Employment Law Bulletin – Issue 159 – 11 December 2013

Wednesday 11 December 2013

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Employment Law News

State pension age to rise

The Chancellor of the Exchequer George Osborne has announced plans to increase the state pension age to 70. The change will not take place immediately, but in successive stages, over the next thirty years. To read more, click here.

Different approaches to industrial relations inquiry

Ministers from the Coalition parties have differed over the Government's plans for an inquiry into "existing legislation to prevent inappropriate or intimidatory actions in trade disputes", with Conservative ministers insisting that the primary purpose of the inquiry will be to investigate the leverage tactics of the trade union Unite, and Liberal Democrats saying that the inquiry will not be blocked from considering other topics including the blacklisting of trade unionists in the construction industry. To read more, click here.

Employment Case Law

SUPREME COURT

Direct Discrimination

Bull & Bull v Hall & Preddy [2013] UKSC 73

It is unlawful to discriminate directly against a person on grounds of their sexual orientation (sections 12-13 Equality Act 2010), but was there direct discrimination on grounds of orientation where a hotelier refused a room to a couple in a civil partnership on the grounds that they offered the room only to married couples? A majority of the Supreme Court held that there was direct discrimination with Lady Hale in the leading judgment finding that this refusal was not only applying a criterion that the couple were unmarried, but also applying a criterion that the couple's relationship was not that of one man and one woman. The discrimination, Lady Hale found, was indistinguishable from sexual orientation. Lords Neuberger and Hughes in the minority dissented on direct discrimination, with Lord Neuberger not accepting that the policy of the appellants was "specific to those of homosexual orientation" and Lord Hughes complaining that the majority's reasoning concentrated on the characteristics of the couple, rather than the appellants' reasons for treating them as they did. All the judges found that there had been indirect discrimination which had not been justified. For the full judgment, click here.

COURT OF SESSION

Capability

BS v Dundee City Council [2013] ScotCS CSIH 91

An employee's incapability to work is potentially a fair reason for her dismissal (section 98(2) Employment Rights Act 1996). If the incapability is about health, rather than competence in a role, then the key question, the Court of Session has held, is "whether any reasonable employer would have waited longer before dismissing?". In a case where the employee had worked for the employer for 25 years, and where a doctor had indicated he should be capable of returning within one to three months, the Court remitted the case to the original Tribunal to reconsider its decision. "The critical question", the Court held, when considering the weight to give to previous good service, "is whether the length of the employee's service, and the manner in which he worked during that period, yields inferences that indicate that the employee is likely to return to work as soon as he can" (paragraph 33). As for the doctor's opinion, the Court was concerned that this needed to be balanced against the evidence of the employee himself that his condition was not improving. The following statement of principle is likely to be cited in future cases:

"First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. We would emphasize, however, that this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered" (paragraph 27).

For the full judgment, click here.

EMPLOYMENT APPEAL TRIBUNAL (EAT)

National minimum wage

Whittlestone v BJP Home Support Ltd [2013] EAT 0128/13

Regulation 15 of the National Minimum Wage Regulations 1999 sets out types of situations where the work done by a worker should be deemed "time work" and will attract the minimum wage. In a case concerning a worker who worked evening shifts delivering care and travelled between patients during her working hours but was not paid for her travel time, the issue arose of whether the travel time was time work. The Employment Tribunal erred, Langstaff J held, in distinguishing between the worker's "on call" or "core" hours and her peripheral duties and suggesting that only the former should receive the minimum wage. These terms had been taken from previous cases addressing different parts of the Regulations. They were not statutory terms, and the jurisdiction is statutory. If Tribunals continued to use them, Langstaff J held, they would run the risk of setting a minimum threshold of physical or mental activity above which a worker could attract the minimum wage, whereas the only issue should be whether the work was time work in the first place. For the full judgment, click here.

Equitable jurisdiction to extend time

Robinson v Bowskill & Ors (p/a Fairhill Medical Practice) [2013] EAT 0313/12

A discrimination claim must be brought within three months of the acts about which the worker complains, save that it is at the discretion of the Tribunal to extend time where it would be just and equitable to do so (section 123 Equality Act 2010). In a case where a worker was informed by her solicitor that her employment was terminated on 7 July 2011 and her claim was eventually submitted on 7 October 2011, her solicitor actually but erroneously believing that the time limit was three months and one day (it is in fact three months less one day), the appellant contended that the three months should run from notification by her employer which came afterwards, not notification by her solicitor. This argument failed on appeal, with the EAT holding that a notice communicated by an employee's own solicitor was effective notice of termination. The EAT went on to hold however that the ET had erred in not extending time. The judge had not grasped that when applying the just and equitable test, there was previous authority to the effect that the mistakes of an advisor should not be visited on the litigant. Therefore, in circumstances where all the other factors weighed in favour of extending time, it was appropriate to allow the case to proceed to a full hearing. For the full judgment, click here.

As this will be our last update before Christmas, the editors wish all our readers a very enjoyable festive break.

 

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