Employment law quizEmployment law quiz20122012

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Question oneQuestion one

1. As part of its proposals to 1. As part of its proposals to change the way disputes are change the way disputes are dealt with the Coalition has dealt with the Coalition has already made changes to already made changes to employment tribunals and employment tribunals and several more are on the cards.several more are on the cards.

What changes have already What changes have already taken place?taken place?

What changes are proposed?What changes are proposed?

Answer question oneAnswer question one 1. It has increased the qualifying service for 1. It has increased the qualifying service for

unfair dismissal to two years. Employment unfair dismissal to two years. Employment judges now sit alone to hear unfair dismissal judges now sit alone to hear unfair dismissal cases with provisions for a full panel.cases with provisions for a full panel.

Changes include increased use of mediation, all Changes include increased use of mediation, all claims to go to ACAS pre-conciliation, the claims to go to ACAS pre-conciliation, the introduction of fees to start and progress a claim, introduction of fees to start and progress a claim, proposed cap on compensatory payments (one proposed cap on compensatory payments (one year’s pay or median earnings currently £28k)year’s pay or median earnings currently £28k)

In addition Mr Justice Underhill has concluded his In addition Mr Justice Underhill has concluded his review of tribunals. Most changes are technical review of tribunals. Most changes are technical and there will be a rewrite of claim forms. and there will be a rewrite of claim forms.

Question twoQuestion two

2. There has been much controversy over 2. There has been much controversy over the proposals to allow “protected the proposals to allow “protected conversations”.conversations”.

What is meant by a protected conversation?What is meant by a protected conversation? How does this differ to a “without prejudice” How does this differ to a “without prejudice”

conversation?conversation? How would this link to a compromise How would this link to a compromise

agreement?agreement? What will compromise agreements be called What will compromise agreements be called

in the future?in the future?

Answer question twoAnswer question two 2. These will allow frank conversations about employment 2. These will allow frank conversations about employment

issue without the existence of a formal dispute.issue without the existence of a formal dispute. Without prejudice discussions required there to be a formal Without prejudice discussions required there to be a formal

dispute on the table which prevented discussions before dispute on the table which prevented discussions before things had got to a dispute stage.things had got to a dispute stage.

Concerns have been expressed that the new rules will allow Concerns have been expressed that the new rules will allow bullying of staff.bullying of staff.

New rules will allow employers to offer “settlement New rules will allow employers to offer “settlement agreements” (new name for compromise agreements) agreements” (new name for compromise agreements) before a formal dispute arisesbefore a formal dispute arises

Employees can reject an offer and proceed to a tribunal but Employees can reject an offer and proceed to a tribunal but will not be able to cite anything from the talkswill not be able to cite anything from the talks

Proposals talk about “Proposals talk about “confidentiality of negotiations before confidentiality of negotiations before termination of employment”termination of employment”

Only applies to unfair dismissalOnly applies to unfair dismissal Includes discussions and offers madeIncludes discussions and offers made

Question threeQuestion three

3. In its Modern Workplace 3. In its Modern Workplace consultative document the consultative document the Government is proposing to make Government is proposing to make changes to the following areas:changes to the following areas: Equal pay audits;Equal pay audits; Flexible working;Flexible working; Parental provisions;Parental provisions; Working time holidays.Working time holidays.

What are these proposals?What are these proposals?

Answer question threeAnswer question three 3. Government has proceeded with proposals to 3. Government has proceeded with proposals to

require tribunals to order an employer to conduct require tribunals to order an employer to conduct an equal pay audit where it has discriminated on an equal pay audit where it has discriminated on grounds of sex in contractual and non-contractual grounds of sex in contractual and non-contractual pay. Obliged to order employer to conduct audit pay. Obliged to order employer to conduct audit – failure = financial penalty.– failure = financial penalty.

Will go ahead with flexible working for all but no Will go ahead with flexible working for all but no details yet available.details yet available.

Will go ahead with parental leave changes Will go ahead with parental leave changes including extending unpaid 3 months to 4 including extending unpaid 3 months to 4 months. May raise age of child from 5.months. May raise age of child from 5.

Proposals to change maternity/paternity leave so Proposals to change maternity/paternity leave so that parents can more equally share and take that parents can more equally share and take more flexibly eg at same time, part-time etc more flexibly eg at same time, part-time etc subject to business needsubject to business need

Answer question three continuedAnswer question three continued

3. Working time holidays highly problematic. Since 3. Working time holidays highly problematic. Since consultative document issued many judgements of ECJ and consultative document issued many judgements of ECJ and UK courts which will affect outcome.UK courts which will affect outcome.

Need to implement Stringer ie those on long term sickness Need to implement Stringer ie those on long term sickness absence will continue to accrue holidays and can carry absence will continue to accrue holidays and can carry over.over.

Proposals to carry over 20 only not longer UK holidays Proposals to carry over 20 only not longer UK holidays (consistent with ECJ ruling that Member states have (consistent with ECJ ruling that Member states have discretion to allow only those holidays in the directive or discretion to allow only those holidays in the directive or can extend to those given by national law). Longer for can extend to those given by national law). Longer for maternity leave.maternity leave.

Problem with two main issues ie whether individuals need Problem with two main issues ie whether individuals need to have requested holidays in order for this to happen – to have requested holidays in order for this to happen – recent caselaw says no need.recent caselaw says no need.

Other issue is how long the carry over will be. ECJ has Other issue is how long the carry over will be. ECJ has stated it has to be at least as long as the reference period stated it has to be at least as long as the reference period ie in the UK 12 months.ie in the UK 12 months.

Question fourQuestion four

4. As part of deregulation the 4. As part of deregulation the Government is proposing changes to Government is proposing changes to TUPE and to redundancy.TUPE and to redundancy.

What changes is the Government What changes is the Government proposing to TUPE?proposing to TUPE?

What changes is the Government What changes is the Government proposing to redundancy?proposing to redundancy?

Answer question fourAnswer question four 4. The TUPE changes may be problematic as the 4. The TUPE changes may be problematic as the

main focus is on harmonisation of terms and main focus is on harmonisation of terms and conditions which is absolutely prohibited by the conditions which is absolutely prohibited by the directive.directive.

Changes to redundancy include looking at the Changes to redundancy include looking at the definition of “establishment” – note however following definition of “establishment” – note however following Rockfon, the ECJ has already rules in this area.Rockfon, the ECJ has already rules in this area.

A more likely change is to consultation periods for A more likely change is to consultation periods for large scale redundancies which will reduce from the large scale redundancies which will reduce from the current 90 days to either 30 or 45 days.current 90 days to either 30 or 45 days.

There will be a Code of Practice looking at when There will be a Code of Practice looking at when consultation should start, who should be consulted, consultation should start, who should be consulted, what should be discussed, how consultation should be what should be discussed, how consultation should be conducted, when consultation can be considered to conducted, when consultation can be considered to be complete etcbe complete etc

Question fiveQuestion five 5. In 5. In City of Edinburgh Council v City of Edinburgh Council v

WilkinsonWilkinson a number of admin and clerical a number of admin and clerical female workers claimed equal pay with female workers claimed equal pay with male refuse collectors, gardeners, male refuse collectors, gardeners, gravediggers and roadworkers.gravediggers and roadworkers.

In order to make a claim the individuals In order to make a claim the individuals have to work for the same employer – here have to work for the same employer – here they did and had to either work in the they did and had to either work in the same establishment – they did not or have same establishment – they did not or have common terms and conditions.common terms and conditions.

The case was heard by the employment The case was heard by the employment tribunal, the EAT and the Court of Session. tribunal, the EAT and the Court of Session. What was the decision?What was the decision?

Answer question fiveAnswer question five

5. The tribunal held that they had common 5. The tribunal held that they had common terms and conditions as laid down in the terms and conditions as laid down in the Red Book. It was irrelevant that they Red Book. It was irrelevant that they worked in different places.worked in different places.

The EAT held they worked at the same The EAT held they worked at the same establishment even though they did not establishment even though they did not work in the same physical places. They work in the same physical places. They were at a single establishment – it was were at a single establishment – it was unduly restrictive to limit the concept of unduly restrictive to limit the concept of establishment to a single location. (Note establishment to a single location. (Note previous cases had looked at single source)previous cases had looked at single source)

Answer to question fiveAnswer to question five 5. The Court of Session disagreed with the interpretation 5. The Court of Session disagreed with the interpretation

of establishment. The wording of the legislation was of establishment. The wording of the legislation was worked “at” not “in” the same establishment. worked “at” not “in” the same establishment.

This indicated a locality rather than a body or This indicated a locality rather than a body or undertaking.undertaking.

However the Court of Session agreed that they had However the Court of Session agreed that they had common terms and conditions.common terms and conditions.

If a male worker moved to a different establishment he If a male worker moved to a different establishment he would take with him his existing terms and conditions would take with him his existing terms and conditions (note this was not the case with the earlier case of (note this was not the case with the earlier case of North v Dumfries and Galloway CouncilNorth v Dumfries and Galloway Council where the where the men’s terms would have had to radically change if they men’s terms would have had to radically change if they moved to a different location).moved to a different location).

Whether or not an employee was subject to the terms of Whether or not an employee was subject to the terms of the Red book was entirely dependent on the the Red book was entirely dependent on the nature of nature of the postthe post irrespective of location or establishment. irrespective of location or establishment.

Question sixQuestion six 6. In 6. In McDougall v Barclays Bank plcMcDougall v Barclays Bank plc the the

applicant was a Seventh Day Adventist Christian. applicant was a Seventh Day Adventist Christian. Due to her beliefs she could not work on the Due to her beliefs she could not work on the Sabbath which begins at sunset on Friday and Sabbath which begins at sunset on Friday and ends at sunset on Saturday. She was put forward ends at sunset on Saturday. She was put forward for a telephone interview where she was asked if for a telephone interview where she was asked if she could work Saturdays. She said no and the she could work Saturdays. She said no and the interview was terminated.interview was terminated.

She claimed direct and indirect discrimination.She claimed direct and indirect discrimination. Barclays gave evidence that it made special Barclays gave evidence that it made special

arrangements for parents who due to childcare arrangements for parents who due to childcare commitments could not work Saturdays.commitments could not work Saturdays.

Did she succeed in her claims?Did she succeed in her claims?

Answer question sixAnswer question six 6. She won both claims. Her direct discrimination 6. She won both claims. Her direct discrimination

claim succeeded by comparing her to a person who claim succeeded by comparing her to a person who could not work Saturdays due to childcare could not work Saturdays due to childcare commitments. The bank would have made other commitments. The bank would have made other arrangements.arrangements.

Her indirect discrimination claim ie that the Her indirect discrimination claim ie that the provision, criterion or practice to work Saturdays provision, criterion or practice to work Saturdays affected someone of her religion could not be affected someone of her religion could not be justified by the same practice as above ie that the justified by the same practice as above ie that the bank could have accommodated this.bank could have accommodated this.

Cf. Cf. Patrick v IH Sterile Services LtdPatrick v IH Sterile Services Ltd dismissal dismissal after refusing to work Sundays (Jehovah’s Witness). after refusing to work Sundays (Jehovah’s Witness). Shift system. Held Sunday working justified. Shift system. Held Sunday working justified. Company had a contractual obligation to provide Company had a contractual obligation to provide sterile laboratory services – this was a legitimate sterile laboratory services – this was a legitimate aim and sharing out the work equally across the aim and sharing out the work equally across the workforce was an appropriate means of achieving workforce was an appropriate means of achieving that aim.that aim.

Question sevenQuestion seven 7. In 7. In Crisp v Apple RetailCrisp v Apple Retail Crisp posted Crisp posted

derogatory statements on Facebook about Apple derogatory statements on Facebook about Apple and its products.and its products.

They were made on a private page and outside of They were made on a private page and outside of working hours.working hours.

One of his colleagues who had access to the page One of his colleagues who had access to the page passed the information on to the store manager.passed the information on to the store manager.

Crisp was dismissed for gross misconduct.Crisp was dismissed for gross misconduct. Apple had a social media policy and it was well Apple had a social media policy and it was well

known that commentary on Apple products or known that commentary on Apple products or critical remarks about the brand were prohibited.critical remarks about the brand were prohibited.

Was this a fair dismissal?Was this a fair dismissal?

Answer question sevenAnswer question seven 7. 7. Despite having private facebook settings the tribunal Despite having private facebook settings the tribunal

decided that there was nothing to prevent friends from decided that there was nothing to prevent friends from copying and passing on comments so he was unable to rely copying and passing on comments so he was unable to rely on the right to privacy in Article 8 of the Convention for on the right to privacy in Article 8 of the Convention for Human Rights.Human Rights.

He retained the right to freedom of expression but Apple He retained the right to freedom of expression but Apple successfully argued that it was justified and proportionate to successfully argued that it was justified and proportionate to limit this right in order to protect its commercial reputation.limit this right in order to protect its commercial reputation.

Dismissal was fair.Dismissal was fair. Note also Note also Teggart v Tele Tech LtdTeggart v Tele Tech Ltd – employee on home – employee on home

computer posted offensive comments about female member computer posted offensive comments about female member of staff. She was told as was the company. Dismissal for of staff. She was told as was the company. Dismissal for bullying and harassment.bullying and harassment.

Claimed breach of human rights. Held bullying and Claimed breach of human rights. Held bullying and harassment of victim and company vicariously liable. No harassment of victim and company vicariously liable. No breach of human rights – once post comments right to breach of human rights – once post comments right to privacy has gone. Right to manifest beliefs apply to a privacy has gone. Right to manifest beliefs apply to a philosophy not comments about other people.philosophy not comments about other people.

Question eightQuestion eight 8. In 8. In Readman v Devon Primary Care TrustReadman v Devon Primary Care Trust

Mrs R was a nurse who was to be made Mrs R was a nurse who was to be made redundant. Her employer offered her three redundant. Her employer offered her three alternative posts.alternative posts.

One of these, a hospital Matron position was held One of these, a hospital Matron position was held by the tribunal to be suitable alternative by the tribunal to be suitable alternative employment.employment.

She rejected all three posts as she wanted to She rejected all three posts as she wanted to remain in community nursing.remain in community nursing.

Her employer refused to pay her a redundancy Her employer refused to pay her a redundancy payment on the grounds that she had rejected payment on the grounds that she had rejected suitable alternative employment?suitable alternative employment?

What did the appeal court decide?What did the appeal court decide?

Answer question eightAnswer question eight 8. The EAT held that the test for refusal of 8. The EAT held that the test for refusal of

suitable alternative employment is subjective not suitable alternative employment is subjective not objective (ie would a reasonable employee have objective (ie would a reasonable employee have rejected the work).rejected the work).

It was determined by looking at the employee in It was determined by looking at the employee in question.question.

This involves considering why she had rejected This involves considering why she had rejected the work and whether this was a sound and the work and whether this was a sound and justifiable reason for turning it down.justifiable reason for turning it down.

The EAT held that it was ie her desire to stay in The EAT held that it was ie her desire to stay in community nursing.community nursing.

She was therefore entitled to a redundancy She was therefore entitled to a redundancy payment.payment.

Question nineQuestion nine 9. In 9. In Crawford v Suffolk Mental Health Partnership Crawford v Suffolk Mental Health Partnership

NHS TrustNHS Trust two nurses were dismissed for mishandling a two nurses were dismissed for mishandling a patient with dementia.patient with dementia.

The patient was violent and aggressive, swearing, kicking The patient was violent and aggressive, swearing, kicking and punching staff. The two nurses who were long serving and punching staff. The two nurses who were long serving with no disciplinary record had tied a sheet around the with no disciplinary record had tied a sheet around the patient and his wheelchair and tied it to a table as he had patient and his wheelchair and tied it to a table as he had been difficult to control.been difficult to control.

The employer also referred the matter to the police but no The employer also referred the matter to the police but no charges were brought.charges were brought.

The employees were suspended for a long period prior to The employees were suspended for a long period prior to the dismissal causing them considerable distress.the dismissal causing them considerable distress.

The employees alleged that the suspension was a breach of The employees alleged that the suspension was a breach of trust and confidence and amounted to guilty until proven trust and confidence and amounted to guilty until proven innocent.innocent.

They argued that the length of the suspension caused They argued that the length of the suspension caused emotional and psychological consequences and damage to emotional and psychological consequences and damage to their reputation. They argued dismissal was unfair.their reputation. They argued dismissal was unfair.

Answer question nineAnswer question nine 9. The Employment tribunal found dismissal unfair. The EAT held 9. The Employment tribunal found dismissal unfair. The EAT held

that it was fair. The nurses admitted the restraint but argued it that it was fair. The nurses admitted the restraint but argued it was not an assault and was the only way to control the patient. was not an assault and was the only way to control the patient. Only four staff were working in a ward of 17 difficult patients.Only four staff were working in a ward of 17 difficult patients.

The tribunal felt there was no negligence. That tying the The tribunal felt there was no negligence. That tying the patient’s chair to a table leg was not an assault. The ET was patient’s chair to a table leg was not an assault. The ET was critical of the length of the suspension. Dismissal in these kind critical of the length of the suspension. Dismissal in these kind of cases is a career-changing event.of cases is a career-changing event.

The EAT held that the tribunal had substituted its own view of The EAT held that the tribunal had substituted its own view of what was reasonable rather than looking at the employer’s view.what was reasonable rather than looking at the employer’s view.

The Court of Appeal expressed concern about the readiness of The Court of Appeal expressed concern about the readiness of employers to suspend employees accused of gross misconduct. employers to suspend employees accused of gross misconduct. It could often be a knee-jerk reaction in which case it would It could often be a knee-jerk reaction in which case it would breach trust and confidence. Hard to believe the employer breach trust and confidence. Hard to believe the employer believed these nurses posed a real risk of repeating the believed these nurses posed a real risk of repeating the behaviour. The court was astonished the matter was referred to behaviour. The court was astonished the matter was referred to the police. The hospital owed a duty to the staff as well as the the police. The hospital owed a duty to the staff as well as the public.public.

Each case should be decided on its own merits looking at why Each case should be decided on its own merits looking at why suspension is important. In any case it should be brief.suspension is important. In any case it should be brief.

Not open to a reasonable employer to dismiss for tying chair to Not open to a reasonable employer to dismiss for tying chair to table.table.

Question tenQuestion ten 10. In 10. In Eddie Stobart Ltd v MormanEddie Stobart Ltd v Morman the branch of the the branch of the

well-known transport company had a depot with 35 well-known transport company had a depot with 35 employees servicing 5 clients.employees servicing 5 clients.

The number of clients reduced to two, one of those lost The number of clients reduced to two, one of those lost was a major client Vion.was a major client Vion.

ES closed their site.ES closed their site. The Vion work transferred to FJG Logistics Ltd.The Vion work transferred to FJG Logistics Ltd. ES took the view that all employees engaged wholly or ES took the view that all employees engaged wholly or

at least 50% of their time on Vion work should transfer at least 50% of their time on Vion work should transfer to the new contractor.to the new contractor.

Those working on the day shift spent most of their time Those working on the day shift spent most of their time on Vion work.on Vion work.

Warehouse operatives worked on a variety of work for all Warehouse operatives worked on a variety of work for all clients but it could be ascertained by bar codes which clients but it could be ascertained by bar codes which worked mainly on Vion work in the 90 days before the worked mainly on Vion work in the 90 days before the change. Did employees transfer?change. Did employees transfer?

Answer question tenAnswer question ten 10. No. The EAT held that it is necessary both to 10. No. The EAT held that it is necessary both to

consider whether there is “consider whether there is “an organised grouping of an organised grouping of employees”employees” and whether they are “ and whether they are “assigned to a assigned to a particular amount of work or clients.”particular amount of work or clients.”

Here the employees were organised in relation to their Here the employees were organised in relation to their shifts ie time of day worked, location ie warehouseshifts ie time of day worked, location ie warehouse

They were not organised in relation to a particular They were not organised in relation to a particular customercustomer

It was chance which customer’s work they might do It was chance which customer’s work they might do and in some cases mainly did work – in reality rather and in some cases mainly did work – in reality rather than choice – for one clientthan choice – for one client

The employees worked for all clients not one in The employees worked for all clients not one in particularparticular

Once the work went and the employees did not Once the work went and the employees did not transfer, they remained with ES who would be transfer, they remained with ES who would be responsible for redundancy payments.responsible for redundancy payments.

Question elevenQuestion eleven 11. In 11. In Abellio London v CentreWest London Abellio London v CentreWest London

BusesBuses the claimants were bus drivers who worked in the claimants were bus drivers who worked in the company’s Westbourne Park depot. The bus route the company’s Westbourne Park depot. The bus route was transferred to another bus company which did was transferred to another bus company which did not have a depot in Westbourne (near the employees’ not have a depot in Westbourne (near the employees’ homes).homes).

All the employees objected to transferring to the new All the employees objected to transferring to the new depot in Battersea as it involved extra daily travelling.depot in Battersea as it involved extra daily travelling.

They resigned.They resigned. Note they did not resign merely because of the new Note they did not resign merely because of the new

employer but because of a detrimental change to employer but because of a detrimental change to their working conditions.their working conditions.

The work was still there, the bus routes were the The work was still there, the bus routes were the same, the new employer wanted to take them on.same, the new employer wanted to take them on.

Did they succeed in their claim?Did they succeed in their claim?

Answer question elevenAnswer question eleven 11. The tribunal and the EAT held that the 11. The tribunal and the EAT held that the

changes were substantial involving a changes were substantial involving a material detriment to their terms and material detriment to their terms and conditions.conditions.

The move was also a repudiatory breach of The move was also a repudiatory breach of contract which was a constructive dismissal.contract which was a constructive dismissal.

The dismissals were automatically unfair The dismissals were automatically unfair being by reason of the transfer.being by reason of the transfer.

Substantial changes to working conditions is Substantial changes to working conditions is wider than contractual conditions.wider than contractual conditions.

It is not necessary for changes under this It is not necessary for changes under this part of the legislation (since 2006) to be a part of the legislation (since 2006) to be a breach of contract.breach of contract.

Question twelveQuestion twelve

12. In 12. In USA v NolanUSA v Nolan the USA was closing the USA was closing its army bases in the UK. Consultation on its army bases in the UK. Consultation on the closure began almost three months the closure began almost three months after the decision to close was made.after the decision to close was made.

Miss Nolan made a claim that consultation Miss Nolan made a claim that consultation was inadequate and should have started was inadequate and should have started much earlier.much earlier.

The case was referred to the European The case was referred to the European Court of Justice to decide just when Court of Justice to decide just when consultation on redundancies should consultation on redundancies should begin.begin.

Answer question twelveAnswer question twelve 12. The Advocate General held that the 12. The Advocate General held that the

duty arises when “duty arises when “a strategic or commercial a strategic or commercial decision which compels the employer to decision which compels the employer to contemplate or to plan for collective contemplate or to plan for collective redundancies is made by a body or entity redundancies is made by a body or entity which controls the employer.”which controls the employer.”

It must begin soon enough to have the It must begin soon enough to have the possibility of being effective.possibility of being effective.

Unfortunately this is not much help in pin Unfortunately this is not much help in pin pointing the moment when it should begin.pointing the moment when it should begin.

This may be helped by the Government’s This may be helped by the Government’s proposal to have a code of practice on proposal to have a code of practice on redundancy consultation. redundancy consultation.

Question thirteenQuestion thirteen 13. In 13. In Wilcox v Birmingham CAB Services LtdWilcox v Birmingham CAB Services Ltd W suffered W suffered

from agoraphobia and travel anxiety.from agoraphobia and travel anxiety. She was employed at a Citizen Advice Bureau and was She was employed at a Citizen Advice Bureau and was

required to travel and work in any one of five CABs in required to travel and work in any one of five CABs in Birmingham.Birmingham.

She asked to work some of the time from home but was She asked to work some of the time from home but was refused.refused.

She was encouraged to seek medical advice for her anxiety She was encouraged to seek medical advice for her anxiety but did not. Her employer did not know about her but did not. Her employer did not know about her agoraphobia.agoraphobia.

She went off with stress. A number of meetings took place She went off with stress. A number of meetings took place but she did not mention her travel anxiety, did not consult her but she did not mention her travel anxiety, did not consult her GP about it and was obstructive in the face of her employer’s GP about it and was obstructive in the face of her employer’s attempts to obtain a medical report.attempts to obtain a medical report.

She claimed disability discrimination.She claimed disability discrimination.

Answer question thirteenAnswer question thirteen 13. The EAT considered the test when the employer alleged 13. The EAT considered the test when the employer alleged

ignorance of disability.ignorance of disability. It held that no duty to make reasonable adjustments arises It held that no duty to make reasonable adjustments arises

unless the employer knows (actually or constructively) unless the employer knows (actually or constructively) bothboth that the employee is disabled that the employee is disabled andand that the employer’s that the employer’s practices put the disabled person at a disadvantage. practices put the disabled person at a disadvantage.

Unless the employer knows about disability it cannot know Unless the employer knows about disability it cannot know about the disadvantage. about the disadvantage.

In the present case the employer could not have known about In the present case the employer could not have known about the disability merely from a request to work from home.the disability merely from a request to work from home.

Note the employer needs to know about the disability and the Note the employer needs to know about the disability and the impact of the disability. An employer might know that the impact of the disability. An employer might know that the employee had a bad back or suffered from depression but employee had a bad back or suffered from depression but might be unaware of how the employee was affected by this. might be unaware of how the employee was affected by this. However there is also the question of whether the employer However there is also the question of whether the employer knows or should have known and so there is an obligation to knows or should have known and so there is an obligation to try and find out.try and find out.

Question fourteenQuestion fourteen 14. In 14. In Woodcock v Cumbria Primary Care TrustWoodcock v Cumbria Primary Care Trust

the Court of Appeal had to decide whether cost saving the Court of Appeal had to decide whether cost saving could be a legitimate defence in an age discrimination could be a legitimate defence in an age discrimination casecase

Mr W was made redundant (genuinely). Various things Mr W was made redundant (genuinely). Various things led to a delay in him being given notice but he was led to a delay in him being given notice but he was eventually given 12 months notice of redundancy prior eventually given 12 months notice of redundancy prior to his 49to his 49thth birthday. birthday.

He argued that this was so his notice would expire and He argued that this was so his notice would expire and he would leave prior to his 50he would leave prior to his 50thth birthday. birthday.

Had he left after his 50Had he left after his 50thth birthday he would have been birthday he would have been entitled to an immediate pension and the trust would entitled to an immediate pension and the trust would have had to find the finance to pay for this.have had to find the finance to pay for this.

Had the proper procedures been carried out he would Had the proper procedures been carried out he would have been dismissed long before his 50have been dismissed long before his 50thth birthday. birthday.

He claimed age discriminationHe claimed age discrimination

Answer question fourteenAnswer question fourteen 14. A tribunal held that this was age discrimination but 14. A tribunal held that this was age discrimination but

justified. The treatment was a proportionate means of justified. The treatment was a proportionate means of achieving the trust’s legitimate aim of achieving a cost achieving the trust’s legitimate aim of achieving a cost effective dismissal. effective dismissal.

The EAT agreed making comments on “costs plus” ie an The EAT agreed making comments on “costs plus” ie an employer cannot rely on costs alone but could rely on cost employer cannot rely on costs alone but could rely on cost with something more.with something more.

The Court of Appeal accepted that it would be rare for cost The Court of Appeal accepted that it would be rare for cost alone to justify discrimination. However cost can be part of alone to justify discrimination. However cost can be part of a legitimate aim.a legitimate aim.

Here the aim was not simply to save cost. Dismissing a Here the aim was not simply to save cost. Dismissing a redundant employee was a legitimate aim and part of that redundant employee was a legitimate aim and part of that aim was to save the additional element of cost that comes aim was to save the additional element of cost that comes with an early pension.with an early pension.

Note Note HM Land Registry v BensonHM Land Registry v Benson – VR exercise – – VR exercise – rejected applicants who would cost more – usually older – rejected applicants who would cost more – usually older – EAT held justified due to huge extra cost ie £19.7 m more.EAT held justified due to huge extra cost ie £19.7 m more.

Question fifteenQuestion fifteen 15. In 15. In Seldon v Clarkson Wright and JakesSeldon v Clarkson Wright and Jakes Mr Mr

Seldon who was a partner in a law firm, was Seldon who was a partner in a law firm, was retired at 65 against his will.retired at 65 against his will.

He claimed age discrimination.He claimed age discrimination. The employer accepted that this was age The employer accepted that this was age

discrimination but argued that it was justified in discrimination but argued that it was justified in order for succession planning and that as a senior order for succession planning and that as a senior partner he was blocking progression of other partner he was blocking progression of other staff.staff.

In addition the employer argued that dismissal of In addition the employer argued that dismissal of older staff saved the embarrassment for all older staff saved the embarrassment for all parties of managing poor performance.parties of managing poor performance.

The case went to the Supreme Court. What did it The case went to the Supreme Court. What did it decide?decide?

Answer question fifteenAnswer question fifteen 15. The Supreme Court held that in order to justify direct age 15. The Supreme Court held that in order to justify direct age

discrimination it is not enough for the employer to show a discrimination it is not enough for the employer to show a business need, there has to be some overriding social policy.business need, there has to be some overriding social policy.

Note age discrimination is the only area where there can be Note age discrimination is the only area where there can be justification. The case is a reminder that justification for direct justification. The case is a reminder that justification for direct discrimination involves more than for indirect discrimination ie discrimination involves more than for indirect discrimination ie there must be a social policy as well as business need.there must be a social policy as well as business need.

Here the social policy was the impact on other staff ie succession Here the social policy was the impact on other staff ie succession and blocking promotion opportunities.and blocking promotion opportunities.

Whilst accepting that there might be justification for forced Whilst accepting that there might be justification for forced retirement, the case was referred back on the basis of what age retirement, the case was referred back on the basis of what age that might be ie 65, 66, 70 or other.that might be ie 65, 66, 70 or other.

Firms will have to provide statistical arguments that retiring staff Firms will have to provide statistical arguments that retiring staff at a certain age, really does provide these opportunities for other at a certain age, really does provide these opportunities for other staff.staff.

See See Fuchs v Land HessenFuchs v Land Hessen where the ECJ accepted the argument where the ECJ accepted the argument that state prosecutors could be retired at 65 to encourage the that state prosecutors could be retired at 65 to encourage the promotion of a younger workforce. A similar argument succeeded promotion of a younger workforce. A similar argument succeeded in in Hornfeldt v Posten Meddelande ABHornfeldt v Posten Meddelande AB

Question sixteenQuestion sixteen 16.16. In In McGraw v London Ambulance Service NHS Trust McGraw v London Ambulance Service NHS Trust Mr Mr

McGraw was employed as a paramedic.McGraw was employed as a paramedic. He declared in 2005 that he had been abusing Entonox which is He declared in 2005 that he had been abusing Entonox which is

used as an anaesthetic and is carried in ambulances and kept in used as an anaesthetic and is carried in ambulances and kept in secure locations at NHS sites.secure locations at NHS sites.

Whilst on sick leave (continued abuse and erratic behaviour resulting Whilst on sick leave (continued abuse and erratic behaviour resulting in depression and anxiety) he visited an ambulance station at 2.00 in depression and anxiety) he visited an ambulance station at 2.00 am and was challenged by another employee.am and was challenged by another employee.

He was reported to be heavily intoxicated and visibly disorientated, He was reported to be heavily intoxicated and visibly disorientated, unsteady on his feet with slurred speech.unsteady on his feet with slurred speech.

Other employees seeing him carrying a canister of Entonox. Other employees seeing him carrying a canister of Entonox. He was dismissed for gross misconduct.He was dismissed for gross misconduct. He claimed unfair dismissal and discrimination arising from a He claimed unfair dismissal and discrimination arising from a

disability. He argued that due to his depression he had stolen disability. He argued that due to his depression he had stolen Entonox and this was due to his medication. Did his argument Entonox and this was due to his medication. Did his argument succeed?succeed?

Answer question sixteenAnswer question sixteen

16.16. The tribunal asked whether his attempt to The tribunal asked whether his attempt to steal Entonox arose from his depression ie was a steal Entonox arose from his depression ie was a result, outcome or effect of his depression.result, outcome or effect of his depression.

It could find no link between the depression and It could find no link between the depression and attempted theft or between the medication he attempted theft or between the medication he was taking and his actions.was taking and his actions.

Medication was likely to make him sleepy and not Medication was likely to make him sleepy and not prone to committing theft.prone to committing theft.

If it was wrong it would still have found dismissal If it was wrong it would still have found dismissal was an appropriate means of achieving a was an appropriate means of achieving a legitimate aim.legitimate aim.

Question seventeenQuestion seventeen 17. In 17. In Leach v OfcomLeach v Ofcom L was employed by Ofcom. L was employed by Ofcom. Before starting the job he travelled to Cambodia and was Before starting the job he travelled to Cambodia and was

arrested on suspicion of having sexually abused children arrested on suspicion of having sexually abused children on a previous visit but was not charged.on a previous visit but was not charged.

The UK Serious and Organised Crime Authority became The UK Serious and Organised Crime Authority became aware of the allegations as did the British press.aware of the allegations as did the British press.

The Metropolitan Police Child Abuse Investigation The Metropolitan Police Child Abuse Investigation Command contacted Ofcom and gave information under a Command contacted Ofcom and gave information under a limited disclosure procedure which identified a number of limited disclosure procedure which identified a number of complaints and stated this was the tip of the iceberg.complaints and stated this was the tip of the iceberg.

A disciplinary hearing was conducted and L denied all A disciplinary hearing was conducted and L denied all allegations.allegations.

Ofcom’s press adviser gave the view that there was Ofcom’s press adviser gave the view that there was significant reputational damage to Ofcom if the significant reputational damage to Ofcom if the allegations were true and covered in the press.allegations were true and covered in the press.

He was dismissed for breach of trust and confidence. He was dismissed for breach of trust and confidence. Was this fair?Was this fair?

Answer question seventeenAnswer question seventeen 17. A tribunal accepted dismissal was fair for an SOSR reason ie 17. A tribunal accepted dismissal was fair for an SOSR reason ie

breakdown of trust and confidence.breakdown of trust and confidence. Ofcom had not simply accepted the word of the various authorities, it had Ofcom had not simply accepted the word of the various authorities, it had

attempted to find out what happened and hold investigatory and attempted to find out what happened and hold investigatory and disciplinary proceedings – at least as much as was possible given the disciplinary proceedings – at least as much as was possible given the circumstances.circumstances.

EAT held that Ofcom was entitled to protect its reputation in the event EAT held that Ofcom was entitled to protect its reputation in the event that the allegations were true.that the allegations were true.

The Court of Appeal considered that the only relevant question was The Court of Appeal considered that the only relevant question was whether the reason for dismissal could be SOSR. whether the reason for dismissal could be SOSR.

It worried about the growing trend to use “trust and confidence” as an It worried about the growing trend to use “trust and confidence” as an automatic solvent of obligations which it is not.automatic solvent of obligations which it is not.

It was important to identify why the disclosure of this information made it It was important to identify why the disclosure of this information made it impossible to keep employing L.impossible to keep employing L.

It accepted reputational damage.It accepted reputational damage. An employer who receives information from a legitimate authority as An employer who receives information from a legitimate authority as

here must in principle and subject to safeguards be entitled to treat the here must in principle and subject to safeguards be entitled to treat the information as reliable.information as reliable.

An employer would have neither the expertise or resources to An employer would have neither the expertise or resources to independently verify the allegations.independently verify the allegations.

Aware of potential injustice but did the employer act reasonably – yes.Aware of potential injustice but did the employer act reasonably – yes.

Question eighteenQuestion eighteen

18. In 18. In Taurus Group Ltd v Crofts Taurus Group Ltd v Crofts Mr Croft was Mr Croft was employed as a security guard by Reliance at the employed as a security guard by Reliance at the Glasshouse.Glasshouse.

The Glasshouse was managed by Ely Properties which The Glasshouse was managed by Ely Properties which went into administration and the management of the went into administration and the management of the site passed to CRM.site passed to CRM.

They continued to pay Reliance for security until They continued to pay Reliance for security until Reliance lost the contract to Taurus.Reliance lost the contract to Taurus.

Reliance thought this was a TUPE transfer and that Mr Reliance thought this was a TUPE transfer and that Mr Croft would then be employed by Taurus.Croft would then be employed by Taurus.

This was the same work done by a different contractor This was the same work done by a different contractor and now for a different client. and now for a different client.

Was this a TUPE transfer?Was this a TUPE transfer?

Answer question eighteenAnswer question eighteen

18. The tribunal held that this was a 18. The tribunal held that this was a service provision change and Mr Croft did service provision change and Mr Croft did transfer to Taurus.transfer to Taurus.

The EAT disagreed holding that the The EAT disagreed holding that the wording of the 2006 regulations on service wording of the 2006 regulations on service provision change requires the services provision change requires the services carried out before and after the change to carried out before and after the change to be on the behalf of the same client.be on the behalf of the same client.

The case is on appeal as it clearly has The case is on appeal as it clearly has major ramifications.major ramifications.

Question nineteenQuestion nineteen

19. In 19. In Pulse Healthcare v Carewatch Pulse Healthcare v Carewatch CareCare carers were employed by a contractor carers were employed by a contractor on a zero hours contract.on a zero hours contract.

The contract passed to a new contractor and The contract passed to a new contractor and the carers argued they should transfer.the carers argued they should transfer.

The court had to consider whether they were The court had to consider whether they were employees as only employees could transfer.employees as only employees could transfer.

The contractor argued that this was an ad The contractor argued that this was an ad hoc arrangement and that these individuals hoc arrangement and that these individuals were not employees.were not employees.

Answer question nineteenAnswer question nineteen 19. The tribunal found that the contract given 19. The tribunal found that the contract given

to the carers did not reflect the true situation. to the carers did not reflect the true situation. They performed services, they were obliged to They performed services, they were obliged to

carry out the work offered and had to do it carry out the work offered and had to do it personally.personally.

These were not individual discrete contracts but These were not individual discrete contracts but were an umbrella contract.were an umbrella contract.

This was a critical care package of a most This was a critical care package of a most challenging kind which could not depend on an challenging kind which could not depend on an ad hoc arrangement.ad hoc arrangement.

Global contracts with full continuity of Global contracts with full continuity of employment and therefore employees were employment and therefore employees were capable of transferring.capable of transferring.

Question twentyQuestion twenty 20. In 20. In Dominguez v Centre informatique due Dominguez v Centre informatique due

Centre Ouest Altantique, Prefect of Centre Centre Ouest Altantique, Prefect of Centre RegionRegion the ECJ had to consider whether carry the ECJ had to consider whether carry over of holidays due to sickness apply to the 20 over of holidays due to sickness apply to the 20 days in the directive or any longer period applied days in the directive or any longer period applied in Member states. What did they decide?in Member states. What did they decide?

In In Niedel v Stadt Frankfurt am MainNiedel v Stadt Frankfurt am Main the ECJ the ECJ had to consider what rights sick workers had to had to consider what rights sick workers had to carry over leave above the 20 days provided in carry over leave above the 20 days provided in the directive. The case also asked whether the the directive. The case also asked whether the right to any carry over leave expired after a set right to any carry over leave expired after a set period of time.period of time.

What did the court decide in these cases?What did the court decide in these cases?

Answer question twentyAnswer question twenty 20. In both cases the court decided that it is for 20. In both cases the court decided that it is for

each Member state to decide what amount of each Member state to decide what amount of holidays can be carried over provided this is no holidays can be carried over provided this is no less than the 20 days laid down in the directive.less than the 20 days laid down in the directive.

Where a member state provides more leave (as in Where a member state provides more leave (as in the UK) it is for the UK to decide whether carry the UK) it is for the UK to decide whether carry over (for lost holidays due to sickness) can apply over (for lost holidays due to sickness) can apply to a longer period of leave.to a longer period of leave.

It is possible to provide that any carried over leave It is possible to provide that any carried over leave can be taken within a set period provided the set can be taken within a set period provided the set period is no less than the original reference period period is no less than the original reference period for leave (in the UK this is 12 months). for leave (in the UK this is 12 months).

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