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May Employment Law Bulletin

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It wouldn’t be a Queen’s Speech without a small element of anticlimax. As usual, predictions about this year’s main features were pretty accurate.

Nevertheless, there are changes afoot which employers will need to get to grips with. The main ones are to do with more flexible parental leave arrangements and an overhaul of the workplace dispute resolution system.

The Children and Families Bill will enable parents to transfer parental leave between themselves. Then there is the Enterprise and Regulatory Reform Bill which aims to encourage growth by cutting red tape for businesses. In a multi-pronged attack, the bill also introduces measures to encourage the early resolution of workplace disputes (resolved via ‘settlement agreements’ – it’s goodbye to compromise agreements). And there will be changes to the tribunal system aimed at improving efficiency.

Details will emerge which will put flesh on the bones of these announced measures. For now, it’s a case of watching and waiting.


Justification of Retirement Age - Seldon v Clarkson Wright and Jakes

Mr Seldon was a partner at a law firm. When he was required to retire at 65, in line with the firm’s policy, he brought a claim for age discrimination.

The employment tribunal found against him. The firm’s policy was justified, the tribunal said. It was a proportionate means of pursuing legitimate aims. In this case, the legitimate aims were to do with giving younger staff a chance to progress, helping with workforce planning and limiting the need to expel underperforming partners and so engendering a supportive culture.

This went all the way to the Supreme Court via the Employment Appeal Tribunal and Court of Appeal. Mr Seldon argued that the employer’s aims didn’t justify direct age discrimination, and that the treatment had to be justified specifically in relation to his case and not the retirement policy generally.

His arguments failed. The Supreme Court said that the firm’s aims were social policy aims (inter-generational fairness and preserving the dignity of older workers) rather than individual business needs (cost-cutting or improving competitiveness). And they were legitimate, justifying direct age discrimination.

The case has been sent back to tribunal to decide whether choosing the age of 65 for retirement was a proportionate means of achieving the firm’s legitimate aims (rather than, say, 67 or 70). We’ll have to wait and see.

Until then, while it might be possible to justify a retirement age, we don’t have any guidance on what that age might be. This case certainly doesn’t open the door for employers to start retiring staff at 65 without some very careful thought, and a bit more direction from the courts.


A Degree of Indirect Discrimination - Homer v Chief Constable of West Yorkshire Police
Mr Homer was 51 when he started working for the Police National Legal Database as an in-house legal adviser. At that time, a law degree (which Mr Homer didn’t have) wasn’t a requirement of the job.

Eleven years later, a new three-tier grading structure was introduced. Staff couldn’t hit the top grade without having a law degree. Mr Homer’s option would have been to study law part-time which would have taken him four years. But this was in the days before the default retirement age was abolished and he would have been due to retire before finishing his studies.

Mr Homer claimed indirect age discrimination; he had been subject to a provision, criterion or practice which put people of his age group at a disadvantage compared with other people.

This argument failed at the Employment Appeal Tribunal and at the Court of Appeal. It was the fact that he was about to retire which caused him the disadvantage, and not his age. So he should be compared with people who were coming to the end of their employment not necessarily through retirement.

The Supreme Court took a different view. Retirement directly relates to age, it said, so Mr Homer had been indirectly discriminated against. But the employer has some hope: it might still be possible for it to justify the discriminatory requirement as a proportionate means of achieving a legitimate aim. That issue is now with the tribunal to decide.


Miscarriage Comment Not Discriminatory - Warby v Wunda Group

Ms Warby fell out with her manager over pay. They each accused the other of lying about what had been agreed. But the manager took this one step further by accusing Ms Warby of also having lied about her pregnancy and miscarriage. Ms Warby claimed direct sex discrimination and harassment.

The employment tribunal rejected her claims. It said that the reason the manager had raised the miscarriage issue was to support his claim that Ms Warby was lying about what she believed the pay arrangements to be. It was not harassment on grounds of her pregnancy.

She appealed but lost. The Employment Appeal Tribunal said that the miscarriage comment had to be put in context. It was to do with lying and wasn’t made on grounds of gender.


Job Applicant Not Entitled to Information - Meister v Speech Design Carrier Systems

Ms Meister, a Russian national, applied to Speech Design for a software developer job. She had the right level of experience but the company rejected her application without interview.

She claimed sex, race and ethnic origin discrimination. But the really interesting part of this case is to do with her request to see the successful candidate’s file. Did the employer have to show it to her? Ms Meister believed it would reveal that she was more qualified than the person who was eventually offered the job.

The European Court of Justice gave some clarification on the EU legislation. It said that there is no automatic entitlement for someone in Ms Meister's position to have access to that sort of information. But the Court went on to say that where an employer refuses to grant access to that information, then that refusal could contribute to evidence of direct or indirect discrimination. It's for the tribunal to decide whether or not that’s the case.


Resignation and Effective Date of Termination - Horwood v Lincolnshire County Council

On 28 January Ms Horwood wrote a letter of immediate resignation to her employer. The letter was received the next day and date stamped 29 January, but wasn’t read until 2 February. The employer wrote to Ms Horwood confirming 2 February as the effective date of termination (EDT).

When Ms Horwood lodged her tribunal claim on 29 April, the employer relied on the EDT being 29 January and argued that her claim was out of time – it was a day late. The employment tribunal found in the employer’s favour, agreeing that 29 April was the EDT.

Ms Horwood appealed to the Employment Appeal Tribunal (EAT) but to no avail. The EAT said that EDT was 29 April and it hadn’t been varied by the employer. In cases where an employee is resigning, as opposed to being dismissed, then the EDT is the date on which the resignation is communicated to the employer. Contrast that with a summary dismissal where the EDT would be the date on which the employee reads and digests the employer’s letter.

But in this case, where the resignation was unequivocal, the EDT was the date the letter was received and date stamped. It didn’t matter that the employer had confirmed a different date (2 February) as the EDT. That was ineffective because the EDT was fixed by the legal definition and couldn’t be changed.


Facebook Fury and a Fair Dismissal - Teggert v Teletech

A Northern Ireland case which looked at the ever-growing number of issues caused by social networking.

Mr Teggert posted offensive sexual comments about a female colleague on Facebook. These provoked online comments from Mr Teggert’s Facebook friends, some of whom also worked at Teletech. This was reported to Teletech and, after a disciplinary hearing, Mr Teggert was dismissed for gross misconduct. The reasons were that the Facebook post amounted to sexual harassment and brought Teletech (named in the post) into disrepute.

Mr Teggert unsuccessfully appealed the decision and brought a claim for unfair dismissal and for violation of his human rights. He lost. Some of the key points of the tribunal's decision are:

This decision isn’t binding on UK employment tribunals, but it’s a useful indication of the way courts are thinking.


And Finally....Can't Pay, Won't Pay

Imagine facing a legal bill of £100,000. That’s what happened to Ms Doyle after losing her breach of contract, race discrimination and victimisation claims. The hearing had lasted seven days and involved seven other parties and at the end of it all Ms Doyle was ordered to pay the entire costs.

She appealed, saying that the conduct of the case didn’t warrant the costs order. The tribunal was also wrong, she said, not to have had regard to her ability to pay.

The Employment Tribunal Appeal agreed with her second point. The tribunal was within its rights to order costs, but was wrong not to have looked into Ms Doyle’s means before making the order. That was the case even though she was legally represented.

The case was sent back to the tribunal for it to look into Ms Doyle’s means and to decide on an appropriate costs order.

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