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Case Report

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Changing Terms and Conditions - Fairness

Mr T Bampouras & Others v Edge Hill University [2009] UKEAT/0179/09/ZT

This case concerned three "test" cases of some 68 claims at the instance of university lecturers who had had changes to their contracts of employment arising from a national agreement, the Pay Framework Agreement (PFA), imposed on them by their employers three months before official agreement with the Unions was reached. The delay was due to the holiday commitments of the Union representatives. The Claimants' claimed that their contracts had thereby been terminated and that in the circumstances they had been unfairly dismissed, which failing, unfairly constructively dismissed.

Both were rejected by the Employment Tribunal.  On appeal, the Tribunal's judgment was upheld. The EAT affirmed the case of Alcan and stated that there was no wholesale departure from the Claimants' old contracts so as to amount to cancellation or withdrawal of those conditions.

The EAT noted that the Claimants had in the main benefitted from the new PFA and that any negative aspects had not been shown to be substantial. In addition, the EAT commented that the fact that the PFA had been formally agreed with the Unions in substantially the same form three months later could have been taken into account when determining overall fairness under section 98(4) ERA.

IVF and Sex Discrimination

Sahota v Home Office and Pipkin [2009] UKEAT/0342/09/LA

This case concerned sex discrimination/harassment claims by the claimant who was undergoing IVF treatment. The EAT held that the Tribunal was entitled to find that the acts complained of either, in some cases, did not amount to a detriment/harassment or, in the remainder, even if they arose out of it or of circumstances connected with it were not done on the grounds that the Claimant was undergoing IVF treatment. The EAT also gave an opinion on the extent to which discrimination on the ground that an employee is receiving IVF treatment is to be regarded as discrimination on the ground of her sex or of pregnancy. They considered London Borough of Greenwich v Robinson and Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG.

In particular, the EAT gave its opinion on whether the protection from discrimination on the grounds of sex without the need for a male comparator afforded to pregnant employees should be extended to employees undergoing IVF treatment. It suggested that employees undergoing IVF treatment should not benefit from this protection throughout the whole period of the treatment. The EAT noted that IVF treatment can last many years as ova can be frozen. However, the EAT following the European Court of Justices' decision in Mayr, concluded that the period of protection could be extended to the period between retrieval of the ova (known as ‘follicular puncture') and implantation where implantation was expected to occur imminently (e.g. within 1 week).

TUPE - Consultation

Unison v Somerset County Council (1) Taunton Dean Borough Council (2) and South West One Ltd (3) UKEAT/0043/09/DA

The councils decided to transfer the work of their Resources Directorate to a joint venture company controlled by IBM. They consulted the ‘in-scope' employees (those working for relevant parts of the Resources Directorate) for 2 years on whether they wanted to transfer under TUPE or remain an employee of the council and be seconded to the joint venture company.

Unison agreed to one version of a staffing agreement which gave other council employees priority on job vacancies at the joint venture company (after the transfer) if no in-scope employees applied. This was changed at the last minute so that if no ‘in-scope' employees applied for vacancies IBM would be able to advertise externally. The question for the EAT was therefore whether the other council employees who would have received advertisement for IBM vacancies before external candidates under the previous staffing agreement were "affected employees" under regulation 13.

The EAT held that in regulation 13 of TUPE the "affected employees" whose representatives the employer must inform and consult about a relevant transfer are those who will be or may be transferred, those whose jobs are in jeopardy by reason of the proposed transfer, and those who have internal job applications pending at the time of transfer. The definition does not extend to everyone in the workforce who might apply in the future for a vacancy in the part transferred.

Pregnancy Discrimination - Risk Assessments

Ms L O'Neill v Buckinghamshire County Council UKEAT/0020/09/JOJ

Ms O'Neill was employed as a teacher. The school for which she worked initiated disciplinary proceedings against her to deal with various allegations. Ms O'Neill then informed the school that she was pregnant and raised a grievance in respect of the conduct of the disciplinary investigation and the school failing to carry out a comprehensive risk assessment. Eventually, Ms O'Neill resigned and claimed constructive dismissal and discrimination on the grounds of her pregnancy.

The EAT held that pregnant workers are not automatically entitled to a work assessment under regulation 16 of the Management of Health and Safety at Work Regulations 1999 in the absence of evidence that the work involved a risk as to health and safety to the expectant mother.

In fact it was suggested that the following preconditions must be met:

  1. the employee must notify the employer in writing that she is pregnant;
  2. the work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby; and
  3. the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace (as listed in the directive).

In light of the above, proof of detriment is not necessary.

In addition, the EAT also noted that there is nothing in the Pregnant Workers Directive or the Management of Health and Safety at Work Regulations 1999 to suggest that a meeting with the worker is necessary in order to fulfil the obligation to carry out a risk assessment. But there is still a requirement that an employer provide that worker with comprehensive and relevant information on any identified risks to her health and safety.

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