Employment Law Bulletin - Issue 151 - 25 June 2013

Tuesday 25 June 2013

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Employment News

Employment Law reform: timetable published
The government has published a detailed calendar setting out when further employment law changes are likely to take effect, including the following:

  • 25 June 2013: EAT hearings by judge alone, no qualifying period for unfair dismissal where it relates to employee's political opinion/affiliation, introduction of 'public interest' requirement for whistleblowing
  • 29 July 2013: Employment Tribunal fees
  • Summer 2013: Renaming 'compromise agreements' as 'settlement agreements'
  • 1 October 2013: Removal of the third-party harassment provisions from the Equality Act 2010
  • 6 April 2014: ACAS early conciliation scheme, repeal of the discrimination questionnaires provisions in the Equality Act 2010

Cap on Unfair Dismissal awards introduced
The Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013, limiting the compensatory award in an unfair dismissal case to the lower of £74,200 or 52 weeks' pay, has been laid before Parliament. It remains unclear when the Order will take effect but it is likely to be from a date in July 2013.

Tribunal fees: UNISON to judicially review
The health and local government trade union Unison has announced that it has issued judicial review proceedings to challenge the government's decision to introduce fees, which, it claims, will have a disproportionate impact on women and will unreasonably fetter access to European law rights. More details here.

Case Law

Court of Justice of the European Union

Redundancy during maternity

Riežniece v Zemkopības Ministrija, Case C-7/12
Council Directive 95/54/EC provides that men and women must be treated equally in terms of employment, vocational training and promotion. In a case concerning a worker in Latvia whose employment was terminated while she was on parental leave, the CJEU has held that an employer may, in the context of abolishing a post, proceed with the assessment of a worker who has taken parental leave. However, in order to avoid any discrimination and ensure equal opportunities for men and women, the method for assessing workers in the context of the abolishment of a post must not place workers who have taken parental leave in a less favourable situation than workers who have not taken parental leave. The assessment must encompass all workers liable to be affected by the abolition of the post. It must be based on criteria which are absolutely identical to those which apply to workers in active service. Moreover, the implementation of those criteria must not involve the physical presence of the workers, a condition which a worker on parental leave is unable to fulfil. The question of whether these conditions were satisfied in the present case was remitted to the national courts for determination. For the full text of the judgment, click here.

Employment Appeal Tribunal

TUPE

Bangura v Southern Cross Healthcare Group Plc & Anor [2013] EAT 0432/12
Regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) provides that a transfer of employment does not terminate the employment of any transferred worker; rather, their contract continues to have effect as if it had originally been made with the transferee. Does TUPE protect the employment of a dismissed worker who is awaiting the hearing of her appeal against dismissal? It does not, the EAT has found, in a case concerning a worker who was summarily dismissed on grounds of misconduct about six weeks before the care home at which she worked was transferred to the new employer. At that time she had an appeal pending against her dismissal but it had not been determined by the Respondent. The Employment Appeal Tribunal held that the TUPE Regulations did not transfer liability to the new employer. The EAT also considered the question from the perspective of when a summary dismissal should be understood as having had effect. If the appeal against dismissal had been heard and was successful it would retrospectively have the effect that an employee was no longer to be treated as having ever been dismissed. However, where the appeal was not successful, or was not heard, then the dismissal takes effect on the original date. For the full text of the judgment, click here.

Victimisation

Woodhouse v West North West Homes Leeds Ltd [2013] EAT 0007/12
Where an employer dismisses a worker for making repeated, false, and irrational complaints of discrimination, but accepts that the complaints were made in good faith, is the dismissal unfair? In a previous case, Martin v Devonshire Solicitors [2011] ICR 352, where the worker was driven into mental ill-health and the complaints were based on paranoid delusions, and further complaints were likely, the EAT was willing to find that the reason for the dismissal was not the complaints (which would have been unlawful victimisation) but a breakdown of trust and confidence between the employer and the employee. In a case where a Project Officer had brought ten grievances of race discrimination, only two of which were upheld to any extent, but there was no mental illness, and there was little to indicate that the employer had any reason for the dismissal other than to remove an unwanted employee, the EAT has held that the Tribunal should be extremely cautious in making analogies with Martin, a case it described as "exceptional". It would be "a slippery slope towards neutering the concept of victimisation", the EAT held, "if the irrationality and multiplicity of grievances can lead, as a matter of routine, to the case being placed outside the scope of section 27 of the Equality Act". For the full text of the judgment, click here.

Article 8

City and County of Swansea v Gayle [2013] EAT 0501/12
Article 8 ECHR provides that everyone has the right to respect for his private and family life, his home and his correspondence. How far does it operate to limit the employer's right to covertly monitor its employees? In a case where a worker was suspected of playing squash while claiming wages from his employer for being at work, the Employment Tribunal criticised the employer for filming its employee outside work in apparent breach of the Employment Practices Data Protection Code and found the investigation excessive and the employee unfairly dismissed (while also reducing his compensation to zero on grounds of contributory fault). The employer appealed, and the EAT overturned the finding of unfair dismissal. It held that a person filmed in public while committing a fraud could have no expectation of privacy. For the full text of the judgment, click here.

Notices & Coming Events

Industrial Law Society
Friday 20 September 2013 to Sunday 22 September

The 2013 Annual Conference of the ILS will take place at St Catherine's College Oxford. The speakers will include David Latham, President of Employment Tribunals, England and Wales, HH Judge Jeremy McMullen QC, and the Rt. Hon. Lord Justice Patrick Elias. More details here.

 

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