Employment Litigator Online

Religious Discrimination and Philosophical Beliefs

2009-11-03T09:29:00.000-08:00

As many will be aware the Employment Equality (Religion and Belief) Regulations 2003 provide that it is unlawful to discriminate against an employee/worker on the grounds of their religion or belief.

It also provides that Religion means ANY religion and belief means any religious or philosophical belief.

But just how far does philosophical belief extend?

The Employment Appeal Tribunal (Burton J: sitting alone) has handed down its decision in Grainger Plc & others v Nicholson and it held that a belief in man made climate change and the moral imperatives arising out of this are capable of being a philosophical belief within the context of the regulations.

Not only this, but the EAT further sets out guidance as to what will likely qualify as philosophical beliefs within the regulations. Paragraph 24 of the judgement provides that in order to qualify the following will need to apply:

The belief must be genuinely held.
It must be a belief and not a viewpoint or opinion based on the present state of information available.
It must be a belief as to a weighty and substantial aspect of human life and behaviour.
It must attain a certain level of cogency, seriousness, cohesion and importance.
It must be worthy of respect and compatible with human dignity and not conflict with the fundamental rights of others.

The EAT further held that whilst there would need to be some similarities to religious beliefs in terms of the extent as to how someone would hold such a belief, Burton J did go onto say that a one off belief that is not held by others need not be excluded from within the regulations.

Whilst this might seem to open up the floodgates his comments later on into the judgement slam them firmly shut in relation to beliefs that clearly fall inside the limitations listed above. For example the belief in the supremacy of the Jedi Knight would clearly fall outside of the protection of the regulations but a philosophical belief such as vegetarianism might well be capable of being protected by the regulations.

I have to say that this judgement has made interesting reading and no doubt will be used in future cases. For a look at the judgement click here

If you do need advice on this subject please contact me on gda@hrlegalonline.com

TUPE and Duty to Consult

2009-10-26T05:50:00.000-07:00

As you are no doubt aware, when a business or part of a business is going to be transferred elsewhere the obligations posed by the TUPE Regulations are that employers must consult with their employees pre transfer and tell them about the legal, social and economic implications.

But what about if the employer gets it wrong? What if the employer (wrongly) believes that the TUPE regulations do not apply? It could of course be argued that by getting it wrong the employer has failed to tell their employees about the legal implications of the business transfer.

This matter has been considered in Royal Mail Group Ltd v Communication Workers Union in the Court of Appeal.

The Court of Appeal held that a transferor employer is only duty bound to communicate the legal, social and economic implications of the transfer as they believe them to be. There is no duty to get it right as such providing of course they have made reasonable effort.

This will be great news to employers but, saying this there are implications over what reasonable efforts employers will have needed to go to. Normally the Employer would get legal advice on this issue which might be legally privileged. An employer might need to consider waiving his right to legal privilege and disclosing what advice he was provided with.

For advice on business transfers please contact me on gda@hrlegalonline.com

Employment Judges - No longer a cushy number

2009-10-26T01:53:00.000-07:00

Most Employment Lawyers at some point approaching their later career think about an appointment as an Employment Judge, and some might be persuaded. But perhaps there should be an element of danger money!

The Daily Telegraph last week reported that an Employment Judge has actually been assaulted during a Case Management Discussion. The assault allegedly took place in a Case Management Discussion which is a very neutral hearing where the Judge gives Orders for the good management of the case moving forward.

The Employment Judge concerned (Judge Carstairs) I have appeared before, and whilst he is rather robust (as good Employment Judges should be), I have always found him to be even handed. I am also aware that Judge Carstairs has been considerably unwell some months prior to this hearing - I don't suppose this instance helps.

For the full story click here

Lawful to force retirement at 65

2009-09-25T07:13:00.000-07:00

The High Court has handed down its long awaited decision in the Heyday case in which it had been asked to decide whether it was lawful to force a member of staff to retire at 65. The High Court has held that it is lawful under UK law to force a member of staff to retire at 65.

I previously covered this case when it was before the European Court of Justice in March and I have provided a link to this here.

The BBC have also given some coverage of the latest decision before the High Court and this can be viewed here.

If you require further information please do not hesitate to contact me on 0870 756 2929 or gda@hrlegalonline.com

DDA - House of Lords Decision

2009-07-02T03:46:00.000-07:00

The House of Lords has handed down its decision in SCA Packaging Limited v Boyle - essentially wiping the slate clean from previous authority, the word 'likely' actually should be interpreted to mean 'could well happen' as opposed to 'more likely than not'.

Authorities previously interpreted 'likely' to mean more likely than not and thus would impose a test as to whether there was a 51% chance of an event occuring within the context of the DDA; this has now firmly been rejected by the House of Lords and practitioners should be prepared for the much lower threshold being applied.

If you need further advice on this issue please do not hesitate to contact me on 0870 756 2929 or gda@hrlegalonline.com

Equality Bill - Published at last

2009-04-28T01:28:00.000-07:00

The long awaited and eagerly anticipated Equality Bill has now been published in its first draft form and given its first reading. Needless to say it will subject to considerable debate through the various houses but a first draft however can be seen here.

The Bill itself proposes the following:-

Allows positive discrimination during recruitment in favour of disadvantaged groups when faced with candidates who are otherwise equally qualified

Reverses Malcolm v London Borough of Lewisham, and abolishes the list of areas in which a disability must impact (eg mobility, manual dexterity, memory or ability to learn, concentrate or understand etc.) I know this judgement caused unrest due to making it more difficult for claimants to succeed in claims of direct disability discrimination and as such this reversal is likely to slip through. Watch this space!

Contains a clause allowing the Secretary of State to order employers with more than 250 employees to publish information about disparities in pay between male and female employees - although apparently the government has anounced that this power will not be exercised in the next four years. This will impact medium sized employers in terms of the administrative costs of maintaining such information.

Outlaws any clauses in employment contracts which impose a secrecy obligation stopping employees discussing their pay packages. It has been a long held custom within certain organisations that pay not be discussed between staff members - whilst this will force employers to be more transparent, this could of course breed unrest and poor morale within businesses where there is disparity in pay but for lawful reasons such as skills, and performance.

Introduces a new obligation for some public bodies to pay due regard to socio-economic disadvantage in making strategic decisions, and extends public sector duties to ensure equality to age discrimination

Gives effect to recent European caselaw by outlawing discrimination by association.

These are all areas which will impact on the employers manage their staff and they should be prepared to take advice at every opportunity.

EAT follows Malcolm again! (And I become very smug)

2009-03-12T03:37:00.000-07:00

When the House of Lords turned the current understanding of Disability Discrimination law on its head by its ruling in Malcolm v London Borough of Lewisham I predicted that because this case made it more difficult for claimants to succeed in Direct Discrimination claims, Employment Tribunals would instead focus on the duty to make reasonable adjustments and would be likely to come down heavier on any failure. My comments were:

"Whilst this creates some difficulties for claimants, employers should still be cautious. Within the judiciary the law relating to disability discrimination is still deemed to be highly unsatisfactory and Employment Tribunals will more than likely focus on the duty to make reasonable adjustments and hit respondents heavily when they have failed to comply. This is especially so given that less claimants are likely to succeed under other ares of their disability discrimination claims".

The EAT has just handed down its latest judgement in Stockton on Tees Borough Council v Aylott and has applied Malcolm to another DDA case. However the EAT has held (and as predicted) that just because Malcolm is good law in respect of employment claims, and although this case does make it more difficult for claimants, they should not be left without redress. Slade J comments are para 113 makes it very clear the line of enquiry Tribunals will be encouraged to take when she states:

In our judgment this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non disabled people without the possibility of redress. Although they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of Section 3A(1), they may be able to establish discrimination by the employer's failure to make reasonable adjustments under Section 3A(2) and 4A. An employee who is not able to drive because of his disability who is disciplined for frequently arriving late for the night shift would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However, depending on the circumstances, he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport.

Again this is a call to Employers to be careful when dealing with disabled employees or those potentially disabled. Advice should be sought at every opportunity and furthermore at the outset of any issue. I can be contacted on gda@hrlegalpartners.com for further advice if needed.

ECJ has thrown Heyday back to High Court

2009-03-05T02:40:00.000-08:00

The European Court of Justice in Heyday has referred the matter back to the UK High Court; In the ECJ's judgement they have held that social policy objectives, "such as those related to employment policy and the labour market", may be considered 'legitimate' under the EU directive.

They then went on to rule that it is for the national court to decide whether or not the legislation reflects such a legitimate aim and furthermore whether or not the means chosen were necessary to achieve those aims. Frankly it seems a long winded way of saying that 'its upto you'!

There are over 800 claims stayed pending the decision in Heyday and I think the way things are going the courts will probably slam the floodgates shut and hold that they are entitled to introduce a default retirement age. However stranger things have happened!

There are also a record number of other age discrimination claims presented to the Employment Tribunals - this is only set to increase whether or not the result in Heyday is positive. If you need advice on this issue please contact me on gda@hrlegalpartners.com

Urgent - Statutory Procedures - Abolitiion

2009-03-03T04:50:00.000-08:00

Its quite well accepted that the Statutory procedures were poorly drafted and created more complexity rather than certainty. Having now read the provisions set out in Employment Act 2008 (Commencement No. 1, Transitional Provisions and Savings) Order 2008. I can say they are no better certainly in the short term.

If you actually read the statutory instrument you will find that some of the statutory procedures actually exist after the 6th April 2009. Frankly the wording of the Order is horrific and quite complex even for lawyers. That being said I have taken some time to read through it and hopefully the summary below will help you assess whether or not the statutory procedure applies in any given circumstance. You should get advice on these issues certainly because where time limits and jurisdiction issues are before the Employment Tribunals, these are notoriously complex and very fact based - combine this with the transitional order above and you have a very complex issue indeed to resolve.

Disciplinary and Dismissals

If a stage 1 letter has been sent or a stage 2 meeting has taken place before the 6th April 2009 then the statutory procedures will still apply to any dismissal after this date. Any failure will be deemed to be an automatic unfair dismissal. It stands to reason that any dismissal before this date will be subject to the statutory procedures. If you hold off doing anything until after the 6th April 2009 the statutory procedures will not apply.

Statutory Grievances

The statutory grievances will be abolished providing the acts complained of occur on or after the 6th April 2009; where the acts wholly took place before the 6th April 2009 the statutory procedures will still apply.

However what about acts that occur before that date and continue beyond it, such as in Discrimination claims? Well this is where it gets even more complex!

For most claims the old statutory procedures will apply providing either an ET1 is presented or a stage 1 grievance letter is issued by the 4th July 2009. If neither an ET1 or grievance letter is sent by this date the new regime will be engaged and the statutory procedures will not apply.

Where there is a wider window in which to present claims such as in Equal Pay and Redundancy Pay claims this will remain except the date in which a statutory grievance or ET1 claim must be presented is 4th October 2009 instead of July 2009.

I do hope this makes synopsis makes it more easier to understand but I cannot advocate enough the fact that advice must be sought in these circumstances. I can be contacted on gda@hrlegalpartners.com

Post Transfer Obligations in TUPE

2009-02-26T02:34:00.000-08:00

The EAT have only just published their judgement in respect of a case heard and decided in January 2009; this case is now the authority for the proposition that a transeree is bound by pay increases negotiated by the transferor with a union under a collective agreement after the TUPE transfer has taken place.

For years, a line of authorities held precisely that (the lead case being Whent v Cartledge) however in 2006, the ECJ held in Werhof v Freeway that the Acquired Rights Directive did not bind transferees in respect of contractual amendments negotiated post-transfer between transferor and union under a collective agreement. Everyone thought Whent would not be good law.

Yesterday, in Alemo-Herron v Parkwood Leisure, the EAT held that Whent v Cartledge remained good law, as the UK was entitled to interpret the Acquired Rights Directive in a way more favourable to employees than the European Law required.

The EAT however did give permission to appeal to the Court of Appeal and I am told that an appeal has been lodged. Watch this space!

For advice on TUPE related issues please contact me on gda@hrlegalpartners.com

Contracts of Employment - Sham

2009-02-26T01:55:00.000-08:00

The Court of Appeal has handed down their decision in Protectacoat Firthglow Ltd v Szilagyi which has clarified the approach tribunals will need to take in assessing whether or not a written document is a sham. The following points have been distilled from the leading judgement of Lady Smith.

The question must always surround 'what the true legal relationship is between the parties'. If there is a contractual document, that is ordinarily where the answer will be found. But, if it is asserted that the document does not accurately represent or describe the true relationship, the tribunal has to decide, on all the evidence, what the true relationship is;
The court or tribunal has to consider whether or not the words of the written contract represent the true intentions or expectations of the parties, not only at the start of the contract but, if appropriate, as time progresses.
Commenting on Consistent Group Ltd v Kalwak&Ors [2008] EWCA Civ 430 (29 April 2008), a document which can be shown to be a sham "designed to deceive others" will be wholly disregarded in deciding what is the true relationship between the parties, but it is not only in such a case that its contents cease to be definitive.

I think Sedley LJ summed up the test most precisely when he held at para 73 of the judgement.

"...in the field of employment at least, it is more helpful and
relevant..to ask in a case like this not whether the written agreement is a
sham but simply what the true legal relationship is. Although there will be
in many cases (as there was in this one) an intention to conceal or
misrepresent the actual relationship, there is no logical reason why this
should be a universal requirement."

This is an important authority for those dealing with disputes and potential disputes surrounding the employment relationship; advice should always be sought when drafting documentation and negotiating contractor or agency agreements.

I can be contacted on gda@hrlegalpartners.com for any further advice.

Harassment under the RRA

2009-02-17T05:55:00.000-08:00

The EAT has handed down their judgement in Richmond Pharmacology v Dhaliwal which sets out the approach Tribunals will need to take in respect of analysing whether or not harassment has taken place in light of the new amendments to the Race Relations Act 1976 (s.3A).

The EAT confirmed the following four points:

That previous case law prior to the amendments are not likely to be helpful and even more unlikely to be helpful is the provisions set out under Protection from Harassment Act 1997. (Para 13)
A Respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so). (Para 14)
A Respondent should not be held liable just because the incident had the prescribed effect but in contrast it should be reasonable that such offence (or prescribed consequence) took place. (See Para 15).
Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes (Para 16).

This is a case which certainly could impact on other discrimination acts which contain similar if not identical definitions of harassment. Should you need any advice in respect of this case and its impact please email me on gda@hrlegalpartners.com

Preaching and Religious Discrimination

2009-02-13T01:15:00.000-08:00

The EAT has handed down their judgement in Chondol v Liverpool City Council whereby they held that dismissing a member of staff for inappropriate teaching did not constitute religious discrimination. There has to be a clear distinction however between being dismissed for having such a belief or religion and in the alternative being dismissed for forcing ones beliefs onto others.

The EAT did however emphasise that the Tribunal will need to exercise great care to ensure that this was the real reason for dismissal as there would appear to be a very fine line between the two scenarios.

If you need further assistance or advice on this or any other issue please contact me on gda@hrlegalpartners.com

Reasonable Adjustments and Time Limits

2009-02-13T01:07:00.000-08:00

When an employer fails to make a reasonable adjustment for a disabled person, when does the normal time limits to present a claim start to run? We already know that limitation runs from the time of a deliberate decision not to make a reasonable adjustment but when should time start to run where the employer failed to make any decision whatsoever?

In Matuszowicz v Kingston Upon Hull City Council, the Court of Appeal has now held that even where the omission or failure was ongoing at the time of the claim but where a future adjustment was still possible, the effect of Paragraph 3, schedule 3 of the Disability Discrimination Act 1995 was to create an artificial limitation start date. That was the date defined in paragraph 3(4)(b) as when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

Where an omission is ongoing at the time of the claim, a Tribunal will have to determine the period during which a reasonable employer, under a duty to make an adjustment and intending to make it, would make the adjustment. Limitation starts to run when that period expires.

What is interesting however is that Paragraph 3(4)(b) is not restricted to deliberate omissions.

Again this is an important case moreso for employment advisors and lawyers who advise on time limits and represent claimants and respondents before the Employment Tribunals. If you need further advice on this or any other issue please email me on gda@hrlegalpartners.com

1st Stage Dismissal Procedure - Important New Authority

2009-02-11T06:20:00.000-08:00

Just when you thought it was clear what needed to be included within a first stage statutory disciplinary procedure letter the EAT have now thrown a spanner in the proverbial works.

The EAT have held in Zimmer v Brezan that an employer MUST state in their letter inviting an employee to a disciplinary hearing that they are considering dismissal as an option if dismissal is likely to be a potential outcome. HHJ Burke held that whilst the words of the statutory procedure did not expressly require the employer to state, in writing, that it was contemplating dismissing the employee, it was desirable to construe the statutory procedure purposively so as to include such a requirement.

This is something to watch for dismissals that have already taken place and for those that are likely to occur.

If you need specific advice on any matter that is outstanding or any litigous matter arising out of this case, please email me on gda@hrlegalpartners.com

DDA - Important Authority - Malcolm to apply in Employment Cases

2009-02-05T14:11:00.001-08:00

As you will no doubt remember in August 2008 I reported on the landmark decision of the House of Lords in London Borough of Lewisham v Malcolm (“Malcolm”). This was a housing case which which turned disability discrimination law onto its head and made it extremely difficult for a claimant to succeed in a claim of Direct Disability Discrimination.

Employment Lawyers and ultimately HR professionals have been waiting with baited breath to see whether or not the lower courts would interpret Malcolm within an employment context and today at 10.30am today we had our answer.

The EAT have handed down their judgement in Child Support Agency v Truman; they held that the comparators in Malcolm do apply in employment cases and this judgement must be followed in future cases. Whilst this in my view was predictable this hammers home any final nails in the coffins for claimants.

The EAT did not however consider the impact of Malcolm on the phrase "for a reason which relates to the person's disability" - this will have to await another case.

If you have any further questions on this matter then please contact me on gda@hrlegalpartners.com

Employment Judges

2009-02-03T13:58:00.000-08:00

It doesnt seem like 5 minutes since Tribunal Chairmen were promoted to Employment Judges (with a resultant payrise I might add) and its certainly seems that the Ministry of Justice is keen to get its pound of flesh as a result.

The (draft) Employment Tribunals Act 1996 (Tribunal Composition) Order 2009, which is due to come into force on 6th April 2009, has been placed on the OPSI website; it extends the types of hearings when an Employment Judge can actually sit alone, to include holiday pay claims under the Working Time Regulations 1998 (and some other very obscure statutory instruments). This supplements the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 which, amongst other things, authorised Employment Judges sitting alone to hear Stage 1 equal value claims.

I suppose that this doesnt really raise much interest other than with Employment Lawyers out there who are following this blog but its interesting to note that increasing the powers for Employment Judges sitting alone potentially erodes the industrial jury and creates opportunity for injustice.

Il sit this out and reserve judgement (as such) but in the meantime I wish to thank Daniel Barnett for bringing this to my attention through his updates.

DUTY TO MAKE REASONABLE ADJUSTMENTS IN RECRUITMENT

2009-01-26T15:03:00.000-08:00

The EAT has handed down their decision in what is a really important case in respect of pre employment reasonable adjustments. Disability Discrimination Act 1995, s.4A(3) provides that a employer is exempt from making reasonable adjustments if they were not aware of the disability; could not reasonably be expected to know of the disability and or aware that the claimant would be subjected to a substantial disadvantage in the workplace.

The EAT held that the Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:-
(a) does not know that the disabled person has a disability;
(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
(c) could not reasonably be expected to know that the disabled person had a disability; and
(d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

I am available for advice on any employment issue either on 0870 756 2929 or gda@hrlegalpartners.com

Employees entitled to Holiday Pay during Sick Leave - ECJ Decision

2009-01-21T14:24:00.000-08:00

The much anticipated judgement of the European Court of Justice on the issue as to whether workers are entitled to holiday pay during sick leave has been handed down this morning; it is not good news for employers.

The ECJ has held that workers are entitled to statutory holiday pay during sick leave. Where a worker is unable to take their annual leave due to sickness absence (whether absent for an entire year or only part of a year), he or she must be allowed to carry over leave into a subsequent leave year. What’s more, if the worker is dismissed then he or she is entitled to pay in lieu of untaken leave accumulated during sickness absence.

The ECJ drew a distinction between the need for paid annual leave being taken for health and safety reasons and sick leave being taken for the purposes of recuperation; the Court went on to rule that the right to paid leave during periods of sickness is an important part of community social law to which there can be no derogation.

It will be the House of Lords who next decide whether UK properly gives effect to the European Directive and such it is expected that they will overturn the Court of Appeals earlier decision.

This is likely to have massive cost implications for those employing members of staff absent on long term sick as well as those under a PHI scheme.

HR Managers, Directors and Owner Managers should get some expert advice on this new ruling and review and where possible consider redrafting their absence policies to coincide with the new understanding of the law. Interested employers can contact me on gda@hrlegalpartners.com or 01942 252 802.

Homophobic Banter - Court of Appeal Decision

2009-01-19T09:35:00.000-08:00

It has been a busy few months and since the judgement was handed down in December I have been meaning to write an article on what is now a landmark decision in relation to sexual orientation and homophobic banter.

In February 2008 the EAT held that the Employment Equality (Sexual Orientation) Regulations 2003 do not protect a hetrosexual man who is repeatedly taunted by homophobic banter when he is not homosexual and furthermore the perpetrators know that the victim is not homosexual.

The regulations prevent discrimination and harassment on the grounds of sexual orientation. It is well known that the meaning of 'sexual orientation' extends to perceived sexual orientation and this is where the difficulty in this case arises. The perpetrators did not actually perceive the victim to be homosexual, in fact they openly accepted that he was not but still persisted in tormenting him nonetheless. Of course given that the EAT had no doubt with some regret held that he was not protected by the regulations he appealed to the Court of Appeal.

The Court of Appeal has overturned the EAT's decision in English v Thomas Sanderson Ltd.

By a majority, the Court of Appeal held that the Sexual Orientation Regulations 2003 do protect a heterosexual man who is repeatedly tormented by homophobic banter (including names such as “faggot”) when (a) he is not gay, (b) he is not perceived or assumed to be gay by his tormentors, and (c) he accepts that they do not believe him to be gay. The banter arose purely because he had attended a boarding school and lived in Brighton.

Sedley LJ speech distilled the law consisely when he ruled at para 40:

"I particularly question the view that the word "grounds" imports more than is postulated by Lord Nicholls' question in Nagarajan: why did the other employees harass the claimant? It is not necessary to demand a logician's or a lawyer's answer by looking for motive or purpose or cause and effect. If the harassment has was based on his sexual orientation, whether real or imagined, the question "Why?" is answered. If one uses the "but for" test adopted by the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, then but for the sexual orientation they chose to attribute to him the appellant's fellow employees would not have harassed him. Even if the entirety of the assumed facts is taken to be material and a cause-and-effect test is applied, the claimant was harassed because his fellow employees thought it was funny to taunt a man they knew to be heterosexual with being homosexual. Whichever approach is taken, the case in my judgment comes within the legislative intent, both domestically and under the Directive: the claimant was being harassed on grounds of sexual orientation".

This is an important judgement and one that should prompt HR Directors and Owner Managers to review their equal opportunities policies as a matter of urgency.

If you should need any further guidance then please contact me on gda@hrlegalpartners.com or 01942 252 802.

Employment Advice during a Recession.

2008-11-18T13:38:00.001-08:00

I usually save these spaces for legal updates but frankly, given this weeks news I thought I would put pen to paper so to speak on what are more pressing issues.

The Bank of England have announced that the UK is in a state of recession and I know many of you will have mixed feelings about this.

Some may argue the alternative and yet some too readily accept the news as gospel but regardless as to where your views lie, nobody can argue with the fact that things have got tougher out there in business and confidence seems to be at an all time low.

This got me thinking about the role of the Employment Lawyer during a recession- some might raise a cynical eyebrow and state what they think is an obvious fact in that we as lawyers are likely to be busier than ever.

This isnt exactly so, I would disagree that we are busier than ever, although I would readily accept that the focus of our work changes drastically in times of financial crisis or recession and quite rightly so too. Our clients needs change and the role of an Employment Lawyer during these times needs to change with them.

The best run businesses will plan ahead and its rarely too late to do so - we can help you do that.

We can help you plan for the tough times and enable you to weather any storm which might arise and ensure that your single biggest investment (your people) is safe and providing a return. Our advice is always strategic and neednt be reactive if you seek it early.

Yes, this might involve tough decisions but we can help you make them the best possible and never forget its amidst these decisions that lies your future success and business longevity which is our ultimate aim.

Our clients and friends are invited to attend our December Business Round Table where one of our partners will be highlighting how you can plan ahead and prosper during what could be tough times ahead. This will take place on 4th December 2008 at 10am.

Email me on gda@hrlegalpartners.com to book your place - seating is limited to 10 places so please hurry...

New ACAS Code of Practice -

2008-11-13T15:57:00.000-08:00

The revised Acas Code of Practice on Disciplinary and Grievance Procedures has been published earlier this week. It comes into effect on 6th April 2009, when the statutory dismissal and grievance procedures are abolished.

An unreasonable failure by an employer to follow the Code will result in a tribunal having the power to increase any award by up to 25%.

It can be downloaded from Acas's website. The current version has the word 'draft' stamped all over it as it is awaiting approval by parliament - but this should be a formality.

Discrimination - Compensation

2008-11-13T08:00:00.001-08:00

The EAT has held in the conjoined appeals of Telindus Limited v Brading & Sheffield Forgemasters International Limited v Fox that the fact that a claimant received incapacity benefits for a period did not preclude him from recovering compensation for loss of earnings in that same period. This is of course subject to the rules relating to double recovery.

These cases concerned Disability Discrimination and both claimants were dismissed; both dismissals were held to be unfair and furthermore discriminatory. The tribunal awarded damages for loss of earnings in the period which the claimants had claimed incapacity benefits.

The respondents contended that the receipt of incapacity benefit should have prevented the tribunal from awarding damages in this period because the claimants were incapable of work and further, that unless the incapability related to the respondents wrongdoing, the claimants should not be awarded damages for these losses.

Silber J (Presiding) held that the statutory definition of incapable of work was a 'deeming provision' which applied only for the purposes of the benefits system and went on further to observe that many persons who satisfy this test of being incapable of work still might be able to work. He went on to further rule that just because a person is incapable of working for the purposes of the benefits system, it does not follow that they must be regarded as unable to earn during the period of incapacity.

This is a very poignant judgement in my opinion and one that Claimant and Respondent lawyers need to be aware of - this is likely to push the cost of compensation for loss of earnings higher than originally anticipated and they should advise their clients accordingly.

For advice on any of the issues you read about in this blog please contact my firm on 0870 756 2929 or email me personally on gda@hrlegalpartners.com

Age Discrimination

2008-11-07T01:45:00.000-08:00

The EAT has, in Live Nations (Venues) UK Ltd v Hussain, given some guidance as to conduct which may justify a finding of age discrimination:-

An employer that genuinely believes employee 'A' is guilty of age discrimination against employee 'B', and dismisses employee 'A' for that reason, cannot be said to be discriminating against employee 'A' on the grounds of his or her age.

An unjustified or unreasoned belief that an employee has ageist tendencies may render a dismissal unfair, but it does not justify an inference that the reason for the dismissal is the employee's age.

If an employee's dismissal for suspected ageism justified an inference of age discrimination by the employer, it might restrict an employer in dealing with a suspected discriminator for fear that they would be found to be discriminating.

Reference to an employee being 'too old to change' could, in an appropriate case, provide some basis for inferring age discrimination.

Thanks to Daniel Barnett - Barrister for this update.

Religious Discrimination - Important Authority

2008-10-27T05:23:00.000-07:00

The EAT has held in Saini v All Saints Hague Centre that Regulation 5(1) of the Employment Equality (Religion or Belief) Regulations 2003 extends to not only when a person is subject to less favourable treatment and or harassment on the grounds of his religion or belief but also on the grounds of someone else's religion or belief.

This case in effect mirrors the position in race claims where the selection of a victim in order to target and discriminate against another person on grounds of a prohibited reason fell within the remit of the Equal Treatment Directive and ultimately the Race Relations Act 1976.

The EAT have applied the same criteria to this case whereby the claimant was used as a victim to remove another member of staff from employment on the grounds of his religion and belief.

Employment Tribunal failed to consider this and thus the EAT have allowed this appeal.

The EAT reasoned:-

Regulation 5(1) requires conduct "on the grounds of religion or belief" not solely on the grounds of the claimants own religion or belief.

This interpretation is consistent with the purposive approach Tribunals are asked to take in interpreting certain aspects of domestic law in accordance with the EC Framework Directive. This means that it is possible to be treated less favourably on the grounds of someone elses religion or belief.

To use an employee to carry out a discriminatory policy is unlawful if it (not surprisingly) is reasonably perceived by the claimant to be creating a hostile, degrading, humiliating or offensive environment. Regulation 5(1)(b).

What is further quite important is that these circumstances above need not (on the basis of this authority) be confined to just when someone is instructed to carry out an act of discrimination but can also include where an employee is used in any other way to carry out discriminatory policies.

This is an important case and advice should the sought to prevent these sorts of issues arising in the first place. I am a specialist in Discrimination Law and would be glad to answer any of your questions in due course.

Email me on gda@hrlegalpartners.com or contact me on 0870 756 2929.

Rest Breaks

2008-10-22T08:42:00.000-07:00

The Employment Appeal Tribunal has handed down its judgement in Commissionaires Management v Hughes, a case dealing with the Working Time Regulations and the issue of rest breaks. Employers need to be aware that the EAT has held:-

An employee is only entitled to one rest break when he or she will be or has worked 6 hours or more. See Regulation 12(1) Working Time Regulations 1998. He is not entitled to another rest break should he work for 12 hours. Paras 15-16 apply.
Where it is not possible for a rest break to be taken at the proper time, a compensatory rest break must be offered; it is not enough to suggest that the employee can rest between shifts.
A claim before the Employment Tribunal in relation to rest breaks can only be brought within 3 months (6 if the statutory grievance procedures are invoked) of the alleged breach. The concept of continuing breaches to enable backdating does not apply to this section of the regulations.

So overall this could be read as good news for employers (one of the few occasions) however should you need further advice on these or related issues we can be contacted on 0870 756 2929.

My email address is gda@hrlegalpartners.com

Workplace Stress in the Court of Appeal

2008-10-20T08:41:00.000-07:00

The Court of Appeal has handed down their judgement in Dickins v O2 Plc; the trial judge in the previous case had ruled that O2 were liable for the stress induced personal injury suffered by its employee and as such they appealed to the Court of Appeal.

02 lost the appeal and the court read quite a wide interpretation of the existing authority set out in Hatton v Sutherland and as such this implies that it is likely to be now easier for claimants to satisfy the tests of reasonable foreseeability, breach, and causation than what Hatton v Sutherland had previously led us the believe.

In relation to reasonable foreseeability it was sufficient that the employee had previously complained about stress at work and had been displaying physical signs of stress. Not only this but the employee concerned had been arriving late for work and complaining that she did not know how long she could keep going before she became ill;

In relation to Breach of Duty, the court held that 02 ought to have sent its employee home pending urgent investigation by occupational health, even though she had not been signed off work by her GP. They went on further to hold that the mere suggestion of confidential counselling was not enough and or an adequate response to a situation where an employee was complaining of severe stress;

In relation to Causation the court drew the inference that there was a severe causal connection between the breach of the employers duty and the illness/injury suffered by the employee and went on to find that 02's failure to address her problems had materially contributed to her illness.

What is quite controversial is that contrary to the judgement set out in Hatton v Sutherland, the Court of Appeal held that there should be no percentage reduction in damages for the contribution to her illness made by factors outside of the employers control. This smacks of other areas of the law whereby a tort feasor has to take their victim as they are.

This case underlies the need to get advice when working in pressurised environments and particularly if an employee complains of overwork or being under undue pressure.

What is further of note is that attention must be taken even if the factors causing stress are outside of the workplace or control of the employer.

Advice can be sought by experts at my firm on 0870 756 2929 or gda@hrlegalpartners.

Tribunal Respondents Identity to be Published (again)

2008-10-16T09:11:00.000-07:00

As many of you will be aware the Respondents identity in any Tribunal claim was contained within a register however this practice ceased in 2001 following concerns that unscrupulous legal firms were contacting respondents (who often were already represented) to offer representation in the proceedings.

The Information Commissioner however has indicated via a press release, that the because of a new ruling made by them, 'material will be released routinely once again'. This means that employers can expect more cold calls offering representation at hearings in the near future.

Deep Joy!

HR Legal Seminar - Disability Discrimination - November 2008

2008-10-08T14:39:00.001-07:00

As one of the leading employment litigation firms in the North West our next free seminar for clients and friends of the firm will cover the developments of Disability Discrimination throughout the last year. There have been considerable developments which every employer needs to be aware and our lively presentations are likely to be informative and enlightening.

The presentation will include opinions and topical advice on recent cases and their impact on employment law, long and short term.

Seating numbers are limited and it is advisable that you book immediately to secure your place. The morning seminar is a must for HR Managers; HR Directors; Senior Management and Recruitment professionals.

The presentation will start at 9am and finish at 11.00am and will be based from our offices in Wigan.

You can book onto the seminar by emailing me on gda@hrlegalpartners.com

Emergency Domestics

2008-10-06T17:42:00.000-07:00

The EAT have now resolved in RBS v Harrison what has been for some time a conundrum for Employment Lawyers and their clients.

An Employee under Section 57a Employment Rights Act 1996 (“ERA”) is entitled to reasonable and necessary time off for domestic emergencies during working hours when (amongst other reasons) there is an unexpected disruption to, or termination of, the care of a dependent. Dependents being a Spouse, Civil Partner, A Child, A Parent or a person who lives with the employee other than a boarder, tenant or employee.

The main question being asked was whether this only refers to last minute unavailability of care or emergencies and so the Court had to consider the statutory meaning of ‘necessary’ and ‘unexpected’ in accordance with Section 57a(1) ERA.

In this case Mrs Harrison had been notified two weeks prior of the unavailability of a childminder and so it was argued on behalf of RBS that this was not unexpected and so she was not entitled to take time off; when disciplined for doing so she claimed that she had suffered a detriment contrary to the Act.

The EAT stated that the passage of time between the employees discovery of the forthcoming disruption of care arrangements and the disruption taking effect was to be considered as part of the question as to whether it was necessary to for an employee to take the time off and they further held that the word unexpected does not involve a time element. Parliament had not seen fit to insert the words sudden or in emergency into Section 57A (1) (d) ERA and so therefore the argument put forward by RBS failed.

The message to Employers here is clear – a certain degree of leniency is always required where the care of a dependent breaks down, or there is another domestic incident that falls within the legislation. The Employment Tribunals are prepared to take a hard line with Employers when the legislation is not followed or the Employer wishes to adopt sharp practices. The purpose of the legislation is to provide flexible and family friendly workplaces and this case certainly proves that point.

On a side note, where the care involves the care of a disabled dependent this might also in light of recent case law lead to a claim for Disability Discrimination and advice should be taken immediately when faced with these issues.

Advice can be sought on 0870 756 2929 or gda@hrlegalpartners.com

Applicability of Grievance Procedures

2008-08-28T13:52:00.000-07:00

The EAT have produced a useful reminder in terms of the applicability of the statutory grievance procedures. This case involved a claimant who had been dismissed and brought a claim of disability discrimination against his employer.

He applied for leave to amend his claim to include a claim for a failure to make reasonable adjustments. The Employment Tribunal refused leave to grant the amendment partly on the grounds that a statutory grievance had not been issued with respects to this part of the claim.

This was overuled by the EAT who held that where the act complained of results in dismissal then the statutory grievance procedures do not apply and there is no need to issue a stage one letter. What is interesting to note is that applying the existing authorities on this subject the extension of time limits normally applicable under the statutory grievance procedures do not apply either and as such claimants will be forced to bring their claims within the 3 month less one day time limits.

Maley v Post Office

If you need assistance or advice on time limits then please do not hesitate to contact my firm on gda@hrlegalpartners.com

House of Lords turns Disability Discrimination on its head.

2008-08-23T03:44:00.000-07:00

The House of Lords has recently turned the law surrounding Disability Discrimination on its head in overuling the long established (albeit controversial) authority in Clarke v Novacold [1998] IRLR 318 CA.

London Borough of Lewisham v Malcolm [2008] UKHL 43 is a housing case but nonetheless significant in its impact on employment law. The judgement is complex and long (60 pages) but I will distill it as best as I can.

Firstly and probably more importantly the comparator test has now changed. In a hypothetical absence situation and where a disabled person is dismissed as a result of that absence the comparator in Clarke v Novacold was a person who was not absent. As you can no doubt appreciate, this created untold difficulties for employers in managing absence and capability.

This was held by the House of Lords to be wrong and thus Clarke v Novacold was wrongly decided. They held that the correct test in our hypothetical absence scenario is someone who has been absent but not disabled.

Whilst this creates some difficulties for claimants, employers should still be cautious. Within the judiciary the law relating to disability discrimination is still deemed to be highly unsatisfactory and Employment Tribunals will more than likely focus on the duty to make reasonable adjustments and hit respondents heavily when they have failed to comply. This is especially so given that less claimants are likely to succeed under other ares of their disability discrimination claims.

Another potential problem is that London Borough of Lewisham v Malcolm is a housing case and furthermore deals with seperate area of the Disability Discrimination Act 1995 (as amended). It is already well understood that the DDA should be read purposively and there is a significant argument that the employment section should be read in a different way to the sections on housing (although they are exactly the same in content). This is because the act protects different people in different scenarios and therefore should be read differently. Whilst this idea seems to be convincing this was dealt with in one of the law lords opinions and it was held that both sections should be read exactly the same.

Another impact of the Malcolm case is that the respondents' knowledge of the disability is required and must be a motivating factor in the respondents decisions and treatment.

Employers should still be cautious however and take advice at every eventuality.

If you need further advice on this please contact me on gda@hrlegalpartners.com

My firms details are contained here www.hrlegalpartners.com

Unreasonable Delay

2008-07-23T14:44:00.001-07:00

The Court of Appeal has today overturned the EAT authorities as to whether unreasonable delay in the statutory dismissal procedures would make a dismissal automatically unfair.

The delay involved an appeal against dismissal and took around four months to complete.

The Court of Appeal held, contrary to a line of somewhat convincing and existing EAT authorities, that unreasonable delay did not make the dismissal automatically unfair, as the statutory procedure had been "completed". Therefore, despite the four months delay it could not be said that the procedure had not been completed under Section 98 Employment Rights Act 1996.

Selvarjan v Wilmot [2008] EWCA 862

If you need advice on this or any other issue I can be contacted on gda@hrlegalpartners.com

www.hrlegalpartners.com

Discrimination by Association

2008-07-17T04:12:00.001-07:00

The European Court of Justice has just handed down their judgement in the landmark case Coleman v Attridge Law which arose from questions posed to it from London South Employment Tribunals.

The European Court of Justice following the Advocate Generals opinion in January this year, has ruled that associative discrimination is prohibited by the Equal Treatment Framework Directive.

Ms Coleman alleged that she was directly discriminated against and harassed by her former employers on grounds of the disability of her son, for whom she was the primary carer.

According to the ECJ's judgement, the Directive is intended to prohibit direct discrimination or harassment on grounds of disability, even where the person concerned is not disabled themselves. The Equal Treatment Framework Directive applies to age, sexual orientation, religion and belief, as well as disability. Following the ECJ's judgement, direct discrimination by association in those other contexts must also be prohibited. Although, the Employment Equality (Age) Regulations 2006 on its wording does not yet appear to protect employees from direct discrimination by association in the context of age.

Given that the respondent in this case is a law firm and not a public body the tribunal will now need to decide whether or not the Disability Discrimination Act 1995 should be read purposively and be extended to include associative discrimination.

My own view on this matter is that this is a mere formality and employers should be prepared to update their policies and procedures in the near future to include prevention associative discrimination. Advice on this issue can be obtained from me on gda@hrlegalpartners.com

Coleman v Attridge Law

Respectful Submission

2008-07-11T12:46:00.000-07:00

This was an interesting case involving an Employment Tribunal in their judgement merely copying verbatim the respondents submissions or legal arguments and not referring to the claimants submissions at all.

The claimant appealed to the Employment Appeal Tribunal and the EAT upheld his appeal on the grounds that an Employment Tribunal must be seen to be fair and provide adequate reasons as to why a losing party has lost their case. It stands to reason that relying too heavily on a parties submissions a tribunal runs the risk of error.

For all litigants it will be a worthwhile exercise in cases where written submissions are made to a Tribunal to ensure that copies are obtained beforehand and, when a judgement is received to carefully analyse whether or not the written judgement too closely resembles the opposing parties submissions. If they do, then the potential for appeal certainly needs to be reviewed. Advice on these issues can be obtain on gda@hrlegalpartners.com

English v Royal Mail Group and another