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NOVEMBER 2009

 
 

Welcome to the latest edition of the Employment Law Update brought to you by the employment team at Russell-Cooke. The aim of this service is to keep you informed of recent developments in this fast moving field of law so that you are better prepared to deal with issues as they arise in your workplace and recognise when professional advice might be required.

Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or about any employment law related matter please do not hesitate to get in touch.

In this update:

  • Grainger plc and others v Nicholson UKEAT/0219/09
  • R (on the Application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (the Heyday case)
  • Oakland v Wellswood (Yorkshire) Ltd [2009] EWCA Civ 1094
  • MacCulloch v Imperial Chemicals Industries Plc (2008) IRLR 846
  • Wilson v Health and Safety Executive [2009] EWCA Civ 1074

 

Grainger plc and others v Nicholson UKEAT/0219/09

A genuinely held belief in man-made climate change and the resulting moral imperatives is capable of being a 'philosophical belief' for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (the ‘2003 Regulations’).

A tribunal considered whether a belief in climate change may be a “belief” under the 2003 Regulations.

The Claimant, Mr Grainger, brought a claim for unfair dismissal and discrimination contrary to the 2003 Regulations because of his asserted philosophical belief about climate change and the environment. That belief was that mankind was heading towards catastrophic climate change and that everyone was under a moral duty to lead their lives in a manner that mitigated or avoided that catastrophe for the benefit of future generations.

The Employment Appeal Tribunal determined that the limitations placed upon the definition of 'philosophical belief' for the purposes of the 2003 Regulations were, among other things, that the belief had to be genuinely held, it had to be a belief as to a weighty and substantial aspect of human life and behaviour and it had to attain a certain level of cogency, seriousness, cohesion and importance. In this case, the Tribunal held that the asserted belief on which the Claimant based his claim is capable of being a belief under the 2003 Regulations.

This case will now proceed to a hearing on the substantive merits of whether the employer discriminated on the grounds of the Claimant’s belief and the Claimant will be cross-examined as to the actual extent of his belief.

 

R (on the Application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (the Heyday case)

The designated retirement age (‘DRA’) of 65 under regulation 30 of the Employment Equality (Age) Regulations 2006 (the ‘Age Regulations’) complies with the Equal Treatment Framework Directive against age discrimination.

The High Court considered a challenge to regulation 30 of the Age Regulations which allows for the lawful dismissal of employees who reach the age of 65 provided that a certain procedure is followed.

The Court held that adopting a DRA was not a disproportionate means of achieving the Government’s social policy aims. It was a measure designed to give certainty and corresponding focus for planning purposes for employers and employees alike. It also found that a DRA of 65 was permitted, bearing in mind that it had been introduced in 2006.

A deciding factor was the fact that a review of the DRA is due to be undertaken by the Government in 2010. Mr Justice Blake commented that, in the light of the changed economic circumstances since the introduction of the Age Regulations, any attempt to keep a DRA of 65 beyond 2010 would be unlikely to be justifiable.

 

Oakland v Wellswood (Yorkshire) Ltd [2009] EWCA Civ 1094

Continuity of employment preserved when an employee of a company in administration was employed by the buyer following a pre-pack sale.

The Claimant, Mr Oakland, had been employed as the general manager of a food wholesale business. The business entered into administration after running into financial difficulties. Following the appointment of joint administrators, the company’s assets were sold to the Respondent, who also took on some of the employees, including the Claimant. The Claimant was eventually dismissed and brought a claim for unfair dismissal.

The Claimant had to establish that he had been continuously employed for a period of not less than one year ending with the effective date of termination. The tribunal and the employment appeal tribunal found that the nature of the insolvency proceedings meant that Mr Oakland’s employment rights had not been preserved by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) and so he did not have the necessary continuity of service to bring an unfair dismissal claim. The Court of Appeal was asked to consider whether separate rules under section 218(2) of the Employment Rights Act 1996 operated so as to preserve Mr Oakland’s continuity. It held that they did and so found that his period of employment in the business at the time of the transfer counted as a period of employment with the Respondent. Thus, he was able to pursue a claim for unfair dismissal.

This case highlights that whatever the position under TUPE, any existing employees actually taken on as part of a pre-pack sale (or any other type of insolvency procedure) will have their continuity preserved. The issue of whether the buyer in a pre-pack sale by a company in administration can avoid the wider protection afforded by the automatic transfer of employees under TUPE remains outstanding.

 

MacCulloch v Imperial Chemicals Industries Plc (2008) IRLR 846

An enhanced redundancy payment scheme based on age and length of service was in all respects a proportionate means of achieving legitimate aims.

A tribunal considered whether a redundancy pay calculation based on age and length of service was objectively justified and amounted to direct or indirect age discrimination.

Under the Employment (Equality) Age Regulations 2006 an employer will not discriminate if it proves that its treatment of an employee was objectively justified by showing that it was a proportionate means of achieving a legitimate aim. In this case the objective justification defence was held to be made out.

In identifying the aims of the redundancy scheme, the tribunal found, among other things, that it was legitimate to cushion older workers against labour market disadvantage and to reward loyalty. On the question of proportionality, the tribunal took into account the fact that the workforce has a whole had rejected proposed changes to the scheme which would have made it ‘flatter’.

In this case, the tribunal also considered that taking into account up to 10 years’ service did not give rise to indirect discrimination as the employee, who was almost 37, had had ample time to build up 10 years’ service since leaving university.

 

Wilson v Health and Safety Executive [2009] EWCA Civ 1074

When an employer will be required to objectively justify a length of service pay criterion in order to avoid equal pay liability.

In this case, the employer relied upon a pay scale linked to length of service to justify a pay differential between employees. This meant that a female employee received less pay than three equal (but longer serving) male colleagues.

In the case of Cadman v Health & Safety Executive, the European Court of Justice held that where a claimant provides evidence capable of raising serious doubts as to whether a length of service criterion was appropriate, an employer will have to objectively justify the way in which it used length of service as a determinant of pay. In this case, the Court of Appeal ruled that in order to satisfy the “serious doubts” test, the employee will merely have to show that the complaint has some prospect of success. This is likely to make it far easier for employees to require employers to objectively justify their pay structure based on length of service and makes it more difficult for employers with long-term incremental pay schemes to avoid equal pay liability.

Implementation of new Vetting and Barring scheme for new employees and volunteers working with children or vulnerable adults

The new Vetting and Barring scheme came into force on 12 October 2009. Under the scheme, new employees and volunteers working with children or vulnerable adults must register with the Independent Safeguarding Authority (ISA) from November 2010 and may also register from July 2010. There will be a £64 fee for those in paid employment but the checks are free for volunteers. At this stage, there is no clear guidance as to what individuals will be expected to register and the circumstances in which a criminal record check will be needed.

In Henderson v Connect (South Tyneside) UKEAT/0209/09, a case of third party pressure to dismiss on the basis of previous allegations of sexual abuse committed by an employee, the employment appeal tribunal commented on the potential devastating effects of enhanced disclosure. Commentators have highlighted the increasing scope for these sorts of cases to come before the employment tribunals with the introduction of the new Vetting and Barring scheme.

The National Minimum Wage hourly rates from 1 October 2009 will be as follows:

• Standard (adult) rate: £5.80 (rising from £5.73).
• Development rate: £4.83 (rising from £4.77).
• Young workers rate: £3.57 (rising from £3.53).
• Accommodation offset rate: £4.51 (rising from £4.46).

Increase of limits from 1 October 2009

The Government has introduced a one-off increase of the maximum limit of a week’s pay for compensation payments. This was increased from £350 to £380 on 1 October 2009 and will now remain unchanged until February 2011. The increase in the limit will, among other things, affect the calculation of statutory redundancy pay and the basic award for unfair dismissal.

 

Events

Programme of Evening Seminars 2008/2009

Wednesday 10 March 2010
The TUPE Regulations
This session will provide an introduction to the TUPE regulations and will cover:
- When the regulations apply
- Negotiating appropriate contractual terms
- The TUPE process (information and consultation)
- Pensions

Please click contact Janev Djemil for booking information;
Janev Djemil
020 8394 6372
janev.djemil@russell-cooke.co.uk

 

OTHER EVENTS
Russell-Cooke have teamed up with the Directory of Social Change to run a series of seminars on Employment legal issues for Charities

The Employment Law Club
Keep in the loop with access to the latest expertise
The Employment Law Club (ELC): the only one of its kind. The ELC is a brand new service provided by Directory of Social Change together with Russell Cooke LLP Solicitors. It is specially designed to provide up-to-date information for senior managers or HR professionals and anyone who is responsible for employment matters within their charity. The groups offers an annual subscription for members to meet five times a year for a half day workshop and networking lunch to obtain knowledge and discuss concerns around Employment Law issues together with a free initial telephone consultation with a specialist employment lawyer from Russell-Cooke.

For more information on the Employment Law Club, please follow this link http://www.dsc.org.uk/Training/Law

 

Contact us:

The Employment Team
Russell-Cooke Solicitors,
2 Putney Hill,
Putney,
London
SW15 6AB

Tel: 020 8789 9111
www.russell-cooke.co.uk

 

This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.

© Copyright: Russell-Cooke,

The Employment Team at Russell-Cooke
Anthony Sakrouge (Partner) – 020 8394  6504  Anthony.Sakrouge@russell-cooke.co.uk
Alex Bearman (Partner) – 020 8394 6524  Alex.Bearman@russell-cooke.co.uk
Fudia Smartt (Solicitor) – 020 8394 6525 Fudia.Smartt@russell-cooke.co.uk
Emma O'Byrne (Solicitor) – 020 8394 6537 Emma.O'Byrne@russell-cooke.co.uk
 

Specialists in advising charities, not for profits and public bodies
Jane Klauber (Partner) – 020 8394 6483  Jane.Klauber@russell-cooke.co.uk
Deborah Nathan (Solicitor) – 020 8394 6437 Deborah.Nathan@russell-cooke.co.uk   

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