Issue 55 - 20th October 2008

Monday 20 October 2008

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EUROPEAN COURT OF JUSTICE

Age discrimination

Bartsch v Bosch C-427/06
Under the guidelines of the employer's pension scheme payments would not be made to a widow(er) of a member of the scheme if they were 15 or more years younger than the former employee. The ECJ held that such a provision was not covered by the Framework Directive in relation to age discrimination as the guidelines contained no link with Community law and, in any event, the death of Mr Bartsch occurred before the time-limit allowed for transposing the directive had expired. Mangold distinguished.

EMPLOYMENT APPEAL TRIBUNAL

Strike out

Zeynalov v BP Exploration (Caspian Sea Ltd) & Ors UKEAT/0086/08/RN
The Tribunal was wrong to strike out a claim without an oral hearing as requested by the Claimant and required under the Tribunal rules even though the outcome of the hearing was likely to have been the same. Bache v Essex County Council [2000] IRLR 251 did not apply.

Time limits

Hunwicks v Royal Mail Group plc UKEAT/0003/07/ZT
The Tribunal had not erred in refusing to extend time on 'just and equitable' grounds for bringing a claim of disability discrimination, even though the Clamant had not been aware of the relevant time limits and, after the expiry of the time limit, she had received wrong advice from her trade union. Hawkins v Ball [1996] IRLR 258 distinguished.

Stay

GFI Holdings Ltd v Camm UKEAT/0321/08/DA
The Tribunal had erred in failing to order a stay of the proceedings in order to allow a claim for bonus monies in the High Court to be determined where the issue of whether there was a dismissal and the reasons for dismissal were issues common to both proceedings.

Delay

Grosvenor v Governing Body of Aylesford Shcool & ors UKEAT/0001/08/LA
The EAT held that while a delay of one year in promulgating an Tribunal judgment ought never to happen (the maximum period stipulated by the President of Employment Tribunals being three and a half months), in the circumstances there was not a large gap in time between the Tribunal's deliberations and production of the Judgment and Reasons and therefore the delay could not be a freestanding ground of appeal.

Statutory grievance procedures

Burt v UK Sports Centres Ltd UKEAT/0290/08/LA
The Tribunal erred in declining to "accept" a claim for a redundancy payment (and associated claims) under rule 3(2) of the Employment Tribunals Rules of Procedure on basis that claimant had not properly pursued the statutory grievance procedure. Under Regulation 6(4) Employment Act 2002 (Dispute Resolution) Regulations 2004 the grievance procedures do not apply if since the employee ceased to be employed it has ceased to be reasonably practicable for him to comply with the requirements. While Claimants must give the Tribunal sufficient detail to enable it to reach a confident decision on reliable material, in the present case the Claimant had raised an arguable case that it was not reasonably practicable for her to do so in the ET1.

Time off for dependants

Royal Bank of Scotland plc v Harrison UKEAT/0093/08/LA
There was no warrant for the insertion of the words "sudden and" or "in emergency" into s57A(1)(d) Employment Rights Act 1996, which relates to time off for the unexpected disruption or termination of care for a dependant. The passing of time between the employee's discovery of the need for making alternative arrangements and the taking of time off was to be considered in the application of the word "necessary" s57A(1). The word "unexpected" in s57A(1)(d) was an ordinary word when applied on the facts of each case. Whether an event is unexpected is to be considered at the moment when or the moment before the employee learns of what is about to happen.

Working time

Hughes v Jones & Jones t/a Graylings Residential Home UKEAT/0159/08/MAA
A worker who is provided with tied accommodation at her workplace and is required to be there to answer calls throughout a period of 24 hours, but otherwise can sleep during the night or take recreation in her home, is "working" for the whole 24 hours for the purposes of the Working Time Regulations 1998. She was therefore entitled to daily rest periods in accordance with regulation 10(1) and rest breaks under regulation 12. She was also entitled to the National Minimum Wage when she was awake for the purpose of working.

Holiday pay

Berta v Hummus Brothers Ltd UKEAT/0184/08/RN
As the House of Lords is still to decide whether a claim for holiday pay which is outside the time limit provided for in the Working Time Regulations 1998 can be brought as an unauthorised deduction from wages (Commissioners of Inland Revenue v Ainsworth), the claim should have been stayed by the Tribunal rather than dismissed.

Fixed-term contracts

Secretary of State for Children Schools and Families v Fletcher UKEAT/0095/08/RN
The Secretary of State for Children Schools and Families who employs teachers in the European Schools could not claim the existence of the rule in Staff Regulations adopted by the European Schools pursuant to a 1994 Statute as objective justification under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, for imposing a 9 year fixed term rule on employees . Objective justification must relate to the specific task or employment. A general opt out is not permissible. The Directive prevails over the statute and the regulations. Permission to appeal given.

Employment status

Redrow Homes (Yorkshire) Ltd v Buckborough & Sewell UKEAT/0528/07/LA
The Tribunal had not erred in finding that the provision in the contract that the Claimants could at any time provide a substitute or refuse the work offered was a sham. It found the conditions were inserted into the document to give the appearance of relieving the Respondent of contracting with the Claimants as workers, and it did not seriously reflect the relationship between the parties. The EAT held, considering Consistent Group Ltd v Kalwak [2008] EWCA Civ 430 that a sham may be found where the parties to a contract have a common intention that the contractual document or a provision of it is not intended to create the legal rights and obligations which they set out, whether or not there is a joint intention to deceive third parties or the court.

Alternatively, if it was not a sham, the obligation to provide sufficient labour, while not an obligation personally to perform work, was an obligation personally to perform a service for the Respondent, relieving it from having to find other labour if the Claimant was not able to maintain the required rate of progress. The Claimants were therefore workers for the purposes of Regulation 2(1) of the Working Time Regulations 1998.

Continuous employment

Da Silva Junior v Composite Mouldings & Design Ltd UKEAT/0241/08/MAA
The Claimant was dismissed by the first company when it went into creditors' voluntary liquidation. Six weeks later, when the employee was absent due to a temporary cessation of work pursuant to the Employment Rights Act 1996 s212(3)(b), and so that time counted towards one year's continuous employment under s108, the second company hired him. Both companies were held in majority shareholding by the same person who had dismissed and then hired the Claimant. The EAT held that the Tribunal had erred in finding that at the time of the re-hiring the first company did not exist. Under s87 Insolvency Act 1986 a company continues to exist until it is dissolved. Although the liquidator was involved with that company, applying a purposive construction to s231(b), both companies were associated employers over which the majority shareholder had control. TUPE provisions were not considered.

Unfair dismissal

Community Integrated Care Ltd v Smith UKEATS/0015/08/MT
The Tribunal had erred in finding that the Claimant was unfairly dismissed. In the circumstances any reasonable employer could fairly have concluded that she had admitted to verbal abuse of an elderly resident, and as it was not disputed that such conduct amounted to gross misconduct, the dismissal was a sanction which a reasonable employer could properly impose. Further, given the admission, the necessity for further investigation was limited.

Race discrimination

Chagger v Abbey National plc & Hopkins UKEAT/0606/07/RN
The Tribunal had not erred in applying s54A Race Relations Act 1976 to the complaint of discrimination on the grounds of colour. The EAT held that it was inconceivable that Council Directive 2000/43/EC was not intended to apply to discrimination which is expressed as being on such a ground of colour, it was in practice necessarily an aspect or manifestation of discrimination based on "racial or ethnic origin". Although construing the section to cover race discrimination which is expressed as colour discrimination creates a drafting anomaly by reference to the language of s3(1), the fact of such an anomaly did not justify refusing to give the section the effect required by Article 8 of the directive. Okonu v G4S Security Services (UK) Ltd [2008] ICR not followed. With respect to remedy, while Polkey does not apply to the calculation of compensation for discrimination, the remedy in tort is based on a consideration of the Claimant's position if the wrong had never occured. The Tribunal should therefore have considered whether the Claimant would have been made redundant on the same occasion even if the Respondent had not discriminated against him. Further, the Tribunal was entitled to take into account the large size of the award for race discrimination when deciding on the percentage increase for failing to follow the statutory procedure.

Part-time pensions

Pike v Somerset County Council & Secretary of State for Education & Skills UKEAT/0046/08/ZT
In a claim for indirect discrimination there may be more than one logically correct pool for comparison. However it is the Claimant who has to put forward the pool and if she proves on the balance of probabilities that that her pool is logically correct the fact that another pool may have a different outcome should not defeat her claim. In the present case on the Claimant's pool there was a disparate impact. Secretary of State for Trade & Industry v Rutherford No 2 [2006] ICR 785 applied.

LEGISLATION

National Minimum Wage

On 1 October 2008 the rate for the National Minimum Wage rose to £5.73 per hour for workers aged 22 and over, £4.77 for 18-21 year olds and £3.53 for those aged 16 and 17. The accommodation offset is now £4.46 per day.
A revised guide to the National Minimum Wage was published in September 2008.

Fixed term workers

Under the Fixed Term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulations 2008, from 27 October 2008 entitlement to statutory sick pay is extended to agency workers on contracts of less than three months.

Maternity

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 has introduced enhanced rights during additional maternity leave for women whose expected week of childbirth begins on or after 5 October 2008. An employee on additional maternity leave will benefit from the terms and conditions that would have applied to her had she been at work, save for remuneration, including pension and holiday rights. In relation to bonuses, the two weeks of compulsory maternity leave is now to be counted as working time for the calculation of bonuses.

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