- July 8, 2014
- Posted by: admin
- Category: Autum Winter 2013 Newsletters
Case Law Update – Significant decisions from the Courts
Case Law Update – Significant decisions from the Courts
This section includes important cases on:
- Holiday leave
- And yet…. more on Holidays!
- Holiday Pay and Long Term sickness
- Holiday entitlement while on sick leave
- Volunteer not covered by Discrimination laws
- Facebook comments “Gross Misconduct” – Yes or No??
- Religion and Belief working on Sundays.
- Performance and Age Discrimination
- Staff assaults and Employer liability – Employers may be liable for assaults by staff against managers
- Illegal immigrant not able to claim discrimination
- Reduction in hours can be a redundancy situation
- Suspension on Disciplinary Grounds
- Disability discrimination by association
- Redundancy and selection pool; Bumping
- Employer vicariously liable for murder?
- Dismissal following a final warning
- Redundancy Consultation – 1
- Redundancy Consultation 2 – Meaning of “establishment”
- Redundancy selection
- Criminal Record Disclosures
- TUPE and collective agreements
- NEW Section – Court Shorts (one line comments on recent cases)
Recent case law, particularly from the European Court, has appeared to give workers rights to carry holiday forward into the next holiday year in certain situations; particularly when illness prevents the worker from taking the holiday. A recent decision in the EAT has restored some balance it seems! A security worker lost his claim for holiday pay and the EAT held ” that workers can lose untaken holiday at the end of a leave year, provided that an employer has not operated the notice requirements for requesting annual leave in an unreasonable, arbitrary or capricious way so as to effectively deny requests for leave.” Mr. Lyons had a contract that stipulated that the holiday year ended 31 March and no carry over was allowed, so untaken holiday was lost. On 6 March he had 9 days holiday outstanding; and wanted to take them, but failed to use the correct procedures and forms for requesting the leave. The Employer did not pay him for the holiday which led to a grievance complaint before he resigned claiming constructive dismissal. His claim failed, which indicates that holiday rights can be lost at the end of the holiday year provided the employee has had a reasonable opportunity to exercise their rights to take leave.
[Case; Lyons v Mitie Security Ltd.EAT, 18.01.10]
In Shah v First West Yorkshire Ltd an employment tribunal has held that the Working Time Regulations can be interpreted in accordance with the European Court of Justice’s decision in Pereda v Madrid Movilidad SA to allow annual leave ruined by sickness to be retaken in the following leave year. Thus, the employer’s refusal to allow Shah to retake his holiday ruined by a broken ankle in a new leave year was a breach of the Regulations.
Shah booked four weeks of holiday from 22 February to 21 March 2009. Unfortunately, as a result of breaking his ankle in January, he was on sick leave until 18 April, during which he was paid holiday pay (a higher rate than contractual sick pay) for the days he had booked off. When Shah asked to reclaim his holiday entitlement, his Employer stated that the days were ‘lost’ as he returned to work after the new holiday year started on 31 March. Shah lodged a claim at a tribunal that under the Regulations he was entitled to take his accrued untaken leave – he had been “paid” for them according to the Employer.
The tribunal found that the requirement that holiday entitlement under the Regulations must be exercised in the year of accrual, should be interpreted consistently with the Directive so far as possible. As a result of the ECJ’s decision in Pereda, the Directive requires national law to permit an employee who falls sick during annual leave to take that annual leave at a different time, if necessary in the following leave year.
The Regulations aim to protect workers’ health and safety by ensuring they have a period of leisure each year, rather than storing up holiday over several years. It is consistent with this purpose to allow workers who did not have a period of leisure due to ill health to take that leave in the following year if necessary.
[Case; Shah v First West Yorkshire. Leeds ET Feb 2010]
Previous conflicting decisions from the EAT regarding the accrual of holiday during long term absences appear to have been resolved by the Court of Appeal in the Larner case
The EAT suggested that there is no need for the employee to make a formal request for holidays in order to preserve the entitlement. Mrs. Larner was dismissed after more than a year of sickness absence. Her Employer refused to pay for outstanding holiday entitlement on the grounds that no formal holiday requests had been made during her long absence. The EAT referred to the decision of the ECJ (in the Spanish case of Mr. Pereda) saying that Mrs. Larner retained her rights to holiday as she had been unable to take them in the year in question. She was therefore entitled to either payment in lieu or carried over the entitlement into the next holiday year.
On Appeal to the Court of Appeal, the EAT opinion was upheld. There is no requirement to actually request holiday in order to preserve the right to carry over untaken holidays during sickness absence
[Case; NHS Leeds v Larner CA 2012]
Currently, employers have to provide workers with 5.6 weeks” paid holiday, which is made up of four weeks” ordinary leave and 1.6 weeks” additional leave. Although workers should be allowed to carry over up to four weeks” ordinary leave to the next leave year if they are unable to take holiday due to sickness, the Employment Appeal Tribunal recently held that the 1.6 weeks” additional leave does not carry over automatically in the absence of any agreement between the parties (perhaps in the employment contract for example).
Earlier Tribunal decisions suggested that the additional 1.6 weeks leave granted by the UK Government should be treated the same as the 4 weeks entitlement from the WT Directive – i.e. it should carry over. A decision from the ECJ suggested otherwise; so the Government could impose conditions on the 1.6 weeks additional leave – such as it cannot be carried over in the event of long term sickness absence. This case interpretation means that there is no requirement for further legislation on this.
[Cases; Sood Enterprises v Healy EAT.; Neidel v Stadt Frankfurt am Main ECJ 2012]
In a decision which will be a relief to charities in particular, The Court of Appeal ruled in a case involving a voluntary worker at Mid-Sussex Citizen’s Advice Bureau. It held that as the woman was unpaid and had no contractual obligations, she could not claim disability discrimination when asked to leave her role. Every case will depend on the facts, and in this instance, the CAB had issued a document to the volunteer stating that this was not a contract of employment and had no legal status.
Permission was granted for an appeal to the Supreme Court, who agreed with the decision, stating clearly that volunteer, unpaid staff cannot claim discrimination. A further appeal to the European Court was refused.
[Case; X v Mid Sussex CAB Supreme Court 2012]
There is an increasing amount of case law involving employees posting information onto the Internet, which then involves the employer in some way.
Mr. Crisp, an Apple store worker posted derogatory comments about Apple and its products on a “private” Facebook page, outside working hours. A colleague who received these as a “friend” passed them to the store Manager, and Mr. Crisp was dismissed. The unfair dismissal claim failed. Apple had a very clear Social Media policy (Employers take note!). The firm’s Induction process also made it clear that commentary on the products, or critical remarks about the Apple brand were strictly prohibited. The Tribunal decided that there was nothing to prevent Mr Crisps “friends” from passing on his comments to the wider community, so he could not rely on Privacy rights in this regard.
A different opinion was reached by the High Court in another recent case. Mr. Smith, a Christian, employed by Trafford Housing as a housing manager, posted on his Facebook page that he thought that “gay marriage was an equality too far”. He then went on to discuss this view with others. Mr. Smiths Facebook profile gave the name of his Employer. The Employer suspended him over these remarks, and he was subjected to the discipline procedure. He was found guilty of gross misconduct and told that he could have been dismissed. However in view of his exemplary and long employment record, he was to be demoted to a non managerial post with a 40% salary loss.
Smith commenced an action in the County Court. (as he had not been dismissed, he claimed breach of contract and this cannot be taken to an Employment Tribunal unless the employment is terminated). Eventually it reached the High Court who made a number of points:
- The comments were entirely polite, not harmful or derogatory.
- No reasonable reader would have concluded his views were made on behalf of the Employer.
- Diversity means that employees will hold a variety of views on any given issue.
The Court held that the comments were not gross misconduct and Mr. Smith should not have been demoted.
Employers should give serious consideration to developing a Social Media Policy with the workforce. Identifying the Employer on a Social Media page in itself is insufficient to infer that all postings implicate the Employer. Where comments are entirely lawful and polite they are unlikely to be a breach of any policies or codes Employers have in place.
[Cases; Crisp v Apple Retail ET 2011 ; Smith v Trafford Housing High Court 2012]
Ms. Mba worked as a care officer at a care home run by the local council. The home provided short residential breaks for children with serious disabilities. Continuity of care was a top priority. The home operated around the clock and staff worked in a three shift rota. Full time staff, including Mba were contracted to work on two out of three weekends on the rota.
Mba asked to abstain from Sunday working due to her Christian beliefs, and for 2 years the Home accommodated her requests. However after two years, due to staff changes and tighter budgetary constraints, the Home informed Mba that she would, in future, be expected to work Sundays as part of her contractual rota pattern. She refused to do so. She was issued with a final warning under the disciplinary procedure and resigned.
The EAT agreed with the Tribunal that the Employer could justify this decision. The Home had the legitimate aims of ensuring: gender balance on each shift; appropriate levels of seniority and experience; continuity of care: providing a cost effective service in light of tougher budgetary constraints and fair treatment of all staff (other staff having to cover her Sundays). The Court also noted that for 2 years the home had made changes to accommodate her beliefs. Accordingly Mba’s claim of Religious discrimination was unsuccessful.
[Case; Mba v London Borough of Merton EAT 2013.]
The removal of the Statutory Retirement Age of 65 from October 2011 leaves Employers with the prospect of discussing potential retirement options with many more staff. ACAS Guidance makes it clear that Employers can still raise this sensitive issue with employees. Businesses will still need to plan for the future, which involves trying to gauge future recruitment needs etc. Managers do need to take care how such discussions are held, as there is a very real prospect of an Age related claim if these are badly handled. Even the best Employers can get into difficulty, ask Sainsbury’s!
Mr. Newey had been having performance discussions with his Managers for a while. He had worked for the Supermarket chain for 30 years and was in his mid fifties at the time. At one performance review meeting in 2008, a Manager said “Here we go again. When are you going to retire…?” The following year, in another formal setting another senior manager said “You are 54 years of age and if I was you I would be thinking of retiring.”
Mr. Newey won his claim that he had suffered age discrimination. Sainsbury’s argued that it was not based on age, but on his poor performance. However the ET stated that an under performing younger manager would not have had these remarks made as they were not eligible for early retirement.
The message is that Managers must be made aware that comments about retirement made to staff during performance and disciplinary discussions could be age discrimination. In the past it may have been acceptable to raise the issue of retirement as an alternative to disciplinary action; this case highlights the risks of doing so now.
[Case; Newey v Sainsbury’s Supermarkets ET April 2011]
Staff assaults and Employer liability – Employers may be liable for assaults by staff against managers
The Court of Appeal holds an employer vicariously liable for a factory worker’s assault on his manager in response to a lawful instruction – reacting to instructions was a normal part of employment and some violence a reasonably incidental risk, particularly in a factory setting. However, in another case it decides that an employer was not liable for an employee’s violent attack following a request to work an extra shift, as the attack was an independent venture, distinct from his employment at a care home. In so holding, the Court stresses that each case depends on its particular facts.
Whilst both assaults occurred in the workplace, in the Barchester case the employer, Weddall, was at home on a rest day when contacted by his Manager and asked if he could cover a shift at short notice. He was allegedly under the influence of alcohol and took exception to the manner adopted by his manager in the call. He then got on his bicycle, rode to the Care Home where he worked and assaulted the manager! This was not “in the course of employment” said the Court.
Under the common law, employers are vicariously liable for acts committed by their employees in the course of employment. There is extensive case law on the circumstances in which an employer may be held liable where employees commit assaults against third parties.
[Cases. Weddall v Barchester Healthcare Ltd. Wallbank v Wallbank Fox Designs. Both Court of Appeal 2012.]
The Court of Appeal has recently confirmed that an Employees illegal contract (she lied to obtain a visa that did not allow her to work in the UK) was so closely linked to the allegations of race discrimination, it prevented her from claiming compensation on Public Policy grounds. The case suggests that it will be very difficult for any employee to make a successful discrimination claim where they have knowingly entered into an illegal relationship with the Employer.
[Case; Hounga v Allen CA 2012]
An employee who was dismissed because she refused to agree a reduction in her hours was dismissed for redundancy said the EAT in a recent case. Previous case law, also decided at EAT level, had indicated that for a redundancy situation to occur, there had to be a reduction in the numbers of employees. In future therefore, if an Employer imposes a significant cut in hours to avoid dismissals for redundancy, and dismisses those employees who do not agree the change, could still face a redundancy claim. Employers, in the past, have treated the dismissal as being for ‘some other substantial reason” avoiding the need for redundancy payments. This is no longer a safe assumption. In view of the conflicting EAT decisions it is hoped that the higher courts get the opportunity to clarify the law.
[Case; Packman Lucas Associates v Fauchon.EAT, 16.5.12 ]
A reminder (in quite strong terms) from the Court of Appeal, that Employers should not consider suspending employees without some basis of evidence. This Employer was
criticised for suspending 2 nurses as a “knee jerk” reaction to an incident. The Judge said that the action to suspend was capable of being a breach of trust and confidence. This is not a new direction for case law. A case from 10 years ago involving a social worker who was suspended by Herts County Council, led to an award of compensation over an unreasonable act of suspension.
Employers should also note the guidance given in the Acas Code of Practice on Disciplinary and Grievance Procedures. Paragraph 8 of the Code recommends that if suspension is considered necessary, it should be as brief as possible and kept under review. Furthermore, it should be made clear to the employee that suspension does not amount to disciplinary action.
[Case; Crawford v Suffolk NHS Trust CA 2012]
In one of the first reported cases concerning Associative Discrimination, a worker claimed he lost his job after taking time off in connection with his wife’s disability. Mr Bainbridge lost his job on a fixed term contract as a welder. It had been renewed a couple of times, but was not renewed again after he took some time out at short notice because of his wife’s health. The Tribunal felt that in the absence of any other plausible reason, his contract had not been renewed because of his absences at short notice. As this was in association with his wife’s disability he was awarded £10,500 and the Employer was told to offer him future work when available. The latter point is a reminder that Tribunals have power to order more than mere compensation.
[Case; Bainbridge v Atlas Ward Structures ET 2012]
Recent case law has created some uncertainty regarding an Employers choice of a selection pool in a Redundancy situation. Redundancy dismissals are not covered by the ACAS Code, but have to satisfy the rules of fairness and reasonableness. This applies to the Employers decision on how to select a pool from which the dismissal will come. Some cases went against the Employer where the pool was not widened, bringing “bumping” into play – these cases often involve a very small pool, or indeed, as in this case, a pool of one person.
A golf club decided that the role of Club Steward was no longer required, merging bar and catering work and sharing the Stewards duties amongst other staff. The Tribunal found the dismissal to be unfair as no consideration had been given to a wider pool of employees being created. The EAT felt that recent case law had influenced the Tribunal – legislation in fact making no reference to the word pool – and went on to summarise the principles involved:
- it is not for the tribunal to decide whether it would have thought it fairer to act in another way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted – Williams v Compair Maxam Ltd
- the reasonable response test applies to the selection of the pool from which the redundancies are to be drawn
- there is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind to the problem
- the tribunal is entitled, if not obliged, to scrutinise carefully the reasoning of the employer to determine if he has ‘genuinely applied” his mind as to who should be in the pool; and
- even if the employer has genuinely applied his mind to the issue of who should be in the redundancy pool, it will be difficult, but not impossible, for an employee to challenge it.
The case was referred back to Employment Tribunal in light of the above. Employers should take care where a decision is made to eliminate one particular role occupied by a single person. Even when it appears reasonable to choose not to adopt a selection pool, the employer would still be well advised to consider carefully whether a selection pool might be appropriate and record its deliberations. It should, for example, carefully scrutinise the extent to which other employees are doing similar work, the extent to which other jobs are interchangeable, and whether there are employees doing similar work at other locations. Such records can be used to support a decision that not adopting a selection pool was reasonable, if an allegation of unfair dismissal is subsequently raised. Employers are also advised to seek approval of the proposed selection pool (or lack thereof) from union or employee representatives, where possible, and discuss its decision with affected employees.
In another senior court decision, the Court of Appeal also considered the Employers obligation to consider “bumping” – which in effect is also about the pool for selection. Bumping is where a redundancy situation arises, but the Employer dismisses another Employee to retain the employee whose job has gone. An Employee alleged that the Employer’s failure to apply bumping was a procedural failure making the dismissal unfair. The Appeal Court ruled that an Employer is not obliged to consider bumping – it is essentially a voluntary procedure and does not have to form part of a redundancy process.
[Cases; Wrexham Golf Club v Ingham; EAT 2012; Samuels v University of Creative Arts CA 2012]
In a potentially significant decision, The Upper House of the Court of Session overturns a claim against Sainsbury’s under the Protection from Harassment Act. Over a lengthy period of time, R, a Lithuanian national who worked for Sainsbury plc as a shelf stacker, was racially harassed by a colleague, M, who was employed as a night shift worker. M was known to be a member of the British National Party and openly held extreme racist views about Eastern Europeans coming to work in the United Kingdom. He frequently made racist comments, and was aggressive and argumentative.
After a series of incidents between the two, another argument ensued in the staff toilets, during which punches were thrown. After this, M was witnessed behaving strangely, pacing up and down and talking to himself. Later, he took a knife from the kitchenware section of the store and fatally attacked R. He was subsequently convicted of murder and jailed for life.
In April 2012, R’s family commenced proceedings against Sainsbury’s in the civil court under the Protection from Harassment Act 1997, on the basis that M’s conduct, in stabbing a man to death, should properly be regarded as an extreme form of harassment for which the Employer should be vicariously liable. This decision overturns a ruling that the death was closely linked to employment, sufficient to make the Employer liable. The Court felt that it was not just and reasonable to hold employers vicariously liable for all acts of harassment solely on the basis that employees were engaged to work together.
Furthermore, the Court considered that M’s acts could not be regarded as so closely connected with what he was employed to do that they could be seen as ways of carrying out his authorised duties. The fact that M had a known propensity to be violent to immigrant workers was irrelevant to the issue of vicarious liability.
[Case; Vaickuviene and ors v J Sainsbury plc, Court of Session (Inner House) 9/2013]
Several recent cases have occurred where the Employer dismissed for a further offence, after a final warning had earlier been issued. The dismissals were not for Gross Misconduct and therefore relied on the existence of earlier final warnings. The cases all indicate that the Employment Tribunal will often review the circumstances surrounding the issuing of the final warning when considering whether the subsequent dismissal was fair and reasonable. However the higher courts have warned against Tribunals looking too closely into the background of earlier warnings unless the evidence suggests that the final warning was issued in bad faith or was “manifestly inappropriate”. Whether the employee appealed the final warning or not was also considered to be significant in one case.
Employers need to ensure that their procedures are followed and they act reasonably throughput the entire process.
[Cases; Davies v Sandwell MBC CA 2013; Simmonds v Milford Club EAT 2013; Buzoli v Food Partners Ltd. EAT 2013]
In 2011 the Agency Workers Regulations were introduced, providing extra rights for Agency workers. These rules also added an obligation on Employers to provide information regarding Agency workers to employee or trade union reps in a redundancy consultation exercise. Recent cases have been taken up by Trade Unions where the Employer has failed to provide this information. In one case the Court awarded 60 days pay to each employee who was affected by the failure to consult effectively.
Employers need to be aware of this fairly new obligation when consulting with Unions over proposed redundancies or indeed Tupe mergers. The duty includes providing information on the numbers of Agency workers employed, where they are working and the type of work they are carrying out.
[Case; UNISON v London Borough of Barnet]
There has been uncertainty and conflicting case law as to the definition of “establishment” which is found in collective redundancy legislation. In the case of Usdaw v Ethel Austin Ltd (in administration), also known as “the Woolworth case”, the EAT has held that the words ‘at one establishment” in S.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 must be deleted to ensure compliance with the EU Collective Redundancies Directive.
This is a very significant decision meaning that the duty to consult (with either a trade union or elected representatives) over collective redundancies is therefore triggered where an employer is proposing to dismiss at least 20 employees as redundant within 90 days, irrespective of where those employees work. Thus, on the facts of the case, where thousands of employees were made redundant at hundreds of separate retail stores nationwide, all employees, including those working in stores where fewer than 20 redundancies took place, were entitled to protective awards for breach of the TULR(C)A.
The liquidation of retail chains Woolworths and Ethel Austin in 2008 and 2010 resulted in the loss of several thousand jobs. The recognised trade unions brought claims before employment tribunals that the administrators failed to comply with their duty to consult. The law states that an employer ‘proposing to dismiss as redundant 20 or more employees at one establishment” within a 90-day period must consult about the dismissals with the appropriate employee representatives. The tribunals found that there had been a failure to comply with the duty to consult but, treating each individual store as a discrete ‘establishment”, decided that there was no duty on the administrators to consult on redundancies at any store with fewer than 20 employees. Accordingly, the tribunals only made protective awards where 20 or more employees were dismissed at one store. This meant that around 4,400 workers – 1,210 at Ethel Austin and 3,233 at Woolworths – did not receive protective awards. The unions appealed to the EAT, arguing that this construction of the law was contrary to the Directive’s objective of protecting workers” rights on redundancy. The EAT agreed with the trade unions views.
As this penalty will effectively fall on the taxpayer (due to the companies ceasing to exist) the Government has appealed the decision.
It seems that Employers cannot quite get it right when it comes to the tricky decision on selection criteria! Previous cases have criticised Employers for being too subjective; the criteria must be fair, reasonable and objective. In a recent case the Employer went to such great lengths to be objective, they did not involve the line managers at all and the EAT said this was unfair! The Employer chose competency based selection criteria, also used by the Employer when recruiting. The assessments were carried out by the HR team; none of the managers who worked with the staff were involved in the process. A number of those selected on this basis complained of unfair dismissal. The EAT agreed the dismissals were unfair, and said it would have expected the assessments to involve the line managers as they were in the best position to assess the qualities of the staff. The EAT recognised that assessments by Managers carried a risk of prejudice or subjectivity, but said this was acceptable as the decision makers would be aware of this and moderate accordingly.
It is recommended that, wherever possible, assessments are carried out by more than one manager to help avoid problems of bias; and that input from a line manager should be included.
[Case; Mental Health Care UK v Biluan EAT 2013]
In the case of R (and others) v Chief Constable of Greater Manchester, situations relating to three people were considered by the Court of Appeal. ‘T” had two police warnings when he was 11 years old relating to theft of bicycles. This had been revealed on a CRB check and meant he had difficulty getting a part-time job in a football club, and on getting a place on a course at college. ‘JB” had difficulty getting a job in the care sector after a CRB check revealed that she had left a Superdrug store without paying for a packet of false nails nearly a decade earlier. A third person wanted to join the Air Force, but was refused because a CRB check revealed that, when she was aged sixteen, she had been involved in a carjacking that had left a man dead.
All three individuals claimed that the blanket disclosure of all convictions and cautions, even if they are spent (ie sufficient time has passed since the conviction such that the applicant is no longer required to disclose the conviction), was a breach of the right to respect for private life under Article 8 of the European Convention on Human Rights. The Court of Appeal found in favour of T and JB, but not in favour of the lady who had been involved in the carjacking. It found that an unfiltered disclosure of all convictions and cautions, without any consideration of their relevance was disproportionate to the aims of the CRB (now DBS) process, and was incompatible with Article 8. It also found that the requirement that serious offences should never be rehabilitated was proportionate – this did not breach Article 8.
As a result of this the government changed the process on 29 May 2013. An adult conviction will be removed from a DBS criminal record certificate if 11 years have elapsed since the date of conviction; and it is the person’s only offence, and it did not result in a custodial sentence. For those under 18 at the time of the offence the same rules apply as for adult convictions, except that the elapsed time period is 5.5 years. An adult caution will be removed when six years have passed since the caution, for those aged under 18 years the elapsed time period is two years. There are a number of offences which
will never be removed .
More details are available on the DBS website:
Transferred terms are not ‘dynamic”
Recently the European Court of Justice gave its decision in Alemo-Herron v Parkwood Leisure Ltd. This case considered whether clauses in employment contracts which oblige an employer to follow decisions of a third party (such as a national negotiating body) in setting pay levels, are binding on a new Employer.
The claimants were originally employed in the public sector by the London Borough of Lewisham. Their contracts of employment entitled them to pay increases in accordance with collective agreements negotiated from time to time by the National Joint Council for Local Government Services (the NJC). Following an outsourcing exercise in 2002, the claimants transferred under the TUPE regulations to a private company, CCL Ltd. In May 2004, they were transferred yet again, under Tupe, to Parkwood Leisure.
In June 2004, a new agreement was reached with the NJC that awarded a pay increase to relevant employees for the period of April 2004 to March 2007. As only public authorities can participate in the NJC, Parkwood was not a party to the negotiations for the new agreement and did not comply with the new NJC terms. The claimants brought claims for unlawful deductions from wages, arguing that, under TUPE, the contractual terms incorporating the NJC collective agreement had transferred to Parkwood, and, therefore, Parkwood was obliged to increase their pay.
In British law, the answer was originally that such clauses are dynamic in nature, thus transferring to the new employer under TUPE even if the new employer has no say in the national bargaining arrangements. But the ECJ disagreed saying that a dynamic clause referring to collective agreement undermines the balance between the interests of the transferee in its capacity as employer, on the one hand, and those of the employees, on the other. Under Article 16 of the Charter of Fundamental Rights of the European Union, an employer must have the right to conduct a business and assert its interests effectively in a contractual process to which it is a party. This allows it to negotiate the process of determining changes in the working conditions of its employees with a view to its economic future.
A dynamic interpretation, i.e. allowing the later agreement to affect the transferred employees would be inconsistent with the Charter. Member States are not therefore permitted to allow dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer where the transferee employee does not have the opportunity of participating in the negotiating process by which such a collective agreement was concluded.
Whilst the ECJ did not rule that dynamic clauses would never be enforceable against a transferee employer, it seems that, where the collective agreement originates from the public sector and the transferee operates in the private sector (as is often the case), the static approach will be preferred. For organisations that provide services to the public sector in particular, this is a welcome decision, which provides a level of certainty and control over salary costs that will greatly assist both when operating existing contracts and when tendering for new contracts in the future.
[Case; Alemo-Herron v Parkwood Leisue ECJ 2013]
(Very brief case summaries, most recent first.)
- Data Protection. The Court of Appeal agrees that damages for “distress” can be due to an individual whose data protection rights have been infringed. However damages will not be assessed as in discrimination cases as hurt feelings. In this case £750 was awarded. It was not an employment case, the breach was of information in connection with a finance deal, but the same will apply to any work related breach. Halliday v Creation Consumer Finance
- Employment Status. The Supreme Court, in a majority decision, has overturned the Court of Appeal and the EAT, and held that a Methodist minister was not an ‘employee”, and thus not entitled to claim unfair dismissal under the Employment Rights Act 1996. Methodist Conference v Preston. 2013
- Obesity and Disability Discrimination. The EAT confirms that obesity is not a disability in its own right; but the impact on the individual may lead to disability protection under the legal definition. Walker v Sita Ltd. EAT 2013.
- Covert recording. The EAT describes covert recordings as “distasteful”; but not for the first time, agrees that they may be used as evidence in Tribunals, after a woman tried to produce 39 hours of recorded disciplinary conversations obtained on an iPod! Whilst this was not admitted, she was told to come back with a short transcript of key facts if possible. Vaughan v London Borough of Lewisham. EAT 2013.
- Disability. Standing for long periods of time is a normal day to day activity, in that enough people spend time having to do this for it to be considered “normal”. As such an inability to stand for long, can be considered as a disability. Aderemi v London and South Eastern Railway. EAT 2013.
- Age discrimination. Remarks like “It might be possible to train a younger worker” and “…can’t teach old dog and new tricks” were capable of being ageist. James v Gina Shoes. EAT.
Calling a 64 year old salesman Yoda and changing has car number plate from OAB to OAP was evidence of age discrimination and the “only joking” defence did not work! Nolan v CD Bramhall ET
- Age laws protect the young too you know! One particular case, Roberts vs. Cash Zone was based on the fact that Miss Roberts was referred to by her supervisor as a ‘kid”, a ‘stroppy kid” and a ‘stroppy little teenager”. The Tribunal decided that the supervisor was being judgemental and derogatory; making assumptions about stereotypical behaviour. They considered that the statements resulted in belittling the employee and therefore creating a hostile environment. Miss Roberts was awarded £2000 for injury to feelings.
Another Age Discrimination case involving a teenager, Williams v Mistral Telecom Limited, demonstrates the rights that employees have, even with little or no length of service. Mr Williams had only worked for his employer for three-and-a-half hours before he was dismissed because of his age, being told that the Company only employed people aged 18 or over. At the Tribunal the Company stated Health and Safety reasons as one of the factors for this. The Employment Tribunal did not agree that the dismissal was justified and awarded Mr Williams £4,000 for injury to feelings.
- Political belief needs to be protected according to the European Court in the case of Redfearn v United Kingdom. This decision has prompted a change to the Equality Act. Redfearn was a community transport driver dismissed over membership of the BNP.
- A reminder that discrimination claims need factual evidence to support them. A 53 year old Asian Male was dismissed on capability grounds after only 6 months in the job as a solicitor with a Law Firm. His replacement was a black, younger female and the guy promptly alleged discrimination on race, sex and age discrimination! The Court ruled that he had failed to clearly set out clear factual allegations to support unfair discrimination: ie more than the plain facts that the new applicant was female younger and black! The Race and Sex complaints were struck out, whilst the Age complaint was referred back to Tribunal despite being described by the EAT as “borderline”. CLC Solicitors v Methuen, Court of Appeal.
- Discipline. The Court of Appeal agrees that two social workers, who were dismissed following a second set of disciplinary procedures, were fairly dismissed. The employees were given formal warnings in the first instance but dismissed when management decided this was too lenient and reopened proceedings. The employees were involved in the care of “baby P”.
- Compulsory retirement at 65. Last year, the Supreme Court remitted this claim back to the employment tribunal, to consider a number of issues relating to justification (the main one being whether 65 was an appropriate age for mandatory retirement, or whether another age such as 68 or 70 should have been adopted).
The employment tribunal found in favour of Clarkson Wright & Jakes Solicitors, the Employer in the case. The tribunal held that retention and planning were legitimate aims, that harmonious working relationships was also (with some caveats) a legitimate aim, and that a mandatory retirement age achieved these three aims. Importantly, it held that a mandatory retirement of 65 was a proportionate means of achieving those aims. Accordingly Mr Seldon therefore lost.