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 | This is the first update since we moved into our purpose built offices in August. The new offices are pictured.
Clearly the topic of the moment is the credit crunch. Although the tribunal system is likely to be fairly understanding about the need for companies to make redundancies, the costs of getting it wrong may have become significantly more expensive and no employer can afford to waste money on tribunal cases. The latest tribunal statistics show that a total of 189,348 claims were lodged in 2007-2008 which represents a 31.9% increase on the previous year. With the shortage of re-employment possibilities, it is now more likely that disgruntled, dismissed employees are likely to try and seek redress. |
Age Discrimination
The Advocate General in the European Court of Justice has given an opinion on the case of Age Concern England v Berr more often known as the “Heyday” case. In the opinion of the Advocate General, the UK Government was entitled to fix a default retirement age of 65 in the Employment Equality (Age) Regulations 2006. However, the relevant procedures still need to be followed to justify dismissal on the grounds of retirement and the procedure is set out in Section 98z of the Employment Rights Act 1996.
Discipline and Grievance
The statutory dispute procedures have been the bane of employers’ lives since 2004 and have given rise to a wealth of litigation through the tribunals. The procedures themselves are due to be replaced in April 2009 and in this update we look at how the new procedures will operate.
However, the statutory procedures remain in force until then and thus any dismissals before that date, as well as grievances, will need to be dealt with under the existing procedures. More information is available elsewhere on our website. Although it is no doubt frustrating to be tied into current procedures, the state of the economy dictates that there will be a significant number of dismissals between now and April which will need a close familiarity with the statutory procedures.
Post April 2009, the current mandatory three step process goes, both for dismissal and grievances. Employment tribunals will then be charged with deciding whether the process followed has been fair and reasonable in the light of the new ACAS code of practice which you can see here in draft form. The current scope to increase or decrease awards by up to 50% for failure to follow procedures, will be modified to 25%.
The proposed procedures are still in draft form from ACAS but unless changed will come into force in time for the abolition of the current statutory regime. The principles very much carry over into the new guidelines but they are just that. The statutory procedures had become very formulaic with disastrous consequences for both employers and employees if any mistakes were made. Few employers should have any difficulty following the new guidelines.
ACAS is to be given an extra £37 million budget over three years to assist with its helpline and advice service and to ensure that they can mediate at any stage of a dispute. It is intended that they should be able to conciliate in disputes even before tribunal proceedings are issued.
The employment appeal tribunal case of Procek vs Oakford Farms Ltd shows the difficulties of the current procedures. In the case, Mrs Procek had written a letter with her complaints stating it was an informal grievance but if not addressed would result in a formal grievance under the regulations. The employer argued that as there was no stated official grievance the statutory procedures did not apply. The Appeal Tribunal took a different view saying that all that was required is that the grievance is set out in writing and sent to the employer, which had been done. As we have put it before, if it walks like a duck then it probably is a duck. If an employee complains about actions taken or contemplated by the employer, then it is not safe to ignore it and it should be treated as a grievance. In our view, this is likely to be the case even once the statutory procedures have been abolished.
Religious Discrimination in the USA
This case has nothing whatsoever to do with religious discrimination but we include it because it made us laugh. In the United States, Nebraska Senator, Ernie Chambers brought a case seeking an injunction against God to prevent death, destruction and terrorisation. He claimed God had threatened him and the people of Nebraska with widespread death, destruction and terrorisation on millions of the earth’s inhabitants. The Judge dismissed the suit on the grounds that no address had been given for service. The Nebraska Senator claimed that since God knew everything, he effectively had notice of the law suit. The Senator is currently considering an appeal. That is if he is not struck deaf, dumb or turned into a pillar of salt.
Disability
Most of our readers will be considering the issue of disability in the context of employment but in reality there will also be supply, goods and services which also has as many ramifications.
In the case of London Borough of Lewisham v Malcolm the House of Lords held that the bench mark case of Clark v Novacold was wrongly decided and that a person can only be liable for discrimination if they know the individual is disabled. Similarly, the comparison has to be with a person who is not disabled and the example was given of a person being dismissed for being off sick for more than a year where it would not be disability discrimination if that would be the company’s approach to a non-disabled absentee. The Lewisham case was actually on housing but the interpretation of the law is good in the context of employment as well.
Equality
At the moment, the various pieces of legislation covering equality issues are contained in myriad pieces of legislation, Equal Pay Act, Sex Discrimination Act, Race Relations Act, Disabilities Discrimination Act, Employment Equality Religious Belief Regulations, Employment Equality Sexual Orientation Regulations and Employment Equality Age Regulations. As if that were not bad enough, the Government intends to reform the law with the intention of simplifying the landscape by having all legislation in one act. It is intended that this should be enacted during this current Parliamentary session but we suspect with the credit crunch and the fallout from this, that Parliamentary time may be tight and the Government may be less keen to add to the regulatory burden. It is also intended that the legislation will enable positive action in the field of pay and recruitment.
The Government’s consultation paper, Discrimination Law Review can be read here.
Equal Pay
According to a report in the Times of 21st October 2008, women in the UK are paid an average of 17.2 % less than men for full time work. However, the Institute of Economic Affairs in a report authored by J R Shackleton, the Dean of University of East London Business School, suggests that there is little evidence of direct discrimination and that the differences are accounted for by lifestyle preferences as much as anything. 70% of undergraduates reading English or Psychology are female and he suggests the jobs available for these are lower paid.
Race Discrimination
The Employment Appeal Tribunal in the case of Abbey National vs Chagger ruled that the reverse burden of proof in the Race Relations Act 1996 does apply to colour as well. Mr Chagger, a man of Asian origin, claimed in his witness statement that he was discriminated against because of the colour of his skin. The Abbey National argued that as he said discrimination was on the grounds of colour rather than race the burden of proof was not on them to disprove discrimination. The EAT sensibly held that in instances of colour discrimination it was a manifestation of discrimination on the grounds of race or ethnic origin.
Don Mahoney, who was a white station supervisor with London Underground claimed he was discriminated against on the grounds of race having complained of intimidation by a black co-worker. He argued that the allegations had not been acted upon because he was white. The Tribunal agreed and awarded him £6,000 and suggested that London Underground might care to apologise.
We have reported before on the proceedings instituted by Tarique Ghaffur against the Metropolitan Police and the former Commissioner, Sir Ian Blair. It was reported last week that he had rejected a six figure payout because he was asked to accept that Sir Ian Blair was not racist, which he refused to do. The Metropolitan Police are also facing a claim from Jasmin Rehmin who was the forces director of partnership and diversity, who claims that she was bullied because of her colour and sex. She alleges that one female detective even ordered her not to touch her coffee cup because she was Muslim. These cases come against the backdrop of Boris Johnson, the London Mayor launching an enquiry into concerns about racism in the Met.
Religious Discrimination
The now well known claim by Nadia Eweida against British Airways for religious discrimination, based on their refusal to allow her to wear a cross outside her uniform, has reached appeal on the tribunal ruling that dismissed her claim.
In another case, Jo Burgin launched a claim against Al Jazeera television channel for sex discrimination, race and religious discrimination which was dismissed.
Flexible Working
The Government was committed to extending flexible working from April 2009 to all parents of children up to the age of 16. In the current economic climate there is now some doubt as to whether this will happen. In the last few days, Lord Mandelson has said that the Government is looking into all regulations due to come into force, given the economic uncertainty, but no decision had been taken about flexible working. The Chief Secretary to the Treasury, Yvette Cooper, was saying as recently as 20th October that the Government would continue its support. Watch this space.
In the somewhat rarefied atmosphere of City law firms, new research published by the charity focusing on work life balance, Working Charity and sponsored by law firm Addleshaw Goddard said that City law firms are still suspicious of home working and employees who want a healthy work life balance. A working week of 50-60 hours is still common.
Elsewhere, the parameters of time off for emergencies was considered in the case of RBS vs Harrison. Mrs Harrison found that her childminder was due to be unavailable two weeks hence and argued successfully that this was an unexpected disruption in child care arrangements. The Employment Appeal Tribunal held that the passage of time between discovering the impending disruption and the disruption taking effect was largely irrelevant and that the legislation simply provided for the unexpected. As the employee had been unable to organise alternative childcare and given her employer the earliest possible notice, the tribunal held that it was necessary and reasonable to take the day off in question.
Health and Safety
We have our usual link to the MESH newsletter.
The Health & Safety Executive is again highlighting the problems of asbestos and has updated its asbestos website. They are now targeting the awareness of plumbers, electricians and other tradesmen who might be at risk, for a media campaign.
Work Permits
At a time that the Government has introduced a point system for immigrants outside of the EU, employers are warning of possible labour shortages because of the number of EU migrants returning home according to a report in the People Management magazine.
Maternity Pay
The Government has delayed the extensions for adoption and maternity pay that were due to come into effect from April 2009. By virtue of these changes, maternity and adoption pay were due to be extended from 39 weeks to 52 weeks with paternity leave being increased to 26 weeks where the mother had returned to work not taking her full entitlement to maternity leave. It is now intended to introduce the provisions in 2010.
Minimum Wage
From 1st October 2008 there are changes to the national minimum wage. The full rate is now £5.73 per hour and is for workers aged 22 and over. For those aged between 18 and 21 the new hourly rate is £4.77, whilst those aged 16 and 17 see an increase to £3.53 hourly.
The level of the increase is more modest than in previous years and simply in line with inflation.
Redundancy
Given the current economic climate, redundancy is likely to take centre stage for some time. It was reported in People Management magazine in September that Marks & Spencer are looking to reduce their standard redundancy package for staff. At the moment staff over the age of 41 receive 3.75 weeks pay per year, which the company seek to reduce to 3 weeks per year.
Rolls Royce and Unite Union went to the High Court to consider the merits and demerits of a last in first out provision in a collective agreement. The union wanted to maintain the proviso whereas Rolls Royce argued that it was discriminatory against younger workers and wanted to see it go. The High Court agreed that whilst it was prima facie discriminatory, it was nevertheless a proportionate means of achieving a legitimate aim and was therefore objectively justified and lawful. The significance of this is that if employers want to go down the route of last in first out, they should now be able to do so. Because of the costs associated with redundancy of long standing employees, this may indeed be an attractive proposition.
It may be a drop in the ocean but £100 million in extra cash is being made available over the next few years to help people facing redundancy retrain. The money comes from the European Social Fund.
The Forum of Private Businesses has published a sensible 10 tips for redundancy which can be seen here. Amongst the tips, which we would echo, is the need to take advice. The CIPD has identified an increase of 28% of those seeking advice from their helpline about redundancy.
Stress
The economic difficulties are also likely to see an increase in stress related claims. The Court of Appeal has revisited the guidelines previously handed down in the case of Hatton v Sutherland. The Court of Appeal ruled in the case of Dickens v O2 plc that the mere existence of a confidential counselling service within the company was not an adequate response where an employee was complaining against severe stress and told the employer that she could not carry on without fearing for her health.
Temporary Workers
After years of doubt, the EU Agency Workers Directive has now been approved. For most of the EU, employees will have the right to equal treatment with permanent staff from day one. The Government has agreed with the TUC and the CBI that the threshold should be 12 weeks employment. The Directive now has to be implemented within three years.
Tribunals
A fireman dismissed for being overweight is now going back to work following talks between the employer and the fire brigade unions. According to People Management magazine there were strict undisclosed criteria for this, believed to include losing weight.
In Scotland, at the Glasgow Employment Tribunal, a foul mouthed hairdresser has lost her claim for unfair dismissal and was ordered to pay legal costs of £4,700. The hairdresser was dismissed for allegedly cutting a friend’s hair but not putting the money into the till. When confronted at the disciplinary meeting her responses were to use foul language, leaving her employer to believe she had been guilty of theft. The Tribunal gave costs against her on the basis that she had conducted her case unreasonably.
As a result of a finding from the Information Commissioner the details of respondents in a tribunal will now be published. The register was discontinued in 2001 because of employers being pursued by “ambulance chasers”. The Tribunal Service will now have to disclose these details.
Evidence of the failure of the credit crunch to impact on the wilder shores of football finance comes from the report that Kevin Keegan is about to pursue a £9 million claim for damages against Newcastle United Football Club.
Working Time
A reminder that the proviso for paid holidays has increased to take account of public holidays. The current leave proviso between April 2008 and March 2009 is 4.8 weeks and this will be increasing to 5.6 weeks in April. Part days’ entitlement will not be rounded up.
In a case involving rest breaks, the Appeal Tribunal held that the entitlement to a rest break occurred after six hours work. There was not an entitlement to a subsequent rest break if more than 12 hours is worked.
