Employment Law Bulletin - Issue 155 - 2 October 2013

Wednesday 2 October 2013

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Employment Law News

The Big Work Survey reveals over-stressed staff

According to the survey, the UK is a nation of over-stressed staff who regularly eat lunch whilst still working at their desks. The UK workforce were also found to be prone to working overtime, working through holidays and even working when ill, according to the new YouGov research carried out on behalf of Westfield Health. To read more, click here.

Employment Law Cases

Court of Justice of the European Union

Z v A Government Department and the Board of Management of a Community School [2013] CJEU C-363/12

Surrogacy | maternity leave entitlement

The applicant, Ms Z is unable to support a pregnancy and has had a child that is genetically her own through a surrogacy arrangement. The domestic court referred a number of questions to the Court; the crux of the questions was whether, as a matter of EU law, Ms Z is entitled to paid leave of absence from employment equivalent to maternity leave or adoption leave.

The Court observed that the health and safety of workers in a vulnerable condition lay at the heart of Directive 92/85. The right to maternity leave extended to pregnant and breast feeding mothers because it is generally accepted that during these periods the prospective mother/new mother requires protection. The Court remained unconvinced that despite the fact that Ms Z is the genetic mother of the child born through surrogacy, that that circumstance alone may be construed as enabling the ambit of Directive 92/85 to be widened to protect, in general terms, motherhood, or indeed parenthood, in defiance of its very wording and its clearly enunciated objectives. The Court added however, that it was open to Member States to extend the right to maternity leave to mothers in Ms Z's position as the Directive merely sets out the minimum protection required. The Court further held that Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, similarly does not apply to Ms Z.
To read the full decision, click here.

Employment Appeal Tribunal

Osei-Adjei v RM Education Ltd [2013] UKEAT 0461/12/2409

Constructive dismissal | Causation | Future loss of earnings

The claimant suffered an act of disability discrimination by reason of the respondent's failure to make a reasonable adjustment. He was for a time unfit to work but at the time of the termination of his employment he was fit to return to work, his job was open to him and all reasonable adjustments had been or would be made. He resigned and asserted that there had been a constructive unfair dismissal. The Employment Tribunal (ET) held that he had not been dismissed and that the resignation broke the chain of causation so far as any future loss of earnings was concerned.

The claimant sought to argue on the authority of Prison Service v Beart no 2 [2005] ICR 1206 that the termination of his employment could not amount to a novus actus interveniens that broke the chain of causation. The Employment Appeal Tribunal (EAT) held that Beart was authority for the proposition that an employer who had unfairly dismissed a claimant could not rely upon its wrongful act to minimise the claimant's compensation. That principle did not apply in cases where the termination of the employment was brought about by the voluntary act of the claimant; Ahsan v Labour Party (2011) UKEAT/0211/10 applied.
To read the decision, click here.

Little v Richmond Pharmacology Ltd [2013] UKEAT 0490/12/2009

Flexible working | Detriment

The claimant started work for the respondent on 8 March 2006 as an evening receptionist. In January 2009 she was promoted to sales executive working full-time. On 14 September 2009 she started maternity leave prior to the birth of her second child.

Between January and May 2010 she applied to the respondent for a flexible working arrangement on her return to work following maternity leave in August 2010. On 17 June 2010, the claimant's application for flexible working was rejected on the basis that it was not feasible for a sales executive to operate on a part-time basis.

On 9 July the claimant appealed against that refusal. Before an appeal hearing could be arranged, the claimant resigned on 19 July. That same day she was asked by the respondent to reconsider until an appeal hearing took place. On 22 July an appeal hearing took place. The claimant attended that hearing. Her appeal was upheld to the extent that she was offered a three-month trial on the terms suggested in her initial application for flexible working. The claimant did not take up that offer, but instead on 26 July she confirmed her resignation of 19 July.

The question raised before the EAT was: what is the effect of a successful internal appeal on an earlier act of prima facie, unlawful indirect sex discrimination? The EAT held that the issue in the instant case was not whether any repudiatory breach had been cured by the decision of the internal appeal, but rather whether the original refusal decision, conditional on the outcome of a consensual appeal process, has subjected the claimant to any disadvantage or detriment. Since her request was granted at appeal before the claimant was due to return to work, the answer must be no.
To read the decision, click here.

Mr J B Steen v ASP Packaging Ltd UKEAT/0023/13

Contributory conduct | Duty to give reasons

An ET decided that the contributory conduct of a claimant who succeeded in his claim for unfair dismissal was such that compensatory and basic awards should be extinguished altogether. However, it failed to identify the conduct at issue, did not state whether the conduct was blameworthy, omitted to explain why it was just and equitable to reduce the awards, and did not give any indication that it appreciated the difference between s.122(2) and s.123(6) of the Employment Rights Act 1996.

Furthermore, the ET failed to show that it was considering what the actual facts were as to what the claimant had done which was blameworthy, rather than relying on the employer's view of what he had done. In the rare case where a 100% deduction is made, reasons clear enough to enable the claimant and any appeal court to understand why no compensation is being awarded should be given. The appeal was allowed.
To read the judgment, click here.

Mr David Powell v OMV Exploration & Productions Ltd UKEAT/0131/13/DM

Jurisdiction | ERA 1996

The claimant worked three weeks out of four in Dubai, spending the fourth as "rest time" at his home in the UK. The contract of employment was with a company registered in the Isle of Man. The contract provided that Manx courts would have sole jurisdiction and Manx law would apply. The company had no place of business in the UK, and administration of it was based in Austria (Vienna). An employment judge held that the company was domiciled in Austria within the terms of the Brussels 1 Regulation, and that since the claimant did not habitually work in another member state, he could only bring a claim against the respondent in Austria. The employment judge also found that the claim was outside the territorial scope of the ERA 1996. These findings were upheld on appeal.
To read the decision, click here.

Employment Law Events

Key Employment and Discrimination Cases for 2013-2014: A Preview
Tuesday 15 October, 18:30 - 20:00
1.5 CPD Hours
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields, London, WC2A 3PE
The Industrial Law Society (ILS) will be hosting a lecture by Michael Rubenstein. For more information, click here.

The Discrimination Law Association's Annual Conference
Monday 21 October
The London office of Baker & McKenzie.
The theme of this year's conference will be "Equality 2015: Setting the Agenda". For further details, please keep checking the Discrimination Law Assocation (DLA) website.

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