Issue 73 - 9th November 2009

Monday 9 November 2009

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ECJ - sick leave

Francisco Vicente Pereda v Madrid Movilidad SA, ECJ case C-277/08
The ECJ held that:"...... a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave".
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Court of Appeal

Sex Discrimination - indirect discrimination - length of service criterion

Wilson v Health and Safety Executive [2009] EWCA Civ 1074
Dismissing the HSE's appeal, the Court of Appeal held that an employer can be required to provide objective justification for the way in which it has applied a length of service criterion as well as its adoption in the first place. The Court also gave guidance on when the burden of proof shifts to the employer to establish that the use of a length of service criterion is appropriate. It noted that the ECJ in Cadman had applied a gloss to the test in Danfoss and held that it is not generally necessary to justify a length of service criterion unless the claimant raises evidence giving rise to 'serious doubts' about whether such a criterion is appropriate to attain the objective of rewarding experience.
The Court ruled that the Court of Justice was putting forward the test of 'serious doubts' as a filter on claims. The employee has to show that there is evidence from which, if established at trial, it can properly be found that the general rule does not apply. There would have to be some basis for inferring that the adoption or use (as the case may be) of the length of service criterion was disproportionate. The onus of proof on proportionality does not shift to the employee. Read more.

Employee status -Contracts of employment - employed/self-employed

Autoclenz Ltd v Belcher & ors [2009] EWCA Civ 1046
Court of Appeal find car valeters were not self employed
The Court of Appeal has upheld the decision of an employment tribunal that a group of car valeters were employees despite the fact that there was a clear written 'agreement' that described them as independent contractors and also allowed them to substitute others to carry out their duties. In the Court's view, it was not necessary for there to be a sham in order to look beyond a written agreement. Where there was a dispute as to the true contract status, the tribunal is entitled to look at the way a contract is implemented as well as the written documentation to determine what, in law, was actually agreed between the parties. In this case there was, in reality, no right to refuse work and provide an alternative, rather there was a duty to provide work personally and the valeters were employees. Read more.

High Court

Age Discrimination

R (on the application of Age UK) v Secretary of State for BIS [2009] EWHC 2336 (Admin) - Heyday Challenge
The High Court has held that the UK's default retirement age (DRA) of 65 is lawful.
The ECJ having held that the default retirement age of 65 in Reg 30 of the Age Regulations, fell within the scope of the EC Equal Treatment Framework Directive (No.2000/78). This meant this would be age discriminatory unless 'justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training' achieved by appropriate and necessary means'.
The Court was satisfied that the default retirement age was a proportionate means of achieving legitimate social policy aims such as securing the integrity of the labour market and its short-term competiveness. The Court then considered whether setting the DRA at 65 was proportionate to the social policy objectives. Mr Justice Blake indicated that, if a DRA of 65 had been introduced in 2009, he would not have found it to be proportionate. However, the challenge to the Regulations had to be judged as at the date it was begun, in 2006. On balance, the court concluded that setting the DRA at 65 was within the competence of the Government in implementing the Directive. Mr. Justice Blake went on to comment that
"the position might have been different if the government had not announced its timely review. I cannot presently see how 65 could remain as a DRA after the review." Read more.


Disability Discrimination - Associative discriminaiton

EBR Attridge Law LLP v Coleman UKEAT/0071/09/JOJ

Following the ECJ's decision in the same case that the EC Equal Treatment Framework Directive (No.2000/78) covers what is known as "associative discrimination", the EAT upheld the ET's decision that the DDA must be read in such a way as to give effect to the Directive. The EAT set out the necessary amendments to the DDA as follow:

  • A new sub-section (5A) to be added to S.3A - A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person;
  • A new sub-section (3) to be added to S. 3B - A person also subjects a person (A) to harassment where, for a reason which relates to the disability of another person (B), he engages in unwanted conduct which has the purpose or effect of - (a) violating A's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Sub-section (2) applies to this sub-section, save that the relevant perception is that of A.
  • S.4(1) and (2), amended to add in the introductory words after 'a disabled person' the phrase 'or in a case falling with S.3(5A), any person'.
  • S.4(3)(a) and (b) amended to add after 'a disabled person' the phrase 'or in a case falling with S.3B(3), any person'.

The EAT went on to hold that the obligation to read the DDA in line with the above amendments would bite from the point at which the Directive was implemented in the United Kingdom - 1 October 2004 - and not the 3 December 2006 deadline for implementing the Directive.
Read more.

Disability Discrimination: Exclusions/jurisdictions

X v 1) Mid Sussex Citizens Advice Bureau (2) Lin Challis UKEAT/0220/08/SM,UKEAT/0511/08/SM
A volunteer worker with the CAB, was not entitled by the DDA to claim disability discrimination. The Government is not in breach of the Framework Directive in this regard, and s4(2)(d) and s68 of the DDA do not fall to be read down or rewritten (by reference to Marleasing or Mangold) so as to extend protection to voluntary workers without a contract. The Employment Judge was also entitled to find that the CAB arrangements were not within s4(1)(a) of the DDA. Read more.


Government consult on new agency rights

The UK Government has published draft regulations to implement the Temporary Agency Work Directive. The regulations have been published with a consultation period ending 11 December 2009. The Regulations are then expected to be placed before Parliament early in 2010, but will not come into effect until October 2011.

The core provisions of the Regulations provide for agency workers who have been employed for more than 12 weeks to be paid by the agency the same monies which are paid by end users to comparable directly employed workers. There are a number of key issues that are set out in the draft regulations for consultation, including how the 12 week qualifying period is calculated - particularly where there are breaks in employment. Now the draft regulations are published, we have a clearer picture about the way the law is likely to work, but changes may still take place either to this version of the Regulations or from an incoming Government after the General Election. Read more.

The Work and Families (Increase of Maximum Amount) Order 2009 SI 2009/1903 raises the maximum amount of a week's pay, for the purpose of calculating certain statutory payments, from £350 to £380 from 1 October.

The National Minimum Wage Regulations 1999 (Amendment) Regulations 2009 SI 2009/1902 raised the level of the national minimum wage (NMW) from 1 October 2009-11-08 the new rates are:

  • £5.80 (from £5.73) an hour for workers aged 22 and over;
  • £4.83 (from £4.77) for 18 to 21-year-olds; and
  • £3.57 (from £3.53) for 16 and 17-year-olds.

The Regulations also change the law so that tips can no longer be used to top up wages to meet the NMW. The Department for Business, Innovation and Skills has published a 'Code of Best Practice' on tipping and service charges,

As from 12th October 2009 the Vetting and Barring Scheme comes into effect for checking the suitability of potential employees to work with children and vulnerable adults under The Safeguarding Vulnerable Groups Act 2006 : The following provision came into force at that date

  • It is a criminal offence for a barred individual to seek or undertake work with vulnerable groups or for "Regulated Activity Providers" knowingly to employ such a person;
  • the previous barring lists (POVA, POCA and List 99) are replaced by two new barred lists, both administered by the Independent Safeguarding Authority rather than by different Government departments. Checks of the two lists can be made as part of an Enhanced CRB check;
  • employers, social services and professional regulators must refer to the ISA information about why they stopped or considered stopping an individual from working with vulnerable groups where they consider them to have caused harm or posed a risk.

The next stages will be:

  • July 2010 - new entrants and employees looking to work or volunteer with vulnerable groups can start to apply to become ISA registered;
  • November 2010 - new entrants must become ISA registered before starting work with vulnerable groups; and
  • April 2011 - existing workers must start to become ISA-registered.

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