Employment law is constantly changing.  Almost every month there are a number of important cases or new developments.  The purpose of this new page is to highlight some of the changes which may be of interest to you.  It is not a comprehensive list of all the recent changes/developments.  Please click on the links below to take you to the latest news in a particular practice area.

Business re-organisation

Business Transfers

Collective Consultation

Contractual Issues including:

- Contracts of Employment

- Breach of Contract

- Varying Contractual Terms

- Restraint of Trade and Business Secrets

Directors

Discrimination and Equal Pay

Disciplinary and Grievance Procedures

Employment Status

Employment Tribunal Hearings, Practice and Procedure

Health and Safety at Work

Human Rights, Data Protection and Monitoring

Maternity and Family Rights

Wages and Statutory Payments

Recruitment

Sickness

Termination of Employment including:

 - Unfair Dismissal

- Redundancy

- Compromise Agreements

Whistleblowing

Working Time

Please contact us if you require further information on any of the news items listed below.

Age Discrimination

Rolls Royce Plc v Unite the Union - High Court - October 2008

Giving points for length of service in a redundancy selection exercise may not amount to age discrimination if it is justifiable and /or if it amounts to an exempted benefit under the Age Regulations.  The High Court held that Rolls Royce use of length of service as part of it's matrix for selection for redundancy was lawful.

Rainbow v Milton Keynes Council - ET - October 2008

A school which limited its recruitment for a post to candidates with 5 years or less experience was found to have indirectly discriminated against a candidate with 34 years experience.  The Employment Tribunal found that the discrimination was not justified on the grounds of costs.

Discrimination on the grounds of religion or belief

Saini v Saints Haque Centre, Bungay and Paul, EAT - October 2008

The EAT held that the wording of the anti-discrimination legislation was wide enough to protect employees who are harassed because of another's (e.g. parties) religion or belief i.e. associative discrimination.

With effect from the 27 October 2008, Agency Workers will be entitled to Statutory Sick Pay if they are engaged on contracts of less than 3 months.

Pay v United Kingdom - C ECtHR - Sept 2008

The European Court of Human Rights has found that the dismissal of a probation officer as a result of his involvement in bondage, domination and sadomasochistic performances did not breach his right to a private life or his right to freedom of expression.

Dickins - v 02 PLC - Court of Appeal Oct 2008 

Once the employee had explained her difficulties at work to her manager and their effects on her health, some responsibility passed to the employer.  Management intervention was then required and the employee should have been sent home and referred to the employers occupational health department.

At a time when many face the prospect of redundancy, the need to check that proper procedures are used is of particular importance.  Failure to handle redundancies properly will lead to costly unfair dismissal claims.

Our Tip:   If redundancy is in prospect, have a clear plan of action which complies with the rules.

Changing Terms of Employment

North Lanarkshire Council v Cowan – EAT – 06/08

The Employment Tribunal held that where an employer proposes a package of interrelated measures affecting employment, employees cannot cherry pick which terms to accept and which to reject.   In the absence of agreement in respect of the whole package of measures, the proposed variations will be unilateral (and ineffective) and the original terms will remain.

Robinson v Tescom Corporation – EAT – 8/3/08

If an employee does not agree with proposed changes to their employment and if the employee does not want to resign, he/she can either agree to work the new terms under protest or refuse to work under the new contract – the employee cannot combine both options as happened in this case.

In this case the Employment Appeal Tribunal found that an employee who agreed to work under new terms of employment under protest but subsequently insisted on working on his old terms of employment had not been unfairly dismissed. Having agreed to work the new terms, the employee could not subsequently refuse to do so. 

Restrictive Covenants

WRN Limited v Ayris – High Court – 21/5/08

The High Court found that a restriction in an employment contract preventing an employee from having contact (after leaving the employment) with any of the employer’s customers was too wide. The clause should have been restricted to the customers the employee dealt with. The case is also a reminder that the reasonableness of post termination restrictions will be considered with reference to the employee’s job title at the date of entering into them and will not take into account any subsequent promotions.

50 or more Employees:

(i)       Information and Consultation

From the 6 April 2008 the Information and Consultation of Employees Regulations 2004 (ICER) will now apply to all employers with 50 or more employees. It is estimated that the ICER will potentially now apply to over 75% of UK employers.

 

The ICER require UK employers to set up information and consultation agreements governing how they will consult their employees about economic and employment related matters.

 

Employers however should not be alarmed. The obligations under the ICER are not automatic and will only arise where:

• a valid written request has been made by the employees or

• The employer has initiated the process by serving a valid notice on the employees.

(ii)       Occupational and Personal Pension 

            Schemes

The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 which introduced a requirement for employers to undertake consultation before making changes to occupational and personal pension schemes will be extended to cover undertakings with 50 or more employees.

The Right to Annual Leave during Sick Leave

Schultz-Hoff v Deutsche Rentenvericherung Bund – ECJ – 28/2/08

The Advocate General has now handed down his opinion on the entitlement to annual leave after a period of absence due to illness.

The Advocate General has said that:

• workers unable to take leave due to illness in any leave year are entitled to take that leave when they return to work even if they return in a subsequent leave year.

• If employment has been terminated, a payment in lieu of that leave must be made.

Increased Rates for Statutory Maternity Pay, Statutory Sick Pay, Statutory Paternity Pay and Statutory Adoption Pay

From the 6 April 2008, the above rates have been increased to:

• Statutory Maternity Pay - £117.18 per week

• Statutory Sick Pay - £75.40 per week

• Statutory Paternity and Adoption Pay - £117.18 per week

National Minimum Wage Increases for October 2008

The Government has announced that the National Minimum Wage will be increased on the 1 October 2008 to:

• Adult Rate - £5.73 per hour

• Development Rate - £4.77 per hour

• 16 – 17 year olds - £3.53 per hour

Burrow Down Support Services v Rossiter – EAT – 26/6/08

The EAT confirmed a night watchman was entitled to the national minimum wage for all working hours, including those during which he slept.

Neufeld v (1) A & N Communications In Print in Liquidation (2) Secretary of State for Trade and Industry - EAT – 11/4/08

The Employment Appeal Tribunal found that a controlling shareholder in a Company which was placed in liquidation was an employee and was entitled to a statutory redundancy payment, notice pay and holiday pay from the Secretary of State for Trade and Industry.

Unrepresented Litigants in the Employment Tribunal

Hyde-Walsh v Ashby and Others – EAT 19/2/08

The Employment Appeal Tribunal has held that Tribunals are not under a duty to consider claims that Claimants in person ought to have brought but did not bring even if such claims are fairly evident from the facts of the case.

Disability Discrimination

Coleman v Attridge Law and Law – ECJ – 17/7/08

The European Court of Justice has ruled that the Equal Treatment Framework Directive protects employees who are not disabled but endure direct discrimination and/or harassment because they are associated with a disabled person. The Claimant in this case was a carer of a disabled person and felt she had been discriminated against because of that.

London Borough of Lewisham v Malcolm – HL 25/6/08

The House of Lords considered the definition of disability related discrimination and found that:

(i)   An employer cannot be liable for discrimination unless it knows, or ought to have known of the disability

 

(ii)   the disability must have played a motivating part in the decision of the alleged discriminator to inflict the treatment complained of

 

(iii)   the correct comparator is a person who does not have the disability but whose circumstances are similar.

Amendments to Sex Discrimination Act 1975

The Sex Discrimination Act 1975 has been amended. The definition of sex harassment has been widened and employers have been made liable in certain circumstances for the harassment of an employee by a third party (e.g. a customer or supplier). The definition of discrimination on the grounds of pregnancy or maternity has also been slightly amended to remove the need for a formal comparator of any kind.

Age Discrimination

Wilkinson v Springwell Engineering Ltd - ET - 25/2/08

The employee was 18 years of age. The Tribunal found the Employer had made stereotypical assumptions founded on age to the detriment of the employee and had assumed a relationship between experience and age and capability. The employee was awarded £5,000 for injury to feelings and loss of earnings up to the date of the hearing and future losses of 26 weeks. In addition the Tribunal also applied an uplift to the compensation on the basis that the employer had failed to follow any procedure before dismissing her.

Race Discrimination

Ladele v London Borough of Islington – ET – 30/05/08

The Employment Tribunal found that a Registrar of Births, Deaths and Marriages had been discriminated against on the grounds of her religion by requiring her to participate in civil partnership services against her orthodox Christian beliefs – that particular duty could have been allocated to others, without any adverse impact on the Employers services.

Noah v Sarah Desrosiers t/a Wedge – ET- 29/5/08

A hair salon refused to offer a job to a Muslim hairdresser who insisted on wearing a headscarf because it was essential to her beliefs. The hair salon argued it was a requirement of the job for a hair stylist’s own hair to be on show. The Employment Tribunal found this amounted to indirect discrimination on the grounds of religion.

Disciplinary Procedures

Yorkshire Housing Ltd v Swanson – EAT -12/6/08

The Employment Appeal Tribunal confirmed that an unreasonable delay in complying with any step of the standard dismissal and disciplinary procedure is to be regarded as non-completion of the statutory procedures despite the fact both parties continue with the procedure to its conclusion. The consequence is that the employee could be regarded as automatically unfairly dismissed. In this case there was a delay of 5 months between the disciplinary hearing and notification of the outcome to the employee.

Grievance Letter

Bottomley v Wakefield District Housing –EAT - 08/1/08

Employees who were transferred to a new employer under TUPE were not prevented from bringing an Employment Tribunal claim against their new employer based on a grievance addressed to their previous employer, provided it has actually been sent to the new employer.

Procek v Oakford Farms – EAT – 02/7/08

The Employment Appeal Tribunal decided that a written complaint which stated that it was informal, nevertheless triggered the statutory grievance procedure.