Employment Law Titles ~ Autumn 2009


Data Protection – New Two-Tier Notification Fee
Every organisation that processes personal information has a statutory duty under the Data Protection Act 1998 to notify the Information Commissioner’s Office (ICO), unless they are exempt from so doing.
Notification involves the data controller informing the ICO of certain details about their processing of personal information. These details are used to make an entry describing the processing in the register of data controllers held by the ICO. The register is available to members of the public for inspection so that they can find out how personal information is being processed by data controllers.
From 1 October 2009 a new fee structure applies to notifications and renewals. Organisations with 250 or more members of staff and a turnover of £25.9 million or more are now required to pay a fee of £500, as are public authorities with 250 or more staff members. This higher rate does not apply to charities or small occupational pension schemes, however.
For organisations with fewer than 250 staff members and those with a turnover below £25.9 million the fee remains at £35, as previously.
It is anticipated that the two-tier fee structure will augment the ICO’s resources by approximately £4.7 million per year.
For further information, see http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/notification_fee_changes.pdf.
Disability Discrimination – ‘Likely’ Means ‘Could Well Happen’
Employment disputes often arise because an employer does not consider that an employee’s condition is one that qualifies them for protection under the Disability Discrimination Act 1995 (DDA). It is therefore important that the definition of disability contained in the DDA is understood and interpreted in a consistent way.
For the purposes of the DDA, someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If the impairment ceases to have such an effect, it is to be treated as still having that effect if it is likely to recur.
Furthermore, an impairment which would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
In SCA Packaging Ltd. v Boyle, the House of Lords has ruled that the word ‘likely’ should be taken to mean ‘could well happen’.
Mrs Boyle suffered from nodules on her vocal chords. She had undergone surgery to remove them and several months of speech therapy, after which she continued with a strict regime that involved voice exercises, resting her voice, sipping water and trying not to raise her voice. She attributed the non-recurrence of the nodules to her adherence to this regime of preventative measures.
In 2000, an office re-organisation was planned. Managers intended to remove a partition, which would expose Mrs Boyle to more noise and thus require her to speak more loudly. She argued that this was a failure to make reasonable adjustments for her disability. SCA Packaging Ltd. denied that she was disabled for the purposes of the DDA.
The House of Lords upheld the decision of the Court of Appeal that in determining whether an impairment would be ‘likely’ to have a substantial effect without the measures taken to treat or correct it, ‘likely’ means only ‘could well happen’. The more exacting test, whereby ‘likely’ was held to mean ‘more probable than not’, should no longer be used.It is sufficient to establish that the condition ‘could well recur’. Having established therefore that Mrs Boyle was disabled for the purposes of the DDA, the case was returned to the Employment Tribunal for hearing on its merits.
Says <<CONTACT DETAILS>>, “This decision clarifies the protection employers must afford to employees who suffer from a disability but who can carry on normal day-to-day activities because their condition is kept under control by medication or a prescribed course of treatment. We can advise you to ensure that your actions do not lay you open to a claim of unlawful disability discrimination.”
Duty of Care to Employees – Obvious Risks
Every employer owes a duty of care to its employees, but deciding who is responsible for an accident can be very difficult when the issue is whether warnings against risks should have been given or, if given, were adequate.
Employers often argue that employees are responsible for their own actions, but employers have a duty to warn employees of potential risks in the workplace, even if these are obvious. A recent case has confirmed that some risks are so obvious that warnings need not be given, for example where to argue a lack of awareness of the risk would be absurd. However, it is hard to distinguish between what would be deemed to be that obvious and what would not.
In the case in point, an employee turned a box upside down in order to reach material on a top shelf. The box slipped from underneath him, causing him to fall and sustain injury. The employee’s case failed both in the lower court and on appeal because the employer had specifically warned all employees that the use of boxes for this purpose was unsafe and had provided a safe alternative for reaching high items.
The Court of Appeal said that an employer is responsible for devising safe working methods and practices and, where they have issued a warning against a specific risk, they should not be held liable for an injury to an employee who ignored the warning. The judge commented that ‘some dangers are so obvious that no instruction is required’ but this would not have been the case in this instance. Had the employer not warned of the potential risks attached to using the box for this task, the argument that the employee was capable of appreciating the risk for himself would have been rejected.
What constitutes a sufficient warning is a grey area and is an issue of fact, not law, so previous case rulings provide little assistance as each case is judged on its own facts. In an unreported case, an employer was held to be liable for an injury sustained by an employee who had mopped a floor and then slipped on the wet surface she created. The employer argued that it was obvious that the floor would be wet immediately after mopping and that it needed to be dry mopped to be safe. This argument was rejected by the court, however.
It has been suggested that an employer is only under an obligation to warn employees of risks that fit within the broad remit of the employee’s job description. For example, if an employee were to put his fingers into an electrical socket, the employer would not be liable for the resulting injury as this was not a part of their ‘system of work’. In contrast, an employee who has been asked to rectify a paper jam in a photocopier should be warned of the risks. In some circumstances, an employer may decide to let experienced employees devise their own safe working practices in relation to certain tasks but, ultimately, it is the employer’s responsibility to assess and warn against workplace risks.
The best way to safeguard against potential claims is to warn against all potential risks, however obvious. Ensuring a full risk assessment of tasks is carried out and that all staff are trained properly is paramount.
If you would like advice on implementing safe working practices to avoid liability claims, please contact <<CONTACT DETAILS>>.
Partner Note
Ammah v Kuehne & Nagel Logistics Ltd. [2009] EWCA Civ 11, [2009] All ER (D) 155 (Jan).
Equal Pay and ‘Piggy Back’ Claims
The Employment Appeal Tribunal (EAT) has ruled that relevant male colleagues of female equal pay claimants are entitled to bring contingent ‘piggy back’ claims using the female claimants as comparators and may recover sums equivalent to those awarded to the comparators by way of arrears (South Tyneside Borough Council v McAvoy and others).
Claims can only be brought under the Equal Pay Act 1970 (EPA) by employees who can show that a comparator of a different sex is being paid more for like work, work of equal value or work rated as equivalent. In the case in point, the female claimants’ principal entitlement as a result of their successful claim was to payment of arrears, partly for the period before the presentation of their claims and partly for the period between then and the decision regarding them. However, the claimants also included men who worked alongside the female claimants and brought contingent claims on the basis that if and to the extent that the women’s claims succeeded, they would be entitled to equivalent payments using the women claimants as comparators.
The Employment Tribunal (ET) held that the male claimants were entitled to an equality clause with the relevant female comparators from the date on which the latter presented their successful claim but were not entitled to any arrears of pay for the period before that date.
The Council appealed against the decision that the male claimants were entitled to make any claim by reference to the female comparators and the male claimants cross-appealed against the ET’s refusal to extend their entitlement to arrears so as to include the period before the date on which the successful claim was presented by the comparators.
In the EAT’s view, whilst it is necessary to take the words of the EPA as a starting point, the essential question is always whether the claimant has been a victim of sex discrimination. To that end, it considered what the male claimants’ rights would have been had they waited until the female comparators’ claims had succeeded before commencing proceedings of their own. This approach involved asking whether this type of claim was valid and, if it was, what was its scope?
The EAT judged that it would, as a matter of general principle, be discriminatory for a man in this position not to be entitled to the same pay as a female comparator following the success of her claim. A male claimant was therefore entitled to the benefit of a contractual term enjoyed by a female comparator when the benefit of that term had been acquired by virtue of the operation of the EPA.
Secondly, had the male claimants brought claims following the award of arrears to the female claimants, they would have been entitled to claim an equivalent amount. What matters is not when the modification to the contract actually occurs but the fact that the arrears are pay and that once the comparator receives them, the claimant should do too. There was no basis for the cut-off point adopted by the ET.
As regards whether male employees’ claims can be brought contingently, it is appropriate for them to submit their claims at the same time as the female claimants, even if such claims are technically premature, as they are contingent on the success of the female claimants. There are obvious conveniences in including the contingent claims from the start of the proceedings, even though they may be placed ‘on the back burner’ pending determination of the primary claims.
Says <<CONTACT DETAILS>>, “The Equality Bill 2008 contains provisions to require employers with more than a specified number of employees (yet to be finalised) to report on differences in pay between men and women. If you have not already done so, we can advise you on carrying out a pay audit to ensure that any discrepancies are identified and dealt with.”
Fit Notes to Replace Sick Notes
Following recommendations made by the Government’s National Director for Health and Work, Dame Carol Black, in her report on the health of Britain’s working age population, ‘Working for a Healthier Tomorrow’, the Department for Work and Pensions plans to replace the current system of hand-written sick notes for those unable to work.
Presently, someone is either deemed fit or unfit for work. Under the proposed new system a doctor will provide a patient with a computer-generated fit note designed to facilitate the individual’s return to work by emphasising what he or she is capable of. Doctors will have the options of advising whether someone is fit for work, not fit for work or fit for some work now. The latter option would be used where a doctor considers that the patient could return to work if some aspects of his or her work were changed, either temporarily or permanently. Also, as doctors are often able to judge with a reasonable degree of certainty when a patient should be able to return to work, it is proposed that they should be able to specify whether or not there is a need to see a patient again when his or her current statement expires.
Where a doctor considers that the patient is fit for some work now, additional information about the patient’s condition or the doctor’s advice for a return to work must be provided. The doctor will also have the option to suggest appropriate adjustments to assist the employee to return to work. The proposed suggestions are:
  • a phased return to work;
  • altered hours;
  • amended duties; and
  • workplace adaptations.
The aim here is to give the employer appropriate information in order to facilitate an employee’s return to work where possible. The proposals make it clear that the employer will not be bound to implement suggestions by a doctor for workplace changes. Changes will be at the discretion of the employer and with the agreement of the employee. However, where the employee is disabled for the purposes of the Disability Discrimination Act 1995, failing to act on a doctor’s advice would not seem a wise move.
Improved communication between employers, employees and doctors should help to identify the causes of an employee’s absence and the intervention necessary to achieve a return to work. However, the British Medical Association has expressed concern that the proposals represent a fundamental change in the doctor-patient relationship.
The details of the proposals have yet to be finalised so some changes are likely before the new medical statements are introduced. This is planned for April 2010, subject to Parliamentary approval.
How Many Hours Do Your Workers Work?
Following the recent failure of attempts by the European Union to change the Working Time Directive, so as to make it unlawful to allow a person to work more than an average of 48 hours a week, the current Directive remains in force. This means that the opt-out from the 48-hour weekly working limit negotiated by the UK remains in place. With many businesses trying to cut staff costs, now is a good time for employers to check that their efforts to cope in difficult economic circumstances do not mean that they are failing to comply with the laws relating to working time.
Under the Working Time Regulations 1998, which implement the European Working Time Directive into UK law, the general rule is that an employer must take all reasonable steps to ensure that the working time of any adult worker does not exceed an average of 48 hours for each seven days during a 17-week reference period. However, if an individual worker is willing to work more than an average of 48 hours per week, this is allowed provided that this is evidenced by a signed opt-out agreement. The agreement must be revocable. A worker who does not wish to sign an opt-out agreement must not be subjected to any detriment as a result. For workers under 18, the maximum working week is 40 hours. These hours may not be averaged out and no opt-out from the weekly limit is available to young workers. However, if no adult is available to do the work and the young worker’s training needs are not affected, he or she may work more than 40 hours if doing so is necessary to maintain continuity of service or production or in order to respond to a surge in customer demand.
The employer must keep an up-to-date list of adult workers who have agreed to work more than the 48 hours a week average and retain adequate records which show whether working time limits in general are being complied with. These must be kept for two years from the date they were made. There are additional record- keeping requirements relating to hours worked by young workers and where work involves special hazards or night work.
The Working Time Regulations also impose rules about workers’ rights to rest breaks, rest periods between working days and working at night. For further information, see http://www.businesslink.gov.uk/.
Employers are advised to consider the likely health and safety implications for their employees of continually working long hours. For advice on any aspect of the Working Time Regulations, please contact <<CONTACT DETAILS>>.
Immigration – Changes to the Points Based System – Tier 2
As the Points Based System of Immigration beds in, the UK Border Agency (UKBA) has announced a number of changes and revised its guidance for employers and education providers who sponsor migrant workers and students.
Tier 2 – Skilled Migrants (General) – is the route which enables UK employers to employ nationals from outside the resident workforce to fill a particular job that cannot be filled by a settled worker.
Before issuing a certificate of sponsorship, one of the requirements for employers is to ensure that the vacancy filling process complies with the ‘resident labour market test’. To this end, since 31 March 2009, all jobs advertised under this Tier must be advertised to settled workers with the Government agency Jobcentre Plus. For detailed information on how to fulfil the requirements of the resident labour market test, see
In response to concerns from employers, the UKBA has recognised that Jobcentre Plus is not a suitable agency with which to advertise very senior roles so has altered the rules so that employers no longer have to advertise a vacancy with Jobcentre Plus where the job falls under Standard Occupational Classification SOC 1112 – which covers a chief executive (major organisation), a company director (major organisation), a director (major organisation), a general manager (major organisation), a managing director (major organisation) or a legal partner – and the salary package for the job is £130,000 or above or where there will be stock exchange disclosure requirements. All other resident labour market test requirements as set out in the particular code of practice must be met.
The exemption will not apply where the post carries a salary of over £130,000 but the job description is not consistent with the level of responsibility required for it to qualify for SOC 1112.
In addition, the requirement that a migrant’s salary must be paid in the UK has been removed.
For the remaining changes to Tier 2 and those to other Tiers, see http://www.ukba.homeoffice.gov.uk/sitecontent/documents/news/table-of-changes-7-August.
In Brief
Default Retirement Age – Review Brought Forward
The Department for Work and Pensions has announced that the Government now plans to undertake an evidence based review of the default retirement age, currently age 65, in 2010, not 2011 as originally planned. The U-turn is attributed to acceptance that an earlier review is appropriate given the ageing population. Many people wish to work beyond the age of 65 and, with longer life expectancy, a culture of early retirement is becoming increasingly unaffordable.
In Brief
Get Ready for Compulsory Pensions
The Pensions Act 2008 contains provisions which will make it compulsory (from 2012) for an employer to enrol qualifying workers aged between 22 and the state pension age who earn more than a de minimus amount (currently set at £5,035 per annum) into a pension scheme and to make contributions to the scheme.
The employer will be required to contribute a minimum of 3 per cent of salary and the employee will be required to contribute a minimum of 4 per cent of salary, up to a maximum of (currently) £3,600 per annum.
There will be substantial fines for failure to comply with the new regulations. Clearly, there are likely to be many changes to the provisions between now and the planned implementation date of 2012, but this is a good time to start thinking through the potential impact of the new regime on your business.
Partner Note
The Pensions Act 2008 can be found at
In Brief
Government Plans National Minimum Wage for Apprentices
The Government has announced that it has asked the Low Pay Commission to set a National Minimum Wage (NMW) for apprentices.
Currently, apprentices under age 19 do not qualify for the NMW. Neither do those over age 19 who are in the first 12 months of their apprenticeship.
There is a guaranteed rate of pay for Learning and Skills Council apprenticeships and this was increased from £80 to £95 per week from 1 August 2009.
In Brief
Guidance on Employing Children
The Department for Children, Schools and Families has produced guidance which sets out the key provisions of the law governing the employment of children under the school leaving age. This covers age limits and permitted hours of work, what kind of work children are allowed to do, permits and health and safety requirements. ‘Guidance on the Employment of Children’ can be downloaded at http://publications.everychildmatters.gov.uk/eOrderingDownload/Child_employment09.pdf.
In Brief
New Supreme Court Replaces House of Lords
When the new legal year started on 1 October 2009, a new Supreme Court for the United Kingdom replaced the House of Lords as the highest appeal court in the land. It will act as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases.
Previously, the Law Lords were able to become involved in the debate and subsequent enactment of Government legislation (although, in practice, they rarely did so). The creation of the new Supreme Court means that the most senior judges are now entirely separate from the Parliamentary process.
Insolvency and TUPE – Update
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) operate to protect the employment law rights of employees when there is a relevant transfer of a business or part of a business. However, Regulation 8(7) provides that the transfer provisions of TUPE do not apply to any relevant transfer where insolvency proceedings are analogous to bankruptcy proceedings and have been instituted with a view to liquidation of the assets of the transferor and are under the supervision of an insolvency practitioner. In such circumstances, employees do not automatically transfer to the new owner and any dismissals are not automatically unfair.
A recent case, Oakland v Wellswood (Yorkshire) Ltd., concerned a ‘pre-pack’ administration. In a pre-pack, the profitable parts of the company are transferred to a new company set up for the purpose of continuing all or part of the trade of the insolvent company. The new, viable company often takes on employees and assets of the old company, which is liquidated after the transfer.   
Mr Oakland was a director of Wellswood (Yorkshire) Ltd., which traded as a wholesaler in fruit and vegetables. By mid-2006, the company was in financial difficulties. It approached a major creditor, Gilbert Thompson (Leeds) Ltd. (GTL), as a potential buyer and sought the advice of an insolvency practitioner. It was agreed that administration was the appropriate course of action. GTL was not willing to purchase the old company as a going concern but decided to incorporate a new company as a wholly owned subsidiary of GTL. The new company would acquire the assets of the old company and five of its seven employees, including Mr Oakland.
On 6 December 2006, the sale of the assets to the new company was completed and administrators were appointed to the old company.
The new company subsequently dismissed Mr Oakland, who brought a claim of unfair dismissal. The Employment Appeal Tribunal (EAT) held that the administration had been instituted with a view to the eventual liquidation of the old company’s assets and Regulation 8(7) of TUPE therefore applied. Mr Oakland could not therefore bring a claim of unfair dismissal because the transfer provisions of TUPE did not apply in his case and he did not have sufficient service with his new employer to bring a claim.
On appeal, the Court of Appeal focused on Section 218(2) of the Employment Rights Act 1996 (ERA) and held that administration does not terminate a contract of employment. The administrator transferred thebusiness and, under Section 218(2) of the ERA, Mr Oakland’s continuity of service was preserved. He was therefore entitled to bring a claim for unfair dismissal even though there was no finding that he had transferred to the new company under TUPE.
Says <<CONTACT DETAILS>>, “Whilst the Court of Appeal’s decision confirms that continuity of service is preserved when the transferee in a pre-pack sale takes on an employee of the transferor, it was not required to express a definitive view regarding whether or not the insolvency exemption from TUPE applies automatically to a company in administration or to a pre-pack sale. However, the Court expressed the view that a strong argument could be made that it does not.”
Lesbian Couple Win Compensation for Discrimination and Unfair Dismissal
A lesbian couple who were ‘humiliated’ by sexual jokes made about them by work colleagues have been awarded more than £22,000 in compensation.
Beth Moules and Sharleen Amos had worked as saleswomen for Bristol-based water purifier firm Aquatec Rainsoft since October 2006. The Bristol Employment Tribunal (ET) heard that a work colleague had joked with other members of staff that the women had a threesome with a sales manager, saying that he was ‘the meat sandwich between them’. He also branded the women’s sexuality as ‘disgusting’.
The couple were shocked by the outburst and made a complaint to their boss, but he told them to stop complaining because ‘lesbians never had and never would suffer in the way that Jews had’. He also told them that the colleague responsible for the taunts would not lose his job. Shortly after making the complaint, Ms Amos was sacked over the phone. Ms Moules then resigned and claimed constructive dismissal.
In April this year, the ET found that both women had been unfairly dismissed and had been discriminated against on the ground of their sexual orientation. In respect of the discrimination claim, Aquatec was ordered to pay each of them £5,000 in compensation for injury to feelings. The damages for unfair dismissal have now been fixed, with Ms Moules awarded £7,142 and Ms Amos £5,000.
Says <<CONTACT DETAILS>>, “Employers who tolerate a workplace culture in which one member of staff thinks it is acceptable to make jokes about the sexuality of another run the risk of paying a heavy penalty, as employees are protected by the law from having to withstand this kind of affront to their dignity.”
Muslim Waitress Wins Damages Over Skimpy Summer Uniform
A Muslim cocktail waitress, who resigned from her job after she was ordered to wear a dress that she claimed offended her religious beliefs, was awarded almost £3,000 in compensation.
Fata Lemes, a Bosnian Muslim aged 33, worked at the Rocket Bar in Mayfair. She claimed that her upbringing meant that she was ‘not used to wearing sexually attractive clothes’ and the short, low-cut red dress that she was made to wear was ‘disgusting’ and made her look ‘like a prostitute’. She claimed that she was left with no choice but to walk out of her job after just eight days.
The Central London Employment Tribunal (ET) found that Miss Lemes ‘holds views about modesty and decency which some might think unusual in Britain in the 21st Century’ and ruled that her employer should have made allowance for her feelings. In its view, insisting that she wear the dress amounted to sexual harassment.
Miss Emes said that she was pestered for sex by customers of the bar shortly after she began working there. However, in the ET’s view whilst the dress was clearly designed to show the curves of a young woman’s body, it was not sexually revealing or indecent and wearing it could not amount to ‘conduct of a sexual nature’. The company’s lawyer told the ET that there was no evidence to support the suggestion that the bar is ‘a sex club or some sort of seedy brothel’.
The ET ruled that the effect of requiring Miss Lemes to wear the dress was to violate her dignity and it created for her an environment which was degrading, humiliating and offensive. In contrast, male waiting staff had not been asked to wear a summer uniform consisting of ‘brightly coloured, figure-hugging garb’.
However, in the ET’s view Miss Lemes had overstated her trauma at being asked to wear the dress. Whilst her perception that wearing it would make her feel as though she were on show was ‘legitimate and not unreasonable’, this could not reasonably have caused her to decide that she could not as a result consider any future employment in a café or restaurant.
The ET also rejected Miss Lemes’ claim that she had been constructively dismissed and described her compensation claim of £20,000 including £17,000 for hurt feelings as ‘manifestly absurd’.
Miss Lemes was awarded £2,919.95 for hurt feelings and loss of earnings.
The owners of the restaurant group that owns the Rocket Bar claimed that a photo of Miss Lemes wearing a revealing top had appeared on the social networking site Facebook. It is not known whether the ET saw this before reaching its decision. Miss Lemes later said that the photo had been taken on a beach.
Says <<CONTACT DETAILS>>, “This case serves to emphasise the importance of making sure that workplace practices that are deemed acceptable by the majority do not violate the dignity of individual employees.”
Past Exposure to Noise Warrants Compensation
It has long been known that exposure to noise can cause hearing loss and the UK now has strict standards for noise exposure, which were tightened up as recently as 2005.
It can take a long time to realise that damage to one’s hearing has occurred and a recent case (Baker v Quantum Clothing Group and others) has opened the door for claims concerning hearing loss caused by exposure to noise many years ago to be brought to court.
It involved a number of textile companies in the East Midlands, which were sued by an employee who had developed noise-induced hearing loss (NIHL) after working in garment factories between 1971 and 1989. At issue was the fact that the exposure which caused the loss must have occurred many years before the loss became noticeable.
In this case, the argument was made successfully that where there was a risk that the employee could be adversely affected and this should have been ascertained and acted on by the employer at the time, the claim could be brought under the Factories Act 1961, regardless of the specific regulations relating to noise, which came into force several years later. The 1961 Act provided that an employer had a duty to safeguard employees by providing, as far as reasonably practicable, a safe working environment.
The Court of Appeal accepted that the NIHL would have been latent for a period of years and ruled that the claimant could claim compensation for damage to her hearing sustained from 1978. She was awarded more than £3,000.
With mild hearing loss, it is common for the symptoms to go unnoticed until middle age, when it is normal for there to be a loss of acuity in hearing in any event. When that occurs, the superposition of a NIHL can be very noticeable and can cause significant problems.
One of the issues with NIHL is that the loss of hearing ability is ‘focused’ around those frequencies of sound most important for understanding speech, which means that whilst (say) a sufferer can hear someone speaking, they may find it difficult to understand them. This makes following a conversation, especially where there is background noise, particularly difficult. Another problem is that the difference between the quietest sound which can be heard and the loudest which can be tolerated may become much less than is normal, which presents problems when watching television and so on.
The Health and Safety Executive has useful guidance on the control of exposure to noise at work at http://www.hse.gov.uk/noise/.
If you would like advice on how health and safety law affects your business, please contact <<CONTACT DETAILS>>.
Substitution Clauses and the Status of a ‘Worker’
In Archer-Hoblin Contractors Ltd. v MacGettigan, the Employment Appeal Tribunal (EAT) considered the effect of a substitution clause in determining whether a person is a worker within the meaning of Section 2(1)(b) of the Working Time Regulations 1998 (WTR) and therefore entitled to paid holiday.
Mr MacGettigan worked under contract for Archer-Hoblin as a steel fixer. His contract stated that he did so as a self-employed subcontractor and it contained a substitution clause which provided that:
‘You have the right to send someone with similar experience and qualifications in your place. You will be paid for the work they do and must arrange to pay the substitute yourself. You must notify the Contractor of the substitute for security and Health and Safety purposes.’
The Employment Tribunal (ET) found that Mr MacGettigan was a worker within the meaning of the WTR. Whilst the substitution clause in his contract was not a sham, if one examined the reality of the situation he had performed all the work under the contract himself, working on a daily basis for five months, and believed that he would lose his job if he sent a substitute. His claim for holiday pay therefore succeeded.
Archer-Hoblin appealed against this decision.
The EAT noted that whilst an unqualified power of substitution is inconsistent with the status of a worker under the WTR, a limited power to provide a substitute is not. However, the ET had erred in taking into account whether Mr MacGettigan actually performed work or services personally rather than determining the issue by reference to the terms of the substitution clause. The latter gave him an unqualified right to delegate the work so was inconsistent with a contract to perform any work or services personally. Unless the substitution clause was a sham, Mr MacGettigan was not a worker within the meaning of the WTR.
In the EAT’s view, the ET should have considered whether the unfettered substitution clause in Mr MacGettigan’s contract with Archer-Hoblin accurately represented the intention of the parties and then based its decision as to whether it was a sham on that finding. Whether or not the substitution clause was a sham could not be ascertained with sufficient certainty from the ET’s findings and so it was not possible for the EAT to determine whether or not the ET’s decision that the clause was not a sham was perverse.
The EAT therefore set aside the ET’s findings and remitted the case for rehearing to a different ET.
Contact <<CONTACT DETAILS>> for advice on any contractual issue.
Swine Flu – Guidance for Employers
On 18 September, the NHS announced that new cases of swine flu (influenza A H1N1) in England had risen by a third, suggesting that the surge in infections anticipated with the approach of winter may have already begun.
The swine flu virus is an unusual strain, not only because it has proven to be highly infectious in the summer months but also because it seems to affect young people more severely than it does the middle-aged. Thus far, more than 70 people have died in the UK after contracting the virus. Pregnant women and those with underlying health problems are considered to be particularly at risk.
Swine flu has several potential legal implications for firms, for example:
  • Liability for failing to take steps to prevent the spread of the infection, particularly to those known to be in a high-risk group, and to maintain a safe working environment. Have you carried out a risk assessment yet? Don’t forget that there is a specific statutory duty on employers to carry out a risk assessment in respect of pregnant women and new mothers;
  • The impact on staff who remain at work, if they work longer hours than usual in order to cover for staff who have contracted the virus;
  • Problems which may arise if an outbreak results in you failing to deliver to one of your customers or you have a supplier or contractor who lets you down as a result of swine flu (which may be considered to be ‘force majure’). Consider your potential liabilities should either event occur and check your insurance position carefully.
It will be a fortunate business that is left completely unscathed by the virus but there are steps that you can take to protect your staff and keep them informed so as to improve the chances of keeping your business up and running. Be prepared to be flexible. Could staff work from home? Are there alternative ways of doing business other than by direct contact, for example teleconferencing instead of face to face meetings?
Given that employees may be able to self-certify themselves as unfit for work for up to a fortnight, employers must be prepared to deal with the disruption the pandemic may cause. If you have not already done so, put in place contingency measures for dealing with mass absenteeism. Also, consider what steps you can take to prevent staff returning to work too soon.
Examine all your staff policies and procedures to make sure they are compatible with any situations that may arise. For example, does your sickness policy cover the position of a member of staff who is healthy but who has to take time off work because they have caring responsibilities for someone else who is infected with the virus?
Make sure you have up-to-date contact details for all your staff and know who to contact in an emergency.
As always, when considering measures you can take to protect employees, it is important to take care not to overstep the line between protecting them and violating their human rights.
You can keep up-to-date on the latest Government guidance at http://www.direct.gov.uk/en/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_178842.htm and at
If you are concerned about the effects of swine flu, we can help you to formulate a management strategy to deal with it. Contact <<CONTACT DETAILS>> as soon as possible for advice tailored to the individual needs of your business.
Partner Note
Swine Flu – Known High-Risk Groups
People in the following groups may need to start taking antiviral drugs as soon as they are diagnosed with the illness. Doctors may advise some high-risk patients to take antivirals before they develop symptoms, if someone close to them has swine flu.
It is already known that people are particularly vulnerable if they have:
·        chronic lung disease;
·        chronic heart disease;
·        chronic kidney disease;
·        chronic liver disease;
·        chronic neurological disease (neurological disorders include motor neurone disease, multiple sclerosis and Parkinson's disease);
·        immunosuppression (whether caused by disease or treatment); or
·        diabetes mellitus.
Also at risk are:
·        patients who have had drug treatment for asthma in the past three years;
·        pregnant women;
·        people aged 65 and over; and
·        children under five.
Termination Payments – Get the Tax Right
Having to make redundancies is never pleasant but the situation for an employer and employee can be made worse if tax matters with regard to any termination payment are not dealt with correctly: this is a particular risk where PAYE is not deducted when it should have been. If this occurs, the payment made is treated as a ‘net’ payment and is then grossed up for Income Tax (IT) and National Insurance Contributions (NICs), which adds more than a third to the cost of any payment.
The biggest risk for an employer in these circumstances is where the rules relating to a ‘golden handshake’ are breached. Normally, up to £30,000 can be paid free of tax to an employee being made redundant, without IT or NICs being payable. Strictly, this is because the payment is not arising from employment but is, in effect, in lieu of damages for loss of employment.
Normally, such payments are arranged by way of a compromise agreement, by which the employee agrees not to make a claim to the Employment Tribunal in exchange for a payment. The employee’s legal fees for advice can also normally be paid by the employer without a tax charge arising.
The important issue here is that the payment must not be contractual, as a payment of any sort under contract is taxable. A payment in lieu of notice, for example, is taxable, as it is a payment arising by virtue of the employee’s contractual right to salary during the notice period.
HM Revenue and Customs have published a very brief fact sheet on the tax implications of redundancy, which can be found at http://www.hmrc.gov.uk/guidance/redundancy-factsheet.pdf. A more comprehensive guide can be found at http://www.hmrc.gov.uk/manuals/eimanual/EIM13750.htm.
For advice on the tax implications of redundancy, contact <<CONTACT DETAILS>>.
The ACAS Annual Report and Pre-Claim Conciliation
The Advisory, Conciliation and Arbitration Service (ACAS) has published its annual report and accounts for the year 2008/09. This shows an overall increase in the number of claims received for conciliation from Employment Tribunals, with 236,116 cases compared with 227,782 in the previous year. Unfair dismissal was again the largest category of complaint passed for conciliation with 55,000 claims, a 22 per cent increase on the previous year.
Unsurprisingly in the current economic climate, the demand for redundancy advice has increased dramatically. The section of the ACAS website dedicated to redundancy issues received over 15,000 visits in November 2008, compared with 4,000 for the month of May 2008. The number of visits to the website overall increased by almost a million compared with the previous year, with 4,006,310 users accessing the ACAS website in 2008/09.
The ACAS helpline answered 726,306 calls compared with 885,353 in 2007/08. The top three topics were:
  • redundancies, lay-offs and business transfers;
  • discipline, dismissal and grievance; and
  • contracts.
The helpline’s ability to handle calls was hampered in 2008/09 owing to a significant expansion to the service which entailed additional recruiting and training of both existing and new advisers.
The number of collective conciliation requests received for ACAS to conciliate between the parties involved in an employment dispute was 960, compared with 917 in 2007/08.
Following the 2007 Dispute Resolution Review, ACAS was invited to pilot a new scheme offering proactive conciliation in individual disputes which could become the subject of proceedings in the Employment Tribunal but where no claim has yet been lodged. Trials of the scheme took place in Newcastle, Nottingham and Manchester and proved both successful and popular with users. The service, called Pre-Claim Conciliation, is currently being rolled out across Great Britain. For further information, see http://www.acas.org.uk/index.aspx?articleid=2207.
The ACAS Annual Report and Accounts 2008/09 can be found at
If you fear an employment dispute could lead to a claim, contact <<CONTACT DETAILS>> for advice.
The Duty to Manage Asbestos – HSE Guidance
According to statistics provided by the Health and Safety Executive (HSE), asbestos is the single greatest cause of work-related deaths in the UK. Every year 1,000 people who have been involved in carrying out building maintenance and repair work die as a result of past exposure to asbestos fibres and it is estimated that half a million commercial buildings still contain asbestos.
Buildings all need repair and maintenance work from time to time and it is when asbestos fibres are disturbed, e.g. by drilling or cutting, that they are most likely to be inhaled as a deadly dust.The Control of Asbestos Regulations 2006 introduced a legal duty to manage asbestos. The duty applies to all non-domestic buildings and the common areas of residential rented buildings.
If you are responsible for maintenance and repairs of premises covered by the Regulations, you have a duty to manage asbestos if:
  • you own the building;
  • you are responsible through a contract or tenancy agreement; or
  • there is no formal contract or agreement but you have control of the building.
Whilst a building constructed in or after 2000 is unlikely to contain asbestos, if it was built on a brownfield site or contains old equipment (for example ovens, brakes, soundproofing, insulating mats, fire blankets, oven gloves or ironing surfaces), it is important to follow the correct steps in order to comply with the law.
The ‘duty holder’ must take reasonable steps to find out if the premises contain asbestos and, if they do, its amount, where it is and what condition it is in. Unless
there is strong evidence that the building does not contain any asbestos material, it must be assumed that it does.
The HSE has published new guidance, which takes duty holders through the process of understanding their obligations with regard to the management of asbestos. This includes a useful checklist of each step that must be taken and an example of an asbestos management plan. In addition, it can also help you decide whether or not you need to use an HSE licensed contractor to carry out planned maintenance work.
The guidance can be found at http://www.hse.gov.uk/asbestos/managing/index.htm.
The Equality Bill and Dual Discrimination Protection
The Government is proposing to introduce a new law to protect people who experience discrimination because of a combination of characteristics, such as black women or religious men.
Currently, someone can only bring separate discrimination claims relating to one protected characteristic, such as their age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. 
The new ‘dual discrimination’ clause, which the Government has tabled as an amendment to the Equality Bill currently before Parliament, would allow people to make a claim if they were directly discriminated against because of a combination of relevant protected characteristics.
This would mean, for example, that a black woman who is discriminated against because her employer has particular stereotyped attitudes towards black women – as opposed to black men or white women – could bring a single claim for combined race and sex discrimination.
Vera Baird, Solicitor General and Equality Bill Lead Minister, said, “People’s identities are multi-faceted and complex, and we are delighted to bring forward an amendment to the Equality Bill which would reflect this.”
The Gender Pay Gap – Be Prepared
The gender pay gap is the term used to describe the difference between the hourly earnings of men and women. It is determined by calculating the overall pay of women as a percentage of that of men. The pay gap is the difference between this and 100 per cent. So, for example, if women’s pay is 80 per cent of men’s, the pay gap is 20 per cent.
There are different ways of calculating the gender pay gap. If calculated using the mean (average) hourly pay, women’s pay (excluding overtime) was 17.1 per cent less than men’s pay in 2008, showing an increase on the comparable figure of 17.0 per cent for 2007.
At present, private sector employers are only under an obligation to disclose gender pay information if requested to do so as part of a questionnaire under the Equal Pay Act 1970 or during Employment Tribunal proceedings. However, the Equality Bill contains a power to require employers with more than a specified number of employees to report on the gender pay gap. The original provision was for those with more than 250 employees to provide this information but a reduction in the number to 100 has been mooted.
Initially, organisations with more than the specified number of employees will be ‘encouraged’ to volunteer information on the average hourly pay of male and female workers. To this end, the Equality and Human Rights Commission will carry out a consultation in order to develop a system of pay reporting for the private sector. If by 2013 it is clear that a voluntary reporting system has been ineffective in narrowing the gender pay gap, legislation will be brought forward to force disclosure. The Equality Bill also bans secrecy clauses which prevent staff from disclosing their salaries to colleagues.
A recent survey of senior Human Resources professionals revealed that only 29 per cent of organisations had conducted gender pay audits and only five per cent had actually reported their findings. Employers would therefore be well advised to carry out an audit sooner rather than later and to ensure that any discrepancies are remedied so as to reduce the risk of equal pay claims in the future.
Partner Note
Further details on the gender pay gap can be found at

The ‘Last Straw’ and Constructive Dismissal
It is an implied term of any employment contract that an employer should not act in a way that breaches the trust and confidence which an employee can expect from them. A serious breach of an implied contractual term or the ‘last straw’ in a series of less serious actions which cumulatively undermine the employee’s trust and confidence will amount to a repudiatory breach of the employment contract. It would normally justify the employee in terminating the contract and claiming constructive dismissal.
It was established in Omilaju v Waltham Forest London Borough Council that the last straw, which allows an employee to resign and claim constructive dismissal, need not necessarily be a breach of contract. It could be a relatively minor act. However, to be successfully relied on by the employee the last straw has to be the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract of employment by the employer. It has also to contribute, however slightly, to the breach of the implied term of trust and confidence. In addition, an action on the part of the employer that can be objectively judged to be entirely innocuous cannot be a last straw, even if the employee genuinely but mistakenly interprets the act as being hurtful and destructive of the trust and confi

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