Employment Law Titles ~ Summer 2008


ACAS Consults on Draft Code of Practice on Discipline and Grievance
The Employment Act 2002 (Dispute Resolution) Regulations 2004, which require employers and employees to operate statutory minimum disciplinary, dismissal and grievance procedures, were intended to give those involved the chance to settle complaints without recourse to litigation. However, the anticipated reduction in the number of tribunal claims did not happen and the procedures have been widely criticised for being poorly drafted and overly complex. An independent review of the options for simplifying and improving all aspects of employment dispute resolution recommended that the statutory dispute resolution procedures be repealed and replaced with non-prescriptive guidelines on grievances, discipline and dismissal.
To this end, the Advisory, Conciliation and Arbitration Service (ACAS) has published for consultation a revised Code of Practice providing practical guidance for employers, employees and their representatives. This sets out basic principles for handling disciplinary and grievance situations in the workplace. Failing to follow the Code will not, in itself, make a person or organisation liable to proceedings but employment tribunals will have the power to adjust by up to 25 per cent any awards made in relevant cases for unreasonable failure to comply with the Code.
The Government plans to introduce the changes in workplace dispute resolution procedures in April 2009 and it is intended that the revised ACAS Code will come into effect at the same time.
The draft Code of Practice can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=880&p=0. The consultation closes on 25 July 2008.
Age Discrimination – Young Workers
The Employment Equality (Age) Regulations 2006 make direct and indirect age discrimination illegal in an employment context, unless the treatment can be objectively justified. The legislation applies to discrimination against young as well as older workers.
Recently, a woman who claimed that she was dismissed for being ‘too young’ won her claim of age discrimination (Wilkinson v Springwell Engineering Limited).
Leanne Wilkinson was 18 years old when she began working for Springwell Engineering Limited, in Newcastle upon Tyne, as an office administrator. She was dismissed without notice during a three-month probationary period and was asked to leave the premises immediately.
Miss Wilkinson claimed that her employer told her that it needed an older, more experienced person to do the job. Springwell Engineering claimed that she was dismissed on grounds of capability.
The Employment Tribunal upheld Miss Wilkinson’s claim. The company had relied on a ‘stereotypical’ assumption that capability equals experience and experience equals older age. There was also a lack of any ‘orthodox procedures’ when recruiting Miss Wilkinson and when her employment was terminated.
Miss Wilkinson was awarded £5,000 for injury to feelings, approximately £5,000 for loss of earnings and two weeks’ pay because the company had failed to provide her with full written particulars of her employment. The award was increased by 50 per cent because the employer had failed to follow statutory procedures. In addition, the company was ordered to provide any prospective employers with a truthful reference stating that Miss Wilkinson’s dismissal was due to a breach of the age discrimination regulations, not that she was dismissed on capability grounds.
Employers are reminded that employees do not have to have worked for a specified period before they are entitled to bring a claim for discrimination. Equal opportunities training should be given so that stereotypical views linking age with competence do not go unchecked, leaving you open to a claim.
Contact <<CONTACT DETAILS>> for advice on any discrimination law matter.
Changes of Contract Terms and Conditions
If an employer seeks unilaterally to make changes to the terms and conditions of an employee’s contract of employment and the employee is not in agreement with them, it is generally a breach of contract. In serious cases, the employee can have the right to reject the employer’s proposals and to resign and claim constructive dismissal. Other options open to the employee are:
·        to go along with the employer’s proposals;
·        to refuse to work under the new terms and put the onus on the employer to take appropriate action; or
·        to reject the proposals but to continue to work, under protest, under the new terms, whilst reserving all rights and perhaps bringing court or tribunal proceedings in the event that a negotiated agreement cannot be reached.
In the recent case of Robinson v Tescom Corporation, Mr Robinson objected to Tescom’s restructuring proposals, which meant that his sales area was increased to cover the whole of the South of England. On 25 September 2006 he wrote to his employer saying that he did not accept the new terms and was treating the change as a breach of contract but would work under the terms of the varied job description, under protest, whilst regarding himself as dismissed and retaining the right to claim damages in future if a satisfactory agreement were not reached. The wording of his letter was taken from the Advisory, Conciliation and Arbitration Service advice leaflet on variations in a contract of employment. This sets out the employee’s options in such circumstances. However, Mr Robinson failed to work to the new terms and was subsequently summarily dismissed for gross misconduct for failing to follow a reasonable management instruction. Mr Robinson brought claims for unfair dismissal and breach of contract.
The Employment Tribunal (ET) dismissed Mr Robinson’s claims. Whilst he could have resigned and claimed that he had been constructively dismissed, he did not do so and was thereby affirming the continued existence of the contract. He had agreed to work under the new contract terms but then refused to comply with Tescom’s instruction to do so. In the circumstances, this failure to cooperate was gross insubordination and his employer’s decision to dismiss him was within the band of reasonable responses.
The Employment Appeal Tribunal upheld the ET’s decision. The option Mr Robinson chose to take required that he work within the varied contract, albeit under protest. He did not keep to his side of the bargain but insisted on working to the terms of his original contract while the situation was under review and ignored the new job description to which he had agreed to work.
Says <<CONTACT DETAILS>>, “The employee in this case was left without a remedy because he confused the options open to an employee in such circumstances. If you wish to change your employees’ contract terms or face proposals from your employer for unilateral changes to your existing terms, we can advise you to ensure you take appropriate action.”
Disability Discrimination – Normal Day-to-Day Activities
Under the Disability Discrimination Act 1995 (DDA), a person has a disability if they have a physical or mental impairment which has a long-term substantial adverse effect on their normal day-to-day activities. The DDA requires employers to make reasonable adjustments to accommodate the needs of disabled employees.
In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal ruled that a policeman who was dyslexic was disabled for the purposes of the DDA. Mr Paterson claimed that his employer had failed to make reasonable adjustments to take account of his dyslexia, particularly with regard to the exams he had to take as part of the police promotion process. The Employment Tribunal (ET) had earlier ruled that he was not disabled within the terms of the DDA because his dyslexia did not have a substantial adverse effect on his ability to carry out day-to-day activities.
The case was remitted back to the ET for determination of the claim on its merits and Mr Paterson has now won his claim.
Earlier this year a dyslexic police recruit succeeded in a claim of harassment and disability discrimination against Essex police. The ET found that he was treated as if he were ‘thick and stupid’ and no proper adjustments were made to mitigate the effects of his condition. In its view he had no option but to resign after other officers set out to humiliate and intimidate him.
Says <<CONTACT DETAILS>>, “Where an employee has a learning difficulty which is covered by the DDA, it is important to make sure that other employees appreciate this. We can advise you on how to go about making reasonable adjustments and how to ensure that an employee does not receive less favourable treatment because of their disability.”
Employee Wins Religious Discrimination Claim
Employees are protected under the Employment Equality (Religion or Belief) Regulations 2003 from discrimination by reason of any religion, religious or philosophical belief. There is an exception where belonging to a particular religion or having a particular religious belief is a genuine and determining occupational requirement for a post and it is proportionate to apply the requirement in the particular case.
An employee who worked for a Christian charity recently won his claim of constructive dismissal and discrimination on grounds of religion or belief.
The Employment Tribunal (ET) heard that the charity, Prospects, which receives public money for its work with people with learning disabilities, had previously employed a number of non-Christian staff and volunteers. In 2004, it began recruiting only those who were practising Christians and informed existing staff members who were non-Christians that they would no longer be eligible for promotion. Prospects claimed that it was protected by the genuine occupational requirement exception but the ET judged that its actions constituted discrimination under the Regulations.
The legal costs of the claimant in this case were paid by the British Humanist Association (BHA). Executive Director of the BHA, Hanne Stinson, commented that the outcome would “have far-reaching repercussions for religious employers, as faith-based organisations will have to be much more stringent when they wish to discriminate on grounds of religion or belief in employment and attach a ‘Genuine Occupational Requirement’ to their jobs.” 
Employer Responsible for Work-Related Suicide
Employees, or their dependants, are entitled to claim damages for injury caused by a workplace accident if:
  • there was a duty of care owed to the injured person;
  • that duty was not performed; and
  • it was reasonably foreseeable that harm would result from a failure to discharge the duty of care.
In Corr v IBC Vehicles, the House of Lords ruled that the widow of a man who committed suicide six years after he suffered severe head injuries in a workplace accident should be compensated by his former employer.
Thomas Corr had no history of psychiatric illness prior to the accident in 1996, after which he underwent lengthy and painful reconstructive surgery. He began to suffer post-traumatic stress disorder and subsequently became severely depressed. In May 2002, he killed himself by jumping from a multi-storey car park.
Mr Corr’s widow sued IBC Vehicles for pain, suffering and loss caused by the accident and by her husband’s suicide. IBC Vehicles admitted liability for the accident but denied liability under the Fatal Accidents Act 1976 for the suicide. The High Court awarded Mrs Corr damages of £82,520 but dismissed the Fatal Accidents claim. In the Court’s view, the employer’s duty of care to the deceased did not extend to preventing his suicide and his suicide was not reasonably foreseeable.
The Court of Appeal overturned this decision. It held that the key factor was not whether the particular outcome was foreseeable but whether the type of harm for which damages were sought was foreseeable. In this case, the foreseeable harm was depression and this was the cause of Mr Corr’s suicide. There was therefore no break in the chain of causation.
IBC Vehicles appealed. It submitted that whilst depression had been a foreseeable consequence of its breach of duty, Mr Corr’s suicide was not. In its view, this was an unreasonable, voluntary act that had broken the chain of causation. The House of Lords dismissed the appeal and held that the employer was liable under the Fatal Accidents Act, even though Mr Corr’s death was self-inflicted.
The Lords held that to establish liability it was not necessary to be able to foresee the precise form that damage resulting from a breach of the duty of care might take and suicide could not be regarded as so unusual and unpredictable as to be outside what was reasonably foreseeable. Mr Corr’s suicide was the action of a man suffering from a severe depressive illness that impaired his ability to make reasoned and informed judgments about his future and the illness, as had been acknowledged, was a consequence of the employer’s actions. Lord Bingham said, “It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty although it could well be thought unfair to the victim not to do so.”
This decision could have serious implications for employers. As well as ensuring that health and safety policies and procedures are in place to minimise the risk of injury to employees, employers should also have effective procedures for identifying and dealing with workplace stress. Contact <<CONTACT DETAILS>> for advice on this matter.
Hearing Scheduled on Retirement Age Challenge
The UK Employment Equality (Age) Regulations 2006, which came into force on 1 October 2006, make all retirement ages under 65 illegal unless objectively justified.
Heyday, an organisation backed by Age Concern to support people approaching or in early retirement, has challenged the Government over the inclusion of the mandatory retirement age on the grounds that this means that the Regulations do not fully implement the EU Equal Treatment Directive. The organisation wants the legislation amended to give workers over 65 the same protection from discrimination as younger workers. In order to settle this issue, the matter was referred to the European Court of Justice (ECJ).
A hearing was due to be held before one of the ECJ’s Advocate Generals on 2 July 2008. A written submission on the merits of Heyday’s case and the legality of the UK Government’s transposition of the EU Directive will then be submitted to the ECJ and it is possible that the Court will come to its decision before the end of the year.
Says <<CONTACT DETAILS>>, “There are many workers who wish to continue working after the age of 65, so the ECJ’s ruling on the Heyday organisation’s challenge to the age discrimination legislation, as implemented in the UK, is awaited with interest.”
Immigration – Sponsorship Under the Points Based System
Under the Points Based System (PBS) for immigration most people applying to come to or remain in the UK to work or study who are not nationals of the European Economic Area (EEA) or Swiss nationals will, in addition to having to meet the criteria set by the PBS of assessment, require a certificate of sponsorship from a licensed sponsor in order to qualify for permission to enter or remain.
If you wish to employ migrants under the PBS, you must apply to join the register of sponsors in order to obtain a licence enabling you to issue certificates of sponsorship. Acceptance onto the register means that you agree to meet a number of sponsorship duties, including cooperating with the Border and Immigration Agency, record keeping, reporting, compliance and tier-specific duties.
A licence will be valid for four years from the date when it is issued or from the day that applications are accepted for the relevant tier, whichever is later.
The five tiers under the PBS and the starting date from which migrants can apply to come to the UK under that category are:

Application Date

Tier 1    Highly skilled workers

29 February 2008

Tier 2    Skilled workers with a job offer

Autumn 2008

Tier 3    Low skilled workers to fill temporary labour shortages

Tier Suspended

Tier 4    Students

Spring 2009

Tier 5    Youth mobility and temporary workers

Autumn 2008
Tier 3 is currently suspended for those wishing to enter the UK from outside the EEA. Entry to this tier will only be allowed if specific shortages are identified that cannot be filled from the domestic or European labour force.
All applicants in tiers 2 to 5 must give a certificate of sponsorship from a licensed sponsor when applying for permission to come to the UK or for permission to stay.
Employers who wish to apply for a licence as a sponsor for skilled workers and inter-company transfers under tier 2 can apply now. This can be done online at http://www.ukba.homeoffice.gov.uk/employers/points/applying/applyonline/. The aim is that applications for a licence for tiers 4 and 5 and for tier 2 licences in the categories for sportspeople and religious workers will be accepted from mid-2008.
Sponsors will be given an A or B rating. Those given a B rating will have to improve their performance sufficiently within a relatively short time period to be upgraded to an A rating, or risk having their licence withdrawn. Serious breaches of the rules may lead to sponsors being removed from the register of sponsors and prevented from employing migrant workers.
Immigration – Tighter New Rules for Skilled Foreign Workers
Following the introduction in February 2008 of the highly-skilled migrants programme – tier 1 under the new Points Based System (PBS) for immigration that will apply to migrants who are not nationals of the European Economic Area or Swiss nationals – the Government has announced strict new criteria that will apply to skilled and temporary workers applying to come to Britain to fill skilled vacancies in the labour market.
The schemes – tier 2 and tier 5 under the PBS – replace the existing routes of entry, including the old work permit system. British-based companies will have to prove that they have been unable to fill skilled posts with a resident worker and must show that the job vacancy has been advertised in the UK, unless the job is on the shortage occupation list. Would-be migrants must have a job offer before they apply for a visa.
To qualify to work in Britain, skilled foreign nationals will require a certain number of points. Points are awarded only if a person can prove that they will be doing skilled work, speak a good standard of English, and are earning more than £24,000 or have a recognised qualification. Employers will need a licence from the UK Border and Immigration Agency to offer jobs to skilled workers. See article – Immigration – Sponsorship Under the Points Based System.
Border and Immigration Minister Liam Byrne said, “Our new points system means that British job seekers get the first crack of the whip and that only the skilled migrants we actually need will be able to come. By moving points up or down, we can make sure the numbers we allow in to the UK are in line with the needs of business and the country as a whole.”
Employers who break the rules and employ illegal workers already face much tougher sanctions. In February this year a new system of civil penalties was introduced under which an employer can be fined up to £10,000 for each illegal worker found at a business. It is now a criminal offence to knowingly employ illegal migrant workers. This offence carries a maximum two year prison sentence and/or an unlimited fine. The introduction of compulsory identity cards for foreign nationals is planned later this year, aimed at making it easier to check the identity of those applying for jobs.
The Government has also revealed its proposals for tier 5 of the PBS, which covers those travelling temporarily to the UK for primarily non-economic reasons, such as entertainers, sportspeople and charity workers. To ensure entertainers continue to contribute to British cultural life, those coming to the UK for permit-free events – such as the Edinburgh Fringe – will be assessed outside of the PBS under visitor visa rules. The Government is due to publish details of the new visitor visa category in the near future.
In Brief
HSC and HSE Merger
The Health and Safety Commission (HSC) and the Health and Safety Executive (HSE) have merged to form a single national regulatory body.
Originally, the two were established as separate, non-departmental bodies with working practices and delegated powers established in such a way as to distance the HSC from the day-to-day workings of the HSE. However, following extensive consultation and through the process determined by the Legislative and Regulatory Reform Act 2006, the decision was taken to merge the two bodies in order to provide greater clarity and consistency in promoting better health and safety at work, whilst maintaining public accountability. The merged body will be called the HSE.
In Brief
Outdoor Workers and the Sun
The incidence of skin cancer in the UK has doubled over the last 15 years with over 40,000 new cases diagnosed each year. Skin cancer is almost always caused by exposure to the sun and is therefore preventable.
The Health and Safety at Work Act 1974 requires employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work. Therefore, employers with employees who work outside are advised to include in their health and safety policy measures to protect them from harmful exposure to ultraviolet radiation from the sun.
The Health and Safety Executive has useful guidance on this topic which is available at http://www.hse.gov.uk/temperature/issuesandrisks/sunprotection.htm.
In Brief
Sex Change Paratrooper Wins Compensation
A former paratrooper who underwent a sex change operation has been awarded £250,000 compensation in an out of court settlement of her claim for sexual discrimination and unfair dismissal. Jan Hamilton, formerly Captain Ian Hamilton, was ordered to attend a compulsory army medical examination in her male uniform. She refused, saying it would have been ‘humiliating and demeaning’ for her to have to attend dressed as a man.
In Brief
Successor Not Comparator
One of the commonly disputed issues in equal pay claims is who is an appropriate comparator for the purposes of deciding if an employer’s pay policy has been applied in a discriminatory fashion.
Recently, a claimant sought to use as a comparator a successor to the post, as opposed to a contemporary. The Employment Appeal Tribunal rejected the use of a successor as a comparator as being too hypothetical. Elias P said that the Equal Pay Act “plainly envisages comparison with someone employed at the same time as the claimant.”
Partner Note
Walton Centre for Neurology and Neurosurgery NHS Trust v Bewdley – EAT 23 May 2008.
In Brief
Time to Train – Consultation on Proposed New Right
The Department for Innovation, Universities and Skills has launched a consultation on a proposed new law whereby employees will have the right to request time off work to complete relevant training. It is planned that the new entitlement will apply to all employees who have worked for their employer for a minimum of 26 weeks. It is proposed that requests should be treated in a similar way to those for flexible working, with employers required to give them serious consideration. The consultation closes on 10 September 2008.
In Brief
Unfair Dismissal and Alcohol Policy
A recent case serves as a reminder of the importance of circulating and abiding by your internal policies and procedures. The Employment Appeal Tribunal ruled that the dismissal of a council employee who had consumed alcohol whilst on duty was unfair because the council had failed to make known its published alcohol policy and had not followed it when dismissing him (Sinclair v Wandsworth Council).
Mental Health in the Workplace
The issue of mental health can be a very difficult one for employers to deal with, but it is one that should not be ignored. The 2006/07 survey of self-reported, work-related illness, published by the Health and Safety Executive (HSE), indicated that approximately 530,000 people in Britain believed that they were experiencing work-related stress at a level that was making them ill. Research commissioned by the Shaw Trust in 2006 estimated that three in every ten employees will have a mental health problem in any one year. In addition, mental ill health is costing businesses as much as £9 billion a year in salaries, excluding the cost of lost time and productivity.
Aside from issues of productivity, employers have a duty of care to their employees, which includes a duty not to cause an employee psychiatric harm. Whilst there may be an underlying cause of an employee’s mental ill health that lies outside the workplace, do not assume that this is the case and do nothing. There may be measures you could take to make things easier. If the problem is work-related then the employer has a responsibility to control and help remedy it.
Many workers in the UK work long hours and suffer stress as a result. Where an employer is guilty of a serious breach of the Working Time Regulations, as regards hours worked and rest breaks allowed, this will be taken into account when deciding if psychiatric injury was reasonably foreseeable for the purposes of a damages claim for stress. Failing to take reasonable steps to prevent an overworked employee’s breakdown by refusing to respond to signs that they are struggling to cope is a breach of the duty of care owed to the employee by the employer. Bullying can cause psychiatric damage and an employer can be held vicariously liable if an employee suffers a stress-related illness as a result of being bullied by another employee and the employer is found to be in breach of its duty of care.
In spite of the disruption that mental health problems can cause in the workplace and the legal duties that reside with the employer with regard to the health and safety of employees, the 2006 research revealed that 80 per cent of the companies surveyed did not have a formal policy for dealing with stress and mental ill health at work and 70 per cent were of the view that they did not know enough about their legal position and obligations as regards mental health in the workplace.
There is useful guidance on dealing with this issue on a general level on the Health and Safety Executive’s website at http://www.hse.gov.uk/stress/. In addition, the Advisory, Conciliation and Arbitration service has guidance on how to spot signs of depression in the workplace at http://www.acas.org.uk/index.aspx?articleid=2053 and a booklet entitled Health, Work and Wellbeing available at
For individual advice on dealing with a specific stress-related or mental health issue or for assistance in drawing up a formal policy, contact <<CONTACT DETAILS>>.
See http://www.hse.gov.uk/stress/research.htm – statistics page and also Mental Health, The Last Workplace Taboo, June 2006.
New Rights for Agency Workers
In recent years there have been several failed attempts by the EU Council of Ministers to agree on proposals to improve the employment rights of agency workers. In December 2007, the Agency Workers Directive (AWD), giving temporary workers equal pay and conditions, was blocked by a minority of countries including the UK. However, the issue is now firmly back on the European agenda.
The Government also came under pressure at home, with a Private Member’s Bill proposing new rights for agency workers receiving a second reading and trade unions stepping up their campaign to hold the Government to its manifesto promise to provide better protection for temporary workers. Add to that the criticisms from the courts on the law governing the employment status of agency workers and it is clear that the Government needed to act. This has now happened, with the announcement of a compromise deal between unions and employers that will give agency workers in the UK many of the same rights as employees after 12 weeks’ employment. It is hoped that this will improve the lot of agency workers whilst still providing employers with flexibility.
Agreement has been reached on the following points:
  • after 12 weeks in a given job an agency worker will be entitled to equal treatment; and
  • equal treatment will be defined to mean at least the basic working and employment conditions (e.g. pay and holidays) that would apply if the worker had been recruited directly by the employer to occupy the same job. It will not cover occupational social security schemes (e.g. sickness benefit and pension schemes).
The Government believes that this will lead to agreement in Europe on an AWD that secures the flexibility the UK seeks. It will engage with its European partners to seek consensus on the terms of the AWD that will enable this agreement to be brought into legal effect in the UK. It is hoped that EU agreement will be obtained in time for the legislative changes to be introduced in the next parliamentary session.
Although the Government states that there are estimated to be 1.4 million agency workers in the UK, according to a report from Leeds University Business School the most reliable statistics come from the Labour Force Survey (conducted by the Office for National Statistics), which shows that in 2007 there were on average 250,000 agency workers making up 1 per cent of the workforce. The analysis shows that agency workers earned £7.80 per hour on average in 2007 compared with £11.47 for permanent workers.
Says <<CONTACT DETAILS>>, “There will now be consultation on mechanisms for resolving disputes concerning the definition of equal treatment and compliance with the new rules. The Government will also consider anti-avoidance measures, in particular how to treat repeat contracts for the same worker, so there is likely to be much debate before the final details of the legislation are known. We can advise you on the legal aspects of your temporary or permanent staff agreements.”
Partner Note
The report from Leeds University Business School can be found at
Pool Cars – Are They Safe?
Approximately one third of all road traffic accidents involve someone who is at work at the time. Following a series of checks carried out by its examining engineers on over 21,000 pool cars, the RAC has reported that nearly a fifth of pool car fleets may not be roadworthy.
The investigation found that:
  • 16 per cent of the pool cars examined were unroadworthy;
  • almost 8 per cent did not have the correct fluid levels;
  • 14 per cent did not have the correct tyre pressure or tyre tread; and
  • 19 per cent did not have a full service history.
The findings suggest that many pool cars are not undergoing basic checks and maintenance or regular servicing.
Businesses that operate a car pool for employee use should have procedures in place to ensure that the vehicles are well maintained to reduce the risk of an accident. Routine maintenance and safety checks should be recorded and a full service history kept for each vehicle.
Says <<CONTACT DETAILS>>, “With the introduction of the Corporate Manslaughter Act on 6 April 2008, businesses which adopt a cavalier attitude to any aspect of workplace health and safety are walking a tightrope. We can review your health and safety policies and procedures to help you minimise the legal risks to your business.”
Pregnancy, Sex Discrimination and IVF Treatment
One in seven couples in the UK has difficulty conceiving a baby and around 6,000 babies are born each year as a result of women undergoing in vitro fertilisation (IVF) treatment.
The European Court of Justice (ECJ) has handed down a judgment (Mayr v Flöckner) which gives guidance on the employment law rights of a woman who is absent from work because she is undergoing fertility treatment.
Ms Mayr was employed by Flöckner as a waitress. She was undergoing IVF treatment and was certified as sick by her doctor from 8 to 13 March 2005. The transfer of the fertilised ova into her uterus was planned for 13 March. On 10 March, her employer dismissed her by telephone with effect from 26 March 2005.
The question before the ECJ was whether or not protection under the Pregnant Workers Directive 92/85 extends to a worker who is undergoing IVF treatment when, at the time of her dismissal, in vitro fertilised ova exist but have not yet been implanted? In the ECJ’s view the woman was not a ‘pregnant worker’ for the purposes of the Directive. In some member states fertilised ova may be kept for a long period or stored as a precautionary measure. Had the Court ruled otherwise, it would have granted protection where implantation was delayed for whatever reason.
However, the Equal Treatment Directive 76/207 states that ‘…the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status’. The ECJ ruled that dismissal of a female worker at an advanced stage of the IVF process, as in this case, would amount to direct discrimination on the grounds of sex as the treatment involved is only given to women.
Employers are advised to proceed with care if they are considering dismissing a woman for persistent absence from work if they are aware that she is or has been undergoing IVF treatment. Whilst this would not be a pregnancy related dismissal, if the woman is undergoing the advanced stages of the treatment she could be entitled to bring a claim of sex discrimination. Contact <<CONTACT DETAILS>> for advice on making sure your maternity policies and procedures are up to date.
Redundancy – Definition
In the current economic climate, many businesses will be seeking to cut costs and this could involve making organisational changes or making staff redundant.
In Martland v Co-operative Insurance Society Ltd., the Employment Appeal Tribunal (EAT) considered the question of whether employees who had been dismissed and then refused the new terms and conditions offered to them were redundant and therefore entitled to redundancy payments.
The claimants worked as ‘Financial Advisors’ (FAs) for the Co-operative Insurance Society (CIS). They had previously been called ‘agents/collectors’ and a traditional feature of CIS was that its agents provided advice to and collected premiums from its customers in their own homes. Faced with severe financial difficulties however, CIS decided to transform its entire operation, which involved improving the productivity of the FAs by having them spend more time procuring sales and less time with existing customers for non-selling purposes. To this end, CIS sought to achieve union agreement to changes in the FAs terms and conditions of employment. When this failed, it terminated their contracts and offered them new ones on different terms.
For the purposes of the Employment Rights Act, an employee is regarded as having been dismissed by reason of redundancy if the main reason for the dismissal is that the business no longer has a need for employees to carry out ‘work of a particular kind’.
The Employment Tribunal (ET) examined whether the new terms and conditions offered to the FAs required that they carry out work of a particular kind that was different from the work performed under their original contracts. If it did, then the dismissals were by reason of redundancy.
The ET held that the dismissals were not by reason of redundancy but because of a reorganisation. They were therefore for ‘some other substantial reason’ and thereby fair. The FAs had essentially been employed as salespersons and whilst the reorganisation meant that the techniques used might be different, the bulk of the selling would still be undertaken by them. The EAT dismissed their appeal. There was no single right or wrong answer to the question whether or not the work under the new terms and conditions could be described as being of a different kind. The judgment involved assessing all the evidence. The ET was entitled to reach the decision it had and had given clear reasons for so doing.
As regards the entitlement to redundancy payments, the FAs had claimed that they were entitled to an enhanced contractual redundancy payment, well in excess of the statutory amount, as provided for under a collective agreement. Their contracts of employment provided for terms agreed in the course of collective negotiations to form part of the contract. However, whilst containing precise details of the ‘severance terms’, the collective agreement stated that ‘this process is not intended to form part of individual contracts of employment’.
The ET held that had the dismissals been by reason of redundancy, the FAs would have been entitled to the enhanced payments. CIS cross-appealed this finding. In the EAT’s opinion, ‘where there is a term which is manifestly apt for incorporation into the individual contract, as the redundancy severance terms were, then it would require very clear and unambiguous language to deny it contractual effect’. The unions and employees would have expected the negotiated terms of the agreement to be met in the event of redundancy and the EAT judged that there would have been an obligation to make the enhanced payments.
For advice on changing the terms and conditions of employee contracts or on any aspect of redundancy, contact <<CONTACT DETAILS>>.
Restrictive Covenants
It is not uncommon for employment contracts to contain restrictive covenants, intended to protect the employer’s business in the event that an employee leaves. However, if these are drafted in such a way that their enforcement would prevent the employee from earning a living, the courts have been apt to strike them out as being unenforceable. A restrictive covenant will only be valid if the employer can show that it does no more than protect the legitimate interests of the business and is reasonable with regard to time and the area it covers. It cannot restrict a former employee from using his or her general skills but can legitimately protect trade secrets.
In some recent cases, the courts have begun to take a more flexible approach. Rather than dismissing as unenforceable a restrictive covenant that is too widely drafted they have sought to interpret it in a way that achieves a balance so that the employer’s position is protected whilst the employee is not deprived of his or her livelihood.
In a recent case in the Scottish Court of Session (Christie Owen and Davies Plc v Walton), the former employer had obtained an injunction to enforce a restrictive covenant in Mr Walton’s contract. Mr Walton had worked for Christie Owen and Davies as a chartered surveyor, specialising in the care sector. Mr Walton challenged the ruling, claiming that the terms of the covenant were too restrictive, in particular that the definition of a ‘prohibited business’ that it contained effectively prevented him from working as a chartered surveyor.
The background to the case was that Mr Walton had for some months been looking for another job. In December 2007 he accepted employment with another company which was aiming to establish an agency working in the healthcare sector in Scotland. Prior to this, in November 2007, he had sent emails to his girlfriend’s computer which contained contact details relating to his work with Christie Owen and Davies in their Edinburgh office. The company’s IT security system detected the transfer of the large data files and the senior managers were notified. The company claimed that Mr Walton was gathering confidential information to take to his new employer to assist their expansion into the care sector in Scotland. Mr Walton claimed that he had transferred the files so that he could work at his girlfriend’s home, where he was living. On 7 December he was dismissed on the ground of gross misconduct.
The definition of a prohibited business contained in the restrictive covenant referred to any business carried on by Christie Owen and Davies during the relevant period with which the employee ‘shall have been directly or materially concerned in the course of his employment’. Mr Walton argued that he had been directly involved in far more activities than just the care sector and that the restriction was unreasonable, being wider than was necessary to protect the employer’s trade connections in that sector alone.
Mr Walton lost his appeal. In the Court’s view, the restriction only limited him from working in an organisation in the business sector with which he had been ‘directly and materially’ involved and so recognised that an employee may have carried out various activities in the course of his employment but unless these formed a significant part of his work, those business activities would not be prohibited. The restrictive covenant as regards his work in the care sector was therefore effective.
We can advise you on drafting restrictive covenants that will both protect your legitimate business interests and also be viewed as a reasonable restriction with regard to the individual nature of your business. Contact <<CONTACT DETAILS>> for advice.
Risk Assessments and Routine Activities
Two recent cases involving breaches of the Health and Safety at Work etc. Act 1974 have highlighted the need for those with health and safety responsibilities to be vigilant in ensuring that day-to-day tasks are carried out in a way that does not put workers at risk.
The Health and Safety Executive (HSE) brought the two cases, against JCB Earthmovers Ltd. and JC Bamford Excavators Ltd., before the Crown Court, after two employees died in separate incidents whilst carrying out routine tasks. Both companies had pleaded guilty to charges at earlier court hearings.
Welder Darren Ellis was testing the fuel tank of an earthmoving machine for leaks when the inspection plate blew off, causing him fatal head injuries. The investigation into the accident revealed that he had connected a high-pressure instead of a low-pressure airline. The two airlines were similar and had identical connectors. The Court also heard that Mr Ellis was given insufficient training in how to do the job safely. JCB Earthmovers Ltd. was fined £200,000 and ordered to pay costs of £31,366.
Paul McNamara suffered fatal head injuries when he was crushed by the boom of an excavating machine. HSE’s investigation revealed that it was common practice for workers to operate the controls for the boom whilst standing outside the cab and leaning through its back window. A fault in the hydraulic system resulted in the control lever malfunctioning and this caused the boom to carry on moving, trapping Mr McNamara and inflicting fatal injuries. JC Bamford Excavators Ltd. was fined £266,000 and ordered to pay costs of £31,701.
Employers should not only ensure that suitable assessments of the risks involved in their undertakings are carried out but must also make sure that workers are trained properly and do not take short cuts when carrying out routine activities, thereby making them dangerous.
Failure to manage health and safety risks can have disastrous consequences for employees and businesses alike. A proactive approach is essential. We can advise you on the policies and procedures necessary to minimise the likelihood of an accident in your workplace that could result in prosecution or an unlimited fine.
Straight Man Fails in Gay Banter Claim
A recent case (English v Thomas Sanderson Blinds Ltd.) has raised the question as to whether or not the Employment Equality (Sexual Orientation) Regulations 2003 properly implement the EU Council Employment Framework Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation.
Mr English worked for Thomas Sanderson Blinds Ltd. under an agency agreement. He claimed that he had for many years been subjected to banter of a homophobic nature, which began when a manager learned that he had been to boarding school and that he lived in Brighton. Mr English is heterosexual and accepted that his tormentors did not mistakenly or genuinely believe that he was gay. However, he argued that their treatment constituted harassment under Regulation 5 of the Sexual Orientation Regulations, which defines harassment as unwanted conduct towards another on the grounds of sexual orientation, which violates that person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. The Framework Directive, however, defines harassment at work as unwanted conduct ‘related to’ sexual orientation.
The Employment Tribunal held that Mr English was not protected by Regulation 5. He appealed to the Employment Appeal Tribunal (EAT).
The EAT held that although those who engaged in the homophobic banter referred to stereotypical characteristics which they associated with a gay person, the alleged tormentors did not perceive Mr English to be gay and he himself accepted that this was the case. In the EAT’s view, although the homophobic banter was unacceptable, it was a ‘vehicle for teasing’ Mr English and was not based on a perception or even incorrect assumption that he was gay. It therefore fell outside the reach of Regulation 5.
However, the EAT granted permission to appeal to the Court of Appeal as it believed that the result of the case might have been different had it been decided under the narrower definition of harassment contained in the Framework Directive and this was ‘an unsatisfactory state of affairs’.
Employers are advised to protect the dignity of all employees by promoting a workplace culture of tolerance and respect. Whilst the teasing in this case has thus far been found not to be unlawful, banter of a personal nature can easily cause offence and should be discouraged.
The Burden of Proof in Unfair Dismissal Cases
In Kuzel v Roche Products Ltd. the Court of Appeal considered where the burden of proof lies when an employee brings a claim for unfair dismissal but where different reasons for the dismissal are put forward by each side.
In this case, Dr Kuzel claimed that the real reason she was dismissed was because she had made protected disclosures about certain of her employer’s activities. The dismissal was therefore ‘automatically’ unfair and there should be no cap placed on the amount of compensation payable. Roche Products Ltd. argued that the reason Dr Kuzel was dismissed was either a conduct reason or ‘some other substantial’ reason.
The Employment Tribunal (ET) found that Roche had failed to demonstrate a potentially fair reason for Dr Kuzel’s dismissal but neither could it find evidence to support her claim that she was really dismissed for ‘whistleblowing’, ruling that the claim was ‘not made out’. The use of this phrase caused disagreement as to whether or not the ET was saying that the burden of proof lay with Dr Kuzel. The ET held that the reason for the dismissal was Dr Kuzel’s line manager’s ‘catastrophic loss of temper’ and his failure to follow the advice of the company’s Human Resources Director with regard to the situation.
The Employment Appeal Tribunal (EAT) held that the ET’s approach to the burden of proof of the whistleblowing claim was not legally correct and remitted the case to the same ET for a fresh hearing.
Dr Kuzel appealed, arguing that as Roche had failed to prove that it had a fair reason for dismissing her, the ET should, as a matter of law, have accepted the reason she put forward. The Court of Appeal rejected this argument. The principal reason for a dismissal is a question of fact for the ET. It is for the employer to prove the reason for the dismissal as it knows better than anyone else why the employee was dismissed. In this case, it was for Roche to show that the reason for Dr Kuzel’s dismissal was a fair one. In contesting the reasons put forward by Roche, there was no burden of proof on Dr Kuzel to disprove these reasons, let alone prove a different reason. When an employee asserts that the dismissal was for a different reason altogether, some evidence to support their claim must be produced but they do not have to discharge the burden of proving that the dismissal was for the different reason for their claim to succeed.
If the employer does not demonstrate that the reason for dismissal was the one it put forward, it is open to the ET to find that the reason was that claimed by the employee. However, ‘it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but is not necessarily so’. The ET may also find that the true reason for dismissal was one that was not put forward by either side.
The Court of Appeal therefore dismissed Dr Kuzel’s appeal and reinstated the decision of the ET. Roche was liable for ‘ordinary’ unfair dismissal because it had not demonstrated its case, but the dismissal was not automatically unfair because Roche had shown that the making of protected disclosures by Dr Kuzel was not the reason for her dismissal. The compensation awarded was therefore limited to £56,800, the maximum amount payable in unfair dismissal cases at that time.
The Customer Not Always Right
Employers with staff in customer facing roles are advised to ensure that they have robust procedures for dealing with sexual harassment in the workplace in order to meet the challenges posed by changes to the Sex Discrimination Act 1975 that were introduced on 6 April 2008.
In practice, many employers, such as bar managers and hotel and restaurant owners, will already have established ways of dealing with any unwanted behaviour towards staff which also attempt to defuse the situation. However, it is now unlawful for an employer to fail to take reasonably practicable steps to protect an employee from unwanted conduct relating to their sex, by a third party, where such harassment is known to have occurred on at least two other occasions. The person responsible for the harassment does not have to be the same on each occasion.
As a first step, make sure that you have a policy in place for dealing with incidents of sexual harassment and intimidation involving customers, suppliers or members of the public and that this is communicated to all staff. Where possible, display signs making it clear that the harassment of workers will not be tolerated, so that all visitors to your premises are in no doubt that you operate a zero tolerance policy in this regard. Managers should be trained in how to deal with complaints from staff, how to monitor the ongoing situation to ensure that the member of staff is satisfied with the steps that have been taken and how to prevent further incidents arising.
The type of action necessary if a member of staff is subjected to sexual harassment will depend on the nature of your business. Barring someone from a pub or restaurant is an obvious way of trying to protect staff from a further incident involving that customer at least. However, a complaint of harassment involving a long-standing supplier or customer, the loss of whose business would be unwelcome, will require sensitive handling if the employer is to comply with its legal duty to the member of staff to act to prevent a recurrence of the unwanted behaviour at the same time as retaining the business. Protecting your business is not a defence. One can also envisage difficulties arising when a worker’s job is to socialise with clients or prospective clients, for example at corporate events, especially where alcohol is provided. But it is important to remember that there is no limit to the amount of compensation payable in claims of this kind and the settlement can include damages for injury to feelings as well as for any loss the employee has suffered.
Says <<CONTACT DETAILS>>, “The first cases brought under the new law will provide guidance on this issue. Meanwhile, it is important for employers to anticipate problems that could arise

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