Employment Law Bulletin – Issue 162 – 11 February 2014

Monday 10 February 2014

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Employment news

Zero hours contracts

The Department of Business, Innovation and Skills is consulting on the future of zero hours contracts (i.e. contracts in which a worker is subordinated to the employer but is not offered any minimum number of hours in advance). These contracts have proved controversial because of the potential imbalance where a worker is required to make themselves available for work but not recompensed if no work is available. The consultation, which proposes guidance including standard terms clauses for zero hours contracts among other options, closes on 13 March 2014. For more information, click here.

TUPE guidance

The department of Business, Innovation and Skills has published new guidance on transfers of undertakings. It addresses a number of familiar problems relating to service provision changes, the new employer's duty to provide pension arrangements, and the effect of a transfer on rights in collective agreements. To read more, click here.

ACAS guidance on asking questions in discrimination cases

The Equality Act 2010 sets out a questionnaire procedure enabling an individual who believes she has suffered discrimination to gather information from her employer. A Tribunal may draw adverse inferences from a failure to reply within eight weeks, or if the answers are evasive or equivocal. This statutory procedure is to be abolished as of 6 April 2014 but it is assumed questions will still be asked. ACAS has now published guidance on Asking and Responding to Questions of Discrimination. To read more, click here.

ACAS guidance on flexible working

ACAS has in addition published draft guidance on Handling Requests to Work Flexibly. The guidance pre-empts the extension of the right to request flexible working, which the government intends to make available to all employees irrespective of the period they have been working for their employer. To read more, click here.

Minimum wage

This month sees an increase to the maximum penalty for an employee's failure to pay the national minimum wage from £5,000 to £20,000. To read more, click here.

Statutory Sick Pay (SSP) and Statutory Maternity Pay (SMP)

New SSP and SMP rates have been announced. Statutory sick pay will increase to £87.55 per week (up from £86.70). Statutory maternity pay, statutory adoption pay, statutory paternity pay, and additional statutory paternity pay will increase to £138.18 per week (up from £136.78). The changes shall come into force on 6 April 2014.

Little progress at blacklisting talks

The website Building reports that little progress has yet been achieved in negotiations between employers and unions regarding a proposed blacklisting compensation scheme. The Blacklist Support Group is advising blacklisted workers to have nothing to do with the scheme until all negotiations are completed. To read more, click here.

Case Law

COURT OF APPEAL

Redundancy

USDAW v Ethel Austin Ltd, Court of Appeal, 21-22 January 2014

Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires an employer to consult about redundancy dismissals affecting 20 or more employees at one establishment. Following the decision of the Employment Appeal Tribunal, reported in this bulletin in July, that a large business organised in a series of workplaces, few having more than 20 employees, is required to consult collectively, the Court of Appeal has in turn referred the case to the CJEU. It is understood that the CJEU will consider how the Collective Redundancies Directive 98/59/EC should be interpreted, and in particular what constitutes "an establishment".

The United States of America v Nolan [2014] EWCA Civ 71

When construing UK legislation which gives effect to European law, it is necessary to consider in each case the actual terms of the legislation. There is no principle that Parliament can be presumptively assumed to have gone no further than any particular Directive. So held the Court of Appeal, in a case concerning the United States' decision to close a military base. As a matter of EU law, a sovereign state is not liable under the Directive. However the Court of Appeal decided that there were policy reasons to assume that Parliament had intended to go beyond the Directive, as could be seen in the terms of the Act, which are more generous than the Directive and extend protection to classes of public servants who would not come within the Directive. The Court of Appeal having reserved the question of whether or not an employer is required to consult about or disclose the reasons for the underlying business decision which gave rise to a collective redundancy, this issue will remain to be determined at a further hearing. For the full judgment, click here.

Discrimination: burden of proof

South Wales Police Authority v Samuel Johnson [2014] EWCA Civ 73

In discrimination claims, where there are facts from which the Tribunal could decide, in the absence of any other explanation, that an act amounted to discrimination, the Tribunal must hold that the contravention occurred and that the reason for it was discriminatory unless the discriminator shows that they did not discriminate (s136 EA 2010). Should the burden of proof have shifted where the Claimant was a black man and one of his complaints concerned a manager who had told a third party that all her intimate relationships with black men had ended badly? The Court accepted that the remark could betray a subconscious prejudice. However, it was not enough to shift the burden of proof onto the Respondent. The remark had no direct reference to the Claimant, and the Tribunal had referred to no other evidence linking the manager's attitude towards him to the attitude apparently displayed on that occasion. Inferences about the subconscious motivations of putative discriminators could only be based on solid evidence. For the full judgment, click here.

Reinstatement or reengagement

Hazel and anor v Manchester College [2014] EWCA Civ 72

Where a Tribunal finds that an employee has been unfairly dismissed the Tribunal must explain to the employee the remedies available including reinstatement reengagement and compensation (s112 ERA 1996). Is re-engagement available in circumstances where an employee remains working for the employer, albeit on worse terms, following a TUPE transfer, and the content of their dismissal claim is that they have been automatically unfairly dismissed by the change in their terms? In a case concerning two college workers remaining in employment subsequent to a restructure involving redundancy and a general variation of terms, the Court of Appeal held that this remedy was available and was indeed "the primary remedy" for workers subject to unilateral variation. For the full judgment, click here.

HIGH COURT

Employment Tribunal fees

UNISON, R v The Lord Chancellor [2014] EWHC 218

The High Court has determined UNISON's judicial review of the legality of Tribunal fees, finding that they are lawful. The Court held that there is a system of free remission which will make proceedings expensive but not excessively difficult. In addition the Lord Chancellor agreed during the case that a successful employee should expect to recover the fees they have incurred from the employer. (At para 56; it will be noted that this assurance is rather more generous than the literal wording of the Tribunal rules). Finally, there had been a full consultation and the Public Sector Equality Duty was not breached. The court did not reach a conclusion as to whether the fees for Type B Claims (equal pay) would have a discriminatory impact when they were compared to the much lower fees for Type A claims (unlawful deduction of wages) but held that this was an issue to be more considered once the scheme has become entrenched. For the full judgment, click here.

Statutory recognition

Boots Management Services Ltd, R v The Central Arbitration Committee [2014] EWHC 65

Where a union is not recognised it may apply to the Central Arbitration Committee (CAC) for recognition. An application is not admissible however if the CAC is satisfied that there is already in force a collective agreement under which another union is recognised as entitled to conduct collective bargaining (schedule A1, para 35, TULR(C)A 1992). In this context, does the reference to "collective prevent a union from recognition where the employer already recognises a second "union" only to prevent an independent union obtaining recognition? In a judicial review of a decision of the CAC to read para 35 so as to protect the rights of the independent union, the High Court has held that a purposive reading of the legislation is prevented by the language of the statute. The Court went on to hold that a Declaration of Incompatibility might be possible, and reserved that issue for a further hearing. For the full judgment, click here.

EMPLOYMENT APPEAL TRIBUNAL

Wrongful dismissal

Robert Bates Wrekin Landscapes Ltd v Knight [2013] UKEAT 0164/13

It is trite law that an employer is entitled to dismiss without notice where there has been gross misconduct; but is this right extended to ordinary misconduct (in this case, the accidental taking of a bolts worth approximately £1) by a contractual clause entitling the employer to dismiss for "any" breach of the Employer's or the Customer's security rules? On a contractual interpretation of the clause relied on by the employer, the Employment Appeal Tribunal upheld the decision of the Tribunal that such a dismissal was not available to the employer, and found that, in general, it is not open to the employer to import into the contract an additional power to dismiss summarily in the absence of a fundamental breach. For the full judgment, click here.

Redundancy: meaning of consultation

Tavistock And Summerhill School & Anor v Richards & Ors [2013] UKEAT 0244/13

In a collective redundancy situation, employers are obliged to consult employee representatives about ways of avoiding dismissals, reducing the number of employers to be dismissed and mitigating the consequences of dismissal (s188 TULR(C)A 1992). Should an award for failure to consult be reduced where the Claimant was a senior employee (here, a headteacher) who had been invited to meetings informing her that the employer was in difficulty, and should she receive a lesser award than other Claimants who did not have this advance warning? The Employment Appeal Tribunal upheld the decision of the Tribunal to make a protective award to the headteacher in like terms to other affected employees on the basis that there is "a clear distinction ... between the discussions with a view to saving the school at a high management level and consultation with employees about job losses or possible job losses in the future. For the full judgment, click here.

Employment status

Halawi v WDFG UK Ltd (t/a World Duty Free) & Anor [2013] UKEAT 0166/13

Only an employee may bring a discrimination claim in the Employment Tribunal, although the term "employee" has an extended meaning equivalent to "worker" in the ERA 1996. Can a worker relationship be established where there is no contract between the worker and the discriminator, and the worker is entitled to, and does actually, send a substitute to work in her place? In a case where the Claimant argued that her work was controlled by companies which secured profit from her labour over which they were in a position of superiority, the EAT held that, even on a purposive construction of the European law principles from which the Equality Act 2010 is derived, the relationships were not close enough to either be, or be analogous to, relationships of employment. For the full judgment, click here.

Employment Law Events

The Industrial Law Society: Toleration in the workplace
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields, London, WC2A 3PE
11 February 2014, 18:30 -20:00
CPD: 1.5 Hours
For more information, click here.

The Institute of Employment Rights: Access to Justice
Adelphi Hotel, Liverpool
Wednesday 5 March 2014, 9:30 to 15:45
The speakers will include David Renton of Garden Court Chambers' Employment Team. For more information, click here.

The Institute of Employment Rights: Access to Justice
Unite building, London
Wednesday 19 March 2014, 9:30 to 15:45
The speakers will include David Renton of Garden Court Chambers' Employment Team. For more information, click here.

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