Employment Law Bulletin – Issue 120 – 21 February 2012

Tuesday 21 February 2012

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Employment news

Consultations update
The MOJ consultation on fees in the ET and EAT is open until 6 March 2012. Click here for more information.

Draft Order now published: single judge shall hear Unfair Dismissal claims
The draft Employment Tribunals Act 1996 (Composition) Order 2012 has now been published. When it comes into effect, unfair dismissal claims will ordinarily be heard by a single Judge rather than by a full panel. Although the date when it will come into effect has not been published, it is likely to be 6 April 2012.

Draft Order published: Unfair Dismissal to require two years' qualifying service
The draft Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 has now been published and will come into effect on 6 April 2012. Its effect will be to introduce a two year qualifying service requirement for unfair dismissal claims, to apply to all employees taken on by their employer after 6 April 2012. For those taken on before that date, the present one-year requirement will apply.

Unemployment figures - numbers seeking work rise
The unemployment figures for December 2011 have now been released, showing a total increase to 2.67 million. Source: Guardian.

Retirement deferred
New research from Prudential suggests that as many as 1/10 of those workers who had originally planned to retire in 2012 have deferred their retirement date, citing concerns about the amount of their pension. Source: Pensions.co.uk.

Strikes against bullying
Thousands of council and hospital workers have gone on strike in separate disputes in Swindon and Cheshire about bullying and changes to workers' terms and conditions. Source: Press Association.

New employment blog
David Renton of Garden Court Chambers has launched a new employment law blog, focussing on employment law practice and the policy debates surrounding the future of the Tribunal system. Click here to read the blog.

Employment Case Law

Supreme Court

Territorial jurisdiction

Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1
The protections set out in the Employment Rights Act 1996, including the protection against unfair dismissal, extend to England and Wales and Scotland (section 244(1)). Where it is unclear whether an employee was employed in any of these countries, the test as to whether they come within the statutory protection is to be found in the common law. The following workers were said by Lord Hoffmann in Lawson v Serco Ltd [2006] UKHL 3 to be protected: employees who were working in Great Britain at the time of their dismissal, expatriate employees and peripatetic employees. In a case before the Supreme Court, their Lordships had to decide whether this list was intended to be exhaustive. The claimant worked back-to-back in Britain and then overseas, sharing his duties with another worker, and was posted successively to Algeria and then Libya. He did not live abroad full-time and was not an expatriate. The key consideration, Lord Hope indicated, was whether a worker had a stronger connection with Great Britain than with the foreign country where he worked (para 27). The claimant, although working in Libya, was employed by a multinational company with a British base. He lived in Britain, and his employment contract reserved the determination of any disputes to the British courts. For all these reasons, it was determined that the Tribunal did have jurisdiction to hear his claim. For the full judgment, click here.

Court of Appeal

Employee status

Tiffin v Lester Aldridge LLP [2012] EWCA Civ 35
Only an employee can bring a claim of unfair dismissal (section 98 Employment Rights Act 1996). As a principle of common law an individual cannot be an employee of himself. Nor can a partner in a partnership be an employee of the partnership, because it is not possible for an individual to be an employee of himself and his co-partners. In determining whether a partner is an employee, there is in effect a strong but not irrebuttable presumption against a finding of employee status. The determination is likely to revolve around the terms of any agreement between the parties. In the case of a business which distinguished between "salaried" employees with no capital stake in the business (i.e. employees) and "full equity" partners, who were clearly not employees, the Court of Appeal had to consider the situation of "fixed share" partners, operating somewhere between these two margins. Fixed share partners had voting rights at company meetings, although not as many rights as full equity partners; they also had a capital stake in the business, although less of a stake than full partners. The parties' intentions pointed clearly, the Court held, towards creating a partnership. In these circumstances, the Claimant was not an employee. For the full judgment, click here.

Discrimination on grounds of Sexual Orientation

Bull & Bull v Hall & Preddy [2012] EWCA Civ 83
It is unlawful to discriminate directly against a person on grounds of their sexual orientation (sections 12 and 13, Equality Act 2010), but is there direct discrimination where the intention is to discriminate against sexual acts rather than orientation, i.e. where a discriminator discriminates against both heterosexuals having sex outside marriage and homosexuals having sex outside marriage? Yes, the Court of Appeal has held, in a case concerning hoteliers who refused hotel rooms to a gay couple. There is direct discrimination because to apply these criteria is to discriminate against gay people in civil partnerships. There is discrimination because some heterosexual people would escape the detriment and no gay person could. The hoteliers argued that article 9 of the European Convention protects the beliefs of religious people and should be read so as to protect landlords who rent out rooms in their home. The Court disagreed, holding that in so far as the prohibition on discrimination on grounds of sexual orientation limits the manifestation of religious beliefs, the limitations are necessary in a democratic society for the protection of the rights and freedoms of others. For the full judgment, click here.

Employment Appeal Tribunal

National Minimum Wage

Singh v The Members Of The Management Committee Of The Bristol Sikh Temple & Ors [2012] EAT 0429/11
For a worker to be entitled to the National Minimum Wage there must be an agreement between the Claimant and the Respondent under which the Claimant owes a contractual obligation to serve personally (section 54(3)(b) of the National Minimum Wage Act 1998). In a case concerning a Sikh Granthi or priest, where the Respondent maintained that there was a culture of voluntarism which was inconsistent with an intention to create legal relations, the EAT held that he Tribunal had failed to distinguish between the position of the congregants (for whom donations might well be voluntary) and the Temple as a whole, who might or might not have a discretion to pay, is sufficient money was available. Accordingly, the matter was remitted to the Tribunal for reconsideration. For the full judgment, click here.

Sexual Orientation Discrimination

Bivonas LLP & Ors v Bennett [2011] EAT 0254/11
In order to succeed in establishing a case of direct discrimination a Claimant must show that he has been treated less favourably (section 13(1) Equality Act 2010). Less favourable treatment is established if a reasonable worker would or might take the view that the treatment accorded to her had, in all the circumstances, been to her detriment; it is not necessary to demonstrate separate physical or economic loss (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337). Where a gay solicitor was confronted with a note in which it was said that he inappropriately instructed a barrister, referred to as "his batty boy mate", the EAT agreed with the ET that this was plainly a detriment and there was no need for the Tribunal to engage in a painstaking exercise as to how a hypothetical comparator might have been affected. For the full judgment, click here.

Reasonable adjustment

Roberts v North West Ambulance Service [2011] EAT 0085/11
Section 20(3) of the Equality Act 2010 provides that where a provision, criterion or practice (PCP) of an employer's puts a disabled person at a substantial disadvantage the employer is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage. This in turn raises the question of whether the disabled person must actually be disadvantaged by the PCP? In the present case, an employer required its workers to hot-desk. There was no dispute that this would disadvantage a Claimant suffering from social anxiety disorder, however the employer maintained that the Claimant had never actually been disadvantaged in this way, and accordingly that the reasonable adjustment claim could never (as it were) get off the ground. The Tribunal agreed, but its decision was overturned on appeal, the EAT holding that the ET had imported a requirement that the statutory language did not supply. As a matter of general principle, the EAT maintained, Tribunals should follow the statutory language closely, and should apply the statutory test, which is to ask: whether a PCP applied and whether it disadvantaged the Claimant. Accordingly, the matter had to be remitted to the Tribunal for further consideration. For the full judgment, click here.

Further and better particulars

Amin v Wincanton Group Ltd [2011] UKEAT 0508/10
If a Claimant fails to particularise a part of their Claim in their ET1 form, and their claim remains unamended, the Tribunal has no jurisdiction to hear that part of their claim (Ahuja v Inghams [2002] EWCA Civ 1292). What however should be done where a Claimant has identified a claim in their claim form, albeit sketchily, and has been ordered to provide further and better particulars and has failed to do so? The EAT has held that, in these circumstances, the Tribunal does have jurisdiction to hear a claim. In a case where the Tribunal dismissed a claim, wrongly finding that it had never been pleaded, the EAT determined that it had no choice but to remit the matter to a fresh Tribunal for proper consideration. For the full judgment, click here.

Notices & coming events

The Role of Lay Members in Employment Rights Adjudication (Tuesday 21 February 2012)
Susan Corby and Paul Latreille will address the Industrial Law Society's evening meeting. More details from the ILS website.

Marketing your practice: practical tips and ideas from the Bar and from solicitors (Thursday 23 February at 6pm)
Bingham Room at Gray's Inn

Martin Griffiths QC and Gareth Brahams & Ruth Badrick of Stewarts Law LLP will address the Employment Law Bar Association's evening meeting.

 

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