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In our update we look at the most significant developments in the last quarter of 2007 as well as looking forward to possible developments during the new year. Never has it been more important for employers to understand where developments may impact on their business. The statistics published from the Tribunal Service show that in the year 2006-2007 Tribunal claims increased by some 15% over the previous year.
Age Discrimination
Backed by Age Concern, the issue of compulsory retirement ages in the UK has been referred to the European Court of Justice (ECJ) in what has become known as the Heyday Challenge. The issues in which the ECJ are being asked to rule are whether the equal treatment directive permitted employers to dismiss employees on the grounds of retirement once past the age of 65, whether a justification defence can apply, as with equal pay and the test for direct and indirect discrimination. There are a number of cases pending before the Tribunals which have been stayed pending a decision in the Heyday Challenge. The Appeal Tribunal, in the case of Johns v Solent SD Ltd decided that that particular case should be stayed and that has been followed by a practice direction from the president of the Tribunal Service dictating that this would be the way forward in those cases.
Elsewhere, there have been other tribunal cases that have gone through on rather different facts. In the case of Megan Thomas, she was working as the membership secretary of the Eight Member Club which involved organising poker nights and wine tasting events. She claimed that at 20 she was sacked because the company felt that she was too young. This acts as a useful reminder to employers that age discrimination can be applied on the basis of youth as well as seniority.
ACAS
ACAS has a new chairman, Ed Springer, who has declared his ambition to make the organisation more forceful. The Minister of State for employment relations and postal affairs said on his appointment that he intended that ACAS would have a central role in helping to shape and deliver the future Dispute Resolutions Service that would emerge from the review of the current Statutory Procedures.
Bank Holidays
Civil servants at the Department for Children Schools and Family are being given the flexibility to work through Christmas and take time off during other religious festivals such as Diwali. It will also be possible to take a Bank Holiday to celebrate a cultural tradition such as St David’s Day. The move will benefit somewhere in the region of 2,600 civil servants. During Christmas these staff will be able to work from home.
This is an interesting development and we wait to find out whether this move is acceptable to challenge by Christian employees seeking a commensurate right to work from home during other religious festivals. There is potentially scope within religious discrimination.
Compromise Agreements
Firstly a disclaimer. This case is not just mentioned because of the writer’s lifelong devotion to the cause of Charlton Athletic Football Club but because it is really interesting. Truly.
At the beginning of the 2006-2007 football season Ian Dowie agreed to join Charlton Athletic as manager. He had previously been manager of Crystal Palace and the contract that he had negotiated there provided for a fixed compensation payment of £1,000,000 if he were to leave Palace for another club. He signed a Compromise Agreement on his departure which relieved him of this obligation. Crystal Palace believed that he was going to return to the North to be close to his family. In fact, within short order, he joined Charlton. Palace sued for compensation saying that the Compromise Agreement had been entered into on the basis of a negligent or fraudulent statement and should be set aside. The Court agreed.
The significance of this is that many employees sign Compromise Agreements with quite large payouts, secure in the knowledge that they are moving straight from one job to another. Equally, this is quite frequently known to HR departments who tend to deal with it on a nudge and a wink basis. It may well therefore be very worthwhile for employers to stipulate in Compromise Agreements that the employee warrants that he/she does not have an offer of employment elsewhere, data compromise agreement, nor is expecting one. Equally, of course, employers should be wary of signing agreements with these stipulations.
Discipline and Grievance
The 2004 Dispute Resolution Procedures have been the subject of much criticism and a review by Government. As a result of this, the Government has now introduced a fresh Employment Bill which provides for the abolition of the Statutory Dismissal and Grievance Procedures but empowering tribunals to increase compensation, much as now, by up to 25% if an employer unreasonably fails to comply with the Code of Practice. Sensibly, ACAS’s power of conciliation will be improved by removing the fixed conciliation periods. The move has been universally welcomed and the TUC’s general secretary, Brendan Barber said “the Bill will get rid of much of the unnecessary red tape in the workplace grievance and disciplinary procedures”.
In the case of Venniri v Autodex it was held that a Tribunal has to consider whether a dismissal is automatically unfair under the current Statutory Dismissal Procedures. The employee does not have to raise it.
Elsewhere, in the case of Homeserve v Dixon the Appeal Tribunal Decision turned on the wording of the disciplinary letter. Mr Dixon was found doing private work using the company’s van and was spotted by his manager. A letter inviting him to a disciplinary meeting did not stipulate that it was contemplating dismissal. He was in fact sacked for gross misconduct. The Employment Tribunal at first held that the dismissal rules were automatically unfair because of this want of warning. However, the EAT since upheld that it was implicit that the employer was contemplating dismissal or some other action.
Elsewhere, in relation to grievances, Miss Brown laid a grievance against her line manager, regional secretary at the GMB. She based her grievance on the basis of a breakdown in her working relationship. Under the Union’s internal procedures she should have raised her grievance in the first instance with her line manager. However, because her grievance was against her line manager, she asked that the matters be dealt with by somebody else. The Union refused. The EAT held that this refusal amounted to a breach of trust and confidence and that Miss Brown was entitled to succeed in her claim for constructive dismissal.
Disability
The issue of reasonable adjustments for a disabled employee was considered in two recent cases. In Scottish and Southern Energy Plc v Mackay, the Appeal Tribunal was encouraged to rule that the failure to consult a disabled employee on alternatives to dismissal was, by its nature, failure to make a reasonable adjustment. However the EAT said it was for the Claimant to establish what reasonable adjustments could have been made to retain him or her in the workplace. A similar approach had been followed in Romec Ltd v Rudham, where the EAT held that the adjustments to enable disabled employees to work would only apply if it could be demonstrated that the adjustment would remove the disadvantage suffered by the employee.
A great deal of opposition has been voiced in response to Work and Pensions Secretary, Peter Hain’s plans to close Remploy factories. The plan would result in 2,300 disabled workers being made redundant. At the TUC Conference in the autumn of 2007, Peter Hain said he wanted justice for Remploy workers, but by mid-November 2007 the company was still planning to close its factories.
Equality
According to a report in People Management, HR practitioners in the City of London are developing best practice guidelines on diversity. It is anticipated that issues such as flexible working and avoidance of discrimination in recruitment will also be addressed. However the Chairman of the City HR Association, Stephen Sidebottom, said “the City is a tough place to work and it attracts bright people who typically want to work hard and be rewarded accordingly”, obviously meaning that the long hours culture will not change any time soon.
The Equality and Human Rights Commission is now up and running with Trevor Phillips as its Chairman and he is urging business to put equality officers on company boards, saying that the UK was nowhere near recognising the importance of diversity at work.
In a somewhat legalistic Judgement, the Court of Appeal has ruled in the case of Grundy v British Airways Plc. The Court held that when assessing whether there was a difference in pay, having a disparately adverse impact on women, the Employment Tribunal was entitled to focus on the disadvantaged group.
Flexible Working
The Government plans to extend the right to request flexible working to parents of all school age children. Currently the right to request flexible working is limited to parents of children aged up to six, or with a disabled child, or adult care responsibilities. Sainsbury’s HR Director has been asked by John Hutton, the Secretary of State for Business, to investigate a possible extension to parents of children up to the age of 12, or possibly older.
Interestingly, the Chartered Institute for Personnel Development (CIPD) has suggested that there is a danger that with ever larger groups of people entitled to request flexible working and a small number not entitled, that divisions could grow in the workforce. The Association of British Chambers of Commerce has urged the Government to avoid a further regulation. They make the point that their own surveys show that 90% of employers already offer flexible working in order to meet the needs of their business’s health and safety.
Health and Safety
We offer the usual link to the substantial update provided by Mesh Consultants.
The European Court of Justice was asked to rule on the implementation of the Health and Safety Directive in the UK. The Health and Safety at Work Act requires employers only to take such steps as are reasonable practicable, rather than imposing strict liability. The European Court of Justice rejected that argument.
In the Health Service, nurses, doctors and health visitors working on their own are to be given panic buttons that will put them directly in touch with an operator if they are under threat.
Work Permits
Government statistics show that 52% of jobs created since 1997 have gone to immigrants. David Frost, the Director General of British Chambers of Commerce, suggests that this is not sustainable and that Britain should not be in a situation where labourers are imported from the rest of the world whilst school leavers move straight from education to welfare. The Government has now moved to a points based system for deciding the eligibility of migrants seeking to work in the UK.
Internet Use and Abuse
A plethora of articles during the autumn has revealed widespread concern about the use of social networking sites by staff. Apart from the issue of whether undue amounts of time are spent on such activities, real scope exists to harass other staff members through the posting of views, photographs or videos. We offer two links here. The first of these is to You Tube and shows Gordon Brown’s apparent expertise with his little finger and nostrils and the second of these is to a Facebook page vilifying the Tory Leader, David Cameron. Whilst politicians may appear to be fair game and no doubt they are thicker skinned than a representative sample of the population, companies would do well to think of the ramifications if they know that staff are making postings such as these during the firm’s time and/or more importantly if postings such as these are being made about colleagues. Given the potential strict liability for protection from harassment, companies do need to develop policies to deal with the use of social networking sites and cameras on mobile phones.
Maternity Pay
The Government is committed to extending maternity allowance and statutory adoption pay from 39 weeks to 52 weeks, as well as introducing additional paternity leave and pay. However the plan for implementation by April 2009 has been put back by 12 months.
Minimum Wage
The Government has announced it plans to crack down on employers not paying the minimum wage. Under the crack down, all arrears of pay would be at the prevailing minimum wage rate in force at the time the discrepancies come to light as well as a fixed penalty of half of the arrears. The potential for a prosecution in the Crown Court is also created for more serious cases.
Religious Discrimination
There has been a clutch of cases on religious discrimination.
The Jewish Free School in North London denied a child a place on the basis that she did not meet stipulations set by the Chief Rabbi that applicant’s mothers should be ethnic Jewish. The school was accused of discriminating against children not meeting the Chief Rabbi’s definition. The Schools Adjudicator held that the school was not breaking race relations laws by giving preference to children born to Jewish Mothers, but held that the under subscription criteria giving preference to children with a Jewish parent or grandparent, regardless of religious connections, was in effect discriminating directly.
Elsewhere, a Muslim teenager is taking a London hair salon to the Tribunal, saying that she has been discriminated against for being told to remove her head scarf and have her hair on display.
The British Airways case with Nadia Aweida has rumbled on. She was sent home in September 2006 for being in breach of BA’s uniform policy by wearing a cross. After considerable pressure, BA changed their policy, but Miss Aweida says that Christians are singled out for discrimination at British Airways. BA has now won.
Sikh pupil, Sarika Singh, was suspended from school for wearing a bangle which she says has faith implications. The school insisted that the dress code held that only two forms of jewellery were allowed, being a wrist watch and a plain pair of little stud earrings. It is not known whether the dispute has progressed any further.
The Employment Appeal Tribunal had to rule in the case of Harris v NKL Automotive on Rastafarianism and dreadlocks. The EAT accepted that Rastafarianism amounted to a religious belief, but held that it was acceptable for an employer to have rules concerning tidy hair.
Racial Discrimination
The Ashford Employment Tribunal used one of the longest ever decisions in the case of Burmis vs Kent County Council. Mrs Burmis claimed Unfair Dismissal and Race Discrimination following a Tribunal Hearing that lasted 42 days over a period of almost 2 years. The Tribunal found the school’s investigation of Mrs Burmis’ complaint to be unfair, chaotic, inadequate and incomplete. Mrs Burmis claimed to have been subject to racist talks from her arrival at the school in 2001. She describes a lurid picture of cannabis smoking and sexual misdemeanours on a school trip.
Recruitment
For those struggling to keep up with current technological trends it might be wiser to skip this article. City and International law firm Allen and Overy is recruiting ex-employees by the creation of a social networking site. There is a password protected platform and the network is open to all staff with the Chairman of the firm saying “it is about keeping them all in the family”.
Elsewhere the Financial Services firm KPMG is recruiting through the “second life” website and interviewing candidates in the virtual world according to their HR Director.
The Director of Leadership Services at Hay Group, Emmanuel Gobillot, says that Facebook is now so popular, that firms keen to build their own communities must decide whether to engage with them because firms need to build communities of value.
Perhaps it is just us, but it seems some people really do need to get out more.
Redundancy
If your aim is to retire at 50, with a full pension and a “golden handshake” at 3 times annual salary, then you are very likely to be out of luck unless you work for Defra. Apparently, because of the cost of dealing with Foot and Mouth and Blue Tongue disease, the Government department’s budget is under stress and they are therefore looking to reduce staff numbers. Not surprisingly the NFU finds these proposals less than impressive.
In a case involving UK Coal Mining v NUM, the Employment Appeals Tribunal ruled that the 90 days notice of intention to close a site where more than 100 employees are involved, has to be after appropriate consultations have taken place. As the requirement to consult applies to any situation where more than 20 members of staff are to be made redundant, employers need to take careful note of this decision. The consultation must begin either 90 days before the first dismissal takes effect, where it is more than 100 employees, or 30 days if between 20 and 100 employees are to go.
Given the prospects for the economy over the next 12-24 months, redundancies are likely to be on the agenda for many employers and getting it wrong is expensive.
Sickness Absence
In November 2007 the Government produced details of a new capability test for return to work. The test was introduced in October 2008 and anyone claiming sickness benefit will have to be assessed as to the work they can do rather than whether they are unfit for the work from which they are absent. It also is intended to assess the support that is necessary to have the employee return to work.
Elsewhere the work foundation is suggesting that Muscular Skeletal Disorders such as back pain are cured much more quickly if employees stay at work. Centrica claims to have reduced sickness absence by inviting employees to take part in back care workshops. Following the introduction of these workshops, absence reported due to back pain is apparently down by some 43%. The company assesses the savings to be £31 per £1 spent.
Food giant Premier Foods has been pioneering a new approach to medical certification at the Sarsons Plant in Middleton, Lancashire. Staff now go directly to Occupational Health to see one of their doctors rather than their own GP. The Company’s HR advisor told Personnel Management Magazine that the doctor has a “huge awareness of the factory and can put together a plan to curtain individuals back to work”.
Stress
According to research from the University of East Anglia they swear that work can help reduce stress. They also suggest that the use “taboo language” boosted team spirit. Although letting off steam may help the individual concerned, we question whether there would be any benefits enjoyed by those around the person thus distressed and the policy might cause more difficulties than it resolves.
Working Pension Secretary, Peter Hain, and Health Secretary Alan Johnson are committed to reducing the certificates issued due to Mental Health Problems suggesting that there should be a focus on supporting people with these issues.
Temporary Workers
Over the years we have written at various times about the Agency Workers Directive and the possibility of employment rights for temporary workers equivalent to those in full time work. The Agency Workers Directive keeps getting up from the floor after apparent knock out punches and now looks likely to make significant progress during 2008. Britain is increasingly isolated and the fact that the measure can be voted through on qualified majority voting seems guaranteed to ensure that some version of the Directive is voted through.
Elsewhere, in the case of Vernon v Event Management Catering Ltd, casual employees working regularly were held to have accrued continuous working.
The TUC is campaigning on skills gap with temporary workers. Brendon Barber has said that agency workers that work on long term assignments suffer a training deficit. Brendon Barber suggests that the Agency Workers Directive would cure this as an issue.
Tribunals
As the header to this month’s update shows, Tribunal case numbers have increased over the last 12 months. The full report of the Tribunal Service can be read here.
In a case involving Kirsty Walk’s husband a ruling was given on the term of trust and confidence. In the case RDF Media Group v Clements, the court deliberated on the obligation of trust and confidence holding that the very fact that the Board of Directors discussed an employee in negative terms did not breach the obligation. It was simply the brain of the company thinking aloud. It was also held that where the employee had first acted in breach of trust and confidence, that may in itself provide a defence to the employee claiming a breach of that obligation.
In an important ruling in the case of Royal Bank of Scotland v Bevan, the Appeal Tribunal held that time for presentation of a claim for Unfair Dismissal should be extended where an internal appeal procedure had just been concluded. The case hung on a delay of 5 hours. Their reasoning was based on the fact that in these circumstances it could be said that it was not reasonably practicable to present the case in time.
For anyone finding themselves in an Employment Tribunal, it is perhaps worth knowing that from the 1st December 2007, Tribunal Chairmen no longer exist. They are known as Employment Judges.
