Employment Law Bulletin - Issue 125 - 1 May 2012

Tuesday 1 May 2012

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Employment news

Austerity bites: Black graduates pay price in jobs crisis as majority fail to find work
Just four out of ten black students are in full-time employment six months after leaving university, new figures have shown. Click here to read the news story.

Workers' Memorial Day rally held in Manchester
This annual event which took place last Saturday, is held to remember those killed in the workplace and to promote workplace health and safety. Although workers are now safer than ever before, records show that over the past two years 45 workers were killed at work in the North West alone. Workers and family members marched from the CIS Building to a rally in Albert Square, Manchester. Click here to read the news story.

Still waiting...
Employment lawyers are still awaiting the government response to the call for evidence on Collective Redundancy which closed on 31 of January this year. Click here for more information.

Employment case law

Europe

Discrimination | Recruitment

Meister v Speech Design Carrier Systems GmbH, Case C-415/10 EC (19 April 2012)
The European Court of Justice, considering Council Directive 2000/43, has held that an employer is not obliged to provide an unsuccessful job applicant with information on the successful candidate, although a failure to do so could lead to an inference of discrimination in a subsequent tribunal claim. Click here to read the decision.

Supreme Court

Age Discrimination|Mandatory retirement

Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16 (25 April 2012)
The Supreme Court (Lady Hale) dismissing the appeal by the claimant, held that three of the reasons put forward by the respondent in justification of indirectly discriminating on the grounds of his age, were in pursuit of a legitimate aim and so the compulsory retirement of the claimant was not unlawful. The Court stated that the aims of staff retention, workforce planning (the "sharing out professional employment opportunities fairly between the generations" aim) and of limiting the need to expel partners by way of performance management, (the "dignity" aims) were not individual aims of the respondent business but rather, the sort of social policy aims contemplated by the Council Directive 2000/78/EC. Click here to read the full decision.

Indirect Age Discrimination

Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 (25 April 2012)
The claimant started working for the respondent aged 51 following retirement from the police force. When he was appointed, a law degree or equivalent was not essential if the post holder had exceptional experience/skills in criminal law, combined with a lesser qualification in law. The recruitment criteria later changed to include a requirement (the third threshold) for a law degree. This was so as to assist the respondent to attract suitably qualified staff. In 2006, the claimant was re-graded to the first and second thresholds, but not to the third, as he did not have a law degree. In overturning the decisions of the EAT ([2009] ICR 223) and of the Court of Appeal ([2010] EWCA Civ 419, [2010] ICR 987). Lady Hale remitted the case to the ET for consideration of whether the difference in treatment of the claimant was justified. Click here to read the full decision.

Court of Appeal

Worker or employee?

Ajar-Tec Ltd v Stack [2012] EWCA Civ 543 (26 April 2012)
The Court of Appeal (Elias J) upheld the decision of the EAT reversing the ET ruling that the claimant was neither an employee or a worker and so dismissing his claims for constructive unfair dismissal and unauthorised deduction from wages at the PHR. The ET decision appears to have been based on a finding that there was no contract of employment as there was no agreement as to how much the claimant would be paid. This was an error of law as it is inconsistent with the principle that there may, in an appropriate case, be an implied contractual term to pay a reasonable sum for work done. Click here to read the decision

Possible proceedings in the High Court | Staying of ET proceedings

Halstead v Paymentshield Group Holdings Ltd [2012] EWCA Civ 524 (25 April 2012)
The court of Appeal upheld the decision of the ET and reversed that of the EAT in deciding that the Employment Judge was correct in refusing the respondent's application for a stay. The Court stated (Pill LJ) that it would be wrong in principle to deprive the claimant of a remedy which statute has provided for him because he has chosen, without commencing proceedings in the High Court, to indicate lines of claim which may be available to him there. By ventilating the possibility of such a claim, and stating an intention to pursue it, he has not deprived himself of his statutory right to make a claim in the Employment Tribunal. Click here to read the judgment.

Employment Appeal Tribunal

Employment status

Quashie v Stringfellows Restaurants Ltd [2012] EAT 0289/11/2604 (26 April 2012)
The EAT (HHJ McMUllen QC) held that the ET had erred in its finding that the claimant was not an employee, as there was clear evidence that a mutuality of obligations existed between the parties on each night she worked in the respondent club. Click here to read the decision.

Rule 54(2) of schedule 1 & rule 8 of schedule 2 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

Rahman v Commissioner Of Police Of The Metropolis & Anor [2012] EAT 0076/09/2504 (25 April 2012)
The EAT (Mitting J) ruled, in allowing the cross-appeal that a special advocate can be appointed "in any proceedings in which there is an excluded person", not just those in which a minister makes a direction or addresses the ET with a view to the making of an order under rule 54(2) / rule 8(1). It further ruled that in proceedings where such an order has been made, the special advocate is prohibited from communicating with the excluded person the written grounds on which the respondent resists the claim. Those grounds include all of the written material, both open and closed, which has been supplied to the special advocate. Click here to read the decision.

Events

Employment Law and Human Rights
Thursday 31 May
18:30 - 20:00

Garden Court Chambers Employment, Discrimination & Professional Regulation team will be hosting an evening seminar. The speakers will be Shereener Browne, David Renton and Catrin Lewis. Further details will be available soon on the Garden Court Chambers website.

Industrial Law Society's Spring Conference
Saturday 19 May 2012

The conference will be held at the offices of UNISON, UNISON Centre, 130 Euston Road, London, NW1 2AY. Click here for further information.

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