Employment Law Bulletin - Issue 124 - 17 April 2012

Tuesday 17 April 2012

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Employment News

Call for evidence update
The government's call for evidence on no-fault dismissals for micro-businesses remains open until 8 June 2012. Click here to view the consultation.

Strikes due on London Underground
Workers who maintain and upgrade the Tube network have voted by a large majority in favour of industrial action. Click here for more information.

Link between shift-work and ill-health
Shift-workers may be vulnerable to obesity and type 2 diabetes, according to new research published in the journal Science Translational Medicine. Click here to read more.

Olympics link to poor work conditions
Workers employed by Olympics sponsor Adidas' factories in Indonesia describe working long hours in unsafe conditions below the country's minimum wage, and being ordered to lie about their conditions to factory inspectors. Click here for more information.

Civil claim by former police officer result in £800,000 damages
Sultan Alam a former policeman who complains that he was subject to racial discrimination and wrongly jailed after he brought a Tribunal claim against Cleveland Police, has been awarded over £800,000 in damages following a civil claim against the force. Click here to read more.

Employment Case Law

Court of Appeal

Equal Pay

Council of the City of Sunderland v Brennan & Ors [2012] EWCA Civ 413
The Court of Appeal has upheld its own previous reasoning in Armstrong v Newcastle upon Tyne NHS Hospital Trust [2006] 1 IRLR 124, that where an employee succeeds in showing that there was a pay differential between groups of workers, the tribunal must go on to decide first, whether the difference had nothing to do with sex, and only then second whether the discrimination was objectively justified. This decision will be controversial, because on the face of it, it is a different test from that applied in leading decisions of the European Court of Justice (which avoid the second stage altogether) and because it appears to give the employer two defences to a claim. The Court accepted that there is a "tension" between its approach and that of the ECJ, but went on to say that this tension was more apparent than real; as "where the statistics show that the pay practice has produced an adverse impact on women over a long period and where the statistics are convincing, it will generally be difficult for an employer to show that the adverse impact had nothing to do with sex". In its substantive decision, the Court was faced with a perversity appeal that the Tribunal had misdirected itself as to the source of the higher payments made to one of the male comparators. The Court accepted the Appellant employer's criticisms of this part of the ET decision, but held that the appeal failed since, to succeed in a perversity appeal, an Appellant must show not merely that a part of the decision was perverse but that the whole decision was perverse and the Appellant had not done so. Accordingly it upheld the findings of the Tribunal that the Claimants' work was of equal value to that of male comparators and that the difference was in pay was discriminatory and not justified. For the full judgment, click here.

Retirement

R & R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410
Schedule 6 of the Employment Equality (Age) Regulations 2006 (now repealed) required the employer, where a worker approached the employer's normal retiring age and the employer was minded to retire him, to notify the employee of its intention to retire him at a particular date and gave the employee the right to request that he be kept on for a further period. Where an employee requested a period of further employment, the employer was not bound to accede to the employee's request. Where an employer followed the scheme, the reason for the dismissal was deemed to be retirement. This was significant for many purposes, including entitlement to redundancy payments. In a case where an employer sent an employee a "minded to" letter, but made no express reference to the statutory scheme under which the employee would have to respond, the Court of Appeal held that this deficiency meant that the dismissal did not come within the statutory scheme. For the full judgment, click here.

High Court

Disclosure

Buq v HRE [2012] EWHC 774 (QB)
The High Court has a wide jurisdiction to hear many sorts of claim; and in certain cases (for example equal pay claims), a claimant may bring their case in either the High Court or the Employment Tribunal. Unlike the ET, the High Court has the power to make injunctions. But should this power be used to prohibit the disclosure of information in what are intended to be Tribunal claims? The High Court has held that it should not be used to pre-empt disclosure applications in the Tribunal, in a case where an employer obtained Non-Disclosure Orders on an ex parte basis, and they were then challenged by an employee, who sought to use the prohibited material in a Tribunal claim. The Tribunal has sufficient powers, the High Court held, to determine its own procedure without any need for parallel High Court proceedings. For the full judgment, click here.

Employment Appeal Tribunal

Reasonable adjustments

Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley [2012] UKEAT 0417/11
Section 20 of the Equality Act 2010 provides that where a disabled person is substantially disadvantaged in comparison with persons who are not disabled, the employer must take such steps as it is reasonable to have to take to avoid the disadvantage. In a claim where a disabled worker's application for an Injury Benefit to be paid to NHS employees was allocated to a junior members of the personnel department and the application was not processed, the EAT has held that this "practice" could not qualify for reasonable adjustments for two reasons: first, any inefficiency by personnel must apply, by its very nature, equally to disabled and non-disabled persons, second, on a careful reading of the facts the Claimant had been paid a salary equivalent to what she would have received on this benefit.

The Employment Appeal Tribunal went on to find that an award of £40,000 (£30,000 Vento damages plus £10,000 aggravated damages was too high). The EAT held, following the recent decision in Commissioner of Police of the Metropolis v Mr H Shaw EAT/0125/11, that aggravated damages should not have been awarded. The EAT's reasoning is brief, but it appears to have accepted the submissions of the Respondent that in a reasonable adjustment case (as distinct from a harassment claim) damages should only exceptionally be above the second band of Vento. For the full judgment, click here.

Notices & coming events

Struck Out: Why Employment Tribunals Fail Workers and What Can Be Done
Tuesday 24 April

David Renton of Garden Court chambers' Employment, Discrimination and Professional Regulation Team will be launching his new book Struck Out: Why Employment Tribunals Fail Workers and What Can Be Done, at Garden Court Chambers. Please contact David at davidr@gclaw.co.uk if you would like to attend.

Preparing for battle
Wednesday 25th April at 6pm

Naomi Cunningham will address a Practitioner Group Meeting of the Discrimination Law Association on 'Preparing for battle - a practical talk for claimants and advisors in preparing for complex discrimination hearings', at the offices of Russell Jones & Walker, 50-52 Chancery Lane, WC2A 1HL.

 

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