Employment Law Newsletter

Welcome

October is a month for change and there are some significant ones coming up. George Osborne has just announced that the qualifying period for unfair dismissal will be increased from one year to two years with effect from 1 April 2012. In addition, fees will be introduced for tribunal claims, including fees payable by the claimant on issue and when the hearing is listed.

The Agency Workers Regulations came into force on 1 October, entitling temporary staff to the same basic employment and working conditions, including pay, overtime and holiday pay after 12 weeks' employment. ACAS has reminded business that they face a fine of up to £5000 if they fail to adhere to the terms.

Also this month, the National Minimum Wage increases to £6.08 for workers over 21. Those between 18 and 21 will be entitled to £4.98 and under 18 to £3.68. For apprentices, the hourly rate will be raised from £2.50 to £2.60.

Something that will not be happening for many Octobers is across the board pay parity. The Chartered Management Institute (CMI) has published the results of a survey showing that, for the first time ever, female junior executives are earning slightly more than their male counterparts. However, their assessment that "across the board pay parity" will take a further 98 years would seem to sit well with the Equality and Human Rights Commission's estimation that it will take a further 70 years to see equal numbers of women in top executive roles.

Finally, it looks like we will be working for longer even earlier than expected. Pensions Minister, Steve Webb, has said the government is proposing to raise the state pension age to 67 a decade earlier than previously planned. He said that the current timescale (for women increasing to 65 by 2018, and then both men and women retiring at 66 from 2020, increasing to 67 in 2036 and 68 in 2046) was “too slow”.

Agents and discrimination

The issue in was whether, agents of an organisation can make it vicariously liable for acts of discrimination under the Employment Equality (Religion or Belief) Regulations 2003, even though they have not been authorised by the principal to discriminate.

In Bungay v All Saints Hague Centre, members of the board of the religious centre caused the unfair dismissal of some employees and also unfairly discriminated against them on the ground that they were Hindu. The question was - could they as agents make the centre vicariously liable even though they were not authorised by the principal? Yes, according to the EAT. All that needed to be shown for the Centre to be liable was that the directors managed it as part of their authority as directors. The directors were also found to be jointly and severally liable with the centre for discrimination for damages because they were "prime movers" in the campaign of discrimination. Moreover, they were ordered to pay aggravated damages due to their post employment behaviour of making unfounded allegations about the employees of theft to the police.

On the issue of damages for discrimination, a telesales worker who resigned following sexual harassment by her manager has been awarded the largest employment tribunal payment in the whole of 2011 so far. The Leeds tribunal upheld Petrina Taylor's claims of sex discrimination and unfair dismissal by British Telecom and awarded her over £290,000. In comparison, the average sex discrimination award nationally was £13,911 and the average unfair dismissal award £8,924.

Rest breaks

We all know that the WTR entitles a worker to 20 minutes uninterrupted rest when he works over 6 hours and that where the worker falls into an excluded category, they must be allowed an equivalent period of compensatory rest.

The issue in Hughes v The Corps of Commissionaires Management Ltd was whether requiring a security guard (an excluded category) to remain on call during his rest breaks contravenes the requirements. If he had been called out during the rest breaks, he would not have enjoyed an “uninterrupted” break. However, in this case, he was allowed to start his break again and the Court of Appeal held that because of that, the breaks provided to him were "equivalent periods of compensatory rest" noting that he might well end up with a break longer than the 20 minutes required by the Regulations.

What is a reasonable adjustment?

In Foster v Leeds NHS Trust Mr Foster went off sick with stress after his relationship with his manager had broken down and brought an unsuccessful grievance, following which he looked to return. The hospital gave him two choices - either a return to his old job or a different post but still within that manager's department. It saw no reason to redeploy him (despite OH advice that Mr Foster was only fit to return to a different department) since his grievance had been dismissed. Subsequently he was placed on a redeployment list for three months. No post came up and eventually Mr Foster was dismissed.

The EAT upheld the tribunal's ruling that he had been placed at a disadvantage by being required to work in a department that - rightly or wrongly - was causing him stress. Given the size of the Trust as an employer there was a real prospect that over 6 months a suitable alternative job would have become available, which would have fitted with the OH advice. That was sufficient for the step of placing Mr Foster on the redeployment list earlier to be deemed a reasonable adjustment.

References

Employers can incur liability if they fail to give an accurate reference about an ex-employee, but what should they do when new allegations come to light after employment? In Jackson v Liverpool City Council, one of Mr Jackson's three references from his former employer suggested that there were record keeping issues. Because these had come to light after Mr Jackson had left, they had not been investigated and could not therefore be substantiated, and this was made clear in the reference. He failed to get the job and was unemployed for a year.

The issue was - although the reference was true and accurate, was it unfair or negligent because Mr Jackson had not been given a chance to answer them? No, according to the Court of Appeal. The reference was not negligent because it was made clear to the prospective employer that the issues raised about Mr Jackson were allegations only which had not been investigated.

The moral of the tale for departing employees is to try to agree your reference before you leave. For employers it must be that where there are questions over their performance or conduct or these arise after they have left, those issues should be disclosed accurately to any prospective employer, but making it absolutely clear that the allegations have not been investigated and so no assumptions can be made.

Conditional notice of dismissal - when does termination take place?

In Governing Body of Wishmorecross School v Balado, Ms Balado was disciplined and then told by letter (dated 21 July) that she would be summarily dismissed. The letter explained that her dismissal would only take effect if she decided not to appeal by a certain date, or her appeal was unsuccessful.

She believed that this was notice of dismissal and so her time for issuing a claim for unfair dismissal had been triggered. The school thought otherwise and on 21 October they told Mrs Balado that her appeal had failed and that dismissal was confirmed, her last day of employment being 26 October 2010. When she issued a claim on 14 October (believing the three month deadline about to expire) the School argued that her claim had been presented prior to the effective date of termination and so the tribunal had no jurisdiction. The EAT disagreed. The effect of the July letter was as a “conditional dismissal” which terminated the employment as at an identified future date. Had an employee who had received such a letter been asked - have you been given notice of dismissal - the natural answer would be - yes. The letter was clearly notice of termination.

How user friendly does the tribunal have to be?

In Shea v Micros Fidelio a litigant in person consistently presented his claim at two case management discussions and the final hearing as a wrongful dismissal claim. On that basis, as he had been paid his notice his claim was dismissed and costs were ordered against him. In fact, his claim was actually for unfair dismissal and detriment for whistle blowing. On appeal the EAT decided that he should have been given leeway by the tribunal and that he should not have been deemed to have “given away” his claim by insisting on the wrong one.

Similarly, in McKinson v Hackney Community College & ors where a tribunal tried to require a claimant to self-select a limited number of allegations and rule that these are the only ones that will be considered at the hearing, this was felt by the EAT to be a step too far.

Contrast this with HHJ McMullen's summary of an approach by another litigant in person in Iteshi v BT , which says it all. "… It appears to me that (Mr Iteshi) joins in a grim carousel. He needs a job, applies and fails to get interviewed or appointed, he brings proceedings in the Employment Tribunal, which fail, and then he brings proceedings in the EAT, which fail. The basis of his approach to all of these cases is that he will not get justice in our Tribunals. He employs absurd logic, which he expressed to me in graphic terms: he has never taken drink or unlawful drugs, he is not a madman, and so the Judges who do not follow his submissions and do not find in his favour must be wrong and biased. There is no logic in that proposition”. Unsurprisingly, Mr Iteshi's claims were dismissed.

And finally…Donny Dog is in trouble

Doncaster Rovers sacked the woman who plays mascot Donny Dog after she posed in her underwear for a Sunday newspaper next to Donny's head, telling her that she had “disgraced” the club.. Ms Chandler, who had volunteered in the role for three years, admits she did not tell the club what she was doing but stressed it was "tastefully done" and the pictures had raised money for the NSPCC - the same charity for which Doncaster's players produced a naked calendar last year. She said, "I'm absolutely devastated. I've not stopped crying all morning. … I've fetched Donny Dog out of hiding. I'm the one who pushed him into charity work." Happily all's well that ends well. She has been offered her job back.