The employee worked at a site in North London, and he wished to go to his mosque on Friday lunchtime. This involved a considerable amount of time away from work due to transport difficulties. The reason he was not allowed time off was due to the operational requirements of the business, as the employer was contracted to ensure that security staff remained on site during lunch breaks so that enough staff were available.

This was a question of indirect discrimination, where the employer imposes a requirement – here to stay on site during lunchtimes – which means that, in this case, for reasons of religious belief, an employee cannot comply with the requirement on a Friday. The employer is required to provide an objective justification for its requirement, or else it would be discriminating indirectly against that employee by imposing a requirement that it cannot justify.

The Employment Tribunal rejected the employee’s complaint, holding that the employer had established an objective justification for its practice of requiring employees to be on site when the employee wished to be absent for religious observance, and that outweighed the impact on the employee of this policy.

If the employee were to have been allowed time off, the employer would have breached its obligations to its client, risking penalty clauses and potentially losing the contract. The employer had taken several steps to help the employee, including removing him from the Friday rota and offering him work at weekends to make up his time. It was accepted that it would have been impractical to have an extra guard employed to cover just part of the employee’s shift.

When the employee appealed, he argued that the Tribunal had failed to consider the impact of the requirement to work on Friday on him and that it had simply focused on the problems faced by the employer. The EAT disagreed, and held that the Tribunal had carried out the necessary ‘balancing act’ to ensure that when an employer’s business needs and an employee’s personal needs collide, the employer could justify its decision to stick with its practice.

The lesson for employers from this case is that when faced with a possible indirect discrimination claim, a common example is a request to work part-time after maternity leave, the employer should look at both sides of the picture and consider the impact on the employee as well as on the business. An Employment Tribunal is required to take an objective view of the situation, and an employer that has a good case should not be afraid to put it forward.

In this case, the employee’s requirement to go off site created particular difficulties for the employer, and the employer had done what it could to reduce the impact of Friday working on the employee.

Ed McFarlane
www.Deminos.co.uk

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The Government put out a press release on 11th May 2011 stating that it was considering reforms as part of a review of employment red tape. Three areas are under consideration:

1.    Compensation for discrimination: The government notes that employers are concerned of the potential for unlimited liability in discrimination cases, and that concern about high awards can push employers into settling even weak cases.

2.    Collective redundancy rules: The press release notes (wrongly) that the requirement to consult for 90 days in a collective redundancy is hindering effective restructuring. There is in fact, a 90-day period only if 100 or more employees are at risk in one establishment, for 20-99 employees the period is 30 days.

3.    TUPE: The main thing everyone probably would agree about TUPE is that if you’re not upset by it, you probably haven’t understood it. There is concern over the impact that TUPE has on new business owners, so it is a deterrent to taking over failing businesses.

All these criticisms are valid, however, in each area there is a European Law dimension and the Government cannot simply go back on laws that implement European Directives without the agreement of the other Member States to water down the Directives that are implemented in UK law. For example, an Act of Parliament that placed a cap on discrimination awards could be struck down by the European Court of Justice, as could changes in the other areas.

On the positive side, in discrimination law, it could be possible for Parliament to legislate to provide guidelines for compensation in Discrimination cases. The well-known Vento principles were developed by Judges, and recently increased by Judges with inflation-proofing in mind.

If Parliament were to set out in law guidelines for Courts and Tribunals to follow in Discrimination cases (and they are linked to other personal injury awards) that would be one way to provide more certainty about awards for injury to feelings, but it would require a wholesale revision of the current “Claims Culture”.

Even then, claims for loss of earnings in discrimination cases can be unlimited, one way to indirectly alter that might be to amend the Common Law rule on mitigation of loss to provide for the burden to fall on the employee to show that he has mitigated his loss, rather than the other way round as it is at the moment, and that would only make an employer’s task easier.

In collective redundancies, there could be clearer guidelines for when consultation begins and ends, that could provide some certainty for employers and would be a welcome start. That wouldn’t require much effort from the law makers.

On TUPE, one area where the law could be simplified is in the Service Provision Change rules that came into force in 2006. Those rules ago beyond the minimum required by the EU Directive and are partly made under the Employment Relations Act 1999, and so they are “home-made”. Therefore, the Government has some scope to amend the rules in that area without falling foul of European law. However, doing that would create even more uncertainty in an area which the law is now quite well-developed.

So, there might, one day, be some changes that could simplify the law in these areas.

One thing that the Government hasn’t suggested is reducing the cap on Unfair Dismissal. It was £12,000 until 25th October 1999, and if index-linked it would be now around £16,500. The current cap of £68,400 has gone up from £50,000. This could be one way to reduce the burden of Unfair Dismissal on employers, by reducing the maximum exposure (unless it’s a discrimination claim, of course). This would require amendment via an Act of Parliament, but it would probably be of more benefit to employers than changing the qualifying period for Unfair Dismissal from one year to two years service.

It might reduce the number of lawyers too!

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The employer, a well-known firm of solicitors, was making redundancies. In one pool, they had two staff; a man Mr de Belin who had scored 27, and a woman, who was on maternity leave, who scored 27.5, so Mr de Belin was dismissed as redundant. Mr de Belin felt that his scoring was unfair, and he was only 1 point from clear safety.

One criterion called “lock up”, with 2 points up for grabs was based on the rate of file closure. Eversheds didn’t have file closure data for the employee on maternity leave, as she had no files in the assessment period, so the two employees weren’t scored like-for-like. Mr de Belin’s lock-up score was 0.5 out of 2, based on his actual data, and Eversheds gave the woman a notional maximum score of 2. This score ensured that she was saved from redundancy, at Mr de Belin’s expense. Had she scored any lower, it would either have been a tie on 27, or Mr de Belin would have been saved from redundancy.

Mr de Belin claimed Unfair Dismissal and sex discrimination, as he had been treated less favourably than a female colleague when his score had not been adjusted, whereas her score was. Eversheds argued that they had to give someone on maternity leave maximum marks to avoid disadvantaging her due to maternity leave. That argument was rejected and Mr de Belin won his Tribunal, and was awarded compensation of £123,053.03, and as the dismissal was discriminatory, the cap on the award didn’t apply.

The Tribunal held that giving an employee on maternity leave a maximum score was sex discrimination against Mr de Belin as a man, and also that the dismissal was generally unfair as Eversheds took an unreasonable approach to scoring Mr de Belin. Eversheds appealed to the EAT.

The key question was whether Eversheds had gone overboard in trying to meet its obligation to protect an employee on maternity leave from any disadvantage, and ended up favouring her, and therefore treating a man less favourably for a sex-related reason (her pregnancy and maternity leave), the EAT agreed with the Employment Tribunal, holding that:
“…the obligation… …cannot extend to favouring pregnant employees or those on maternity leave beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition…”

The EAT also said:

“…the Claimant (Mr de Belin) has suffered a real injustice. By giving Ms. Reinholz (his colleague) a notional maximum score, while he was given his actual score, Eversheds gave her an advantage over him which was not based on an assessment of their respective merits; and that advantage is very likely to have made the difference between him keeping and losing his job…”

The judgment did not decide what an employer should have done, unfortunately that will always depend on the facts of a particular case, but it did suggest that the scoring for the criteria could have been changed to consider a period when both members of the pool were at work or that data from a different time period could have been used, or the criterion be dropped altogether.

The key point in this case is that where an employer is scoring a pool and an employee’s score is affected by either pregnancy or maternity leave, and indeed other possible reasons that could be discriminatory, any adjustment to the absent employee’s score should be made with a view to levelling the playing field rather than tilting it her favour, for fear of dismissing someone who is pregnant or on maternity leave.

Employers faced with this type of situation should make sure that they have criteria that they can score objectively, and that if any employee’s score (often performance- or attendance-related) is affected by pregnancy or maternity leave, then they should look at all criteria to ensure:

(i)    the affected employee isn’t disadvantaged due to their condition; and
(ii)    any changes made to that employee’s scoring don’t prejudice other employees.

Employers therefore shouldn’t “throw a man overboard” in a redundancy pool simply because a woman on maternity leave is in the pool and her scores are low, it all comes down to following a fair, reasonable and, where possible, objective selection process that avoids discriminating one way or the other.

The EAT did allow Eversheds’ appeal on the amount of compensation, as there was good evidence that Mr de Belin would have been made redundant later anyway had he not been dismissed, and sent the case back to the Leeds Employment Tribunal for re-consideration of compensation.

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To give you an idea, this David Brent wannabe has uttered ‘Everything I touch turns to sold’ as well as ‘I am not a cliché’

Very entertaining.  Anyway, individuals as brands was not something anyone outside celebrity (Jordan) and football (David Beckham) circles considered until recently.  But something has changed that, and it is LinkedIn.

Founded in 2003, LinkedIn now has 80 million registered users, 4 million of them in the UK.  That is a huge percentage of the professionals in the country.

LinkedIn lets you put up a personal page – a live CV.  Mine is here

At the heart of Linked in is the power of the network.  To give you an idea, my small network of around 300 connects me to over 7 million professionals around the world, via three hops.  Most people are connected to their suppliers, customers, colleagues, school and college friends and people they meet at networking events.

LinkedIn has been welcomed by the recruitment community as it provides many excellent tools to search for candidates and fill vacancies.  Jobs are also forwarded around people’s networks, so they reach the right people.  In fact at Deminos we now use it as the main method of filling our current vacancies.

So, Linked in provides the best way to promote and build the brand of YOU.  When you change jobs you keep your existing network and add more colleagues, suppliers and customers from your new job.  And everyone keeps their own contact information up to date, so you can always keep in touch.

I would like to get to know my readers better, so please feel free to link with me now.  Near the top right, click on ‘View full profile’ and then ‘Add to your network’.  And, if you’re not yet on Linked In now is the perfect time to join.

Regards,

Neil Atkinson

Tel: 020 7870 1090

PS. I look forward to meeting you both virtually and in the real world!

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The Working Time Regulations continue to give rise to problems, notably in relation to rest breaks and holiday entitlement. Two recent cases are noteworthy.

In one,  the Northern Ireland Court of Appeal has ruled that a nurse whose rest breaks were taken on site but away from the place where she performed her duties, and during which she was not to be interrupted save in exceptional circumstances, did count as rest breaks for the purposes of the Regulations.  The nurse had argued that the rest breaks counted as time spent on call which, following a series of rulings by the European Court of Justice, would count as working time.  Those who would like to read the full judgment can click here on Martin v Southern Health and Social Care Trust.

In the second case the Inner House of the Scottish Court of Session (equivalent to the English Court of Appeal) has held that there is no rule that entitlement to annual holiday must come out of working time.  Any other conclusion could produce absurd results in the case of “shut-down trades” and of teachers who, for example, could insist on taking holiday during term time if the Regulations were interpreted to mean that a worker has the right to insist on holidays being taken during working time.  Similarly, if that were the correct interpretation professional footballers would be entitled to take annual leave during the football season rather than during the summer break.

This case was brought not by teachers or professional footballers but by offshore workers on oil and gas rigs in the North Sea.  Typically they worked 2 weeks offshore, followed by a two week “field break” on land. Their employer (which, incidentally, was the company involved in the BP Gulf of Mexico disaster earlier in 2010) required them to take their annual paid holiday during these “field breaks”.  The effect was that the workers would work off shore for a full 26 weeks each year as had been originally intended.  The workers argued, however, that on a correct interpretation of the Working Time Regulations they were entitled to take their annual leave out of the time when they would otherwise be at work - the effect being, in essence, that they would work off shore for only 22 weeks each year. Although they won at the original tribunal, the workers lost this argument both in the EAT and most recently at the Court of Session.

Interestingly, given the history noted above of how the EU Working Time Directive came to be passed, one of the points on which the Court of Session focussed was that the Directive was a health and safety measure.  As such it was designed to ensure that workers get sufficient rest. Bearing this in mind the Court of Session ruled that on a proper interpretation of the British Regulations annual holiday cannot come out of “rest periods” as defined but can come out of (in this case) field breaks and that this is consistent with the EC Directive being a health and safety measure.

Those who would like to read the full judgment can click here on Russell & Ors v Transocean International Resources Ltd & Ors

Call Deminos on 020 7870 1090 or visit http://www.deminos.co.uk

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According to an article in the Guardian shortly before the new Act received Royal Assent (the Guardian, 25th March 2009  “Bribery Bill finally reaches parliament”) only one UK company was prosecuted for foreign bribery during Labour’s 12 years in power.

The Bribery Act 2010 is not yet in force.  It was originally expected that it would come into force on 1st October 2010 but commencement has been postponed until, probably, April 2011.  Penalties for breach are severe – companies and individuals can face an unlimited fine.  Individuals can also be sentenced to up to 10 years’ in prison and be disqualified from holding directorships for up to 15 years.

Under section 7 of the 2010 Act “A relevant commercial organisation (“C”) is guilty of an offence … if a person (“A”) associated with C bribes another person intending (a) to obtain or retain business for C, or (b) to obtain or retain an advantage in the conduct of business for C”.

Importantly, it is a defence for C to prove that “adequate procedures” were in place designed to prevent persons associated with C from undertaking such conduct (there are also defences if the accused can prove that the otherwise forbidden conduct was necessary for the proper exercise of any function of an intelligence service, or the proper exercise of any function of the armed forces when engaged on active service).  In September 2010 the Ministry of Justice launched a public consultation on proposed formal “guidance on preventing bribery” to be followed in the New Year with publication of formal guidance as to what will be “adequate procedures”.  The consultation closes on 8th November.

The consultation document explains that “The guidance sets out six principles, each followed by commentary and explanation. The guidance is not prescriptive and is not a one-size-fits-all document. The question of whether an organisation had adequate procedures in place to prevent bribery in the context of a particular prosecution is a matter that can only be resolved by the courts taking into account the particular facts and circumstances of the case”.

The six principles are listed as:

• Risk assessment (keeping up to date with bribery risks in “your sector and market”);
• Top level commitment (establishing a culture in which bribery is unacceptable);
• Due diligence (knowing your business partners);
• Clear, practical and accessible policies and procedures (including encouragement of “whistleblowing” where appropriate);
• Effective implementation (practising what you preach);
• Monitoring and Review (including consideration of whether external review is appropriate).

Call Deminos on 020 7870 1090 or visit http://www.deminos.co.uk

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The 2007 Act addressed the problem by enabling the courts to consider the overall picture of how an organisation’s activities were managed by its senior managers, rather than focusing on the actions of one individual. The intention was to make it easier to prosecute organisations – the 2007 Act makes no difference to the personal liability, if any, of company directors and employees.

Official Sentencing Guidelines on Corporate Manslaughter and Health & Safety offences causing death were published by the Sentencing Guidelines Council in February 2010.  They set out in detail the factors which a Court should take into account in passing sentence under the Act, including points such as considering “whether the fine will have the effect of putting the defendant out of business…; in some bad cases this may be an acceptable consequence”. In this connection, it is interesting that in October 2010 a fine of only £1 was imposed on a company called Glenmill Group (Developments) Ltd which was prosecuted under the Health & Safety legislation after a worker was killed as a result of a fall from faulty scaffolding.  The judge at Preston Crown Court  took into account that any significant fine would cause the Glenmill Group to go out of business (but the company was ordered to pay over £13,000 costs).

The proposed Corporate Manslaughter Act guidelines stress the seriousness of the offence and suggest that “…because it requires gross breach at a senior level, [it] will ordinarily involve a level of seriousness significantly greater than a health and safety offence. The appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds”.

It was thought in 2009 that the first prosecution under the new Act would take place at Bristol Crown Court.  In a terrible accident in September 2008, Alexander Wright, a geologist working for a company called Cotswold Geotechnical Holdings Ltd, was killed when a pit from which he was taking trial soil samples collapsed on top of him. The company was charged under the 2007 Act.

In June 2009 Stroud magistrates remitted the case to Bristol Crown Court. The trial was due to begin there in August 2009 but was adjourned until February 2010.  It was then adjourned again and later was further adjourned until “around October” because of the ill-health of its main director. The case has now been adjourned once again, until 24th January 2011 and charges under the Health & Safety at Work etc Act against the director personally have been permanently stayed, on account of his ill health.  Whether the case will ever come to trial may be in doubt as it seems that the solicitors representing the company are looking to have the case dropped altogether.

Call Deminos on 020 7870 1090 or visit http://www.deminos.co.uk

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An employee who does not agree adverse change(s) of any significance which are imposed anyway will be entitled to resign and bring a constructive dismissal claim (which may be a claim for unfair dismissal or breach of contract or both).  As a general rule compensation awarded in that type of situation will be less than it might otherwise have been on the basis that by rejecting the offer of continued or renewed employment the employee had not done everything that he or she could reasonably be expected to do to mitigate his or her loss.

However a recent case has shown that employers must not just assume that compensation will be reduced in such circumstances.

A Mr Banks won a constructive unfair dismissal claim against his then employer, Bloxwich Fencing Ltd.  Bloxwich appealed to the EAT.  One ground for appeal was that the tribunal had not reduced the compensation it awarded for the unfair dismissal to take account of the fact that Bloxwich had offered to reengage Mr Banks, albeit on worse terms than those on which he had previously been employed. Bloxwich argued that this showed that Mr Banks had failed to take reasonable steps to mitigate his loss and that therefore compensation should be reduced.

The EAT dismissed this argument. The EAT found that on the facts of this particular case relations between Mr Banks and Bloxwich Fencing had deteriorated to such an extent that it had been open to the original tribunal to conclude that it was not reasonable to expect Mr Banks to go back to work for them. That was enough to dispose of the employer’s argument.

For those who may want to read a transcript of the full judgment it is available here – Bloxwich Fencing Ltd v Banks, EAT.

Call Deminos on 020 7870 1090 or visit http://www.deminos.co.uk

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October’s employment law news was largely given over to looking at the new Equality Act.  From 1st October 2010 this has replaced in one single Act the previous mish-mash of anti-discrimination Acts and Regulations enacted since 1970 so that the old Equal Pay Act, the Sex and Disability Discrimination Acts, the Race Relations Act, the Age discrimination regulations and so on are all replaced.  In most cases the practical effect of the changes for employers and employees will be negligible or non-existent although (as noted in last month’s newsletter) there are some important conceptual changes and of course all the section and paragraph numbers are different.

This note considers a couple of anomalies which have crept in with the new wording.

The first is of considerable practical importance.  It concerns “out of court” agreements made between employers and employees when settling disputes.  The basic law remains unchanged: such agreements are generally not fully valid unless either an Acas conciliation officer has been involved or specified statutory conditions have been complied with.  The specified conditions which ensure that a “compromise agreement” of an employment dispute will be fully valid include that the agreement must be in writing, that it must relate to specified problems and that the employee must have received advice about its terms and effect from an independent adviser.

The first of the two anomalies noted here concerns qualification as an ”independent adviser”.  Unfortunately the draftsman of the Equality Act 2010 has used a slightly different definition from the one used in the now replaced anti-discrimination Acts and regulations. The new definition specifies that a person cannot be an “independent adviser” for this purpose if he or she is acting for a “person who is a party to the contract or the complaint” (anoraks should go to Equality Act 2010 s.147(5)(d)). No legal training is needed to see that, if this means what it says, it is impossible for someone to qualify as an “independent adviser”.  If the wording means what it says, it  it is impossible for the employee to receive advice from an “independent adviser” because the adviser does not count as independent if he or she is acting for the employee!  The result, if this means what it says, is that compromised agreements can no longer be valid in discrimination cases .

No doubt the draftsman intended to specify that a person cannot be an “independent adviser” if he or she is acting for the employer.  That was the case in the now replaced anti-discrimination Acts and regulations and is still the case for compromise agreements settling unfair dismissal and other non-discrimination complaints under the Employment Rights Act 1996.

The Law Society has already notified the government of its concern on this issue, so hopefully this first anomaly will soon be corrected.  And anyway in the past judges have shown themselves adept at inventing ingenious ways of correcting mistakes made by Parliament in the wording of Acts, so perhaps the courts and tribunals will find a way of sorting this matter out if the government does not do so.

A second anomaly in Equality Act 2010 is unlikely to be of much practical importance.  It concerns the time-limits for presenting discrimination claims to an employment tribunal.  There is no change to the basic time limit which remains at 3 months starting with the date of the act to which the complaint relates. However there is a change to the power of an employment tribunal to extend this 3 months where it is “just and equitable” to do so.  Under pre-1st October 2010 law this was a only a power to extend.  Under the new law (again for anoraks, Equality Act 2010 s.123(1)(b)) an employment tribunal has power to set any time limit which it “thinks just and equitable”. So, at least in theory, an employment tribunal now has power to reduce the normal 3 month time limit for presenting a discrimination claim if it thinks that would be just and equitable.

The existence of the two anomalies noted above should not be allowed to detract from the value of the job done by those who drafted the Equality Act 2010.  It is no mean feat to have replaced such a variety of Acts and regulations with a single piece of relatively short legislation. After an initial bedding in period during which lawyers and others may struggle to find their way around the new Act,  what might be called this “Harmanisation Act” should be generally welcomed.  If the only problems are the minor wording anomalies noted above it will be a remarkable achievement.

Call Deminos on 020 7870 1090 or visit http://www.deminos.co.uk

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At the same time the Parliament has voted to extend the requirement for compulsory maternity leave from two to six weeks and for paternity leave pay to be at full rate of pay for two weeks.

General details are available on the Europa website “Extending maternity leave to 20 weeks with full pay“.

The Parliament’s proposals will now pass to the Council of Ministers. Given the controversial nature of the proposals it is likely that there will be pressure from Member States to ensure that they are amended before they are formally adopted – and it is even possible that they may be rejected.  It can also be argued that the proposals could be counter-productive from the point of view of feminist MEPs in that raising the amount of fully paid maternity leave from 14 to 20 weeks will tend to drive private business away from employing young women.

According to the Federation of Small Businesses (FSB), the proposals could end up costing small businesses £7,140 for an employee on an average wage of £25,428.

Tina Sommer, EU and International Affairs Chairman of the FSB said:

“Small businesses are known to be flexible employers and it is unfortunate that maternity and paternity leave is one of the biggest barriers for them when looking to take on staff. The FSB fears that that these changes will result in an increase in the cost of maternity and paternity leave and will mean these costs have to be shared between Government and the employer, at a cost of more than £7,000 to a small business – placing a further strain on cash-flow.”

Call Deminos on 020 7870 1090 or find us at http://www.deminos.co.uk

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