Employment Law Bulletin - Issue 136 - 13 November 2012

Wednesday 14 November 2012

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Employment news

Government to extend flexible working rights and implement flexible parental leave
The Government has announced in a response to its own previous consultation plans to enable mothers, from 2015, to end their maternity leave before its end and share some of it with their partner. The Government has also announced plans to extend the right to request flexible working, at present only open to those with caring responsibilities, to all employees with 26 weeks' service (whether they have caring responsibilities or not), from 2014. Click here to read the consultation paper.

Consultations remain open
Meanwhile the Government's consultations on settlement agreements and Tribunal procedure remain open are open until 23 November 2012.

Young workers report reduced job security
According to the Office for National Statistics' quarterly Job Security Index, the proportion of workers aged 18-24 describing themselves as confident of retaining their present employment has fallen from 82% at the start of the year to 76% by this October.

European Court of Human Rights

Discrimination on Grounds of Political Belief

Redfearn v United Kingdom, application no. 47335/06
Section 10 of the Equality Act 2010 outlaws discrimination on grounds of religion or belief. Sub-section 10(2) defines belief as "any religious or philosophical belief". In previous decisions of the UK courts, it has been held that as a matter of domestic law, a qualifying belief must (i) genuinely held, (ii) a belief and not a mere opinion, (iii) a belief as to a weighty and substantial aspect of human life and behaviour, (iv) cogent, and (v) worthy of respect in a democratic society (Grainger v Nicholson [2009] EAT 0219/09). The fifth of these requirements must now be in doubt as a result of a decision of the European Court of Human Rights that the article 11 (freedom of association) rights of a former BNP councillor were infringed where that councillor was dismissed on grounds of his political opinions and he could not bring a claim of unfair dismissal not having a year's qualifying service. The Court found that the consequences of his dismissal were serious and he had the protection of article 11. At the time of his dismissal, UK employment law did not prohibit discrimination on grounds of religion or belief, and those seeking protection from dismissal had to bring "ordinary" unfair dismissal claims to which the (then) one-year continuous service requirement applied. Accordingly, the ECHR held that UK employment law did not adequately protect the applicant.

Practice note: This is an unusual and potentially an important case. In so far as it protects membership of a racist party, it is hard to see how it can be squared with the ECHR's previous decision in Aslef v UK [2007] IRLR 361, which found that unions, and by extension employers whose duties originate in the same legislation, have article 11 rights and are entitled not to associate with persons unwelcome to them.

In so far as the case relates to Convention rights generally, it is surprising but perhaps welcome. On the face of it, the UK Equality Act 2010, to which it relates, gives domestic effect to European discrimination law, rather than the Convention, and the claim "should" have been brought in the European Court of Justice rather than the ECHR. Few practitioners would have predicted that article 11 goes so far as to protect private sector workers, as the Court has now found, from dismissal.

The domestic consequences of the case are likely to be limited to an extension of the Grainger principles, however, there "may" well be more to be wrung from it. For the full judgment, click here.

European Court of Justice

Justification defence

European Commission v Hungary, case C-286/12
As a matter of European law, where differential treatment has been established, a defendant to a discrimination claim must establish both that he or she had a legitimate objective and that the means adopted were proportionate (and the same principles apply in UK domestic cases, including indirect discrimination cases). Where a member state reduced the retirement for the judiciary from 70 to 62, there was a difference in treatment on grounds of age. While this might have led to a more balanced age structure within the Hungarian judiciary (i.e. the legitimate objective was at least arguable), the Court found that the actual means adopted, which included plans to subsequently increase the retirement age to 65 were not proportionate and the scheme was unlawful. For the full judgment, click here.

Supreme Court

Pilots' pay

British Airways v Williams and ors [2012] UKSC 43
Council Directive 2000/79/EC provides that mobile civil aviation staff are entitled to paid annual leave of at least four weeks. In a case which has concerned the correct calculation of the rate at which annual leave should be paid, the employer British Airways argued that the rate was a question for negotiation between the employer and the union with no scope for determination by the courts; whereas the claimants, supported by their trade union, argued that as a matter of European law payments for periods of annual leave must include a Time Away from Base ("TAFB") allowance, to which mobile staff are entitled when they are not on leave. The Supreme Court has remitted both questions to the Employment Tribunal, holding that the correct rate can be determined by the court, and that entitlement to TAFB is a matter of fact on which the ET may make a decision. For the full judgment, click here.

Equal pay

Birmingham City Council v Abdulla & Ors [2012] UKSC 47
Section 2(3) of the Equal Pay Act 1970 gives a civil court the power to refer an equal pay claim to the Employment Tribunal where it could be more conveniently disposed of there. The section implies that there will be circumstances where the claim cannot be more conveniently disposed of at the ET and should remain within a civil jurisdiction. The power has always been understood to give claimants the choice of jurisdiction, but the number of equal pay claims brought in the civil courts has been very few, presumably because claimants have been unwilling to bear the greater costs exposure of litigation in the High Court. In an equal pay claim brought after the Tribunal's time limits had expired, the Supreme Court had to determine whether the legislation implied any further penalty for the claimant who chose to make use of the more generous time limits available in the civil courts. Lord Wilsons, Lady Hale and Lord Reed held that there should be no such penalty, with Lord Sumption and Lord Carnwath dissenting. The practical effect of this decision is that a claimant can choose the jurisdiction in which to bring their claim, and a claim cannot be struck our merely because it is brought in the civil courts after the employment time limits have expired. For the full judgment, click here.

Employment Appeal Tribunal

Code of conduct

Local Government Yorkshire And Humber v Shah [2012] EAT 0587/11
Section 207A Trade Union and Labour Relations (Consolidation) Act 1992 gives Tribunals the power to increase or decrease an award where the party has not complied with the ACAS Code of Practice on Disciplinary and Grievance Procedures. In a case concerning a whistleblower who was not an employee (and therefore would not have been able to bring a claim of "ordinary" unfair dismissal), the Employment Tribunal found that the employer had failed to follow the ACAS Code and increased the claimant's award accordingly. On appeal, the EAT found that section 207A refers to increasing the amount of an employee's award only, and accordingly that section 207A did not apply to cases brought by workers. While this judgment may appear on the face of it surprising, the EAT held that it had no power to do otherwise. In the words of its decision, "employment law does not always follow a logical course." For the full judgment, click here.

Information Tribunal

Trago Mills (South Devon) Limited v Information Commissioner [2012] FTT 2012/0028
In an application for disclosure under the Freedom of Association Act concerning a local authority that had reached a compromise agreement with one of its former senior employees, which was sought by the applicant company on the basis that it might disclose whether that employee was perceived as a rogue individual whose planning decisions had been biased against it, the First-Tier Tribunal (Information Rights) held that the council had no duty to disclose the compromise agreement. It found that the reason for severance was early retirement and was not related to conduct and the amount of the package was not influenced in any way by conduct or performance issues and accordingly any public interest in disclosure did not outweigh the employee's interest in keeping the terms confidential.

Practice note: While the decision was against disclosure, the method adopted by the Tribunal was one of weighing the competing interests in privacy and disclosure. It is not difficult to imagine alternative facts (e.g. if the applicant was an ex-employee who sought to establish whether the employer had substantially accepted another ex-employee's discrimination claim) in which a Tribunal might make a different decision.

Notices & coming events

The next Practitioner Group Meeting of the Discrimination Law Association takes place on 21 November 2012 at Cloisters chambers at 6pm. Declan O'Dempsey will be speaking on Age Discrimination.


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