Stop press provides up-to-the-minute news on key cases that have not yet been reported elsewhere on XpertHR. Click a case title to go straight to a case or scroll down the page to view the full list.

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Decisions
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Decisions:
Employment status: Supreme Court decides church minister was not an employee
Case name: President of the Methodist Conference v Preston
Date added: 16 May 2013 Tribunal/court: Supreme Court Status: appeal allowed
Topics: employment status | contract of employment | minister of religion
The Supreme Court has restored the employment tribunal decision that a minister of religion was not an employee and could not therefore claim unfair dismissal. 

TUPE consultation: EAT considers definition of "affected employees"
Case name: I Lab Facilities Ltd v Metcalfe and others
Date added: 8 May 2013 Tribunal/court: EAT Status: appeal allowed
Topics: TUPE | obligation to inform and consult | affected employees
The Employment Appeal Tribunal has considered the definition of "affected employees" in the context of a TUPE transfer and the obligation to inform and consult. 

Equality Act 2010 does cover post-employment victimisation, says EAT
Case name: Onu v Akwiwu and another; Akwiwu and another v Onu
Date added: 2 May 2013 Tribunal/court: EAT Status: appeal allowed
Topics: race discrimination | Equality Act 2010 | post employment-victimisation
The Employment Appeal Tribunal (EAT) has held that the Equality Act 2010 can be interpreted to cover post-employment victimisation, disagreeing with the EAT decision in Rowstock and another v Jessemey and another. 

"Over-authoritarian" manager should have been warned about possibility of dismissal
Case name: JJ Food Service Ltd v Kefil
Date added: 1 May 2013 Tribunal/court: EAT Status: appeal dismissed
Topics: unfair dismissal | warnings | possibility of dismissal
The Employment Appeal Tribunal has upheld the employment tribunal decision that a manager was unfairly dismissed for behaving in an "over-authoritarian manner" because he was not warned that a possible consequence of continuing to act in this way was dismissal. 

Disability: ECJ guidance on reduction in working hours as an adjustment for disabled workers
Case name: Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening
Date added: 12 April 2013 Tribunal/court: ECJ Status: ECJ judgment
Topics: disability discrimination | definition of disability | working hours
The European Court of Justice has confirmed that a reduction in working hours can be regarded as reasonable accommodation for disabled workers where the reduction makes it possible for the worker to continue in employment and does not represent a disproportionate burden on the employer. 

Disability discrimination: obese individual suffering from multiple symptoms disabled
Case name: Walker v Sita Information Networking Computing Ltd
Date added: 26 March 2013 Tribunal/court: EAT Status: appeal allowed
Topics: disability discrimination | definition of disability | obesity
The Employment Appeal Tribunal has considered whether or not an obese individual who suffered from multiple symptoms was disabled for the purposes of disability discrimination legislation. 

Equality Act 2010 does not protect against post-employment victimisation, says EAT
Case name: Rowstock and another v Jessemey
Date added: 7 March 2013 Tribunal/court: EAT Status: appeal dismissed
Topics: age discrimination | Equality Act 2010 | post-employment victimisation
The Employment Appeal Tribunal has held that the Equality Act 2010 cannot be interpreted to cover post-employment victimisation. 

Advocate General suggests that TUPE law can allow transferor's pay agreement to survive transfer
Case name: Alemo-Herron and others v Parkwood Leisure Ltd
Date added: 25 February 2013 Tribunal/court: ECJ Status: Advocate General's opinion
Topics: transfer of undertakings | collective agreements | pay increase after transfer
The Advocate General has taken the view that the TUPE Regulations can be given a "dynamic" interpretation, suggesting that UK law can permit the survival after transfer of a pay increase negotiated under a collective agreement signed by the transferor before the transfer. 

Religious discrimination: colleague's enquiry using expletive about Pope story did not constitute harassment
Case name: Heafield v Times Newspaper Ltd
Date added: 21 February 2013 Tribunal/court: EAT Status: appeal dismissed
Topics: religious discrimination | harassment | bad language
The Employment Appeal Tribunal has upheld a tribunal decision that the context of a remark is important when assessing whether or not it constituted harassment. 

Government's unpaid jobseeker schemes unlawful, but not human rights breach
Case name: R (on the application of Reilly and another) v Secretary of State for Work and Pensions
Date added: 12 February 2013 Tribunal/court: Court of Appeal Status: appeal allowed
Topics: human rights | forced or compulsory labour | jobseeker's allowance
The Court of Appeal has endorsed the thinking behind government schemes in which individuals are given unpaid placements as a condition of continuing to receive jobseeker's allowance, but found that two schemes were unlawful because the legislation under which they were introduced did not comply with the Jobseekers Act 1995. 

EAT holds age-related severance payments not discriminatory
Case name: Lockwood v Department for Work and Pensions and another
Date added: 7 February 2013 Tribunal/court: EAT Status: appeal dismissed
Topics: direct age discrimination | justification | voluntary redundancy scheme
The Employment Appeal Tribunal has held that a voluntary redundancy scheme that provided different severance payments for two different age groups of employees was not age discriminatory because the differential treatment was justified. 

Criminal record checks: "spent" convictions law breaches European Convention on Human Rights
Case name: R (on the application of T) v Chief Constable of Greater Manchester and others
Date added: 30 January 2013 Tribunal/court: Court of Appeal Status: appeal allowed
Topics: human rights | criminal records | spent convictions
The Court of Appeal has held that the system for the disclosure of individuals' criminal records to employers breaches the European Convention on Human Rights. 

Worker on zero-hours contract placed on short-time working can have holiday pay reduced
Case name: Heimann and another v Kaiser GmbH
Date added: 13 November 2012 Tribunal/court: ECJ Status: ECJ judgment
Topics: annual leave | holiday pay | short-time working | zero-hours contract
The European Court of Justice has confirmed that the holiday pay of a worker on a zero-hours contract placed on short-time working can be calculated on a pro rata basis. 

EAT revisits definition of "establishment" for collective redundancy consultation
Case name: Renfrewshire Council v Educational Institute of Scotland
Date added: 23 October 2012 Tribunal/court: EAT Status: appeal allowed
Topics: redundancy | collective consultation | meaning of "establishment"
The Employment Appeal Tribunal has provided a reminder of how "establishment" should be defined for the purposes of consulting collectively on redundancies under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. 

Supreme Court remits holiday pay case brought by British Airways pilots to employment tribunal
Case name: British Airways plc v Williams and others
Date added: 17 October 2012 Tribunal/court: Supreme Court Status: case remitted
Topics: holiday pay | basic pay | flying allowances
The Supreme Court has remitted to the employment tribunal the case brought by British Airways pilots in relation to the inclusion of flying allowances in the calculation of their holiday pay, following the results of the reference to the European Court of Justice on whether or not "normal remuneration" during a period of annual leave should include allowances on top of basic pay. 

Decisions

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Employment status: Supreme Court decides church minister was not an employee

President of the Methodist Conference v Preston [2013] UKSC 29 SC

employment status | contract of employment | minister of religion

The Supreme Court has restored the employment tribunal decision that a minister of religion was not an employee and could not therefore claim unfair dismissal. 

Ms Preston was an ordained minister in the Methodist Church. She was "stationed" (formally assigned to particular duties) in the Redruth Circuit after a process that included the Methodist Conference's written invitation and Ms Preston's written acceptance. She had no written contract. The relationship was governed by a "deed of union" containing the Church's constitution; the Methodist Conference's standing orders; and any arrangements made with ministers. Ministers are paid a "stipend" and given accommodation, but these are not regarded by the Methodist Church as being given in return for the services of its ministers. 

Ms Preston later brought an employment tribunal claim against the Church for unfair dismissal. The question arose as to whether or not Ms Preston was an employee under the Employment Rights Act 1996 and therefore had the right not be unfairly dismissed. The employment tribunal decision that Ms Preston was not an employee was overturned by the Employment Appeal Tribunal (EAT). The Court of Appeal agreed with the EAT that Ms Preston was an employee. 

The Supreme Court, by a majority of four to one, allowed the Church's appeal and restored the tribunal ruling that Ms Preston was not an employee and could not claim unfair dismissal. 

It was clear to the Supreme Court from the judgment in Percy v Church of Scotland Board of National Mission [2006] IRLR 195 HL that the employment status of ministers can no longer be answered simply by classifying the minister's occupation by type: office or employment, spiritual or secular. The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service. 

The decisive factors for the Supreme Court in deciding that Ms Preston was not an employee included that:

• the way in which a minister takes up a position is not contractual, with the minister's duties not consensual and dependent on unilateral decisions by the Methodist Conference;
• the payment of a stipend and the provision of accommodation continue in the event of a minister's illness or injury, unless he or she is given a leave of absence or retires, and the disciplinary scheme is the same for ministers and lay members; and
• the relationship between the minister and the Church cannot be terminated unilaterally by the minister, even with notice. 

The Supreme Court stressed that the question of whether or not an arrangement is a legally binding contract depends on the parties' intentions. In other contexts, the exchange of offer and acceptance letters might well have given rise to a contract. The difficulty here was that the exchange occurred within the framework of a much longer procedure, with the final decision left to the Methodist Conference. There was no fresh relationship with the invitation or even with each appointment. 

Lady Hale, giving the dissenting judgment, pointed out that it would be odd if a minister who was not paid a stipend or evicted from accommodation could not rely on the terms of appointment to enforce the payment or to regain possession. There is a distinction between being a minister and having a particular appointment within the Methodist Church. A minister is assigned to a particular post for a defined period with particular duties. In any other context, such a post would involve a contract of employment. A prior commitment to go where you are assigned does not negate a mutual contractual relationship when you are assigned and agree to go to a particular place. 

Additional resources

• Determining employment status It is important to establish the nature of the employment relationship as this is key to determining the employment rights to which an individual is entitled, states the XpertHR employment law manual. 
• Statutory rights available to all workers/employees only The XpertHR quick reference section explains which statutory employment rights are available to employees only. 
• Autoclenz Ltd v Belcher and others [2011] IRLR 820 SC The Supreme Court affirmed that, where a party asserts that a written term does not reflect the reality of the agreement, tribunals and courts may look outside the terms to determine the true nature of the agreement. 

Case transcript of President of the Methodist Conference v Preston (PDF format, 87K) (on the Supreme Court website)

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TUPE consultation: EAT considers definition of "affected employees"

I Lab Facilities Ltd v Metcalfe and others EAT/0224/12

TUPE | obligation to inform and consult | affected employees

The Employment Appeal Tribunal (EAT) has considered the definition of "affected employees" in the context of a TUPE transfer and the obligation to inform and consult. 

The claimants were employed by I Lab (UK) Ltd (ILUK), a company specialising in immediate film production (also known as "rushes" work) and post-production work. In 2011, ILUK ran into financial difficulties and went into liquidation. Initially, ILUK had intended that some of the post-production staff would transfer to the successor company but this situation changed and, eventually, the "rushes" business was sold to another company within the same ownership as ILUK and the post-production business was closed down by the liquidator. The claimants, with the exception of one, were all employed in the post-production business and were given one month's notice of their dismissal on 11 June 2009. 

The claimants brought proceedings in the employment tribunal, arguing that ILUK was in breach of its obligation to inform and consult under reg.13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) and, accordingly, were entitled to compensation under reg.15 of the TUPE Regulations. The tribunal upheld the claim, holding that the claimants were "affected employees" by reason of having been excluded from the eventual transfer notwithstanding the original intention that they would be included. The tribunal awarded each claimant a protective award of thirteen weeks' pay, ranging from £4,500 to £11,750. 

The EAT upheld ILUK's appeal, holding that the transfer, as it eventually proceeded, and the indirect impact that it may have had on the business in which the claimants were employed, did not make them "affected employees". With regard to the earlier intended transfer of both parts of the business, no claim could be brought in respect of a transfer that never proceeded. 

However, the EAT added that its decision does not mean that there can never be an obligation to inform and consult in relation to any employee of the transferor who is not transferred. A proposed transfer may affect such employees if they do some work in or for the undertaking, or part of the undertaking, whose transfer is proposed, albeit not "assigned" to that part. The loss of the work may well affect such employees. This is different from holding that they are affected simply because the transfer has left the remaining part of the undertaking less viable. 

Additional resources

• XpertHR's policies and documents section provides model documents on TUPE transfers:
  • 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. 
  • Letter to affected employees initiating process for electing employee representatives for informing and consulting on a TUPE transfer Use this model letter to start the process for electing employee representatives for informing and consulting on a TUPE transfer. 
• Line manager briefing on handling TUPE transfers The XpertHR line manager briefing section provides guidance for line managers on the law and best practice on TUPE transfers. 
• Good practice: TUPE This section of the XpertHR good practice manual discusses how employers should deliver the commercial aims of a transfer without undue disruption to their business. 

Case transcript of I Lab Facilities Ltd v Metcalfe and others (on the BAILII website)

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Equality Act 2010 does cover post-employment victimisation, says EAT

Onu v Akwiwu and another; Akwiwu and another v Onu EAT/0283/12 & EAT/0022/12

race discrimination | Equality Act 2010 | post employment-victimisation

The Employment Appeal Tribunal (EAT) has held that the Equality Act 2010 can be interpreted to cover post-employment victimisation, disagreeing with the EAT decision in Rowstock and another v Jessemey and another. 

Ms Onu, a migrant domestic worker, brought various tribunal claims against her former employer, alleging that she was exploited and badly treated. Some of these, for example her claim under national minimum wage legislation, were unrelated to discrimination. However, Ms Onu also made a claim under the Equality Act 2010 for race victimisation in relation to the employer's actions some months after her employment ended. It was alleged that her former employer had telephoned Ms Onu's sister in Nigeria to say that Ms Onu had sued him and that "if she thought things would end there she was wrong" and that Ms Onu "would suffer for it". 

The tribunal rejected the victimisation claim on the basis that Ms Onu had not shown, in the absence of any specific reference to race discrimination in the telephone calls, that the reason for the threats was because she had commenced proceedings for breaches of race discrimination legislation. Ms Onu appealed. 

The EAT held that the tribunal was wrong to decide that the victimisation claim was defeated because there was no express reference to race discrimination legislation when the threats were uttered. 

The issue then arose as to whether or not the Equality Act 2010 can be interpreted to cover post-employment victimisation. The EAT rejected the argument that the Equality Act 2010 does not give tribunals jurisdiction to consider a victimisation claim in which the circumstances arise entirely after the relationship has ended. The EAT recognised that the earlier EAT decision in Rowstock and another v Jessemey and another EAT/0112/12 identified a gap in the Equality Act 2010. 

The EAT noted that the central difficulty is that, by virtue of s.108(7) of the Equality Act 2010, the employer's conduct after the end of the claimant's employment cannot contravene s.108 insofar as it amounts to victimisation, whereas both discrimination and harassment occurring after termination of the employment relationship are covered. It seemed to the EAT that it would have been all too easy for Parliament to have added a similar provision in respect of victimisation post-dating the termination of employment to give rise to a claim, if that is what it had intended. 

However, the EAT refused to give the "strict interpretation" that the EAT in Rowstock gave to s.108(7), which would mean that the UK Government is in breach of EU legislation. The EAT stressed that case law has shown that the national courts must "strive to do all they can to interpret domestic statutory provisions intended as anti-discrimination measures in a way compatible with applicable EU Directives". This is a powerful argument in favour of an interpretation of the Equality Act 2010 that provides a remedy for post-termination victimisation. 

The EAT was reinforced in its view because the whole of the legislation is designed to prohibit discrimination in many contexts. The grain of the legislation is in favour of interpreting the Equality Act 2010 to cover post-employment victimisation. 

The EAT acknowledged that its decision means that there are now two cases at EAT level that adopt differing constructions of the Equality Act 2010. It therefore had no hesitation in granting permission to appeal to the Court of Appeal to consider the issue. 

Additional resources

• Liveflo: Provide a reference on a former or current employee Use this workflow on receiving a request for a reference for a former employee from a prospective employer. 
• Policy on giving references Use this model policy to provide a procedure to follow where a reference request is received in respect of a former or current employee. 
• Letter responding to a reference request explaining that the employer operates a policy of not providing references Use this model letter to write to a former or current employee's prospective employer explaining the reasons for a refusal to provide a reference. 

Case transcript of Onu v Akwiwu and another; Akwiwu and another v Onu (Microsoft Word format, 189K) (on the EAT website)

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"Over-authoritarian" manager should have been warned about possibility of dismissal

JJ Food Service Ltd v Kefil EAT/0320/12

unfair dismissal | warnings | possibility of dismissal

The Employment Appeal Tribunal (EAT) has upheld the employment tribunal decision that a manager was unfairly dismissed for behaving in an "over-authoritarian manner" because he was not warned that a possible consequence of continuing to act in this way was dismissal. 

Mr Kefil had worked for the company, a major food distributor, for 14 years. He had been promoted twice, first to warehouse manager, then to stock control manager. After a complaint in July 2010, Mr Kefil had been given an "informal" written warning over his management style. 

In April 2011, three members of staff gave a letter of complaint, signed by ten others, to the employer. The complaints mostly related to Mr Sitki, the then warehouse manager, but the letter also raised concerns about the behaviour of Mr Kefil. 

The complainants were interviewed. They alleged that Mr Kefil mistreated the employees beneath him, but the complaints were not generally tied to any specific date or time, although there were some specific dates in respect of unfair treatment. A disciplinary hearing took place. Mr Kefil was dismissed, and told that the reason for dismissal was "[abuse of his] position of stock control manager to threaten employees' job security which has created an intimidating environment for [his] subordinates". He claimed, among other things, unfair dismissal. 

The employment tribunal concluded that Mr Kefil's dismissal for misconduct was outside the "range of reasonable responses". The tribunal found that the letter of July 2010 was at most an informal warning about his management style and that it did not say that, if he continued to manage in this way, he might be dismissed. The tribunal pointed to the absence of any management training at that time to remedy the perceived deficiencies in Mr Kefil's management style. The main focus of the April 2011 letter of complaint was Mr Sitki's behaviour and not the claimant's. Mr Kefil's dismissal without a formal warning that his management style had to change, and that if it did not he might be dismissed, made the dismissal unfair. 

The EAT agreed with the employment tribunal, rejecting the employer's arguments that the tribunal had substituted its own views for those of the employer and, alternatively, that the tribunal's decision was perverse. 

After suggesting that it is all too easy for an employer unhappy with a tribunal's judgment to allege a "substitution mindset", the EAT went on to remind itself that it is rare for the EAT to interfere with a tribunal decision on the basis of perversity. For a perversity argument to succeed, the appellant must show that the decision reached is "wholly impermissible". The EAT suggested that the appellant would have to show the tribunal decision to be "flying in the face of reason" or "provoking astonished gasps from the amazed observer". 

The EAT concluded that the issue in this case was whether or not Mr Kefil had been told sufficiently, or should have realised, that continuing to behave as he did could lead to his dismissal. The significant point for the tribunal was not the absence of a warning or that the claimant had not been told in July 2010 that what he had done on that occasion was not appropriate. The most important point for the tribunal was that Mr Kefil had not been told that a consequence of further misconduct could be his dismissal. It was this omission, coupled with the fact that he had no management training, that justified the finding of unfair dismissal. 

Additional resources

• Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374 CA The Court of Appeal held that it was not outside the range of reasonable responses for an employer to rely on a live final warning in conjunction with later misconduct in deciding to dismiss. The warning had been issued in good faith and was not manifestly inappropriate, and there had been prima facie evidence to sustain it. 
• Letter giving an employee a first written warning and Letter giving an employee a final written warning Use these model letters to issue formal written warnings. 
• Is there a set number of warnings that an employer must give an employee prior to dismissal? and When an employee is issued with a formal warning, should the employee be required to sign and return a copy of the warning letter? The XpertHR FAQs section answers these frequently asked questions. 

Case transcript of JJ Food Service Ltd v Kefil (Microsoft Word format, 60K) (on the EAT website)

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Disability: ECJ guidance on reduction in working hours as an adjustment for disabled workers

Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening Cases C-335/11 and C-337/11 ECJ

disability discrimination | definition of disability | working hours

The European Court of Justice (ECJ) has confirmed that a reduction in working hours can be regarded as reasonable accommodation for disabled workers where the reduction makes it possible for the worker to continue in employment and does not represent a disproportionate burden on the employer. 

Danish law provides that an employer can terminate a contract of employment with a "shortened period of notice" of one month if an employee has been absent because of illness, but has continued to be paid his or her salary, for 120 days during the previous 12 months (the "120-day rule"). 

Two Danish employees (one with back pain and one with whiplash injuries) were dismissed in accordance with these provisions after long-term sick leave. They brought claims in a Danish national court through their trade union for disability discrimination on the basis that the 120-day rule should not apply to them because their absences were caused by disability and their employers should have offered them a reduction in working hours. 

The Danish national court referred to the ECJ a wide range of questions on the definition of disability, reasonable accommodation for the disabled and when a reduction in working hours can represent a disproportionate burden on employers. 

The ECJ explained to the Danish court how a disability is defined under European law:

• A "disability" can include a condition caused by an illness that is medically diagnosed as curable or incurable, if that illness entails a limitation that results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder the full and effective participation of a person in professional life on an equal basis with other workers. The limitation must be a long-term one. 
• A "disability" does not necessarily imply a complete exclusion from work or professional life. A person can be disabled if his or her professional activity is hindered, but not made impossible. A person who is fit to do some work, but only part time, is capable of being disabled. 
• A finding that there is a disability does not depend on the nature of the accommodation measures to be taken by the employer, such as the use of special equipment. 

The ECJ went on to say that a reduction in working hours may be regarded as a reasonable accommodation for disabled workers where the reduction makes it possible for the worker to continue in employment. It is for the national court to assess whether or not a reduction in working hours, as an accommodation for the disabled worker, represents a disproportionate burden on the employer. 

The ECJ concluded that the Equal Treatment Framework Directive (2000/78/EC) precludes the Danish 120-day rule from applying where absences are a consequence of the employer's failure to take appropriate and reasonable accommodation measures to enable the disabled person to work. Since the legislation is liable to place disabled workers at a disadvantage and so create a difference in treatment based indirectly on disability, it is for the national court to assess whether or not the law, as well as pursuing a legitimate aim, does not go beyond what is necessary to achieve that aim. 

Additional resources

• Podcast: Obesity and disability discrimination On the XpertHR Weekly podcast, we discuss the Employment Appeal Tribunal decision in Walker v Sita Information Networking Computing Ltd EAT/0097/12. In Walker, the EAT considered whether or not an obese employee, who suffered from multiple symptoms that could not be attributed to a recognisable physical or mental cause but were regarded as being compounded by the employee's obesity, was disabled for the purposes of disability discrimination legislation. 
• O'Neill v Barnardo's and others NIIT/00201/12 This Northern Ireland tribunal case about the definition of disability considers the dividing line between an individual having a learning disability and simply having difficulty with literacy or numeracy. 
• Line manager briefing on disability discrimination The XpertHR line manager briefing section provides guidance for line managers on the law and best practice on disability discrimination. 

Case transcript of Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening (on the ECJ website)

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Discrimination: EAT provides guidance on injury to feelings awards and aggravated damages

HM Land Registry v McGlue EAT/0435/11

indirect discrimination | injury to feelings | aggravated damages

The Employment Appeal Tribunal (EAT) has provided guidance on remedies for discrimination claims, including injury to feelings and aggravated damages. 

In March 2008, the claimant, Mrs McGlue, commenced a career break following a period of maternity leave. The career break was approved by her employer HM Land Registry to continue for up to five years, although on reasonable notice of about one month, Mrs McGlue could apply to return to her pre-existing work and would be entitled to do so. In December 2008, HM Land Registry announced that there was a need for a reduction in staff numbers due to financial constraints. An early release scheme was introduced to encourage staff to volunteer for severance. Mrs McGlue expressed her interest in the scheme. However, once it had received expressions of interest from staff, senior management decided unilaterally that it should exclude from consideration for early release any employee who was on a career break and who was not due to return to work until after 31 March 2010. This decision was not published or consulted on with the employees or relevant trade union. Mrs McGlue was subsequently misled by HM Land Registry when it informed her that she remained eligible for the scheme. Mrs McGlue was not selected for the scheme despite submitting a grievance about her non-selection. 

Mrs McGlue brought a claim in the employment tribunal for indirect sex discrimination on the basis that more women than men were likely to be on a career break and therefore suffer the disadvantage of exclusion from the severance scheme. The tribunal upheld the claim and awarded Mrs McGlue £12,000 for injury to feelings, £5,000 aggravated damages and a compensatory award of £71,710.95, which was based on the sum that she would have received had she successfully applied for voluntary severance. 

HM Land Registry appealed the amount of compensation to the EAT, in particular that the award for injury to feelings was too high. 

The EAT noted that it should not interfere with an award for injury to feelings unless it is manifestly excessive or wrong in principle. The EAT held that in determining the amount of an injury to feelings award, the tribunal must use its experience to assess the effect on the individual. In this case, the EAT held that it could not properly interfere with the injury to feelings award. However, the EAT upheld the appeal relating to the award for aggravated damages. The EAT noted that an award for aggravated damages is appropriate where the distress caused by an act of discrimination is made worse by:

• it being done in an upsetting way, for example where it is done in a "high-handed, malicious, insulting or oppressive way"(Broome v Cassell [1972] AC 1027);
• motive, for example conduct based on prejudice, animosity, spite or vindictiveness; or
• subsequent conduct, for example where a case is conducted at a trial in an unnecessarily offensive manner, or a serious complaint is not taken seriously, or there has been a failure to apologise (HM Prison Service v Salmon [2001] IRLR 425 EAT and British Telecommunications plc v Reid [2004] IRLR 327 CA). 

The EAT held that the facts of this case did not meet the circumstances that are set out in any of the three categories. The EAT warned tribunals to take care not to award damages under the heading "injury to feelings" for the same conduct as they also compensate under the heading "aggravated damages". Tribunals must recognise that aggravated damages are not punitive and are not dependent "upon any sense of outrage by a tribunal as to the conduct which has occurred". 

The EAT dismissed the appeal relating to the compensatory award, holding that on the findings of fact by the tribunal, Mrs McGlue would have been selected for the voluntary scheme and would have been £71,000 better off. 

Additional resources

• XpertHR's FAQs section answers the following questions on compensation in discrimination claims: 
• How is compensation for financial loss calculated by an employment tribunal in a discrimination case?
• Can a claimant claim for "injury to feelings" when making a complaint of discrimination to an employment tribunal?
• If an employee behaves in a way that results in another employee bringing a successful discrimination claim can the tribunal require the first employee to pay compensation?
• The Discrimination remedies and penalties section of the XpertHR employment law manual explains the law on remedies in discrimination cases. 
• XpertHR's quick reference section details the amount of compensation awarded for sex discrimination in 2011/2012. 

Case transcript of HM Land Registry v McGlue (on the BAILII website)

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Disability discrimination: obese individual suffering from multiple symptoms disabled

Walker v Sita Information Networking Computing Ltd EAT/0097/12

disability discrimination | definition of disability | obesity

The Employment Appeal Tribunal (EAT) has considered whether or not an obese individual who suffered from multiple symptoms was disabled for the purposes of disability discrimination legislation. 

The claimant, Mr Walker, brought a claim of disability discrimination. At the tribunal, the preliminary issue of whether or not he was disabled for the purposes of the Disability Discrimination Act 1995 (DDA, now replaced by the Equality Act 2010) arose. 

Mr Walker suffered from various conditions including asthma, dyslexia, knee problems, diabetes, chronic fatigue syndrome, bowel and stomach problems and anxiety and depression. These gave rise to multiple symptoms, including pains in the head and knee, bowel symptoms, constant fatigue and poor concentration, and caused him significant difficulty in his day-to-day life. The symptoms could not be attributed to a recognisable physical or mental cause, but were regarded by the tribunal as being compounded by Mr Walker's obesity (he was 21 and a half stones or 137 kilograms). At the tribunal, there was no challenge to the genuineness of Mr Walker's symptoms and their effects. 

The tribunal held that Mr Walker was not disabled for the purposes of the DDA because no physical or mental cause could be identified for his symptoms. 

The EAT disagreed. It found that the tribunal should have had regard to the effect of Mr Walker's impairments, not their cause. The EAT said that the relevant questions are whether or not an individual has an impairment and whether or not the impairment may be properly described as physical or mental. The EAT found that Mr Walker was both physically and mentally impaired and had been for a long time. 

The EAT observed that, while the absence of an apparent cause for an impairment may not be relevant as a matter of law, it may be taken into account in reaching an evidential conclusion if the genuineness of the symptoms are at issue. Where an individual claims to be disabled, but there is no recognised cause of that disability, it is open to a tribunal on the evidence to conclude that the individual does not genuinely suffer from the disability. 

The EAT did not accept that obesity is a disability within the meaning of the DDA. However, it observed that obesity may make it more likely that someone is disabled. On an evidential basis, obesity may permit a tribunal to conclude more readily that a claimant suffers from an impairment. Further, it may also be relevant evidentially to ask whether or not the obesity might affect the length of time for which an impairment would be suffered. 

The EAT allowed Mr Walker's appeal and found that he was disabled for the purposes of the DDA at the relevant time. 

Additional resources

• Get more information on disability discrimination in the XpertHR FAQs section, which answers the following questions:
• How does an employee's condition meet the definition of disability?
• For the purposes of the Equality Act 2010 does a mental illness have to be clinically well recognised?
• Are there any conditions or categories of work that fall outside the scope of the Equality Act 2010?
• Equal opportunities policy relating to disability This policy, which is part of XpertHR's policies and documents service, can be used to set out the company's commitment to providing equality of opportunity for disabled people. 
• Line manager briefing on disability discrimination The XpertHR line manager briefing section provides guidance for line managers on the law and best practice on disability discrimination. 

Case transcript of Walker v Sita Information Networking Computing Ltd (Microsoft Word format, 54.5K) (on the EAT website)

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Double jeopardy: no strict rule about second set of disciplinary proceedings for same offence

Christou and another v London Borough of Haringey [2013] IRLR 379 CA

unfair dismissal | disciplinary procedure | double jeopardy

The Court of Appeal has held that an employer's decision to start a second set of disciplinary proceedings after an employee has already been disciplined for the same offence does not automatically render a subsequent dismissal unfair. 

Haringey Council's response to the Baby P scandal included taking disciplinary action against two social workers. Prior to the trial of Baby P's mother, the social workers were disciplined under the council's simplified disciplinary procedure, which applied to cases where the likely outcome was a warning. Both the employer and employee have to agree to the simplified procedure being adopted and the employee is not entitled to appeal any warning imposed. 

Following the guilty plea of Baby P's mother in the criminal proceedings, a number of steps were taken to improve the safeguarding arrangements for children in Haringey. A government report concluded that the social workers' original disciplinary proceedings had been "blatantly unsafe, unsound and inadequate". Fresh disciplinary action was taken against the social workers and they were dismissed. They brought claims of unfair dismissal, but these were rejected by the employment tribunal. The tribunal decision was upheld by the Employment Appeal Tribunal (EAT). 

On the case reaching the Court of Appeal, the main issue was whether or not a "double jeopardy" rule for disciplinary proceedings applies in unfair dismissal cases. In other words, is there a general rule that fresh disciplinary proceedings cannot be opened when an employee has already been disciplined and, if not, in what circumstances can an employer subject an employee to fresh disciplinary proceedings when he or she has already been disciplined?

The Court of Appeal held that there is no "double jeopardy" rule in relation to disciplinary proceedings. It drew a distinction between disciplinary hearings and judicial proceedings (and some forms of arbitration). In judicial proceedings, it is rare for the parties to be able to reopen matters and parties are bound by the decision, save on appeal. This is a rigorous rule (known as "res judicata") with few exceptions. Disciplinary procedures operated by an employer, even when they are contractual, are not the same as judicial proceedings. 

The Court of Appeal went on to find that the related doctrine of "abuse of process" could not operate here. However, the Court of Appeal said that it did not really matter whether or not the abuse of process doctrine applies in this cases like this. An employment tribunal considering whether or not a dismissal is fair will have to ask itself, as this tribunal did, whether or not it was fair to institute the second set of disciplinary proceedings. This is essentially the same question as whether or not it is an abuse of process to reopen the matter. While it would be for the employee to show abuse of process, the onus in unfair dismissal cases is on the employer to establish that the dismissal is fair, so the unfair dismissal test is, if anything, more favourable to the employee. 

Additional resources

• R (on the application of Shoesmith) v Ofsted and others [2011] IRLR 679 CA In this case, the Court of Appeal held that the summary dismissal of Sharon Shoesmith, during the fallout from the death of "Baby P", was unlawful. In finding that she was entitled to a decision on her judicial review application, the Court held that her alternative employment tribunal remedy was not "equally convenient and effective". 
• Disciplinary procedure Use this model procedure to set out your organisation's disciplinary process. 
• Line manager briefing on employee misconduct This line manager briefing covers the topic of employee conduct and aims to provide guidance on the effective management of employees whose conduct at work is unsatisfactory. 

Case transcript of Christou and another v London Borough of Haringey (on the BAILII website)

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Equality Act 2010 does not protect against post-employment victimisation, says EAT

Rowstock and another v Jessemey and another EAT/0112/12

age discrimination | Equality Act 2010 | post employment-victimisation

The Employment Appeal Tribunal (EAT) has held that the Equality Act 2010 cannot be interpreted to cover post-employment victimisation. 

Mr Jessemey brought a claim for victimisation under the Equality Act 2010 in relation to actions taken by his employer after he had lodged his tribunal claim for, among other things, age discrimination. The employer had provided an agency with an unfavourable reference. Mr Jessemey believed that the reference, which stated that the employer was "in a current industrial tribunal dispute" with him, gave him a poor reference because of the employment tribunal proceedings that he had initiated. 

In Jessemey v Rowstock and another ET/2700838/11 and ET/2701156/11, the employment tribunal concluded that it did not have jurisdiction under the Equality Act 2010 to hear Mr Jessemey's claim for victimisation in respect of the employer's actions after the end of the employment relationship. The employment tribunal noted that it could not consider Mr Jessemey's claim for victimisation because of the way in which the Equality Act 2010 was drafted. Section 108 provides that it is unlawful to discriminate against or harass anyone in a relationship that has ended. However, by virtue of s.108(7), the employer's conduct after the end of the claimant's employment cannot contravene s.108 insofar as it amounts to victimisation. Mr Jessemey appealed to the EAT. 

The EAT noted that there is a need for employment tribunals to take a consistent approach. The EAT highlighted the race discrimination case Taiwo v Olaigbe and another ET/2389629/11, in which the employment tribunal held that Ms Taiwo's claim for post-employment victimisation should be allowed to proceed. In that case, the employment tribunal concluded that the exclusion of post-employment victimisation in the Equality Act 2010 was clearly a drafting error and the Government had intended the status quo to be maintained when it merged equal opportunities legislation. It read the Equality Act 2010 to add the words "current and/or former employment" into the legislation. 

The EAT accepted that the history of post-victimisation claims from Coote v Granada Hospitality Ltd [1998] IRLR 656 ECJ to the introduction of the Equality Act 2010 demonstrates that it is "highly unlikely" that the Government intended to legislate away redress for this type of claim. 

However, the EAT concluded that any attempts by tribunals and courts to add additional wording into the Equality Act 2010 would represent an "incomplete recasting" of the Equality Act 2010 and could create unintended consequences. In cases like this, it is not the place of tribunals and courts to make available a remedy that the words used by Parliament have simply stated shall not be available, even when the absence of a remedy is through error or inadvertence. 

The EAT gave Mr Jessemey permission to appeal, given that s.108(7) is of considerable public importance and there is no Court of Appeal authority on this point. 

Additional resources

• Liveflo: Provide a reference on a former or current employee Use this workflow on receiving a request for a reference for a former employee from a prospective employer. 
• Policy on giving references Use this model policy to provide a procedure to follow where a reference request is received in respect of a former or current employee. 
• Letter responding to a reference request explaining that the employer operates a policy of not providing references Use this model letter to write to a former or current employee's prospective employer explaining the reasons for a refusal to provide a reference. 

Case transcript of Rowstock and another v Jessemey and another (Microsoft Word format, 87K) (on the EAT website)

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Advocate General suggests that TUPE law can allow transferor's pay agreement to survive transfer

Alemo-Herron and others v Parkwood Leisure Ltd Case C-426/11 ECJ

transfer of undertakings | collective agreements | pay increase after transfer

The Advocate General has taken the view that the TUPE Regulations can be given a "dynamic" interpretation, suggesting that UK law can permit the survival after transfer of a pay increase negotiated under a collective agreement signed by the transferor before the transfer. 

The employees were transferred from the London Borough of Lewisham to CCL Ltd. In 2004, they were TUPE transferred to Parkwood Leisure Ltd. Under their contracts of employment with Lewisham, they were paid in accordance with collective agreements negotiated from time to time by the National Joint Council for Local Government Services (NJC). After the first transfer, CCL increased the transferred employees' pay in line with the NJC pay settlements between 2002 and March 2004. However, Parkwood, which did not and could not participate in the collective negotiations, did not make pay awards reflecting the agreed NJC increases. The employees complained to an employment tribunal that Parkwood had made unauthorised deductions from their wages. They argued that TUPE protected their terms and conditions of employment on transfer to CCL, and thereafter to Parkwood. Parkwood contended that it was not obliged to increase the transferred employees' pay in accordance with the relevant collective agreements negotiated "from time to time". 

The main issue in the case, which went to the UK Supreme Court, is whether or not the European Court of Justice (ECJ) decision in Werhof v Freeway Traffic Systems GMBH & Co KG [2006] IRLR 400 ECJ means that art.3(3) of the Acquired Rights Directive (2001/23/EC) does not bind the transferee to any collective agreement made after the transfer and that reg.4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) does not indicate any intention to provide employees with this greater protection. 

The Supreme Court referred to the ECJ the question of whether or not the circumstances of this case warrant giving a "dynamic" interpretation to reg.4 of the TUPE Regulations to allow the UK's domestic legislation to be more generous than the EU law. The Supreme Court asked the ECJ whether or not Werhof, brought in circumstances quite different from those in Parkwood, should automatically override UK law. 

The Advocate General went through the key differences in Werhof and concluded that the case did not make a general ruling to the effect that it is incompatible with the Directive to preserve the effect of "dynamic" clauses referring to future collective agreements. European Union law does not preclude national legislation that requires the transferee to accept the existing and future terms and conditions agreed by a collective bargaining body, provided that the requirement is not unconditional and irreversible (which is an issue for the national court to assess). 

The Advocate General pointed out that the TUPE Regulations allow dynamic clauses referring to collective agreements to transfer fully in the event of the transfer of an undertaking. The transfer of the clause means that the transferee, in this case Parkwood, would be bound by terms and conditions that are agreed, now and in the future, by the NJC. By operation of a term expressly included in the contract of employment, UK law permits the employees of public undertakings that are contracted out to private undertakings to preserve the present and future terms and conditions agreed by the NJC. 

Additional resources

• Get more information on TUPE issues in the XpertHR FAQs section, which answers the following questions:
  • Can the transferee change the contracts of the incoming employees following a TUPE transfer, to harmonise them with those of its existing employees?
  • Can an employer harmonise the contracts of TUPE transferred employees with those of its existing workforce where the changes will be beneficial to them?
• How to carry out a due diligence exercise Deal with due diligence exercises the right way with our "how to" guide. 
• Transfer of undertakings (TUPE): employment tribunal decisions These cases examine various issues arising in employment tribunals under the TUPE Regulations. 

Case transcript of Alemo-Herron and others v Parkwood Leisure Ltd (on the BAILII website)

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Religious discrimination: colleague's enquiry using expletive about Pope story did not constitute harassment

Heafield v Times Newspaper Ltd EAT/1305/12

religious discrimination | harassment | bad language

The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that the context of a remark is important when assessing whether or not it constituted harassment. 

The claimant, Mr Heafield, a practising Roman Catholic, worked as a sub-editor on the Times newspaper. The Times was due to run a story on 12 March 2011 concerning allegations that the Pope had protected a paedophile priest before he became Pope. This story was referred to in the newsroom as "the Pope". Close to the deadline on 11 March 2011, Mr Wilson, a senior sub-editor, shouted across the newsroom to colleagues to enquire about progress on the story on the Pope. Mr Wilson shouted twice: "Can anyone tell me what's happening to the fucking Pope?" Mr Heafield, who did not complain at the time, later complained informally to the chief night editor, Mr Pearson, who was unsure of how to deal with the complaint. Mr Pearson asked for advice from a colleague, who told him that he was not worried about what Mr Wilson had said and not to take it too seriously. Mr Pearson, whose opinion was that "these things tended to sort themselves out if left alone", took no further action. 

Mr Heafield brought claims in the employment tribunal for religion or belief discrimination, including a claim for harassment in relation to Mr Wilson's question about the Pope. The tribunal examined carefully the context in which Mr Wilson's words were spoken and accepted that there was unwanted conduct because Mr Heafield was genuinely upset by the words used by Mr Wilson. However, the tribunal could find no evidence that the purpose of the words was to violate Mr Heafield's dignity. Mr Wilson was simply enquiring about a story and had happened to swear because he was under pressure. The tribunal held that, even if there was no intention to violate Mr Heafield's dignity, the words could not reasonably be said to have had that effect. The words used were a comment of the type envisaged in Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 EAT. In that case, the EAT had stressed that a claimant's dignity is not necessarily violated by things said or done that are "trivial or transitory", particularly if it should have been clear that any offence was unintended. The tribunal concluded that it was unreasonable to consider a mere enquiry after a piece of work as insulting a religion, even if that enquiry was shouted and an expletive used. 

Mr Heafield appealed the tribunal decision to the EAT. In dismissing the appeal, the EAT agreed with the tribunal that it was unreasonable for Mr Heafield to feel that Mr Wilson's words had the effect of violating his dignity or creating an adverse environment. The EAT commented that, in an ideal world, Mr Wilson should not have used an expletive but that people occasionally use bad language thoughtlessly and that a reasonable person would have understood that and made allowance for it.  The EAT agreed with the tribunal's application of Dhaliwal, which was confirmed in Grant v HM Land Registry and Equality and Human Rights Commission [2011] IRLR 748 CA, where the Court of Appeal held that the context in which a remark is given is always highly material when assessing the effect of the remark. The EAT concluded that the tribunal was unarguably right to find that the conduct in question did not have the purpose or effect of violating Mr Heafield's dignity or creating an adverse environment for him. The tribunal was correct to treat Mr Wilson's purpose as relevant to determine this issue. 

Additional resources

• Line manager briefing on bullying and harassment This line manager briefing covers the topic of bullying and harassment and aims to provide guidance on what managers should do to reduce the likelihood of incidents of bullying and harassment at work and deal effectively with any complaints of bullying or harassment that may arise. 
• Equal opportunities and dignity at work policy Use this model policy as part of the company's staff handbook or as a standalone document if there is no handbook. Larger employers may wish to use XpertHR's more detailed separate equal opportunities and dignity at work policies. 
• Warby v Wunda Group plc EAT/0434/11 In this case, the EAT 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. 

Case transcript of Heafield v Times Newspaper Ltd (Microsoft Word format, 60K) (on the EAT website)

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Government's unpaid jobseeker schemes unlawful, but not human rights breach

R (on the application of Reilly and another) v Secretary of State for Work and Pensions [2013] EWCA Civ 66 CA

human rights | forced or compulsory labour | jobseeker's allowance

The Court of Appeal has endorsed the thinking behind government schemes in which individuals are given unpaid placements as a condition of continuing to receive jobseeker's allowance, but found that two schemes were unlawful because the legislation under which they were introduced did not comply with the Jobseekers Act 1995. 

Ms Reilly, a graduate looking for work and claiming jobseeker's allowance, was told that she was suitable for "training" under the sector-based work academy scheme ("SBWA scheme"), which would last for up to six weeks and be unpaid. According to Ms Reilly, she was told that she risked losing her jobseeker's allowance, or having it reduced, if she did not take part. After a week of training she was placed for work at a Poundland store, but was not paid. 

Mr Wilson, an HGV driver looking for work, was told that, to continue to receive jobseeker's allowance, he would have to take part in the Community Action Programme ("CAP"). He was told that he would be required to work for 30 hours per week for 26 weeks or until he found employment of 16 hours per week or more. Mr Wilson refused to take part in the scheme. His attitude was that he was not prepared to work for free, particularly for such a long period of time. 

Ms Reilly and Mr Wilson challenged the validity of the Government requiring them to work for no pay as a condition for continuing to receive jobseeker's allowance. 

The case proceeded to the Court of Appeal after the High Court ruled that the schemes were lawful (although accepted that there were flaws in Ms Reilly's and Mr Wilson's treatment). In the Court of Appeal, Ms Reilly and Mr Wilson argued that:

• the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011/917), under which the SBWA scheme and CAP were created, had gone beyond the Government's powers in the Jobseekers Act 1995; and
• requiring them to work for no pay to receive jobseeker's allowance was a breach of art.4 of the European Convention on Human Rights (which covers the prohibition of slavery and forced labour). 

The Court of Appeal held that the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 had gone beyond the Government's powers in the Jobseekers Act 1995. Under the wording of s.17A of the Act, any regulations under the Act must contain schemes "of a prescribed description". The Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 were unlawful because they failed to comply with s.17A by not imposing "requirements" and sanctions for failure to comply with those requirements. 

However, the Court of Appeal went on to endorse back-to-work schemes, and find that Ms Reilly's and Mr Wilson's human rights had not been breached. It understood the policy of imposing requirements on individuals receiving a substantial weekly sum, potentially payable for life and accepted that they should be required to participate in activities that could improve their prospects of obtaining paid employment. There is an important public interest in getting people back to work, as well as major savings in not having to pay benefits such as jobseeker's allowance. 

In rejecting the human rights argument, the Court of Appeal compared this case to Van der Mussele v Belgium [1983] ECHR 13. In that case, the European Court of Human Rights (ECHR) found that there had been no breach of art.4 of the European Convention on Human Rights where pupil lawyers were required to undertake pro bono work to complete their pupillages. The ECHR held that there could be a breach "if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession that the service could not be treated as having been voluntarily accepted beforehand". 

Additional resources

• R (on the application of Reilly and another) v Secretary of State for Work and Pensions [2012] EWHC 2292 (Admin) HC Read the earlier High Court decision that two government schemes in which individuals who are on jobseeker's allowance are given unpaid placements are lawful and not a breach of participants' human rights. 
• Work experience and internship survey 2011: a question of pay Four employers in 10 offering work experience for students and graduates do not normally pay them a wage, according to XpertHR's survey. 
• How to manage internships The XpertHR "how to" section provides guidance for employers on the practicalities of running internships, including whether or not interns have the right to be paid the national minimum wage. 

Case transcript of R (on the application of Reilly and another) v Secretary of State for Work and Pensions (PDF format, 91K) (on the UK Judiciary website)

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EAT holds age-related severance payments not discriminatory

Lockwood v Department for Work and Pensions and another EAT/0094/12

direct age discrimination | justification | voluntary redundancy schemes

The Employment Appeal Tribunal (EAT) has held that a voluntary redundancy scheme that provided different severance payments for two different age groups of employees was not age discriminatory because the differential treatment was justified. 

The claimant, Miss Lockwood, was employed by the Department for Work and Pensions (DWP) as an administrative officer. In 2007, her position was declared redundant and the DWP announced a voluntary redundancy scheme that operated across the civil service. Miss Lockwood applied for voluntary redundancy under the scheme and, as a 26-year-old with almost eight years' service, was entitled to a severance payment of £10,849.04. However, had Miss Lockwood been over the age of 35, she would have been entitled to a payment of £17,690.58. 

Miss Lockwood brought a claim in the employment tribunal submitting that the disparity in severance payments amounted to direct age discrimination which, unlike other forms of direct discrimination, can be justified. The tribunal dismissed the claims because: 

• there were material differences between Miss Lockwood's age group (35 or under) and the comparator group relied on (over 35) and the two were not truly comparable; and/or
• if, contrary to the first finding, the over-35 group was truly comparable, the DWP had objectively justified the less favourable treatment of Miss Lockwood. 

Miss Lockwood appealed the tribunal decision to the EAT. 

The EAT referred to the case of Barry v Midland Bank plc [1999] IRLR 581 HL, acknowledging that the question in relation to the comparator point is whether or not the difference between Miss Lockwood and her comparator, ie age, is material for the purpose in hand. The EAT held that the tribunal was correct in deciding that the purpose of the different payments was to reflect the comparative difficulty of loss of employment suffered by older workers, for example finding another job and family commitments, when compared with those in the younger age group. 

The EAT applied the case of Seldon v Clarkson Wright & Jakes (a partnership) [2012] IRLR 590 SC and held that the tribunal was entitled to conclude that the DWP adopted proportionate means to achieve the legitimate aim of producing a proportionate financial cushion for workers until alternative employment is found, when balanced against the disparate treatment of younger workers. 

Additional resources

• XpertHR's FAQs section answers the following questions on age discrimination: 
• Can direct age discrimination be justified?
• Is it lawful for employers to discriminate in favour of a person of a particular age or persons in a particular age group?
• Are long-service awards incompatible with the Equality Act 2010?
• Line manager briefing on age discrimination This line manager briefing provides a general overview of age discrimination legislation, focusing on areas that are likely to be of direct relevance to line managers. 
• The Age discrimination section of the XpertHR employment law manual explains the law on age discrimination. 

Case transcript of Lockwood v Department of Work and Pensions and another (Microsoft Word format, 48.5K) (on the EAT website)

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Criminal record checks: "spent" convictions law breaches European Convention on Human Rights

R (on the application of T) v Chief Constable of Greater Manchester and others [2013] EWCA Civ 25 CA

human rights | criminal records | spent convictions

The Court of Appeal has held that the system for the disclosure of individuals' criminal records to employers breaches the European Convention on Human Rights. 

The Police Act 1997 allows employers to make criminal record checks, typically in advance of recruiting a job applicant to see if he or she is suitable for the job. The Rehabilitation of Offenders Act 1974 provides that criminal convictions, cautions, warnings and reprimands in respect of certain offences are deemed to be "spent" after specified periods of time. Once the conviction is spent, the person is treated as if he or she had never committed the offence and it does not need to be disclosed to a prospective employer. 

However, the Rehabilitation of Offenders Act 1974 provides that some sentences never become spent, including sentences of imprisonment, youth custody or detention in a young offender institution for a term exceeding 30 months. 

In addition, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) sets out some types of employment (particularly, those involving contact with children and vulnerable adults) in which it is lawful for the employer to ask about spent convictions and to reject a person for employment on the ground of a spent conviction. 

Three individuals challenged the rules on criminal record checks and spent convictions, on the basis that they are contrary to the right to respect for private life under art.8 of the European Convention on Human Rights:

• "T" received police warnings after he stole two bicycles when he was 11 years old. In 2008, when he was 17, an enhanced criminal record check revealed the police warnings to a local football club at which he was seeking a part-time job. 
• In 2001, "JB" (in her early 40s at the time) was caught leaving a Superdrug store with a packet of false nails for which she had not paid. She accepted a police caution. In 2009, she applied for vacancies with an employer in the care sector, but a criminal record check revealed the police caution and she was told that this made her unsuitable to work with vulnerable people. 
• In 2003, "AW" took part in a carjacking with her boyfriend. She was 16. As the driver attempted to drive away, her boyfriend stabbed him many times in the face and chest. Her concurrent sentences were five years' detention for manslaughter and four years' detention for robbery. She wants to serve in the army, but her conviction will never be spent under the current rules. 

Taking T as a test case, the Court of Appeal accepted that the interference with T's rights under art.8 has:

• the general aim of protecting employers and, in particular, children and vulnerable adults who are in their care; and
• the particular aim of enabling employers to make an assessment as to whether or not an individual is suitable for a particular kind of work. 

However, the Court of Appeal held that the disclosure scheme is disproportionate to that legitimate aim. While offences that are so insignificant that they are not even recorded on the police national computer are not disclosable, offences recorded on the police national computer are wide-ranging and not limited to crimes in which the sentence is imprisonment. The Court of Appeal did not consider this to be a proportionate filtering scheme in the context of art.8 of the European Convention on Human Rights. 

The Court of Appeal agreed with the fundamental objection to the scheme: it does not control the disclosure of information by reference to its relevance to employers when assessing the suitability of an individual for a particular kind of work. The relevance to the employer depends on the seriousness of the offence and the nature of the work that the individual wishes to do, but also the age of the offender at the time of the offence and the time that has elapsed since the offence was committed. 

The Court of Appeal made a declaration that T's and JB's human rights had been breached. The Court of Appeal noted that T's case involved the disclosure of sensitive information that he wished to keep private. His warning had been administered in private when he was a child of 11. The Court of Appeal said that the only material difference between T's and JB's circumstances was that JB was an adult at the time of her offence. Apart from the difference in age, all T's arguments apply with equal force to JB. JB's offence was trivial and committed eight years before she applied for a post working with vulnerable people. 

However, the Court of Appeal rejected AW's case. She committed a very serious offence for which she received five years' detention. She would undoubtedly have received a longer sentence if she had been older. It is not disproportionate for Parliament to take the view that some offences are so serious that they should never be regarded as spent. 

The Court of Appeal stopped short of suggesting how the criminal records checking system could be reformed, saying that would be a decision for Parliament. 

Additional resources

• The XpertHR FAQs section answers these frequently asked questions:
• Are there any circumstances in which an employer has the right to refuse to employ someone with a spent conviction?
• Can a candidate be rejected on the basis of an unspent conviction? 
• Can an employer refuse to employ a candidate with a spent conviction? 
• Will a job applicant have any redress if an employer refuses employment on the basis of a spent conviction? 
• The XpertHR quick reference section has guidance on:
• Rehabilitation periods
• Criminal record checks 
• Jobs where it is lawful to ask for details of spent convictions
• Jobs where it is lawful to ask for details of spent convictions (Scotland) 

Case transcript of R (on the application of T) v Chief Constable of Greater Manchester and others (on the BAILII website)

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Worker on zero-hours contract placed on short-time working can have holiday pay reduced

Heimann and another v Kaiser GmbH [2013] IRLR 48 ECJ

annual leave | holiday pay | short-time working | zero-hours contract

The European Court of Justice (ECJ) has confirmed that the holiday pay of a worker on a zero-hours contract placed on short-time working can be calculated on a pro rata basis. 

A German company dismissed Mr Heimann and Mr Toltschin when it ran into financial difficulties. However, a social plan agreed between the company and its works council meant that they were placed on "zero-hours short-time working" contracts for one year. They were not required to work and the company did not have to pay them a salary. They received an allowance (similar to UK guarantee payments) from the German Government. Mr Heimann and Mr Toltschin claimed in the German Labour Court that they were entitled to holiday pay during this period. 

The German court asked the ECJ whether or not EU law precludes national legislation or practice, such as a social plan agreed between an undertaking and its works council, under which paid annual leave is reduced in proportion to workers' reduced working time during a period of financial difficulties for the undertaking. 

The ECJ drew a distinction between a worker placed on short-time working in the context of a social plan and a worker who is unable to work as a result of illness. While the latter is entitled to paid annual leave in the same way as a worker in active employment, the former is not subject to physical or psychological restraints caused by illness. The ECJ found that the workers in this case are comparable to part-time workers and their holiday pay should be calculated pro rata to the work done in the holiday year. 

The ECJ concluded that the paid annual leave of a worker on short-time working can be reduced in proportion to the reduction in working time. 

Additional resources

• Zero-hours contract clause Use this model contract clause as a guide when preparing a zero-hours contract. Zero-hours contracts are used by employers to cope with varying demands for staff, whereby an employer has no obligation to offer an individual work, but when it does, he or she is required to accept the offer. 
• Letter seeking agreement to a lay-off or short-time working Use this model letter to seek an employee's express agreement to being laid off or put on short-time working, where there is no contractual power to do this. 
• Line manager briefing on part-time workers This line manager briefing explains the law applicable to part-time workers and provides practical guidance on how to manage them. 

Case transcript of Heimann and another v Kaiser GmbH (on the ECJ website)

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EAT revisits definition of "establishment" for collective redundancy consultation

Renfrewshire Council v Educational Institute of Scotland [2013] IRLR 76 EAT

redundancy | collective consultation | meaning of "establishment"

The Employment Appeal Tribunal (EAT) has provided a reminder of how "establishment" should be defined for the purposes of consulting collectively on redundancies under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. 

This case involves an appeal against a preliminary ruling by the employment tribunal in a claim brought by teachers that their employer had failed in its duty to consult collectively with them on redundancies. The preliminary issue for the tribunal was whether or not, for the purposes of triggering the duty to consult collectively under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992, the employer was proposed to make redundant 20 or more employees at one "establishment". 

The employment tribunal had to decide whether an "establishment" in this case was:

• an individual school;
• all the secondary and primary schools in Renfrewshire; or
• the education and leisure service of Renfrewshire, to which no particular location was ascribed. 

The teachers succeeded at a preliminary hearing in convincing the employment judge that the employer's education and leisure service department was the relevant unit. 

In overturning the employment tribunal decision, the EAT made a number of general observations about how "establishment" should be defined under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. The EAT noted that the tribunal had approached the case by treating the school "in the abstract". The EAT had real concerns about any decision dealing with what should be essentially the practical matter of consulting in specific circumstances that is reached without identifying the precise units to which the council claims the employees were assigned. 

The EAT stressed the following points arising from domestic legislation:

• While there is no statutory definition of "establishment", it is likely in many, if not most, circumstances to be less than the whole undertaking of the employer concerned. If this was not the case, there would be no need to engage the concept of "establishment" at all. It would be sufficient for the statute to omit the words "at one establishment" from s.188 if it was intended that the headcount should be performed across the whole of the employer's workforce. 
• Parliament did not provide for a right to consultation in the event of large-scale redundancies generally. However desirable that may be, there is no right unless the impact of such redundancies on individual establishments within the employer's organisation meets the numerical threshold under s.188. 
• "Establishment" implies a physical presence. Although the word can be used in an organisational sense (as in "the establishment of the company"), it does not conventionally have an organisational thrust. 
• In light of Rockfon A/S v Specialarbejderforbunet i Danmark, acting for Nielsen and others [1996] IRLR 168 ECJ, it has become accepted wisdom that the same definition of "establishment" applies to both s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and art.1(1)(a)(i) of the Collective Redundancies Directive (98/59/EC). 

Applying these principles to the present case, the reasons for the EAT overturning the tribunal decision included the following:

• The inclusion of a mobility clause in the teachers' contracts of employment, which in practice had never been enforced, was not determinative of the employees being part of a larger unit. There were limits on where the teachers could be moved, particularly with teachers transferable to a new location only if it was "deemed to be reasonable". 
• The emphasis given by the employment judge was not to the place where teachers did their work, but rather to the place from which many aspects of their employment were controlled. Any employer having distinct establishments will inevitably have a degree of central control but, where an establishment is less than the whole undertaking of which it is part, there must still be sufficient links between it and other establishments forming parts of the undertaking for it to be recognised as a part of a larger whole. 
• The employment tribunal concentrated too much on the respective powers on overall organisational matters of, on the one hand, the employer (through its education and leisure service) and, on the other hand, a school. The approach should be employee- not employer-focused. The two central questions are: is the postulated unit capable of being an establishment and, if so, is the employee assigned to it? 

The EAT remitted the case to the employment tribunal to make the "simple and stark" choice as to whether or not it was the school or the education and leisure service to which the teachers were in fact assigned to perform their duties, rather than concentrating too closely on whether or not the employer could appoint, dismiss and control staff. 

Additional resources

• United States of America v Nolan [2012] IRLR 1020 ECJ The European Court of Justice (ECJ) decided that it does not have jurisdiction to hear the reference from the Court of Appeal seeking clarification on when the obligation to consult on collective redundancies is triggered. 
• University of Stirling v University and College Union [2012] IRLR 266 EAT The Employment Appeal Tribunal has held that, where a dismissal is because of the normal expiry of a fixed-term contract, the dismissal does not count for the purposes of collective redundancy consultation, because one of the reasons for dismissal will be "related to the individual concerned". 
• Usdaw and others v WW Realisation 1 Ltd (in liquidation) ET/3201156/10 and others In this case, the employment tribunal awarded 24,000 Woolworths employees 60 days' pay for the company's failure to consult collectively on their redundancies. However, around 3,000 staff who worked in Woolworths stores that had fewer than 20 employees missed out on protective awards. 

Case transcript of Renfrewshire Council v Educational Institute of Scotland (on the BAILII website)

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Supreme Court remits holiday pay case brought by British Airways pilots to employment tribunal

British Airways plc v Williams and others [2012] IRLR 1014 SC

holiday pay | basic pay | flying allowances

The Supreme Court has remitted to the employment tribunal the case brought by British Airways pilots in relation to the inclusion of flying allowances in the calculation of their holiday pay, following the results of the reference to the European Court of Justice (ECJ) on whether or not "normal remuneration" during a period of annual leave should include allowances on top of basic pay. 

British Airways pilots received allowances for the amount of "flying time" and the amount of time that they spent away from their base airport. The allowances included:

• a "flying pay supplement" (FPS), paid at £10 per flying hour; and
• a "time away from base allowance" (TAFB), paid at £2.73 per hour. 

However, the pilots received only basic pay, without the additional allowances, during annual leave. The pilots claimed that British Airways was in breach of reg.4 of the Civil Aviation (Working Time) Regulations 2004 (SI 2004/756). The Supreme Court referred to the ECJ the question of whether holiday pay should correspond precisely with, or be broadly comparable to, the worker's "normal" pay and what period should be used to make the comparison. 

The ECJ held that any aspect of pay that is intrinsically linked to the performance of the tasks that the worker is required to carry out and in respect of which a monetary amount is provided has to be included in the calculation of the worker's total remuneration. This means that, in the case of airline pilots, an allowance for the time spent flying must be taken into account for the purposes of calculating the amount to which the worker is entitled during annual leave. 

The ECJ contrasted aspects of pay that are intrinsically linked to the performance of a task with the components of the worker's total remuneration that are intended exclusively to cover occasional or ancillary costs arising at the time of performance of the tasks that the worker is required to carry out. The ECJ gave the example of costs connected with the time that pilots have to spend away from the base, which do not need to be taken into account in the calculation of the payment to be made during annual leave. 

The ECJ concluded that it is for the national court to assess the intrinsic link between the various components that make up the total remuneration of the worker and the performance of the tasks that he or she is required to carry out. 

On the case returning to the Supreme Court, the pilots argued that their claims should be remitted to the employment tribunal for assessment, and that their remuneration on leave should include basic pay, the FPS and 18% (the taxable percentage) of the TAFB. British Airways submitted that the Civil Aviation (Working Time) Regulations 2004 are not detailed enough to give effect to the Civil Aviation Directive (2000/79/EC) and the requirement for an "average over a reference period which is judged to be representative" requires a detailed legislative scheme that cannot be supplied by an employment tribunal. 

The Supreme Court stressed that, because British Airways is not an "emanation of the state", the terms of the Civil Aviation Directive could be invoked against the company only if the Directive has been effectively implemented in the UK. The Supreme Court concluded that, given that the wording of reg.4 of the Civil Aviation (Working Time) Regulations 2004 simply repeats the wording of art.7 of the Civil Aviation Directive, the same principles must govern the interpretation of both. The Supreme Court highlighted that, because the UK legislators did not provide a detailed scheme in the Civil Aviation (Working Time) Regulations 2004 for calculating holiday pay (which might have risked being over-prescriptive), the choice of reference period is, in the first instance, for British Airways to make. This is a choice to be made by British Airways within the parameters of what can reasonably be "judged to be representative". British Airways cannot complain if a court or tribunal takes its own view of what best represents a representative period in an individual case. 

The Supreme Court rejected British Airways' argument that reg.18(1) of the Civil Aviation (Working Time) Regulations 2004 only contemplates complaints based on a refusal to permit a worker to take paid annual leave, not complaints about the level of payment for such leave. Even though the Regulations do not expressly address complaints relating to the payment of annual leave, a complaint is in fact permitted by reg.18(1) of the Civil Aviation (Working Time) Regulations 2004 in respect of a refusal by an employer to permit the exercise of any right enjoyed by the worker under reg.4. Compensation can be awarded under reg.18(4). 

Finally, the Supreme Court considered what proportion (if any) of the TAFB should to be included in paid annual leave, bearing in mind that the ECJ said that sums intended exclusively to cover costs should be excluded. The Supreme Court did not have the material before it to determine the real basis for the payment of TAFB and British Airways' genuine intention would need to be considered by the employment tribunal. The Supreme Court remitted the issues relating to TAFB to the tribunal. 

Additional resources

Review the history of this case as it passed up the UK appeal courts and went all the way to the ECJ:

• British Airways plc v Williams and others [2009] IRLR 491 CA The Court of Appeal held that British Airways was not in breach of statutory holiday pay requirements when it calculated pilots' paid annual leave by reference to their basic salary rather than what they would expect to earn when flying allowances were added. 
• British Airways plc v Williams and others [2010] IRLR 541 SC 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. The issue arises in a claim by pilots that British Airways breached the statutory holiday pay requirements when it calculated pilots' paid annual leave by reference to their basic salary rather than what they would expect to earn when flying allowances were added. 
• Williams and others v British Airways plc Case C-155/10 ECJ The ECJ considered whether or not "normal remuneration" during a period of annual leave should include allowances on top of basic pay, in the context of a dispute over how the holiday pay of British Airways pilots who are paid flying allowances as well as basic pay should be calculated. 

Case transcript of British Airways plc v Williams and others (PDF format, 131K) (on the Supreme Court website)

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Cases on appeal

Usdaw and others v WW Realisation 1 Ltd (in liquidation)
United States of America v Nolan
University of Stirling v University and College Union
Devon Primary Care Trust v Readman
Key2Law (Surrey) LLP v De'Antiquis
Spaceright Europe Ltd v Baillavoine and another
Dumfries and Galloway Council v North and others
Begraj v Heer Manak Solicitors
British Airways plc v Mak and others
Kulikaoskas v Macduff Shellfish and another
Roffey v United Kingdom
RMT v United Kingdom
Parkwood Leisure Ltd v Alemo-Herron and others

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Usdaw and others v WW Realisation 1 Ltd (in liquidation)

redundancy | collective consultation | protective award

In this case, the employment tribunal awarded 24,000 Woolworths employees 60 days' pay for the company's failure to consult collectively on their redundancies. However, around 3,000 staff who worked in Woolworths stores that had fewer than 20 employees missed out on protective awards, a result that is being appealed.

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United States of America v Nolan

collective redundancies | closure of workplace | when consultation obligation arises

The European Court of Justice has decided, in a case about a US army base's consultation obligations on collective redundancies, that it does not have jurisdiction to hear the reference from the Court of Appeal. The Court of Appeal, to which the case now returns, was seeking clarification on when the obligation to consult on collective redundancies is triggered.

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University of Stirling v University and College Union

fixed-term contracts | redundancy | collective consultation

The Court of Appeal is to consider the controversial EAT decision that, where a dismissal is because of the normal expiry of a fixed-term contract, the dismissal does not count for the purposes of collective redundancy consultation. The case concerns four employees who were employed on fixed-term contracts, for different reasons, by the University of Stirling. Although some of the employees' fixed-term engagements had been extended or renewed, all of them were eventually dismissed when these engagements came to an end. The University and College Union alleged that the university was in breach of its collective redundancy consultation obligations in respect of the four employees.

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Devon Primary Care Trust v Readman

redundancy | suitable alternative employment | unreasonable refusal to accept offer

Mrs Readman, who was made redundant from her position of community modern matron, rejected an offer of alternative employment as a modern matron in a small community hospital because she did not want to work in a hospital setting. The EAT agreed that the offer of modern matron constituted suitable alternative employment. However, it overturned the employment tribunal decision that Mrs Readman's rejection of the role was unreasonable, stating that the tribunal had failed to consider whether or not it was unreasonable for "this employee" to refuse the offer and "whether the reason she gave...was sound and justifiable". The EAT went on to find that Mrs Readman's desire not to work in a hospital setting constituted a sound and justifiable reason for declining the offer. The case now proceeds to the Court of Appeal.

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Key2Law (Surrey) LLP v De'Antiquis

transfer of undertakings | insolvency | administration

Permission to appeal to the Supreme Court has been given in this case. The appeal is against the Court of Appeal decision that a transfer from a company in administration does not lead to an exemption from automatic employee transfer under reg.8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

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Spaceright Europe Ltd v Baillavoine and another

transfer of undertakings | unfair dismissal | reason connected with the transfer

Permission to appeal to the Supreme Court has been given in this case. The appeal is against the Court of Appeal decision 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.

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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 is hearing an appeal.

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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. In February 2013, the case collapsed when the employment judge excused herself after police officers visited her over 30 days into proceedings and handed over information that she felt biased her view of the case.

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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 is hearing British Airways' 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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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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Alemo-Herron and others v Parkwood Leisure Ltd

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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