Employment Law Titles ~ Winter 2009/2010


Annual Increase in Tribunal Awards
The Employment Rights (Revision of Limits) Order 2009, which details the annual inflation-linked changes in limits on the compensation amounts which can be awarded by employment tribunals, was made on 10 December 2009 and applies where the appropriate date falls on or after 1 February 2010.
Under Section 34 of the Employment Relations Act 1999, if the Retail Prices Index (RPI) for September of a year is higher or lower than the RPI for the previous September, the Secretary of State is required to change the limits. As there was a decrease of 1.4 per cent in the RPI from September 2008 to September 2009, this is reflected in the revised compensation limits.
The main changes are:
  • the maximum compensatory award for unfair dismissal decreases from £66,200 to £65,300;
  • the limit on the amount of guarantee payment payable to an employee in respect of any day decreases from £21.50 to £21.20; and
  • the minimum amount of compensation where an individual is found to have been unlawfully excluded or expelled from a trade union decreases from £7,300 to £7,200.
In his April 2009 Budget, the Chancellor of the Exchequer announced an increase from £350 to £380 in the maximum amount for a week’s pay for use when calculating statutory redundancy pay. This change was implemented on 1 October 2009. The maximum amount for a week’s pay for calculating this and various other tribunal awards remains at £380.
There is no statutory cap on the amount a tribunal can award in discrimination cases.
Can You Justify Your Service-Related Pay Scheme?
The Court of Appeal has ruled (Wilson v Health and Safety Executive) on the correct approach to objective justification in equal pay claims that arise from service-related pay schemes which have a disparate impact on women compared with men.
Mrs Wilson worked for the Health and Safety Executive (HSE) as a health and safety inspector. She claimed that the somewhat complex pay system operated by the HSE, which determined pay in part by reference to length of service, constituted a breach of the Equal Pay Act 1970. She accepted that the nature of the job was such that performance would be likely to improve with experience for the first few years, but she did not believe that the HSE was justified in applying this criterion over a ten-year period.
In a similar case (Cadman v HSE), the European Court of Justice (ECJ) found that as a general rule the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his or her duties better. An employer does not generally have to produce specific proof in order to justify the practice unless a worker provides evidence ‘capable of raising serious doubts’ in the minds of the Employment Tribunal (ET) as to whether the link between pay and length of service is in fact rewarding experience that enables the worker to perform better. In that case, the employer must demonstrate the absence of unlawful discrimination.
Following on from this judgment, the Court of Appeal in Wilson v HSE held that an employer can be required to provide objective justification for the way a service-related criterion as a determinant of pay is used, as well as for its adoption in the first place. The circumstances in which this would be necessary – i.e. when the burden of proof switches to the employer to show that use of the length of service criterion is appropriate – are when the employee shows that there is evidence from which, if established at trial, it can properly be found that the general rule in Cadman does not apply. It is not enough that the evidence is capable of raising serious doubts. It must establish a basis for inferring that the adoption or use of the length of service criterion is disproportionate. In Lady Justice Arden’s view, the ECJ in Cadman was putting forward the ‘serious doubts’ test as a ‘filter on claims’, a preliminary test which still left the issues to be decided by the ET. As such, the requirement of ‘serious doubts’ is merely the counterpart of a length of service pay criterion not requiring justification in the usual case.
In the Court’s view, Mrs Wilson had fulfilled the serious doubts test and, on the ET’s findings in this case, her appeal was upheld.
The Court went on to say that even if it was wrong about the effect of the decision in Cadman, in domestic law the Equal Pay Act 1970 and the Sex Discrimination Act 1975 interpreted together place the burden of showing objective justification, including proportionality, on the employer and neither Act contains any exception for the length of service criterion.
If you are concerned that the effects of your pay scheme could be discriminatory, contact <<CONTACT DETAILS>> for advice on ensuring that it complies with the law.
Coming Soon – Fines for Breaches of the Data Protection Principles
The Criminal Justice and Immigration Act 2008 provides the power to impose civil monetary penalties for serious breaches of one or more of the eight principles in the Data Protection Act 1998 (DPA). These principles provide that personal information must be:
  1. processed fairly and lawfully;
  2. processed only for specified, lawful purposes;
  3. adequate, relevant and not excessive;
  4. accurate and kept up to date;
  5. not kept for longer than is necessary;
  6. processed in accordance with the rights of data subjects under the DPA;
  7. kept secure from unauthorised or unlawful processing, loss or damage; and
  8. not transferred to countries outside the European Economic Area unless adequate safeguards are in place.
Currently, however, the Information Commissioner’s Office (ICO) only has limited powers at its disposal to punish those who contravene the DPA. Whilst the issuing of an enforcement notice is appropriate when a data controller commits a minor breach of the principles, the ICO has long sought the power to impose substantial penalties on those guilty of a more serious breach.
The Government has now published a proposal to give the ICO the power to levy fines up to a maximum penalty of £500,000. Following consultation, a report on its findings will be issued on 11 January 2010.
Fines will be levied only if the ICO is convinced that the breach was deliberate or if the data controller knew, or ought to have known, that there was a risk of contravention of the principles which would be likely to cause substantial damage or distress and the data controller failed to take preventive action.
Draft guidance showing the criteria the ICO intends to use, and the circumstances it will take into account when issuing civil monetary penalties, is available at http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/draft_guidance_monetary_penalty_notices.pdf.
Says <<CONTACT DETAILS>>, “Employers must take their data protection responsibilities seriously and ensure that the right policies and procedures and suitable technology and training arrangements are in place. We can advise you on developing and enforcing policies which fully comply with the DPA.”
Damages for Wrongful Dismissal
When an employee brings a claim for unfair dismissal to the Employment Tribunal (ET), there is a statutory cap on the amount of compensation payable. However, there is no upper limit to the level of damages that can be awarded when an employee pursues a claim for breach of contract or wrongful dismissal through the courts, even though in most cases the damages awarded are relatively modest, being based on the pay lost by the employee as a result of not having been given the notice to which they are entitled under their contract of employment.
In Edwards v Chesterfield Royal Hospital NHS Foundation Trust, Mr Michael Edwards, a consultant surgeon, was dismissed for gross professional and personal misconduct following a disciplinary hearing regarding allegations made against him by a patient. Mr Edwards’ appeal against the decision to dismiss him was rejected.
Mr Edwards’ contract of employment stated that it could be terminated by either side by giving three months’ notice and it contained a clause to the effect that matters of professional misconduct or incompetence would be dealt with under a procedure negotiated and agreed by the Local Negotiation Committee.
Mr Edwards claimed that his employer had not followed the correct disciplinary procedures and brought a claim of unfair dismissal to the ET. He then changed his mind and withdrew the claim, deciding instead to pursue a claim through the courts for losses arising from a breach of contract.
The County Court awarded Mr Edwards damages for wrongful dismissal in the sum of three months’ salary, to cover his notice period. Mr Edwards appealed to the High Court, claiming more than £4 million for loss of past and future earnings because he claimed his employer’s actions had ruined his career. He contended that the General Medical Council had investigated and dismissed the allegations made against him and had his employer followed the correct disciplinary procedure as laid down in his contract of employment, it too would have exonerated him.
The High Court dismissed most of Mr Edwards’ claim. Whilst an employer’s failure to follow the correct disciplinary procedure is likely to render a dismissal unfair and entitle the employee to an award of compensation by the ET, under common law, damages for wrongful dismissal cannot normally exceed the sum payable to the employee in the event that his contract had been lawfully terminated – i.e. had he been given notice according to the terms of his contract. At common law an employer is entitled to dismiss an employee on contractual notice for any reason.
Mr Edwards was therefore awarded three months’ salary plus what he would have earned during the time it would have taken to complete the correct disciplinary process.
This decision is a clear signal to anyone contemplating using the civil courts in an attempt to secure damages far in excess of the statutory level of compensation payable in a claim of unfair dismissal that such a strategy is unlikely to succeed.
We can advise you on all matters to do with termination of employment.
Default Retirement Age – Consultation
In its recent decision rejecting the charity Age UK’s challenge to the default retirement age of 65 – introduced in 2006 by the Employment Equality (Age) Regulations – the High Court ruled that the Government was able to justify the imposition of the mandatory retirement age at the time it was first introduced in 2006. However, in the Court’s view, the decision might have been different had the legislation been introduced now, as the state of the job market has changed considerably.
In reaching this decision, the Court took into account the Government’s announcement that it has decided to bring forward, from 2011 to 2010, its promised evidence-based review of the default retirement age. Mr Justice Blake said that he could not presently see how 65 could remain as the default retirement age after the review.
Following the ruling, Age UK announced that it would be stepping up its fight ‘to get this outdated legislation off the statute book’.
The Government has now called on businesses and individuals to submit evidence on the default retirement age for inclusion in next year’s review. Specifically, the Department for Business, Innovation and Skills is seeking information on:
  • the operation of the default retirement age in practice;
  • the reasons that businesses use mandatory retirement ages;
  • the impacts on businesses, individuals and the economy of raising or removing the default retirement age;
  • the experience of businesses operating without a default retirement age; and
  • how any costs of raising or removing the default retirement age could be mitigated and benefits realised.
Submissions are requested by 1 February 2010 and should be emailed to draevidence@bis.gov.uk and/or posted to DRA Evidence, Department for Business, Innovation and Skills, V497, 1 Victoria Street, London, SW1H 0ET.
Disability Discrimination by Association – Complying With EU Law
The Employment Appeal Tribunal (EAT) has handed down a far-reaching judgment in the long-running case of Coleman v Attridge Law, which concerns the interpretation of the EU Equal Treatment Framework Directive and its impact on disability legislation in the UK.
The wording of the Disability Discrimination Act 1995 (DDA), which implements the Directive in the UK, is such that it protects disabled employees but does not appear to afford protection to an employee who is discriminated against because he or she has caring responsibility for a disabled person.
Sharon Coleman contended that she had been discriminated against on the grounds of her son’s disability. She brought proceedings against her employer under the DDA and for unfair dismissal. She claimed that the effect of the Equal Treatment Directive was to outlaw ‘associative discrimination’ and it was open to the Employment Tribunal (ET) to construe the DDA accordingly. The ET referred the question to the European Court of Justice (ECJ), which ruled that the purpose of the Directive, as regards employment, is to combat all forms of discrimination on grounds of disability and that limiting its application to only those people who are themselves disabled would deprive the Directive of an important element of its effectiveness and reduce the protection which it is intended to guarantee. In the ECJ’s view, therefore, where an employer treats a non-disabled employee with caring responsibility for a disabled child less favourably because of the child’s disability, this is contrary to the prohibition of direct discrimination laid down in the Directive. Likewise, the Directive also protects the employee from unwanted conduct amounting to harassment that is related to the disability of the employee’s child.
Following this ruling, the ET Judge ruled that she was obliged to interpret the DDA in such a way as to conform with the effect of the Directive as stated by the ECJ – adding words to the Act if necessary, unless its wording contained ‘an express and unambiguous indication to the contrary’. The ET did therefore have jurisdiction to hear Ms Coleman’s claims of disability discrimination and harassment. Ms Coleman’s employer appealed against this decision.
The EAT dismissed the appeal and ruled that the DDA can be interpreted so as to apply to adverse treatment by reason of the disability of another person. In reaching its decision, the EAT considered the correct interpretation of Section 3 of the Human Rights Act 1998, by which Parliament has decreed that all domestic legislation must be read in a way that is compatible with European Law, typically arising out of a Directive, ‘so far as it is possible to do so’. This has been taken to mean that even if the statutory language is not ambiguous, Section 3 may sometimes require that the legislation be given a different meaning in order to conform with Community law. Although this may look like amending the legislation, that is not the case. Provided that any added words are ‘compatible with the underlying thrust of the legislation’, this does not cross the boundary between interpretation and amendment.
In this case, to give effect to the ECJ’s decision, Mr Justice Underhill would add words to Section 3A of the DDA to the effect that ‘a person also discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person’. Likewise, words should be added to Section 3B so that the DDA protects an employee from harassment for a reason which relates to the disability of another person.
The case was therefore remitted to the ET to consider, ‘at last’, the merits of Ms Coleman’s claim.
Contact <<CONTACT DETAILS>> for advice on any aspect of discrimination law.
EHRC Guidance for Employers on Flexible Working
The Equality and Human Rights Commission has published new guidance entitled ‘Working Better: A Manager’s Guide to Flexible Working’. This aims to help business managers implement innovative working methods that also improve productivity and customer service, save money and enable employees to balance their work and personal lives.
The guidance covers:
  • the business benefits that can be achieved from implementing flexible working practices;
  • the key principles for introducing flexibility;
  • advice on implementing flexible working;
  • the key management skills required;
  • case studies of flexible working arrangements in large and small businesses; and
  • Q&As on problem solving for challenging situations.
The guidance can be found at
Employee or Independent Contractor?
The Employment Appeal Tribunal (EAT) has dismissed an appeal by a home improvement company against the decision of an Employment Judge that one of its window installers had been an employee of the company for the purposes of the Employment Rights Act 1996 (Launahurst Ltd. v Larner).
Mr Larner had worked for Launahurst Ltd. since 1995. There was nothing in writing to govern the employment relationship until December 2004, when the two parties entered into a ‘Contract Supply Agreement’, which contained an ‘entire agreement’ clause. In September 2008, Launahurst dispensed with Mr Larner’s services and he brought a claim of unfair dismissal. Launahurst claimed that he was not an employee but a supplier of services to the company.
Mr Larner worked for Launahurst on a daily basis, five days a week. The company decided what work he was to do and supplied the windows and doors etc. for installation, although Mr Larner provided his own tools. He was also provided with a company van. Initially, he was paid a percentage value of each contract but was not required to submit invoices for work done. This then changed and he was remunerated on a ‘more or less fixed sum’ of £610 a week, but there was no finding as to whether the change took place before or after the 2004 agreement. Income tax was not deducted from his pay as Mr Larner was registered under the CIS scheme and at all times paid his own NICs. He was not paid for any period that he took off work as holiday.
The Employment Judge found that there had been no material change in the pattern of Mr Larner’s work following the signing of the 2004 contract. As well as the entire agreement clause, this stated that the company was under no obligation to provide work and the service provider was under no obligation to accept a particular assignment. It also stated that Mr Larner was permitted to provide a substitute for his services provided the company was notified of this in advance. However, this situation never arose.
Examining all the circumstances, the Employment Judge held that Mr Larner was an employee of the company. In the Judge’s view, the entire agreement clause in the 2004 contract was a sham. The contract did not reflect the reality of the working arrangements between the parties and had only been introduced as a result of the approach taken by HM Revenue and Customs to the taxation of self-employed contractors.
Launahurst Ltd. appealed on the grounds that the Employment Judge had erred in ruling that the entire agreement clause was a sham and contended that there was not mutuality of obligations between itself and Mr Larner. The company argued that he was free to work elsewhere and was free to decide what hours he worked. He was permitted to use an approved substitute and the company did not exert sufficient control over his work to make it his ‘master’. He was also responsible for his own tax and NICs.
The EAT dismissed the appeal. Whilst the terms of the 2004 contract taken in isolation suggested that Mr Larner was not an employee but a provider of services, the Employment Judge was entitled to look at the whole picture in order to ascertain the true working arrangements and it was clear that he found that there was mutuality of obligation between Mr Larner and Launahurst. He had weighed up all the factors for and against Mr Larner being an employee and was entitled to reach the conclusion he did.
Contact <<CONTACT DETAILS>> for advice on any contractual matter.
Equal Pay and TUPE – Qualifying Dates for Claims
Private sector employers who take on the employment contracts of public sector workers should be aware that they could be liable for equal pay claims, brought by transferred employees, many years after the transfer.
An application under the Equal Pay Act 1970 must normally be made to the Employment Tribunal (ET) within six months of the last date on which the claimant was ‘employed in the employment’. Claims for arrears can be made in respect of the six years prior to the date on which proceedings are commenced.
In Gutridge and Others v Sodexo and Others, women cleaners who had transferred under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) from North Tees and Hartlepool NHS Trust to Sodexo Ltd. sought equal pay with male maintenance assistants who were employed by the Trust both before and after the women’s transfer date of 1 July 2001. The six-year period for claiming losses incurred spanned the date of the transfer of the women’s contracts of employment from the Trust to Sodexo. It was common ground that while the women were employed by the Trust they were doing work of equal value to the male comparators and were therefore entitled to the same pay.
The ET found that the effect of TUPE was to transfer to Sodexo the Trust’s liability to pay the women at the higher rate. As they were still employed by Sodexo when the claims were intitiated, time had not begun to run against them for limitation purposes.
On appeal, the Employment Appeal Tribunal (EAT) found that liability for the acts or omissions of the previous employer transferred at the time of the transfer but that, based on the House of Lords decision in Preston v Wolverhampton Healthcare NHS Trust, the time for enforcing those rights was limited to six months after the transfer. The women’s claims in respect of the period before the transfer were therefore time barred. However, on a TUPE transfer, the contractual right derived from the equality clause transfers to the new employer. The women’s right to a higher rate of pay therefore became Sodexo’s responsibility and so they were entitled to recover the arrears of pay which related to the period of employment since the transfer.
The Court of Appeal has now upheld, by a majority, the decision of the EAT. An employee cannot have any greater rights against the transferee employer than she had against the transferor. Although the right to bring proceedings is against the transferee, in respect of the period of employment prior to the transfer, the right is time limited to six months after the termination of the employment with the transferor. For ongoing liability with regard to the period of employment after the transfer, the time limit is six months after the termination of employment with the transferee.
Contact <<CONTACT DETAILS>> for advice on any employment law matter.
Equal Treatment for Agency Workers – Later Not Sooner
The Government has confirmed that legislation implementing EU Directive 2008/104/EC, usually referred to as the ‘Agency Workers Directive’, will not come into force in the UK until 1 October 2011.
At the TUC conference, the Prime Minister pledged that the legislation would be on the statute books within the next few months. Some people took this to mean that the measures would be introduced sooner than 5 December 2011, the latest date by which EU member countries must incorporate the provisions of the Directive into national law. As it is, the new law will take effect just two months prior to the deadline. Business Minister Pat McFadden explained that the Government is ‘mindful of the need to avoid changing requirements on business until the economic recovery is more firmly established’ and that the delay will afford ‘recruiters and their clients time to prepare and plan’.
The effect of the Agency Workers Regulations will be to provide equal treatment for temporary agency workers, compared with permanent workers, in terms of basic working and employment conditions (including pay, holidays, working time, rest periods and maternity leave). In the UK, the current intention is that agency workers will acquire these rights once they have been in a given job for 12 weeks.
Other benefits that agency workers will gain from the first day of their assignment include:
  • information about vacancies so that they have the same opportunity as other workers to find permanent employment;
  • equal access to on-site facilities, such as child care and transport services; and
  • improved rights to protect the health and safety of new and expectant mothers, including the right to reasonable time off work to attend ante-natal appointments and adjustments to working conditions and working hours.
The Draft Agency Workers Regulations 2010 can be found at http://www.berr.gov.uk/files/file53058.pdf.
Immigration – Changes to the Resident Labour Market Test – Tier 2
Tier 2 of the points-based system of immigration – Skilled Migrants (General) – is the route which enables UK employers to employ nationals from outside the resident workforce to fill a particular job that cannot be filled by a settled worker.
Before issuing a certificate of sponsorship, one of the requirements for employers is to ensure that the vacancy-filling process complies with the ‘resident labour market test’. To this end, since 31 March 2009, vacancies under this Tier must first be advertised to settled workers with the government agency Jobcentre Plus and via one other advertising method permitted by the relevant code of practice. There is an exception to the rule with regard to vacancies for jobs that fall under the Standard Occupational Classification SOC 1112. The UK Border Agency (UKBA) recognises that Jobcentre Plus is not a suitable agency with which to advertise very senior roles, but all other resident labour market test requirements, as set out in the relevant code of practice, must still be met when filling such vacancies.
From 14 December 2009, the resident labour market test was extended to four weeks for all jobs instead of the previous requirement to advertise a post for two weeks, or one week where the salary was £40,000 or more.
The four-week period need not run continuously. Where it is envisaged that resident workers will be readily available, the job can initially be advertised for a shorter period. Only if there are no resident workers available to fill the vacancy is it necessary to advertise for a further period.
Updated guidance for Tier 2 sponsors is available at http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/employingmigrants/residentlabourmarkettest/.
Immigration – Renewing Annual Allocations of Certificates of Sponsorship
If you have a licence to sponsor migrants under the points-based system of immigration, you are reminded that you must apply to renew your annual allocation of certificates of sponsorship if you wish to continue issuing certificates for a further year. The allocation request must be made by the anniversary of the date on which the previous annual allocation request was granted under the Sponsor Management System (SMS). Failure to do so will mean that no further certificates of sponsorship will be able to be issued until a new request has been made and approved by the UK Border Agency (UKBA).
To check the expiry date using the SMS, go to the ‘View and edit sponsor profile’ section and select ‘Sponsor summary’.
The UKBA will issue you with a series of reminder emails starting four months prior to the expiry date. A renewal request can be made at any time in the three months prior to that date and the UKBA recommends making the request at least four weeks before the expiry date.
When completing your request, you will be asked to specify how many certificates of sponsorship you require and to provide supporting information regarding your request.
For further information, see http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/sms/whatsinsms/next-year-allocation-cos/annual-allocations-qa/.
For general guidance for employers sponsoring workers under Tier 2 of the points-based system, see http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/pbsguidance/guidancefrom31mar09/sponsor-app-guidance-t25.pdf?view=Binary.
Contact us for assistance on any immigration matter.
In Brief
Guidance on Preventing Workplace Harassment and Violence
New guidance giving practical advice to businesses and employees on preventing workplace harassment and violence has been published following European level agreement between employer and trade union organisations on the necessity of raising awareness of this issue. The guidance has been produced after collaboration between the Government and employers, trade unions and other relevant agencies. As well as raising awareness of the issues, it provides employers, workers and their representatives with ways of identifying, preventing and managing problems of harassment and all forms of violence at work.
The guidance can be found at http://www.workplaceharassment.org.uk.
In Brief
Immigration – Shortage Occupation List for Tier 2
The Government has accepted in full the recommendations of the Migration Advisory Committee (MAC) for a revised shortage occupation list for Tier 2 of the points-based system of immigration. The new list applies to all certificates of sponsorship assigned on or after 14 December 2009. Applications based on certificates of sponsorship assigned before this date will be considered against the shortage occupation list in operation at the time.
The MAC is intending to review all entries on the revised shortage occupation list by autumn 2010, except for entry 3415, which relates to musicians. This will be reviewed by spring 2010.
The revised list can be found at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/workingintheuk/shortageoccupationlist.pdf.
In Brief
Right to Request Time to Train
Last year, the Government carried out a consultation on a proposed new law whereby employees would have the right to request time off work to complete relevant training.
This right will be introduced for larger businesses in April 2010. Small businesses – i.e. those with fewer than 250 employees – will have until April 2011 or later to comply.
It is planned that the new entitlement will apply to 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.
Increases in Compensation for Injury to Feelings
The Employment Appeal Tribunal (in Da’Bell v NSPCC) has ruled that the level of awards made to compensate employees for injury to feelings in discrimination and whistleblowing cases should be increased to take account of inflation. Such awards are compensatory. They are not intended to punish the employer.
In 2002, the Court of Appeal issued guidance (in Vento v Chief Constable of West Yorkshire Police) for use when assessing the compensation payable for injury to feelings in such cases. This identified three bands, depending on the seriousness of the case, and the recommended limits had remained unchanged until the EAT’s decision.
The new limits are as follows:
  1. The top band will now be between £18,000 and £30,000. Awards in this range will be made in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in exceptional circumstances will a compensation award for injury to feelings exceed £30,000;
  1. The middle band is now between £6,000 and £18,000. Awards in this range will be made in serious cases but where the action does not merit an award in the top band; and
  1. For less serious cases, such as where the act of discrimination is an isolated or one-off occurrence, awards of between £500 and £6,000 will be appropriate.
The new guidelines come into effect immediately.
Is Belief in Climate Change a ‘Philosophical Belief’?
Under the Employment Equality (Religion or Belief) Regulations 2003, employees are afforded protection from discrimination by reason of ‘any religion, religious or philosophical belief’. Whether or not a particular belief is covered will be decided on the facts of the individual case.
In Nicholson v Grainger plc, the Employment Judge decided at a pre-hearing review that an individual’s beliefs about climate change were capable of being a belief for the purposes of the Regulations. Mr Nicholson brought a claim of unfair dismissal against his ex-employer. His contention was that he had been discriminated against because he was made redundant on account of his views on the environment. The Employment Judge rejected Grainger’s argument that views based on empirical evidence could not constitute a philosophical belief.
Grainger plc appealed against this decision.
Mr Nicholson’s philosophical belief was defined as a belief that ‘mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same’. Grainger plc argued that this was a scientific view rather than a philosophical belief.
The Employment Appeal Tribunal (EAT) held that the criteria for use when determining whether or not a particular belief is protected under the Regulations are that it must:
  • be genuinely held;
  • be a belief and not an opinion or viewpoint based on the present state of information available;
  • be a belief about a weighty and substantial aspect of human life and behaviour;
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The EAT found that the ‘asserted belief’ held by Mr Nicholson is capable of being a philosophical belief for the purposes of the Regulations. However, when the case is heard he will need to provide evidence to the Tribunal of the genuineness of his belief and show that it meets the other stated criteria. To succeed in his claim, he will have to demonstrate that he was made redundant on account of his belief and not, as Grainger plc maintains, because of the operational needs of the company.
Contact <<CONTACT DETAILS>> for advice on any aspect of discrimination law.
Job Applicants and Criminal Records
A recent ruling of the Court of Appeal means that employers will be able to access information on old minor convictions when carrying out criminal record checks on potential employees.
Following complaints from five people, the Information Commissioner issued enforcement notices against five Chief Constables to compel the deletion of the old convictions. On appeal, the Information Tribunal ruled that the convictions should be deleted from the police national computer as their retention was an infringement of principles 3 and 5 of the Data Protection Act 1998 – namely that the data held was excessive and being kept for longer than was necessary.
Four of the complaints arose following the disclosure of convictions as a result of a request for information by the Criminal Records Bureau (CRB). The fifth arose following a request by the individual concerned to see information held about her.
The Tribunal’s decision was appealed. The Court of Appeal stressed that the issue here was not the retention of the records per se but the fact that this meant that the information held could therefore be disclosed.
The Court held that providing the purpose for which data is kept is lawful, it can be processed by the data controller for any purpose which was identified when details were provided to the Information Commissioner’s Office for inclusion on the register of data controllers. The register is available to members of the public for inspection so that they can find out how personal information is being processed by data controllers. In this case, one of the purposes identified by the police of retaining old data on the national computer is so that an accurate record of convictions can be supplied to the Crown Prosecution Service, the courts and the CRB. As this record needs to be complete, the retention of the old data could not be said to be excessive nor was it held for longer than was necessary for the purpose.
The Court went on to say that if the police reasonably believed that keeping a record of all convictions, however old or minor, was useful to them, they should not be denied the right to do so. Furthermore, the circumstances in which information on old convictions would be disclosed would be those in which a job applicant would anyway have to answer truthfully if questioned on the subject.
Says <<CONTACT DETAILS>>, “Whilst this decision may be appealed, if left to stand its effect is that the information available when employee checks are made will include historic data. However, this does not change the rules laid down by the Rehabilitation of Offenders Act 1974 as to what is and what is not a spent conviction.”
Lesbian Soldier Sees Settlement Reduced
A lesbian soldier who won her claim for sex discrimination and discrimination on the grounds of sexual orientation has had her compensation award of £186,896 reduced after the Ministry of Defence (MOD) launched an appeal.
In November 2007, the Leeds Employment Tribunal (ET) found that Lance Bombardier Kerry Fletcher, who had served 10 years in the Army, was subjected to a sustained campaign of victimisation over a lengthy period. She had been subjected to unwanted advances made by a male sergeant. When she spurned his advances, he and other male colleagues tried to ruin her career. After she made an official complaint, Miss Fletcher’s car was damaged on more than one occasion. As a result, she was signed off sick and gave up her army career.
Miss Fletcher’s original settlement included £30,000 for injury to feelings, a punitive award of £50,000 in exemplary damages and £20,000 in aggravated damages. At the time, the settlement was criticised as far exceeding the awards made to soldiers seriously injured in combat.
The Employment Appeal Tribunal (EAT) allowed the appeal. In its judgment, the ET had ‘erred’ in awarding exemplary damages and set aside the £50,000 award. Whilst the MOD’s conduct was ‘deplorable’, it ‘did not cross the high threshold warranting an award of exemplary damages’. The EAT also found that given that the award for injury to feelings was ‘at the top of the highest band’, the award of aggravated damages was ‘perversely high’. It ordered that this be reduced to £8,000 and that any interest payment attached to it be reduced accordingly.
Although the EAT reduced the amount of compensation payable to Miss Fletcher, it commented that the ET was right to condemn the Army’s conduct in the case, adding that it hoped that ‘lessons have been learned and that such behaviour will not be repeated’.
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.”
Preventing Illegal Working – Keep a Copy
The publicity surrounding the imposition of a fine of £5,000 on Baroness Scotland, the Attorney General, for a breach of immigration law is a reminder to employers of the need to have systems in place to demonstrate compliance with the laws preventing illegal working in the UK.
On 29 February 2008, the Immigration, Asylum and Nationality Act 2006 introduced tough new penalties for anyone caught employing illegal immigrants. There is now a distinction between doing so knowingly and unknowingly, but both are against the law.
It is a criminal offence to knowingly employ someone who does not have permission to work in the UK or someone who is in breach of their conditions to remain in the UK. Conviction under this offence carries a potentially unlimited fine and/or a prison sentence of up to two years.
An employer who unknowingly employs illegal immigrants as a result of less than diligent recruitment or employment practices can now face a civil penalty of up to £10,000 for each illegal worker. An employer can establish a defence against liability for payment of a civil penalty by checking and retaining copies of certain original documents before an employee starts work.
Following an investigation, the UK Border Agency (UKBA) declared that it was satisfied that Baroness Scotland did not knowingly employ an illegal worker and did take steps to check documents provided to her as proof of the right to work in the UK. However, she neglected to keep copies as required by law.
It has to be said that some of the UKBA’s guidance on this issue fails to stress the importance of an employer keeping copies in order to show that the necessary checks to ensure that a worker is legally employable have been made. However, the law requires that you retain copies of the relevant pages of each document in a format which cannot subsequently be altered. These must be kept by the employer for not less than two years after the employment has ended.
The documentation that needs to be checked before employment commences will depend on whether a person has an ongoing right to work in the UK (List A documents) or a right to work for up to twelve months (List B documents). Where a prospective employee provides a document or documents from List B, follow-up checks on these must be carried out at least every twelve months and copies made of the documents seen.
Business Link has a useful interactive tool to help employers ensure that they have completed the document check correctly. This can be found at http://www.businesslink.gov.uk/bdotg/action/logicToolStart?type=BLTTOOL&itemId=1078638405&r.s=e&r.l1=1073858787&r.lc=en&r.l3=1079133778&r.l2=1079568262.
If you are in any doubt about any immigration law matter, contact <<CONTACT DETAILS>>.
Race Discrimination and the Burden of Proof
Recent case law has led to confusion as to whether Section 54A of the Race Relations Act 1976 applies to direct discrimination on the grounds of someone’s colour.
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 his or her 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 case of Abbey National plc and Hopkins v Chagger, 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. In the EAT’s view, when someone brings a claim on the basis of ‘colour discrimination’, they are in fact complaining of discrimination on the grounds of race and ethnic origin, whether they appreciate it or not.
In Milton Keynes General Hospital NHS Trust and Punchard v Maruziva, the EAT preferred the approach taken in Abbey National plc and Hopkins v Chagger, that thepurpose of Section 54A is to give effect to article 8 of the EC Race Discrimination Directive and that it was ‘inconceivable that the Directive is not intended to apply to discrimination which is expressed as being on the ground of colour’.
The EAT held that what Section 54A does is to ‘elevate from the permissive to a mandatory drawing of an inference of unlawful discrimination where the Claimant has established a prima facie case of less favourable treatment on one of the prohibited grounds and the Respondent has failed to provide any or any adequate explanation unconnected with that ground’.
Contact <<CONTACT DETAILS>> for advice on any discrimination law matter.
Racial Discrimination in Recruitment – DWP Publishes Findings
The results of an experiment by the Department for Work and Pensions (DWP) to test racial discrimination in recruitment practice are a reminder to employers of the importance of having in place recruitment processes that do not discriminate on any grounds.
The approach adopted for the research was to identify formally advertised job vacancies in seven major British cities. A set of three applications was developed which were closely matched in terms of educational qualifications, skills and work history. The likely ethnic identity of the applicants was conveyed using names found to be widely associated with the ethnic groups included in the study. These were black African, black Caribbean, Chinese, Indian, Pakistani/Bangladeshi and white British. One of the set of three was allocated a name denoting white British with the other two applications purporting to be from different ethnic minority groups.
Between November 2008 and May 2009, 2,961 applications were sent in response to 987 advertised vacancies, a set of three per post. Responses from employers were then monitored, a positive outcome being a call for interview. Discrimination was measured by the difference in treatment between the ethnic groups in the study.
The results showed that the net discrimination in favour of applicants with white British names over matching applications from candidates with ethnic-sounding names was 29 per cent. Of the 987 applicants with a white British name, 10.7 per cent received a positive response compared with 6.2 per cent of the 1,974 applicants with an ethnic minority name. Put another way, 16 job applications from ethnic minority candidates had to be sent for a successful outcome compared with 9 from a white British applicant.
Public sector employers were found to be considerably less likely to have discriminated on race grounds than those in the private sector. There was virtually no net discrimination for sets of applicants where the employer’s own form was used, compared with 38 per cent where a CV had been sent. A possible explanation for this is that employer forms are often designed so that the section containing personal details can be removed before the selection process. Use of such forms is widespread in the public sector.
Says <<CONTACT DETAILS>>, “There have been several cases brought against employers by job applicants who have tested the recruitment selection process, in a similar way to that used by the DWP, in order to demonstrate the existence of discriminatory practices. We can advise you to ensure that each step in the process is fair to all applicants.”
The report on the DWP’s findings can be found at http://research.dwp.gov.uk/asd/asd5/rports2009-2010/rrep607.pdf.
Safe Working at Height
A recent prosecution by the Health and Safety Executive (HSE) serves as a warning to company directors and business owners of the importance of implementing comprehensive, safe systems for working at height.
David Boulton worked for Mobile Mini UK Ltd., a company based in Stockton-on-Tees. He was unloading a temporary accommodation unit from a lorry and was standing on top of the unit, in order to attach a sling from a crane, when he fell and suffered fatal head injuries.
Mobile Mini UK Ltd. pleaded guilty to breaching Section 2(1) of the Health and Safety at Work Act 1974 and was fined £80,000 and ordered to pay costs of £8,000.
The HSE inspector found that the company’s health and safety systems were fundamentally flawed. Systems that were in place were so cumbersome that employees found them difficult to follow and other procedures for working at height were not followed. No checks were made to ensure that workers adhered to the systems that were in place and some of the equipment used was sub-standard.
Falls from height remain one of the most common causes of death in the workplace. When undertaking work of this nature it is vital to have in place safety procedures that are easy to understand and cover all associated risks. These should be monitored regularly and staff training kept up to date.
For information on safe working at height, see http://www.hse.gov.uk/falls/index.htm.
Contact <<CONTACT DETAILS>> if you would like individual advice on ensuring your business complies with health and safety law.
Sickness and Holiday Leave
The EU Working Time Directive lays down minimum health and safety requirements for the organisation of working time. The purpose of the entitlement to paid annual leave is to enable a worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave, however, is to enable a worker to recover from illness.
In Pereda v Madrid MovilidadSA, the European Court of Justice has ruled that a Spanish worker who suffered an accident at work, with the result that he was on sick leave for most of the annual leave period allocated to him, had the right, on request, to reschedule his holiday, even if this meant carrying it forward to the following leave year.
This follows the earlier case of Stringer and others v HM Revenue and Customs, which established that the right to take annual leave is not extinguished if an employee is on long-term sick leave. It is up to the national courts to decide whether paid leave can be taken during a period of sickness or whether it should be carried over to another year.
Both decisions have raised questions regarding the operation of the Working Time Regulations 1998 (WTR), which implement the EU Directive into UK law.
Under the WTR, if a worker becomes ill just before taking annual leave or during the holiday itself, he or she does not have any automatic right to convert that holiday to sick leave. Also, workers must take a minimum of four weeks’ holiday in each leave year. It will therefore require further case law or a change in the legislation to clarify the situation. The Department for Business, Innovation and Skills has said that it is examining the terms of the judgment and will issue further guidance in due course.
Says <<CONTACT DETAILS>>, “This is a grey area and, until the situation becomes clearer, we recommend that employers seek advice on their individual circumstances.”
The ‘Final Straw’ and Constructive Dismissal
A serious breach of an implied contractual term or the ‘final straw’ in a series of less serious actions which cumulatively undermine an employee’s trust and confidence in his or her employer will amount to a repudiatory breach of the employment contract and will normally justify the employee in terminating the contract and claiming constructive dismissal. The final straw may be a relatively minor act but it must contribute, however slightly, to the breach of the implied term of trust and confidence.
In Saunders v Department for Work and Pensions – Child Support Agency, Mrs Saunders, who is disabled on account of an injury to her hand, worked three days a week from home. Her employer, the Department for Work and Pensions (DWP), gave her only three weeks’ notice that her home working was to end, whilst home workers who were not disabled were given 91 days’ notice. Mrs Saunders resigned and brought a claim of unlawful discrimination, on the grounds of her disability, and constructive unfair dismissal, because giving her short notice was the final straw in a series of acts by the DWP that were damaging to the employment relationship.
The Employment Tribunal (ET) upheld Mrs Saunders’ claim of disabi

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