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DECEMBER 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:

  • Autoclenz Ltd v Belcher & Others - subcontractor agreements will not necessarily preclude employee status
  • Da'Bell v National Society for the Prevention of Cruelty to Children - increase to injury to feelings awards in discrimination cases
  • X v Mid Sussex Citizens Advice Bureau - volunteer advisor not entitled to pursue a disability discrimination claim against CAB
  • EBR Attridge Law LLP and another v Coleman (no. 2) – discrimination on the grounds of association with a disabled person is prohibited
  • Grainger Plc & Others v Nicholson - belief in climate change may be protected
  • Cavendish Munro Professional Risks Management Ltd v Geduld - whistleblowers must disclose some information, mere allegations are not enough
  • Orr v Milton Keynes Council – dismissal was not tainted by a racially discriminatory remark where the reason for dismissal was clear and a fair procedure had been followed

 

Autoclenz Ltd v Belcher & Others [2009] EWCA Civ 1046

Subcontractor agreements will not necessarily preclude employee status

In April, we reported the Employment Appeal Tribunal decision in this case in our Charity Law Update. The EAT’s decision, which affected all organisations that use casual staff or self employed contractors, has now been overturned, with greater implications for employers. A group of valeters worked for Autoclenz Ltd under contracts that stated they were self-employed. However, they claimed that in practice their relationship with Autoclenz was that of employer and employee.

The valeters’ contracts stated that they were ‘subcontractors’ and responsible for their own tax and national insurance. The contract also contained a clause stating that the individual would carry out their work within a reasonable time and in a good and workmanlike manner. The contract included the right to arrange for another worker to work in their place but this was not exercised in practice and some individuals were not aware that any such right existed.

In addition, the contract stated (in capitals) that the individuals were not obliged to work for the employer on any particular occasion. However, it seemed that, although Autoclenz allowed workers time off for medical and other appointments, if a worker had simply chosen not to work a particular day this would have not have been tolerated by the employer.

The Court looked at the reality of the relationship between Autoclenz and the valeters and concluded that while there was no evidence the parties had deliberately created a ‘sham’ contract, the contract was not an accurate reflection of the working relationship. In reality, the employees were obliged to carry out the work personally and were obliged to give notice if they were not working. As a result, the individuals were held to be employees. Employers should ensure that contracts reflect the reality of the working relationship, particularly when using bank or casual staff to avoid creating unexpected employment obligations. 

 

Da'Bell v National Society for the Prevention of Cruelty to Children UKEAT/0227/09

Increase to injury to feelings awards

Compensation for injury to feelings in discrimination claims is assessed according to what are known as the Vento Guidelines, after the case that established them a few years ago. These guidelines place injury to feelings awards within three bands that had previously been a lower band of up to £5000, a middle band of up to £15,000 and an upper band of up to £25,000. In a recent case concerning disability discrimination the EAT has held that the Vento guidelines should be amended to take account of inflation. The top of the lower band has been increased to £6,000, the middle band to £18,000 and the upper band to £30,000.

Mrs Da’Bell, the Claimant, was a fundraiser employed by the NSPCC. She had a heart condition that the NSPCC recognised as a disability under the Disability Discrimination Act 1995. She claimed that the NSPCC had failed to make adjustments for her illness quickly enough and resigned, claiming unfair constructive dismissal.

The Tribunal did not uphold her constructive dismissal claim but found that there had been a failure to make reasonable adjustments for her heart condition. She was awarded £12,000 which falls at the midpoint of the middle band as set out in the Vento guidelines for injury to feelings once adjusted for inflation. Mrs Da’Bell appealed against the dismissal of her unfair dismissal claim and the NSPCC cross-appealed on the grounds that the compensation awarded was too high.

The EAT rejected the appeal and the cross-appeal and confirmed that the level of compensation awarded by the Tribunal was correct. They also confirmed that the bands for awards for injury to feelings should be increased to take the effect of inflation into account. As a result, the maximum award for injury to feelings has increased to £30,000. Employers who are dealing with discrimination claims should be aware of the increase in potential liability for injury to feelings.

 

X v Mid Sussex Citizens Advice Bureau UKEAT/0220/08

Volunteer advisor not entitled to pursue a disability discrimination claim against CAB

X was a specialist welfare benefits adviser who had signed a volunteer agreement on joining the CAB. This stated that the agreement was binding ‘in honour only’ and was not a contract of employment. She was not required to work for a certain number of hours and when she failed to attend (approximately 25 to 30% of the time) the CAB did not take any disciplinary action. The CAB subsequently asked her to leave and she argued that she had been discriminated against on the grounds of her disability.

The Disability Discrimination Act 1995 implemented the European Equal Treatment Directive (2000/78/EC), which prohibits discrimination in employment and conditions for access to employment, self-employment or occupation, including selection criteria and recruitment conditions. The Claimant put forward two arguments; firstly, volunteering should be treated as an ‘occupation’ and therefore covered by the Equal Treatment Directive and secondly, that volunteering was an arrangement that the CAB used to select employees and therefore amounted to an arrangement for recruitment. Either argument would allow her to pursue a claim for disability discrimination against the CAB.

Both arguments were rejected by the EAT. It was clear that there was no binding contract between the parties. The Claimant advocated the removal of references to ‘employer’ and ‘employed’ from the DDA but this would mean the Act would be too ambiguous and would result in huge repercussions for many organisations, in light of the positive duty to make reasonable adjustments.

The EAT also considered that voluntary work with the CAB was not a ‘necessary step’ to paid employment with the CAB and volunteers, while they might have valuable experience, were not given preferential treatment in the recruitment process. As a result, it could not be said that voluntary work was a recruitment arrangement in this case. This does not rule out the possibility that in certain situations, voluntary work may be considered to be part of the recruitment process and therefore covered by discrimination legislation. 

 

EBR Attridge Law LLP and another v Coleman (no. 2) UKEAT/0071/09

New sections read into the Disability Discrimination Act 1995 to outlaw associative discrimination

The Claimant worked as a secretary before accepting voluntary redundancy from her employer. She subsequently brought a claim of direct disability discrimination, alleging that she had been subjected to discrimination and harassment because she was the primary carer for her disabled son. Following a referral to the ECJ, the Tribunal held that the DDA must be interpreted to comply with the European decision. This meant that additional provisions must be read into the legislation. The Tribunal inserted a new section 3A (5A) and 3B (3) prohibiting discrimination by reason of the disability of another person and harassment for a reason which relates to the disability of another person. As things stand at the moment, the disabled person in question does not even have to be someone with whom the person who was discriminated against was associated.

The employer appealed, arguing that the Tribunal had ‘distorted and re-written’ the legislation. The appeal was dismissed. The EAT held that the UK courts have a strong obligation to ensure that UK legislation complies with European law and that this may require the courts to add words that are consistent with the purpose and scheme of the legislation. This decision, against which leave to appeal is now being sought by the employer, is a clear example of the radical steps that tribunals will sometimes take to give effect to European law. Associative discrimination is already prohibited in relation to other types of discrimination and employers should therefore deal with allegations of associative discrimination carefully and seek advice.

 

Grainger Plc & Others v Nicholson UKEAT/0219/09/ZT

Belief in climate change may be protected under the Employment Equality (Religion or Belief) Regulations

In this high profile case, Mr Nicholson was made redundant by his employer, Grainger plc and subsequently brought a claim for discrimination on the grounds of belief, arguing that he had been dismissed for his belief in man-made climate change. The Employment Appeal Tribunal held that his views were capable of amounting to a protected belief and referred the case back to the Employment Tribunal to determine whether Mr Nicholson’s beliefs met the test under the Regulations. The following factors must be considered when deciding whether an individual’s views are protected:

  • It must be a belief and not an opinion or viewpoint based on the present state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion and importance.
  • It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.


The EAT noted that pacifism, vegetarianism, veganism and abstinence from alcohol were uncontroversial examples of protected beliefs. While the EAT set out a substantial test for deciding what may qualify as a protected belief, employers should be aware that the scope of these provisions is now very wide and may encompass a wide range of views.

 

Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09

Whistleblowers must disclose some information, mere allegations are not enough

Whistleblowers receive extensive legal protection from detrimental treatment for making protected disclosures, including disclosures about breaches of any legal obligation. These protections include the right not to be unfairly dismissed, even if the employee has less than 51 weeks’ service. It has been held that the breach of a legal obligation can be a breach of the employee’s own contractual entitlements (including the implied term of trust and confidence) and employees sometimes therefore seek to rely on these protections to bring unfair dismissal claims under the whistleblowing legislation which do not require a minimum of 51 weeks’ service. 

Mr Geduld was a senior employee and shareholder of the Respondent for approximately 10 months. During that time, there were difficulties in his relationship with other directors which led to discussion about options for his departure from the organisation. Mr Geduld was removed as a director and instructed solicitors to negotiate on his behalf with the company. In one letter, Mr Geduld’s solicitor referred to the possible prejudice to Mr Geduld as a shareholder, due to his employer’s action. He was subsequently dismissed and brought claims alleging that his dismissal was automatically unfair because the reason for his dismissal was the making of a protected disclosure. The Employment Appeal Tribunal considered the solicitor’s letter. While employees may be unhappy with their treatment and seek to raise a complaint or grievance, a protected disclosure must contain some information: facts that relate to one of the areas covered by the whistle blowing legislation. It was held that the solicitor’s letter, which merely made an allegation, could not amount to a protected disclosure. This is a sensible decision which will limit the scope for employees to argue that their grievances amount to protected disclosures. 

 

Orr v Milton Keynes Council UKEAT/0506/08/SM

A finding of race discrimination in relation to a manager’s comment did not mean that the employee’s subsequent dismissal was tainted with discrimination

Mr Orr was dismissed by the local authority for misconduct following his behaviour in two incidents. Two witnesses were interviewed and written witness statements were taken. The employee had indicated that he would attend a disciplinary meeting but did not do so and the meeting proceeded in his absence. During the second incident, Mr Orr’s manager had made a racially discriminatory comment but this was not recognised by the employer during the disciplinary procedure against Mr Orr. Following a full review of the written evidence available, the local authority dismissed the employee for gross misconduct. He appealed but did not co-operate fully in the appeal process, refusing to answer questions and refusing to question the witnesses. The Tribunal found that while there had been prior discrimination, the reason for the dismissal was the employee’s own misconduct and a fair and reasonable procedure had been followed. This view was upheld by the Employment Appeal Tribunal, who noted that the discriminatory remark did not automatically mean the dismissal was discriminatory. This case highlights the importance of following a fair procedure.

 

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 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

Thursday 11 February 2010 (All Day Event)
Management FAIR
The day is packed with practical, topical and affordable low-cost snappy workshops covering all areas of management and leadership.

This event will give you the opportunity to:

  • Come together with leaders and managers across the sector
  • Gain new skills and valuable contacts 
     

Who should attend?

  • Chief Executives, directors and leaders wanting to develop their skills to communicate with their board, organisation and across the sector.
  • Existing and newly promoted managers wishing to develop their management skills and knowledge.
     

Benefits of attending are:

  • Discover and develop your management and communication style
  • Enhance your people management skills
  • Improve your interpersonal skills
  • Develop your project management techniques
  • Gain knowledge about managing resources
     

Please visit www.managementfair.org.uk for more information

 

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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