A year in the planning and a trawl of 21,000 statutory instruments later, we’re finally here.
Parts of the government’s Red Tape Challenge - the process of scrapping, merging, simplifying and improving regulations - are about to hit employment law. Mooted for some time, the new measures aimed at helping business and boosting economic recovery came into force on Friday, 6th April:
- Unfair dismissal qualifying period increases from one to two years for those whose jobs start after 6th April 2012
- Maximum deposit order doubles to £1,000
- Maximum costs award rises to £20,000
- Witness statements to be pre-read by tribunal, not read aloud
- Parties can be ordered to pay witness expenses
- Judges to sit alone on unfair dismissal cases
A review is scheduled for 12 months' time. Just how different will things look then we wonder?
Marital Status Not Quite Dunn and Dusted - Hawkins v Atex Group
In January we wrote about Dunn v Institute of Cemetery and Crematorium Management. The Employment Appeal Tribunal (EAT) had said that marital status protection covers situations where there has been discrimination based on marriage to a particular person, as opposed to just the fact of being married, or not.
Waters have now been muddied by Hawkins v Atex Group, a case in which the EAT was again asked to consider the ‘particular person’ point.
Ms Hawkins was employed by a company managed by her husband. Less than a year into the job, she was dismissed because of a company policy against employing close relatives. Ms Hawkins claimed unlawful discrimination.
She lost at tribunal and on appeal. The EAT said that the company had not applied a general rule or criterion against married women and the decision to dismiss was not motivated by Ms Hawkins being married to her husband. The EAT doubted some of the reasoning in Dunn and said that for there to be discrimination on the grounds of marital status the reason for the less favourable treatment had to be marriage, rather than because of who the claimant was married to.
This conflict with Dunn leaves the marital status provisions up in the air, for now at least.
Subjectivity and Redundancy - Samsung v Monte-D'Cruz
The Claimant was a senior manager at Samsung. As part of a company restructure, his role was one of four to be abolished and merged into a single Head of Sales position. He applied for this role, but didn’t score highly enough on a core competencies test. He then applied for a team leader role but was unsuccessful and Samsung appointed an external applicant to the role. The Claimant was dismissed for redundancy and brought an unfair dismissal claim.
The employment tribunal upheld the claim. It said that there had been inadequate consultation and the criteria for selection for the new roles were too subjective.
This was overturned on appeal, with the Employment Appeal Tribunal finding for Samsung. Subjectivity can be allowed where the employer is interviewing for a vacancy, as opposed to selecting for redundancy from a pool of employees. Some element of subjectivity is inevitable, it said.
While this case favours employers in their search for the 'right' person, perhaps even enabling them to assess an individual's qualities as well as their qualifications and experience, treat it with some caution. Appointing external candidates without first properly assessing employees who are at risk of redundancy is a dangerous strategy.
Cost and Discrimination Justification - Woodcock v Cumbria Primary Care Trust
This case looked at the knotty issue of whether a discriminatory decision based on cost can be justified.
As part of an NHS re-organisation, Mr Woodcock's role as Chief Executive was made redundant. But he continued to work for the Trust while other suitable jobs were considered.
Mr Woodcock was 48 at the time. If he were still employed by the Trust at 50 then he would be entitled to an enhanced early retirement package which could have cost the NHS an extra £500,000. So the Trust served redundancy notice on Mr Woodcock which meant that he would be dismissed before reaching 50. He claimed unfair dismissal and age discrimination.
The employment tribunal and Employment Appeal Tribunal found for the Trust. It’s the age discrimination point that provides real interest. The timing of Mr Woodcock’s dismissal was potentially discriminatory but justified, it was held. It was legitimate for the Trust to have tried to avoid additional costs and, anyway, had notice not been served when it was then Mr Woodcock would have received a windfall. The Trust’s primary aim was to achieve a redundancy whilst avoiding unnecessary cost and a windfall benefit, which meant that its actions were not purely cost-related.
Mr Woodcock appealed but lost at the Court of Appeal. The dismissal for redundancy was a legitimate aim. While timing a redundancy purely to save costs cannot by itself be justified (it’s not a legitimate aim), this case was about more than just cost. The circumstances of the dismissal were genuine.
An important reminder that discrimination based on cost alone might land employers in hot water. Other legitimate aims need to play a part.
Absence of Full Facts on Dismissal - Southampton City Council v Burnett
Ms Burnett was a teacher at a school for children with behavioural problems. She was suspended after an incident during which she made physical contact with a child, scratching them in the process. She was dismissed after an investigation and brought an unfair dismissal claim.
The tribunal found in her favour. The Director of Children’s Services who had heard Ms Burnett’s appeal had not made any findings of fact about what Ms Burnett had actually done wrong. It was not enough for the Director to have simply concluded that Ms Burnett was guilty of inappropriate behaviour which amounted to gross misconduct. The Council had not established the potentially fair reason for dismissal, said the tribunal.
The Council appealed and won. It didn’t matter that the Council had failed to identify the specific facts of what had happened. It was enough that the dismissing officer had a genuine belief that there had been misconduct.
The Heavy Burden of Proving Stress - MacLennon v Hartford Europe
Ms MacLennon was an HR manager at Hartford, a financial services company. Twelve months into her job she went home early with dizziness, saying that she felt unwell. A few months later, while still off work, she was diagnosed with Chronic Fatigue Syndrome (CFS).
She remained off work for three and a half years, paid through permanent health insurance, before the office at which she had been based closed. She was made redundant and brought a personal injury claim for £1.25m based on her CFS having been caused by long working hours and challenging HR issues.
She lost. The High Court said that she had not proved that her CFS had been caused by workplace stress and her employer couldn’t have foreseen that she would suffer CFS – her working hours weren’t cause for alarm, she didn’t appear to have too much work to do, and the employer didn’t know that she was vulnerable to stress brought about by overwork. One of the factors taken into account by the Court was that Ms MacLennon worked in HR and so knew about stress and the importance of making an employer aware of the facts and risks.
Victimisation – Focus on the Reason for Treatment - Pasab v Woods
Ms Woods, a Muslim, was a pre-registration student at a pharmacy where both the pharmacist and managing director were Sikhs.
She was alleged to have made a comment that the pharmacy was effectively ‘a little Sikh club that only looked after Sikhs', but denied saying this. She was then dismissed, supposedly for poor timekeeping and not following the company’s absence reporting procedure. Her claims of discrimination and harassment failed, but she won on victimisation.
The employment tribunal made a number of findings, ultimately concluding that Ms Woods had been dismissed for making the ‘little Sikh club’ comment. The comment, it said, amounted to an allegation of direct discrimination and so was a protected act. (Discrimination legislation is clear that people must not be penalised for protected acts.)
But the employer won on appeal. The Employment Appeal Tribunal said that as the tribunal had found that Ms Woods had been dismissed for making the racist comment, the tribunal could not then conclude that the dismissal was because of the protected act of alleging discrimination. These were two separate things.
A reminder that for a claim to succeed, the less favourable treatment must have been because of the protected act and not another reason.
And Finally....Thinking Outside the Cage
It’s been reported that employees at a zoo in Minnesota have beaten April Fools’ Day pranksters at their own game. After receiving 300 calls last year from people asking to speak to the likes of Al E. Gator, Billy Goat and Anna Conda, staff decided that this year they’d play along. So anyone asking for Mr Lion would be transferred to a line answered by a formidable roar (you get the picture).
A lesson in embracing the positive aspects of this dreaded day. But let’s not kid ourselves that a fair few employers and employees didn’t breathe a sigh of relief on discovering that April Fools’ Day fell on a Sunday this year.
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