Hand Morgan & Owen Employment Bulletin – January 2017
AGE LIMITS FOR RECRUITMENT
An interesting Spanish case recently dealt with the issue of whether a maximum age of 35 years to be recruited to the Police Force was compatible with the Equal Treatment Framework Directive (a general framework for EU Members to establish equal treatment in employment and occupation).
In this case, it was found that such an imposition was not contrary to the Directive. Whilst the possession of particular physical abilities is a characteristic relating to age, the duties of a Police Officer “may require the use of physical force” and if Officers lacked that capacity it may have consequences for not only them, but third parties and maintenance of public order. It was found to be not just a question of looking at age on recruitment but also the period of service that could be accomplished afterwards.
In the circumstances the age limit was found to be a genuine occupational requirement, which is a justification for treatment that could otherwise be regarded as discriminatory.
VICARIOUS LIABILITY FOR ASSAULTS BY EMPLOYEE OUTSIDE OF WORK
The High Court case of Bellman v Northampton Recruitment dealt with an incident where a Company Director assaulted a Manager after a Christmas party. The two had been to the works Christmas party then with colleagues went on to a hotel and continued drinking until the assault which took place at 3 a.m. In what was described as an unprovoked attack the Director, Mr. Mayor, punched the Claimant Mr. Bellman twice the second occasion knocking him to the floor where he struck his head and was rendered unconscious. He consequently suffered a significant brain injury and at the time of these proceedings lacked capacity.
A claim was brought against Mr. Major’s company rather than him personally and the issue was therefore whether or not the company was vicariously liable for his actions. The pertinent question for the Judge was whether the Mr. Major was acting in the course or scope of his employment. This was not to be the case, rendering the claim unsuccessful. Notwithstanding that the preceding conversation between the two had been work related, the assault had occurred after a Christmas party in a private drinking session where attendance was voluntary and independent of work.
TAKING A BREAK
The Employment Appeals Tribunal case of Grange v Abellio London Limited dealt with the issue of whether an employer is in breach of Working Time Regulations if a worker does not take a break, even if they have not asked for one. (Workers are entitled to a rest break of 20 minutes if their daily working time is more than 6 hours and a refusal to grant a break is a breach of the Regulations).
Mr. Grange initially worked an 8-hour shift with a half hour break although because of the demands of the job he would often work the entire shift without taking his break. In July 2012, the Respondent emailed Mr. Grange expressing an expectation (or arguably, an instruction) that he was to work straight through the 8 hours without his break but then could leave 30 minutes early.
The Employment Tribunal first hearing the claim dismissed it on the basis that Mr. Grange had not actively asked for a break during his shifts and therefore there had not been a refusal on the part of his employer. This decision was overturned by the Employment Appeals Tribunal who looked at the purpose of the legislation, to ensure that rest breaks are provided to protect workers’ welfare. They took the view that if an employer puts into place working arrangements that fail to allow the taking of breaks the employee’s entitlement is effectively being “refused”.
TAX FREE CHILD CARE
The Government is in the process of rolling out a new tax free child care scheme. Qualifying parents will have to be in work and expecting to earn at least £115 per week. Each parent must not have an income over £100,000 per year.
Under the scheme parents will be able to open an online account which they can use to pay for child care from a registered provider. Of each £8 paid in the Government will pay in an extra £2 with parents receiving up to £2,000 per year per child (increased to £4,000 for disabled children). The scheme will be available for children up to the age of 12 or 17 for children with disabilities.
Uber drivers are part of the growing “gig economy”. Uber allow smart phone owners to hail a driver using location software in their phone (and the driver’s phone) and the driver in the immediate vicinity is summons, often more efficiently than booking a taxi.
A recent Employment Tribunal case in London has held that these drivers are workers, rather than self-employed, meaning that they have various rights including;
- 5.6 weeks paid annual leave per annum
- A maximum 48-hour average working week
- The National Minimum Wage/National Living Wage
Whilst it is likely that this decision will go through the appeal process, it may have far reaching consequences for companies who have self-employed staff.
20 January 2017
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The contents of this article are for the purpose 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.