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February Employment Law Newsletter

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The planned changes to employment law are gathering pace with some fresh announcements from the Department for Business, Innovation and Skills.

As busy employment law years go, we think this could be up there. A recurring challenge that many of our clients refer to is the need to ensure that their HR and recruitment plans are inline with the overall business strategy as well as keeping up to date with all of the employment law changes. In the current climate this helps the business to achieve a competitive edge.

Absent Employer Still in Control - White & Todd v Troutbeck SA 

Mr White and Ms Todd worked as caretakers/managers of a house and small farm estate part-owned, but rarely visited, by Troutbeck.

Their contract had no fixed hours, although it contained several references to ‘employment’. When the company terminated the arrangement Mr White and Ms Todd claimed unfair dismissal, relying on an employment contract. The question was: were they employees (and so entitled to claim) or workers?

The company argued that it did not have day-to-day control over Mr White and Ms Todd and so that went against there being an employer-employee relationship. The original tribunal agreed, finding in Troutbeck’s favour.

But that decision was overturned on appeal. The Employment Appeal Tribunal decided that a lack of day-to-day control is not conclusive. The test of whether or not someone is an employee is about the entire relationship, starting with the written agreement. The key question is whether the ‘employer’ had a contractual right of control? It is not simply about who is in charge of the daily work.

A useful reminder to all businesses using self-employed contractors to make their written agreements clear on workers’ status.


New Unfair Dismissal and Redundancy Limits

It’s time to get used to a new set of figures. The annual rise in the unfair dismissal basic award and statutory redundancy payment took effect from the beginning of this month.

So dismissals that happen(ed) on or after 1st February 2013 could attract these maximum amounts:

A week’s pay - £450
Statutory redundancy/basic award - £13,500
Unfair dismissal compensatory award - £74,200
Combined unfair dismissal award - £87,700

But remember that the government is introducing an overall cap on the compensatory award for unfair dismissal of one year’s pay. No firm date has been announced, but it is likely to take effect from the summer.


Handbook Terms Contractual - Allen v TRW Systems

The redundancy policy in TRW’s employee handbook provided for enhanced payments. The terms had been agreed with TRW’s works council and were repeated several times in letters issued to the workforce.

The issue was whether the enhanced redundancy terms were contractual, binding TRW and forcing it to pay these more favourable settlements.

The tribunal held not. The terms had not been incorporated into employment contracts because they were not referred to in the written statement of terms. But the Employment Tribunal (EAT) thought otherwise and overturned that decision. The tribunal should have taken account of the works council agreement, the express promise in the employee handbook and the assurances repeated in letters to employees. It was fair for the employees to have had a reasonable expectation of receiving the enhanced terms, the EAT said.

The case has been sent to a different tribunal to decide again.


Dismissal Wiped Out By Lesser Sanction? - Piper v Maidstone & Tunbridge NHS Trust

The Reverend Piper (RP) was an employee of the trust where he worked as a chaplain. He was dismissed for gross misconduct but, on appeal, the sanction was reduced to a final warning, demotion and a transfer to a different hospital.

RP wrote to the Trust rejecting its offer of re-engagement because of the ‘severe financial and psychological penalties’ he felt it would impose on him. He brought a claim for unfair dismissal which the Trust defended on the basis that there was no dismissal.

The tribunal found for the Trust. No dismissal meant no unfair dismissal claim. But the Employment Appeal Tribunal took a different view. The Trust’s internal appeal procedure required an employee’s consent to a lesser penalty. As RP had not agreed to his dismissal being replaced by the warning, demotion and transfer, his dismissal stood and his unfair dismissal claim could now proceed.


ECHR Rules on Religious Discrimination - Eweida & Others v UK

This much anticipated decision of the European Court of Human Rights has made it clear that religious views can be held in the workplace, but do not automatically rank above the rights of others.

Up for consideration was a selection of discrimination cases which questioned whether UK law goes far enough to protect employees who express their religious beliefs at work.

Ms Eweida worked for British Airways and wanted to wear a visible cross necklace to work, in breach of British Airway's uniform policy. Ms Chaplin was a nurse who, too, wanted to wear a cross to work. Then there was Ms Ladele, a registrar who refused to perform civil partnership ceremonies. And Mr McFarlane, a Relate counsellor who said that he might object to providing sexual counselling for same-sex couples.

Eweida
The ECHR held that the UK courts had placed too much weight on British Airway’s desire to project a certain image. The cross worn by Ms Eweida was discreet, and there was no evidence that other clothing such as turbans and hijabs had a negative effect on BA’s brand. So the UK had breached its obligations under Article 9 of the European Convention on Human Rights (the right to freedom of thought, conscious and religion). BA’s need to protect its image gave way to Ms Eweida’s right to the reasonable expression of her religious belief.

Ms Chaplin
In Ms Chaplin’s case the health and safety reasons for asking her to remove her cross outweighed the religious rights. There was no breach of Article 9.

Ms Ladele and Mr McFarlane
The ECHR found against these two. The rights of the registrar and the counsellor did not trump the rights of others not to be discriminated against on grounds of sexual orientation. An employee who tries to opt-out of duties that do not align with their religious beliefs can not expect their employer to compromise equal opportunities policies by going along with this.

On the back of Ms Eweida’s success, employers should now look closely at their dress codes and related image considerations and ask whether these could discriminate against religious groups? If the answer is yes, are they justified?


Defining Disability - Aderemi v London & South East Railway

Mr Aderemi was an assistant at a railway station in London. His job required him to stand for long periods – about nine hours - at a time. This affected his back. He was assessed by an occupational health doctor who concluded that his mobility was significantly restricted, he was in a lot of discomfort and was unlikely to be able to return to his job in the foreseeable future.

Mr Aderemi was dismissed for capability and claimed unfair dismissal and disability discrimination.

The question of whether or not Mr Aderemi was disabled reached the Employment Appeal Tribunal (EAT) after the original tribunal found against him on that point. The tribunal had held that his impairment did not have a substantial, adverse effect on his ability to carry out normal day-to-day activities and so he wasn’t disabled. In reaching that decision, the tribunal concentrated on the things Mr Aderemi could still do.

The EAT held that the tribunal had looked at this the wrong way round. Rather than taking into account what Mr Aderemi could do, it ought to have considered the things he couldn’t do. These included bending, lifting and standing around for 30-minute periods, all of which may have brought him within the definition of disabled.

The case was sent back to the tribunal to be re-heard.


And Finally.... The Quashing of Ms Quashie’s Status - Stringfellows Restaurants v Quashie

Cast your mind back to last summer when Ms Quashie, a lapdancer at Stringfellows, was found by the Employment Appeal Tribunal to be an employee.

The club exercised a sufficient degree of control over her, for instance by requiring her to work certain regular days every month, to comply with a dress code and to perform a number of free dances.

Well, now that’s all changed. The Court of Appeal has decided that Ms Quashie is not an employee after all. Crucial to this decision was the way in which Ms Quashie was paid. She negotiated her own fees with clients and the risk of being out of pocket on a particular night was hers alone.

It would be unusual, the Court of Appeal said, for there to be an employment contract where the worker takes the economic risk and is paid exclusively by third parties.