nelsons employment seminar 8.4.11

EMPLOYMENT LAW UPDATE: 12.04.11

PRESENTED BY:

Andy Jamieson - DirectorKeeley Baigent - Director

Jo McCarthy - Associate

What’s not coming into force this April?

1. The Bribery Act - now 1 July 20112. Right to request time off for training will not be extended to SME’s3. Right to request flexible working will not be extended to parents of children under 18.4. Specific public sector equality duties deferred until July 2011.

What’s new?•From 1 April 2011 a moratorium exempting micro and start-up businesses from new domestic legislation began

–“micro” – Businesses with fewer than 10 employees–“start up” – Those which have commenced a trade, profession or vocation after 1 April 2011

•Moratorium will last for 3 years therefore exempting qualifying businesses from the proposed flexible shared parental leave scheme and extension of flexible working rights.

What’s new?

• Additional paternity leave and pay

–The Additional Paternity Leave Regulations 2010–The Additional Statutory Paternity Pay (General) Regulations 2010 came into force on 6 April 2011

• Apply to children due (or matched for adoption) on or after 3 April 2011.

What’s new?

•Under the new Regulations a mother will be able to transfer up to 6 months maternity leave to the father.

•Some of the leave may be paid if taken during the 39 week maternity pay period.

•Statutory maternity, paternity and adoption pay increased from £124.88 to £128.73 from 6 April 2011.

What’s new?On 5 April 2011 general public sector equality duty

came into force.

Requires public bodies and others who exercise public functions

• To have due regard to need to eliminate unlawful discrimination, harassment and victimisation

• To advance equality of opportunity• To foster good relations between people who share a

protected characteristic and those who don’t

What’s new?

From 6 April 2011 the default retirement age was phased out and the statutory

retirement procedure abolished.

What’s new?

s.159 Equality Act brought into force from 6 April 2011.

• Provides for positive action in recruitment and promotion.

• Allows an employer to take a protected characteristic into account if he thinks people with that characteristic are under represented in the workforce or suffer a disadvantage.

Positive action provisions only exercisable where:

• the person in question is “as qualified as” other applicants to be recruited or promoted.

• The employer does not already have a positive action policy in place for dealing with recruitment and promotion.

• The more favourable treatment is a proportionate means of achieving the aim of overcoming or minimising disadvantage or encouraging participation.

What’s new?

The Equality Act Codes of Practice came into force on 6 April 2011.

• Give guidance on all the protected characteristics recognised in the Equality Act.

• New codes will be admissible as evidence in Tribunal proceedings.

What’s new?

Tax changes for post termination payments after P45 has been issued.

• Previously such payments made under Compromise Agreements were taxed at basic rate.

• Are taxed at same rate as if payment made during course of employment.

What’s new?

On the horizonBribery Act 2010.

• Coming into force 1 July 2011.• Outlaws “bribery” i.e. giving someone a

financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so.

• Your organisation can be liable if a senior person, such as the MD, commits a bribery offence.

• Liability will also arise where employer or agent pays a bribe specifically to get or keep business or gain a business advantage.

• To be prosecuted DPP or Director of Serious Fraud Office must be satisfied that conviction more likely than not and that prosecution in public interest.

On the horizon: Bribery Act 2010

• No offence committed where business can show it had adequate procedures in place to prevent bribery.

• What counts as adequate depends on the bribery risks you face.

• Act recognises 6 principles in assessing risk


The 6 principles in assessing risk:

1. Proportionality• Action you take should be proportionate to risk

2. Top level commitment

3. Risk assessment

4. Due diligence

5. Communication

6. Monitoring and review


AGE, SEX AND DISABILITY

DISCRIMINATION Presented by

Keeley Baigent

AGE DISCRIMINATIONHave any job applicants succeeded in claims for discriminatory job adverts?

Berry –v- Recruitment Revolution [2010]

“Junior Administrator” suitable for “a school leaver / someone who had recently taken A’Levels”

ET – claim failedClaimant had not applied so had not been disadvantaged / suffered a detriment

EAT agreed Warning given: “those who try to exploit legislation for financial gain were liable to have costs awarded against them”

AGE DISCRIMINATIONKeane –v- Investigo & Others [2010]

Job vacancies clearly aimed at recently qualified accountants

Keane over qualified

ET – claim failedApplications were not genuine so claimant not disadvantaged / suffered detriment

EAT agreed“An applicant who is not considered for a job in which he or she is not interested cannot in any ordinary sense of the word be said to have suffered a detriment or been disadvantaged”

AGE DISCRIMINATIONNot calling key witnesses to give evidence or preparing your defence in a reasonable manner could mean you end up on the back foot

Canadian Imperial Bank of Commerce –v- Beck [2010]

Beck found to have suffered age discrimination

Burden of proof shifted to employer

Bank’s failure to call key witness hampered Bank’s chances of rebutting discrimination

AGE DISCRIMINATIONWas a fixed retirement age of 65 years old for partners justified?

Seldon –v- Clarkson Wright & Jakes & Another [2010]

ET accepted 3 legitimate aims:

(i) giving senior solicitors opportunity of partnership so ensuring that they didn’t leave (ii) facilitating partnership & work force planning & (iii) limiting need to expel partners by way of performance

management so contributing to congenial & supportive culture

AGE DISCRIMINATIONET held retirement at 65 to be a proportionate means of achieving firm’s legitimate aims

EAT agreed except that:

held retirement age of 65 didn’t justify 3rd aim as no evidence that performance tended to decline at that age

CofA:

Confirmed that employer’s aim does not have to pursue a social policy objective to be legitimate

AGE DISCRIMINATIONMere fact that employer might have chosen higher retirement age could not result in retirement age of 65 not being justified

DRA of 65 for employees supported choice of retirement age of 65

Note:

Decision and reasoning important for employers who wish to justify retention of a fixed retirement age for employees

AGE DISCRIMINATIONCan cost alone justify a decision to discriminate?

Woodcock v Cumbria Primary Care Trust [2010]

Dismissal of W was justified

Legitimate aim being pursued was: “to bring about Mr W's dismissal for redundancy and to avoid the additional costs to the Trust of his attaining the age of 50 before the end of his notice period and thus being entitled to enhanced payment"

W's dismissal without consultation was a proportionate means of achieving that aim

SEX AND AGE DISCRIMINATION

Are older women more at risk of discrimination than others?

O’Reilly –v- British Broadcasting Corporation & Another [2011]

The facts:

Network wanted to “refresh” the presenter line up for countryfile

Majority of 2nd tier presenters chosen in their mid 30s & O not considered

Leakage of ageism complaints to media

The decision:

Combined discrimination protected

BBC’s failure to consider O as 2nd tier presenter direct age discrimination not justified

Wish to appeal to younger viewers was a legitimate aim

Choosing younger presenters did not satisfy aim

Not proportionate to pander to assumed prejudice of younger viewers

SEX AND AGE DISCRIMINATION

SEX DISCRIMINATIONSurely if an employee participates in ‘sexual banter’ they can’t then claim they have been sexually harassed

Munchkins Restaurant Ltd and another v Karmazyn and others [2010]

Some of the inappropriate conversations were initiated by the Claimants

Despite this held that Claimants been sexually harassed

Respondents held jointly & severally liable for awards

Each Claimant awarded £15,000 for injury to feelings

SEX DISCRIMINATIONGossip about ‘whose the father’ could get employers into hot water!

Nixon v Ross Coates Solicitors and Anor [2010]

EAT found:

Gossip was pregnancy related, it was unwanted & Claimant found it distressing

Therefore it amounted to harassment

SEX DISCRIMINATIONNot even the lawyers get it right all the time!

De Belin v Eversheds Legal Services Ltd [2011]

The Facts:

Female colleague couldn’t be assessed against redundancy selection criterion as on maternity leave during assessment period

Female colleague given maximum notional score against the criterion

Resulted in B being selected for redundancy

SEX DISCRIMINATIONET:

Meaning of ‘special treatment’ considered

Didn’t extend to giving female colleague maximum notional score

B held to have been discriminated against on grounds of sex & unfairly dismissed

B awarded £123,053 compensation

SEX DISCRIMINATIONEAT:

Agreed with ET

Special treatment only extends to what is 'reasonably necessary to compensate for disadvantages occasioned by condition'

Benefit offered not reasonably necessary

Less discriminatory alternatives available

SEX DISCRIMINATIONCan a man claim pregnancy related discrimination because of his association with his pregnant partner? He can try:

Kulikaoskas v MacDuff Shellfish and another [2010]

K claimed had been dismissed because of his partner’s pregnancy

ET dismissed claims

EAT agreed with ET

SDA should not cover ‘associative pregnancy discrimination’

Associative pregnancy discrimination may be protected under the Equality Act 2010

Guidance on determining whether a mental illness could amount to a protected disability

J v DLA Piper UK LLP [2010]

Mental impairment does not have to be clinically recognised

Clinical depression amounts to an impairment

Medicalisation of work events does not

DISABILITY DISCRIMINATION

DISABILITY DISCRIMINATIONEAT held:

ET erred in considering mental impairment before effect

Consider adverse effect on ability to carry out normal day-to day-activities 1st

Consider question of impairment 2nd

If 1st consideration satisfied may follow impairment suffered

May make it easier to show mental impairment amounts to a disability

DISABILITY DISCRIMINATIONHow far does an employer’s duty to make reasonable adjustments go?

Chief Constable of South Yorkshire Police v Jelic [2010]

EAT held:

Duty to make reasonable adjustment extended to swapping jobs of disabled and non disabled employees

Accepted that this would not be a reasonable adjustment in every case

Unfair dismissal, religious discrimination and sexual orientation discrimination

Presented by

Jo McCarthy

Unfair Dismissal

Humour and the band of reasonable

responsesHow far will the band stretch?

Unfair Dismissal

The caseBowater v Northwest London

Hospital Trust

(2011) EWCA Civ 63

Unfair Dismissal

The Facts

Unfair Dismissal

The “Lewd remark”…

“It’s been a few months since I’ve been in this position”

Unfair Dismissal

Legal issues arising

• ET found unfair but overturned by EAT

• CA reversed decision

• The “elastic band”

• “majority of public” would have found funny

• ET must not substitute their own opinion

Unfair Dismissal

Comment

This case may signify the return of an element of pragmatism to the ET, and an abatement of po-faced political correctness.

Unfair Dismissal

Investigation, Investigation, Investigation…..

Can there ever be too much?

Unfair Dismissal

The Case

Salford Royal NHR Foundation Trust v Roldan (2010)EWCA Civ

522

Unfair Dismissal

The facts

Unfair Dismissal


• The more serious the consequences of the dismissal the more investigation required

• Where consequences are very serious may have to give benefit of doubt to the employee

• Principles in A v B EAT 2003 IRLR 405 developed further

Unfair Dismissal

Comment/Practical tips

• Make sure you have a thorough audit trail of investigation

• If in doubt, investigate further

Unfair Dismissal

“You must be poking!”

Issues around social networking

Unfair Dismissal

The case

Gill v SAS Ground Services UK Limited ET/2705021/09

Unfair Dismissal

The facts

Unfair Dismissal

The legal analysis

• Social networking issues are tricky and relatively new

• Balance to be struck between respective rights of employee and employer

• Consider what are legitimate concerns• Put in place appropriate policies to guide

staff

Unfair Dismissal

Issues in relation to representation at internal

hearings

Representation

Hand holding…

Representation

The case

Governors of X School v R

Representation

The facts

Representation

The legal analysis

• Article 6 ECHR gives right to a fair trial

• Directly enforceable against state employees

• Tribunal must make decisions taking HRA into account

• Must be more than just losing “job”

Representation


• Be prepared to be flexible• Remember duty of reasonable adjustment

(EA 2010)• Legally qualified reps only where career is

at stake (FSA, social worker, doctor etc)• Be wary of troublesome spouses and over

protective mothers

Representation

Religious Discrimination

Case law developments

• Employment Equality (Religion and Belief) Regulations 2003 are now part of the Equality Act

• Slow start with claims

• Now on the increase – over 20% increase in 2010


Good news and bad news for employers


Bad news(but good news for

witches, UFO geeks and Swampy!)

The breadth of beliefs covered under the Regulations is

increasing beyond belief (!)


Good News

The Courts appear to be recognising the distinction

between holding a protected belief per se and the manner in which

that belief is manifested


Some cases

Believe it or not……


The case

Power v Greater Manchester Police Authority EAT 0087/10


The Facts


The legal analysis

The EAT found “his beliefs were worthy of respect in a democratic society, and had sufficient cohesion and cogency to be a philosophical belief under the Regs”


Legal analysis…

EAT used the five key characteristics identified in Grainger v Nicholson setting out what a philosophical belief must have if it is to be protected


Grainger v Nicholson•Genuinely held•Not an opinion or viewpoint•Related to a substantial aspect of human life and behaviour•Cogent, serious, cohesive and important with a similar status to religion•Worthy of respect in a democratic society without conflicting with the fundamental rights of others


He failed at the second hurdle – see Daily Mail

reports


Comment/Practical tip –Call Ghostbusters


http://www.google.co.uk/imgres?imgurl=http://www.filmsy.com/wp-content/uploads/2006/08/GhostbustersPoster1.jpg&imgrefurl=http://www.filmsy.com/reviews/ghostbusters/&usg=__GwWLd2OKUHmD5zvK0F93zZh7TkM=&h=300&w=299&sz=20&hl=en&start=2&zoom=1&um=1&itbs=1&tbnid=57FoJTRVNIeORM:&tbnh=116&tbnw=116&prev=/images%3Fq%3Dghostbusters%26um%3D1%26hl%3Den%26safe%3Dactive%26sa%3DN%26tbm%3Disch&ei=ZCabTa-_JMXPtAbWtt3tBQ

The Thrill of the Chase


The Case

Hashman v Orchard Park Garden Centre


The Facts


The Legal Analysis

ET found on 11.3.11 that “(he) had established that (his) beliefs in the sanctity of life and the moral duty to avoid unnecessary suffering to animals constituted a philosophical belief for the purpose of protection under the Equality Act “


Manifestation of beliefThe foregoing cases establish the right to hold a belief is absolutely protected but recent case law has demonstrated that the manifestation of that belief is not afforded the same level of protection


The Cases

• Ladele v LB of Islington and anor 2010 ICR 532

• Rao v University Hospitals of Leicester NHS Trust 1901029/09


Comment

• Victory for common sense?• Recognition of mismatch between holding

a belief and carrying out of duties• Latter has to prevail• Religion/belief prevents performance of

duties = less favourable treatment not on grounds of religion/belief


Religious iconography or clothing

• Well publicised area• By and large it will be (generally indirect)

discrimination to prohibit the display of religous iconography or clothing where it does not impede one’s duties.

• Fine lines often need to be drawn – see following cases

• Chaplin v Royal Devon & Exeter NHS Foundation Trust 1702886/09

• Germain v Home Office 2306431/06


Consider……..


Sexual orientation discrimination


• Cases involving services have dominated the headlines

• Employment related claims still on the increase by 18%

• Two cases of interest ….


The Cases

• HM Land Registry v Grant 2010 IRLR 583

• Facts

• Practical tip! Policies should emphasise need for discretion and potentially harmful effects of gossip


• Job Centre Plus v McCarthy EAT 0419/09

• Facts

• Practical tip! Consistency with investigations/disciplinary sanctions where dealing with employees with protected characteristics


Protecting employees from harassment by customers/service users /third parties

S 40 Eq A• S40 extends liability of employers for persistent

harassment of employees by third parties (previously only applied to sex discrimination)

• “persistent” amounts to “at least two occasions”• Doesn’t have to be the same person• Remedies are the same as for all other forms of

discrimination

Protecting employees from harassment

S 40 EqA – Practical tips

• Put policies in place

• Display notices to public/service users

• Train managers not to ignore complaints

• Generally put in place your “reasonable steps” defence


Unfair Dismissal

Humour and the band of reasonable

responsesHow far will the band stretch?

Unfair Dismissal

The caseBowater v Northwest London

Hospital Trust

(2011) EWCA Civ 63

Unfair Dismissal

The Facts

Unfair Dismissal

The “Lewd remark”…

“It’s been a few months since I’ve been in this position”

Unfair Dismissal


• ET found unfair but overturned by EAT

• CA reversed decision

• The “elastic band”

• “majority of public” would have found funny

• ET must not substitute their own opinion

Unfair Dismissal

Comment

This case may signify the return of an element of pragmatism to the ET, and an abatement of po-faced political correctness.

Unfair Dismissal

Investigation, Investigation, Investigation…..

Can there ever be too much?

Unfair Dismissal

The Case

Salford Royal NHR Foundation Trust v Roldan (2010)EWCA Civ

522

Unfair Dismissal

The facts

Unfair Dismissal


• The more serious the consequences of the dismissal the more investigation required

• Where consequences are very serious may have to give benefit of doubt to the employee

• Principles in A v B EAT 2003 IRLR 405 developed further

Unfair Dismissal


• Make sure you have a thorough audit trail of investigation

• If in doubt, investigate further

Unfair Dismissal

“You must be poking!”

Issues around social networking

Unfair Dismissal

The case

Gill v SAS Ground Services UK Limited ET/2705021/09

Unfair Dismissal

The facts

Unfair Dismissal

The legal analysis

• Social networking issues are tricky and relatively new

• Balance to be struck between respective rights of employee and employer

• Consider what are legitimate concerns• Put in place appropriate policies to guide

staff

Unfair Dismissal

Issues in relation to representation at internal

hearings

Unfair Dismissal

Hand holding…

Unfair Dismissal

The case

Governors of X School v R

Unfair Dismissal

The facts

Unfair Dismissal

The legal analysis

• Article 6 ECHR gives right to a fair trial

• Directly enforceable against state employees

• Tribunal must make decisions taking HRA into account

• Must be more than just losing “job”

Unfair Dismissal


• Be prepared to be flexible• Remember duty of reasonable adjustment

(EA 2010)• Legally qualified reps only where career is

at stake (FSA, social worker, doctor etc)• Be wary of troublesome spouses and over

protective mothers

Unfair Dismissal


Unfair Dismissal


• Employment Equality (Religion and Belief) Regulations 2003 are now part of the Equality Act

• Slow start with claims

• Now on the increase – over 20% increase in 2010

Unfair Dismissal

Good news and bad news for employers

Unfair Dismissal

Bad news(but good news for

witches, UFO geeks and Swampy!)

The breadth of beliefs covered under the Regulations is

increasing beyond belief (!)

Unfair Dismissal

Good News

The Courts appear to be recognising the distinction

between holding a protected belief per se and the manner in which

that belief is manifested

Unfair Dismissal

Some cases

Believe it or not……

Unfair Dismissal

The case

Power v Greater Manchester Police Authority EAT 0087/10

Unfair Dismissal

The Facts

Unfair Dismissal

The legal analysis

The EAT found “his beliefs were worthy of respect in a democratic society, and had sufficient cohesion and cogency to be a philosophical belief under the Regs”

Unfair Dismissal

Legal analysis…

EAT used the five key characteristics identified in Grainger v Nicholson setting out what a philosophical belief must have if it is to be protected

Unfair Dismissal

Grainger v Nicholson•Genuinely held•Not an opinion or viewpoint•Related to a substantial aspect of human life and behaviour•Cogent, serious, cohesive and important with a similar status to religion•Worthy of respect in a democratic society without conflicting with the fundamental rights of others

Unfair Dismissal

He failed at the second hurdle – see Daily Mail

reports

Unfair Dismissal

Comment/Practical tip –Call Ghostbusters

Unfair Dismissal

http://www.google.co.uk/imgres?imgurl=http://www.filmsy.com/wp-content/uploads/2006/08/GhostbustersPoster1.jpg&imgrefurl=http://www.filmsy.com/reviews/ghostbusters/&usg=__GwWLd2OKUHmD5zvK0F93zZh7TkM=&h=300&w=299&sz=20&hl=en&start=2&zoom=1&um=1&itbs=1&tbnid=57FoJTRVNIeORM:&tbnh=116&tbnw=116&prev=/images%3Fq%3Dghostbusters%26um%3D1%26hl%3Den%26safe%3Dactive%26sa%3DN%26tbm%3Disch&ei=ZCabTa-_JMXPtAbWtt3tBQ

The Thrill of the Chase

Unfair Dismissal

The Case

Hashman v Orchard Park Garden Centre

Unfair Dismissal

The Facts

Unfair Dismissal

The Legal Analysis

ET found on 11.3.11 that “(he) had established that (his) beliefs in the sanctity of life and the moral duty to avoid unnecessary suffering to animals constituted a philosophical belief for the purpose of protection under the Equality Act “

Unfair Dismissal

Manifestation of beliefThe foregoing cases establish the right to hold a belief is absolutely protected but recent case law has demonstrated that the manifestation of that belief is not afforded the same level of protection

Unfair Dismissal

The Cases

• Ladele v LB of Islington and anor 2010 ICR 532

• Rao v University Hospitals of Leicester NHS Trust 1901029/09

Unfair Dismissal

Comment

• Victory for common sense?• Recognition of mismatch between holding

a belief and carrying out of duties• Latter has to prevail• Religion/belief prevents performance of

duties = less favourable treatment not on grounds of religion/belief

Unfair Dismissal


• Well publicised area• By and large it will be (generally indirect)

discrimination to prohibit the display of religous iconography or clothing where it does not impede one’s duties.

• Fine lines often need to be drawn – see following cases

• Chaplin v Royal Devon & Exeter NHS Foundation Trust 1702886/09

• Germain v Home Office 2306431/06


Consider……..



• Cases involving services have dominated the headlines

• Employment related claims still on the increase by 18%

• Two cases of interest ….


The Cases

• HM Land Registry v Grant 2010 IRLR 583

• Facts

• Practical tip! Policies should emphasise need for discretion and potentially harmful effects of gossip


• Job Centre Plus v McCarthy EAT 0419/09

• Facts

• Practical tip! Consistency with investigations/disciplinary sanctions where dealing with employees with protected characteristics


Protecting employees from harassment by customers/service users /third parties

S 40 Eq A• S40 extends liability of employers for persistent

harassment of employees by third parties (previously only applied to sex discrimination)

• “persistent” amounts to “at least two occasions”• Doesn’t have to be the same person• Remedies are the same as for all other forms of

discrimination


S 40 EqA – Practical tips

• Put policies in place

• Display notices to public/service users

• Train managers not to ignore complaints

• Generally put in place your “reasonable steps” defence
