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Press Releases from Employment Relations
Employment News January / February 2010
This edition is both a review of 2009 and recent developments. The recent poor winter weather has meant that we are a little bit delayed in doing our January update.
Employment law is simply an extension of the social agenda for any government and as we have recently seen, can generate interest and opposition from religious leaders such as the Pope as well as being one of the key electoral battle grounds.
All the pundits are predicting an election on 6 May 2010 and whilst this is in the gift of the Prime Minister, all the political parties seem to be working to an assumption of 6 May, since if nothing else, the election cannot be later than June 2010.
We are planning a question time session for the three principal candidates in our constituency which will be on 12 March and we can expect to hear a lot more on the subject of employment law reform or lack of over the next few months.
Whistle Blowing
We make no apologies for leading on this as during 2009 we have had two major cases in the employment appeal tribunal and indeed one of them Geduld v Cavendish Munro Professional Risks Ltd, [2010] IRLR 38 has featured in the law reports and many commentators are referring to it as one of the defining whistle blowing cases of the year. We also successfully represented Geoffrey Topliss on the unsuccessful appeal brought against him by NCP services who were arguing that the Central London Tribunal decision of December 2008 should be overturned.
In the Geduld case, we successfully represented the employers who were appealing against a finding that Mr Geduld had been dismissed from his position as a director of the company because of public interest disclosures made by him and that therefore pursuant to section 103A of the Employment Rights Act 1996, he was automatically unfairly dismissed. In the case he had fallen out with his two fellow directors and shareholders leading to a solicitor’s letter on his behalf alleging unfair prejudice. He was then dismissed and not having one year’s service sought to rely on the whistle blowing provisions. The tribunal initially found for him but on appeal it came before Her Honour Mrs Justice Slade who drew a distinction between communicating information and making an allegation. Making an allegation she said was not conveying facts. She added “If an employee is feeling badly treated, the solicitor may write to say that the employer is in breach of contract … The solicitor may say “If the situation does not improve we have advised our client that he can resign and claim constructive dismissal.”” In those circumstances, in our judgement, no protected disclosures can be made in such a letter. She went on to say that using the example of a hospital ward, communicating information would be “The wards have not been cleaned for the past two weeks.” “You are not complying with health and safety requirements” would be an allegation and therefore unprotected.
In the Topliss case, Mr Topliss had successfully argued in the employment tribunal that he had been dismissed as a result of his disclosure that NCP were defrauding the DVLA on their contract. On appeal, at a preliminary hearing his Honour Judge Clark dismissed the appeal by NCP saying that it was open to the tribunal on the evidence to accept the claimant’s version. Mr Topliss’ cross appeal on the issue of compensation came before the Honourable Mr Justice Langstaff on 15 January 2010 when the cross appeal was allowed. Mr Topliss’ compensation claim has now been remitted for reassessment by the Central London Employment Tribunal.
Meanwhile, the Department for Business Innovation and Skills has clarified proposals to give employment tribunals the power to pass on whistle blowing allegations made during claims. Claims arising after the 6 April 2010, claimants will have the option of inviting the tribunal to pass on to the relevant authorities the allegations that they are making.
Age Discrimination
Following the Heyday case, Equalities Minister Harriet Harman has told the Daily Mail newspaper that the default retirement age should not simply be lifted but scrapped altogether.
Employers need to undertake a review of all of their policies to see whether they are compliant or whether they give disproportionate advantage to a particular age group within the work force. However, interestingly enough, in the case of Pulham and Others vs London Borough of Barking and Dagenham it was held that apparently age discriminatory pay protection arrangements were capable of being fully justified. There the Borough Council operated a scheme rewarding loyalty and experience, paying increments to employees if they satisfied length of service provision (25 years) and age criteria (55 years). The EAT held that such a pay protection scheme could conceivably be justified and remitted it to a fresh hearing at a tribunal. Ultimately, we suspect that the length of service provisions will hold but not the age criteria.
Bullying and Harassment
Following the precedent of Majrowski and Guys Hospital, a hospital information manager at the Prince Phillip Hospital in Llanelli has won compensation from the Swansea County Court of £150,000 for her claim of bullying and harassment.
Training
From April 2010 employees working in a business employing more than 250 people will be able to request unpaid time away from core duties for training. The proposals will work in the same way as the flexible working provisions and are introduced by the Apprenticeship Skills Children and Learning Act 2009. A guidance leaflet has been produced. It is intended to extend the right to employees in all businesses regardless of size from April 2011.
Discipline and Grievance
We have written before about the possibility of legal representation in in-house discipline and grievance proceedings. The case of G,R (on the application of) v X School and Others came before the Court of Appeal on 20 January 2010. The disciplinary proceedings in question were started against a young part-time music assistant who was accused of abuse of trust with a 15 year old male pupil. He was dismissed after a disciplinary hearing and told that he would be reported for possible inclusion on POCA register. The Court of Appeal held that the right to a fair trial provided by the Human Rights Act, where in effect a disciplinary finding would impact on the right to practice a profession.
Possible extrapolations from this would include:
- A law firm dismissing a solicitor for dishonesty which ultimately could lead to a reference to the Solicitors Regulation Authority.
- Anyone employed in the financial services industry where a report may need to be lodged by the dismissing employer because of the issue of “fit and proper person”.
- Dismissals for gross misconduct in the teaching and medical professions.
- Any other regulated profession that you care to think of.
Disability
In the case of Patel vs Olden MBC and Rushcroft School the EAT considered linked conditions. Mrs Patel had been a sufferer of Myelitis which developed into myofacial pain syndrome. Her claim for disability discrimination was initially dismissed on the basis that she had failed to meet the definition of disability as the two periods of physical impairment were separated and therefore neither of them was likely to last more than 12 months. She appealed to the employment appeal tribunal who said that the judge should consider whether the existing condition gave rise to a further condition. Her case was remitted so that the employment judge could consider just that.
In the case of Garrett v Lidl, the EAT considered whether moving an employee to a different place of work within the same organisation could amount to a reasonable adjustment. Mrs Garrett was moved from Lidl at Woolwich to Welling where the company found it easier to make adjustments. This was held to be acceptable.
In the case of EBR Attridge Law vs Coleman, the position of carers of disabled people was considered. Mrs Attridge complained that she had been discriminated against because she had care of a disabled child. Because the Equal Treatment Framework Directive (2007/8/EC) required the outlawing of associative discrimination, the Disability Discrimination Act 1995 was wanting as it needed the words “employee who is primary carer of a disabled person by reason of that person’s disability”.
Agency Workers
The 2008 European Council Directive 2008/104/EC, on temporary agency workers has been given legal effect in the UK by the Agency Worker Regulations 2010. The come into force on the 1 October 2011.
The regulation provide that after 12 weeks in a given job agency supplied workers will be entitled to equal treatment on basic working and employment conditions including pay and holiday as if recruited directly by the hirer. They will also be entitled to information about vacancies in the organisation. This key right will not be capable of being invoked where the agency worker is on a permanent contract of employment with the agency. This contract would provide for continuative service and minimum pay between assignments.
Paternal Leave
The government plans to implement the additional paternity leave regulations 2010 where a father would be able to take the transfer of the second six months of twelve months maternity leave and receive the maternity pay equivalent. It will apply from 3 April 2011, although the right not to suffer detriment will come in from this April. Gestation periods are obviously longer in government circles than in the population at large.
Equality
It had been thought that a pregnant worker who has to be moved to alternative work or suspended on health and safety grounds (ie affecting her health or that of the unborn baby) should not suffer any loss of pay. However, in the case of Parviainen vs Finnair oyj, the advocate general gave an opinion that the pay rate required only had to be that of the job or post to which she has been transferred. The opinion is currently only available in French but those of our readers with a hankering to test their legal French, we offer the link here.
Equality and Human Rights Commission
The position of chairman of the Equality and Human Rights Commission, Trevor Phillips, has continued to be criticised over the past 12 months and he has brushed aside suggestions that he should resign. Expect this to be a persistent grumble through 2010.
The deluge of equal pay cases hitting the tribunals may be somewhat tempered. Mrs Quinn, who put a case in Scotland against her employer, had entered into a contingent fee agreement with Stefan Cross Solicitors. She won an order from the Scottish communicative session that the contract was void and had no force of effect. Mr Cross was prohibited from raising an action for payment of his fees. The Law Society’s Gazette has reported that a deluge of impending complaints has swamped the legal complaints service. Regulations expected to come in force in April 2010 as a result of an amendment to the Coroners and Justice bill are likely to put a limit on the upper percentage on contingency fee agreements of 35% including Vat. All very fine and dandy you may think except that in the absence of legal aid low value claims are simply not likely to be taken on. 35% of the possible compensation for a highly paid worker in the City is very attractive to lawyers but 35% of the award to a warehouse forklift truck driver is unlikely to be sufficiently attractive for him to be offered representation.
Minimum Wage
In the case of Hamilton House Medical Ltd vs Hillier the interpretation of the national minimum wage came up for consideration. Mrs Hillier had worked for Hamilton House and her basic rate of pay was less than the national minimum wage. In reality she was always paid more than the national minimum wage because she worked nights at a premium of 30%. She made a claim for the minimum wage which succeeded in the tribunal and subsequently the appeal tribunal.
The TUC elsewhere has been arguing for an increase in the minimum wage to £6 per hour.
On the subject to of minimum wage, the Reading Employment tribunal held that expenses only engagements, otherwise known as internships or licensed slavery, were illegal. The action against London Dreams Motion Pictures was supported by entertainment union Bectu. The tribunal held that interns were entitled to be paid the minimum wage and holidays. An internship can be differentiated from work experience which is for a relatively short period. Interns in the fashion and media industries often work 6-12 months on such arrangements.
Sexual Orientation
According to a report in the Daily Telegraph former drag queen Dean Awford, otherwise known as Dean the Queen was awarded £30,000 for unfair dismissal.
Tribunals
Because of the fall in the retail price index, the maximum compensatory award has been reduced from £66,200 to £65,300. The upper limit for the basic award of £380 per week remains the same.
In the important case Chagger vs Abbey National, the Court of Appeal considered future loss of earnings. It was held that loss of future earnings did not need to limited to a period which the claimant might have remained with the employer if the act of unlawful discrimination had not taken place. It can include an amount for stigma to take into account the difficulty the claimant might be able to show in finding alternative employment as a result of the discrimination claim, but nevertheless can be reduced to reflect the chance that the employee would have been dismissed in any event. Mr Chagger’s tribunal compensation had been £2,794,962.27 plus interest with the future loss amounting to £1,325,322.72. The case has been remitted to the tribunal to reassess compensation. This will now have to be reconsidered in the light of the guidelines from the court of appeal.
TUPE
The case of Cable Realisations vs GMB came before the employment appeal tribunal on the issue of failure to consult. It was held that in a TUPE transfer the obligation to consult was a discrete obligation, even if no measures were contemplated in relation to the transfer. However, the size of award should reflect the justice of the case and 3 weeks per affected employee, was according to his Honour Judge Peter Clark, “like baby bears porridge, just right”. Regulation of the 13 of the TUPE regulations allows for a maximum of 13 weeks per affected employee.
The case of Gutridge vs Sodexho demonstrated that employees who transfer across can bring equal pay claims, comparing their position with staff who did not transfer. This sets the bar very high for the due diligent exercise needed by an employer when taking over a contract. A company might easily take over a hospital catering contract only to find out that those staff launch equal pay claims on the basis of comparison with say hospital porters who did not transfer.
