HMO QUARTERLY EMPLOYMENT BULLETIN
March 2010

This bulletin is divided into the following sections:-

• Legislation
• Case Law
• What is in the Pipeline?

1. LEGISLATION

Ban on Blacklisting

The Employment Relations Act 1999 (Blacklists) Regulations 2010 came into effect on the 2 March 2010. These Regulations prevent employers from blacklisting workers for their Trade Union membership. The Regulations :

• Make it unlawful for organisations to refuse employment or sack individuals who appear on a blacklist.

• Make it unlawful for employment agencies to refuse to provide work for an individual appearing on a blacklist.

• Give individuals the right to compensation against those who blacklist them

ADDITIONAL PATERNITY LEAVE AND PAY

Under the Work and Families Act 2008 additional rights for paternity leave have been introduced with effect from 6 April 2010. Six sets of regulations have been introduced. Currently employees can, in certain circumstances, take paternity leave and pay either for one whole week or two consecutive whole weeks. Now the regulations entitle employees to take up to an additional 26 weeks off work with pay to care for their child in its first year. There are detailed notification and evidential requirements which are beyond the scope of this Bulletin. The regulations also give rise to similar rights in relation to adoption.

2. CASE LAW

During the first quarter of this year there has been a number of interesting cases for lawyers but more importantly cases of practical importance for employers.

Employer’s Duty in Respect of Pregnant Workers

In O’Neill v Buckinghamshire County Council the Employment Appeal Tribunal (“EAT”) spelled out the duty of an employer to conduct a risk assessment for a pregnant worker. This has to be done when:

• The employee notifies the employer in writing that she is pregnant.

• 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.

• The risk arises from either processes, working conditions or physical chemical or biological agents in the workplace.

The Tribunal stressed that there is no more general obligation to carry out a risk assessment for a pregnant worker but if any risks are identified then the employer must provide the employee with full details. There is also a suggestion that if an obligation to carry out a risk assessment arises but is not undertaken this can amount to discrimination which would attract compensation without the need for proving any detriment.

Constructive Dismissal

The Court of Appeal (“COP”) and EAT have looked at constructive dismissal. Constructive dismissal is now much more widely understood as a concept than previously. It is where an employee resigns in the face of what he or she alleges is intolerable conduct on the part of the employer.  Although the employee resigns it is the gateway to a claim for unfair dismissal against the employer. In Buckland v Bournemouth University the CAP confirmed two issues of law :

1. For a resignation to amount to a constructive dismissal the employer has to have been in “fundamental breach”.  It is not relevant to judge the breach by reference to the test was the employers conduct within the range of the reasonable responses of a reasonable employer.  The breach is either fundamental or not.  

2. Having committed a fundamental breach the employer cannot recover the situation whilst the employee is considering whether to treat the conduct of the employer as a dismissal and resign.

As an employer if it is realised that you have dropped a major clanger so far as your employee is concerned in practice you should, of course, always seek to rectify the position in order to avoid a resignation and a claim for unfair constructive dismissal. The warning from this case is you may be too late.

In Aberdeen City Council v McNeill the EAT rebalanced the law as to whether the Tribunal should look only at the conduct of the employer when deciding whether the employee had been entitled to resign on the basis of constructive dismissal. Whereas hitherto broadly that had been the case now if an employee is in breach of the implied duty of trust and confidence at the time of his resignation he or she is not entitled to terminate the contract on the basis that the employer had breached that term. On the facts of this case sexual banter and drunken behaviour by the employee prevented him from successfully alleging a breach by his employer.

POWER OF AN EMPLOYER TO VARY CONDITIONS OF EMPLOYMENT

This is always a vexed question. As an employer you need to alter terms and conditions of employment in line with the changing needs of the business. Whilst you may seek to achieve variations by agreement ultimately you may be faced with the decision as to whether you make a unilateral change – in which case you may be bracing yourself for the repercussions and ultimately a claim to the Tribunal.

Asda, recently, were faced with such a situation. Broadly half of their employees were prepared to go along with a variation which was put into effect by consent. The other half refused and a sizeable proportion of those brought the matter before the Employment Tribunal as a test case. The law has not been changed by the case of Bateman v Asda but the EAT has given the green light to a more flexible approach in support of employers.

The lawyer who represented Asda is quoted as saying :

“Cases and commentaries have always warned that Courts and Tribunals would strive to limit the impact variation clauses in employment contracts would have on individuals. It wasn’t that you couldn’t make the changes but it was more difficult to persuade a Court that the clauses had the impact they now appear to have.

An employer can now effectively make any changes to an employment contract as long as there is a clear and unambiguous variation clause permitting those changes and he does not act arbitrarily, capriciously, or in breach of the implied term of trust and confidence. This isn’t carte blanche to vary contracts at will – there is a balance to be struck. For instance if the employer tried to do something exceptional that might breach the implied term of trust and confidence.

It is important to stress that Asda’s variation clause required the company to involve itself in communication information and consultation exercises taking into account issues such as the significance of the change and the number of employees affected”.       

LEGAL REPRESENTATION DURING AN INTERNAL DISCIPLINARY 
PROCESS

The general principle is that lawyers should be kept out of internal disciplinary hearings! An employee attending a disciplinary meeting is entitled to have assistance from a work colleague or trade union representative. The principle of exclusion of lawyers is, however, being slightly eroded. In a case (in which the parties were not identified) the COP has confirmed that a teaching assistant was entitled to legal representation at a disciplinary hearing for sexual misconduct with a child. She gained this right under Article 6 of the European Convention of Human Rights (right to a fair trial) upon the basis that the charge was serious and could have the effect of ending her career. So if you have an employee who wishes to have his or her solicitor attend a disciplinary hearing don’t dismiss it out of hand.

HOLIDAY LEAVE

Holiday leave is close to any employee’s heart. In Lyons v Mitie Security Limited the EAT had to consider the extent of the rights of an employee to take statutory holiday. Statutory holiday has to be taken within the holiday year and cannot be rolled over. Where an employee, late in the holiday year, requests leave but that leave is not permitted the right to the leave will be lost at the end of the holiday year. In this case the employee argued that he was entitled to take the leave regardless of the requirements to give notice.

The EAT said that the right to statutory leave was dependant upon the employee giving the requisite notice. (The periods of notice required are governed by the Working Time Regulations 1998). The Tribunal stressed that an employer must not operate the provisions “unreasonably, arbitrarily or capriciously in order to deny unlawful request” (in other words there must be a good operational reason for refusing leave).

Remember however that this case relates to statutory holiday (that is the minimum holiday entitlement). There is still an issue to be decided in this case as to whether the employer is in breach of contract in relation to contractual holiday leave over and above the statutory entitlement.

TUPE

The transfer of undertaking regulations which apply when a business acquires or merges with another continue to spawn many cases.  We highlight just one here which relates to the meaning of “affected employees” when a transfer takes place. It is often forgotten that the requirements to inform and consult relates to not only those employees who are transferring but those who may be affected by the transfer. The case of Unison v Somerset County Council and Others decided that the definition of “affected employees” included those who will or may be transferred and those who have internal job applications pending at the time of transfer. The definition did not include others in the workforce who might apply in the future for a vacancy in the part of the business to be transferred.

AGE DISCRIMINATION

Age discrimination will often centre around discrimination against the older employee- but not always. The case of Beck v Canadian Imperial Bank of Commerce is a reminder that care has to be taken by an employer at the other end of the age spectrum. In this case the Bank sought to recruit a replacement with a “younger, entrepreneurial profile” than the 42 year old employee whom it made “redundant”. The Employment Tribunal found that the 42 year old had been unfairly dismissed and subject to age discrimination because of the use of the word “younger” in the specification for the recruitment of his replacement. The Bank tried to argue that the word “younger” simply meant less experienced but failed.

THE BA DRESS CODE CASE

Much has been written in the popular press about this case which was decided in February. It was found that BA had not been guilty of discrimination in requiring their employee to remove crucifix.

In fact the case decided a very technical point which centred around the Employment Equality (Religion or Belief) Regulations 2003.  These gave the right to allege discrimination against “persons”. Ms Eweida brought her case as an individual and it was upon this basis that the case was thrown out.

How does this translate into practical advice for lawyers. The solicitor for British Airways suggested that “employers will want to think very carefully about their dress code. What is the reason for the requirement? Is it really necessary? Are there sensible reasons for a particular requirement, for example, health and safety reasons? Where you have a policy that touches religion or belief, employers have to be thoughtful and sensitive about it”.

3. WHAT IS IN THE PIPELINE?

REQUEST FOR TIME OFF FOR TRAINING : GUIDANCE PUBLISHED

The Department for Business Innovation and Skills has published guidance notes for employers “Consider Time for Training” which can be found on the Business Link website. The new right for employees to request time off for training applies to all employees in organisations with 250 or more employees from the 6 April 2010 and to all employees from the 6 April 2011.

DEFAULT RETIREMENT AGE

The Equality and Human Rights Commission has published its strategy to change working practices to benefit older workers. Among the proposals is the abolition of the default retirement age of 65.

INCREASED PROTECTION FOR AGENCY WORKERS

The Agency Worker Regulations 2010 move the treatment of agency workers into line with basic working and employment conditions of those not recruited through an agency. There is a qualifying period of 12 weeks after which the basic terms relating to pay, working time, night working, rest periods, rest breaks and annual leave fall into line. These regulations do not come into effect, however, until the 1 October 2011.

If you would like to read other articles, fact sheets and bulletins on Employment Law go to http://www.hmo.co.uk/content/view/87/93/. 

For advice and assistance in respect of Employment matters contact Nigel Pepper, Consultant or Patrick Nelson, Associate on 01785 211411.

18 March 2010

Disclaimer
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.