Employment Law Titles ~ Spring 2009


A Guide to Dealing with Requests for Flexible Working Arrangements
From 6 April 2009, the statutory right to request flexible working arrangements is extended to parents of children aged 16 and under. Employees with caring responsibilities for children aged up to 6 (18 and under where the child is disabled) and carers of adults already have this right.
An employee must have completed 26 weeks’ continuous employment with their employer in order to qualify for the right and can only make one request in any 12-month period.
There is a statutory procedure which must be followed when a request for flexible working arrangements is made.
The employee’s request must give details of the revised working pattern they wish to adopt. After acknowledging receipt of the request, the employer has a duty to consider it seriously to decide whether the business can accommodate the requested working pattern.
If the employer is able to agree to the request without further discussion, the employee must be notified of this in writing. If the employer wishes to discuss the application, a meeting must be arranged for discussions to take place with the employee within 28 days of receiving a valid request. If this is not possible, the deadline can be extended with the written agreement of the employee.
The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. That person may address the meeting and confer with the employee but may not answer questions on the employee’s behalf.
The employer must notify the employee of their decision within 14 days of the meeting. Further time to consider a request requires the employee’s written consent. If the employer and/or the employee are uncertain whether the new arrangements will work in practice, it is possible to undergo a trial period, which could take place during an agreed extension to the time allowed before the employer makes their final decision.
If the employer accepts a flexible working request, they must write to the employee giving details of their new working pattern, the date on which it will start and stating that the arrangement means a permanent change to the employee’s terms and conditions of employment (unless agreed otherwise). The notification must be dated.
If you decide that you cannot accommodate any kind of flexible working for an employee, you must write to them stating which of the listed business grounds for refusing a request apply and explain why these apply in the circumstances. The notification must be dated and set out the procedure to follow should the employee wish to appeal against the decision.
You can reject a flexible working request on only a limited number of set grounds. These are:
  • planned structural changes;
  • the burden of additional costs;
  • a detrimental impact on quality;
  • the inability to recruit additional staff;
  • a detrimental impact on performance;
  • the inability to reorganise work among existing staff;
  • a detrimental effect on ability to meet customer demand; or
  • lack of work during the periods the employee proposes to work.
Should the employee wish to appeal against the decision, they must do so in writing within 14 days of the date of receiving the written notice of refusal. The employer must arrange an appeal meeting within 14 days of receipt of the employee’s appeal notice. Where possible, the appeal should be heard by a different manager. The employer must inform the employee of the outcome of the appeal in writing within 14 days of the date of the appeal meeting.
The sanction against an employer who fails to grant a request where clear business reasons do not apply is that an employment tribunal can order that the application be reconsidered and can award a maximum level of compensation of eight times a week’s pay, subject to a statutory cap.
Where the employer agrees to change the employee’s terms of employment, there is no provision in the legislation for the employee’s contract to revert back to what it was should their circumstances change. It may, therefore, be sensible to discuss with the employee whether they wish the change to be for a specified period only.
Employees have protection against detrimental treatment for seeking to exercise their rights under this law and any dismissal for having done so will be automatically unfair.
The Department for Business, Enterprise and Regulatory Reform has made available forms for employees and employers to use at each possible stage of the process when a request for flexible working is made. It is not mandatory to use them, but employers will find them useful to make sure that all the statutory requirements are met. The forms can be found at http://www.berr.gov.uk/whatwedo/employment/workandfamilies/flexible-working/flexforms/index.html.
If you receive a request for flexible working arrangements and would like individual advice, please contact <<CONTACT DETAILS>>.
Disability Discrimination – Duty to Make Reasonable Adjustments
Section 4A(3) of the Disability Discrimination Act 1995 (DDA) states that an employer is exempt from the duty to make reasonable adjustments for a disabled person if the employer does not know, and could not reasonably be expected to know, that the person has a disability and is likely to be put at a substantial disadvantage compared with a non-disabled person by any workplace provision, criterion or practice or by any physical feature of the workplace.
In Eastern and Coastal Kent Primary Care Trust v Grey, Mrs Jocelyn Grey brought a claim for disability related discrimination after she was unsuccessful in her application for a Community Cardiac Nursing post with the Primary Care Trust (PCT). Mrs Grey suffers from dyslexia and is therefore ‘disabled’ for the purposes of the DDA. On her application form for the post she selected ‘learning difficulty/disability’ as best describing her disability but said that no special arrangements were required for her to attend interview. Mr N Plummer, who was overseeing the recruitment process, was aware of Mrs Grey’s disability but the members of the interview panel were not. When Mr Plummer asked those who had been invited for interview whether, if they were disabled, any special arrangements should be made for them for the interview, Mrs Grey decided not to say anything as she was confident of her ability to perform well at an interview and did not want to risk the panel taking an adverse view of her if its members were told of her dyslexia. In the event, Mrs Grey did not interview well and was not offered a post.
The Employment Tribunal (ET) found that the PCT was in breach of its duty to make reasonable adjustments for Mrs Grey and had therefore discriminated against her.
The PCT appealed on the ground that the ET had failed to apply the proper test to determine whether the employer was exempt from the duty to make adjustments. The Employment Appeal Tribunal agreed. In its view, Section 4A(3)(b) of the DDA means that ‘an employer is exempt from the duty to make adjustments if each of four matters can be satisfied. These are that the employer:
i.                    does not know that the disabled person has a disability;
ii.                  does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
iii.                could not reasonably be expected to know that the disabled person had a disability; and
iv.                 could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled’.
The use of the word ‘and’ indicates that these are cumulative, not alternative, requirements. If the intention had been that the requirements should be alternative rather than cumulative, the EAT was of the view that the word ‘or’ would have been used instead.
As the ET had failed to apply the proper test, the case was remitted to a different ET to determine whether, on the evidence, the PCT was exempt from its obligation to make adjustments.
If you have any discrimination law matter you would like to discuss, please contact <<CONTACT DETAILS>>.
Disability Discrimination – The Correct Comparator
In Child Support Agency (CSA) v Truman, the Employment Appeal Tribunal (EAT) has ruled that the correct comparator test in cases of disability-related discrimination in an employment law context, under Section 3A of the Disability Discrimination Act 1995 (DDA), is the same as that applied to the housing provisions of the DDA by the House of Lords in June 2008 in London Borough of Lewisham v Malcolm.
In the latter case, Mr Malcolm, who suffered from mental illness, was served notice to quit after he had sublet his flat in breach of his tenancy agreement. In deciding whether or not he had been treated unfairly, Lord Bingham stated that the correct comparison to be made was with a tenant who did not have a mental disability who had breached the terms of their tenancy by subletting. In such circumstances, a non-disabled tenant would have been equally in breach of the tenancy agreement and would have been treated in the same way. CSA v Truman was heard by the Employment Tribunal (ET) before the decision of the House of Lords in Malcolm.
Two findings of the ET were not challenged on appeal. Firstly, the CSA had failed to make reasonable adjustments with regard to the timely provision of suitable office furniture to enable Mrs Truman, who suffered severe back problems and was unable to work in the office, to work at home. Secondly, it had made no attempt to make reasonable adjustments to enable her to carry on working after the introduction of a restructuring plan, under which her working at home was deemed no longer acceptable.
At issue before the EAT were the following findings of the ET, which were based on the comparator test in Clark v Novacold, which was that the comparator did not have to be someone in the same circumstances as the disabled person but someone to whom the reason for the disabled person’s treatment did not apply. Firstly, Mrs Truman had suffered disability-related discrimination because she was threatened with disciplinary proceedings after a complaint of bullying and harassment was made against her. Mrs Truman had shouted at another employee in an angry telephone conversation that took place after she had waited all day to take delivery of a specialist desk, which failed to arrive. Secondly, the CSA’s treatment of Mrs Truman with regard to her taking ill-health retirement amounted to disability-related discrimination. She wanted to work, not retire. The ET found that she was less favourably treated than a comparator who could work full-time in an office and the defence of justification was not made out.
The CSA challenged these findings on the ground that in using the test laid down in Novacold, the ET had used the wrong comparator. The comparator test used in Malcolm should apply.
Mrs Truman contended that the decision of the House of Lords in the Malcom case did not apply to employment law, but the EAT rejected this argument. In its view, the narrower comparator favoured by the House of Lords applied equally in an employment law context and the wider comparator used in Novacold should no longer apply. The correct comparator as regards the disciplinary proceedings was a non-disabled employee who had abused another employee over the telephone. The employer would have acted towards the comparator in the same way and so Mrs Truman had not been treated less favourably. The correct comparator as regards the issue of ill-health retirement was a non-disabled employee who was unable to work full-time in an office. However, the result of that finding was not so clear cut and the EAT remitted this aspect of the case to the same ET for further consideration.
HHJ Peter Clark stated that if it was thought necessary that there should be different comparators in different contexts, that was a matter for Parliament.
Says <<CONTACT DETAILS>>, “The proposed Equality Bill offers the Government an opportunity to amend the law should it wish to do so. Meanwhile, it is likely that the comparator question will be revisited by a higher court and we await the outcome with interest.”
Partner Note
Child Support Agency v Truman. See http://www.bailii.org/uk/cases/UKEAT/2009/0293_08_0502.html.
London Borough of Lewisham v Malcolm. See
Disability Discrimination – You Can Leave Your Hat On
The Employment Appeal Tribunal (EAT) has dismissed the appeal of a claimant who argued that a condition that made him vulnerable to temperatures below 27° Celsius was a long-term physical impairment for the purposes of the Disability Discrimination Act 1995 (Sawyer v Secretary of State for Work and Pensions).
Mr Sawyer worked for the Department for Work and Pensions at one of its Job Centre Plus offices. In April 2004, he was provided with a portable heater. This, together with the heavy clothing and hats he wore, enabled him to maintain the required temperature, which he claimed prevented him from suffering from various chest conditions that had previously troubled him. In September 2007, however, the personal heater was taken away. Mr Sawyer claimed that he had been the victim of disability discrimination.
The Employment Tribunal (ET) found that the case had no real prospect of success as it did not appear that Mr Sawyer was disabled within the meaning of the Act. He was not suffering from a long-term physical impairment because he himself conceded that he had not had bronchitis or breathing difficulties between April 2004 and September 2007 and the only medical evidence available to the ET was a scribbled note from Mr Sawyer’s GP.
Mr Sawyer appealed. He attended the August 2008 hearing in an overcoat and two woolly hats.
The EAT found that Mr Sawyer had not demonstrated that his condition had a substantial long-term effect and so he was not disabled for the purposes of the Act.
Discrimination by Association – Update
Following the decision of the European Court of Justice (Coleman v Attridge Law) that the EU Equal Treatment Framework Directive does afford protection to an employee with caring responsibility for a disabled child from discrimination at work on the grounds of her child’s disability, the London South Employment Tribunal (ET) has ruled that it does have jurisdiction to hear Ms Coleman’s claims of discrimination and harassment on the grounds of her son’s disability. In the ET’s view, whilst the wording of the Disability Discrimination Act 1995, which implements the Equal Treatment Framework Directive into UK law, does not make this clear, it should be read as providing protection to a person who is ‘associated with’ a disabled person, not just one who is disabled.
Employers are advised to check their recruitment and equal opportunity policies in the light of this decision. In particular, care should be taken when considering requests for flexible working arrangements made by employees who have primary caring responsibility for a disabled or elderly person.
Contact <<CONTACT DETAILS>> for advice on any aspect of discrimination law.
Dispute Resolution – Are You Prepared for the New Regime?
In order to establish what it is hoped will be a more flexible system for dealing with workplace disputes, as of 6 April 2009 the Employment Act 2008 repeals the Statutory Dispute Resolution Procedures in their entirety. In their place will be a revised voluntary Advisory Conciliation and Arbitration Service (ACAS) Code of Practice, which sets out the basic principles for ensuring fairness and transparency when handling disciplinary problems and grievances in the workplace. The new arrangements will apply to any case where the trigger event takes place on or after 6 April 2009. It should be noted that the Code of Practice does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.
It will not be automatically unfair dismissal if an employer fails to comply with the Code of Practice. However, an employment tribunal will have the discretion to increase or reduce an award by up to 25 per cent where either side unreasonably fails to comply with the new Code.
The Code of Practice advises that attempts should always be made to settle disciplinary and grievance issues in the workplace. Where this is not possible, the use of an independent third party should be considered to help resolve the problem. This need not be someone from outside the organisation but could be an internal mediator, as long as they are not involved in the disciplinary or grievance issue. However, in some cases, an external mediator might be appropriate.
The 10-page ACAS Code of Practice can be found at http://www.acas.org.uk/index.aspx?articleid=2174.
ACAS guidance on mediation can be found at http://www.acas.org.uk/index.aspx?articleid=1680.
The Code of Practice is supported by non-statutory guidance, which is more detailed and provides good practice advice on dealing with discipline issues and grievances in the workplace. The 74-page guidance contains sample disciplinary and grievance procedures, as well as sample letters, and can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=1043.
Employers should be aware that there are transitional arrangements in place as regards disciplinary and grievance cases where the trigger event occurred before 6 April or was ongoing at that date. Further information on the transitional provisions can be found on the website of the Department for Business, Enterprise and Regulatory Reform at http://www.berr.gov.uk/whatwedo/employment/Resolving_disputes/disputes_after_6_april_2009/index.html.
Employers are advised to involve employees in the development of revised disciplinary and grievance procedures and to make sure that all staff understand what the new rules are and have access to them.
For specific advice on handling disciplinary matters and grievances under the new ACAS Code of Practice, please contact <<CONTACT DETAILS>>.
ECJ Rules on UK’s Mandatory Retirement Age But the Fight Goes On
People aged over 65 who want to keep on working face an uphill battle, following the long-awaited judgment of the European Court of Justice (ECJ) in a challenge to the UK’s Employment Equality (Age) Regulations 2006, which were introduced to stamp out ageism in the workplace. The challenge was made by Heyday, a branch of the charity Age Concern.
Specifically, Heyday challenged the Government over the inclusion in the Regulations of a mandatory retirement age of 65 on the grounds that this meant that they do not fully implement the EU Equal Treatment Framework Directive.
The ECJ has ruled that a national retirement age may be lawful, but such a measure must be justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national courts to decide whether a compulsory retirement age can be justified as a proportionate means of achieving a legitimate aim. There is no requirement for the Regulations to contain a list of legitimate aims that are permissible.
The case will now return to the High Court to determine whether or not the UK’s imposition of the retirement age limit of 65 passes the justification test. There are an estimated 800 age discrimination tribunal claims that have been stayed pending this decision.
However, Age Concern and Help the Aged have vowed to fight on and have called on the Government to abolish the mandatory retirement age, thereby obviating the need for the case to return to Court.
Nearly 40 per cent of people wish to continue working after 65 and the two charities have criticised the Government for applying double standards and sending mixed messages to older workers. On the one hand they are being encouraged to carry on working beyond the age of 65 yet there is legislation in place that can prevent them from so doing. The mandatory retirement age for civil servants was scrapped some months ago and, were the rule to apply to MPs, one in eight of them would be out of a job.
Says <<CONTACT DETAILS>>, “In practice, this means that a compulsory retirement age is lawful if the Government can demonstrate that its introduction was justified in order to fulfil legitimate aims connected with national social or employment policy. The Department for Business, Enterprise and Regulatory Reform has said that it will review the default retirement age in 2011.”
Partner Note
The ECJ’s judgment can be found at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Rechercher$docrequire=alldocs&numaff=C-388/07&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100.
ECJ Rules on Workers on Long-Term Sick Leave
The decision of the European Court of Justice (ECJ) in the long-running case of Stringer v HM Revenue and Customs (HMRC) has significant implications for employers with employees on long-term sick leave and it is likely that changes to the Working Time Regulations 1998 (WTR), which implement the European Working Time Directive in the UK, will be necessary.
The case dealt with the issue of whether or not HMRC employees were entitled to accrue holiday pay during a period of long-term sick leave.
In April 2005, the Court of Appeal held, in a unanimous decision, that the right to four weeks’ statutory paid holiday under the WTR does not continue to accrue whilst an employee is absent on long-term sick leave. The decision only referred to employees who are absent for an entire holiday year and was based on the argument that leave cannot be taken by someone who is not at work. In addition, the holiday entitlement under the Regulations is designed to ensure that minimum health and safety standards apply to working time. If an employee is not at work, he or she cannot derive any health benefit from taking leave.
In December 2006, the House of Lords remitted certain questions regarding the interpretation of the Working Time Directive to the ECJ, which has now handed down its judgment.
The ECJ ruled that employees who have been on sick leave for a long period should be allowed to take accrued holiday on their return to work or be paid in lieu at their normal rate of pay if the employment relationship ends without them returning to work. The national courts can decide whether the paid leave can be taken during a period of sickness or whether it should be carried over to another year, but the right to take the leave is not extinguished.
The House of Lords will now consider the case in the light of this ruling.
In the UK, the WTR state that workers must take a minimum of four weeks’ holiday in each leave year and, from 1 April 2009, payment in lieu of untaken minimum leave is not permitted except on termination.
If you have employees to whom this ruling applies and would like individual advice, or would like assistance in amending your workplace policies in the light of this ruling, please contact <<CONTACT DETAILS>>.
Employers Guilty in Fatal Accident Case
A recent decision of the House of Lords may have far-reaching consequences for employers, especially those tempted to cut corners regarding health and safety. The Lords ruled that employers may be prosecuted over an accidental death at work, even in cases where no specific breach of health and safety legislation can be identified as having caused it.
The case concerned Mr Shaun Riley, who in 2003 was employed by the defendants, Chargot Ltd., Ruttle Contracting Ltd. and George Ruttle – a director of both companies. Ruttle Contracting was engaged to undertake extensive earth works on a Lancashire farm belonging to Chargot.
Mr Riley was asked to drive a dumper truck at the site, moving spoils from the excavation to another part of the site. Whilst he was carrying out the work, the truck overturned, burying Mr Riley, who later died in hospital.
Investigations revealed that there were various health and safety failings. No risk assessment had been carried out in relation to the work and Mr Riley was neither given any training nor provided with a safety helmet. However, as there were no witnesses to the accident, the exact cause could not be established. The defendants argued that since the precise cause of the accident could not be shown, they were not liable for Mr Riley’s death.
The prosecution argued that it was not necessary to demonstrate exactly how the defendants had failed in their health and safety obligations, merely that the general state of affairs at the place of work increased the risk of injury. The Lords accepted this argument. In its view, the failure on the part of the three defendants breached sections 2 and 3 of the Health and Safety at Work etc. Act 1974. Fines and costs orders of more than £450,000 made against the defendants were confirmed.
“In such cases it seems that the burden of proof is on the employer to show that proper health and safety standards are applied and that legislation is complied with,” says <<CONTACT DETAILS>>. “Employers must ensure that their health and safety arrangements fully comply with the law or risk prosecution.”
Employment Law Changes – April 2009
Changes to employment law and practice led by the Department for Business, Enterprise and Regulatory Reform are normally implemented in either April or October. The reason for this is to make life easier for employers, who must ensure that their policies and procedures comply by the implementation dates – or risk significant penalties.
The main changes due to be introduced in April 2009 are:
Repeal of the Dispute Resolution Procedures – 6 April 2009
The Employment Act 2008 repeals the statutory dispute resolution procedures and related provisions dealing with procedural unfairness in dismissal cases. In their place will be a revised voluntary Advisory Conciliation and Arbitration Service (ACAS) Code of Practice supported by non-statutory guidance aimed at encouraging employers and employees to resolve issues both earlier and informally. Changes are also made to the law relating to conciliation by officers of ACAS, with the removal of fixed periods for conciliation. The Employment Tribunal (ET) will have the discretion to increase or reduce an award by up to 25 per cent where either side unreasonably fails to comply with the new Code of Practice. The Code of Practice can be found at http://www.acas.org.uk/.
Contact <<CONTACT DETAILS>> for assistance in putting in place suitable policies and procedures that are in line with the new Code or for advice on the transitional provisions that apply to cases that are ongoing as at 6 April.
The Employment Tribunals (Constitution and Rules of Procedure) Amendment Regulations 2008 make consequential procedural changes, resulting from the Employment Act 2008, to ET practice and also make changes with regard to default judgments, electronic communications, the withdrawal and dismissal of proceedings and Stage 1 hearings in equal value claims.
The Right to Request Flexible Working – 6 April 2009
From 6 April, the right to request flexible working arrangements is extended to those with parental responsibility for children aged 16 and under. For further information, see http://www.berr.gov.uk/whatwedo/employment/workandfamilies/flexible-working/index.html.
Enforcement of the National Minimum Wage – 6 April 2009
The Employment Act 2008 makes changes to the way in which payment of the National Minimum Wage is enforced. HM Revenue and Customs (HMRC) officers are given wider powers of investigation and restrictions are removed on the exchange of information between HMRC and the Employment Standards Inspectorate. There will be a new penalty for employers who underpay their workers and a new method of calculating arrears that takes into account the length of time over which underpayment has occurred.
For further information, see http://www.berr.gov.uk/whatwedo/employment/pay/national-minimum-wage/page44848.html.
Changes to Trade Union Membership Law – 6 April 2009
The Employment Act 2008 includes changes that will bring trade union rules in line with European legislation and grant unions the right to expel or exclude members who are also members of political parties such as the British National Party.
Increase in Holiday Entitlement – 1 April 2009
In October 2007, the minimum statutory paid holiday entitlement was increased from 20 days a year to 24 days for those working a 5 day week (pro-rata for part-time workers). From 1 April, the minimum statutory annual leave entitlement will be increased to 28 days a year. Paid time off does not have to be given for bank and public holidays but, if it is, employers can include this in the holiday entitlement. For further information, see http://www.berr.gov.uk/whatwedo/employment/holidays/index.html.
Statutory Maternity Pay – 5 April 2009
The standard weekly rate of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay will increase from £117.18 to £123.06 for payment weeks starting on or after 5 April 2009.
Statutory Sick Pay – 6 April 2009
The weekly rate for days of sick absence commencing on or after 6 April 2009 will increase from £75.40 to £79.15.
Contact <<CONTACT DETAILS>> if you would like advice on any employment law matter.
Employment Status – Independent Contractors or Employees?
Whether or not a worker is an employee (working under a contract of service) or is self-employed (working under a contract for services) is an important distinction for tax as well as employment law purposes and HM Revenue and Customs (HMRC) will challenge the employment status of workers if they consider that the arrangements in place do not reflect the reality of the working relationship.
Whilst all aspects of the nature of the employment relationship should be taken into account, for a contract of service to exist, the following must be present:
  • an obligation to provide the work personally;
  • mutuality of obligation between the employer and the employee; and
  • an element of control exercised by the person who is regarded as the employer or ‘master’.
In Littlewood (t/a J L Window & Door Services) and anor v HMRC Special Commissioner, Mr and Mrs Littlewood traded in partnership as J L Windows and Doors. HMRC reviewed the partnership’s operation of the Construction Industry Scheme and the status of its workers and determined that several individuals were employees rather than independent contractors and that PAYE and NICs were payable on that basis. J L Windows appealed against the decision.
The Special Commissioner supported HMRC’s argument that there was mutuality of obligations within each job. However, this finding was not enough to determine the nature of the contract.
As to whether each worker was obliged to carry out the work in person, workers occasionally used their own helpers to assist with a job but the Special Commissioner did not see this as a significant factor.
With regard to control, the workers operated in teams consisting of between two and five people, with an experienced worker appointed by Mr Littlewood as the ‘charge hand’. The charge hand acted as spokesperson for the workers in their team and calculated the amount of work required to complete a given contract. They then gave Mr Littlewood a total price for the contract, having agreed prices with the other workers in their team. How the money for a job was divided amongst the team members was up to the charge hand, although the individual payments were made by J L Windows.
Mr Littlewood argued that he had not retained control over the workers. He was not on site overseeing how the work was done and had no control over the hours worked. HMRC argued that the degree of control necessary for there to be a contract of service need only be slight. It was the right to exert to control that was significant. In their view, the charge hand represented Mr Littlewood and acted on his behalf in giving instructions to the other workers.
The Special Commissioner concluded that the workers acted independently of Mr Littlewood and agreed matters within their teams, membership of which was chosen by the charge hands, not Mr Littlewood. Team members had to act on the instructions of the person running the site. Mr Littlewood’s site visits were to check on the progress of the job and to see if any changes to the original pricing were necessary to allow for extra work not taken into account when determining the price quoted to the customer.
In the view of the Special Commissioner, therefore, J L Windows did not exercise sufficient control over the workers to make itself master. In the absence of the element of control, the contracts could not be seen as contracts of service and so any other tests became irrelevant.
Contact <<CONTACT DETAILS>> for advice on contractual matters.
Equal Pay and Pay Schemes Linked to Length of Service
The Government’s Equality Bill will include measures aimed at eradicating the pay gap that still exists in many workplaces between men and women. Incremental pay scales based on length of service can disadvantage women, who are more likely to have fewer years’ service either because of career breaks to look after children or because they are relatively new entrants into traditionally male-dominated professions.
In Wilson v Health and Safety Executive (HSE), Mrs Wilson, a health and safety inspector, contended that the somewhat complex pay system operated by the HSE, which rewarded pay in part by reference to length of service, constituted a breach of the Equal Pay Act 1970. She accepted that the nature of the job was such that performance would be likely to improve with experience for the first few years but she did not believe that the HSE was justified in applying this criterion over a ten year period.
The Employment Tribunal (ET) gave its decision in the light of the judgment of the Employment Appeal Tribunal (EAT) in a similar case, Cadman v HSE. The EAT had concluded that the effect of European case law was that with respect to full-time workers it was not necessary for an employer to justify a pay difference resulting from the application of length of service criterion. Although the ET was inclined to think that a ten-year period was not justified to reach the requisite level of skill in this case, it found that Mrs Wilson’s case must fail.
Mrs Wilson appealed. The appeal was stayed because Cadman had by this time been appealed and the Court of Appeal had made reference to the European Court of Justice (ECJ) for a ruling as to whether differences in pay based on length of service need to be objectively justified to be lawful.
The ECJ judged that as a general rule the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his or her duties better. An employer does not generally have to produce specific proof in order to justify the practice unless a worker provides evidence capable of raising serious doubts as to whether the link between pay and length of service is in fact rewarding experience that enables the worker to perform better. In that case, the employer must demonstrate the absence of unlawful discrimination.
When Mrs Wilson’s appeal was heard, the EAT identified that the real issue to be determined was whether once it has been accepted that the nature of the job is such that pay can properly be made to depend on length of service, is that the end of the ET’s enquiry or can it also consider, in an appropriate case, whether the degree of recourse to length of service (and therefore, experience) can be justified?
Although the ECJ’s judgment in Cadman had not provided the desired clarity on this point, in the EAT’s view the ET does have the power to question whether the length of service criterion used by the employer is justified in circumstances where the employee has raised serious doubts as to whether or not it is. To do so, the ET would have to be satisfied that that there was ‘real reason to suspect that the employer has stepped beyond the margins which can properly be afforded to employers when considering whether added experience typically improves job performance’.
The matter was referred to a fresh Tribunal to consider the issue of serious doubts again.
Contact <<CONTACT DETAILS>> for assistance in ensuring that your pay scheme complies with the law.
Government Campaign on Agency Workers’ Rights
In an effort to root out rogue employment agencies and employers who do not obey the laws governing the rights of agency workers, the Government has launched a campaign to make agency workers aware of their rights and to help employers know their responsibilities. This includes a poster campaign in public places and online and newspaper advertising. In addition, the Minister for Employment Relations, Pat McFadden, has written to over 13,000 employment agencies to outline how they can make sure they are complying with the law.
The campaign will complement the work of the Employment Agency Standards Inspectorate (EAS), which is part of the Department for Business, Enterprise and Regulatory Reform and is responsible for enforcing the legislation governing the private recruitment industry. The EAS carries out inspections of agencies on the basis of perceived risk of non-compliance and investigates complaints about agency conduct. It was recently doubled in size and its investigative powers have been extended.
Mr McFadden said, “Employment agencies need to make sure they play by the rules and don’t short-change their staff. An economic downturn should not be an excuse to deny people their rights to work.”
Further information and a free leaflet, ‘Agency Workers: Know Your Rights’, is available at
On 22 October 2008, the European Parliament finally approved the draft Temporary (Agency) Workers Directive. This will provide equal treatment for temporary agency workers, compared with permanent workers, in terms of basic working and employment conditions (including pay, holidays, working time, rest periods and maternity leave). In the UK, agency workers will acquire these rights once they have been in a given job for 12 weeks. EU member countries have three years to incorporate the provisions of the Directive into national law.
Health and Safety – VDU Use
More and more workers are spending a large part of their day looking at a computer screen. The Health and Safety (Display Screen Equipment) Regulations 1992 specifically deal with the health and safety issues associated with working with VDUs.
The Health and Safety Executive has a free leaflet, ‘Working With VDUs’, which gives advice for employers and employees on minimising risks and ensuring compliance with the law. It covers both conventional (cathode ray tube, TV-style) screens and the newer, flat panel displays such as those used in laptop computers. The guidance is available at http://www.hse.gov.uk/pubns/indg36.pdf.
Regulation 5 covers the employer’s responsibility for providing eyesight tests for employees.
Employers have a duty to ensure the provision of appropriate eye and eyesight tests, on request, to VDU users and to any employees who are to become users.
Accor Services, which runs an eye care voucher scheme for employers to provide to employees for use at most opticians, has published a free information booklet, ‘Developing a Company Eye Care Policy – Your Options and Legal Obligations’.
As well as guidance on developing and writing an eye care policy, the booklet covers the main points of the law, gives advice on ways to minimise the effects of VDU use and contains general information on eye care.
The information booklet is available at http://www.eyecarevouchers.co.uk.
If you would like advice on how health and safety law affects your business, please contact <<CONTACT DETAILS>>.
‘Heat of the Moment’ Resignations – When Do They Count?
The Employment Appeal Tribunal (EAT) has clarified that there are only limited circumstances in which an employee’s unambiguous words of resignation should not be relied upon because they can be regarded as being given in the heat of the moment (Ali v Birmingham City Council).
Mr Mohammed Ali worked for Birmingham City Council as a data entry clerk. On 25 April 2007, Mr Ali handed in his resignation to his manager. He claimed that at the time he was very stressed for personal reasons and was not ‘thinking straight’.
On being given Mr Ali’s resignation letter, his manager sought the advice of the Council’s Human Resources (HR) department and, as a consequence, offered him a cooling-off period to reconsider his decision. When she returned 20 minutes later, Mr Ali appeared to be getting upset so she gave him more time. After a further 10 minutes, Mr Ali asked his manager to return to the room and confirmed that he did wish to tender his resignation. This was accepted.
On 27 April, Mr Ali rang the HR department asking about his ‘rights’ and was told that as he had effectively resigned, he did not have an automatic right to return. He said he needed more time to think about it.
On 30 April, Mr Ali’s manager received an email from him saying that he had resigned whilst he was extremely stressed and now realised that this had been a mistake. He was informed that a decision had been made not to reinstate his contract of employment.
Mr Ali claimed that he had been unfairly dismissed but the Employment Tribunal (ET) found that he had resigned and could not therefore bring a claim. Mr Ali appealed against this decision on the grounds that special circumstances existed in his case which justified making an exception. He had resigned in the heat of the moment, so there was no real resignation and he also contended that he had not been given a reasonable amount of time to reflect on his decision.
The EAT dismissed the appeal. There are very limited circumstances in which the unambiguous words of a resignation should not be relied upon, one of which is if it is given in the heat of the moment. The ET had given careful consideration to the circumstances in this case and found that there was no evidence that Mr Ali acted in the heat of the moment when he resigned. He had persisted in his desire to do so after he had been given a number of opportunities to reflect on the matter. Furthermore, where such circumstances do exist, case law states that the appropriate period allowed to an employee to change their mind is ‘likely to be a day or two’ (Kwik-Fit GB Limited v Lineham). Mr Ali did not ask for his resignation to be rescinded until more than four days after he had tendered it.
Says <<CONTACT DETAILS>>, “In this case, the EAT found that the period of reflection allowed to Mr Ali on the day he resigned was sufficient to show that his decision could not be regarded as having been taken in the heat of the moment. However, even had it found otherwise, the time it took him to change his mind was outside the time frame allowed in such circumstances.”
Immigration – A Brief Guide to the Points-Based System
The Points-Based Immigration System (PBS) replaces the previous routes to work and study in the UK for migrants from outside the European Economic Area (EEA) and Switzerland.
In addition, the Borders, Citizenship and Immigration Bill, published on 15 January 2009, lays down a radical new approach to British citizenship that will require all migrants to speak English and obey the law if they want to gain citizenship and stay permanently in the UK.
The PBS aims to ensure that only those migrants who benefit the UK – for example the highly-skilled, such as surgeons or scientists, or those who are coming to fill gaps in the labour market that cannot be met from the domestic workforce, such as teachers and nurses – can come to work or study, while introducing new measures to ensure that migrants comply with their leave to remain and go home at the end of their stay.
The system divides applicants into five categories or ‘Tiers’. These are:
  • Tier 1 – highly skilled workers, for example scientists and entrepreneurs;
  • Tier 2 – skilled workers with a job offer, for example teachers and nurses;
  • Tier 3 – low skilled workers filling specific temporary labour shortages, for example construction workers for a particular project;
  • Tier 4 – students;
  • Tier 5 – youth mobility and temporary workers, for example musicians coming to play in a concert.
Migrants need to pass a points-based assessment before they are given permission to enter or remain in the UK. Each Tier has a different points requirement. The number of points the migrant needs and the way the points are awarded will depend on the Tier they are applying under. Points will be awarded to reflect the migrant’s ability, experience, age and, when appropriate, the level of need within the sector in which the migrant will be working.
The Home Secretary recently announced that from 31 March 2009, employers must advertise Tier 2 skilled jobs to resident workers, through JobCentre Plus, before they can bring in a worker from outside Europe. In addition, access to Tier 1 (General) of the PBS is limited to applicants with a Master's degree and a minimum salary of £20,000.
The PBS is intended to be flexible. The Migration Advisory Committee reviews the arrangements and recommends changes to the entry criteria, when necessary, in response to changing economic circumstances.
Tiers 1, 2 and 5 are now open. From the end of March 2009, migrants in Tier 4 who wish to study in the UK must also pass a points-based assessment. See http://www.ukba.homeoffice.gov.uk/studyingintheuk/ for further information. Tier 3 is currently suspended.
Migrants applying under any Tier except Tier 1 will need to be sponsored in order for their application to be successful. If a UK organisation wishes to recruit a migrant under Tier 2 or 4, or a temporary worker under Tier 5, they must apply to the UK Border Agency for a sponsor licence. For workers under Tier 2 and for temporary workers under Tier 5, the sponsor will need to be a UK based employer. Under Tier 4, the sponsor will need to be a UK based educational institution. Migrants wishing to come to the UK as youth mobility workers under Tier 5 do not require a UK based employer.
Details of the sponsorship duties and how to apply to become a licensed sponsor can be found at http://www.ukba.homeoffice.gov.uk/employers/points/whatisthepointsbasedsystem/employingmigrants/ for sponsoring workers and http://www.ukba.homeoffice.gov.uk/employers/points/whatisthepointsbasedsystem/sponsoringstudents/ for sponsoring students.
If you wish to employ or teach an EEA or Swiss national, you should be able to do this without needing the permission of the UK Border Agency. There are, however, some restrictions on nationals of countries that have recently joined the EEA. For more information on the rights of all EEA and Swiss nationals, see http://www.ukba.homeoffice.gov.uk/eucitizens/.
Advice for employers on how to comply with the laws preventing illegal working in the UK can be found at http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/complyingwiththelaw/post280208/.
If you would like advice on any immigration matter, please contact <<CONTACT DETAILS>>.
In Brief
Changes to the Points-Based Immigration System
The Home Secretary has recently announced changes to the Points-Based System of Immigration (PBS). With almost immediate effect, the Government is to strengthen the resident labour market test for Tier 2 skilled jobs. From 31 March 2009, employers must advertise these jobs to resident workers through JobCentre Plus, for a minimum of two weeks where the salary is below £40,000, before they can bring in a worker from outside Europe. For further information, see http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/employingmigrants/residentlabourmarkettest/#header1.
In addition, access to Tier 1 (General) of the PBS is limited to applicants with a Master's degree and a minimum salary of £20,000.
In Brief
Employment Judges Sitting Alone
From 6 April 2009, Employment Judges sitting alone are authorised to hear cases dealing with holiday pay claims under the Working Time Regulations 1998 and also Stage 1 equal pay (work of equal value claims).
In Brief
Increased Penalties for Breaches of Health and Safety Law
Employers are reminded that the Health and Safety (Offences) Act 2008, which made changes to the penalty framework set out in Section 33 of the Health and Safety at Work etc. Act 1974, came into force on 16 January 2009. The Act introduced harsher penalties for businesses that commit certain health and safety offences.
The maximum penalty that can be imposed in the lower courts for breaching health and safety regulations has been increased from £5,000 to £20,000 and the range of offences for which an individual can be imprisoned has also been broadened.
In Brief
Tier 4 of the Points-Based Immigration System
At the end of March 2009, the existing student route for migrants from outside the European Economic Area and Switzerland wishing to study in the UK closes and is replaced by Tier 4 of the Points-Based System of Immigration. For further information, see http://www.bia.homeoffice.gov.uk/studyingintheuk/.
Insolvency and TUPE
Whilst 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, Regulation 8(7) provides that where insolvency proceedings are analogous to bankruptcy proceedings and have been instituted with a view to liquidation of the assets, the transfer provisions of TUPE do not apply. In such circumstances, employees do not automatically transfer to the new owner and any dismissals are not automatically unfair.
In a case concerning a ‘pre-pack’ administration (Oakland v Wellswood (Yorkshire) Ltd.), whereby a business goes into administration with a prospective purchaser already in place, the Employment Appeal Tribunal (EAT) considered Mr Oakland’s appeal against the Employment Tribunal’s finding that he could not bring a

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