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Decisions
Cases on appeal

Decisions:
Human rights: NHS trust's decision to dismiss doctor did not engage right to fair and public hearing
Case name: Mattu v University Hospitals of Coventry and Warwickshire NHS Trust
Date added: 22 May 2012 Tribunal/court: Court of Appeal Status: appeal dismissed
Topics: human rights | disciplinary hearing | fair and public hearing
The Court of Appeal has held that an NHS trust's decision to dismiss a doctor, which made it more difficult for him to practise in his chosen profession, did not engage his right to a fair and public hearing under the European Convention on Human Rights. 

Employee unfairly dismissed for imprisonment guilty of contributory conduct
Case name: Prior v City Plumbing Supplies Ltd
Date added:16 May 2012 Tribunal/court: EAT Status: appeal dismissed
Topics: unfair dismissal | criminal offence outside workplace | contributory fault
The Employment Appeal Tribunal has affirmed the employment tribunal’s decision that an employee who was unfairly dismissed because the employer believed his prison sentence frustrated his contract of employment was guilty of contributory conduct. 

Holiday and sick leave: carry-over period for untaken holiday of nine months unlawful
Case name: Neidel v Stadt Frankfurt am Main
Date added: 9 May 2012 Tribunal/court: ECJ Status: ECJ judgment
Topics: long-term sick leave | annual leave | holiday pay
The European Court of Justice has held that German legislation allowing for a carry-over period for untaken holiday of nine months, with the result that public servants forfeit their leave if it has not been taken within the period of nine months after the end of the leave year because of sickness, is unlawful. 

Supreme Court holds that degree requirement for promotion was indirect age discrimination against employee nearing retirement
Case name: Homer v Chief Constable of West Yorkshire Police
Date added: 26 April 2012 Tribunal/court: Supreme Court Status: appeal allowed
Topics: age discrimination | indirect discrimination | requirement for promotion | retirement
The Supreme Court has held that a requirement that employees obtain a law degree before they could be promoted to the highest grade was indirect age discrimination against the claimant, who did not have enough time to complete a degree before he reached the employer's retirement age. However, it sent the case back to the employment tribunal to decide whether or not the employer's actions were justified as a proportionate means of achieving a legitimate aim. 

Age discrimination: Supreme Court provides guidance on justification of compulsory retirement age
Case name: Seldon v Clarkson Wright and Jakes
Date added: 26 April 2012 Tribunal/court: Supreme Court Status: appeal dismissed
Topics: age discrimination | compulsory retirement | justification
The Supreme Court has provided guidance on the components needed to justify a compulsory retirement age, stressing that the chosen retirement age has to be appropriate and necessary in that particular business. It went on to say that, once a retirement age is justified for a workplace or group of workers, the employer does not have to justify every retirement on an individual basis. 

Workers found sleeping at work not asserting right to rest break
Case name: Ajayi and another v Aitch Care Homes (London) Ltd
Date added: 18 April 2012 Tribunal/court: EAT Status: appeal dismissed
Topics: working time | rest breaks | automatically unfair dismissal
The Employment Appeal Tribunal has held that the “refusal” or “proposed refusal” of a worker to accept his or her employer’s contravention (or proposed contravention) of the Working Time Regulations 1998 (SI 1998/1833) must be communicated in advance to the employer. 

EAT asks ECJ about workers' rights to daily rest and rest breaks when continuity of service needed
Case name: Associated British Ports v Bridgeman
Date added: 10 April 2012 Tribunal/court: EAT Status: reference to ECJ
Topics: working time | daily rest | rest break | continuity of service or production
The Employment Appeal Tribunal has referred to the European Court of Justice the question of the extent to which employers can avoid giving workers daily rest periods and rest breaks because of the need for continuity of service or production. 

Statutory retirement procedures: Court of Appeal considers employer's notification requirements
Case name: R&R Plant (Peterborough) Ltd v Bailey
Date added: 3 April 2012 Tribunal/court: Court of Appeal Status: appeal dismissed
Topics: retirement | statutory default retirement procedures | notification of right to request not to retire
The Court of Appeal has held that, when an employer was informing an employee of the right to request not to retire under the repealed statutory default retirement procedures, it was required to cite para.5 of sch.6 to the Employment Equality (Age) Regulations 2006. However, the Court of Appeal said that there was no requirement on the employer to inform the employee of the requirements of a valid request. 

Age discrimination: NHS trust justified in dismissing redundant chief executive before 50 to avoid windfall
Case name: Woodcock v Cumbria Primary Care Trust
Date added: 26 March 2012 Tribunal/court: Court of Appeal Status: appeal dismissed
Topics: age discrimination | direct discrimination | justification
The Court of Appeal has held that the employer was justified in dismissing a senior member of staff, who had been at risk of redundancy for some time, before he reached the age of 50 to avoid him getting a pension "windfall". However, it stressed that this case has unusual facts and it is not opening the door for employers to time a reorganisation solely to prevent an employee from qualifying for enhanced pension rights. 

Advocate General delivers opinion on trigger point for obligation to consult on collective redundancies
Case name: Advocate General’s opinion in United States of America v Nolan
Date added: 23 March 2012 Tribunal/court: Advocate General’s opinion
Topics: collective redundancies | closure of workplace | when consultation obligation arises
The Advocate General has taken the view that the obligation on an employer to consult on collective redundancies is triggered when it makes a strategic or commercial decision that compels it to contemplate or plan for collective redundancies.

TUPE transfers: move to new location across London entitled employees to resign
Case name: Abellio London Ltd (Formerly Travel London Ltd) v Musse and others; Centrewest London Buses Ltd v Musse and others
Date added: 13 March 2012 Tribunal/court: EAT Status: appeal dismissed
Topics: transfer of undertakings | change of location | constructive dismissal
The Employment Appeal Tribunal has held that employees who resigned after being faced with a change of place of work to a different part of London because of a TUPE transfer were constructively dismissed. 

No employer liability for HR professional’s illness not caused by work
Case name: MacLennan v Hartford Europe Ltd
Date added: 12 March 2012 Tribunal/court: High Court Status: claim dismissed
Topics: health and safety | duty of care | stress
The High Court has held that an employer was not liable for an HR professional’s chronic fatigue syndrome because the employee’s illness was not caused by her work.  

TUPE transfers: move to franchise model can be ETO reason for dismissal
Case name: Meter U Ltd v Ackroyd and others; Meter U Ltd v Hardy and others
Date added: 8 March 2012 Tribunal/court: EAT Status: appeal allowed
Topics: unfair dismissal | transfer of undertakings | ETO reason | franchise
The Employment Appeal Tribunal has held that the dismissal of employees transferred to a company that engaged individuals only under a franchise agreement could amount to an economic, technical or organisational reason (ETO) for dismissal entailing changes to the workforce. 

Decisions

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Human rights: NHS trust's decision to dismiss doctor did not engage right to fair and public hearing

Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 CA

human rights | disciplinary hearing | fair and public hearing

The Court of Appeal has held that an NHS trust's decision to dismiss a doctor, which made it more difficult for him to practise in his chosen profession, did not engage his right to a fair and public hearing under the European Convention on Human Rights. 

Dr Mattu was employed as a cardiologist. He had been appointed to the post in 1998, but he was suspended in 2002 on disciplinary grounds. The relevant disciplinary hearing did not begin until 2007. The disciplinary process was finally concluded in April 2008 and the result was that Dr Mattu was given a first warning and required to undertake a "reskilling" programme. This is a common requirement for doctors who wish to return to work after doubt has been cast on their fitness to practise medicine. 

Disputes over Dr Mattu's reskilling (in particular, his refusal to sign an action plan) eventually resulted in his dismissal in November 2010. An appeal was started in May 2011 but, before it could be concluded, Dr Mattu brought High Court proceedings claiming, among other things, that the NHS trust had violated his human rights. 

The High Court did not believe that Dr Mattu's "right to work", which would have attracted art.6, was threatened by the disciplinary proceedings. The procedure did not directly affect his registration with the General Medical Council (GMC). Unless and until the GMC erased, suspended or rendered conditional Dr Mattu's registration, he remains a fully registered medical practitioner. While there was no doubt that a dismissal would be a blot on Dr Mattu's career, the panel was not determining Dr Mattu's entire reputation. He appealed to the Court of Appeal. 

The Court of Appeal pointed out the significance of finding that the trust's contractual disciplinary procedure engaged art.6 of the European Convention on Human Rights. If art.6 is engaged by a public employer's contractual disciplinary procedure (because the employer is a public authority within the meaning of the Human Rights Act 1998), tribunals would have to consider whether or not the dismissal was compliant with art.6, with the procedure needing to include the right to legal representation. Further, the application of art.6 is not confined to doctors and similar professionals. The European Convention on Human Rights, and in particular art.6, is blind to social, professional and economic status. For the low paid such as care workers, the protection of the Convention may be all the more important. 

The Court of Appeal went on to say that it is not only public employers that must comply with art.6. On the basis of the principle laid down by the European Court of Human Rights in Wilson, Palmer and others v United Kingdom [2002] IRLR 568 ECHR, the UK Government may be obliged to enact legislation requiring private employers to comply with art.6 when considering whether or not to dismiss their employees. 

The Court of Appeal accepted that the right to carry on one's profession is undoubtedly a civil right that would normally attract art.6. In this case, the right in question is a "right to continue to exercise the medical profession". 

However, the Court of Appeal stressed that there is no direct link in this case between the internal disciplinary process and any subsequent action taken by the GMC that might result in Dr Mattu being barred from practice. The GMC is entirely independent of the NHS trust and it is not bound by its findings. The Court of Appeal could not see how the trust's lawful exercise of its contractual right to discipline Dr Mattu could be said to be determining a civil right. The gravity of the consequences of a decision to dismiss does not change the nature or character of the decision that is being made. 

The Court of Appeal also rejected Dr Mattu's assertion that, even if his legal right to work as a doctor was not in theory affected by his dismissal, in practice his right was affected because the practical consequence of his dismissal is that he cannot find employment with another NHS trust. The Court of Appeal pointed out that Dr Mattu is a consultant who is able to practise as a self-employed doctor, from Harley Street or elsewhere, or in a private hospital. There was no evidence that he has been refused employment by any other NHS trust. 

In any event, the Court of Appeal's judgment was that the question of the applicability of art.6 cannot depend on whether or not in fact a doctor or other professional can obtain work in his or her field as a result of dismissal by an employer. 

The Court of Appeal was reluctant to require employers to second-guess whether or not a dismissal could, in practice, preclude the employee from working in his or her chosen profession. If that were so, art.6 would not apply to the dismissal of an eminent consultant, who would be snapped up by another NHS trust or who could engage in private practice, but would apply to a junior doctor if there is a surplus of doctors at that level to fill the vacancies available. The Court of Appeal also gave the example of a junior doctor facing the same allegation at a time when there is a shortage of doctors at that level, and who could easily find alternative employment. Does this mean that employers have to investigate that employee's employment prospects to decide whether or not art.6 is engaged? A decision like that would be liable to be challenged in subsequent legal proceedings, which is an "invitation to uncertainty" and lead to costs that would be better deployed in the present case in caring for patients. 

The Court of Appeal distinguished the present case from:

• R (on the application of G) v Governors of X School and Y City Council [2011] IRLR 756 SC, in which it was not argued that dismissal of a teaching assistant would render him, in practice, unemployable or damage his reputation as a teaching assistant; and
• Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health [2009] IRLR 829 CA, in which it was held that the disciplinary procedure had been unlawful because the doctor had not been permitted the legal representation to which he was contractually entitled. 

Additional resources

• Edwards v Chesterfield Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence [2012] IRLR 129 SC In this case, the Supreme Court held that employees may not recover damages in civil courts for loss suffered as a result of a breach of their contract of employment in relation to the manner of their dismissal unless the loss can be said to precede and be independent of the dismissal. 
• Disciplinary procedure Use this model procedure to set out the company's disciplinary process. 
• Is there any right to legal representation at a disciplinary hearing? The XpertHR FAQs section answers this frequently asked question. 

Case transcript of Mattu v University Hospitals of Coventry and Warwickshire NHS Trust (on the BAILII website)

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Employee unfairly dismissed for imprisonment guilty of contributory conduct

Prior v City Plumbing Supplies Ltd EAT/0535/11

unfair dismissal | criminal offence outside workplace | contributory fault

The Employment Appeal Tribunal (EAT) has affirmed the employment tribunal’s decision that an employee who was unfairly dismissed because the employer believed his prison sentence frustrated his contract of employment was guilty of contributory conduct. 

Mr Prior was employed by City Plumbing Supplies Ltd as a driver. In May 2008, Mr Prior was convicted of an offence related to homophobic behaviour towards a neighbour and given a community sentence and restraining order. In December 2008, Mr Prior was again convicted of this offence, and this time given a sentence of 12 weeks’ imprisonment, suspended for 12 months. In June 2009, Mr Prior was arrested for breaking the restraining order. In response to his arrest, the company issued him with a final written warning for bringing it into disrepute. In May 2010, Mr Prior was sentenced to 18 weeks’ imprisonment for breaking the restraining order. He was required to serve half his sentence. 

The company dismissed Mr Prior as a result of his prison sentence. The company’s reason for his dismissal was not misconduct, but rather frustration. The company believed that Mr Prior’s contract of employment had been frustrated by his prison sentence. Mr Prior, who was by this point out of prison, appealed his dismissal, which was unsuccessful. He subsequently brought a claim for unfair dismissal. 

The employment tribunal found that Mr Prior had been unfairly dismissed. It held that Mr Prior’s prison sentence was not long enough to create frustration, and therefore that the company had not established a fair reason for dismissal. In addition, it rejected the company’s other argument that it had fairly dismissed Mr Prior for “some other substantial reason”. However, the employment tribunal said that, in respect of contributory fault, “the catalyst for the dismissal was the imprisonment of [Mr Prior]”. On this basis, it found that Mr Prior had significantly contributed to his departure from the company. As a result of this, the employment tribunal reduced Mr Prior’s compensation by two thirds, awarding him £6,050.29. It also refused Mr Prior’s application for an order for re-engagement. 

Mr Prior appealed the employment tribunal’s rulings on contributory conduct and reinstatement or re-engagement. The company did not appeal the finding of unfair dismissal. 

The EAT dismissed Mr Prior’s appeal against the employment tribunal’s decision on contributory conduct. The tribunal applied the principles for contributory conduct established in cases such as Nelson v British Broadcasting Corporation (2) [1979] IRLR 346 CA that there must be blameworthy conduct and that blameworthy conduct must have caused or contributed to the dismissal. The EAT noted that the fairness of the dismissal is not relevant to the question of a causative link between the blameworthy conduct and the dismissal. The EAT held that it was clear from the employment tribunal’s judgment that the conduct the employment tribunal considered blameworthy was Mr Prior’s imprisonment and that this was causatively linked to his dismissal by virtue of it being the catalyst for the dismissal. 

The EAT went on to apply the well-established proposition that an employment tribunal’s assessment as to the amount of a reduction it makes for contributory fault may be interfered with only on appeal where there has been some error in principle or perversity. On the basis that there had been neither in this case, the EAT said that it would not be appropriate for it to interfere with the employment tribunal’s decision on this matter. 

The EAT allowed Mr Prior’s appeal on the issue of reinstatement or re-engagement. It said that the employment tribunal’s failure to give any reasons for its decision to refuse an application for an order of reinstatement or re-engagement was an error of law. The EAT therefore remitted the issue back to the employment tribunal to reconsider and give reasons. 

Interestingly, the EAT noted that, if the company had “decided to dismiss for misconduct, the prospects of a finding of unfair dismissal might not have been great”. 

Additional resources

• Is it permissible to dismiss an employee on the grounds of misconduct that occurred outside the workplace? The XpertHR FAQs section answers this and other frequently asked questions regarding misconduct outside the workplace. 
• Policy on employees charged with or convicted of criminal offences and convictions This policy, which is part of XpertHR’s policies and documents service, can be used by an employer to set out how to manage employees charged with or convicted of criminal offences, when drafting a staff handbook or criminal charges/convictions policy. 
• Misconduct outside work: overview This article looks at whether or not it is reasonable for employers to take action against employees because of their misconduct outside work and the procedure for doing so. 

Case transcript of Prior v City Plumbing Supplies Ltd (Microsoft Word format, 76.5K) (on the EAT website)

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Holiday and sick leave: carry-over period for untaken holiday of nine months unlawful

Neidel v Stadt Frankfurt am Main Case C-337/10 ECJ

long-term sick leave | annual leave | holiday pay

The European Court of Justice has held that German legislation allowing for a carry-over period for untaken holiday of nine months, with the result that public servants forfeit their leave if it has not been taken within the period of nine months after the end of the leave year because of sickness, is unlawful. 

From 1970, Mr Neidel worked as a fireman in Germany, giving him the status of a public servant. From June 2007, he was unfit for service on medical grounds and he retired at the end of August 2009. 

As a fireman working irregular hours, Mr Neidel's annual leave from 2007 to 2009 was 26 days in each year. In addition, firemen are entitled to compensatory leave for public holidays. Under German law, Mr Neidel was normally required to take his leave within the year. However, the legislation allowed for a carry-over period of nine months, with the result that public servants forfeit their leave if it has not been taken within the period of nine months after the end of the leave year. Public servants are not entitled to any compensation in respect of untaken leave.

Mr Neidel took legal action against his former employer seeking an allowance of almost €17,000 as payment in lieu of the 86 days' annual leave that he had accumulated, but not taken. The German court made a reference to the ECJ, with its questions including whether or not the entitlement to an allowance in lieu conferred by the Working Time Directive (03/88/EC) extends:

• only to the minimum annual leave of four weeks under the Directive; or
• also to any additional leave provided for by national law. 

After confirming that the rights conferred by the Working Time Directive apply in the public sector, the ECJ pointed out that, on termination of employment when it is no longer possible to take paid annual leave, the Directive entitles the worker to an allowance in lieu of annual leave. The ECJ took the view that this entitlement gave Mr Neidel, a public servant retiring on ill-health grounds, the right to an allowance in lieu of the minimum four weeks' annual leave not taken. 

However, the ECJ went on to say that, in cases where national law confers on a public servant an entitlement to further paid leave in addition to the minimum entitlement of four weeks' annual leave entitlement, the national legislation does not have to provide for the payment of an allowance in lieu if a public servant who is retiring has been unable to use that additional entitlement because he or she was prevented from working by illness. 

The ECJ also decided that the Working Time Directive does not allow a national law to restrict, by a carry-over period of nine months after which the entitlement to paid annual leave lapses, the right of a public servant who is retiring to cumulate the allowances in lieu of paid annual leave not taken because of illness. Any carry-over period must ensure that the worker can have, if needs be, rest periods that may be staggered, planned in advance and available in the longer term and must be "substantially longer" than the reference period in respect of which it is granted. 

The ECJ concluded that the carry-over period in this case of nine months, which is a period shorter than the reference period of one year, is not permitted under the Working Time Directive. 

Additional resources

• Dominguez v Centre informatique du Centre Ouest Atlantique Case C-282/10 ECJ The ECJ has said that it is contrary to the Working Time Directive for national legislation to make entitlement to paid annual leave conditional on a worker having worked a minimum of 10 days for the same employer in the holiday year. 
• NHS Leeds v Larner [2011] IRLR 894 EAT The Employment Appeal Tribunal (EAT) held that a worker who was absent for the whole pay year and who did not submit a request for annual leave before the end of the leave year was nevertheless entitled to carry over her leave entitlement into the following year. 
• Fraser v Southwest London St George's Mental Health Trust [2012] IRLR 100 EAT The EAT held that, for an employee to claim unpaid wages in respect of annual leave during a period of sickness absence, it was necessary for her to have given formal notice of the leave and for the leave actually to have been taken. 

Case transcript of Neidel v Stadt Frankfurt am Main (on the BAILII website)

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Supreme Court holds that degree requirement for promotion was indirect age discrimination against employee nearing retirement

Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15

age discrimination | indirect discrimination | requirement for promotion | retirement

The Supreme Court has held that a requirement that employees obtain a law degree before they could be promoted to the highest grade was indirect age discrimination against the claimant, who did not have enough time to complete a degree before he reached the employer's retirement age. However, it sent the case back to the employment tribunal to decide whether or not the employer's actions were justified as a proportionate means of achieving a legitimate aim. 

At the age of 51, Mr Homer began work with the Police National Legal Database (PNLD) as a legal adviser. When he started, a law degree was not a requirement for the position if the individual concerned had exceptional experience and skills in criminal law, along with a lesser legal qualification. Although Mr Homer did not have a law degree, he did meet the requirement because of to his previous experience in the police force. 

In 2005, as a result of a decision to create a new career structure that provided more opportunities for progression and more competitive salaries, the PNLD introduced a new grading system with three grades above Mr Homer’s starting position. Under the new structure, a law degree or similar was required to achieve promotion to the third grade. Mr Homer was regraded to the second level, but not the third. The PNLD’s business director later gave evidence that she supported Mr Homer’s application for the third grade, but “felt constrained by the rules to deny it to him”. 

By May 2006, Mr Homer was 62, and would reach the PNLD’s normal retirement age of 65 in February 2009. Both he and the PNLD expected that he would retire then. A part-time law degree would have taken at least four years to complete, which would have taken him beyond his normal retirement date. 

Mr Homer’s appeals against the PNLD’s decision were rejected, and he claimed indirect age discrimination, arguing that its actions were not objectively justified. The Employment Equality (Age) Regulations 2006 (SI 2006/1031) were the applicable law in the case. These have been substantially re-enacted, for the purposes of indirect discrimination, by the Equality Act 2010. 

The employment tribunal upheld Mr Homer’s claims. It found that the appropriate age group for comparison was people aged 60 to 65, who would not be able to obtain a law degree before they retired. People in that group were placed at a particular disadvantage (compared with younger people) because they could not reach the third grade. Mr Homer was put at that disadvantage, and the PNLD’s actions were not justified. 

The Employment Appeal Tribunal (EAT) found that there had been no indirect discrimination (although, if there had been, it would not have been justified). The Court of Appeal agreed, and the case went to the Supreme Court. 

The Supreme Court noted that the EAT and Court of Appeal had been persuaded by the respondent’s argument that what had put Mr Homer at a disadvantage was his impending retirement, not his age. If he had not retired, he would have been able to obtain a law degree and reach the third grade. In the Supreme Court, the respondent argued that the correct comparison was with any other person who was nearing the end of his or her employment, for whatever reason, in a similar timeframe. Any such person would face the same difficulty as Mr Homer, and it was not the age group to which he belonged that had put him at a disadvantage. The respondent also argued that, if Mr Homer’s argument was right, this would put people of his age group at an advantage when compared with younger people, because they would be able to gain promotion to the third grade without needing to have a law degree, whereas the younger people would still need one. 

The Court observed that the respondent’s argument involved “taking a particular disadvantage that is suffered by a particular age group for a reason which is related to their age and equating it with a similar disadvantage which is suffered by others but for a completely different reason unrelated to their age”. If this argument was translated into other contexts, it would have “alarming consequences” for discrimination law. For example, a requirement that employees have a beard puts women at a particular disadvantage, because “very few of them” are able to grow a beard. The respondent’s argument would leave sex out of the equation, and instead suggest that it is the inability to grow a beard that causes the disadvantage, with the result that the women must be compared with other people who, for whatever non-sex related reason, are unable to grow a beard for whatever reason (for example, because of immaturity). 

The Court noted that it was, ironically, perhaps easier to make the respondent’s argument under the new formulation of indirect discrimination in the Equality Act 2010, which got rid of the idea of “disparate impact” and introduced the concept of “particular disadvantage”. However, the intention of the new provisions was not to make it more difficult to establish indirect discrimination. The new formulation “was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages”. 

The Court held that it “cannot be right” to equate leaving work because of impending retirement with other reasons for doing so: the two things are materially different. A person who faces a mandatory retirement age does not have the same choice as people generally have where they leave because of, for example, family reasons or early retirement. At the time of Mr Homer’s retirement, an employer's decision to retire an employee at the age of 65 did not need to be justified. The Court also rejected the argument that Mr Homer’s case amounted to asking for more favourable treatment of his age group. It said that it “obviously has to be possible to cure the discrimination in a non-discriminatory way”. 

The Court found that the respondent’s argument was “too ingenious”. The law of indirect discrimination is an attempt to “level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic”. A requirement that works to the comparative disadvantage of people approaching compulsory retirement age is indirect discrimination. There is “unreality in differentiating between age and retirement”. The reason why the people in the age group 60 to 65 did not have time to obtain a law degree was that they would soon reach the retirement age. 

The Court allowed Mr Homer’s appeal on the indirect discrimination point, but sent the case back to the employment tribunal to consider whether or not the respondent’s actions were justified as a proportionate means of achieving a legitimate aim. The employment tribunal and EAT had not properly compared the impact of the respondent’s requirement on the affected group against the importance of its aims. 

The Court noted that the range of aims that can justify indirect discrimination on any ground is wider than the aims that can justify direct age discrimination. It was not disputed between the parties that the respondent’s aim of facilitating the recruitment and retention of staff of an appropriate calibre in the PNLD was legitimate. However, when considering proportionality, the aims of recruitment and retention have to be separated, as do the aims of retaining newly recruited staff and retaining existing staff. The Court said that the employment tribunal needs to ask whether or not requiring existing employees to have a law degree before they could be promoted to the third grade was appropriate to these aims, and noted that the EAT had “expressed some scepticism about this”. 

To some extent, the employment tribunal’s decision on justification would depend on whether or not there were non-discriminatory alternatives available. Lady Hale, who gave the Court's leading judgment, said that there was nothing to stop the respondent from making a personal exception for Mr Homer, quite independently of his age discrimination claim, provided that it did not discrimination against others as a result. Lord Mance, however, said that he had difficulty with this suggestion, because an exception for Mr Homer personally – or even a general exception for employees within the relevant age group – could have discriminated against younger employees. This is something that the employment tribunal will need to consider. 

Additional resources

• Chief Constable of West Yorkshire Police v Homer [2009] IRLR 262 EAT Read XpertHR's reports on the EAT decision in this case. 
• Homer v Chief Constable of West Yorkshire Police [2010] IRLR 619 CA Read XpertHR's reports on the Court of Appeal decision in this case. 
• Get more information on age discrimination with the XpertHR FAQs section:
  • What is indirect age discrimination?
  • Is it permissible for an employer to stipulate in a job advert that candidates must be "recent graduates"?
  • Is it lawful for employers to discriminate in favour of a person of a particular age or persons in a particular age group?

Case transcript of Homer v Chief Constable of West Yorkshire Police (on the BAILII website)

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Age discrimination: Supreme Court provides guidance on justification of compulsory retirement age

Seldon v Clarkson Wright and Jakes [2012] UKSC 16 SC

age discrimination | compulsory retirement | justification

The Supreme Court has provided guidance on the components needed to justify a compulsory retirement age, stressing that the chosen retirement age has to be appropriate and necessary in that particular business. It went on to say that, once a retirement age is justified for a workplace or group of workers, the employer does not have to justify every retirement on an individual basis. 

Mr Seldon was a partner at a law firm that had a policy of retiring partners at 65. The firm required him to retire when he reached this age, in accordance with the terms of the partnership deed. He brought a claim under reg.17 of the Employment Equality (Age) Regulations 2006 (SI 2006/1031), which prohibited discrimination on the ground of age against partners. Mr Seldon claimed, among other things, direct age discrimination. 

The employment tribunal found that the firm's policy was justified. It accepted that the retirement policy was a proportionate means of pursuing the legitimate aims of:

• giving younger associates an opportunity of partnership within a reasonable time, thereby giving them an incentive to remain with the firm;
• facilitating workforce planning by knowing when vacancies would be expected to arise;
• limiting the need to expel underperforming partners, thereby contributing to a congenial and supportive culture within the firm. 

However, the Employment Appeal Tribunal (EAT) held that the employment tribunal had failed to consider whether or not the aims could have been met by a retirement age other than 65 and remitted the case to the tribunal to consider this issue. The Court of Appeal dismissed Mr Seldon's appeal against the EAT decision. Mr Seldon appealed to the Supreme Court on the basis that:

• it is wrong to use the same test for justification for both direct and indirect age discrimination and the aims pursued by the firm did not justify direct age discrimination; and
• the treatment had to be justified in relation to Mr Seldon's individual case and not just the retirement policy in general. 

The Supreme Court dismissed Mr Seldon's appeal. It was not surprised that, given the task of considering the justification of direct age discrimination under reg.3 of the Employment Equality (Age) Regulations 2006, the tribunal had used the same test as it would have for indirect discrimination. However, the Court pointed out that subsequent EU and UK case law has shown that the test cannot be the same. 

The Court pointed out that, on the one hand, European case law stresses that it is for member states to decide on social policy aims, which may vary depending on the economic social and democratic conditions in the country concerned. There is a risk that allowing individual employers to use a social policy aim such as "preserving the confidence and integrity of the labour market" to justify having a retirement age would enable them to continue to do whatever suits them best. It was difficult for the Court to see how granting flexibility to an employer can be a legitimate aim by itself. Further, the Court saw a distinction between aims such as cost reduction and improving competitiveness, which would not be legitimate, and aims relating to employment policy, the labour market and vocational training, which would be legitimate. 

It seemed to the Court that the Employment Equality (Age) Regulations 2006 gave employers the flexibility to choose which objectives to pursue, provided that:

• they count as legitimate aims of a public interest nature within the meaning of the Directive;
• they are consistent with the social policy aims of the state; and
• the means used are proportionate. 

The Court stated that, although the aim has to be identified, it is not necessary for the aim to have been in the minds of those who adopted the measure at the time that they took the decision. 

The Court said that, once the aim has been identified, it must still be decided whether or not it was legitimate in the particular circumstances. For example, improving the recruitment of young people to get a more diverse workforce may in principle be a legitimate aim, but if there is in fact no problem with recruiting the young in a particular industry and the problem is retaining older workers in that sector, it may not be a legitimate aim. Similarly, avoiding the need for performance management may be a legitimate aim, but if a business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for the older section of the workforce. 

The Court identified the final stage as being to decide whether or not the means chosen are both appropriate and necessary. It is one thing to say that the aim is to encourage a diverse workforce, but quite another to say that having a mandatory retirement age of 65 is appropriate and necessary. Similarly, an employer might aim to avoid the need for performance management procedures, but it would have to show that having a mandatory retirement age of 65 is appropriate and necessary to achieve this end. The employer has to scrutinise carefully the means that it is using to achieve the aim and consider whether or not there are any other, less discriminatory measures that would achieve the same objective. 

The final issue for the Court was whether or not the employer's measure has to be justified not only in general, but also in how it is applied to the individual. In this case, Mr Seldon's argument was that the firm had to show that its particular treatment of him was justified. In other words, the firm would have to show that, not only was the policy of mandatory retirement a proportionate means of achieving a legitimate aim, but that applying it to Mr Seldon at the time could be justified. 

The Court held that, where it is justified to have a general rule, the existence of that rule would normally justify the treatment that results from the rule. There is a distinction between justifying the rule to a particular individual, which is not necessary because that would negate the purpose of having a rule in the first place, and justifying the rule in the particular circumstances of the business. 

Applying its observations to this case, the Court held that the employment tribunal was entitled to find that the firm's three aims were capable of being legitimate. It was clear to the Court that the aims are consistent with the social policy aims of the state and can be related to the particular type of business concerned. Staff retention and workforce planning are directly related to the social policy aim of sharing out employment opportunities fairly between the generations. Although the Court said that limiting the need to expel partners using performance management relates to the aim of preserving "dignity" and "avoiding humiliation", which has been identified as potentially legitimate by the European Court of Justice, it expressed some reservations that this comes dangerously close to stereotyping older workers. 

The Court noted that the case is already to go back to the employment tribunal to consider the proportionality of a retirement specifically at 65. The Court suggested that this might involve the tribunal unpicking the question of the age chosen and discussing it in relation to each of the objectives, and that account could be taken of the fact that the default retirement age of 65 was in place at the time that Mr Seldon's retirement age had been set. 

Additional resources

• Line manager briefing on retirement This line manager briefing looks at the law and best practice on retirement after the abolition of the default retirement age on 6 April 2011. 
• Retirement policy and procedure Use this model policy to deal with the retirement of employees to whom the default retirement age does not apply. 
• How to handle retirement dismissals Entry from the XpertHR "how to" service providing guidance on retiring employees. 

Case transcript of Seldon v Clarkson Wright and Jakes (PDF format, 100K) (on the Supreme Court website)

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Workers found sleeping at work not asserting right to rest break

Ajayi and another v Aitch Care Homes (London) Ltd EAT/0464/11

working time | rest breaks | automatically unfair dismissal

The Employment Appeal Tribunal (EAT) has held that the “refusal” or “proposed refusal” of a worker to accept his or her employer’s contravention (or proposed contravention) of the Working Time Regulations 1998 (SI 1998/1833) must be communicated in advance to the employer. 

Mrs Ajayi and Mr Ogeleyinbo were employed by Aitch Care Homes (London) Ltd as waking night support workers at Lambourne House. Within the home were a number of vulnerable residents who might require assistance. The company expected its waking night support workers to be alert at all times. On 15 January 2008, the company sent a memorandum making it clear that sleeping on duty would usually be a dismissible offence. In early July 2008, that message was reinforced by a manager of the home, Mrs Pirks. 

On 12 July 2008, Mrs Pirks conducted a spot check, and found Mrs Ajayi and Mr Ogeleyinbo asleep in the lounge. They were subsequently interviewed as part of a disciplinary process. At Mr Ogeleyinbo’s interview, he claimed that he had a right to a rest break and that he was taking this break when he was found asleep. However, when he was found asleep, both he and Mrs Ajayi did not assert that they were within their rights to be asleep but instead begged Mrs Pirks not to report them to the company. On 22 July 2008, Mrs Ajayi and Mr Ogeleyinbo were dismissed. On 15 August 2008, their appeals were also dismissed. That was consistent with the company’s approach over the years in respect of anyone in similar circumstances found asleep. 

Mrs Ajayi and Mr Ogeleyinbo each claimed that they were automatically unfairly dismissed under s.101A of the Employment Rights Act 1996, and that they were exercising their right to a rest break at the time, and refusing by conduct to accept the company’s failure to provide for any break. Section 101A provides that an employee shall be regarded as unfairly dismissed “if the reason (or, if more than one, the principal reason) for the dismissal is that the employee: refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998, [or] refused, or proposed to refuse, to forego a right conferred on him by those Regulations”. 

The employment tribunal decided that there was no evidence of any refusal or proposed refusal to comply with a requirement or to forego rights as required by s.101A of the Employment Rights Act 1996. The employment tribunal suggested that, for there to be a refusal or a proposed refusal, this had to be communicated to the employer at a relevant time, and could not be implied from a worker being asleep. In any case, it decided that there was no suggestion that the reason for Mrs Ajayi and Mr Ogeleyinbo’s dismissals was such a refusal. The employment tribunal was satisfied that the company’s reason for the dismissals was simply that Mrs Ajayi and Mr Ogeleyinbo were found asleep while on duty. However, it was critical of the company for its failure to provide for any rest breaks, contrary to reg.12 of the Working Time Regulations 1998, which provides that, where a worker’s daily working time is more than six hours, he or she is entitled to a rest break of not less than 20 minutes. The employment tribunal dismissed the claims. Mrs Ajayi and Mr Ogeleyinbo appealed this decision. 

The EAT identified the issue as being whether or not a worker’s refusal can be conveyed implicitly by ignoring the employer’s instruction without any prior indication that that would be the case or whether or not the refusal has to be explicit. 

Mrs Ajayi and Mr Ogeleyinbo argued that a refusal can be silent. However, the EAT decided that a refusal must be explicitly communicated to the employer. Among other reasons, it said that “on a commonsense and natural reading of the statute a refusal consists of more than simply not doing something”. If Parliament had intended for non-compliance with the employer’s requirement to be sufficient, it would have used expressions such as “failed” or “did not comply”, not “refused” or “proposed to refuse”. The EAT also said that, to interpret “refusal” as being sufficiently indicated in most circumstances by the non-compliance by a worker with the employer’s instruction would result in an employer not knowing that a worker had refused, in circumstances such as those of this case, to comply with a requirement it had made unless and until it discovered the worker doing the opposite. This does not fit with the pattern generally seen in employment legislation, which looks for cooperation, discussion and consultation between employers and employees. The word “refusal” suggests that there is a need for communication. 

The EAT concluded that the dismissal was not by reason of any refusal and further that there had been no refusal or proposed refusal under s.101A of the Employment Rights Act 1996. The EAT dismissed the appeal. 

Additional resources

• How to handle rest breaks and rest periods in line with the law The XpertHR “how to” section provides guidance on how to handle rest breaks and rest periods in line with the law. 
• What happens if an employer fails to allow a worker sufficient rest periods? The XpertHR FAQs section answers this and other frequently asked questions regarding rest breaks and rest periods. 
• Corps of Commissionaires Management Ltd v Hughes [2009] IRLR 122 EAT In this case, the EAT held that the entitlement under the Working Time Regulations 1998 to a 20-minute rest break where the working day exceeds six hours is an entitlement to a single rest break and not a rest break for every six hours worked. 

Case transcript of Ajayi and another v Aitch Care Homes (London) Ltd (Microsoft Word format, 60.5K) (on the EAT website)

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EAT holds that “context is everything” in determining whether or not words complained of constitute discrimination

Warby v Wunda Group plc EAT/0434/11

sex discrimination | harassment | direct discrimination | reason for conduct complained of

The Employment Appeal Tribunal (EAT) has held that, in ascertaining whether or not words that reference a protected characteristic constitute unlawful discrimination, the conduct complained of must be seen in context. 

Mrs Warby was employed at Wunda Group plc as a sales consultant. Her wages consisted of a basic minimum and commission. She and the company’s management, in particular Mr Pugh, had different recollections of what had been agreed regarding her basic minimum pay. On 26 January 2010, at a meeting to discuss the issue, both Mrs Warby and Mr Pugh formed the view that the other was lying. 

On 25 March 2010, Mrs Warby’s grievance about the 26 January meeting was discussed at a second meeting, which the tribunal later described as “extremely acrimonious”. Mrs Warby asserted that the company was changing her wages to her detriment because she was pregnant. Mr Pugh said that the change to her wages was nothing to do with her pregnancy. 

The notes of the meeting, which the tribunal later accepted as accurate, stated that Mr Pugh “brought up [Mrs Warby’s] pregnancy and asked her why she lied about having a miscarriage”, which Mrs Warby denied. Mr Pugh’s allegation that Mrs Warby was lying arose from apparent anomalies, deriving from a timeline that she had posted on Facebook, regarding the dates of her miscarriage and her current pregnancy. The tribunal later noted that her colleagues had worked out, from the timeline, that Mrs Warby must have become pregnant before she suffered her miscarriage. She said that this was a misunderstanding of the calculation of the dates in the timeline. 

Mrs Warby brought claims for direct discrimination and harassment on the ground of her sex. The tribunal was “highly unimpressed” with the company’s conduct regarding Mrs Warby. It could see “no good reason” why Mr Pugh had chosen to raise the subject of Mrs Warby’s miscarriage, which was “obviously offensive and upsetting” to her. It found that, by accusing Mrs Warby of lying about her pregnancy and miscarriage, the company had created an environment that would satisfy the definition of harassment, provided that the conduct was on the ground of her pregnancy. 

Mrs Warby argued that, given the subject matter of Mr Pugh’s accusation was her lying about her pregnancy, the conduct was self evidently on the ground of her pregnancy, as without her being pregnant the accusation could not have been made. 

However, the tribunal agreed with the company’s argument that what Mr Pugh had done was to accuse Mrs Warby of lying. Although the subject matter of her alleged lie was her pregnancy, it could just have easily been any other subject. Mr Pugh’s behaviour may have been unreasonable but it was not, in the tribunal’s judgment, discriminatory harassment. Although the EAT judgment does not specify why the tribunal rejected Mrs Warby’s direct discrimination claim, it seems to have been for the same reason that it rejected the harassment claim: that the company’s conduct was not on the ground of her sex. 

On appeal to the EAT, Mrs Warby argued that the company’s conduct constituted harassment and direct discrimination because the words used were “inherently discriminatory”, because a man cannot be pregnant. She argued that, although Mr Pugh’s motivation for raising her miscarriage and pregnancy was to allege that she was a liar, this was irrelevant: where an act is discriminatory then no motive need be sought. It followed that, on Mrs Warby’s argument, if a man swore at a woman with words that could be addressed only to a woman, such as the word “bitch”, that would constitute discrimination. 

However, the EAT followed previous case law and agreed with the company’s submission that “context is everything”. Tribunals must be trusted to determine as a matter of fact whether or not words used are discriminatory. Hostile words might contain a reference to a particular characteristic of a claimant and, generally, a tribunal might conclude that the words themselves are discriminatory. However, tribunals are not obliged to do so, and words must be seen in context. 

In the present case, that context was the dispute and discussion between Mr Pugh and Mrs Warby about lying. The conduct that Mrs Warby complained of was an accusation about her lying. This accusation was not made to her because of her sex, her pregnancy or because she had had a miscarriage. There was “no necessary inherent discrimination” in Mr Pugh’s words in the context in which he used them. The tribunal might have found there to be discrimination, but it had chosen not to. 

The EAT was attracted by the company’s submission that, if Mrs Warby’s argument was correct, it would mean that the raising of miscarriage or pregnancy in any “fraught situation” between an employer and an employee would amount to harassment or discrimination. This, the lay members of the EAT felt, would not fit with the intention of the legislation on sex discrimination. 

The EAT could not conclude that the words used by Mr Pugh were inherently discriminatory when taken in context, and dismissed Mrs Warby’s appeal. 

Additional resources

• Grant v HM Land Registry and Equality and Human Rights Commission [2011] IRLR 748 CA In this case, cited by the EAT in Warby, the Court of Appeal held that a gay employee who had “come out” in a previous workplace was not discriminated against or harassed when his manager at a new office mentioned his sexual orientation to, and in front of, colleagues. 
• Amnesty International v Ahmed [2009] IRLR 884 EAT In this case, also cited in Warby, the EAT held that, where an employer's refusal to promote an employee was essentially because of her national/ethnic origin, the employer's benign motive for its conduct was irrelevant. 
• Get more information on sex discrimination with the XpertHR FAQs section:
  • Is harassment in relation to sex expressly prohibited under the Equality Act 2010?
  • What is the difference between sex-based harassment and sexual harassment?
  • Are pregnancy and maternity rights covered by the Equality Act 2010?

Case transcript of Warby v Wunda Group plc (Microsoft Word format, 74K) (on the EAT website)

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EAT asks ECJ about workers' rights to daily rest and rest breaks when continuity of service needed

Associated British Ports v Bridgeman EAT/0425/11

working time | daily rest | rest break | continuity of service or production

The Employment Appeal Tribunal (EAT) has referred to the European Court of Justice (ECJ) the question of the extent to which employers can avoid giving workers daily rest and rest breaks because of the need for continuity of service or production. 

Mr Bridgeman, a pilot for Associated British Ports, claimed that on 30 March 2010 his employer had failed to give him a daily rest period of at least 11 consecutive hours in a 24-hour period or a 20-minute rest break in a six-hour period. The employer conceded that it had not given him a daily rest period or rest break as required by regs.10 and 12 of the Working Time Regulations 1998 (SI 1998/1833).  However, the employer argued that its decision not to afford him these rights fell under reg.21(c)(ii), which provides an exemption from the normal rules for work in docks or airports where the worker's activities involve the need for continuity of service or production. 

The employment tribunal rejected Mr Bridgeman's complaint that the employer had refused to allow him a rest break under reg.12 because reg.21 is engaged in relation to each distinct act of pilotage, as there is a clear need for continuity of service once the pilot has commenced. The employer was allowed to utilise the exemption from workers' rights to provide a rest break. 

However, the employment tribunal went on to say that the employer could not utilise the exemption from reg.10 of the Working Time Regulations 1998 by refusing to allow Mr Bridgeman a daily rest period. The employment tribunal found that continuity of service does not require the pilot to transfer from one ship to another without a break: continuity is broken once the ship has docked or reached the open sea. Since that can be achieved within 11 or 12 hours' work, continuity of service does not require continuous working beyond that point. The tribunal ordered the employer to pay Mr Bridgeman £200 for the breach of reg.12 on 30 March 2010. 

On appeal, the employer argued that, once it had shown that reg.21 is engaged in relation to each distinct act of pilotage and there is a clear need for continuity of service once the pilot has commenced each act of pilotage, the tribunal should not have gone on to address separately the question of whether the derogation applies to reg.10 and reg.12. 

The EAT reviewed the case law, including the Court of Appeal decision on compensatory rest for security guards in Hughes v Corps of Commissionaires Management Ltd (No.2) [2011] IRLR 915 CA. The EAT considered that, looking at the decision in Hughes and the wording of the derogation in art.17(3)(c) of the Working Time Directive (03/88/EC), it is "strongly arguable" that the requirement of objective reasons justify a failure to provide a worker with a rest break under reg.12 apply equally to rest periods under reg.10, so that objective reasons for not giving rest periods and rest breaks have to be considered separately. The EAT also stressed that derogations from rights derived from EU law have to be approached cautiously. 

While the EAT formed this provisional view, it was not satisfied that the issue could be satisfactorily resolved in the absence of a reference to the ECJ. The EAT referred the question on the proper construction of art.17(3)(c) of the Working Time Directive of whether:

• the requirement of continuity of service has to be established separately as regards each right under the Directive from which derogation is made; or
• continuity of service should be addressed generally without consideration of the specific rights from which derogation has been made. 

Additional resources

• Russell and others v Transocean International Resources Ltd and others [2011] UKSC 57 SC In this case, the Supreme Court held that offshore oil-rig workers are not entitled to annual leave in addition to their onshore breaks. 
• Rest breaks and rest periods: the basics The XpertHR employment law manual provides guidance on workers' rest breaks and rest periods. 
• Working hours policy Use this model policy to set out the principles regarding employees' working hours. 

Case transcript of Associated British Ports v Bridgeman (on the BAILII website)

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Statutory retirement procedures: Court of Appeal considers employer's notification requirements

R&R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410 CA

retirement | statutory default retirement procedures | notification of right to request not to retire

The Court of Appeal has held that, when the employer was informing the employee of the right to request not to retire under the repealed statutory default retirement procedures, it was required to cite para.5 of sch.6 to the Employment Equality (Age) Regulations 2006 (SI 2006/1031). However, the Court of Appeal said that there was no requirement on the employer to inform the employee of the requirements of a valid request. 

Paragraph 5 of sch.6 to the Employment Equality (Age) Regulations 2006 (SI 2006/1031) (repealed from 6 April 2011) gives employees the right to request to work beyond the retirement age intended by the employer and stipulates that such a request must be in writing and state that it is being made under para.5. 

R&R Plant (Peterborough) Ltd operated a normal retirement age of 65. On 18 July 2008 (six months before Mr Bailey's 65th birthday), the company wrote to Mr Bailey informing him that he would have to retire when he reached the age of 65. On 14 August 2008, Mr Bailey replied to the company indicating that he would like to continue working full time for the company. At a meeting, the company reiterated its policy and stated that the most that it could do was to offer some part-time work to Mr Bailey when available. The company failed to provide Mr Bailey with notification of any decision in response to his request and eventually dismissed him on 20 January 2009. 

Mr Bailey lost his claim for unfair dismissal in the employment tribunal on the basis that he did not state that he was making his request under para.5 of sch.6 to the Employment Equality (Age) Regulations 2006. The EAT overturned the tribunal decision, accepting Mr Bailey's argument that the company's letter of 18 July 2008 should have set out the requirements of para.5 expressly and that the company was under a duty to inform him of the essential requirements of a request under para.5. The EAT commented that, although it did not see why there is any need for the employee's request under para.5 to state that it is made under para.5, it is mandatory under the wording of the legislation. The EAT decided that the employer had a duty to inform the employee of the conditions that are essential if a valid request is to be made: that it must be in writing and state that it is made under para.5. 

The Court of Appeal dismissed the employer's appeal, although it disagreed with some aspects of the EAT decision. The Court of Appeal held that the wording of the legislation clearly required the employer to have told the employee that he had a right to make a request not to retire pursuant to para.5 of schedule 6 of the Employment Equality (Age) Regulations 2006. It was important for the employer to tell the employee that it was invoking a statutory procedure by making reference to para.5 and not merely writing to terminate the employment. 

However, the Court of Appeal went on to say that there was no statutory requirement for the employer to tell the employee what the requirements of his request will be when he comes to make it. The intention of Parliament appeared to the Court of Appeal to have been that, once the employee had been told of his statutory right to make a request, it could properly be left to him or her to find out how to go about making it. 

The Court of Appeal judge, Dame Janet Smith, added to the end of her judgment "an expression of satisfaction that this unnecessarily complex piece of legislation is no longer on the statute book". 

Additional resources

• Line manager briefing on retirement This line manager briefing looks at the law and best practice on retirement after the abolition of the default retirement age on 6 April 2011. 
• Model retirement policy and procedure Use this model policy to deal with the retirement of employees to whom the default retirement age does not apply. 
• Compass Group plc v Ayodele [2011] IRLR 802 EAT The Employment Appeal Tribunal has held that an employer that follows the procedural requirements of the repealed statutory retirement procedure, but refuses to countenance the possibility that a request not to retire might be granted, can be in breach of the statutory retirement procedure.

Case transcript of R&R Plant (Peterborough) Ltd v Bailey (on the BAILII website)

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Age discrimination: NHS trust justified in dismissing redundant chief executive before 50 to avoid windfall

Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330 CA

age discrimination | direct discrimination | justification

The Court of Appeal has held that the employer was justified in dismissing a senior member of staff, who had been at risk of redundancy for some time, before he reached the age of 50 to avoid him getting a pension "windfall". However, it stressed that this case has unusual facts and it is not opening the door for employers to time a reorganisation solely to prevent an employee from qualifying for enhanced pension rights. 

Mr Woodcock, who was born in June 1958, was chief executive of the North Cumbria Primary Care Trust. In 2006, there was a reorganisation of primary care trusts, with the result that Mr Woodcock's post was going to disappear. He was put formally at risk of redundancy in September 2006, but the discussions that took place after this were informal and undertaken with a view to finding alternative short-term projects for Mr Woodcock. 

The trust held off making Mr Woodcock redundant because it hoped that it could find alternative employment for him. However, by March 2007, the trust realised that Mr Woodcock would turn 49 on 17 June 2007 and, if it dismissed him after this date with 12 months' notice in accordance with his contract of employment, he would still have been employed by the time he turned 50 on 17 June 2008 and would have been entitled to take early retirement on "enhanced" terms. The cost of this would have been between £500,000 and £1,000,000. Mr Woodcock was given notice in May 2007 and received a redundancy payment of £220,000. He subsequently brought an age discrimination claim. 

The tribunal found that, while Mr Woodcock was directly discriminated against, his claim failed because the treatment was justified. The trust had a reasonable need to terminate Mr Woodcock's employment without full consultation because of the cost that would have been incurred by the taxpayer. In any event, the consultation would have achieved nothing because Mr Woodcock wanted a chief executive job, but there were no jobs of this nature available. The tribunal referred to Cross v British Airways [2005] IRLR 423 EAT, which is authority that cost by itself cannot amount to a legitimate aim, and Loxley v BAE Systems (Munitions & Ordnance) Ltd [2008] IRLR 853 EAT, in which the EAT confirmed that a discriminatory act to avoid an employee receiving a windfall can be a legitimate aim. 

The Employment Appeal Tribunal (EAT) agreed. The EAT said that the decision to dismiss Mr Woodcock was a proportionate means of achieving a legitimate aim. It found that the prevention of the windfall and the avoidance of the corresponding loss to the trust was a legitimate aim that went beyond the mere wish to reduce costs. The EAT referred to Cross and noted the findings in that case that, while an employer cannot rely on cost alone to justify a discriminatory act, it can put cost into the balance together with other justifications, if there are any (the "cost plus" approach). The EAT made some comments on the "cost plus" approach that are not binding on other courts and tribunals, questioning the accepted view that the consideration of cost can never by itself constitute sufficient justification. It went on to find that the principle of proportionality might apply to cases in which the adverse impact on the claimant is trivial and the cost of avoiding or correcting it is "disproportionately high". 

The Court of Appeal upheld the EAT decision. It said that, if the trust's actions were aimed solely at saving or avoiding costs, these could not be a means of achieving a "legitimate aim" and were therefore incapable of justification. However, the Court of Appeal went on to decide that, given the unusual facts of this case, Mr Woodcock's treatment was not only to save costs. The dismissal notice of May 2007 was not issued purely and simply with the aim of dismissing Mr Woodcock before his 49th birthday to save the trust the expense that it would incur if he was still employed at 50. The notice was served with the genuine aim of terminating Mr Woodcock's employment on the ground of his redundancy. The Court of Appeal agreed with the EAT that "it is an entirely legitimate aim for an employer to dismiss an employee who has become redundant". The need to make someone redundant cannot cease to be a "legitimate aim" simply because, if there is no dismissal, the employer will continue to incur the costs that the dismissal is designed to save. 

In addition, the Court of Appeal also stressed that it was a legitimate part of the trust's aim to ensure that the redundancy dismissal also saved it the additional element of costs that, had it not timed the dismissal as it did, would likely to have been incurred. In considering the timing of the steps it needed to take towards dismissing Mr Woodcock for redundancy, it was "obviously legitimate" for the trust to have the cost consideration in mind, as it clearly did as early as March 2007. In the Court of Appeal's view, it would have been "irresponsible" of the trust not to have considered costs at that stage. Mr Woodcock had, by 2007, "no right, entitlement or expectation" to the enjoyment of the enhanced benefits that he would have enjoyed had he remained in the trust's employment until he was 50. Had he in fact so remained in employment, he would have been the beneficiary of a "pure windfall". 

The Court of Appeal concluded that the employment tribunal was entitled to find that the trust's actions were proportionate because:

• the trust was fully entitled, and had resolved, to terminate Mr Woodcock's employment prior to his 50th birthday;
• the implementation of that intention was delayed through no fault of the trust, but through a "chapter of accidents"; and
• while the "corner cutting" by failing to consult in theory deprived Mr Woodcock of an opportunity, it in fact deprived him of nothing of value, because consultation would not have achieved anything. 

Additional resources

• Banks v Ministry of Defence ET/3304560/2009 The employment tribunal in this case found that it was not age discrimination for the civil service to place limits on the amount that it would pay under a voluntary "early-release scheme" designed to encourage turnover in the workforce. 
• Walsh v Tewkesbury Borough Council ET/1404614/09 In this decision, the employment tribunal was critical of a local authority that failed to keep an employee at risk of redundancy in employment for six more months during a transitional period. The decision had been taken to avoid a pension payout and constituted direct age discrimination and unfair dismissal. 
• Mayor and Burgesses of the London Borough of Tower Hamlets v Wooster EAT/0441/08 In this case, the EAT held that an employer committed direct age discrimination against an employee when it made him redundant at the age of 49 in order to avoid paying an early retirement pension that he would be entitled to if he left employment when he was aged 50 or over. 

Case transcript of Woodcock v Cumbria Primary Care Trust (on the BAILII website)

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Advocate General delivers opinion on trigger point for obligation to consult on collective redundancies

Advocate General’s opinion in United States of America v Nolan Case C-583/10

collective redundancies | closure of workplace | when consultation obligation arises

The Advocate General has taken the view that the obligation on an employer to consult on collective redundancies is triggered when it makes a strategic or commercial decision that compels it to contemplate or plan for collective redundancies. 

Ms Nolan was one of around 200 civilians employed at a US army base in the UK. In March 2006, the US decided to close the base by the end of September 2006. On 24 April 2006, the employees were informed of the closure and, in June, their representatives were told that all employees were at risk of redundancy. Collective consultation on the redundancies began on 5 June 2006. 

On 30 June 2006, the US gave the employees notices of dismissal, to take effect at the end of September 2006. Ms Nolan, who represented the employees during the collective consultation, brought a claim on behalf of those employees that the US had failed to comply with its collective consultation obligations by not consulting on the decision to close the base or consulting prior to 5 June 2006. 

Ms Nolan succeeded at the employment tribunal in her claim for a protective award, and the EAT upheld the tribunal’s decision on liability, finding that the decision in UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and another [2008] IRLR 4 EAT meant that the EU Collective Redundancies Directive (98/59/EC) requires consultation over the formation of a clear, albeit provisional, intention to close a workplace, where such closure is contemplated as giving rise to collective redundancies. 

The US appealed to the Court of Appeal, relying on the European Court of Justice (ECJ) decision in Akavan Erityisalojen Keskusliitto AEK Ry and others v Fujitsu Siemens Computers Oy [2009] IRLR 944 ECJ, and arguing that the collective consultation obligation does not arise when an employer proposes to close a workplace, but only when that decision has been made and the intention to make redundancies has been formed. 

The Court of Appeal was unsure exactly what principle the Akavan decision established, and decided to make a reference to the ECJ. It asked whether the duty to consult on collective redundancies is triggered:

• when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or
• only when that decision has actually been made and the employer is then proposing consequential redundancies. 

The Advocate General noted that, “above all”, Akavan stressed that the obligation to consult on collective redundancies should not be triggered “prematurely”. This could lead to results contrary to the purpose of the Directive, such as reducing the flexibility with which undertakings are able to handle restructuring; creating heavier administration burdens; and leading to uncertainty for workers about the safety of their jobs. Akavan also said that the consultation obligation should not be triggered too late: a consultation that begins when a decision to make collective redundancies has already been taken cannot usefully involve any examination of conceivable alternatives with the aim of avoiding redundancies. 

In the present case, the Advocate General said that neither of the Court of Appeal's alternatives was correct. On the Court's first alternative, consultation would have been premature. On the second alternative, consultation would have been too late if the US had made the strategic decision without leaving any time for it to contemplate collective redundancies. 

The Advocate General’s opinion on the Court of Appeal’s reference was that the EU Collective Redundancies Directive must be interpreted as meaning that the obligation on an employer to consult on collective redundancies is triggered when a strategic or commercial decision that compels it to contemplate or plan for collective redundancies is made by a body or entity that controls the employer. 

The Advocate General said that, in the present case, it is for the Court of Appeal to identify which of the events prior to 5 June 2006 amounted to a strategic decision that exerted compelling force on the US for the purpose of giving effect to the consultation obligation, and the date on which that decision was made. 

The ECJ will now give its response to the reference, taking into account the Advocate General’s opinion. Although the ECJ often follows the opinion of the Advocate General in a given case, it is not obliged to do so. 

Additional resources

• Collective redundancy consultation: when should it begin? With a number of large-scale redundancies having taken place over recent months, consultant editor Darren Newman explains why we can expect challenges over the collective consultation process. 
• United States of America v Nolan [2011] IRLR 40 CA Read XpertHR's report on the Court of Appeal's decision in this case. 

Case transcript of Advocate General’s opinion in United States of America v Nolan (on the Curia website)

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TUPE transfers: move to new location across London entitled employees to resign

Abellio London Ltd (formerly Travel London Ltd) v Musse and others; Centrewest London Buses Ltd v Musse and others [2012] IRLR 360 EAT

transfer of undertakings | change of location | constructive dismissal

The Employment Appeal Tribunal (EAT) has held that employees who resigned after being faced with a change of place of work to a different part of London because of a TUPE transfer were constructively dismissed. 

Five employees worked as bus drivers for Centrewest London Buses Ltd (the transferor). They worked mostly on the 414 bus route, which was operated by the transferor under a contract with Transport for London (TfL). The employees were based at the transferor's Westbourne Park garage in West London. 

On 21 November 2009, the TfL contract to run the 414 bus was transferred to Abellio London Ltd (the transferee). The transfer of the contract meant that the transferee would run the 414 bus route from its garage in Battersea, South-West London. The transfer meant that the employees' place of work would change. 

None of the employees wanted to move to Battersea, with the main reason being that it would take much longer for them to travel to and from work each day. One employee, Mr Musse resigned before the transfer, while the other four employees visited the Battersea garage on the day of the transfer and resigned. All five brought claims under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/2405) (the TUPE Regulations), with Mr Musse claiming against the transferor and the other four employees claiming against the transferee. 

The employment tribunal upheld the employees' claims of constructive dismissal, as well as their claims under s.4(9) of the TUPE Regulations. Section 4(9) allows an employee to treat a contract of employment as being terminated where a relevant transfer would involve a "substantial change in working conditions" to his or her material detriment. The tribunal found that, while the claimants' contracts of employment preserved the employer's right to require them to work at any of its locations and referred to a list of its locations in a separate document, that list did not include Battersea. To require the employees to move to a location that fell outside the employees' contracts of employment with the employer would "alter the terms of the contract to their disadvantage". 

The tribunal concluded that, while the distance from Westbourne Park to Battersea is only six miles, the move had to be considered in context. The move was within Greater London and from north to south of the river. The tribunal was satisfied that all the employees regarded the changed location as detrimental and that it was reasonable for them to resign in response to the move. 

The EAT agreed, noting that the phrase "working conditions" under reg.4(9) of the TUPE Regulations is wider than "contractual conditions". While the phrase is capable of relating to contractual conditions, it can also relate to physical conditions such as the place of work. The EAT stressed that, while working conditions are not contractual conditions, they may be affected by them. The EAT said that the tribunal had been entitled to make a finding that the move across London was a "substantial change in working conditions". 

The EAT went on to consider whether or not the change in working conditions created a "material detriment". The EAT said that the tribunal had correctly followed the approach set out in Tapere v South London and Maudsley NHS Trust [2009] IRLR 972 EAT, coming to the conclusion that there had been a substantial change in working conditions that was to the employees' material detriment. The tribunal had been entitled to conclude that an extension of the working day of around two hours in some cases, taking both travel to and from work into account, was material. The lay members of the tribunal would have emphasised that travelling from north to south of the Thames adds substantial time to the length of the day to the employees' material detriment. 

It followed naturally for the EAT that the employees had also been constructively dismissed. There was a breach of contract because the contractual terms provided that the employer might require an employee to work at another work location, but the other work locations, which were identified in a separate document, did not include Battersea. No steps were taken to vary the employees' contracts of employment to add Battersea as a work location. 

Additional resources

• Transfer of undertakings (TUPE): employment tribunal decisions  These cases examine various issues arising in employment tribunals under the TUPE Regulations, including the employment tribunal decision that has been upheld in this case, Musse and others v Abellio London Ltd (formerly Travel London Ltd) and others ET/2222616/2009 and others. 
• Case law: TUPE The XpertHR case reports section provides details of decisions on TUPE, including:
• Spaceright Europe Ltd v Baillavoine and another [2011] EWCA Civ 1565 CA The Court of Appeal held that, for there to be an automatic unfair dismissal under TUPE, there does not need to have been a particular transfer or transferee in existence or in contemplation at the time of the dismissal. 
• Key2Law (Surrey) LLP v De'Antiquis [2012] IRLR 212 CA The Court of Appeal has held that a transfer from a company in administration does not lead to an exemption from automatic employee transfer under reg.8(7) of TUPE. 
• Hardy and others v Meter U Ltd ET/1700982/10 to ET/1700986/10 The employment tribunal had to decide the exceptionally difficult issue of whether or not employees who were TUPE transferred to a company that engaged individuals only under a franchise agreement were unfairly dismissed. 

Case transcript of Abellio London Ltd (Formerly Travel London Ltd) v Musse and others; Centrewest London Buses Ltd v Musse and others (on the BAILII website)

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No employer liability for HR professional’s illness not caused by work

MacLennan v Hartford Europe Ltd [2012] EWHC 346 HC

health and safety | duty of care | stress

The High Court has held that an employer was not liable for an HR professional’s chronic fatigue syndrome because the employee’s illness was not caused by her work. 

On 24 November 2004, Mrs MacLennan was employed by Hartford Europe Ltd (Hartford) as an HR manager. She was recruited to set up and run the HR department in Hartford’s new London branch. Hartford, a financial services company based in the US, opened the London office in April 2004 to sell various financial products through independent financial advisers in the UK. 

On 6 January 2006, Mrs MacLennan felt ill at work, and left the office. She never returned to work and was subsequently diagnosed with chronic fatigue syndrome. Mrs MacLennan had permanent health insurance through Hartford that paid her an income until August 2009. The insurance payments ceased when Hartford’s London office closed and all staff were made redundant, including Mrs MacLennan. 

Mrs MacLennan brought a personal injury claim against Hartford for approximately £1.25 million for lifetime losses. She said that long working hours and challenging HR issues resulted in her suffering from stress at work. She alleged that this stress undermined her immune system, resulting in various illnesses in 2005, culminating in chickenpox. She contended that her chickenpox triggered her chronic fatigue syndrome. 

Mrs MacLennan claimed that she developed chronic fatigue syndrome as a result of the amount and nature of her work for Hartford. She also contended that the indications of impending harm to her health arising out of stress at work were clear enough that a reasonable employer such as Hartford realised or ought to have realised that it should take steps to prevent that harm from occurring. 

Hartford denied both of these allegations. 

The Court decided this case by determining two issues:

• Was Mrs MacLennan’s chronic fatigue syndrome caused by stress at work?
• Was it reasonably foreseeable by Hartford that Mrs MacLennan would suffer the kind of harm that she suffered as a result of her work? 

In respect of the first issue of medical causation, on the evidence, the Court concluded that Mrs MacLennan did not find her work enormously stressful and did not suffer from numerous or persistent illnesses in 2005. In fact, she suffered no relevant illnesses between mid-May and September when she contracted chickenpox. On the basis that Mrs MacLennan did not suffer from numerous or persistent illnesses and, following current medical knowledge and opinion, the Court was not satisfied that Mrs MacLennan’s stress at work caused any diminution in her immune system or that this resulted in her contracting chronic fatigue syndrome. The Court concluded that Mrs MacLennan’s chronic fatigue syndrome was not caused by stress at work. This resulted in Mrs MacLennan’s claim failing. 

Nevertheless, the Court went on to address the second issue of foreseeability. The Court noted that, even if Mrs MacLennan had persuaded it that her chronic fatigue syndrome was caused by stress at work, she would still have needed to show that it was reasonably foreseeable to Hartford that she was at risk of suffering from chronic fatigue syndrome. In determining this, the Court applied the steps set out in Sutherland v Hatton [2002] IRLR 263 CA. In particular, the Court considered whether or not there were sufficient indications of impending harm to Mrs MacLennan available to Hartford to trigger its duty to take steps to prevent her from falling ill. 

The Court concluded that while Mrs MacLennan worked long hours, Hartford did not constantly work her without breaks and rest. She received compensatory leave for weekend working and was encouraged to take her weekends and holidays. Mrs MacLennan was also aware that Hartford was going to hire a senior HR person to assist her, and when she complained of too much work, Hartford postponed an HR project and shelved other potential projects. 

Although Mrs MacLennan raised concerns regarding her amount of work from time to time, the Court noted that she had acknowledged that she enjoyed being stretched and was willing to take on assignments and unwilling to give up work. Further, she rarely referred to her work as being stressful, and when she did, this was in the context of performance, not health. 

The Court found that neither Mrs MacLennan nor her doctor connected her various illnesses to her work until after she left work in January 2006 or considered or suggested that her health in the future was placed at a risk by her work. The Court also found that Ms MacLennan never suggested to Hartford or any third party that her illnesses were a result of overwork, and no one at Hartford made the connection. The Court went on to say that Hartford could not reasonably have been expected to make such a connection. 

The Court noted that when considering the issues, it was right to take into account the fact that Mrs MacLennan was in HR, and therefore knew about stress, its adverse consequences and the importance of making an employer aware of stress and any perceived risks to health. Hartford was entitled to take into account the fact that, had she made the connection between her work and health and perceived a future risk, she was fully aware of the appropriate steps open to her. 

On the evidence, the Court concluded that Mrs MacLennan had not overcome the high foreseeability threshold. On this ground, the claim also failed. 

The Court dismissed the claim. 

Additional resources

• How can employers reduce the incidence of employees taking time off work on account of stress? The XpertHR FAQs section answers this and other frequently asked questions regarding handling workplace stress. 
• Stress at work policy and procedure This policy and procedure, which is part of XpertHR’s policies and documents service, can be used by an employer to set out your organisation’s rules on stress at work and the steps to be taken to reduce the health and safety risks associated with stress. 
• Line manager briefing on stress The XpertHR line manager briefing section provides guidance for line managers on how to prevent stress and help employees cope with stress. 

Case transcript of MacLennan v Hartford Europe Ltd (on the BAILII website)

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TUPE transfers: move to franchise model can be ETO reason for dismissal

Meter U Ltd v Ackroyd and others; Meter U Ltd v Hardy and others [2012] IRLR 367 EAT

unfair dismissal | transfer of undertakings | ETO reason | franchise

The Employment Appeal Tribunal (EAT) has held that the dismissal of employees TUPE transferred to a company that engaged individuals only under a franchise agreement could amount to an economic, technical or organisational reason (ETO) for dismissal entailing changes to the workforce. 

A number of employees of G4S Utility Services (UK) Ltd were transferred under TUPE to Meter U Ltd, which does not take on meter readers as employees, but operates through a franchise model. This meant that each meter reader could no longer be an employee and had to have his or her own limited company, with the company having a franchise agreement with Meter U Ltd. Shortly before the transfer, the meter readers were given the option of transferring to Meter U Ltd as employees for an initial period, but were told that they would soon have to become franchisees. They moved, but were later dismissed because they did not want to operate under a franchise agreement. 

In two tribunal claims (heard in Leeds and Exeter), the meter readers brought claims for unfair dismissal against Meter U Ltd. The claimants argued in the tribunal hearings that there was no ETO reason entailing changes to the workforce under reg.7(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/2405). 

When it came to deciding whether or not there was an ETO reason for dismissal entailing changes to the workforce, the key issue for the tribunals was whether or not the word "workforce" under reg.7(1)(b) of the TUPE Regulations is wide enough to cover franchisees as well as employees. If "workforce" also includes franchisees, there was no reduction in the number of people required to carry out the meter reading or the way in which meter reading was conducted, and no ETO reason for the dismissals. 

The tribunals found that the word "workforce" does cover more than just employees and encompasses all individuals working within the organisation, whether as employees, franchisees or under some other arrangement. This meant that, as there were no "changes to the workforce" under reg.7(1)(b), Meter U Ltd had not established an ETO reason for the dismissals. 

The EAT disagreed. It recognised that the term "workforce" is not defined in domestic or European TUPE legislation. However, looking at the definitions of "worker" in domestic employment legislation, the EAT was unsurprised to find that those definitions refer to an "individual". The ordinary commonsense use of the word "workforce" does not include limited companies, which have an identity separate from their directors or controlling shareholders. They are not people, workers or employees. 

The EAT concluded that the employment tribunals erred in holding that franchisees were included in Meter U Ltd's workforce. Since the tribunals' decisions that there was no change in the workforce were based on the premise that a change from engaging employees to using corporate franchisees to carry out meter reading work was not a reduction in the workforce, the decisions were set aside. 

The EAT remitted the cases for the tribunals to decide whether or not the dismissals were fair under s.98(4) of the Employment Rights Act 1996. 

Additional resources

• Hardy and others v Meter U Ltd ET/1700982/10 to ET/1700986/10 Read more about the original Exeter tribunal decision, which provides more detail on the circumstances surrounding this case. 
• Letter informing individual employees about a transfer that is to take place Use this model letter to inform individual employees that a TUPE transfer is to take place. 
• FAQs on TUPE The XpertHR FAQs section includes answers these frequently asked questions on TUPE: 
• Can an employee be dismissed before or after the transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006? 
• If an employer sells off all or a part of its business and staff are dismissed as a result, is the employer liable?

Case transcript of Meter U Ltd v Ackroyd and others; Meter U Ltd v Hardy and others (on the BAILII website)

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Cases on appeal

NHS Leeds v Larner
Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH
Dumfries and Galloway Council v North and others
Ladele and McFarlane v United Kingdom and Eweida and Chaplin v United Kingdom
Begraj v Heer Manak Solicitors
British Airways plc v Mak and others
Kulikaoskas v Macduff Shellfish and another
Williams and others v British Airways plc
Roffey v United Kingdom
RMT v United Kingdom
Hill v The Governing Body of Great Tey Primary School
X v Mid-Sussex Citizens Advice Bureau
Parkwood Leisure Ltd v Alemo-Herron and others
United States of America v Nolan

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NHS Leeds v Larner

long-term sick leave | annual leave | holiday pay

The Employment Appeal Tribunal (EAT) held that a worker absent for the whole pay year, but who does not submit a request for the annual leave before the pay year ends, does not forfeit his or her entitlement to paid annual leave. This decision is in direct conflict with a later decision of the EAT, Fraser v Southwest London St George's Mental Health Trust [2012] IRLR 100 EAT, in which it held that, in order to be paid for annual leave accrued but untaken during sick leave, the employee had to exercise her right to take it, by serving notice under reg.15(1) of the Working Time Regulations (SI 1998/1833) during the relevant leave year. The Court of Appeal heard an appeal in Larner in March 2012, and a judgment is awaited.

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Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

age discrimination | compatibility of national provisions with EU laws

This reference to the European Court of Justice asks whether or not a national court can treat as void, and disapply, a clause in an individual employment contract that indirectly infringes EU law on age discrimination. The case is important because it deals with the issue of whether or not a national provision that infringes EU law can be applied in a dispute between two private parties.

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Dumfries and Galloway Council v North and others

equal pay | same employment | different establishments

A group of classroom assistants, support-for-learning assistants and nursery nurses brought equal pay claims against the council. They sought to compare themselves to male manual workers employed on other premises as road workers, groundsmen, refuse collectors, refuse drivers and leisure attendants. The Employment Appeal Tribunal (EAT) held that comparators who worked at different establishments for a common employer, but would never realistically be employed at the same establishments as the claimants, were not "in the same employment" as the claimants for the purposes of the Equal Pay Act 1970. The Court of Session said that the EAT had incorrectly placed an extra hurdle in equal pay claims when it said that, for a claimant to rely on a comparator employed at a different establishment, there must be a "real possibility" of the comparator doing the same, or a broadly similar, job at the claimant's place of work. However, the claimants’ argument that they were in the same employment as their comparators failed on the evidence. The Supreme Court will hear an appeal in late 2012.

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Ladele and McFarlane v United Kingdom and Eweida and Chaplin v United Kingdom

religious discrimination | indirect discrimination | wearing a cross | refusal to counsel same-sex couples

In Ladele v London Borough of Islington [2009] EWCA Civ 1357 CA, the Court of Appeal held that a registrar with strong Christian beliefs about marriage who was threatened with dismissal for refusing to carry out civil partnership work did not suffer unlawful religious discrimination. In McFarlane v Relate Avon Ltd [2010] EWCA Civ B1, the Court of Appeal refused a Christian relationship counsellor leave to appeal against a finding that his dismissal for refusing to counsel same-sex couples on sexual matters did not constitute religious discrimination. In Eweida v British Airways Plc [2010] IRLR 322 CA, the Court of Appeal held that a uniform policy that prevented the wearing of a visible item of adornment around the neck did not give rise to indirect discrimination against a Christian employee who wished to display a cross as a matter of personal preference, rather than as a mandatory religious requirement. Ms Chaplin lost a religious discrimination claim after she was moved to a desk job after refusing to remove her crucifix necklace at work. Her employer argued that the decision to move her was due to health and safety concerns about patients trying to grab necklaces. The four cases, which were decided under the now repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), are the subject of two applications to the European Court of Human Rights, supported by the Equality and Human Rights Commission, which will argue that both claimants' rights under art.9 of the European Convention on Human Rights (freedom of thought, conscience and religion) were infringed by their employers. The Court is due to hear the cases in September 2012.

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Begraj v Heer Manak Solicitors

caste discrimination

This employment tribunal case, brought by Indian husband and wife, Vijay and Amardeep Begraj, is the first to cite caste discrimination in the UK. The couple say that Mr Begraj - from the Dalit caste, deemed to be a "lower" caste than his wife's Jat caste - was mistreated for that reason by Heer Manak Solicitors, for which they both worked. This mistreatment is alleged to have included: discouraging the couple from marrying; hurtful remarks when they married and giving her more work and less support. The case was been relisted for a hearing in early 2012.

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British Airways plc v Mak and others

race discrimination | age discrimination | territorial jurisdiction

The Court of Appeal upheld the tribunal’s decision that it had jurisdiction to hear discrimination claims by Hong-Kong-based cabin crew because the claimants worked partly at an establishment in Great Britain. The Supreme Court has given British Airways leave to appeal.

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Kulikaoskas v Macduff Shellfish and another

sex discrimination | associative pregnancy discrimination

The Employment Appeal Tribunal held that the Sex Discrimination Act 1975 does not prohibit associative pregnancy discrimination, and that the issue does not require a reference to the European Court of Justice (ECJ). It is not clear whether or not the Equality Act 2010 Act can be read as prohibiting associative pregnancy discrimination. The Court of Session has made a reference to the ECJ, although the judgment is not yet available.

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Williams and others v British Airways plc

holiday pay | basic pay | flying allowances

Pilots employed by British Airways claimed that the company breached the statutory holiday pay requirements when it calculated their paid annual leave by reference to their basic salary rather than what they would expect to earn when flying allowances were added. The Supreme Court referred the question of what is meant by “paid annual leave” in the Civil Aviation Directive (2000/79/EC) and the Working Time Directive (93/104/EC) to the European Court of Justice, which considered whether or not "normal remuneration" during a period of annual leave should include allowances on top of basic pay. The case will now return to the Supreme Court.

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Roffey v United Kingdom

industrial action | human rights

Unite has made an application to the European Court of Human Rights that the UK's industrial action legislation is incompatible with art.11 of the European Convention on Human Rights (the right to freedom of peaceful assembly and freedom of association with others). Specifically, Unite claims that the legislation provides no protection for those participating in industrial action, save in relation to dismissal.

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RMT v United Kingdom

industrial action | human rights

The RMT has made an application to the European Court of Human Rights that the UK's industrial action legislation is incompatible with art.11 of the European Convention on Human Rights (the right to freedom of peaceful assembly and freedom of association with others).

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Hill v The Governing Body of Great Tey Primary School

human rights | unfair dismissal

Mrs Hill, a school worker, told a child's parents that she had been bullied, and was suspended by the school. She was dismissed for contacting the press about the incident, and claimed unfair dismissal. The employment tribunal found that the dismissal was procedurally unfair, but rejected Mrs Hill's argument that the dismissal had breached her right to freedom of expression under art.10 of the European Convention on Human Rights. Her compensation was reduced on the basis that, had the school followed a fair procedure, she would have been fairly dismissed. Mrs Hill is seeking leave to appeal to the Employment Appeal Tribunal on the art.10 point.

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X v Mid Sussex Citizens Advice Bureau and others

employment status | volunteers | disability discrimination

X, a volunteer, was asked to stop working by the Citizens Advice Bureau. She alleged that this was because of her HIV-positive status. The employment tribunal, Employment Appeal Tribunal and Court of Appeal all held that she could not bring a disability discrimination claim as a volunteer on the basis that volunteers are not employees for the purposes of the Disability Discrimination Act 1995. The Supreme Court will hear X's appeal in 2012.

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Parkwood Leisure Ltd v Alemo-Herron and others

transfer of undertakings | collective agreements | pay increase after transfer

The Supreme Court has referred to the European Court of Justice the question of whether or not the TUPE Regulations should be given a "dynamic" interpretation, in the context of a dispute over a transferee's failure to honour the terms of a pay increase made under a collective agreement that was incorporated into the contracts of employment before the transfer. 

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United States of America v Nolan

collective redundancies | closure of workplace | when consultation obligation arises

In September 2006, the Secretary of the US Army decided to close a US army base in Hampshire, resulting in 200 redundancies. Mrs Nolan claimed a protective award for a failure to consult collectively the workforce on the decision to close the base. Both the employment tribunal and the Employment Appeal Tribunal held that the US had failed in its collective consultation obligations, and the US appealed. In November 2010, the Court of Appeal decided that it needed clarification from the European Court of Justice (ECJ) on when the obligation to consult on collective redundancies arises where an employer proposes closing a workplace. The Advocate General has delivered his opinion, and we await the ECJ response to the reference.

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Note: Some of these case summaries are based on information provided by Claire Birkinshaw, Abbey Legal Services.