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.

Married couples and civil partners whose spouse or civil partner dies without leaving a Will are to benefit from an increase in the statutory legacy under proposals due to take place on 1 February 2009.

Concerns had been expressed that the levels of the statutory legacy were too low, currently £125,000 where there are children and £200,000 where there are not.  The levels will now go up to £250,000 and £450,000 respectively.

Head of Probate and Trusts Department, John Benson commented:"The increase will give extra protection to married couples and civil partners whose spouse or civil partner dies without making a Will.  But it also highlights how important it is for both men and women to make arrangements through a carefully drafted Will for their loved ones in the event of their deaths."

"Married couples and civil partners should not assume that when their spouse or civil partner dies, they will automatically be entitled to everything.  Individuals should make sure that their wishes are respected by making a Will."