Employment Law Titles ~ Winter 2008/2009


Age Discrimination and Enhanced Redundancy Pay Schemes
Under the Employment Equality (Age) Regulations 2006, discrimination on age grounds can sometimes be justified. The statutory redundancy scheme is based on age and length of service but is exempted, by Section 33 of the Regulations, from being discriminatory. However, an employer’s own enhanced redundancy pay scheme is only exempt if it mirrors the statutory scheme, applying the same multiplier to all aspects of it – see Section 33(3) of the Regulations – or if it can be objectively justified as a ‘proportionate means of achieving a legitimate aim’, such as rewarding loyalty or providing assistance to older employers who might find it harder to find another job.
In Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd., the Employment Appeal Tribunal (EAT) considered an appeal against a decision of the Employment Tribunal (ET) that BAE Systems’ contractual redundancy scheme was not discriminatory. Benefits under the scheme were only paid to employees under 60 at the date of redundancy. There was a tapering provision that applied to those over 57. When the scheme was first introduced it was compulsory to retire at age 60, so an employee over that age was entitled to benefits under the company’s pension scheme. The retirement age was later changed to 65. No amendment was made to the redundancy scheme but until 2006 employees could still take their pension from the age of 60 without penalty to their accrued benefits. In 2006, the pension scheme was modified because of financial pressure on the fund. It was agreed, with the backing of the trade union, that the age at which a pension could be claimed would be gradually raised to 65, over a three-year period, and a four per cent reduction would be applied to the pension available with regard to service after 1 April 2006.
Mr Loxley volunteered for redundancy at age 61 and was not therefore entitled to a redundancy payment. He claimed that the scheme directly discriminated against him on grounds of age. BAE Systems sought to justify that it was fair to exclude from the redundancy scheme employees in receipt of a pension.
In such cases, it is for the ET to carry out a critical examination of the facts, weighing the reasonable need of the undertaking against the discriminatory effect of the employer’s measure, in order to assess whether this is justified.
The ET rejected Mr Loxley’s claim. In its view, he had opted to be made redundant and had received what had been agreed in the 2006 agreement. The fact that the trade union had endorsed the agreement went some way to support the employer’s contention that the terms of the revised scheme were in pursuit of a legitimate aim. The principle of tapering redundancy payments had been to prevent older employees from enjoying a windfall if made redundant when they were shortly to retire anyway. As to proportionality, the ET found that BAE Systems had examined the effect of the changes on each age group to arrive at a balanced result. There was therefore no age discrimination.
Age Discrimination and Enhanced Redundancy Pay Schemes
Having a redundancy pay scheme which is more generous than the statutory redundancy scheme is very common and when redundancies are being made, age is often a factor. The Employment Equality (Age) Regulations 2006 do provide grounds on which discrimination on the basis of age can be justified and the statutory redundancy scheme is exempt from being discriminatory.
Where an enhanced redundancy pay scheme exists, this can only be exempt from being discriminatory on age grounds if it mirrors the statutory scheme in its application or if any age based terms can be ‘objectively justified as a proportionate means of achieving a legitimate aim’.
In the recent case of Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd., the Employment Appeal Tribunal concluded that for age discrimination to be justified in an enhanced redundancy pay scheme, the nature of both the enhanced scheme and the pension scheme related to the occupation had to be considered and the justification claimed by the employer critically appraised. The matter was therefore referred to a fresh Tribunal.
The EAT recommended that the case should be heard together with several others, raising similar points, that had been stayed pending the outcome of this case, and a ‘lead case’ chosen.
Mr Loxley appealed. The EAT found that the ET’s analysis was defective. It had failed to consider the question of whether or not it was proportionate to exclude the claimant from any redundancy payment altogether because he was entitled to a pension. It had made no assessment of what his pension would be or how that related to the redundancy payments. In the EAT’s view, it is neither inevitable nor in all cases justified for those in receipt of a pension to be excluded from the redundancy scheme. Justification will depend on the nature of both schemes. Although the ET had a lot of financial information on the various benefits in this case, it had not analysed that information in its judgment. Whilst it is significant that the scheme had been agreed with the support of the union, this would not of itself render an otherwise unlawful scheme lawful. The justification relied on by an employer must be subject to critical appraisal. The ET’s judgment was therefore flawed and the matter should be referred to a fresh Tribunal.
In passing judgment, the EAT referred to the fact that a number of cases on this issue had been stayed pending the outcome of this case and suggested that it would be sensible for them to be considered together, with a lead case being selected.
Says <<CONTACT DETAILS>>, “Employers with a contractual redundancy pay scheme should review it to ensure that it does not discriminate or that they can justify that its terms are a proportionate means of achieving a legitimate aim. We can advise you on this or any other redundancy related matter.”
Age Discrimination and Job Advertisements
Although many businesses are contemplating downsizing, owing to the worsening economic situation, if you are recruiting staff, it is important to remember that the Employment Equality (Age) Regulations 2006 make it unlawful to discriminate on grounds of age, including when advertising to fill a vacancy.
The case of Rainbow v Milton Keynes Council illustrates the danger to employers, when placing a job advertisement, of specifying the number of years’ experience required by applicants as this can be indirectly discriminatory. In some instances, this will be because potential candidates may have the necessary skills required for the job but be too young to have gained the qualifying length of experience or, as was the case here, because they are of an age where they are likely to have more years’ experience than stipulated in the advertisement.
Ms Rainbow, aged 61, had 34 years’ teaching experience and was therefore on a higher pay scale than a younger teacher. In October 2006, a full-time post became available at the school where she worked part-time. The job advertisement said that the post would suit ‘candidates in the first five years of their career’. Ms Rainbow applied for the post but was not short-listed for interview. She was told that the school wished to appoint someone on the same pay scale as the teacher who was leaving.
The Employment Tribunal (ET) found that the school had indirectly discriminated against Ms Rainbow because of her age. It had applied a practice that put her at a disadvantage, as someone over 60 is likely to have more than five years’ experience, and had provided no real evidence to justify the discrimination. The Council had sought to justify the practice on cost grounds, citing as its reason the financial constraints under which the school operated. However, it did not produce compelling evidence to show that it was forced to take the discriminatory action. For example, it had not investigated alternative cost saving measures.
The ET held that if an employer wishes to rely on cost as a factor when justifying discriminatory treatment, it should not be the sole factor.
Employers are advised to take extreme care when drafting job advertisements. It is important to focus on the requirements of the post and the type of experience necessary to fulfil the role. Apply these criteria when short-listing candidates and keep a record to show that decisions have been reached on an objective basis. It is unlikely that cost alone will be sufficient reason to justify an indirectly discriminatory practice.
Contact <<CONTACT DETAILS>> for advice on avoiding all forms of discrimination when recruiting staff or making redundancies.
Age Discrimination and Selection for Redundancy
In Rolls Royce plc v Unite the Union, Rolls Royce contended that the length of service criterion in collective agreements relating to redundancy, entered into with the trade union, amounted to unlawful indirect age discrimination against younger employees under the Employment Equality (Age) Regulations 2006. The outcome of this case will be important for all employers considering making redundancies.
There were no issues of fact to be determined and the case was heard in the High Court at the request of both parties. It concerned two collective agreements, regarding redeployment and redundancy, which provided for an ‘assessment matrix’ for use when selecting employees for redundancy. This was designed to enable the company and its employees to be able to restructure ‘flexibly and peaceably’. There were five measured criteria for which points were awarded, one of which was length of continuous service. Those with the fewest points would be selected for redundancy.
The High Court ruled that the length of service criterion adopted did discriminate against younger employees but it could be objectively justified as a proportionate means of achieving a legitimate business aim – i.e. that if a redundancy exercise were necessary, it would be carried out ‘peaceably’ and in a way that was perceived as fair. The scheme was therefore covered by Regulation 3(1) of the Employment Equality (Age) Regulations. The Court was of the view that ‘the criterion of length of service respects the loyalty and experience of the older workforce and protects the older employees from being put onto the labour market at a time when they are particularly likely to find alternative employment hard to find’.
In addition, the Court ruled that giving points for long service as one part of a redundancy selection matrix conferred a benefit on the employee concerned as it might lead to the retention of employment which would otherwise be lost. As such, it was probable that this would be regarded as reasonably fulfilling a business need within Regulation 32(2), which simply requires the employer to justify the impact of an age related award made only to employees whose length of service exceeds five years.
Says <<CONTACT DETAILS>>, “This decision clarifies the position regarding the use of length of service when selecting employees for redundancy. Adopting a scheme where length of service is just one of a number of criteria used to arrive at a fair selection process is likely to enable the employer to defend an age discrimination claim. However, a scheme based solely on ‘last in, first out’ is unlikely to be justifiable.”
However, the judge gave Rolls-Royce permission to appeal his ruling on the ground that it was ‘clearly an important point for both parties’.
Annual Increase in Tribunal Awards
The Employment Rights (Increase of Limits) Order 2008, which details the annual inflation-linked increase in limits on the amounts which can be awarded by employment tribunals, was made on 24 November 2008 and applies where the appropriate date falls on or after 1 February 2009.
The main increases in compensation limits are:
  • the maximum compensatory award for unfair dismissal has increased from £63,000 to £66,200;
  • the maximum amount for a week’s pay (for calculating various tribunal awards including the basic award or redundancy payment) has increased from £330 to £350; and
  • the limit on the amount of guarantee payment payable to an employee in respect of any day has increased from £20.40 to £21.50.
There is no statutory cap on the amount a tribunal can award in discrimination cases.
The full list of the increases can be found in the Schedule to the Order at http://www.opsi.gov.uk/si/si2008/uksi_20083055_en_1.
Asbestos – The Hidden Killer
Figures issued by the Health and Safety Executive (HSE) have revealed that every week 20 tradesmen die from asbestos-related diseases, and this number is set to increase.
Asbestos may be present in any building constructed or refurbished before the year 2000 and it is estimated that around 500,000 non-domestic buildings could contain asbestos. Buildings all need repair and maintenance work from time to time and it is when asbestos fibres are disturbed, e.g. by drilling or cutting, that they are most likely to be inhaled as a deadly dust.
All those with responsibility for non-domestic premises have a duty to manage asbestos, as contained in Regulation 4 of the Control of Asbestos Regulations 2006, in order to protect those who work in or use the premises from the risks to ill health that exposure to asbestos causes.
Under the Regulations, most asbestos removal work must be undertaken by a licensed contractor. Any decision on whether particular work is licensable is based on the risk involved. Work is only exempt from licensing if:
  • the exposure of employees to asbestos fibres is sporadic and of low intensity; and
  • it is clear from the risk assessment that the short-term exposure of any employee to asbestos will not exceed the control limit laid down in the Regulations.
Anyone carrying out work on asbestos insulation, asbestos coating or asbestos insulating board needs a licence issued by the HSE unless one of the exemptions is met.
In a recent case, an unlicensed asbestos remover, who had been employed to take out asbestos insulation board from a shop, failed to turn up for a court hearing to face charges under the Regulations. He was arrested and subsequently fined £3,000 each for the following breaches:
  • Reg.9 – failing to notify the HSE at least 14 days before commencing the work;
  • Reg.8(1) – undertaking work with asbestos without a licence;
  • Reg.22(2) – not ensuring employees exposed to asbestos are under adequate medical surveillance;
  • Reg.18(2) – not ensuring respiratory protective equipment is worn;
  • Reg.17 – not keeping the premises in a clean state; and
  • Reg.16 – not preventing the spread of asbestos.
He was also ordered to pay £3,000 in costs, £4,000 in compensation to the shop’s owner and a further £18,000 plus costs for environmental safety offences.
Extensive information on the laws on asbestos can be found on the HSE’s website at http://www.hse.gov.uk/asbestos/index.htm.
Asbestos Cancer Victims Win Landmark Ruling
A recent ruling in the High Court means that those claiming compensation for the fatal asbestos-related cancer mesothelioma could now be in line for six-figure sums.
The decision confirms that mesothelioma sufferers are able to claim compensation from the time they were exposed to the asbestos, rather than just from when the disease becomes apparent. Many years often elapse between the initial exposure to asbestos and the onset of symptoms.
A Court of Appeal decision, reached two years ago in a different legal context, led to this case. At that time, the Court ruled that insurers were only liable to pay compensation from the point at which disease was discovered. Relying on this, some insurers tried to avoid liability under policies that covered the period when the employee was exposed to asbestos but were no longer in force at the time when they became ill.
Fortunately for sufferers of mesothelioma, however, the High Court did not consider the earlier decision of the Court of Appeal applicable. This means that the position is restored whereby the date for determining liability is the time of exposure to asbestos. Mr Justice Burton said, “It is plain that there is, albeit unknown to the sufferer, an injury and a disease present in his or her body well before it makes itself manifest by his finding difficulty in breathing.”
However, an appeal to the House of Lords is likely.
Around 2,000 people die every year as a result of mesothelioma and it is estimated that the annual figure will rise for some years to come. Past failures on the part of those with health and safety responsibilities to protect workers from asbestos dust have resulted in what has been referred to as a ‘ticking time bomb’. Workers most at risk include electricians, laggers, motor mechanics, plumbers, joiners and builders.
The Control of Asbestos Regulations 2006 were introduced to provide all workers with greater protection from exposure to asbestos. There is now a single Control Limit for all types of asbestos of 0.1 fibres per cubic centimetre.
For health and safety information on the dangers and management of asbestos in the workplace, see
If you would like advice on how health and safety law affects your business, please contact <<CONTACT DETAILS>>.
Partner Note
The full judgment is available at http://www.bailii.org/ew/cases/EWHC/QB/2008/2692.html.
Collective Redundancy Consultation – A Reminder
Employers are reminded of the potentially serious financial consequences of failing to consult when making collective redundancies.
If an employer is proposing to make redundant 20 or more employees at one establishment within a period of 90 days or less, the collective consultation provisions of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 come into play. Where the employer is proposing to dismiss 100 or more employees, the consultation period must be at least 90 days; otherwise it must be at least 30 days. Failure to consult with the appropriate representatives of affected employees can lead to a protective award requiring the employer to pay each affected employee 90 days’ pay. Even if the obligation to consult is for a minimum 30 day period, a serious breach of the requirement can result in employees being granted a 90 day protective award.
Genuine efforts to consult must be made – merely keeping employees informed does not fulfil this duty. Consultation of the required duration must take place before any employees are given redundancy notices. Consultation must be meaningful, with a view to reaching an agreement. If the decision to dismiss employees has already been taken, it effectively compromises the consultation process.
In addition, in a collective redundancy situation, the employer has a statutory duty to notify the projected redundancies to the Secretary of State for the Department for Business, Enterprise and Regulatory Reform before giving notice to terminate an employee’s contract. If an employer fails to give the required notification to the Department, the Secretary of State may institute legal proceedings that could lead, on summary conviction, to a fine of up to £5,000.
The obligation to consult over avoiding proposed redundancies extends to consultations over the reasons for the closure of a business. Where it is recognised that dismissals will inevitably, or almost inevitably, result from closure, dismissals are proposed at the point when the closure of the business is proposed. Where closure and dismissals are inextricably linked, the duty to consult over the reasons for the closure arises.
Collective consultation does not replace the need to consult with individuals who may be made redundant in order for any subsequent dismissal to be fair.
It is important that employers are aware of this requirement to consult at an early stage in the decision-making process. Making employees redundant always requires care and advice should be sought as soon as redundancies are contemplated. Restructuring a business, even where staff may not actually leave your employment, also carries with it potential risks. Care must always be taken where fundamental changes are made to employees’ jobs. We can help ensure that a proposed redundancy programme or the restructuring of your business is carried out with the minimum risk of unanticipated financial consequences.
Compensation for Illness in Unfair Dismissal Cases
In Adey-Jones v O’Dowd, the Employment Appeal Tribunal (EAT) considered the extent to which an employee could claim compensation from her former employer for illness she suffered after she had been unfairly dismissed.
Mrs O’Dowd was responsible for the day-to-day management of a care home, in Cheshire, that was owned by Mrs Adey-Jones. She had an unblemished service record until November 2005, when she was arrested by police on suspicion of stealing benefits from residents of the home. Mrs O’Dowd always denied any wrongdoing and was never charged, although police continued to investigate the allegations up until a year after her dismissal.
The care home was assessed by Cheshire County Council and the Commission for Social Care Inspection, which produced a report that was heavily critical of Mrs O’Dowd and put pressure on Mrs Adey-Jones to commence disciplinary proceedings against her employee. Following an unsuccessful appeal, Mrs O’Dowd was dismissed on 20 January 2006.
After her dismissal, Mrs O’Dowd was unemployed for 14 weeks and then took up a temporary post at a lower salary. However, she then fell ill and was on sick pay for nine months. This was followed by a period on Jobseeker’s Allowance before she decided to pursue a different career.
The Employment Tribunal (ET) found that the disciplinary proceedings were seriously mismanaged. No attempt appeared to have been made to investigate the criticisms levelled against Mrs O’Dowd in the report. In its view, she had been unfairly dismissed. The ET also found that Mrs O’Dowd’s illness was a direct result of the way she had been treated by Mrs Adey-Jones and the ongoing police and council investigations and it would therefore be appropriate to award compensation for loss of earnings up until the end of February 2007.
Mrs Adey-Jones appealed against the decision that she was wholly responsible for compensation payable to Mrs O’Dowd for her consequent loss of earnings throughout the entire period during which she was unable to work.
The EAT found that the ET had given very little explanation as to why it came to the conclusion it had. It noted that Mrs O’Dowd’s illness had manifested itself some 20 weeks after her dismissal and the fact that police and council investigations were still ongoing should have been taken into account. When deciding on the level of compensation payable by the employer for unfair dismissal, if there is more than one cause of an illness that prevents someone from working, a ‘percentage’ approach is needed to determine to what extent the illness is attributable to the employer’s conduct. The EAT therefore remitted the case to the original ET for reconsideration.
Says <<CONTACT DETAILS>>, “Unusually, no medical evidence was before the Tribunal and no mention was made of the exact illness in question. We can advise you on any employment law matter.”
Disability Discrimination – Failure to Make Reasonable Adjustments
The Disability Discrimination Act 1995 (DDA) imposes a duty on employers to make reasonable adjustments to working practices and premises in order to ensure that a disabled employee is not disadvantaged.
In Lyle v Bury Metro Racial Equality Council and Others, the Employment Appeal Tribunal (EAT) upheld the decision of the Leeds Employment Tribunal (ET) that an employer with offices on the first floor of leased premises that were only accessible via a staircase had failed to make reasonable adjustments that would have enabled a disabled employee to return to work.
Mrs Lyle commenced working as a Diversity Officer for Bury Metro Racial Equality Council (REC) on 9 January 2006. She suffered health problems which restricted her mobility and was disabled for the purposes of the DDA. A month later, she fell at work, injuring her knees. Both her GP and an orthopaedic surgeon were of the view that as a result of the fall she would have considerable difficulty getting up and down stairs.
Mrs Lyle wrote to REC asking if she could work on the ground floor on her return to work. She was told that it was not possible to rent a downstairs room. In addition, having received one month’s full sick pay, she would in future receive only Statutory Sick Pay.
In a further letter to her employer, Mrs Lyle sent a six-week sick certificate and informed them that she had no option but to continue on sick leave, owing to her lack of mobility. Furthermore, she had contacted her trade union regarding the accident and REC’s failure to make reasonable adjustments to her working environment.
On 13 June, Mrs Lyle requested that REC reconsider her request for reasonable adjustments to be made for her return to work. On the same day, her trade union wrote to her employer lodging a statutory grievance on the basis that REC had discriminated against Mrs Lyle as they had failed to make any reasonable adjustments to allow her to undertake her work. On 5 July, a grievance hearing was heard at REC’s premises, in Mrs Lyle’s absence. During the meeting, REC said that it was not practicable to rent downstairs space, there was nowhere to install a stair lift and such an alteration would in any case require the landlord’s consent.
Mrs Lyle brought a claim of disability related discrimination and failure to make reasonable adjustments. The ET upheld her claim. By not installing a stair lift, REC had failed to make reasonable adjustments. In the ET’s view, the landlord would most likely have consented to the installation and a reconditioned stair lift could have been purchased for around £1,000. Funding for the adaptation could probably have been obtained from the Access to Work Programme. Although the duty to make reasonable adjustments for a disabled employee did not oblige REC to pay sick pay at the full rate after Mrs Lyle’s first month of absence, failing to make adjustments to the premises had resulted in disability-related discrimination which the employer could not justify, which resulted in lost earnings on her part.
REC appealed but the EAT upheld the ET’s decision. The employer had failed to show that had the adjustments found by the ET to be reasonable been made, the employee would still have remained off work.
Says <<CONTACT DETAILS>>, “Whilst this decision is indicative of the extent of an employer’s duty under the DDA to make reasonable adjustments, this is a difficult area of the law and employers are advised to seek advice on their individual circumstances before taking any action.”
EC Agency Workers Directive Approved
After many failed attempts over the last six years by the EU Council of Ministers to agree on proposals to improve the employment rights of agency workers, the European Parliament has finally approved the draft Temporary (Agency) Workers Directive, without amendments, so it can now become law.
The European Commission estimates that there are three million temporary agency workers currently working in the European Union who will benefit from better protection of their working conditions.
The Directive will ensure:
  • equal treatment from day one 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), unless social partners agree otherwise;
  • equal access to collective facilities (such as canteens, child care facilities or transport services); and
  • better access for agency workers to training, both when working on an assignment and in between assignments.
A compromise deal made between the Government, trade unions and employers means that agency workers in the UK will not be given these rights until they have been in a given job for 12 weeks. Although pay is included, occupational benefits (e.g. sickness benefit and pension schemes) that recognise the long-term relationship between employer and permanent employee are excluded.
EU member countries will have three years to incorporate the provisions of the Directive into national law.
Given the state of the UK economy, the Recruitment and Employment Confederation is calling for the implementation of the Directive in the UK to be pushed back to avoid putting more jobs at risk. Its Chief Executive, Kevin Green, said, “In the current downturn, temporary jobs are a vital resource for employers who are unwilling to take on permanent staff as well a providing opportunities for jobseekers. Temporary workers will also play a vital role as the economy picks up. It is essential therefore that we avoid adding any unnecessary bureaucracy and cost to the provision of agency workers.”
Equal Pay – Are You At Risk?
The number of Employment Tribunal applications received in the year to 31 March 2008 was 42 per cent higher than anticipated. A substantial reason for the increase was that the number of equal pay claims brought by low-paid female workers, because they are not being paid the same rates as men performing similar jobs, more than doubled to reach 58,513.
The Equal Pay Act 1970 makes it unlawful for an employer to discriminate between men and women in terms of their pay and conditions where they are doing the same or similar work, work rated as equivalent or work of equal value.
If a woman’s employment contract does not specifically include an equality clause, it is automatically deemed to include one. If a woman brings a claim for breach of that equality clause, a comparison must be made between the terms of the woman’s own contract and the terms of some other person's contract – ‘the comparator’. The comparator must be a male employee doing the same or similar work, work rated as equivalent or work of equal value.
The Government clearly intends there to be more transparency on pay issues, having included measures in the forthcoming Equality Bill to ban secrecy clauses that prevent people discussing how much they are paid from being included in contracts of employment.
In the circumstances, you may be concerned that anomalies over pay have arisen over a period of time in your organisation and that these could give rise to costly discrimination claims. The Advisory, Conciliation and Arbitration Service has produced a free booklet, entitled Job Evaluation: Considerations and Risks, designed to help employers prepare to carry out an evaluation of all the jobs in their organisation.
The guidance aims to help answer the following questions:
  • What is job evaluation?
  • Why should you consider carrying out job evaluation in your workplace?
  • How do you prepare for job evaluation?
It examines the key issues to address before deciding whether job evaluation is right for your organisation and can be downloaded at http://www.acas.org.uk/index.aspx?articleid=682.
For advice on equal pay issues, contact <<CONTACT DETAILS>>.
Extending Entitlement to Time Off for Civic Duties
The Department for Communities and Local Government has carried out a consultation on widening the range of civic duties for which employees are entitled to take reasonable time off work under section 50 of the Employment Rights Act 1996. Currently, officers such as magistrates, local councillors, school governors, and members of health bodies or police authorities are entitled to time off from work to carry out the role. For a full list, see
Amongst those to whom the Government intends to extend the right are those serving on probation and court boards, youth offender panel members and those who serve on the governance and decision making boards in the social housing sector.
The consultation paper, Standing for Office: Time-off Entitlements, can be found at http://www.communities.gov.uk/publications/communities/timeoffconsultation.
It is envisaged that the changes will be implemented in April 2009.
Extension of the Right to Request Flexible Working
Whilst anyone can ask their employer for more flexible working arrangements, at the moment only parents and others (such as guardians) who are responsible for looking after children under the age of six years (or 18 years if the child is disabled) and those with caring responsibilities for adult relatives have the legal right to request to work flexible hours, provided they have worked for their employer for 26 weeks continuously before the application is made. The employer is obliged to take the request seriously and must follow a set procedure and timetable. An employer can only refuse such a request if they can demonstrate a clear business reason for doing so.
The Government plans to extend this right to those with children up to age 16, as recommended in an independent review carried out by Imelda Walsh, the HR Director of Sainsbury’s. This will mean that an extra 4.5 million parents in Britain will gain the right to request flexible working. Reports that the implementation of this measure was to be delayed, in order to help businesses survive the economic downturn, proved to be inaccurate. The Government did consider delaying it but decided that its implementation would give employers and staff ‘valuable flexibility’ and could keep businesses profitable and people in work. The move will therefore go ahead as planned in April 2009.
If you receive a request for flexible working arrangements and would like individual advice, contact <<CONTACT DETAILS>>.
HSE – Never Out to Lunch
A recent case shows that inspectors of the Health and Safety Executive (HSE) are never really ‘out to lunch’. It involved HSE inspectors who, whilst on their lunch break, witnessed unsafe scaffolding and leapt into action.
The inspectors had seen workers employed by a roofing firm in Newcastle-under-Lyme passing tiles down by hand from the roof of a terraced building and stacking them on a pallet. The roofers had removed two scaffolding boards from the scaffolding in order to make a makeshift platform. The men were not trained scaffolders and their action made the scaffolding unsafe, creating a clear danger that a worker could fall through the gap in the scaffolding boards. There was also an absence of edge protection and toe boards. Furthermore, the men had not been given training in the safe removal of tiles.
The HSE inspectors ordered the men to cease work immediately and to arrange a system for passing the tiles down safely. Their employer was prosecuted.
In mitigation, the roofing firm claimed that the employees were experienced and should have known how safely to remove the tiles. However, the firm was fined £2,000 and ordered to pay £1,160 in costs.
One of the HSE inspectors commented that he would not normally expect someone falling from four metres onto a hard surface to survive and added that “falls remain one of the biggest killers of employees. Incidents like these could be avoided if companies ensured that they had assessed the risks from working at height, thought through a safe way of tackling a job, provided all the necessary equipment and ensured workers were fully trained and properly supervised. Employers must also ensure that protective measures remain in place for the whole duration of a contract. Proper planning for such work and taking necessary precautions to prevent falls are often simple and there is ample free guidance readily available to help companies take the right action.”
The message for business owners and managers is that the HSE will act at any time if it becomes aware of blatantly unsafe working practices.
In Brief
Managing Violence in Licensed and Retail Premises
Employers have a duty under the Health and Safety at Work etc. Act 1974 to protect the health, safety and welfare of their employees. The Health and Safety Executive has worked with local authorities to develop a toolkit designed to help reduce the risk of work-related violence in licensed or retail premises. This provides practical advice on how to carry out a risk assessment and the action you can take to prevent or control work-related violence. The toolkit can be found at http://www.hse.gov.uk/violence/toolkit/index.htm.
Increased Penalties for Breaches of Health and Safety Law
The Health and Safety (Offences) Act 2008, which alters the penalty framework set out in Section 33 of the Health and Safety at Work etc. Act 1974, has received Royal Assent. The Act introduces harsher penalties for businesses that commit certain health and safety offences.
The Act increases the maximum penalty that can be imposed in the lower courts for breaching health and safety regulations from £5,000 to £20,000 and the range of offences for which an individual can be imprisoned has also been broadened.
The changes are intended to deter businesses that do not take their health and safety management responsibilities seriously and further encourage employers and others to comply with the law. Furthermore, by extending the £20,000 maximum fine to the lower courts and making imprisonment an option, more cases are likely to be resolved in the lower courts and justice will be faster, less costly and more efficient.
There are strict guidelines which must be observed by the regulators in their approach to the prosecution of health and safety offences. The Health and Safety Executive’s Enforcement Policy Statement provides that prosecutions should be in the public interest and be undertaken where one or more of a list of circumstances apply. These include:
  • where death was as a result of a breach of the legislation;
  • where there has been reckless disregard of health and safety requirements;
  • where there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance; or
  • where false information has been supplied wilfully, or there has been intent to deceive in relation to a matter which gives rise to significant risk.
Any prosecution of an individual is subject to the same strict considerations set out above and is only taken if warranted, and not instead of taking action against their employer.
The Act, which covers Great Britain and Northern Ireland, comes into force in January 2009.
The Health and Safety (Offences) Act can be found at http://www.opsi.gov.uk/acts/acts2008/pdf/ukpga_20080020_en.pdf.
Information Commissioner Rules Register of Employment Tribunal Applications Must be Published
The Information Commissioner’s Office (ICO) has ordered the Department for Business, Enterprise and Regulatory Reform (DBERR) to release the names and addresses of organisations involved in Employment Tribunal Cases, following a request for information under the Freedom of Information Act.
Between 1965 and 2001 this information was routinely published. However, the Government then decided to stop publishing the Register of Employment Tribunal Applications.
The DBERR had argued that releasing the information would prejudice the effective conduct of public affairs and was not in the public interest, maintaining that it would leave organisations open to direct marketing, could prejudice the chances of resolving disputes informally and could leave respondents at risk of unwanted damage to their reputation. However, the Deputy Information Commissioner concluded that “there is a very weak – if any – public interest in maintaining the exemption.” Employment Tribunals are open to the public and case details are normally in the public domain, unless there is a good reason for confidentiality. In his view, the public interest in maintaining the exemption did not outweigh the public interest in disclosing the requested information.
Insolvency – Continuity of Employment
Many employment law rights depend on how much continuous employment an employee has completed. Normally, this must be with the same employer or with an associated employer. The Employment Rights Act 1996 entitles a person to claim unfair dismissal provided they have continuous employment of one year. This will include any weeks during which an employee is absent from work on account of a temporary cessation of work.
In Da Silva Junior v Composite Mouldings and Design Ltd., the Employment Appeal Tribunal (EAT) held that continuity of employment was preserved where an employee of a company that was in voluntary liquidation subsequently went to work for a company with the same majority shareholder.
Mr Da Silva started working for Andream Ltd. on 11 November 2005. The majority shareholder was a Mr Greenwood, who held 75 per cent of the shares. On 20 November 2006, Mr Greenwood incorporated a new company, Composite, that was exclusively his. Andream Ltd. was in financial trouble and on 1 December 2006, Mr Da Silva and the rest of the workforce were dismissed as the company was entering into creditors’ voluntary liquidation.
In early January 2007, Mr Greenwood acquired some of the assets of Andream from the liquidator and began trading as Composite. On 14 January, Mr Da Silva began working for the new company but was dismissed in August of the same year and brought a claim for unfair dismissal.
There was no dispute that the period between Mr Da Silva’s dismissal in December 2006 and his commencing work on 14 January was a temporary cessation of work. The issue was whether or not Mr Da Silva had the necessary qualifying period of continuous employment to bring a claim of unfair dismissal. Mr Greenwood contended that control of Andream was no longer his once the liquidator had been appointed. The EAT found that Andream, although in the hands of the liquidator, had not been dissolved and therefore continued to exist. Mr Greenwood effectively controlled both companies and they were therefore associated employers. Mr Da Silva could therefore proceed with his claim.
The Employment Tribunal had not considered whether there was a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment Regulations) 2006 (TUPE), so the EAT did not argue this point. Whether or not TUPE applies depends on the nature of the insolvency proceedings. Where these are analogous to bankruptcy proceedings and involve the liquidation of the assets under the supervision of an insolvency practitioner, TUPE does not apply. 
Lesbian Soldier’s Compensation Award
A lesbian soldier who won her claim against the Ministry of Defence for sex discrimination and discrimination on the grounds of sexual orientation has been awarded £186,896 in compensation for her ordeal.
Earlier this year, Leeds Employment Tribunal (ET) heard that Lance Bombadier Kerry Fletcher was subjected to unwanted advances made by a male sergeant who asked her to join in group sex and sent her a text message saying, “Look, I might be able to convert you. You don’t know what you are missing.” When she spurned his advances, he and other male colleagues tried to ruin her career. After she made an official complaint, her car was damaged on more than one occasion. As a result, Miss Fletcher was signed off sick after having served 10 years in the Army.
At the remedies hearing, the panel described the Ministry of Defence’s treatment of Miss Fletcher as ‘so outrageous’ that it amounted to ‘conscious wrongdoing’. However, the size of the award, which included £50,000 in exemplary damages, £20,000 in aggravated damages and £30,000 for injury to feelings, was criticised by service groups as exceeding payments made to service personnel seriously injured in action.
 “There is no upper limit to the compensation that can be awarded in discrimination cases,” says <<CONTACT DETAILS>>. “Employers should take any complaint of victimisation, harassment or bullying seriously and take steps to change a workplace culture in which stereotypical and discriminatory opinions are tolerated. We can assist you in implementing discrimination and workplace bullying policies specifically tailored to meet the needs of your business.”
Partner Note
On 15 December 2008, the Ministry of Defence announced that compensation payments for injured armed service personnel were to be increased. The award for the most serious injuries has been doubled to a new maximum lump sum of £570,000. For further information, see
New Way to Settle Workplace Disputes
The Employment Act 2008 will introduce new laws with regard to the settlement of workplace disputes.
The change follows an independent review, carried out by Michael Gibbons, a member of the Department for Business, Enterprise and Regulatory Reform’s Better Regulation Commission, of the workings of the statutory dispute resolution procedures, which were introduced in October 2004. The procedures were intended to reduce the number of Employment Tribunal (ET) claims, but the review found that they had led to workplace disputes becoming formalised, with lawyers becoming involved at an earlier stage in proceedings than had previously been the case. They are therefore to be replaced and instead there 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.
The Employment Act will:
  • repeal the existing statutory dispute resolution procedures and related provisions dealing with procedural unfairness in dismissal cases;
  • confer on ETs discretionary powers to increase or decrease awards by up to 25 per cent if parties have failed reasonably to comply with a relevant statutory code;
  • amend ETs’ powers by which they may reach a determination without a hearing;
  • allow ETs to award compensation for financial loss in certain types of monetary claim; and
  • make changes to the law relating to conciliation by ACAS, removing the fixed periods for conciliation.  
These provisions are due to come into force in April 2009.
Mr Gibbons has said that he is very happy with how the Act is worded but warned that it may still not achieve its aim of reducing the number of hearings before the ET. It will be necessary for mediation bodies to promote themselves properly to make sure employers and employees are comfortable turning to them in the event of a dispute rather than going to the ET.
Says <<CONTACT DETAILS>>, “Employers are reminded that until the law is changed, they must follow the existing statutory dispute resolution procedures when dismissing staff and handling grievances.”
The ACAS Code of Practice can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=961&p=0
A new guide, Mediation: An Employer’s Guide, has been published by ACAS and the Chartered Institute of Personnel and Development.
‘Night Sleeper’ Entitled to National Minimum Wage
A recent decision of the Employment Appeal Tribunal (EAT) (Burrow Down Support Services Ltd. v Rossiter) has confirmed that a night worker who was required to be available to deal with security issues at his employer’s premises, but who could sleep for much of his shift, was entitled to be paid the National Minimum Wage (NMW) for each hour of his shift.
Mr Rossiter was employed by Burrow Down Support Services as a ‘night sleeper’ responsible for the security of the work premises, a care home for people with learning difficulties. He worked from 8 pm to 10 am, two nights a week. His job was to monitor health and safety and to attend to any emergencies. He was required to be awake for a quarter of an hour during the handover of duties and to assist with breakfast for one hour. Apart from that, he could sleep unless his duties required him to be awake. He was paid £24 a night. For the purposes of the NMW Regulations 1999 he was therefore a ‘time worker’ as he was not salaried.
In July 2006, Mr Rossiter was dismissed. He brought claims for unfair dismissal and for breach of the NMW Act. The Employment Tribunal upheld his claims.
Burrow Down appealed against the decision that it had failed to pay Mr Rossiter the NMW. In its view, he was only entitled to be paid the NMW for any time spent actually working, not for the hours he spent asleep, which was the effect of the exception set out in Regulation 15(1A) of the NMW Regulations 1999. Mr Rossiter claimed that the exception did not apply as he was working. He was required to be present at his place of work and to be available to deal with any security problems that arose.
The EAT dismissed the appeal. It held that the analysis of this question in the earlier cases of Scottbridge Construction Ltd. v Wright and British Nursing Association v Inland Revenue was correct. Regulation 15(1A) does not provide an exception if a person is working. It only arises where someone is not in fact working, but is on call waiting to work. It does not apply where a worker is required to be at the employer’s premises and is expected to carry out their duties at any time.
Mr Rossiter was at work for the whole of his shift, even when asleep. He had to be available to deal with emergencies. Burrow Down was therefore required to pay him the NMW for each of the hours of his shift.
Says <<CONTACT DETAILS>>, “It may seem to be a contradiction to say that a night watchman is working when he is asleep but as Lord Johnston pointed out, when hearing Scottbridge v Wright, it would not be appropriate for an employer to require someone’s attendance at their premises but to pay them only for a fraction of the time they are physically present. The solution in such circumstances is to provide the worker with alternative duties in addition to their security responsibilities.”
Race Discrimination and the Burden of Proof
Recent case law regarding the burden of proof in discrimination claims made under the Race Relations Act 1976 has led to much confusion.
In Okonu v G4S Security Services (UK) Ltd., the Employment Appeal Tribunal (EAT) held that the rules in Section 54A of the Act on the reverse burden of proof – whereby once an employee has made out a case that their employer has committed an act of discrimination, it is then necessary for the employer to prove otherwise in order to defend the claim – only apply to discrimination on the grounds of race, ethnic or national origin and not to cases of discrimination on grounds of colour or nationality because the latter grounds are not covered by the EC Race Directive.
However, in the more recent case of Chagger v Abbey National plc and Hopkins, the EAT rejected this reasoning and held that the reverse burden of proof rules must have been intended to apply to discrimination on the grounds of colour. In its view, it was inconceivable that the Directive was not intended to apply to discrimination which is expressed as being on the ground of colour and that such discrimination is, in practice, necessarily an aspect or manifestation of discrimination based on racial or ethnic origin. When someone brings a claim on the basis of ‘colour discrimination’, they are in fact complaining of discrimination on the ground of race and ethnic origin, whether they appreciate it or not.
Says <<CONTACT DETAILS>>, “Whether this conflicting decision has brought clarity to the situation is doubtful and we can expect the issue to be the subject of further analysis before the confusion is dispelled.”
Stress – An Employer’s Duties
Dealing with stress in the workplace is a difficult issue for employers. As well as specific duties under health and safety legislation, employers owe their employees a common law duty to take reasonable care to safeguard their health and safety and this includes a duty to control stress levels in the workplace. Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress. It is foreseeable injury arising from an employer’s breach of duty that gives rise to a liability and foreseeability depends on what the employer knows (or ought reasonably to know) about an individual employee.
In 2002, the Court of Appeal (in Sutherland v Hatton) provided 16 points as guidance on the legal position as regards stress claims in negligence. In 2004, the House of Lords endorsed this general statement of the law (in Barber v Somerset County Council) but stressed that it was only guidance and that each case would hinge on the particular facts under consideration.
For example, point 11 of the Court of Appeal’s guidance stated that an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. However, in Intel Corporation (UK) Ltd. v Daw the Court of Appeal judged that Tracy Daw, a HR professional who became ill through stress at work, was entitled to damages even though her employer did provide a counselling service. The Court was of the view that the service was insufficient to discharge the employer's duty of care towards its employee in this case as it could do little more than advise Ms Daw to see her doctor. The service could not do anything to reduce her workload. That was the responsibility of her employer. Ms Daw was able to show that her many requests for help on account of her excessive workload had failed to bring about any action on the part of Intel and the company was judged to have been negligent as her injuries were foreseeable in the circumstances.

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