Thursday 27 October 2005

Sexual Orientation and the Workplace

Acas has updated its guidance on sexual orientation and the workplace.

It can be downloaded from the link below. Note it is a large pdf file and may take 10 or 20 seconds to open.

Download Acas Guide

Stress at Work

Just up on BAILII today is a Court of Appeal decision from June.

In it, the Court holds that when deciding whether psychiatric injury is reasonable foreseeable (for the purpose of a stress at work claim), it is proper for the court to take into account that the employer is breaching the maximum average 48-hour working week (and the rest provisions) contained in the Working Time Regulations 1998.

Hone v Six Continents Retail

Imposing Restrictive Covenants

The EAT has just handed down an important decision in Windsor Recruitment v Silverwood, overturning its previous approach to imposing restrictive covenants in Forshaw v Archcraft.

Windsor Recruitment wanted to impose restrictive covenants on its workforce. It dismissed some employees who refused to accept them. It had faced several successful episodes of poaching both staff and business by its competitors, and there was clearly a good business reason for imposing the restrictive covenants.

The employment tribunal held that the covenants were too wide and therefore unenforceable. It held that the employer could not, therefore, establish 'some other subtantial reason' for the dismissals, which were consequently unfair.

The EAT (Burton P. presiding) overturned this decision (also overturning the previous EAT authority of Forshaw v Archcraft, which was on almost identical facts).

Burton P. stated that dismissal for refusing to accept restrictive covenants is capable of being 'some other substantial reason' unless the covenants were "in fact a cover or a ruse to get rid of the employee" (para. 23).

The consideration of the reasonableness of the covenants then comes in not when deciding the reason for the dismissal, but instrad deciding the general 'fairness' issue. The EAT set out the approach for tribunals at para. 24, namely:
  • if the proposed covenant is plainly unreasonable and is not severable, it will make it easier for a tribunal to conclude there was unfairness;
  • if the proposed covenant is arguably unenforceable (and/or severable), then consideration must be given to the employer's approach to the matter; in particular, the amount of time given to employees to consider the proposals and the opportunity given for legal advice;
  • if the covenant is plainly reasonable then, whilst consideration of procedure is still necessary, it will be easier for a tribunal to conclude the dismissal is fair.
(Note: the unfairness of the dismissal was actually upheld on separate, procedural grounds).

Windsor Recruitment v Silverwood

Disability Discrimination

Phew - wet towel time!

The Court of Appeal has, this morning, handed down a staggeringly complicated decision on the correct approach to claims under the Disability Discrimination Act 1995. Don't even think about trying to read this one unless you're very, very brave...

In a nutshell:
  • when considering what "any arrangements made by or on behalf of an employer (which) the disabled a substantial disadvantage" means, an 'arrangement' covers an employer's belief in the Claimant's ability to fulfil the job requirements, and is not limited to the irreducible minimum of the job;
  • the correct comparator(s), when examining whether the disabled person is at a disadvantage, is not the population as a whole, but those others who fulfil the other conditions for the job;
  • the justification test for deciding whether a failure to make reasonable adjustments is justified (under the old s6 of the DDA) is objective. The justification test when deciding whether an employer has treated a Claimant less favourably (under the old s5 of the Act) is subjective.
Go on... read it...

Smith v Churchills Stairlifts plc

10 Key Facts on Age Discrimination

The 'Age Positive' website has just published ten 'Key Facts your business needs to know about age discrimination' (rather embarrassingly, under the headling '20 key facts', although there are only 10 of them!).

They can be accessed by clicking here

Monday 24 October 2005

Claim and Response Forms online

The Employment Tribunals Service has introduced a service enabling Claimaints and Respondents to save their Claim / Response Forms online.

This makes it much easier to use the online facility, as the forms can be filled in over a period of time and do not need to be completed in the one sitting.

Claim and Response Forms

Thanks to Ed McFarlane of Qdos Consulting for telling me about this development

Compromise Agreements

A majority decision from the EAT sitting in Scotland, holding that a Compromise Agreement did not exclude an Equal Pay claim...

As often happens, the Claimant signed a Compromise Agreement on termination of employment. In exchange for signing away her statutory rights, she was given a payment exceeding her statutory entitlements. She had some 12 or so discussions with her solicitor before signing the agreement.

Several months later, she read an article in the newspapers about part-time workers' pension claims. She brought fresh proceedings under the Equal Pay Act 1970 on the basis she had been excluded from her employer's pension scheme whilst a part-time worker. The employer responded by asserting she had signed a compromise agreement which excluded proceedings under the Equal Pay Act.

It was common ground for the purpose of the appeal that the Claimant did not know of her right to bring a part-time pension claim, and equally that her solicitors had not enquired of her whether she might be able to bring such a claim.

The majority of the EAT held that the Compromise Agreement did not prevent her from bringing a new claim because, at the time of signing the agreement, she did not know that such a claim existed. They placed reliance on the fact that the Compromise Agreement stated that she was only excluding such claims as "you believe you have against the Company". So here is a drafting tip: if you are acting for the employer, don't use a phrase like that in your Compromise Agreements.

The minority (wing) member held that it was contrary to policy to allow an employee to avoid the effect of a Compromise Agreement, the purpose of which is to create industrial certainty for employer and employee.

Just out of interest, the EAT also held that it was not relevant that the Claimant's solicitor was only being paid £250 for dealing with the Compromise Agreement (see paragraph 18 of the judgment)!

Hilton Hotels v McNaughton

Wednesday 19 October 2005

New Family Friendly Proposals

The government has just announced its new family-friendly proposals, following extensive consultation. They will appear in the Works and Families Bill, to be published soon.

The new / changed laws will be:

  • extending Statutory Maternity Pay and Maternity Allowance to nine months from April 2007 with the ambition of moving to a year by the end of the Parliament;
  • a power to introduce new paternity leave for fathers, enabling them to benefit from leave and statutory pay if the mother returns to work after six months but before the end of her maternity leave period;
  • extending the right to request flexible working to carers from April 2007;
  • measures to help businesses manage the administration of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay;
  • introducing 'keeping in touch'days so that where employees and employers agree, a women on maternity leave can go into work for a few days, without losing her right to maternity leave or a week's statutory pay;
  • extending the period of notice for return from maternity leave to two months enabling employees and employers to more effectively plan for return to work;
  • making clear in the regulations that employers can make reasonable contact with their employees on maternity leave to help employers plan and ease the mother's return to work.
For more information, click here

Wednesday 12 October 2005

Personality Dismissals

The Court of Appeal has, today, handed down its judgment in Perkin v St Georges Healthcare NHS Trust.

It stands as authority for the proposition that employers are entitled to dismiss employees for having a difficult personality, even when they are technically good at their jobs and there are no criticisms of their integrity, on the grounds of 'some other substantial reason'. (Note, on the facts, the dismissal was technically unfair because the decision-maker was biased, but the tribunal declined to award compensation).

It is also authority for the proposition that, in an appropriate case, it is possible to:

  • have a finding of 100% contributory fault; and,
  • because of the aggressive way in which the employee defended himself (making allegations of fraud against the Chief Executive of the NHS Trust), any disciplinary panel - even if not chaired by the biased chairperson - would be 100% certain to have dismissed him on the grounds he would not be able to continue working with senior executives of the Trust.
Perkin v St Georges Healthcare NHS Trust

Wednesday 5 October 2005

'Gender Duty' Consultation

Probably of interest only to those who deal in/with the public sector...

The government has launched a consultation on its proposals to introduce a public sector duty to promote gender equality - commonly referred to as the 'gender duty'. These proposals will require public authorities to eliminate discrimination and promote equality of opportunity between men and women. The main three themes oblige public authorities to:
  • identify and implement specific gender equality goals;
  • develop and publish an equal pay policy statement; and
  • assess the impact of new policies and changes to services on men and women - allowing negative effects to be mitigated.
View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)