jobs are advertised on the internal website. He was told he could not apply for the job he was doing until stage 4. The position went to a redundant employee prior to stage 4. b He claimed breach of the Agency Workers Regulations when his employment was terminated. b An agency worker is entitled to the same opportunity as a comparable worker to find permanent employment with the hirer. b The court held that neither UK nor European law prevents an employer giving priority to permanent staff at risk of redundancy.

Caselaw TUPE and collective labour law

Assigned b Costain Ltd v Armitage and another b Project engineer. Promoted to project manager. Revised duties included management of projects. b Also responsible for additional instructions arising out of framework or maintenance contracts. b His employer was contractor for a number of Welsh Assembly contracts. b Work came up for retender and went to someone else. Main work but not ancillary. b Employer argued that he spent 80% of his time on the work transferred. New employer argued he spent most of his time on ancillary work. Current employer used three months work sheets to show he had spent 67% on work transferred. b ET said he was assigned. EAT remitted to a new tribunal. b Imperative to identify the organised grouping of resources which had transferred and decide if he was assigned to it. b Need to distinguish between main contract and ancillary work.

Organised grouping of resources b London Borough of Hillingdon v Gormanley b RG was a firm employer three painter and decorators who did work for the Borough b The work was taken in house. b A question arose as to whether they were assigned to the transferred work ie painting of housing stock of the Council. b ET held they were assigned to the organised grouping of employees doing Council painting. b Overturned by EAT employees could be called upon to do other work than for the Council it did not necessarily follow that they were assigned only or principally to Council work

TUPE relocation and ETO b NSL v Besagni requirement to work in a different location following a TUPE transfer cannot constitute a change in the workforce and therefore an ETO reason b Local authority employer outsourced work and work moved b Claimants refused to move and were dismissed b Automatically unfair dismissal and no ETO reason b However 2014 changes provide that a change of location can come under an ETO reason so this case would be differently decided if it occurred now

Continued b Abellio London (Formerly Travel London Ltd) b Loss of bus contract, same route and terms and conditions but worked from a different depot 6 miles away. Held to be substantial change to working conditions to the employees material detriment. b Compare Cetinsoy v London United Busways Ltd b Almost identical case but 3.5 miles move. Mobility clause in contract not effective but evidence that employees could be moved a certain distance. b Held no fundamental breach of contract entitling employees to resign nor a substantial change to working conditions to the employees material detriment

Consultation claims against new employer b Allen and others v Morrison Facilities Services Ltd b Claimants employed by facilities management company performing housing maintenance contract for Leeds City Council b Retendering exercise contract transferred to Morrison Facilities Services TUPE service provision change b Employees brought claim against old employer and new re failures to consult b Held tribunals have no jurisdiction to entertain a freestanding claim by transferred employees against the transferee for its failure to provide the transferor with information about measures it envisages it will take in relation to the transferring employees b The only way to get compensation is to take a claim against the transferor and for the transferee subsequently to be made a party to proceedings on the basis of failure to provide the transferor with the requisite information b This was not possible here as the claims against the transferor had been settled or withdrawn

Failure to inform transferee b Eville & Jones (UK) Ltd v Grants Veterinary Services Ltd b Transferor liable to pay 65,000 for failing to inform the transferee that it would inherit claims for unpaid salary. b Had given the transferor normal information required by TUPE. b Later did not have sufficient funds to pay its employees and knew this prior to the transfer but did not tell the new employer even though it knew more than 14 days before the transfer. b Awarded minimum of 500 per employee ie 65,000. b This was more than the cost of the wages unpaid. b Failure significant and deliberate. b However reality of recovering from a company in liquidation.

Redundancy

Woolworths on consultation b USDAW v WW Realisation 1 Limited (in liquidation) and others Woolworths was liable for failure to consult adequately when it closed its stores. There were no special circumstances such as financial position nor going into administration b The tribunal regarded each store as a separate establishment thus employees in stores with fewer than 20 people had no right to a protective award b Questions re definition of establishment/see Red tape consultation/EU law b Protective award reduced to 60 days as some consultation APPEAL TO EAT RE ESTABLISHMENT APPEAL TO EAT RE ESTABLISHMENT

EAT on establishment b Requirement to consult where 20 or more made redundant at one establishment b Directive gives two options b Either 10% of workforce in an establishment or 20 redundancies whatever the number employed in the establishment b UK opted for the latter but this does not appear to limit the redundancies to a single establishment ie the UK has merged both definitions b This has long been contentious b EAT held that the words at one establishment are to be disregarded ie irrelevant that work at different establishments b May be that restriction to one establishment is a breach of the directive b However removing it without more will make redundancies more complex b Need for clarification. Government has won right to appeal.

Progress since then b Appeal to Court of Appeal b Referral from Court of Appeal to ECJ on whether the words at one establishment should be deleted from the UK definition b Reference to ECJ from Northern Ireland regarding similar case with Bonmarche b USA v Nolan to be heard by the Court of Appeal on the subject of when consultation should begin b Preliminary issue for court was whether the court could hear the case at all as the ECJ decided that the directive did not apply to a non-EU state. Court of Appeal decided that UK law did and goes further than the directive

Advocate General Opinion b The AG believes that the directive did not require the aggregation of dismissals in all an employers work establishments in order to verify whether the threshold triggering the consultation requirement is met b Establishment is the local employment unit to which the redundant workers were assigned to carry out their duties b It is for national courts to decide how the local employment unit should be defined b Full court decision is awaited

Working time holidays

Holiday pay and carry over b The Sash Window Workshop Ltd v Dollar b Commission-only salesman ie a worker. b Entitled to statutory holidays. b Took time away every year but was not paid. b Took full holidays between 2003 and 2007. b Claimed 24 weeks backdated pay in respect of untaken and unrequested leave. b ET agreed and awarded 9,000. No difference in being unable to take due to sickness and due to being refused. b EAT agreed that not being paid would deter individuals taking holidays. b However held the ET was wrong. No proper findings of fact re being prevented from taking holidays. Sent back. b Also believed not about deduction from wages but about liquidated damages. He worked and was paid. He had not tried to take leave and been refused. He had not lost pay but chance of leave. In such a case he was out of time.

Overtime part of holiday pay b Neal v Freightliner Neal worked a 35 hour week b Contract provided for overtime when necessary b Shifts and working hours determined by a roster system b Regularly worked up to 9 hours a day and sometime more to provide cover b Received enhanced pay premiums when working b Felt holiday pay should reflect actual pay b Employer argued overtime was voluntary and holiday pay should be basic pay b Tribunal held extra hours intrinsically linked to performance in his role irrelevant whether overtime was voluntary or not b Holiday pay therefore based on average over previous 12 weeks b Case settled on appeal

Compare Elms v Balfour Beatty Utilities Solutions Ltd held that holiday pay should be calculated by reference to basic pay excluding overtime, discretionary bonus and standby. The court rejected comparison with Williams v British Airways where the ECJ included pilot allowances in holiday pay calculation There was no comparison as the pilots were covered by the Civil Aviation directive and regulations whereas Mr Elms was covered by the Working time directive and regulations which had a detailed scheme for working out a weeks pay and this excluded overtime Overtime was not compulsory or guaranteed nor were bonuses or standby NOTE BEAR SCOTLAND LTD, HERTEL (UK) LTD AND AMEC GROUP LTD ON APPEAL TO EAT OVER THIS ISSUE

Appeals b Bear Scotland etc on appeal b The case concerned whether non-guaranteed (but compulsory) overtime should be included in the 12 week average for calculating holidays for those whose pay might vary as a result of doing overtime (amongst other things) b Compulsory overtime is included in the calculation b It is not clear whether as a result of these cases voluntary overtime might also be included and it is likely to depend on how regular it is and expected b At the heart of the judgement is what counts as normal pay and the judgement also looked at other aspects of pay b The court decided that compulsory (but not guaranteed) overtime SHOULD be included in the 12 week calculation

Appeals b Reference was made to Williams and others v British Airways plc which concerned the calculation of holiday pay for pilots (this was under a different working time directive specifically for civil aviation and did not have the calculation used in the Working time regulations) b The court stated that any element of pay that is intrinsically linked to the performance of the task the worker is required to carry out and in respect of which a monetary amount is provided has to be included in the calculation

Appeals b Consequences what is the averaging period? Should it be 12 weeks or is that going to disadvantage some individuals. b For instance in some industries there might be a lot of overtime at certain times of the year rather than others. b This means that individuals taking holidays after working a lot of overtime, will receive more in holiday pay at one time of the year rather than an another. b The most controversial part of the judgement relates to whether individuals denied the correct pay in the past can claim a recalculation retrospectively. b The EAT decided that there could be no backdated claim if there was more than a three month gap between such deductions (under the Wages Act such deductions can be a series and pull in early times)

Government action b A taskforce has been set up to look at the issue of backdated claims. b It has no employee/union members. b Unite has decided not to appeal the Bear Scotland case. b Other individuals might yet make such a claim. b The Government has also issued Deduction from Wages (Limitation) Regulations 2014. b They limit all unlawful deduction claims to two years before the date the ET1 is lodged. b They specifically state that the right to paid holidays is not incorporated as a term in employment contracts. b This limits long-term backdated claims. b The Regulations apply to ET1s presented before 1 st July 2015

Commission as part of holiday pay b Lock v British Gas Trading Ltd AG held Art.7 of the EU Working time directive requires commission to be taken into account when calculating the correct remuneration for holidays b But commission does not have to be paid for any holidays in excess of the directive b Individual paid commission on a monthly basis b It fluctuated dependant on sales but usually about 60% of pay b Whilst on holiday did not generate commission leading to lower pay after holidays b Principle of leave is to enable the worker to enjoy relaxation and leisure. Art.7 makes no mention of how to calculate pay

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unlawful b

employers b

challenge b unison

action b unison

judicial review b

new regime b

remission system b

b lord chancellor