Indirect Age Discrimination

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. In an indirect discrimination claim, can an employment tribunal use the burden of proof to fill a gap in the evidence to establish that there was a provision, criterion or practice (PCP)? No, held the EAT in Bethnal Green and Shoreditch Education Trust v Dippenaar. An employment tribunal found that the Claimant, a teacher, was dismissed because of the expense of employing her arising from her seniority. She succeed in both her unfair dismissal and indirect age discrimination claims. The indirect discrimination claim relied on a practice (as opposed to a provision or criterion) of dismissing employees on high salaries, claiming that the practice indirectly discriminated against older teachers. The EAT found that there was insufficient evidence for the employment tribunal to find that there was a practice of employees being dismissed owing to the expense of employing them because a practice involves repetition of conduct, or at least the anticipation of repetition. Quashing the finding of indirect discrimination, the EAT held that the PCP must be established before the burden of proof can shift.

Collective Redundancies

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett until the end of the month.

Is there an exception for 'public administrative bodies' from collective consultation on large-scale redundancies in TULRCA 1992?

No, held the Supreme Court in a 4-1 decision in the long-running case of USA v Nolan, dismissing the USA's appeal.

The case arose from the closure of a US Army base in 2006, resulting in the dismissal of Mrs Nolan and others without collective consultation. The Supreme Court rejected an argument that the consultation provisions in TULRCA (as amended by regulations in 1995) were invalid as regards the US Army as a public administrative body. The argument being that as the EU Directive on collective consultation excluded public administrative bodies, the 1995 regulations (implementing an ECJ judgment) could only extend TULRCA's provisions that were EU law and not pure UK law.

The Court held, answering a "difficult and borderline question" that the 1995 regulations amended what was a unified regime of EU and UK law for collective consultation under the original 1992 Act, so the 1995 amendment was not ultra vires by extending UK law to cover public administrative bodies, including the US Army, with Lord Carnwath dissenting on this point.

The Court dismissed two other grounds of appeal relating to whether TULRCA should be construed so as to avoid liability for a foreign state under jure imperii considerations governing non-commercial activity of states. (State immunity had not been pleaded).

The case was remitted to the Court of Appeal to determine the UK Coal/Fujitsu issue of when the obligation to collectively consult is triggered, is it by the business decision on redundancies, or by the implementation of that decision?

Whistleblowing - breach of contract and the public interest

Thanks to Dionne Dury of Fox Whitfield solicitors for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett until the end of the month.

Can a complaint about contractual matters be in the "public interest" under the new whistleblowing provisions?

Yes, held the EAT in Underwood v Wincanton Plc.

One of the Claimant's claims was that he had made a protected disclosure and been subjected to a detriment by his employer. The disclosure was a written complaint made by him and three other lorry drivers that overtime was not being distributed fairly in breach of their contracts of employment.

The employment tribunal struck out the claim finding that a complaint, concerning only a group of workers about terms of their contracts, could not meet the new "public interest" test.

Overturning the employment tribunal's decision the EAT recognised that the employment tribunal's judgment had been given before any real guidance as to the meaning of "public interest" and before its decision in Chesterton Global Ltd v Nurmohamed. That case concerned an employee making a disclosure about contractual matters (commission payments) where 100 senior managers were affected. The EAT found that provided a section of the public, rather than simply the individual, was concerned, this was sufficient to meet the test.

The Chesterton case is the subject of an appeal to the Court of Appeal (listed for October 2016).

Zero Hour Contracts

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett until the end of the month.

The Department for Business, Innovation and Skills has produced a guide for employers on zero-hour contracts.

It explains to employers how zero-hour contracts work, the difference between appropriate and inappropriate use of such arrangements, and gives guidance on best practice and alternatives to zero-hour contracts.
 

Employment Tribunal Fees Review

As readers know, the Ministry of Justice is conducting a review of the employment tribunal fee regime. The President and the Regional Employment Judges of the Employment Tribunals have, together, submitted written evidence for the review which is well worth reading. See in particular:- recommendation there be three, not two, tiers of cases (para 22) possible reduced fees for hearings on paper (para 23) possible additional fees for certain case management or preliminary hearings, albeit with reservations expressed (paras 24-25) the Respondent to pay a response fee and a hearing fee (para 26) proposals for the fees when the employer is insolvent, or a claim is rejected at the vetting stage (paras 28-30)

Unfair Dismissal: Allegations of Bad Faith

Thanks to David Leslie of Lyons Davidson for preparing this case summary.

Do allegations of bad faith have to be put to a dismissing officer in an unfair dismissal case?

Yes, if they are central to the employment tribunal's reasoning, held the EAT in Sec of State for Justice v Lown.

The Claimant was dismissed following an allegation that he had punched a prisoner in the back during a planned intervention.

The employment tribunal found that the dismissing officer was acting in bad faith and did not have a genuine belief in the Claimant's misconduct. However, that issue was not put to the dismissing officer, either during cross-examination or by the tribunal.

Upholding the appeal, HHJ Eady held that "the Respondent should have been given the proper opportunity to deal with the case" (paragraph 50). The EAT found that the employment tribunal had failed to consider whether the Respondent's conduct fell within the band of reasonable responses, substituting instead "the only correct standard of what the reasonable employer would have done" (paragraph 57).

The employment tribunal also should have considered a Polkeyreduction when there was "a finding of substantive unfair dismissal" (paragraph 61).

Time when Sleeping

Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary

Is an on-call night worker who lives at his place of work entitled to National Minimum Wage (NMW) for all hours of the night?

No, held the EAT in Shannon v Clifton House Residential, he is only entitled to NMW for the hours during which he is awake and working.

The Claimant fell within the exception under Regulation 16(1A) of the National Minimum Wage Regulations 1999 because he lived in the residential home where he was employed, and the time in question was time he was entitled to spend at home.

The employment tribunal was entitled to take account of the fact that there was another night worker on duty and that in practice the Claimant was rarely called upon.

The decided cases in this particularly fact-sensitive area demonstrate that mere presence does not itself necessarily entitle a worker to the NMW for the whole shift.

Shared (Grand)Parental Leave

You won't have missed the headline that the Government is planning to extend shared parental leave to include grandparents.

For those who find themselves answering questions about it, here are some important 'small print' points missed off most of the press reports:-
 

• the Government's aim is to bring this in by 2018
• it only affects working grandparents (non-working grandparents aren't likely to meet the eligibility criteria)
• the Government will consult on the details during the first half of 2016

For more, please see here. 
 

TUPE - temporary lay-off is no bar to 'organised grouping of employees'

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Does laying-off employees before a transfer mean that they are not 'assigned' to an 'organised grouping of employees', stopping them from transferring under TUPE in a service provision change?

No, held the EAT in Inex Home Improvements Ltd v Hodgkins & others.

The Claimants worked on a building project in Sandwell, which was split into various tranches, they were laid off as per a national agreement when a tranche was completed. Their employer Inex did not get a further tranche of work, which went to another contractor in circumstances that the employment tribunal found would have been a service provision change, but since the Claimants were laid-off, they weren't an 'organised grouping' and so didn't transfer.

The EAT rejected this approach, taking a purposive approach to TUPE over a service provision change, for the 'protection of employment' despite those regulations deriving from UK law not EU law, and noted that:

"Common sense suggests that a temporary cessation of employment including for the purpose of holidays, sickness, or expressed to be a temporary lay off should not of themselves deprive employees of their employment if there is a service provision change during the period of temporary cessation."; but noting "In our opinion a temporary cessation of work in the case of a service provision change immediately prior to the transfer does not necessarily prevent a TUPE transfer taking place. The purpose, nature and length of the cessation are of course relevant in determining whether or not the organised grouping continued in existence.".

Company can bring Discrimination Claim

Thanks to Sophie Beesley of Old Square Chambers for preparing this case summary

Can a limited company, as a member of a Limited Liability Partnership, bring a direct discrimination claim for detrimental treatment because of the protected characteristic of an associated person?

Yes, held the EAT in EAD Solicitors v Abrams.

Mr Justice Langstaff rejected the argument that only an individual can be protected from discrimination under the Equality Act 2010 because only an individual can have a protected characteristic.

Rather, Langstaff P upheld the employment tribunal's decision that, just as a corporation can be a discriminator (described in the Act as a 'person'), so too can it be a person on the receiving end of mistreatment. There was no reason to restrict the meaning of person in s.13(1) to an individual. The term, consistent with the definition in the Interpretation Act 1978, could cover both an individual and a corporation.

Consistent with case law, the treatment complained of must be linked to the protected characteristic of an individual, but the treatment can be given to any person, natural or legal; there is no requirement that the person with the protected characteristic is the same person who suffers the detriment.

Employment Law Changes - 1 October 2015

Just a reminder - the following changes are taking place on 1 October 2015:-
 

• minimum wage changes (adult rate increases from £6.50 to £6.70)

 

• tribunals lose power to make wider recommendations in discrimination cases - now they can only make recommendations relating to the individual complainant (see here)

 

• the right for Sikhs to wear turbans (instead of safety helmets - currently only allowed on building sites) will be expanded to all workplaces, subject to various exceptions (see here)

 

• self-employed people become exempt from health & safety laws if they have no employees, subject to various exceptions (see here)

BIS Call for Evidence on Tips & Gratuities

BIS is calling for evidence on how tips, gratuities and service charges are collected and what deductions are made from them by the employer.

At present, tips paid in cash to the employee belong to the employee, whereas tips paid to the employer are the property of the employer, and it is simply a matter of what is agreed between employee and employer that governs whether it needs to be paid over. Tips and gratuities do not count for national minimum wage purposes.

The Government is seeking evidence on how tips work in practice including tronc systems, charges levied on staff as a percentage of their sales, or an administration charge. It also seeks views on what the Government can/should do to improve the practice of employers.

Responses are due by 10 November 2015.

ECJ: Meaning of 'transfer of a business'

Thanks to James English of Hempsons solicitors for preparing this case summary

Is it a TUPE transfer if a majority shareholder takes over its subsidiary's activities after it is wound up?

Yes, held the ECJ in Ferreira da Silva e Brito & Others v Estado Portugues.

The applicants were dismissed as part of a collective redundancy when Air Atlantis, which provided charter flights, was wound up. Its main shareholder, TAP, began to operate some of its routes using its aircraft, offices and equipment, other assets and employees. The applicants brought proceedings seeking reinstatement and compensation, and the matter was referred to the European Court of Justice (CJEU).

The CJEU held that there had been a transfer for the purposes of the Acquired Rights Directive. The decisive factor in establishing that a transfer had taken place was the fact that the entity had retained its identity, indicated by the fact that the activity continued or resumed. In a situation such as air transport, the fact that tangible assets transferred was also a key factor. In this case, TAP had taken over the charter flight routes, including aircraft leases, assets, activities, and employees. It was irrelevant that they were integrated into TAP's structure, and did not retain an autonomous organisational structure. A 'functional link' between the assets and staff, and the activities which they carried out, had been preserved, which allowed TAP to carry out the same activity.

New Enterprise Bill published

The government has, today, published the Enterprise Bill. The employment-law related aspects are:-
 

• protecting the 'apprentice' brand, by (amongst other things) making it a criminal offence to offer an apprenticeship course or training if it is not a statutory apprenticeship (clause 19)

 

• a power to introduce, by statutory instrument, a cap on public sector exit payments of £95,000 (or such other amount as is specified in the S.I.) in a 28 day period (section 26).

Employment Tribunal Fees

The House of Commons Library produced a briefing paper earlier this week summarising the background to and operation of the fees system.

It provides a statistical analysis of its impact, proposals for reform, and discusses the legal challenges to the Fees Order. It is an excellent document, well worth reading.

Working Time - Travel Time to First Job of the Day

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

In the case of mobile workers, is the time spent travelling from home to customers' premises to be regarded as 'working time' for the purposes of the Working Time Directive?

Yes, held the Court of Justice of the European Union in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL.

Tyco employs technicians who install and maintain security equipment at customers' premises in Spain. The technicians are provided with a vehicle and they travel from their own homes to the locations they are instructed to install the equipment, sometimes of distances exceeding 100km. They are in contact with their employer by mobile phone and are not generally required to travel to an office or a central location save for the weekly purpose of collecting tools and materials.

For the purposes of the Working Time Directive and the relevant Spanish legislation, Tyco argued that the technicians' travelling time was a "rest period" rather than working time because they were not carrying out any installations or maintenance during those periods. The CJEU disagreed, stating that such an argument "would distort that concept and jeopardise the objective of protecting the safety and health of workers" and that it was working time.

Tyco also argued that because the technicians' have the individual autonomy to make decisions as to their itinerary and which route(s) to take during their travelling time, these factors put them outside the boundaries of the Directive. Once again, the CJEU disagreed and made reference to the fact that the travelling time can neither be shortened nor used freely by the technicians for their own interests. Accordingly, the technicians were "at the disposal" of Tyco and thus their travelling time is covered by the Directive.

Proper Limits to HR's Role in Disciplinary Situations

Thanks to Sarah Fitzpatrick of Collingwood Legal for preparing this case summary

Can a dismissing or investigating officer seek guidance or advice from human resources?

Yes, held the EAT in Ramphal v Department for Transport, relying on the Supreme Court decision in West London Mental Health NHS Trust v Chhabra, but such advice should be limited to questions of law and procedure and not stray into areas of culpability.

The central issue was whether the Employment Judge had properly considered an inference that the HR department had inappropriately lobbied the dismissing officer as to the culpability of the Claimant and the appropriate sanction to impose.

HHJ Serota found that there was evidence to support "an inference of improper influence and the Employment Judge should have given clear and cogent reasons for accepting there was no such influence" (para 54). Accordingly the appeal was allowed and the case was remitted to the original employment tribunal for a rehearing.

Useful guidance is given at at para 56, "an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability.....and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure."

Law Society calls for Employment Tribunal Reforms

The Law Society has published a discussion document, Making Employment Tribunals Work For All.

The main proposals are:-

· all employment law disputes should be dealt with in a single jurisdiction consisting of four levels.
· claims should be dealt with flexibly, depending on their intricacy and the financial stakes involved.
· simple cases, such as handling unpaid wages claims should be dealt with on a paper basis in Level 1.
· more complex cases, such as multi-strand discrimination cases or restrictive covenants, should be heard by an experienced judge in Level 4.