Employment Law Bulletin – Issue 116 – 13 December 2011

Tuesday 13 December 2011

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Employment News

UK tops long hours league

New figures from UK National Statistics suggests that the average working week for UK office workers is 43 hours per week, the second highest in Europe, including an average of 1.2 hours of unpaid work per day. For more, click here.

Unilever in pensions dispute

Unilever, the company founded by Lord Lever as a model workplace at Port Sunlight, is facing industrial action after workers voted to strike against the company's proposals to close its final salary pension scheme. For more, click here.

Employment Case Law

Supreme Court

Working time

Russell & Ors v Transocean International Resources Ltd & Ors (Scotland) [2011] UKSC 57
Regulation 13A of the Working Time Regulations 1998 entitles workers to 5.6 weeks of annual leave per year. For most workers, the nature of the job requires them to work an ordinary working week of five days per week, and annual leave may be taken during the ordinary working week. For others, such as teachers, the working pattern has to take account of the fact that the organisation for which they work is open for some periods of the year and is closed for others. It is customary in these sectors for the employer to ask workers to take leave only during holidays. In the case of teachers, in particular, this arrangement causes no practical difficulties as the total amount of leave is considerably more than the statutory minimum and the workers suffer no prejudice from it. What however of groups such as offshore oil and gas workers, whose contracts provide for alternate fortnights of time on duty and time off, and the employer insists that annual leave may only be taken during the time off? The Supreme Court has held that in circumstances where an employer insists that leave is taken during time off, provided that the contract allows for a genuine break, and does not have an adverse effect on the workers' health or safety, the contractual arrangements will be upheld. Interestingly, the Court held (albeit obiter) that the same considerations might not apply if the employer insisted on a worker taking leave during specified days (eg Friday to Sunday, if the worker worked only on the first four days of a week) and did not allow the worker full weeks of leave. For the full judgment, click here.

Court of Appeal

Equal pay

Birmingham City Council v Abdulla & Ors [2011] EWCA Civ 1412

Section 2(1) of the Equal Pay Act 1970 enables workers to bring equal pay claims in the Employment Tribunal. The ordinary limitation period is 6 months after the last date on which the Claimant was employed in the relevant employment. Claims may alternatively be brought in the civil courts, where the limitation period is 6 years. Where a claim is brought in the civil court after the 6-month Tribunal limitation period has expired, should the court transfer it to the Tribunal (knowing that the claim shall be struck out)? The Court of Appeal has held that if such an approach were adopted it would have the draconian consequences of depriving the Claimants of their rights to pursue claims which they had brought in time in a court having jurisdiction to determine them on their merits; and there would be nowhere else available for the Claimants to have their claims determined on their merit. Accordingly, the Court has held that claims of this sort can be heard in the civil courts even after the 6-month Tribunal limitation period has expired. For the full judgment, click here.

Burden of proof

Country Style Foods Ltd v Bouzir [2011] EWCA Civ 1519
Section 54A of the Race Relations Act 1976 provides that where a Claimant proves facts from which the Tribunal could conclude that the respondent has discriminated, the Tribunal shall uphold the complaint unless the respondent proves that he did not discriminate, and there is like provision in section 136 of the Equality Act 2010. In a case where an employer required a job applicant to have his immigration documents signed by a police officer, but declined to complete his interview after he returned from the police station; failed to answer the statutory questionnaires; and provided an inaccurate explanation for not offering him employment; the Court of Appeal determined that these were sufficient facts so that the ET could properly conclude, in the absence of an adequate explanation, that the Company had committed an act of discrimination on grounds of race and that the first stage of the reversal of the burden of proof was satisfied. For the full judgment, click here.

Remission on appeal

Ministry of Defence v Cartner [2011] EWCA Civ 1516
Where the Employment Appeal Tribunal, or a higher court, determines that a first instance decision maker has directed themselves wrongly on the law, the case must be remitted back to the first instance Tribunal, unless there is a correct conclusion which is "plain and unarguable" on the material before the court (Hellyer Brothers Ltd v McLeod [1987] ICR 526). In a case concerning the failure of the Royal Navy to promote a female Warrant Officer where the Employment Tribunal had made findings of fact as to the operation of a provision, criterion or practice, and these findings had been shown to be erroneous, the Employment Appeal Tribunal was wrong to hold that the Tribunal was "entitled to" reach this decision, and uphold the decision without remitting the case to the Tribunal. The EAT should have asked whether the original decision was plainly and unarguably right; and if this test was not satisfied, the case was required to be remitted. For the full judgment, click here.

Employment Appeal Tribunal

Aggravated damages

Commissioner of Police of the Metropolis v Shaw [2011] UKEAT 0125/11
In a case which concerned unfounded disciplinary charges against a serving police officer which were collusively supported by more senior officers, the President of the Employment Appeal Tribunal has set out a number of rules as to the relationship between ordinary damages for injury to feelings in discrimination cases, and aggravated damages. In particular, the EAT determined that compensation for "whistleblower" claims should be assessed on the same basis as awards in discrimination cases; an award of £20,000 for aggravated damages was outside the recognised range for such awards; and, even in circumstances where an element of aggravated damages was appropriate, an overall award of £37,000 was excessive. The EAT in addition questioned whether the practice of distinguishing between awards for injury to feelings and aggravated damages was desirable and suggested that the better course would be to include the aggravating features without separate quantification in the overall award. For the full judgment, click here.

Marital discrimination

Dunn v The Institute Of Cemetery And Crematorium Management [2011] UKEAT 0531/10
Section 3 of the Sex Discrimination Act 1975 prohibits discrimination against married persons and civil partners in the employment field, and there is like provision in section 8 of the Equality Act 2010. As the Employment Appeal Tribunal noted, in a decision concerning a woman who complained of differential treatment by her employer because her husband was perceived as a troublemaker, the original purpose of the Act was to prevent employers from dismissing women when they got married. However, there was authority to the effect that a complainant is protected from discrimination on grounds of their marriage to a particular person, and in any event this was the only reading compliant with article 8 ECHR. For the full judgment, click here.

Notices & Coming Events

Elias LJ will address the Industrial Law Society's meeting on Religious Discrimination on 13 December. More details from the ILS website.

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