Employment Law Bulletin – Issue 135 – 16 October 2012

Tuesday 16 October 2012

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Employment news

Carillion workers accused of race discrimination
White managers at a hospital in Swindon working for outsourcing firm Carillion, have been accused of race discrimination. The allegations are made in a claim filed at the Employment Tribunal. It is alleged that white managers demanded gifts and cash from workers of Goan origin before agreeing to grant holidays. Click here to read the news article.

Shared Parent leave
The coalition Government is soon to announce plans for fathers to be able to take time off work and claim state benefits throughout the majority of the first year of their baby's life, if the mother returns to employment. The proposed change will allow families to decide which parent should return to work and who should stay at home to look after the children. In theory, the main household earner, if the mother, will be able to return to work after just a fortnight leaving the father holding the baby. Click here to read more on this

Employment case law

Court of Appeal

National minimum wage | Domestic Workers

Nambalat v Taher & Ors [2012] EWCA Civ 1249 (05 October 2012)
The Court of Appeal (Pill LJ, Black LJ and Bean J) had the task of construing section 1 of the National Minimum Wage Act 1998 and Regulation 2(2) of the National Minimum Wage Regulations 1999 in the context of migrant domestic workers. The Court considered that the central issue in the appeals was "whether the appellant is treated as [a member of that family] in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities". In dismissing the appeal (Pill LJ giving the judgment of the Court) the Court stated inter alia:

"..it is for the Employment Tribunal to assess, having regard in particular to the factors stated in (a)(ii), whether the worker is treated as a member of the family. The Tribunal must keep in mind that it is for the employer to establish that the conditions in regulation 2(2) are satisfied and that onerous duties may be inconsistent with treatment as a member of the family. Tribunals will need to be astute when assessing whether an exemption designed for the mutual benefit of employer and worker is, or is not, being used as a device for obtaining cheap domestic labour."

Click here to read the full decision.

Employment Appeal Tribunal

Sex/race Discrimination | Application to Dismiss at close of Claimant's evidence

Timbo v Greenwich Council for Racial Equality [2012] UKEAT 0160/12 (2 October 2012)
In a claim for race and sex discrimination, following the conclusion of the Claimant giving her evidence after three days, the respondent made a successful application of "no case to answer" and the Employment Tribunal "dismissed" the claims. On appeal to the EAT (HHJ Richardson) the ET's decision was overturned. Restating with approval the decisions in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 and Williams v Real Care Agency [2012] UKEATS/0051/12, among others, the EAT decided that it would rarely be appropriate for a claim to be dismissed part way through a hearing and had this to say at paragraph 50 of the judgment:

"In truth, this was not a particularly unusual case: it was representative of a particular kind of case which tribunals hear. It is the common experience of tribunals that some claimants who perceive - rightly or wrongly - that their employer has been guilty of unlawful discrimination tend to attribute all manner of problems and reversals at work to unlawful discrimination. Once they suspect discrimination - rightly or wrongly - they tend to see it everywhere. When such a claimant gives evidence some of the matters about which they complain appear to bear no relationship to sex or race discrimination: they appear to be innocuous; or justified conduct toward the employee; or even the product of bad management or administration unrelated to any question of sex or race. By half time such an employee's credibility may be severely dented. It is nevertheless the usual practice of tribunals to hear all the evidence and determine such cases on their merits to see whether there is any underlying truth in the allegations. This is the correct and appropriate course where there is a crucial core of disputed fact which is not susceptible of determination except by hearing and evaluating evidence."

Click here to read the full decision.

Notices & coming events

The ELA will be holding a "Remedies Master Class" at the Mermaid Centre, Puddle Dock, Blackfriars, London, EC4V 3DB. The Speakers will be Thomas Linden QC and Andrew Smith of Matrix Chambers. The session will start at 6.30pm and attracts 1.5 CPD points. Click here for further information.

ELBA will be hosting a meeting tonight with guest speaker Helen Mountfield QC speaking on "Public Sector Equality Duties for Employment Lawyers". The meeting will commence at 6pm in room 2.04 on the second floor of LSE's New Academic Building in Lincoln's Inn Fields. The meeting will be followed by drinks and nibbles at Cafe 54 on the ground floor of the building.

Garden Court is hosting an inaugural Garden Court Human Rights Film Festival during October and November 2012. It comprises six film screenings exploring different human rights issues connected with the work we do, followed by panel discussions. For more details, click here.

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