An Employment Law Blog by a UK barrister
From tomorrow - Monday 27th October - agency workers and those on fixed term contracts of less than three months will gain entitlement to statutory sick pay, something with which they’d previously had to live without.
Also, income support and incapacity benefit are merged and renamed Employment and Support Allowance. More details on those at the DWP here (including yet another extension of the term ‘customers’), and the full regulations concerning the SSP extension here.
Again, this isn’t employment related, but over time this blog might start to embrace (as it were) discrimination in all its forms.
On 4th November in the US voters will go to decide whether McCain or Obama will be their next president. Californians, however, will have an extra decision to make: should the Californian constitution be amended to eliminate the right of same-sex couples to marry? This would reverse the decision of the state’s supreme court which upheld gay marriage as protected by the constitution earlier this year.
To give you an idea of scale, in the UK there were around 16,000 civil partnerships in 2006, which has settled down to an annual figure of around half that number. UCLA forecast that in California, on the other hand, in the next three year period there may be as many 100,000 gay marriage ceremonies if they remain lawful. Many of these will be pilgrims from other American states.
Whereas UK citizens can detach themselves from the presidential race, California is certainly the largest, most liberally progressive and media driven jurisdiction to have a referendum on gay marriage. Since referenda are rare in the UK some might argue our laws are watered down. There was no opposition of much substance to the introduction of civil partnerships, but this may well be because the government didn’t want the public debate that the word ‘marriage’ brings. Would our debate have been so polarised? The universal applicability of the topic to any western nation makes it harder to dismiss the Californian debate as inextricably American - it could happen here.
For a flavour of the debate so far, and to see the energy and importance of this vote to many of California’s LGB community, visit the site of blogger Sapphocrat at her Lavender Newswire. Her output is prodigious (there is at least one long post each day) with a recent and evocative one being a YouTube montage of a selection of the rapists, paedophiles and serial killers allowed a (heterosexual) marriage in prison. The point is clear: if them, why not us? She also tries to counter what she sees as the lies told by the Yes campaign, which a visit to its website predictably and depressingly confirms amount to “your kids will get gayed up at school”.
The official No on 8 gives a less personalised view of the battle than the Lavender Newswire - and the sponsors of Proposition 8 and its official Yes campaign can be found here. Look and decide for yourself.
Oddly enough I have (according to Google, which must surely discount visits from its own robots) a small handful of readers in California - although I can’t think what could possibly interest them here. If you do have a vote on Proposition 8, and you’re reading this, then look at how much Sapphocrat cares about the result. If you’re a Yes voter, then make sure you remember you’re dealing with thousands of real people’s happiness - not just your own proclivities.
It has been widely assumed, and advised, that Last In, First Out (LIFO) was no longer a permissible means of selecting employees to be made redundant, as it offends against age discrimination legislation. Prior to 2006 LIFO was the only formulaic and arbitrary selection method which was acceptable for unfair dismissal purposes, and many lamented its passing. LIFO will usually effect younger employees adversely - it is impossible for a 21 year old to have accrued ten years of service, compared with his 51 year old colleague.
Similar considerations attach to the commonly-seen factor in a selection matrix - length of service.
These issues have finally been touched on in a reported case - Rolls Royce Plc v UNITE the Union [2008] EWHC 2420, although only lightly. Indirect age discrimination is of course capable of being justified, if the employer can demonstrate it to be a ‘proportionate means of achieving a legitimate aim’. In this case Rolls Royce sought to depart from a collective agreement with UNITE that included length of service as a selection factor by arguing it was unlawful. The court found that:
The Collective Agreements represent a compromise between them. It is in both parties’ interests that a redundancy exercise, if such is needed, is carried out in a way which is perceived as fair and can be executed “peaceably”. In my Judgment, this is a legitimate business aim. It is an aspect of a “legitimate business policy” within the meaning of Article 6 of the Directive. The fact that the parties have achieved a peaceable transition following redundancy does not necessarily mean that Rolls Royce have achieved their defined business aim, although it seems to me that length of service is likely to be a fair indicator of both loyalty and experience which might not be fully taken account of in the measurement process … It seems to me that the parties have adopted a scheme which enables the employer to succeed in a defence to an age discrimination claim under Regulation 3: the legitimate aim is the advancement of an employment policy which achieves a peaceable process of selection agreed with the recognised Union. The criterion of length of service respects the loyalty and experience of the older workforce and protects the older employees from being put onto the labour market at a time when they are particularly likely to find alternative employment hard to find.
However:
Had the Court been concerned with a Scheme which was LIFO alone then that might be objectionable
So large negotiated compromises may well be able to cross the hurdle of justification. But what does this mean for the small employer? Is LIFO completely forbidden? Usually, but not always. To bring a claim of age discrimination, it is not enough to show that the means of selection were discriminatory, it must also be shown that the Claimant has suffered a detriment as a result. So if I have two 35 year old members of staff, one of whom has five years’ service and the other 18 months, using LIFO, or length of service as a factor in selection, may well still be acceptable. This might even go so far as to benefit larger pools for selection where the age difference is very small (a couple of years) and the various lengths of service of a similar duration.
Some of the papers carry the story today of Edward Johnson, whose nuerofibromatosis means his face is covered in small harmless tumours. He has apparently been to over 80 job interviews and been rejected, he believes on the grounds that his disfigurement makes employers uncomfortable.
Employers should always remember that severe disfigurements are taken to fall within the Disability Discrimination Act 1995, notwithstanding that they might not meet its other requirements. Employers would therefore directly discriminate contrary to the law if they chose not to hire Mr Johnson because of the way he looks.
Mr Johnson’s condition would appear to have no other effect than cosmetic - compare it with the case of Cosgrove v Northern Ireland Ambulance Service [2006] NICA 44 where Cosgrove, on being declared unsuitable for his role as an ambulance technician due to his psoriasis, claimed he was entitled to treat the disfiguring effects of the condition as bringing it within the DDA. This was rejected - it is the disfigurement which is the disability, not the condition that causes it. There must thus, it seems, be a causal link between the disfigurement and the adverse treatment by the employer - which is abundantly present in Mr Johnson’s attempts to find a job.
The news has been full of this - new BERR Secretary Lord Mandelson (go on, admit you missed him) was reported to be reconsidering the government’s previous announcement in November that the right to apply for flexible working would be extended to all employees who cared for children under the age of 16. Currently the right only exists for carers of children aged under six, a registered disabled child under 18, or (in certain circumstances) a vulnerable person of any age.
Even back in May the CBI said that they strongly opposed reform:
“Now is not the time to be placing extra burdens on British business, and people increasingly see this. We already have one of the most generous flexible working systems in Europe, and the Government is already committed to giving more parents the right to request flexible working. Any plans that would hamper our companies as they compete in the global economy should concern us all.”
…so we can’t expect their opposition to be any less strong now that we are officially in a recession. Small businesses in particular record their dissatisfaction with flexible working, as they feel any absence by employees during their core hours has the potential to cause greater problems as there are often no other staff to cover. By contrast the Chief Executive of the Equality & Human Rights Commission said, in response to Mandelson’s comments:
Genuinely flexible working is part of the solution, not part of the problem. Flexibility provides business opportunities to deal with turbulent times.
The EHRC is disappointed to see the old-fashioned argument being made that flexibility has to be a burden, instead of a potential way to increase productivity in Britain. It need not be a business cost. It can be a business opportunity.
For what my opinion’s worth, the most worrying factor to small businesses is the belief that they have to grant all applications for flexible working. This is contributed to by there being no freestanding remedy for refusing an application, unless the refusal constitutes indirect discrimination. This leads to a lack of certainly for an employer to assess his obligations.
Until 2001 there existed a register of Respondents to employment tribunal claims - or applications as they were known then. This practice discontinued in 2001, partly because of employers being uncomfortable that even having a claim can cause negative stigma, but mainly because of the deluge of junk mail that would follow from companies offering representation or insurance against future claims.
This will now recommence after the Information Commissioner ruled that:
There is a very weak - if any - public interest in maintaining the exemption. There is a competing general public interest in disclosure which is strengthened by the more specific public interest in “open justice” so that the details of cases brought before courts and tribunals should normally be in the public domain unless there is good reason for confidentiality.
So employers on the end of tribunal claims can expect to receive some direct marketing - much as those individuals given CCJs currently receive reams of offers of IVAs and high-interest debt consolidation.
A pdf of the decision is here.
Citizens’ Advice have released a report called Justice Denied, which claims that as many as 1 in 10 tribunal awards are never paid. The gist of the report is that:
I have my reservations. As is stated (but not quantified) in the report, many employees don’t receive their tribunal awards due to their employer’s insolvency - the government could ease that problem straight away by raising the amount and type of awards recoverable from the Secretary of State… unlikely.
As for the problems of squeezing money out of your judgment debtors, well this is well known to anyone involved in debt recovery. Many of the CAB case studies involve litigants obtaining fruitless orders that the debtor attends court, and warrants of execution. For private debts of any size against a company, county court bailiffs are famously as useful as a chocolate teapot, whereas HCEOs (or sheriffs as they used to be known) can be devastatingly effective - a firm of them once took walking possession of a passenger jet as it was about to take off from an airport. Threats of insolvency proceedings can also reap dividends against a company, but the procedures are indeed too complicated for most litigants in person, as well as being prohibitively expensive to commence.
What is perhaps needed is clear advice and support to litigants as to the best and most suitable methods of enforcement, and, as the report suggests as one possibility, a streamlined referral and contracting service to an HCEO firm or other commercial debt collector. What we certainly don’t need is a CSA for employment tribunals.
Some changes came into force on 5th October 2008 regarding Additional Maternity Leave. The key distinction between the two has always traditionally been that the employee is entitled to all her contractual benefits during Ordinary Maternity Leave (aside from pay), but not during Additional Maternity Leave. These contractual entitlements, for women whose expected week of childbirth is from now onwards, will now exist during AML as well. Practical examples of entitlements that women will have during their second six months that they didn’t have before are:
New guidance has been published by BERR.
Money Box Live on Radio 4 today covered these issues, and is worth a listen. You can download the podcast as an mp3 for the next week or so, at the show’s webpage.
I do wonder if it might simply this complicated area of law if the distinction between OML and AML were just abolished.
This blog is getting a little minimum wage-centric at the moment, but there’s a recent EAT case that re-emphasises what must, by now, be well settled law. Mrs Hughes worked in a care home, which provided her with a flat on-site. In return for a £150 per month rent subsidy, she was required to be on call for any emergencies that occurred, apart from when she was on annual leave. Furthermore, the provision and occupation of the flat were terms of the employment contract.
This type of arrangement is common, and furthermore is very useful. Many care homes are too small to employ sufficient waking night staff to deal with all situations that might arise. Mrs Hughes was called out around twice each month. Relations must have soured however, as she raised a grievance. Her employer’s response was to pay her for the time she was working during the call outs. However, whether due to this grievance or a further deterioration in the relations, they served notice to quit from the flat. This was constructive dismissal, so closely were the flat occupation and employment relationship tied.
She also brought actions claiming that she should be entitled to National Minimum Wage for the on call periods (9pm to 8am), and breach of her Working Time Regulations entitlements to rest breaks every six hours, and daily rest breaks. She won on most points: it has been established since the ECJ cases of SIMAP and Jaeger (all about junior doctors) that if you’re required to be on the premises then it’s working time, even if you’re asleep. The NMW is only payable when you’re awake. For a similar decision with a hotel caretaker required to stay in the hotel on some nights, see this case.
The present case of Hughes v Jones & Anor [2008] UKEAT can be found here, and the law is certainly correctly interpreted, but it’s a shame that employing live-in on call staff is effectively rendered impossible by the WTR.
A civil justice review in Ontario once said:
Unreasonable delay in the disposition of disputes is, indeed, ‘the enemy of justice and peace in the community’. It leads inevitably to unreasonable costs. It breeds inaccessibility. It fosters frustration, and frustrates fairness. The administration of justice falls into disrepute. People become alienated.
Sexual behaviour and drug taking may well be the staple of many a school trip, but when teachers became involved it resulted in this recent messy discrimination claim: Aylesford School v Grosvenor [2008] UKEAT. The judgment is actually fairly dry, and the interesting legal point comes from the delay in giving judgment following the tribunal hearing. Discrimination claims must inevitably look at every allegation, so hearings are long, and this particular one took 40 days of the tribunal’s time. To add insult to injury, the tribunal then took 11 months to produce its judgment, including 26 further days of deliberation. A point is taken on the appeal on whether delay is actionable, but it is held not to be in this case, as the decision making process was continuous throughout the eleven months the parties had to wait.
They still did better than Harman J, who in 1998 had to resign after being criticised for delaying his judgment for an amazing 20 months following trial.
