Employment Law Bulletin – Issue 140 – 22 January 2013

Tuesday 22 January 2013

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Employment news

Settlement: response to Consultation now published

The Government has now published its response to its consultation on settlement and compensatory awards for unfair dismissal. The Government proposes to proceed with the majority of its original proposals although its original suggestion that it should publish guideline settlement tariffs which could be used to evaluate potential tribunal claims will not be implemented. There has also been some refinement of its proposals to reduce the compensatory limit, which will be capped at a year of the Claimant's salary. The overarching cap will not be reduced, as previously proposed, to just one year of the national average salary. Click here for more information.

TUPE: response to Call for Evidence now published

After previously suggesting that it had no plans to significantly amend TUPE, the Government has now published a Response to its Call for Evidence. The Government now proposes to make a very large number of changes to TUPE including removing service provision changes from the definition of a transfer. This will make it harder to bring outsourcing within TUPE. Click here for more information.

ACAS Conciliation: Consultation announced

The Government is also now consulting on the detail of its proposals for compulsory ACAS conciliation of Tribunal claims. Click here fo rmore information.

Employment Case Law

Employment Appeal Tribunal

Disability discrimination: substance of impairment

Aderemi v London and South Eastern Railway Ltd [2012] EAT 0316/12
Section 6 Equality Act 2010 provides that a person is disabled if he or she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. How significant must an impairment be in order to qualify as substantial? The EAT has considered the case of a railway station assistant who suffered from lower back pain, and had restricted mobility, and who was dismissed on grounds of capability, as he was unable to do large parts of his job such as working gates and remaining on his feet continuously during a 9 hour working day. The Employment Tribunal found that the Claimant could walk around, could carry a tray and could carry items without serious weight. He could wash up, put shoes on and do exercise. In all the circumstances, it held, he could not be considered a disabled person. This reasoning was overturned by the EAT which found that it was based on a fundamental error of law, in that it focussed primarily on what the Claimant could do rather than what he could not. The case was remitted to the Tribunal. For the full text of the judgment, click here.

Religious discrimination: Sunday working

Mba v London Borough of Merton [2012] EAT 0332/12
It is unlawful for an employer to require staff to work on Sunday and thereby cause disadvantage to those who are Christian unless the employer can show that the requirement is objectively justified. What sort of justification is required? The EAT has considered this question in a case concerning a care worker who was employed under a contract providing that she could be required to work on Sundays, save that for two years the employer did not act on this contractual provision. The employer's justification for then changing its approach was expense: there were five permanent staff for an organisation that required the work of nine. Allowing the Claimant not to work on Sundays caused extra cost in that it required the employment of bank or agency staff. The Claimant was then rostered to work on Sundays, but declined, and was ultimately dismissed. The EAT approved of the reasoning of the Employment Tribunal which interpreted the words of the Anglican Bishop Nazir Ali, "Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency", as meaning that many Christians will work on the Sabbath; and that this was a factor weighing towards the proportionality of the employer's decision. For the full text of the judgment, click here.

Curing dismissal

Piper v Maidstone & Tunbridge Wells NHS Trust [2012] EAT 0359/12
What is the employment status of a person who has been dismissed, but successfully appeals? As a matter of common law, Roberts v West Coast Trains Ltd [2005] ICR 254 establishes that by appealing an employee submits to the outcome of the appeals process, i.e. the effect of a successful appeal is to reinstate the worker, who cannot then bring a claim for unfair dismissal. A second case of Saminaden v Barnet Enfield & Haringey NHS Trust EAT 0018/08 establishes an exception: where the employer's contractual provision requires the employee's consent to reinstatement and the employee does not consent, the dismissal is not cured by the appeal and the employee can bring an unfair dismissal claim. In a case concerning a pastor who was dismissed but appealed and was reinstated but demoted, the Tribunal had to construe the contractual term, "If the employee does not agree with [demotion], dismissal is the only alternative". The EAT found that these words gave the employee the choice whether or not to accept the sanction. As he had not accepted the sanction he could bring a claim, and the Tribunal had erred in dismissing his claim at a preliminary hearing. For the full text of the judgment, click here.

Notices & coming events

Struck Out: Why Employment Tribunals Fail Workers
Thursday 21 February 2013 at 6.00pm

Garden Court's David Renton will address a Manchester meeting of the Industrial Law Society on "Struck Out: Why Employment Tribunals Fail Workers", on 21 February at 6pm, in Lecture Theatre G35, Manchester Metropolitan University Business School, All Saints Campus. Click here for more information.


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