Ministers of Religion and Unfair Dismissal

The Court of Appeal has upheld the Employment Appeal Tribunal's decision in New Testament Church of God v Rev. Sylvester Stewart, which held that a Christian minister was an employee of his church.

Whilst making it clear that he was not laying down a rule of law that all ministers of religion will be employees, Pill LJ analysed the changes in the common law in recent years and held that there was no legal presumption against a minister being an employee.

All three judges considered, however, that the existence of religious dogma which was opposed to the existence of a contract of employment would be an important factor pointing away from the existence of a contract. Indeed, by a majority, the Court considered that to impose a contract upon a church which was doctrinally opposed to it would be a breach of Article 9 of the ECHR (freedom of religion).

Collective Redundancy Consultation

The EAT has handed down a very important decision dealing with collective consultation obligations in redundancy cases.

Overturning previously binding authority, the EAT has held that there IS a duty on employers to consult over the reason for making redundancies in the first place (in this case, the closure of a place of mine) - previously something which has always been an area in which tribunals will not interfere. Elias P.�s reasoning begins at paragraph 75 - but, in essence, is that the old authorities are no longer good law in the light of statutory changes.

UK Coal Mining Ltd v NU

TUPE

The Court of Appeal has held, on unusual facts, that TUPE does not confer additional rights so as to improve an employee's situation.

Mrs Jackson was employed by CI in 1999. CI's business transferred to Computershare in 2004, and it made Mrs Jackson redundant in 2005. The employment tribunal found that, due to the 2004 TUPE transfer, she was entitled to enhanced severance pay - something which Computershare only made available to employees who had joined it pre-2002. The EAT overturned that decision, and Mrs Jackson appealed.

The Court of Appeal dismissed her appeal. TUPE Reg 5(1) does not give a transferred employee access to benefits other than those to which the employee was entitled before the transfer of the undertaking. It safeguards existing rights. So for the question of enhanced severance pay TUPE could not be used to "miraculously transform" Mrs Jackson into someone who joined Computershare pre-2002 when, as a fact, she joined Computershare in 2004. The original tribunal was wrong and she was not entitled to the enhanced payment.

Jackson v Computershare Investor Services

[Thanks to Patrick Green, Counsel for the Claimant, for telling me about this decision, and to www.emplaw.co.uk for permission to use their summary of the case]

Constructive Dismissal and Grievance Procedures

The EAT has handed down a very interesting judgment in GMB Union v Brown.

Ms Brown had a grievance against her line manager, a regional secretary of the GMB, flowing largely from the breakdown of their working relationship. She did not want him to deal with the grievance himself, as she was suffering from stress, and wanted somebody else to hear the grievance. The manager refused to vary the contractual grievance procedure, which provided he should hear the grievance first, resulting in months of argument, stress absence and eventual resignation by the Claimant.

The ET held, and the EAT upheld, that the GMB's refusal to depart from the grievance procedure amounted to a breach of trust and confidence - and thus the Claimant's constructive dismissal claim succeeded.

Maternity Pay Increases Delayed until April 2010

The Government still has a goal to extend Statutory Maternity Pay [SMP], Maternity Allowance [MA] and Statutory Adoption Pay [SAP] from 39 weeks to 52 weeks and to introduce Additional Paternity Leave and Pay [APL&P] by the end of this Parliament.

However, a Notice issued last week states that the plans have been put back by a year. It says that "HMRC has, up to now, been planning on the basis of implementation for babies due on or after April 2009. We will now start planning implementation for babies due on or after April 2010.

See HMRC Note

[Thanks to www.emplaw.co.uk, from whom I have taken this information (with permission)]

Retirement and Age Discrimination

The ECJ has handed down its opinion in the important case of Palacios v Cortefiel Servicios SA, holding that the EU Equal Treatment Framework Directive does not prohibit member states from introducing mandatory retirement ages.

Disagreeing with the Advocate-General (see bulletin 15/2/07), the ECJ held that a general mandatory retirement age did fall within the scope of what the Directive prohibited.

However, the ECJ considered that a mandatory retirement age was justified, as it was a proportionate means of achieving the legitimate social aim of promoting employment opportunities and reducing unemployment.

As readers will know, Heyday are currently challenging the UK's retirement provisions before the ECJ (see bulletins 5/10/06 and 6/12/06). This decision will cause much glumness at Heyday's offices this morning, and no doubt champage corks are being popped over at DBERR (i.e. the DTI, as it used to be called).

[Thanks to Michael Herman of Times Online for telling me about this decision]

Dreadlocks, Rastafarians and Religious Belief

The EAT (Elias P. presiding) has dismissed an appeal in which it was suggested that a Rastafarian who wore his hear in dreadlocks was discriminated against because of his religious beliefs.

The case turns largely on its facts (and contains an amusing analysis of when matted hair is messy, and when it is not!), but has two points of general interest:-

• the tribunal and EAT accepted, without demurral, the employer's concession that Rastafarianism is a religious belief within the meaning of the Employment Equality (Religion and Belief) Regulations 2003. There has previously been academic debate over whether Rastafarianism so qualified. Rastafarians are not protected under the race discrimination legislation as they do not qualify as an 'ethnic group' (Crown Suppliers v Dawkins (1993)).
• the EAT accepted the employer's argument that it was legitimate to have rules requiring tidy hair (irrespective of whether it was worn in dreadlocks)

Harris v NKL Automotive

Statutory Dismissal Procedures

The EAT has held, in Homeserve v Dixon, that a step 1 letter need not state that the employer is contemplating dismissal.

The employer, having caught the employee red-handed in an act of gross misconduct, sent him a letter inviting him to a 'formal disciplinary meeting' for 'breach of contractual obligations'.

The employment tribunal held that the dismissal was automatically unfair, as the letter did not state that the employer was contemplating dismissal.

The EAT, presided over by HHJ Peter Clark, overturned this decision, holding that it was sufficient that the letter invited the employee to a 'formal disciplinary meeting', as it was implicit in that that the employer was contemplating dismissal or some other disciplinary action.

Disability Discrimination: Failure to consult over redeployment

The EAT has hammered yet another nail in the coffin of the argument that an employer's failure to consult a disabled employee over alternatives to dismissal (or conduct a risk assessment) is, itself, a failure to make reasonable adjustments giving rise to liability.

The EAT confirms that the correct approach is that set out in Tarbuck (2006), and that the earlier line of authorities based on Mid Staffordshire General Hospitals (2003) should no longer be followed.

Thus there is plainly no longer scope for arguing that an employer who fails to investigate redeployment or reasonable adjustments is thereby in breach of the DDA. It is necessary for the Claimant to go a step further and establish precisely what reasonable adjustments could have been made to retain him/her in the workplace.

Scottish & Southern Energy plc v Mackay

Re-Enagement and Loss of Statutory Rights

A couple of interesting points crop up in the EAT's decision in Wolff v Kingston upon Hull City Council.

Unreasonable pursuit of re-engagement claim
The EAT approved the award of costs against Mr Wolff for unreasonably pursuing a re-engagement claim. He had been dismissed from a school and accepted he could not return to that school, but sought re-engagement in another school run by the city council. The city council argued - correctly - that it is the governors of individual schools, not the Council itself, that has the power to appoint teachers.

In the absence of financial losses, the Council offered �1,000 in settlement but the Claimant insisted on his day in court to argue re-engagement. The ET (and EAT) held that this was unreasonable, particularly in the context of a clear steer from the employment tribunal at a case management discussion.

Loss of Statutory Rights
An interesting point arose here. The Claimant found a new job immediately, and over a year had elapsed prior to the remedies hearing. The Respondent argued he should not be entitled to the conventional �250 for loss of statutory rights, as he had succeeded in re-establishing statutory protection and therefore suffered no loss. The EAT rejected this argument, holding that the Claimant was entitled to compensation for having worked for a year "under the shadow of being dismissed without statutory protection" and upheld the award of �250.

Statutory Grievance Procedure

As aficionados of employment law will know, tribunals consistently strain to turn lumps of clay into statutory grievances so that employees are not shut out from bringing tribunal applications.

But there is a limit, the EAT has held in Dick Lovett v Evans. Notwithstanding the Canary Wharf case, which held that employers should be taken to have regard to the factual background against which a written grievance letter is sent, it goes too far to impute an employer with knowledge arising from a meeting occurring after the date the 'grievance' letter was sent.

On the facts, a letter complaining of nosebleeds was insufficient to amount to a statutory grievance letter complaining of pregnancy discrimination, notwithstanding that a few days later, the employee told the employer that she believed the two were connected.

New Evidence as a Ground of Appeal

The EAT has handed down a decision confirming the strict approach it takes to allowing an appeal on grounds of fresh evidence.

The employer dismissed an employee for trying to poach customers. At the tribunal hearing, the employer had no real evidence of the poaching, which it explained on the grounds that it did not know it was expected to obtain such evidence.

Following the decision, the employer obtained four witness statements which, if accepted, would be fairly overwhelming evidence that the ex-employee had been approaching clients to solicit work (whilst still employed).

The EAT held that this did not enable the employer to have a second bite at the cherry. Whilst clearly credible and relevant, there was no proper explanation for not having obtained the evidence first time round. Neither ignorance, nor possibly incompetent advice from the employer's employment consultants, came close to being sufficient.

Hygia Professional Training v Cutter

Holiday Pay

In the light of the increased statutory holiday pay, effective today, Acas has issued a new Advice Leaflet on Holidays and Holiday Pay.

For those who need a quick reminder, minimum annual holiday entitlement increases today to 4.8 weeks (and on 1st April 2009, it increases to 5.6 weeks - intended to reflect 20 days plus 8 days' bank holiday).