[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]
Is it unlawful discrimination on the grounds of marital status if a spouse is dismissed (or suffers some other detriment) on the grounds of being married to a particular person?
No, says the EAT (Underhill P) in Hawkins v Atex Group, unless the ground for the less favourable treatment is specifically marriage, as opposed to a close relationship which takes the form of marriage.
The Claimant was employed for less than a year by a company her husband managed when a policy prohibiting employment of close relatives was implemented, leading to her (and her daughter's) dismissal. An employment tribunal struck out her claim of unlawful discrimination on the grounds of marital status, and her appeal failed.
The EAT observed that in this case, there was no general rule or criterion applied by the employer about married women, the decision to dismiss applied to the Claimant and her daughter, and the Respondent was not motivated, in whole or in part, by the fact that the Claimant was married to her husband.
The EAT considered and departed from the recent case of Dunn v Institute of Cemetery and Crematorium Management under which detriments arising from being married to a particular person, not only being married, could found a marital status discrimination complaint, and doubted some of the reasoning in Dunn. So there is a conflict of authority on this point. The EAT noted that it had been referred to an authority not cited in Dunn.
Thursday, 15 March 2012
Call for Evidence on Dismissal Rules
The government has launched a Call for Evidence as to whether dismissal rules and the Acas Code of Practice are too complex or misunderstood. It has also launched the call for evidence, as leaked last week, on whether to introduce a system of no-fault compensated dismissals for microbusinesses (with under 10 employees).
The link on the BIS website to the Call for Evidence is currently broken, but you can read the Press Release.
The link on the BIS website to the Call for Evidence is currently broken, but you can read the Press Release.
Tuesday, 6 March 2012
TUPE: Substantial Change in Working Conditions
[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]
Can a change of location on a TUPE transfer give rise to a claim for constructive, automatically unfair, dismissal?
Yes, says the EAT (Langstaff P) in Abellio London v CentreWest London Buses.
The 5 claimants in this case worked as bus drivers for CentreWest, which ran the 414 bus route operated from its Westbourne Park depot. This location suited the employees' family circumstances, and where they lived. The route was transferred to Abellio. It intended to operate the route from its own depot in Battersea. It was accepted by the parties that this was a service provision change, and therefore a relevant transfer, under Reg 3(1)(b) of TUPE.
The claimants all had objections to the new location. It affected their travel and domestic arrangements. The new location would mean between 1 and 2 hours extra travelling per day. They resigned. It was held by the employment tribunal that there had been a substantial change to the employees' working conditions to their material detriment under Reg 4(9) of TUPE. The move was additionally a repudiatory breach of contract (in that a mobility clause in the employment contract did not extend to the Battersea location). Therefore the employees were also constructively dismissed for the purposes of Reg 4(11) of TUPE. It followed that the dismissals were automatically unfair, being by reason of the transfer.
The EAT agreed, citing with approval the EAT decision on the same point in Tapere v South London and Maudsley NHS Trust [2009] IRLR 972.
Can a change of location on a TUPE transfer give rise to a claim for constructive, automatically unfair, dismissal?
Yes, says the EAT (Langstaff P) in Abellio London v CentreWest London Buses.
The 5 claimants in this case worked as bus drivers for CentreWest, which ran the 414 bus route operated from its Westbourne Park depot. This location suited the employees' family circumstances, and where they lived. The route was transferred to Abellio. It intended to operate the route from its own depot in Battersea. It was accepted by the parties that this was a service provision change, and therefore a relevant transfer, under Reg 3(1)(b) of TUPE.
The claimants all had objections to the new location. It affected their travel and domestic arrangements. The new location would mean between 1 and 2 hours extra travelling per day. They resigned. It was held by the employment tribunal that there had been a substantial change to the employees' working conditions to their material detriment under Reg 4(9) of TUPE. The move was additionally a repudiatory breach of contract (in that a mobility clause in the employment contract did not extend to the Battersea location). Therefore the employees were also constructively dismissed for the purposes of Reg 4(11) of TUPE. It followed that the dismissals were automatically unfair, being by reason of the transfer.
The EAT agreed, citing with approval the EAT decision on the same point in Tapere v South London and Maudsley NHS Trust [2009] IRLR 972.
Redundancy: Pool of One
[Thanks to Nicholas Hill of Outer Temple Chambers for preparing this case summary]
When should an employment tribunal interfere with the pool for selection chosen by the Employer?
Rarely, says the EAT (HHJ McMullen QC) in Halpin v Sandpiper Books.
Sandpiper Brooks employed Mr Halpin in its London office as an Administrator/Analyst. Mr Halpin moved to work in a sales role in China. In due course the Company decided to outsource the sales work and Mr Halpin was put at risk of redundancy. There was extensive consultation and he was offered (but refused) alternative employment back in the UK.
Mr Halpin was dismissed by reason of redundancy and brought a claim for unfair dismissal. The claim was dismissed. The tribunal concluded that Mr Halpin had been fairly selected for redundancy "in so far as he was in a pool of one given his unique position dealing solely with sales and based in China".
The EAT upheld the tribunal's approach. The decision by the Respondent to limit the pool to a pool of one was open to it; such a decision cannot be easily overturned. "Selection only operates, when fairness is concerned, where there is a number of similarly qualified possible targets for redundancy" (paragraph 16) there was no other "similarly qualified possible targets". The decision as to the pool is one for management (Fulcrum Pharma v Bonassera [2010] UKEAT/0198/10/DM). In the circumstances the decision was one that was reasonably open to the Employer.
When should an employment tribunal interfere with the pool for selection chosen by the Employer?
Rarely, says the EAT (HHJ McMullen QC) in Halpin v Sandpiper Books.
Sandpiper Brooks employed Mr Halpin in its London office as an Administrator/Analyst. Mr Halpin moved to work in a sales role in China. In due course the Company decided to outsource the sales work and Mr Halpin was put at risk of redundancy. There was extensive consultation and he was offered (but refused) alternative employment back in the UK.
Mr Halpin was dismissed by reason of redundancy and brought a claim for unfair dismissal. The claim was dismissed. The tribunal concluded that Mr Halpin had been fairly selected for redundancy "in so far as he was in a pool of one given his unique position dealing solely with sales and based in China".
The EAT upheld the tribunal's approach. The decision by the Respondent to limit the pool to a pool of one was open to it; such a decision cannot be easily overturned. "Selection only operates, when fairness is concerned, where there is a number of similarly qualified possible targets for redundancy" (paragraph 16) there was no other "similarly qualified possible targets". The decision as to the pool is one for management (Fulcrum Pharma v Bonassera [2010] UKEAT/0198/10/DM). In the circumstances the decision was one that was reasonably open to the Employer.
Friday, 2 March 2012
Redundancy and Suitable Alternative Employment
[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]
When, after a re-organisation, a redundant employee is invited to apply for a newly created role, can the employer appoint "the best person for the job", even if that involves a degree of subjectivity?
Yes, says the EAT (Underhill P) in Samsung Electronics v Monte D'Cruz.
Samsung re-organised its print division. The claimant was one of three Heads of Department who were informed their roles would be abolished and merged into a new, single, position of Head of Sales. The claimant unsuccessfully applied for this post. He was assessed on a presentation and scored against competencies normally used in the annual appraisal process. He then unsuccessfully applied for a more junior role arising out of the re-structure. An outside candidate was eventually appointed.
The employment tribunal found the dismissal unfair because of inadequate consultation and because the criteria for selection for the new roles were too "subjective".
The EAT reversed the tribunal. As to the quality of consultation, the tribunal had erred by substituting its own view for that of the employer. As to the arrangements regarding suitable alternative employment, a tribunal should certainly consider how far an interview process was objective. But although, said the EAT, "subjectivity" in redundancy cases was often seen as a "dirty word", where a post has disappeared and the employer was selecting for a new role, some subjectivity was inevitable. The tribunal should bear in mind the views of the EAT in Morgan v Welsh Rugby Union [2011] IRLR 376 that "an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment" (per Judge Richardson).
When, after a re-organisation, a redundant employee is invited to apply for a newly created role, can the employer appoint "the best person for the job", even if that involves a degree of subjectivity?
Yes, says the EAT (Underhill P) in Samsung Electronics v Monte D'Cruz.
Samsung re-organised its print division. The claimant was one of three Heads of Department who were informed their roles would be abolished and merged into a new, single, position of Head of Sales. The claimant unsuccessfully applied for this post. He was assessed on a presentation and scored against competencies normally used in the annual appraisal process. He then unsuccessfully applied for a more junior role arising out of the re-structure. An outside candidate was eventually appointed.
The employment tribunal found the dismissal unfair because of inadequate consultation and because the criteria for selection for the new roles were too "subjective".
The EAT reversed the tribunal. As to the quality of consultation, the tribunal had erred by substituting its own view for that of the employer. As to the arrangements regarding suitable alternative employment, a tribunal should certainly consider how far an interview process was objective. But although, said the EAT, "subjectivity" in redundancy cases was often seen as a "dirty word", where a post has disappeared and the employer was selecting for a new role, some subjectivity was inevitable. The tribunal should bear in mind the views of the EAT in Morgan v Welsh Rugby Union [2011] IRLR 376 that "an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment" (per Judge Richardson).
Thursday, 1 March 2012
Are Employment Judges 'Workers'?
[Thanks to Rachel Chambers of Cloisters for preparing this case summary]
The Court of Justice of the European Union in Luxembourg (CJEU) has handed down its decision today in O'Brien v Ministry of Defence.
Mr O'Brien - a part time judge - had challenged the UK government over its refusal to pay him a pension. The Government argued that as an "office holder" rather than a "worker" he had no such entitlement despite the fact that he was entitled to other worker rights such as maternity and sick pay.
The Court decided in favour of Mr O'Brien and some 8,000 other part time judges. Part time judges far out number full time judges.
The Court of Justice of the European Union found that whilst it was for member states to define who is a worker for the purpose of the Part Time Workers Directive, and in particular, to determine whether judges fall within that concept, such a determination must not arbitrarily exclude judges from the Directive's protection.
To be excluded from protection the national court would have to find that part-time judges had a substantially different kind of relationship with, the Ministry of Justice, from that between full-time judges and the Ministry of Justice.
In addition, the European Court observed that the fact that judges are labelled as "judicial office holders" rather than "employees" is insufficient in itself to exclude them from protection against discrimination.
A distinction between full-time judges and part-time fee-paid judges is only lawful if it is justified by objective reasons. The case will return to the UK courts for this to be determined. The Court noted that they had been told by the parties that recorders and full-time judges perform essentially the same activity.
The Court of Justice of the European Union in Luxembourg (CJEU) has handed down its decision today in O'Brien v Ministry of Defence.
Mr O'Brien - a part time judge - had challenged the UK government over its refusal to pay him a pension. The Government argued that as an "office holder" rather than a "worker" he had no such entitlement despite the fact that he was entitled to other worker rights such as maternity and sick pay.
The Court decided in favour of Mr O'Brien and some 8,000 other part time judges. Part time judges far out number full time judges.
The Court of Justice of the European Union found that whilst it was for member states to define who is a worker for the purpose of the Part Time Workers Directive, and in particular, to determine whether judges fall within that concept, such a determination must not arbitrarily exclude judges from the Directive's protection.
To be excluded from protection the national court would have to find that part-time judges had a substantially different kind of relationship with, the Ministry of Justice, from that between full-time judges and the Ministry of Justice.
In addition, the European Court observed that the fact that judges are labelled as "judicial office holders" rather than "employees" is insufficient in itself to exclude them from protection against discrimination.
A distinction between full-time judges and part-time fee-paid judges is only lawful if it is justified by objective reasons. The case will return to the UK courts for this to be determined. The Court noted that they had been told by the parties that recorders and full-time judges perform essentially the same activity.
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