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Press Releases from Employment Relations
Employment News September 2009
The perils of the desk bound were illustrated in a case involving an administrative assistant for HM Revenue & Customs, Angela Lamberton, who developed a blood clot behind the knee as a result of being effectively tied to her desk. HM Revenue & Customs admitted liability.
It is easy to assume that the office environment is relatively benign from a health & safety point of view but it ain’t necessarily so. Once you have read our update, get up from your desk and walk around. Talk to your colleagues instead of sending e-mails.
This is our first update after the summer holiday and we trust that readers will have managed some time off and have enjoyed the break.
Age Discrimination
The government will be reviewing the default retirement age in 2010. Director of HR policy Katja Hall at the CBI says the way forward of the review is disappointing as a default retirement age helps staff begin the process of deciding when it is the right time to retire. More on the story can be read here.
Buckinghamshire County Council are outsourcing their recruitment to Hays. According to Personnel Today, Gillian G Hibberd, the Corporate Director of People, Policy and Communications at the council has said the deal would enhance the presence of the council in the jobs market and help attract more younger people to apply. This admission will no doubt be a useful policy statement for older job applicants who are refused interviews or jobs.
Elsewhere, in Scotland, Ruth McNeil took up a job as a part time medical receptionist before being told she was too old. Apparently her claim was settled before reaching the tribunal.
Finally, a survey carried out by Origen, their employee benefit survey, suggested few people had been affected by age discrimination. Their survey shows that most businesses do not have staff over the age of 65 with that percentage rising to 80% in IC, Telecoms and Media. 54% of small businesses in the South East (SME) elected to have employees over the age of 65. More details can be read here.
ACAS
ACAS has just published a revised code of practice on the subject of time off for trade union duties which has been approved by the minister for business. It will come into affect as soon as it has received parliamentary approval. More information on the new code can be seen here.
Health and Safety
We offer our usual link to the health and safety newsletter published by MESH consultant news letter.
It is interesting to read a report by Rita Donaghy, the former head of ACAS, into the underlying causes of fatal accidents in construction. The most frequent factors in fatal accidents range from training deficiencies to equipment not being fit for purpose. More can be read here.
The risk and regulation advisory council, part of the department for business innovation and skills, has highlighted uncertainty and confusion regarding health and safety in small organisations. The report suggests that improving the confidence of small organisations in health and safety routines could save small organisations between £70 and £140 million per year in unnecessary consultancy fees.
Disability
The employment appeal tribunal heard an interesting case on losses Rudd v Eagle Place Services Ltd. Mr Rudd had been a solicitor aged 42 working for Eagle Place Services Ltd. His salary at the firm was £70,000. He won a claim for unfair dismissal and disability discrimination. The tribunal decided that Mr Rudd would never earn an equivalent amount of money again and therefore looked at his career length losses using tables produced by the government’s actuary department, known as the Ogden tables. He was awarded a total of £453,242.46. Part of the argument in front of the Appeal Tribunal was whether the original tribunal should have used the actuarial calculation, which it did, reflecting the risk of unemployment or absence from work due to ill health. Mr Rudd argued in the Appeal Tribunal that they should not have applied that actuarial discount and should have applied the actuarial table appropriate for men in good health. The case has been sent back to the tribunal to reflect on the compensation awarded. Conceivably, therefore, Mr Rudd will finish with a higher award.
The case has implications for any decision for compensation in a discrimination case where the normal maximum will not apply.
Riam Dean has now been awarded compensation for the disability related discrimination by Abercrombie & Fitch. The BBC reports that initially she had been given permission to wear a cardigan over her false arm but this permission was withdrawn and she was told to work in the stockroom. She was awarded £6,800 for injury to feelings.
We have reported before on the case of Andrew Beck, a greenkeeper at the Davyhulme Park Golf Club who suffered from Asperger’s syndrome and learning difficulties. Having won his case for unfair dismissal and disability discrimination, he has been awarded £25,000 for injury to feelings and a further £25,000 for future loss of earnings and £5,000 for aggravated damages. With other amounts awarded he has been given £78,000 in total as compensation.
In what must be one of the worst taste cases to come before an employment tribunal, Jane Bryant, who had undergone a double mastectomy, received a pair of fake plastic breasts as a joke Christmas present from the owner of the Nursery where she worked. She also suffered taunts such as “keep abreast of things Janet” or “you’ve dropped a boob there”. She was awarded £11,250 for injury to feelings.
The Government through the minister for disabled people, Jonathan Shaw, has announced a learning disability employment strategy. The intention is to target people with learning disabilities in recruitment campaigns and to assist them into work.
Equality
The Court of Appeal had to decide on the appropriate members of a comparison pool in the case of Somerset County Council and Another vs Pike. The litigation had been started by 74 teachers. Mrs Pike had worked full time and was a member of the Teachers’ Pension Scheme but then retired and returned to work part time. The part time work was not counted towards her pension. At the tribunal, the judge held that the disadvantaged were the part time returners and that the comparison pool was the whole of the membership of the TPS. When it came before the Employment Appeal Tribunal, his Honour Judge McMullen said he could see no logic in bringing into the pool teachers who were in the TPS but had yet to retire. His assumption was that all returners would want their service to be pensionable and that the comparison pool should therefore be full time returnees. The appeal tribunal therefore ruled in favour of the teachers. The County Council took the case to the Court of Appeal and lost.
The Equality Bill has had two late amendments, firstly to make clear that treating women unfavourably because of pregnancy or maternity at work or in shops and public services is unlawful. The second amendment is to provide for dual discrimination, eg a black woman who might claim race and gender discrimination.
Work Permits
According to The Times, the migration advisory committee of the House of Commons is urging tighter restrictions on the flow of skilled immigrants from outside Europe. The suggestions entail higher earnings and qualifications thresholds, together with longer advertising periods for vacancies before they can be offered to migrants.
Maternity Leave
According to Reform, the pro-market think tank, poorer mothers get a raw deal from maternity pay while better off families get too much. The deputy director is quoted as saying “too little support is directed to those families that need it most and too much to those who do not”. They say their proposals for change would be cost neutral by moving maternity to a flat rate benefit.
Meanwhile the Daily Mail suggests that fathers are receiving a raw deal.
The case of Saint Alphonsus Society Primary School v Blenkinsop looked at the issue of continuity of work when absence was due to pregnancy or maternity. Teaching Assistant, Julie Blenkinsop started work with the school in January 2006 on a part time basis and had a baby in July 2007. She was offered a temporary contract from September to December 2007 which she did not accept. She said she intended to return to work on 25 February 2008 when maternity pay ran out. She subsequently lodged a tribunal claim on 2 May 2008 and the issue for the tribunal was whether the termination was on 23 January 2008, when the school refused to re-engage her, or 25 February 2008 when her maternity pay ran out. The tribunal and subsequently the appeal tribunal agreed with this latter reckoning.
The Government has now postponed its plans to give fathers the right to claim up to 6 months paternity leave. The change is due to the current economic climate.
Minimum Wage
Minimum wage increases for 1 October 2009 are:
- Adult minimum wage £5.73 per hour
- 18-21 year olds £4.83 per hour
- 16-17 year olds £3.57 per hour
Race Discrimination
Mihaela Popa, an accountant with Price Waterhouse Cooper, according to the London Evening Standard is suing her employer for a record sum. She alleges that colleagues told her that Eastern Europeans are whores and that racism within the firm prevented her becoming a partner where she would have expected to earn £500,000 per annum plus bonuses. She alleges that her treatment got progressively worse until she went sick for several months with anxiety and depression and then resigning in November 2006.
Elsewhere Hina Parekh, according to another Evening Standard report, complained of racist taunts at the police station where she worked.
Redundancy
According to a BBC report, BT is offering staff the option to have a year’s holiday on 25% pay in order to stave off redundancies. Additionally, workers are being offered a one off payment of £1,000 if they agree to go part time.
Elsewhere, the CBI has published a report calling for an alternative to a redundancy programme. This would mean employees would not work but would receive an allowance equivalent to twice the job seekers allowance; half to be paid by the employer and half by the government. The employee could then either move on or would be taken back once the economic environment had improved.
Sex Discrimination & Orientation
Trainee hairdresser, Julie Hardie, won a claim for unfair dismissal and sex discrimination against her employer in Dundee. She opted not to return to work following maternity leave.
According to a report on Pink News.co.uk, Beth Moules and her partner Sharleen Amos were awarded compensation for harassment in the realms of sexual orientation. They both worked for Aquatech Rainsoft in Bristol and alleged they were harassed on the grounds of being lesbian.
Teacher, Kwabena Peat, left a training course because he believed it was being used to promote homosexual rights. He then wrote to three staff who organised the event complaining about the aggressive presentation of homosexual rights. The school suspended Mr Peat and intended to charge him with gross misconduct. However, the governor’s appeal body at the school ruled that this was disproportionate response.
Sickness Absence
The Chartered Institute of Personnel and Development (CIPD) says that private sector absence has fallen from an average of 7.2 days to 6.4 days over the last 12 months whilst remaining stubbornly high in the public sector at an average of 9.7 days. They estimate that sick absence costs an average of £700 per day taken. They also highlight the potential economic consequences of flu related absence.
Tribunals
A report in the Guardian claims that the use of secret evidence in tribunal cases is damaging the sound administration of justice. It says that at the moment there appear to be 10-20 former government employees alleging race or religious discrimination, mostly Muslims of Asian or Pakistani origin who have been suspended or had security clearance withdrawn. If a closed hearing is ordered, the individual and lawyers are excluded whilst the government presents its case. A security cleared special advocate then examines the material and acts on the excluded individual’s behalf. In these circumstances, the individual does not get to see or hear the evidence against them.
In the case of Gisda Cyf v Barratt, the Appeal Tribunal had to determine what was the effective date of termination. Was it the date the letter of dismissal was sent, was the date it was received, or was it the date it was opened and read. Providing there is not an attempt to avoid, the court of appeal held that it was when the letter was read.
According to a report in the Times Higher Education supplement, university professor Manuel Graeber, professor of neuro pathology at Imperial College was unfairly constructively dismissed. He was subjected to disciplinary proceedings after he claimed that changes had been made to forms after he signed them.
The employment appeal tribunal had to consider the issue of change of terms of employment in the case of Rogers vs Microblade Ltd. Mr Rogers was a machine operator working for night shifts of 12 hours (the legality of that seems not to have been considered). Early in 2008 the company decided to stop the night shift and gave each employee one month’s notice that night shift workers would be required to work morning or afternoon shifts 5 days per week. Mr Rogers replied with a grievance in which he stated he would only work the new patterns under protest whilst commencing legal proceedings. Initially the employment tribunal held that the letter notifying the changes of conditions cannot possibly be considered a dismissal. The EAT disagreed. They said that “terminating your contract means ending it; re-engagement under a new contract or new contractual terms means the same.” He was therefore held to have been dismissed and able to pursue his claim of unfair dismissal.
In the case of Manor Oak (PMG) Ltd vs Kelly, the EAT held that once misconduct was admitted, the employer was not required to investigate further for the dismissal to be fair. He had admitted in the disciplinary hearing that he had passed a car for an MOT when it should have failed. However, the tribunal should have considered whether dismissal was within the range of reasonable responses and the case was remitted for a re-hearing.
The tribunal service annual report and accounts for 2008-2009 has now been published. The report can be seen here. The tribunal service has been trialling the possibility of judicial mediation which involves a tribunal judge assisting parties to reach settlement. The trial is deemed to have been a success and has been rolled out to all tribunal jurisdictions.
TUPE
In the case of Tapere vs South London Maudsley NHS Trust, the appeal tribunal had to consider mobility clauses in employment contracts following a TUPE transfer. Mrs Tapere worked for Lewisham Primary Care Trust at Camberwell. She was transferred to London and Maudsley and told her place of work would change to Beckenham. She resisted this, as it would increase her travelling time and make child care arrangements difficult. The move took place. Mrs Tapere was off sick and then resigned claiming fundamental breach of contract. At the employment tribunal the judge looked at the mobility clause in her employment contract. As her contract entitled the trust to move her to any location that it owned it was reasonable to require her to work from Beckenham. Mrs Tapere appealed that decision and won. Before the EAT it was held that the mobility clause stipulated that she could be transferred within the trust. As the trust who employed her did not own premises in Beckenham that was a change in terms and conditions. The employment tribunal increased the scope of the geographical area altering the contract to her disadvantage. The insistence on moving her to Beckenham was a breach of her employment contract and a fundamental one at that. The EAT decided that Mrs Tapere had been dismissed and remitted the case to a fresh tribunal to decide whether the dismissal was unfair.
In a case before the court of appeal, Gutridge and Others v Sodexo and another, the issue was the time limit for equal pay claims, Mrs Gutridge and others being transferred to Sodexo having worked for a health trust. They sought to bring an equal pay claim in respect of the period with the trust. The EAT held that the six months limit for equal pay claims ran from the date of transfer and therefore any claim after that period was out of time. The employees could pursue a claim in respect of the equal pay issue with Sodexo but not the transfer or whistle blowing.
The government has commenced a consultation on how employment tribunals should pass on details about whistle blowing cases to appropriate regulators. It is intended to make it easier for regulators to assess whistle blowing claims. At the moment, there is no process by which this can be done.
Whistle Blowing
The Times on 3 July 2009 had an article on whether the NHS suppressed whistle blowers. Cases for and against were put by the chairman of the British Medical Association’s consultants committee and the Health Minister.
There is a marked contrast with a case reported in the Times of 3 September from the United States and involving the well known drug company Pfizer. The company was ordered to pay $2.3 billion, making it the largest ever health care fraud settlement. This followed false claims about four prescription medications. Interestingly enough, part of the fraud settlement is the sum of $102 million to be divided amongst 11 whistle blowers. They are all believed to be former employees concerned that the company was asking them to break the law.
