Employment Law Bulletin – Issue 137 – 27 November 2012

Tuesday 27 November 2012

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Employment news

Public sector equality duty

In a speech to the CBI, David Cameron has announced plans to cut back on equality impact assessments. It appears that the government has no plans yet to amend section 149 Equality Act but is seeking rather to restrict the civil service practice of considering the potential equality impact of the government's decisions and publishing its analysis of them.

Consultations now closed

The Government's consultations on settlement agreements and Tribunal procedure are now closed, with responses expected early in the New Year.

Working poor outstrips poor without work

'Monitoring Poverty report 2012', a new report of the Joseph Rowntree Foundation finds that 6.1 million people in Britain are in poor households in which at least one person is working. For the first time, this outstrips the number of people in poverty where no one in their household is working. The authors of the survey use its findings to challenge government policy that the poverty of key groups of people (disabled people, single mothers, etc) would end if they were required to work.

European Court of Justice

Annual leave

Alexander Heimann, Konstantin Toltschin v Kaiser GmbH [2012] EUECJ C-229/1
The right to annual leave is contained in regulation 13 of the Working Time Regulations 1998 which gives effect to Directive 2003/88/EC. There has been considerable European case law on the rights of persons incapable of working during a leave year due to illness, whose rights to annual leave are protected. What happens however where a person who is not unwell is kept in formal employment, with no pay, and no work duties, e.g. under a scheme intended to maintain the formal continuity of their employment following redundancy? In considering a German scheme which operated along these lines, the ECJ has held that such a worker is not entitled to annual leave, and that they accrue entitlement to annual leave only in proportion to the time they have actually worked for their employer. For the full text of the judgment, click here.

Court of Appeal

Fixed-term employees

Hudson v The Department For Work And Pensions [2012] EWCA Civ 1416
Where an employee has been engaged for four years or more on fixed-term contacts, and her employment is extended, the Tribunal may issue a declaration that the employee is now a permanent employee (regulation 8, Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002). This declaration cannot be sought by an employee who is a trainee (regulation 18, FTR). But what should be done where the employee first worked for the employer as - but it no longer - a trainee; is such an employee required to wait until 4 years have expired after their original training position has elapsed? The Court of Appeal considered the circumstances of a worker who was employed via a civil service scheme akin to the New Deal, finding by a 2-1 majority on policy grounds that an employee who was originally a trainee cannot rely on her work as a trainee to qualify for the four-year protection. For the full text of the judgment, click here.

Statutory Dispute Resolution Procedure

Dolby v Sheffield City Council [2012] EWCA Civ 1474
Part 2, Schedule 2 of the Employment Act 2002, now repealed, required workers bringing certain categories of employment claim to have first complained ("brought a grievance") to their employer, with that document setting out the basis of the worker's complaint. Is this requirement satisfied where the worker's complaint was contained not in her original grievance letter but in an appeal to her employer where her grievance was not upheld? In a case where the EAT had held that a new point taken on internal appeal could not be a qualifying grievance, the Court of Appeal reversed that decision, finding that there is no reason of principle why a grievance should not be contained within an appeal letter. For the full text of the judgment, click here.

Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470
As a matter of case law, a dismissal is only unfair for the purposes of section 98 of the Employment Rights Act 1996 if it is outside the range of responses open to a reasonable employer (British Home Stores v Burchell [1978] IRLR 379) This test is more intrusive of the original decision than traditional judicial review but in common with JR it takes some of the original facts away from judicial scrutiny. Should this test be modified where the employee's rights under Article 8 of the European Convention on Human Rights are engaged as a consequence of the dismissal; and in the context of ECHR case law which holds that Convention rights should only be determined following a full "proportionality" hearing? Elias LJ and Sedley LJ determined the appeal, which concerned a ticket inspector accused of fraudulently misrecording ticket sales, by finding that the range of reasonable responses test is catholic, and where the allegation would have a significant impact on an employee's reputation or her ability to work in future, a more intense scrutiny would be appropriate. For the full text of the judgment, click here.

Practice note: In this case, where the evidence against the employee was damning, the principle that the range of reasonable responses test may extend to a very high requirement of procedural fairness, did not advantage the worker; however in a suitable case with different facts it could be decisive.

High Court


Smith v Trafford Housing Trust [2012] EWHC 3221
Is there misconduct where an employee, the identity of whose employer is visible on his Facebook page, posts provocative but not offensive personal views about the policy of other organisations? In a case which concerned a housing manager who asked aloud on Facebook whether the Church of England should host gay marriages, the High Court found that the tone of the comments had not been judgmental or disrespectful, and that no reasonable colleague would have been offended by them. The Court went on to find that the Trust's subsequent decision to demote him had been in breach of contract, and outwith the employer's contractual powers. The High Court went on to find that the demotion was a repudiatory breach of contract, which had not been accepted by the employee, and that he had, in effect, been dismissed. Accordingly, his damages were limited to damages for wrongful dismissal (i.e. the difference between the pay he received during his old and new posts during the period of his contractual notice only) or less than £100. For the full text of the judgment, click here.

Employment Appeal Tribunal


Duffy v George (Unfair Dismissal) [2012] EAT 0517/11
Rule 14 of the Employment Tribunal Rules provides that the hearsay rules do not apply to Tribunal proceedings. How though should the Tribunal decide a case where a key witness (the complainant) simply refuses to attend? In a case where a male worker had sent a co-worker various text messages of a sexual nature and bought her a vibrator, and had discouraged her from attending the final proceedings, sending her a threatening anonymous message, and the female complainant refused to attend the hearing, saying that she was unhappy at the thought of being cross-examined by him, the Tribunal dismissed most of her allegations, but found the allegations of harassment relating to the texts and the vibrator proven (the substance of the acts being not denied by the Respondent, although he denied that his conduct was unwanted). The Respondent appealed, arguing that it was unfair for the Tribunal to have proceeded in the Claimant's absence. The EAT found that it had not erred in so doing. For the full text of the judgment, click here.

Continuity of service

Welton v Deluxe Retail Ltd (t/a Madhouse) [2012] EAT 0266/12
Section 210(3) Employment Rights Act 1996 provides that in deciding whether an employee has sufficient continuity of service for purposes including assessing whether they are eligible to bring a claim of unfair dismissal, this shall be analysed week by week (i.e. an employee is ordinarily expected to be able to show that they were employed for at least one day in each successive week until the service requirement is satisfied). Where an employee worked at a store in a first week, but the store closed down, and then in a second week was offered employment at a different store, which began in a third week (i.e. there was an entire week during which the employer did not actually work for the company at all), the EAT has held that continuity of service was maintained. Although strictly obiter the EAT went on to determine other questions raised in the appeal, including whether service was protected in circumstances where the parties had made an arrangement that service would be deemed to be protected, and found that these provisions could not apply retrospectively. For the full text of the judgment, click here.

Notices & coming events

Equality and Discrimination 2012
An annual conference organised by the Institute of Employment Rights takes place this year on 4 December 2012 at NUT Hamilton House, London 9.30am - 4.00pm with speakers including EHRC, Thompsons and Pattison Brewer. Click here for more information.


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