Religious Discrimination

The EAT has held, in Saini v All Saints Haque Centre, that Regulation 5(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 will be breached not only where an employee is harassed on the grounds that he holds certain religious beliefs but also where he is harassed because someone else holds certain religious beliefs.

In reaching this conclusion, the EAT reasoned that:

• regulation 5(1) requires conduct “on grounds of religion or belief” and as such, does not require the unwanted conduct to be on the grounds of the employee’s own religious beliefs.
• such an interpretation is consistent with the aims and intention of the EC Framework Directive and with the judicial interpretation of the Race Relations Act 1976, which is similarly engaged where there is discriminatory conduct on the grounds of someone else’s race.
• to use an employee in any manner in the implementation of a discriminatory policy is caught if the effect on the employee falls within any of the descriptions set out in paragraph 5(1)(b). The circumstances need not be confined to those where an employee has been instructed to act in a discriminatory fashion.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]

Age Discrimination

In Chief Constable of West Yorkshire Police v Homer, the EAT held that a requirement that an employee had to have a law degree to be entitled to graded at a higher pay scale did not put a 61-year old employee at a particular disadvantage on the grounds of his age, even though he could not have obtained a degree (studying part-time) before he retired.

The EAT (Elias P. presiding) reasoned:

• the requirement of a law degree was not something required only of those over a certain age. Nor was it in principle more difficult for an older person to obtain the qualification that it was a younger person.
• whilst the Claimant could not materially benefit from any law degree he might obtain, that was because his working life was limited by his age. The EAT described such a disadvantage as "the inevitable consequence of age; it is not a consequence of age discrimination" (para 39), drawing an analogy with an employee who complained that a universal payrise was discriminatory because he, being closer to retirement, had less time than younger colleagues to enjoy it.

The decision need not however spell all doom and gloom for Claimants. Had Mr Homer been able to establish the requisite disadvantage, the EAT stated that it would have upheld the tribunal's finding that any age discrimination was not justified as the requirement was not a proportionate means of achieving the recruitment and retention of appropriately qualified staff.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this case summary]

Working Time Regulations - Rest Breaks

In Commissionaires Management v Hughes, a case dealing with several aspects of rest breaks under the Working Time Regulations 1998, the EAT has held:-

• that an employee is only entitled to one rest break once he has worked more than six hours; he is not entitled to a subsequent rest break if he works for twelve hours (paras. 15-16)
• where a rest break cannot be taken at the correct time, a proper compensatory rest break must be offered. It is not enough to say that an employee can rest between shifts (paras. 25-29)
• a claim can only be brought in respect of rest breaks for the three month period before presentation of a claim (six months if the statutory grievance applies). The concept of 'continuing breaches' to enable further backdating does not apply here (para. 42)

Stress at Work Claims

The Court of Appeal has handed down its decision in Dickens v O2 plc, dismissing O2’s appeal against the trial judge’s finding that O2 was liable for stress induced personal injury suffered by one of its employees.

Whilst purporting to apply the guidance given in Hatton v Sutherland, the Court's application of that guidance to the facts before them arguably indicated that the requirements of reasonable foreseeability, breach and causation may not be as difficult for claimants to satisfy as a strict reading of Hatton may have suggested.

• In relation to reasonable foreseeability, it was sufficient that the employee had previously complained about the stress of her job, had been coming into work late on a regular basis, and had told her line manager that she did not know how long she could keep going before she would become ill;
• In relation to breach of duty, O2 ought to have sent its employee home pending urgent investigation by occupational health, even in circumstances where she had not been signed off sick by her GP. The Court held that the mere suggestion of confidential counselling was not an adequate response to a situation where an employee was complaining of severe stress;
• In relation to causation, the Court inferred a sufficient causal connection between the breach and the illness, finding the series of failings by O2 to address her problems had materially contributed to her illness.
• In relation to apportionment, the Court indicated that there should be no across the board percentage reduction to damages for the contribution to the illness made by non-tortious causes, doubting the correctness of Hale LJ’s remarks in Hatton on this point.

[Thanks to Bruce Gardiner of 2 Temple Gardens, who acted for the Defendant, for providing this case summary]

Names of all ET Respondents to be published

The Information Commissioner's Office has ruled that the identity of all Respondents to employment tribunal cases has to be disclosed by the Department for Business, Enterprise and Regulatory Reform (BERR), the government department responsible for tribunal policy, under a Freedom of Information Act request.

The ICO Press Release states that "The new ruling by the Information Commissioner’s Office paves the way for the material to be released routinely once again." Details of parties to tribunal cases previously appeared in a Register, but this ceased in 2001 following concerns that commercial organisations targeted parties (including represented parties) offering to represent them in tribunal cases.

To view the Decision Notice, click here. Note that this decision is concerned with the identity of Respondents only; not Claimants. Far stronger privacy arguments will exist in connection with the identity of Claimants.

Age Discrimination - ECJ Judgment

[Thanks to Louise Jones of 1 Temple Gardens for providing this summary]

The ECJ has held, in Bartsch v Bosch, that where there is no link with Community law, it is not mandatory for a Member State to apply the prohibition against age discrimination.

Mrs Bartsch, a German national, was 21 years younger than her husband, a former BSH employee. Under their pension policy, although spouses were normally entitled to pension payments, upon his death, she was not so entitled, as BSH had a guideline that they would not make payments if the widow/widower was more than 15 years younger than the former employee. Mr Bartsch died before Germany had implemented the EC Equal Treatment Framework Directive 2000/78, and BSH imposed their guideline against Mrs Bartsch.

Mrs Bartsch challenged this in the German labour courts unsuccessfully, but the Landesarbeitsgericht (Higher Labour Court) made a reference to the ECJ: was the prohibition under Community law of discrimination on the ground of age is mandatory where the allegedly discriminatory treatment contains no link with Community law? It was also significant that the guideline had been implemented by BSH before Germany had implemented Directive 2000/78; the time-limit for implementation had yet to expire.

The Court distinguished Mangold [2005], where the national rules in question were a measure specifically implementing a directive, so the national measure had fallen within the scope of Community law. The difference in the index case was that the guidelines at issue do not correspond to measures transposing Community provisions.

The Court held that neither the Equal Treatment Framework Directive, nor Article 13 EC, enable a situation such as Mrs Bartsch’s to be brought within the scope of Community law. The kind of scheme in question was not covered by the legal framework of the Directive or Article 13.

[Thanks also to Katherine Apps of Littleton Chambers for telling me about this case]

Delay

The EAT's decision this week in Grosvenor v Aylesford School is notable simply for its bizarre facts (paras. 10-14), as well as the comment that teachers who remove their clothing on a school coach might find themselves facing a reduction in award for contributory fault (paras 35 + 36).

But it is also a reminder that:

• delay, even if it is excessive, is not normally a free-standing ground of appeal. In a case where the tribunal was giving regular consideration to the case in Chambers throughout the lengthy period of reserving the judgment, then there was no error of law to correct(paras. 2-6).
• a tribunal has a wide discretion in dealing with just and equitable extension of time and the manner in which the question is dealt with at the tribunal is unlikley to raise an error of law, taking into account the fact that the issue was flagged up early on in proceedings (para. 20).

[Thanks to Ed McFarlane of RBS Mentor for telling me about this case and providing the summary]

Time Off for Emergencies

The EAT has held, in RBS v Harrison, that entitlement to parental leave under s.57A(1)(d) of the Employment Rights Act 1996 because of the unexpected disruption or termination of care arrangements for dependents, is not limited to last minute unavailability or emergencies.

The issue that arose for consideration by the EAT was as to the meaning of “necessary” and “unexpected” in s.57A(1). RBS sought to argue that as Mrs Harrison had been notified of the unavailability of her childminder two weeks prior, the termination could not be said to be unexpected. The EAT disagreed. By a process of statutory interpretation, the EAT stated that:

• that the passage of time between the employee’s discovery of the forthcoming disruption of care arrangements and that disruption taking effect was to be considered as part of the question whether it was “necessary” for an employee to take the take off (s.57A(1))
• the word “unexpected” does not involve a time element. There was no warrant for the insertion of the words “sudden” or “in emergency” into s.57A(1)(d)

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this summary]

Fixed Term Employee's

The EAT has held, in DCSF v Fletcher, that a legal obligation limiting employment to 9 years is not - without more - enough to amount to 'justification' under the Fixed Term Employees (Prevention of Less Favourable) Treatment Regulations 2002.

The Department for Children, Schools and Families employs teachers who teach at various European Schools. Under EU secondary legislation dating back to 1994, agreed by 27 other member states, their period at the school is limited to nine years.

A teacher, Mr Fletcher, said that the 9-year rule offended the Fixed Term Employee Regulations. The EAT, HHJ McMullen QC presiding, agreed. The EAT stated that the:

• the 1999 EU Fixed Term Employee Directive impliedly repeals an earlier (1994) piece of legislation, insofar as the earlier legislation is incompatible
• if the underlying rule (9 years maximum) is not itself objectively justified, the fact it has been agreed by 27 Member States cannot - without more - justify it

This is quite a difficult issue, and permission has been given to appeal to the Court of Appeal.

October Changes to Employment Law

Here are the main changes coming to employment law next month:

• increase in minimum wage (to £5.73 for adults)
• women on additional maternity leave become entitled to the same terms and conditions of employment as when they were on ordinary maternity leave (for babies expected after 5th October)
• changes to requirements for displaying an employer's liability insurance certificate - basically, it will become okay to make an electronic copy available rather than having a hard copy on display (see here)
• Incapacity Benefit and Income Support are replaced by Employment and Support Allowance
• amendment to the Fixed Term Employees (Prevention of Less Favourable) Treatment Regulations, removing the provision that agency workers for less than three months' duration are excluded from SSP (see here for draft Regs)

for new applicants who are claiming on incapacity grounds

Age Discrimination - AG issues opinion in Heyday

The Advocate-General has handed down his opinion in The Heyday Appeal. He recommends that the ECJ dismiss Age Concern's challenges to the lawfulness of regulations 3 and 30 of the Employment Equality (Age Discrimination) Regulations 2006.The opinion is here, and a BBC news summary is here.The two key recommendations are that the Court holds:-

• that it is legitimate to allow a general justification defence, and that it is not necessary for the Regulations to define specific categories of conduct which can be justified (see paras. 56 and 57); and,
• that regulation 30 (which permits employers to dismiss employees aged 65 or over if the reason for dismissal is retirement) is not incompatible with the Equal Treatment Framework Directive provided the regulation is objectively justified within the context of national law.

So the question of whether a lawful retirement age of 65 is lawful is still very much a live issue for determination by the national courts.

EAT Procedure - Rule 3 (10) applications

The Employment Appeal Tribunal, in a judgment delivered by HHJ McMullen QC (here), has issued a robust reminder to practitioners about how the rule 3 sifting process works. It's worth reading - particularly for the cutting comments about the use of Latin in courts at paragraphs 23 and 24.

Employment Status of Directors / Majority Shareholders of a Company

The President of the Employment Tribunals, HHJ Meeran QC, has issued a Practice Direction staying all claims which involve the question of when a director and majority shareholder of a company qualifies as an employee of that company.

These claims will all be stayed until after the Court of Appeal gives judgment on this issue (in Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld). The Court of Appeal hearing is currently listed for hearing on 3rd and 4th December 2008.

The Practice Direction requires it to be posted on www.employmenttribbunals.gov.uk - but it is not yet up there.

[Thanks to Malcolm Glazier of ELAS for telling me about this]

Agreement on Holiday Dates overrides Statutory Rules

In Industry & Commerce Maintenance v Briffa, the employer gave Mr Briffa one week's notice of termination of his employment. It required him to take 4 days holiday in his last week to use up his outstanding entitlement.

An employment tribunal held that the employer was in breach of Working Time Regulations 1998 Reg 15 which requires that an employer must give notice of holiday dates "double the amount of time to be taken". Since Mr Briffa was not given 8 days notice of his holiday, taking it could not legally be required of him. He was awarded 4 days' pay in lieu of the 4 days' holiday.

The EAT allowed the employer's appeal. The original tribunal had totally overlooked that the basic requirement in WTR Reg 15 can be varied or excluded by a "relevant agreement". In this case there was a contractual term which covered the position and was legally enforceable between the parties. This was a "relevant agreement" under Reg 2 and it overrode Reg 15.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]

Claimant's Companion to Tribunal Claims

I've just come across a fabulous guide (mentioned on Naomi Cunningham's blog) written by Tamara Lewis of the Central London Law Centre, called The Claimant's Companion. It's a very practical, common-sense booklet for claimants in employment tribunals, which will help guide them through the process.

It is, needless to say, something to hand out to clients as a support guide and is not intended as a subtitute for lawyers!

Merrill Lynch & Lehman Brothers

A newsflash which will affect many employment law practitioners with claims against the big investment banks...

This morning in the US, Lehman Brothers announced it was filing for Chapter 11 bankruptcy, and Merrill Lynch have announced they are being purchased by Bank of America (for about 20% of the price their shares reached last year).

See New York Times Online for more information.

New President of EAT Announced

Just in case anyone missed the announcement over the summer, Mr Justice Underhill has been announced as the next President of the EAT. He takes over from Elias P. with effect from January 2009.

Approach to Calculating Compensation

In Adey-Jones v O'Dowd, the EAT has considered the approach to calculating a compensatory award.

Mrs O'Dowd worked in a care home run by Mrs Adey-Jones. A police investigation and internal disciplinary proceedings into suggestions that she was stealing from a patient led to Mrs O'Dowd being dismissed. Mrs O'Dowd denied the allegations and none of them were ever proved. She found new work (at lower pay) but soon became ill and had to leave that job as well.

An employment tribunal found the dismissal unfair. Awarding compensation for loss of future earnings, it concluded that the dismissal process was at least one cause of her illness, and thus included a sum to fully cover Mrs O'Dowd's losses during her sick absence. On this remedies point Mrs Adey-Jones appealed.

The EAT allowed the appeal and remitted the matter back to the same tribunal for further consideration.

HHJ Serota noted that Mrs O'Dowd's illness started some 20 weeks after dismissal, and there were ongoing investigations by the police and the local council. This must all be taken into consideration "in determining whether it could be said that it was sufficiently caused by the actions of [Mrs Adey-Jones] as would justify a finding that [she] was responsible for the illness and consequently for the loss of earnings...". Furthermore there should not be an 'all-or-nothing approach' but one that takes into account the percentage to which the employer's actions are responsible for the illness as against the other factors.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]

Flexible Working Consultation

The government has, this morning, launched a consultation to extend / revamp the right to request flexible working. The consultation will cover:

• extending the right to request contract variations to parents with children under 16 (it is currently parents of children under 6)
• methods of raising awareness of the right to request flexible working amongst the workforce;
• methods of making it easier for employers to deal with requests.

The consultation document is meant to be here, but the link isn't currently working. So, if you're interested, try the Press Release instead.

[Thanks to Eugenie Verney for telling me about this]

Restrictive Covenants Enforceable

The QBD has handed down judgment in Kynixa Ltd v Hines, a restrictive covenant case.

Mr Hynes, Ms Preston and Ms Smith worked for Kynixa. All three left and went to work for a separate organisation with which Kynixia had dealings. None of the three warned Kynixa that this was where they were going to work and it was some time later before Kynixia discovered what had happened.

In the High Court Wyn Williams J held that given the senior positions they held, all three employees were in breach of their fiduciary duties. Two were also in breach of restrictive covenants contained within a shareholders' agreement. The question, then, was whether these restrictive covenants were enforceable. They purported to bind the employees for 12 months after they ceased connections with Kynixia. It was argued that this was too long a period.

At paragraphs 130 - 141 of his judgment Wyn Williams J set out a detailed analysis of the law on restrictive covenants. He then concluded that in all the circumstances 12 months was a reasonable period and that, although the restrictive covenants were very wide, even so they were reasonable and enforceable.

[Thanks to www.emplaw.co.uk for giving permission to use their summary of this case.]