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Press Releases from Employment Relations
Employment News October 2009
A little bit later than usual due to holiday absence, here is the October update. October and April are of course the two dates in which employment law changes are intended to take effect. The principal change for this October is the change to the minimum wage as well as some provisions on sections within the Companies Act coming into effect. The Disclosure of Address regulations means that directors’ addresses are no longer available from Companies House due to security reasons but directors’ contracts and service agreements are to be open for inspection. Within the Update we will also look at the Safeguarding Regulations.
Agency Workers
After years of opposition to the Agency Workers Directive, the Prime Minister told the TUC Conference in Liverpool in September that the legislative programme for 2009-2010 would include equal treatment for agency workers. Under the Agency Workers Directive member countries have until December 2011 to implement this. Acas produced a discussion paper in July 2009 on the Agency Workers Directive.
Age Discrimination
We reported in our last update that the government had brought forward the consideration of compulsory retirement age so that it would be reviewed in 2010. We now know that this was as result of the Heyday challenge. The government had always argued that the designated retirement age of 65 was a proportionate means of achieving a legitimate objective. It seems that the court would have been unlikely to have agreed with this reasoning if the designated retirement age had anything other than a short shelf life. The promise of a review seems to have been a get out of jail card for the government. The case report can be seen here.
Child Protection
The Government’s Vetting and Barring Scheme was officially launched on 12 October 2009 and introduces criminal offences for failing to comply with the scheme. The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2009 ensures that it is a criminal offence for a barred individual to seek or undertake work with vulnerable groups of for regulated activity providers knowingly to employ such a person. The barring list to be administered by the Independent Safeguarding Authority will place the lists currently maintained by the Criminal Records Bureau and List 99. It is anticipated that five million jobs will require checks. Anyone wishing to work with children or vulnerable adults will need to register with the bureau and pay a fee of £64 except for unpaid volunteers.
Discrimination
The guideline figures outlined in the case of Chief Constable of West Yorkshire v Vento in 2003 have now been revised. The case of Da’Bell v NSPCC has set upper limits of £6,000 for the lower band, £18,000 for the middle band and £30,000 for the top band. Increases are in the region of 20% across the board.
Data protection
A business called the Consulting Association provided private information on construction workers to a number of contractors. The Information Commissioner’s office took action against the business and its principal incurred a fine of £5,000 for data protection offences.
Construction worker Mike Dooley has now been given the all clear to take proceedings against Balfour Beatty. He alleged that he was blacklisted because of an election which he ran for UCATT and made redundant. The supposed blacklisting occurred in 1993 but the Central London Employment Tribunal has decided that notwithstanding the timing issues, he has a valid claim, which should be allowed to go forward.
Disability
The Department for Work and Pensions has extended a scheme to help people with fluctuating mental health problems keep their jobs. A pilot run in conjunction with the charity Mind has shown a 90% success rate. It is also intended to publish a national strategy for mental health and employment outlining the expectations of employers, professionals and others in improving well being. The BBC report can be seen here.
The case of Saunders v DWP (yes the organisation referred to above!) is a decision on disability but equally on constructive dismissal. The appeal tribunal case was dealing with the issue of the last straw. It ruled that the alleged final straw did not need to be taken as a single act of repudiation and could be taken in the context of previous acts. The EAT held that while it was quite possible to find the preceding acts fall short of a fundamental breach but it is only when the final straw is added that the tribunal can say “all the preceding acts taken together with the final straw constitute repudiation.” In others words no individual act might amount to repudiatory breach of contract but if there is a course of conduct over a period then that course of conduct can be viewed as a whole when examining behaviour. From an employer’s point of view it seems to us that the employee’s task is made more difficult if they have previously agreed that any complaints or issues can be dealt with as an informal grievance.
KPMG the well-known accountancy practice was forced to pay £45,000 in compensation having been found wanting in a case of disability discrimination. They dismissed Dhrupa Bid for having failed her induction assessment without waiting to find out the result of a special needs assessment.
Equal Pay
The local authority equal pay claims rumble on but the government seems to have sent a signal that local authorities can exceed the normal borrowing limits in order to bring matters to a close. Thirty-seven councils have been given permission by the government to borrow or sell up to £501m to settle equal pay claims. More information can be seen here.
Still on the subject of the local authority claims the head of the trade union Unison has attacked Cumbria County Council’s spending of close on £1.3 million defending its equal pay claims. According to a report in The Carlisle News and Star the union secretary alleges that the councils “are stuffing money into lawyers pockets to put off the inevitable.”
Elsewhere the Equality and Human Rights Commission have published an enquiry saying that women tend to receive bonuses of 80% less in leading finance companies. The report makes a number of recommendations including annual equal pay audits and to ensure that maternity, paternity and parental support schemes are in place and effective.
Health and Safety
We offer our usual link to the excellent update, produced by MESH Consultants. We simply confine ourselves to highlighting a few recent developments.
Tate & Lyle has been fine £270,000 for health and safety breaches following the death of a worker unloading raw sugar at the refinery in Silvertown in East London. The report in Medical News Today gives more details.
There is often a lot of ill-informed criticisms of the limitations imposed by health and safety, but anyone who doubts the importance of sensible precautions should read the report in The Guardian where a girl who lost all but two fingers, having put her hands in a bucket of plaster of paris. (The newspaper report contains distressing photographs). The school where the accident occurred has been ordered to pay £20,000 in fines and legal costs. The child, of course, will have her own separate claim for personal injury.
Migrant Workers
The possibility of exploitation in the workplace is an ever present risk for migrant workers. Migrant workers suffer a disproportionate percentage of serious accidents in the workplace, either because of the laisez faire approach of the employers or the failure to understand safety precautions by the employees. The government has announced funding of £3m for projects to enforce the minimum wage and health and safety regulations.
The Guardian of 24 September 2009 contained a thoughtful article about the difficulties faced by asylum seekers or migrant workers.
To the undoubted embarrassment of Baroness Scotland and the government, it was reported that the Attorney General had been illegally employing a Tongan woman with no right to work in the UK.
Maternity Leave
The government has issue a consultation paper on the possibility of up to six months’ unused maternity allowance being transferred to the father. You would expect this measure to be a casualty of the election timetable.
Minimum Wage
In last month’s update we wrongly announced the new minimum wage rate. We made the error of putting in the pre-October rates. For clarity, the new rates are:
- Adults: £5.80 per hour
- 18-21 year old: £4.83 per hour
- 16-17 year olds: £3.57 per hour
Pension
In 2002 Miss Annette Carson with others, living in South Africa, Australia and Canada, sought a judicial review of the government’s failure to index link their pensions. If they were living in the UK or EU and some other countries then the increases would be paid. Miss Carson claims to be the victim of unlawful discrimination contrary to Article 17 of the European Convention on Human Rights. The case was dismissed by the British courts, and then the European Court of Human Rights, but it is now being referred to the Grand Chamber of the European Court of Justice.
Racial Discrimination
In the case of Milton Keynes General Hospital NHS Trust (1) Punchard (2) v Maruziva, the Employment Appeal Tribunal had to consider possible differences between discrimination on the grounds of colour, compared with discrimination on the grounds of race, national or ethnic origin. The appeal tribunal decided that the question is now academic as a result of Section 54A of the Race Relations Act, with His Honour George Peter Clark stating, “Section 54A elevates from the permissive to a mandatory drawing of an inference of unlawful discrimination where the claimant has established a prima facie case of less favourable treatment on one of the prohibited grounds and the respondent has failed to provide any or any adequate explanation connected with that ground". Whilst the judge’s explanations makes eminently good sense, it should serve to remind employers that they need to be able to justify any decision, custom or practice that may have an impact on minority groups. This might be, for example, setting of shift patterns that make it difficult for those with responsibility for child care or arranging holiday entitlement that address the impact on different racial or religious groups. During Eid it should be made possible for meal breaks to be adjusted for employees observing the Ramadan fast.
Religious Discrimination
The long-running case of Nadia Ewedia at British Airways is going to the court of appeal. She is looking to raise £50,000 for costs.
Elsewhere Shirley Chaplin is continuing with her claim against the Royal Devon and Exeter Trust Hospital as a result of wearing a crucifix on duty. The trust’s policy is that necklaces cannot be worn as they are deemed to be a potential health risk.
Sex Discrimination
In the case of B and C v A the appeal tribunal had to consider a claim for sex discrimination lodged by an employee who had been dismissed following an allegation of rape. He had not completed 12 months’ service. The female employee made her complaint to the chief executive with whom she had had a close working relationship for some time. He believed her story and then summarily dismissed the male employee. He took the council and chief executive to an employment tribunal alleging unfair dismissal, wrongful dismissal, and unlawful sex discrimination. He won his claim for wrongful dismissal and sex discrimination at the tribunal, but the sex discrimination was overturned on appeal. The appeal tribunal said that they believed he had been treated extremely unfairly, but was there was no evidence that a female in the same position would not have been treated equally unfairly.
Tribunal
In the case of Beijin Ton Ren Tang (UK) Ltd v Wang, the appeal tribunal had to consider the issue mitigation of loss. The claimant had been recruited from China to work in a herb and health shop in London but was dismissed in January 2008. This dismissal was found to be unfair. Following her dismissal, she found it difficult to find alternative work because of her shock and distress at the manner of her dismissal and her isolation in the Chinese community and lack of English. The appeal tribunal found that it would not be reasonable to expect that somebody on Miss Wang’s position to get straight back into the job market and she had been left in an unusual and vulnerable position. Although she had not tried to find a job for some 17 weeks, this was not unreasonable in the circumstances. Employers must take their employees in the situation as they find them and every claim is different.
In the case of Autoclenz Ltd v Belcher the Court of Appeal had to consider the true nature of car valets who Autoclenz claimed were self employed. The valets had all been recruited through advertisements seeking self-employed people. In the terms of engagement, they were not committed to particular hours and in theory were allowed to provide a substitute. The court of appeal decided that as there was an expectation that the valet should turn up every day and not offer substitutes, the real status was that of employees. That made them entitled to holiday pay.
The Employment Tribunal and EAT statistics 2008-2009 have been published. The statistics show a 20% increase in the number of claims accepted, but, as a number of these are multiple cases, e.g airline cabin crew, there is in truth a 4% reduction. However, unfair dismissal claims were up for the year. The largest award in a case of race discrimination was £1,353, 432.
In the case of Henderson v Connect (South Tyneside) Ltd the position of employees under contract to third parties was considered. Mr Henderson was a minibus driver working with disabled children. His employers rang the minibus service under contract to the council. Initially his CRB check was clear, but then some allegations were made about his nieces. At all time he protested him innocence. However, the Safeguarding Children Board reviewed his case and decided that he should no longer work with children. Connect suspended Mr Henderson whilst it tried to persuade the council to reconsider, but when they failed they decided they had no choice but to dismiss him. It was held that providing the employer has done everything that it reasonably can to avoid or mitigate the injustice, then dismissal could be fair.
Whistle Blowing
The well-known whistle blowing nurse Margaret Haywood has been reinstated. She assisted the filming of elderly patients for a TV documentary where the central allegation was neglect. She was initially removed from the nursing register for misconduct but this has been replaced with a one year caution.
Elsewhere in the health service consultant Ramon Niekrash has lodged a case against the Queen Elizabeth Hospital Trust in Woolwich. He had concerns about patient care and wrote a number of letters, which he says ultimately had him excluded from the hospital and being branded a troublemaker.
In Scotland, Doctor Christina Paterson is taking the NHS Highlands Trust to an employment tribunal, claiming that she suffered a serious of detriment for drawing attention of the lack of life saving equipment.
Three nurses have also taken their Trust to a tribunal. They say that the Manchester Trust failed to protect them from detriment, including threatening phone calls, as a result of raising the alarm about a colleague.
