Age Discrimination

In an attempt to deal with the entrenched difficulties of youth unemployment, the French Government introduced a new concept of “Le Contrat Première Embauche” (CPE). In the face of rioting in the streets and deep hostility, the French Prime Minister, Dominique de Villepin, did what Governments in France have done throughout the years and caved in. However, the proposal did highlight some of the practical difficulties that maybe encountered once age discrimination is in place. The French Government intended to create an exception from the “day 1” rights enjoyed in France by workers, so that contracts could be terminated at any stage during the first two years without reason, if the employee was aged under 26. Michael Ball writing in Personnel Today suggests that this proposal on the part of the French Government may fall foul of the directive on age discrimination once it comes into force in October. As things stand we believe that interpretation of the directive is probably correct.

The Government here has, of course, shirked the challenge of abolishing the retirement age at 65. All that is proposed in the UK is that workers have the right to ask employers to stay beyond 65 and requests have to be considered in good faith. That does not really represent a change in the law, more an affirmation of the existing situation. However, this somewhat timorous approach may be turned on its head by the long awaited House of Lords judgement in the case of Rutherford v Harvest Town Circle is delivered. Mr Rutherford and Mr Bentley argued their case through the Tribunal, the Appeal Tribunal, the Court of Appeal and now the House of Lords on the basis that this approach to compulsory retirement is inherently discriminatory as more men than women work beyond 65. If they are successful, then the Government may have to re-write its proposals on the retirement age in the age discrimination regulations.

With a slight echo of the position in France, the Government has announced that redundancy payments will continue at the higher rate for those over the age of 41. As recently as July 2005 the Government was saying that the dual payments were not justifiable under the new age discrimination regime, but they have now decided that the existing approach can be justified. In due course expect a challenge from a disgruntled 39 year old redundant employee.

Not really anything to do with age discrimination, more an interesting aside. The British Chamber of Commerce reports that older business owners account for 54% of self employed, up from 48.5% in 2001. It predicts that with underperforming pensions and down sizing companies, more and more older people will start their own businesses.    

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ACAS

The valuable work undertaken by ACAS is in danger of being eroded by job cuts being pushed through by the DTI. The Parliamentary Trade and Industry Select Committee are currently undertaking an enquiry and their press release can be seen here. The TUC believe that the knock-on effect would be a rise in litigation and longer running disputes which would go a long way to negating any perceived benefits from the job cuts. The CBI also have joined in by saying that they believe ACAS saved the Government around £30m last year by settling disputes against it at a fraction of the cost that would have been involved if they had gone to the Tribunal.    

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Criminal Records Bureau

The Teachers Union NASUWT believe that new proposals for criminal record checks on staff, are an over reaction to the recent feeding frenzy on sex offenders made by the media.

The Department for Education is calling on all staff employed before 1990 to undergo CRB checks. The General Secretary for the NASUWT is quoted as saying “Although those employed before 1990 would not have had a CRB check, any criminal conviction would have been reported to the employer. In addition, any concerns about a member of staff’s behaviour that has arisen will have been addressed by now”.

The Government has also introduced, through the House of Lords, the Safeguarding Vulnerable Groups Bill which aims to establish an Independent Barring Board (IBB) to replace the current List 99, the Protection of Children Act List and the Protection of Vulnerable Adults List. The intention is to introduce a regulated activity provider category and it will then be an offence for anybody within that category to employ a person without making the relevant checks. The full bill can be seen here.    

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Trade Unions

In February the Supermarket Group ASDA was forced to pay £850,000 in compensation to staff at its Washington Tyne and Wear Centre for unlawfully offering them financial inducements to vote away Union bargaining rights.

Amongst the documents disclosed was a memo from a Public Relations Firm, suggesting that staff who failed to sign up to the “modern” agreement at the Company’s depot, should be removed from the workplace as soon as possible. The particular significance of the memo seems to be that it came from the Head of the PR firm who was previously deputy to the Prime Minister’s advisor Alistair Campbell.

Still in cold northern climes, a battle involving the Swedish trade unions could have significant repercussions throughout the EU. The dispute centres around what is now known as the “Vaxholm” case. Sweden was insisting on applying its pay and working conditions to a Latvian firm Laval, which was contracted to refurbish a school in Vaxholm using its own “posted workers”. The case is currently going before the ECJ. One consequence of the dispute is that the Latvian firm, Laval, was forced into bankruptcy. The situation is covered by the Posting of Workers Directive which broadly speaking says that where a member state has certain minimum terms and conditions of employment, those must also apply to workers temporarily posted by their employers to work in that state.    

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Discipline and Grievance

The Home Office, in consultation with the Association of Chief of Police Officers (ACPO), have launched a consultation process on a new code of conduct for the Police service.

One of the features of the statutory dispute resolution and procedures was to introduce an extension of time for lodging a Tribunal claim to allow for possible negotiated resolution. The case of Madhewoo v NHS Direct centred on the date of the contemplated dismissal. Although Mr Madhewoo was dismissed after the regulations came to force, the process had begun before then. The Appeal Tribunal held that as the process had started before 1st October 2004, the employer must have contemplated dismissal before that date, and therefore the regulations did not bite.

The Appeal Tribunal has been reasonably prepared to treat letters of complaint, even on resignation, as the first step in any grievance procedure. However, in the case of Canary Wharf Management v Edebi the EAT made it clear that the letter would have to relate to the complaint in a subsequent Tribunal complaint. In Mr Edebi’s case he raised issues of disability discrimination in his Tribunal claim which the EAT said were not covered in his letter.

The statutory procedures permit an extension of time to enable conciliation to take place. In the two cases of Bupa Care Homes v Cann and Spillett v Tescos Stores ltd, the Appeal Tribunal had to consider whether that overrode the extensions permitted in the legislation elsewhere. In the Disability Discrimination Act, the tribunal has discretion if it is just and equitable to extend the ordinary three months time limit. And that still held.    

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Disability

The test of disability is “physical or medical impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities”. Guidance has been issued by the Disability Rights Commission as to what might be meant by substantial, long term and day to day activities. Now that the definition of disability has been amended to cover progressive conditions such as HIV, Cancer and Multiplesclorosis from the point of diagnosis, new guidance has been issued by the Disability Rights Commission.

In yet another ASDA case a worker sacked for taking seven minutes out from work to take an epilepsy tablet has been awarded £7,000 compensation. Paul Turner said managers claimed he had been watching the European Cup Final.

In a case elsewhere, the Middlesbrough Primary Care Trust had to accept liability in a case brought by school nurse Jean Lynas. She had a double ileostomy operation in 1994 requiring her to wear an ileostomy bag. She claimed disability discrimination for the employer’s failure to provide adequate toilet facilities.

In a case in Scotland, partially sighted Alison Henry won much deserved compensation after being called a “blind bugger” by her boss, John Pryde at the Kingdom of Kitchens showroom in Fife. When she used a white stick she was told by her employer to “cut the fucking dramatics”. Not surprisingly the Tribunal said that his behaviour was inexcusable and fell well below any acceptable standard of decent behaviour.

Elsewhere a decision is expected shortly in a case brought by Chester CID Officer Claire Doolan, against Cheshire Police. She claimed that the Police discriminated against her when she was suffering acute post natal depression.

According to the British Chamber of Commerce, firms are failing to embrace the disabled. The British Computer Society estimates that businesses are missing out on a market estimated to be worth at least £50bn because of the lack of user friendliness with technology and disabled people. The Department of Work and Pensions is also suggesting that only simple changes are needed for the most part to meet disability needs. Having launched their campaign “Adjusting for better business” they say that expensive changes such as lift access to upper floors are not necessary. An information pack is available from the Department.    

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Employment Rights

Trade and Industry Secretary Alan Johnson launched a strategy paper on 30th March, setting out the Governments commitments on employment relations. He is quoted as saying “the new rights we have introduced are taking root … this means we can now concentrate our enforcement on the minority of bad businesses who take advantage of the most vulnerable.” The Government is planning to ensure that all workers are paid for bank holidays, in addition to the four weeks minimum as well as pushing out minimum wage enforcement pilots for seven low paid sectors as well as identifying ways to simplify employment law. The move was welcomed by the CBI who says that companies have been asked to introduce an unprecedented range of new employment rights since 1997. However, the Federation of Small Businesses suggests that employers are finding it increasingly hard to cope with employment legislation. Their help line calls show an increase in calls to the line of nearly 30% during 2005 compared with 2004. The biggest issue for most callers was disciplinary procedures.

Information provided to us shows that at 4th March 2006 there were 30 bills with relevance to employment law either introduced or at an early stage of preparation. Legislation actually coming in to force on 6th April included the Working Time amendment Regulations, new rules on TUPE, Occupational and Personal Pension schemes consultation regulations, as well as Information and Consultation regulations and Race Relations code of practice.

The British Chamber of Commerce estimates that the cost burden to business will be £50B during 2006. The Chamber has produced a burden barometer which can be accessed here.    

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Internet Abuse

According to a report in PC Pro, British business is still failing to do sufficient to protect company data. They suggest that although businesses protect themselves well from external threats, the biggest security and malpractice occurs inside the company. The latest conclusions are based on a survey titled “Information Security Breaches” published by the DTI. The survey shows that 52% of large companies admit that staff abuse internet services, while 43% said staff misused email. 41% said that staff viewed inappropriate websites with 36% saying there was excessive web surfing. Despite this, some 37% did not have a web or email usage policy.

Our own experiences in acting for clients shows that, regardless of the nature of the sites visited, the user log itself will actually show massive amounts of time devoted to the nefarious activities. In one case we handled, the staff member was spending five hours daily looking at inappropriate sites. Clearly that was time that was not being devoted to the company’s business.

Even checking the log and the internet traffic is itself fraught with problems. There are data protection and investigatory powers issues attached to that. It is essential that staff know that their internet use and email traffic may be monitored. Apart from the appropriate hand book policies, it may well be worth considering incorporating this into the screen saver.    

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Maternity

We have written before about the case of three student midwives, Clare Fletcher, Tracey Parkes and Shelley Wilkinson in their claim for maternity leave during full time midwifery courses. They received no financial support and were simply treated as if they had ceased their studies. The midwives won their claim but the Department of Health appealed to the Court of Appeal and has now lost. The Government’s argument was that the Appeal Tribunal’s decision was based on a flawed argument and that these were issues of social policy that should be decided by Parliament. The Appeal judges have turned down an Appeal to the House of Lords, saying that to pursue the case further would waste legal costs and court time. As we reported in our Update in September 2005, the Government had already promised that student midwives would be entitled to maternity leave for the future; it seems surprising that they should be so determined to pursue this appeal to the ultimate conclusion.

The DTI has published draft regulations to bring into effect some of the reforms on family related leave and flexible working. These changes will come into force in April 2007. The regulations and consultation document can be accessed here.

What also will need to be noted by employers and planned in advance, are the changes to maternity leave previewed in the Work and Families Bill. It is intended that all working women will be able to claim 12 months leave regardless of length of service. All women qualifying for ordinary maternity leave will qualify for the additional months maternity leave. The period of maternity pay will be increased to nine months from April 2007 and there after to twelve months. At the same time, the Government intends to increase the amount of notice a mother must give if her return to work plans have changed. It is also intended to provide for “keeping in touch days” so that women and adopters (the provisions apply to adopters as well) can work for a limited number of days during the period of leave without losing statutory entitlements. Perhaps more complicated is the intention to make some of the leave transferable to the father. The father will be able to be absent for a period of 26 weeks for child care purposes and be paid for it if to the extent that the mother’s entitlement is not exhausted.

Finally on the subject of maternity provisions, the Court of Session in Scotland has upheld a decision that it is lawful to pro-rota a bonus related to performance. The case of Hoyland v ASDA Stores ltd concerned a bonus scheme intended to reward employees for work and contribution to the financial performance of the business. The bonus was to be proportionally reduced in respect of absences including maternity leave. However great care needs to be taken with this, since in an earlier case of GUS Home Shopping Ltd v Green and McLaughlin a loyalty bonus was paid contingent on an orderly transfer of the business to a purchaser and with the employees having to be in post on 31st March 1998. As Mrs McLaughlin was in post, albeit on maternity leave, she was therefore entitled to the bonus. Similarly pay scales revised during a period of maternity leave may mean that adjustment needs to be made to the statutory maternity pay. The case of Alabaster v Woolwich Plc concerned a back dated pay rise. A woman on maternity leave should be treated in all respects in the same way as a woman at work. Therefore circulation of promotion opportunities and company news should continue. In the case of Visa International Service Association v Paul, the woman on maternity leave was able to claim that she was constructively dismissed because she was unable to apply for a promotion that came up during her period of absence ad she was not notified.    

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Minimum Wage

Thanks may or may not be due to Barrister Daniel Barnett for reporting a case which even he says requires a wet towel around the head before reading and is for aficionados of the minimum wage only. The case concerns the deduction of gas and electricity charges by Butlins of £6 per fortnight from minimum wages. If the £6 could be counted as part of the employee’s wages, then the minimum wage legislation was complied with, but if it could not be deducted, then the employees received less than the minimum wage. For those with a wet towel handy, the case is HM Revenue and Customs v Leisure Employment Services Ltd.    

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Pensions

As we predicted in a previous Update, the Medway fire fighters succeeded in their Appeal before the House of Lords. The part time fire fighters claimed equality under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations. The employers had argued that the retained fire fighters were on different contracts and had different duties. The Law Lords ruled that the tribunal had focused too much on the differences between the roles rather than the similarities. They ruled that they should also enjoy the same pension rights as their full time colleagues.

At the British Chambers of Commerce annual conference, the Director General David Frost told delegates that businesses were unlikely to be able to cope with the extra costs of pension schemes if forced to pay in. They suggested that 20% of firms believe they would be forced to make redundancies if obliged to pay into a pension scheme.

It is also reported by Croners that the Department for Work and Pensions is believed to be considering a compromise on how the National Pension Saving Scheme recommended in the Turner report should be operated. It is believed that the compromise proposed is that the Government would collect contributions, but employees would be able to choose where the money should be invested.

In a complicated decision in the case of Powerhouse Retail Ltd v Burroughs, the House of Lords looked at whether claims for pensions by part time employees were time barred. Under the equal pay legislation a claim has to be brought within six months of the last day on which the claimant was employed. The company argued that because pensions did not transfer on a TUPE, the particular employment ended in 1992 which was an argument that the House of Lords accepted.    

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Racial Discrimination

In a report this month in the Lawyer magazine, a survey found that ethnic minorities made up only 3% of partners in the top UK 100 partnerships. Some firms, including Allen and Overy, had no partners from ethnic minorities.

It was also reported by Workplace Law Network that a Muslim office worker has launched a claim against accountancy firm BDO Stoy Hayward, saying that she was made redundant because she had taken part in an arranged marriage. She claims to be the only person in her department to be made redundant and suggests that the firm was concerned that her husband’s arrival would interfere with her training.

It was also reported that supermarket group ASDA is to pay £27,750 in compensation after a manager at the Company’s Lutterworth branch called out “foreign sounding names” on the PA system, asking staff to produce their passports to prove they had a right to work. Some of the workers have been with the Company for 18 years. Each of the workers has been paid £750.

Near to home for us, Kent Police are to pay £65,000 in compensation to Shujaat Husain who applied to Kent Police for a job in 1999 and again in 2000. The Police compiled a report which they circulated with other forces accusing Mr Husain of making a potentially fraudulent application. The award from the Ashford employment tribunal included £25,000 for injury to feelings.

In another report involving the Police, BBC News report that the Chief Constable of Avon and Somerset police now believes that his positive discrimination recruitment policy may have been illegal and he now considers the policy was not appropriate.    

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Redundancy

We have highlighted before the European Court of Justice case of Junk v Kuhnel which looked at the requirement for consultation for a decision to make redundancies made known. The DTI is now proposing a minor amendment to the law to bring UK legislation into line. A consultation paper has been issued which can be viewed here.    

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Sexual Discrimination

According to reports in the Daily Telegraph, a teenager who was insulted by her boss has been awarded £11,000 in compensation by the employment tribunal in Sheffield. Grace Kinsey was a sixth form student at the time she took a holiday job teaching children at a school camp, but was then subjected to taunts and unwanted attention from the boss of the company Champs Camps. He was said to have made remarks such as “you are a right lesbian”. She told the tribunal she had ambitions to join the Police, but her confidence was shattered by her experience.

According to newspaper reports, a Police woman claiming sexual discrimination by Norfolk constabulary is seeking £400,000 in damages. The claim has been brought by Sgt Christina Arthurton. The case finished at the end of March and a decision is expected over the next four weeks.

Corporal Leah Mates who was a Special Forces spy has been awarded £12,000 in compensation against the Army after winning part of her employment tribunal claim. In a case reported in The Times on 30th March 2006, a waitress Ilaria Signoriello won £124,000 from Harry’s Bar in Mayfair as a result of the sexual harassment of the chef Alberico Penati. The restaurant has celebrity customers including Madonna, Hugh Grant and Elton John. In its judgement, the tribunal said that the “atmosphere in the kitchen was heavy with sexual overtones and that the chef was a bully in his general approach to the staff, that all feared to cross him”.

A report from the Daily Mirror on 2nd March says that glamour model Emma Nicholson won her case for sexual discrimination against Network Global a month after revealing she was expecting twins.

Finally we trailed previously the claim by Sue Storer against Bristol City Council. She claimed that she had been given a chair that made farting noises and that was part of a catalogue of sexist behaviour at Bedminster Down secondary school. Her claim was dismissed.    

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Sexual Orientation

A senior trader is seeking compensation of £5m against HSBC bank over alleged homophobia. He had been Head of Global Trading, but was dismissed for alleged gross misconduct at the bank’s gym. He denied misconduct and claimed that he was sacked for being gay. It is expected that several of the Bank’s top executives will have to testify.

Kirsten Hearn who chairs the Metropolitan Police Authority’s Equal Opportunities and Diversity Board has said that the Metropolitan Police will in future be seeking to record information about workforce sexual orientation. She said that the data is not intended to create positive discrimination, simply to ensure that the force was representative of the diversity in the population at large.

In Ireland two lesbians living in Blarney brought a claim for discrimination and harassment under the Intoxicating Liquor Act 2003. They were evicted by the owner of the pub in exchange of a good luck kiss. They won their case against the landlord who evicted them.    

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Religious Discrimination

In Scotland the BBC News reported that an atheist teacher won his claim at a tribunal having alleged that he was prevented from applying for promotion at a Catholic school where he was employed. He claims that he was told that only candidates with approval of the Catholic Church could be considered for post of Principal Teacher.    

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Sick Absence

A survey undertaken by Edinburgh law firm Shepherd and Wedderburn suggested that more than one in ten Scottish employers have received a tribunal complaint of unfair dismissal or disability discrimination, after having taken action on absence. 16% of respondents to the survey said they had experienced drug related absence, whilst drink was a factor for 53.2% of employers. The Government is proposing to simplify statutory sick pay procedures by abolishing the requirement to link periods of sickness that are separated by no more than eight weeks and the application of waiting days. The green paper can be viewed here. A tribunal in Newcastle awarded a Nissan employee Brian Murphy £65,000. He was on sick leave from the company but set up a handyman’s business whilst away. He was dismissed for gross misconduct. The company had no specific prohibitions on outside work, and indeed allowed employees to advertise their skills on the Company’s intranet. At the time Murphy was absent with stress and was able to show that his GP had advised him to keep busy as an aid to his recovery.    

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Part Time and Temporary Workers

A temporary human resources manager has won an equal pay case and compensation against railway firm First Engineering Ltd. She claimed under the Fixed Term Workers (Prevention of Less Favourable Treatment) regulations suggesting that she was paid less well than permanent staff doing equivalent jobs. The case has significant implications for employers taking on temporary staff to cover maternity or sickness.

The Court of Appeal has ruled in favour of school teacher Mrs Prater who brought a case against Cornwall County Council. She worked as a home tutor to children unable to attend school. She had a series of contracts, but without any guarantee of future work. The Court of Appeal found that these engagements were self contained episodes of employment under a contract of employment and gave her continuity to claim employment rights. In making their decision, the Court of Appeal distinguished the Carmichael v National Power case.

The Court of Appeal has ruled in the case of Cable and Wireless v Muscat following on the Ducas v Brook Street Bureau case. The Court held that a placement from an agency could be an implied employee of the end user.    

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Tribunals

Not strictly a tribunal decision, but the House of Lords applying the territorial scope of the Employment Relations Act, was the final Appeal decision in Serco v Lawson and others. The case revolved around the right of the employee to bring a case in Britain. Generally speaking individuals working abroad would not have protection, but where there were substantial and strong connections might do so. It quoted examples of an employee posted abroad by a British employer for the purpose of a business carried on in Great Britain, and an individual operating in what amounts to an extra-territorial British Enclave. The case report can be read here.

It was reported in Lifestyle Extra that a prison dog handler claimed he was forced out of his job after his bosses took away his two much loved sniffer dogs. He had been looking after the animals since they were pups. We do not know whether a decision has been made in the case.

In the case of Knapton v ECC Card Clothing Ltd the Employment Appeal Tribunal held that if an employee chooses to draw pension early, this should not be deducted from compensation. However, where a theoretical sum for life insurance is claimed, that should not be admitted unless the cover has actually been bought.

The Sunday Observer quoted estimates of £210m of being the costs of employers fighting tribunal claims. It is said that the average cost of a claim is £7,000 to include legal fees.

Sarah Forsyth’s case against Eton College has now been settled. She won her tribunal claim and terms of settlement have now been agreed at a sum believed to be £45,000.

In the case of Fordyce v Hammersmith and Fulham Conservative Association, the Appeal Tribunal had to rule on what happened when a tribunal member fell asleep, in this case for the second time. Apparently the Claimant had agreed to continue the case after the first time and the Appeal Tribunal ruled that she had waived her right to object. However the right to object rose again when he fell asleep for the second time. (We offer no opinion on readers dozing off whilst perusing this marathon update)

The American publication Legal Week also reports on the consequences of tribunal cases in Britain. In a survey conducted of in-house counsel, more than half said they had spent more time in the past twelve months dealing with the impact of Employment Regulations than the previous year, with two thirds expecting a rise in discrimination claims.    

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TUPE

The new regulations are now in force and can be seen here. The regulations will apply to any transfer which takes place after 6th April and include provisos about the consultation process to be undertaken by the transfer or whistle blowing.    

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Whistleblowing

Workplace Law report that a whistleblower who took Bolton Council to the tribunal and secured a ruling that he should be given his job back, can be paid additional compensation for the Council’s failure to do so. The original award was £11,000, increased by £11,340 for additional award in respect of the failure to comply. Still in Bolton, the EAT ruled in a case of Bolton School v Evans. In that case Mr Evans made a protected disclosure telling the school that their computer system was insufficiently secure and allowed students to hack in to confidential information. The school did not take too much notice of these disclosures and so Mr Evans decided to hack into the system and disable some user accounts and then afterwards told the school what had happened. He was given written warning and then resigned in protest, claiming that his protected disclosure had led to his resignation. The tribunal originally allowed his claim, but the EAT reversed the decision on the basis that the protected act is the disclosure itself and does not extend to conduct designed to demonstrate that the belief was reasonable. The case of Bachnak v Emerging Markets Partnership 2, dealt with the good faith requirement in respect of protected disclosures. His appeal was based on the fact that the tribunal had applied a neutral burden whereas he argued that it was for the employer to establish bad faith, rather than for him to establish good faith. The Appeal Tribunal agreed with that argument. It did not benefit Mr Bachnak very much as they held that the tribunal’s findings had not depended ultimately on the burden of proof in respect of good faith so any error was irrelevant.    

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