CLB Employment Solutionsprotecting your business
February 2010

We have tales to warm the cockles of your heart this month (I've never understood that expression by the way), with more rights for agency and temporary staff (and more of a headache for HR practitioners everywhere), a planned strike at BA and the introduction of lawyers in disciplinary proceedings.

From autumn 2011 agency workers and temps will have the right to equality of treatment with employees after 12 weeks. We warned everyone about this almost 12 months ago so at least we have another 18 to get ready for it. It is going to cause real compliance problems for our larger clients who rely on temporary workers to plug gaps left by departing employees or to cover surges in work. In future, these workers will have to be paid the same and receive the same benefits as normal employees. They will still be agency workers and therefore cannot sue for unfair dismissal but they must be treated equally and there are penalties for non-compliance in the form of compensation at Tribunal! The EC has forced the Government's hand on this one so it was inevitable. Anyone who needs advising on this problem now please contact your designated solicitor; otherwise, we will be in touch!

The BA saga rumbles on and on. It now seems likely that a strike will be held in late March given the return of the vote and the timing restrictions that then places on the union. It is one of the least popular strikes in recent times as the perception of many is that it is pointless and will bring a national flag carrier to its knees. I fail to understand the rationale behind industrial action in this case. BA is losing money; lots of money, and is proposing contractual changes to save money and secure its long term future (and with it thousands of jobs). Strike action will lose BA more money, shake confidence in the industry and the brand and jeopardise jobs. I cannot fathom why the union is not working with BA to implement changes and secure jobs.

The Court of Appeal has held that lawyers are allowed in disciplinary hearings if the hearing could have the effect of destroying the professional career of the employee. True to form, within a few days, we have been asked to represent a client in a disciplinary hearing. Employers should expect employees to argue more and more that lawyers ought to be present given the potentially terminal effect that the outcome could have on their chosen career. I consider it ironic beyond belief that the Government attempts to resolve disputes prior to Tribunal with the expansion of the involvement of ACAS on the one hand and then the courts allow lawyers in disciplinary hearings on the other. The legislature and the judiciary working in perfect opposition to each other.

We'll keep you up to date with any important developments between newsletters on our blog and if you have enquiries about the items featured or require any further information then don't hesitate to contact us on 0151 239 1000, freephone 08000 320974 or by e-mail to enquiries@clbemployment.com.

Regards
Will Burrows


This month's news:

1. Temps and agency workers

2. Legal representation at in-house disciplinary and grievance hearings

3. British Airways and the cabin crew strike

4. Trade Union member blacklist regulations

5. Yet more age discrimination developments

6. Carrying forward annual leave

7. and finally...




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January 2010
December 2009
November 2009
October 2009
September 2009

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1. Temps and agency workers

New regulations were made in January 2010 to implement in England, Wales and Scotland the 2008 European Council Directive 2008/104/EC on temporary agency work. Although the Agency Workers Regulations 2010 have now been made they will not come into force until 1 October 2011, a few weeks ahead of the 5 December 2011 deadline set by the EC Directive.

The regulations ensure that after 12 weeks in a given job agency supplied workers will be entitled to equal treatment with employees concerning basic working and employment conditions, including pay and holidays, as if they had been recruited directly by the hirer. In addition from the first day of an assignment agency workers will be entitled to information about vacancies in the hirer to give them the same opportunity as other workers to find permanent employment and to equal access to on-site facilities such as child care facilities.

In more detail, the main provisions are as follows:-

  • Regulation 5 - provides the fundamental right that the agency worker ("A") "shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer" - in connection with pay, the duration of working time, night work, rest periods, rest breaks and annual leave (Reg 6);
  • Regulation 7 - provides for a qualifying period, in the same role with the same hirer, of 12 weeks in order to be entitled to the right set out in Reg 5;
  • Regulation 10 - in connection with pay Regulation 5 will not apply where a permanent contract of employment is entered into between a temporary work agency and the agency worker. Certain conditions must be fulfilled regarding the form and terms of the permanent contract, and for a minimum amount of pay to be paid to the agency worker between assignments;
  • Regulation 14 - concerns liability, noting that agency workers are involved in a triangular relationship involving the temporary work agency and hirer. Crucially, the temporary work agency and hirer can both be liable to the extent that they are responsible for a breach of Reg 5, although in some circumstances the temporary work agency will not be held responsible;
  • Regulation 17 - sets out the right not to be unfairly dismissed or subjected to a detriment for a reason relating to these Regulations;
  • Regulation 18 - provides remedies for individuals, including compensation, by way of proceedings in employment tribunals.

The Prime Minister pledged to the TUC Congress in September 2009 that "when parliament returns our new legislative programme will include equal treatment for agency workers". This pledge has thus now been fulfilled.

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2. Legal representation at in-house disciplinary and grievance hearings

The normal rule is that an employee is entitled to be accompanied at a disciplinary hearing by a colleague or trade union official but not by a lawyer. In March 2009 the High Court made an exception. It held that if the substance of the matter could lead to the employee's name being added to the Protection of Children Act register of people deemed unsuitable to work with children then the right of the employee to a fair trial under the Human Rights Act can give him or her the right to be represented by a lawyer at the disciplinary hearing.

In the case in question disciplinary proceedings were started against a young part-time music assistant at X School as a result of alleged acts of abuse of trust with a 15 year old male pupil. After an internal disciplinary hearing in February 2008 he was dismissed and told that he would be reported to the appropriate authorities for possible inclusion in the POCA register of people deemed unsuitable to work with children. He appealed to the school's staff appeal committee and asked to be allowed to have legal representation. Permission for this was refused. The staff appeal proceedings were then stayed while he applied to the High Court for judicial review of the refusal.

The High Court found in his favour. The judge said that in this case

"the gravity of the particular allegations made against the Claimant ....... taken together with the very serious impact upon the Claimant's future working life ...... are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee".

The school appealed to the Court of Appeal but has lost (G, R (on the application of) v X School & Ors, Court of Appeal on 20th January 2010).

Agreeing with the High Court the Court of Appeal has ruled that the right to a fair trial provided by the Human Rights Act means that a claimant must be given the opportunity to be legally represented at a disciplinary/appeal hearing when that hearing is determinative of his civil right to practise a profession. This confirms a similar decision in a 2009 case involving a doctor who had been refused permission to be represented by lawyers at a disciplinary hearing (Kulkarni v Milton Keynes Hospital NHS Foundation Trust). So while the general rule remains that an employee is not normally entitled to be represented by a lawyer at a disciplinary hearing, it is now clear that this is not an absolute rule. If the allegations are sufficiently serious and if an adverse finding could have a serious effect on the employee's future employment prospects then legal representation should be allowed in spite of the general rule.

You can read more about this and add your comments here.

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3. British Airways and the cabin crew strike

Shortly before Christmas, the Unite trade union was effectively forced to call off a planned strike by cabin crew employed by British Airways. BA persuaded the High Court that the ballot for strike action had not complied with the strict rules for strike ballots.

BA obtained an interim injunction on 17 December 2009 and this had the effect of ensuring that the strike was called off.

The Union has, unsurprisingly, started over again and another strike ballot began on 29 January and closed on 22 February. We now know that the result is a mandate for strike action. No doubt Unison will make quite sure that this time it will conform precisely with the legal requirements for a valid ballot. BA, fearing the worst, is widely reported to be doing everything it can either to prevent the strike or to mitigate its effects. No doubt BA's lawyers will be scrutinising the details of the ballot to see whether further technical defects can be found, not least because it has been estimated that strike action will cost the Company £20-£25m per day. Amongst other things it is said that the company is proposing to withdraw non-contractual perks from any cabin crew who go on strike, including in particular withdrawing the perk of being able to buy heavily discounted air tickets for private use.

Can BA legally do this? Some interesting points will arise.

Under UK law the starting point is that an employee generally has no rights against an employer who has treated him less well than others because he took part in industrial action. The position is different if the detrimental treatment by the employer is sufficiently serious to amount to a fundamental breach of an important contractual term (such as the implied term of "trust and confidence") and is so serious that the employee would be entitled to resign and claim constructive dismissal. In that situation British law gives the employee clear rights but no doubt BA will take great care to ensure that any removal of perks falls well short of that hurdle.

However that is not the end of the story. Recent judgments of the European Court of Human Rights may lead to changes in UK law. As noted above detrimental action against strikers must be of a fundamentally serious nature if it is going to provide strikers with legally enforceable rights. The European Court of Human Rights has recently suggested that this is too tough a test. In a series of cases involving Turkey and Russia it has recently indicated that it thinks the law should move on and has ruled that if an employee is treated less well than others because he or she has taken, or intends to take, part in a strike or other industrial action he or she will have a legal right to sue their employer under the Convention.

British courts must interpret UK law in a way which will give effect to the Convention and if that is impossible can issue a "declaration of incompatibility" which is likely to lead to Parliament making appropriate changes to UK law. In some circumstances it is even possible for direct applications to be made to the European Court of Human Rights.

On the face of it, this could pose a problem for BA. However the problem may be less immediately serious for BA than the notes above may suggest. This is because the UK Human Rights Act 1998 allows direct application of the Convention only in respect of the activities of public authorities and persons carrying out functions of a public nature. It does not give private citizens or companies directly enforceable rights against each other. So while the judgments of the Court of Human Rights noted above may lead to changes in UK law which might in future prevent BA taking the sort of action they may be considering against strikers, BA may currently be immune from legal action if they go ahead with their "perk removing" plans - anyway this time. But even that is not certain. The UK Courts and tribunals have shown that they are prepared to go to great lengths, even inserting words into Acts of Parliament, to ensure that they fulfil their duty to interpret UK law in a way which will give effect to the Convention.

On 19 February it became 2-0 in favour of BA when High Court Judge Sir Christopher Holland dismissed Unite's bid to overturn the changes. Consequently, BA have the backing of the Court for the imposition of changes including freezing pay and cutting crew on long haul flights. the judge said that he took into account the airline's financial position, saying:

"If the crew [numbers] materially and fairly contribute to the preservation of BA and more importantly for present purposes job security and pay, how can I condemn the less than extreme changes as unreasonable?"

Unite remains defiant with a spokesman stating that the "regrettable" judgment made "absolutely no difference" to the substance of the dispute with BA.

You can read more from us about this here and here.

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4. Trade Union member blacklist regulations

The first of many construction workers' blacklist cases started at London Central employment tribunal on 20 January 2010. A Mr Mick Dooley claims his name was on a blacklist of construction industry trade union activists and that he lost his job as a bricklayer as a result. He is bringing a claim against Balfour Beatty. A considerable number of similar claims against other construction companies are going ahead in Manchester.

It seems that between April 2006 and February 2009 a variety of well known construction companies paid in total more than £450,000 for access to a blacklist of trade union member names. The list was run by an individual named Ian Kerr. The matter came to the attention of the Information Commissioner and resulted in prosecution of Mr Kerr who in May 2009 was fined £5,000 at Macclesfield magistrates court after pleading guilty to breaches of Data Protection law.

Now, following consultation, the government has published draft regulations to prohibit the compilation, use, sale or supply of blacklists containing details of trade union members and activists where the purpose is to discriminate against workers on grounds of trade union membership or trade union activities.

Rights will arise where a person is refused employment or subjected to a detriment for reasons relating to a blacklist, as well as where a person is unfairly dismissed for the same reason. The worker will be able to complain to an employment tribunal for compensation, or to a court for damages. Compensation is to be a minimum of £5,000. However, contrary to the government's original proposals, the draft Employment Relations Act 1999 (Blacklists) Regulations do not provide for an employer's use of information contained in an unlawful blacklist to be a criminal offence.

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5. Yet more age discrimination developments

In last month's newsletter we reported on proposals to abolish the state retirement age of 65. This view has been reinforced by a policy briefing paper published by the Equality and Human Rights Commission on 25 January which proposes total abolition and a statement to Parliament made by the Solicitor-General on 28 January in which it was indicated that the default retirement age is "probably past its sell-by date".

There is still a great deal of misunderstanding about the operation of the default retirement age under the current law, even among employment lawyers. In reality "default retirement age" is a misnomer because it is no longer enough to terminate employment merely because someone has reached age 65. Rather, there is a procedure to be followed which requires a "constructive dialogue" to take place between employer and employee before retirement is implemented. If an employer has a standard procedure which provides that employees will usually retire at age 65 there is still a requirement to follow the consultation process but, in general, retirements implemented within the standard procedure will not be unfair. However, it is vital to remember that you get one bite at the cherry. For example, it would be quite wrong to be selective in deciding to whom the "default" retirement age applies. It takes only a little thought to realise how vulnerable such an approach is to accusations of unfairness. Similarly, considerable caution has to be exercised when implementing retirements for those above 65. While retirement dismissals for those aged under 65 are in most circumstances automatically unfair, those in respect of employees over 65 remain potentially unfair. Take the example of an employee who has requested to work beyond 65 and the request has been granted. How will the employer be able to say that it has acted fairly in requiring retirement at, say, 66 or 67 if there has been no material change in employment circumstances so that the only relevant change is that the employee is a year or two older? - age discrimination on a plate! It is also worth bearing in mind that these claims can be horrendously expensive. The employee will no doubt argue that, given the chance, they would have gone on working for years and, of course, since we are dealing with discrimination there is no limit on the amount which can be awarded. Equally, other than in cases of sudden degeneration, it would be a brave employer who takes action to terminate employment based on incapacity if, only a year or so earlier, the employer and employee have agreed that the employee is fit to carry on working.

The removal of a "default retirement age" will certainly not make matters easier for employers but there are a few precautions which can be taken with a view to minimising risk. It is sensible to have a policy or at least a commentary in the staff handbook which deals with retirement in general terms. As long as the principles outlined are adhered to this will encourage consistency. Employers should also take the opportunity of consultation with a view to encouraging employee initiated retirement. Few employees want to carry on working indefinitely and there is nothing wrong with agreeing well in advance with an employee that he or she will continue working until aged, say, 67 or 68, or even older. If employment is terminated in accordance with an agreement made with the employee it is very unlikely to be considered unfair. Above all, employers must avoid knee-jerk decisions and attempts to use retirement as a cover for dismissal for other reasons. We frequently encounter situtations in which an instruction is issued at board level to retire Mr X or Mrs Y as part of a restructure or just to reduce wage costs (older and long-serving employees are generally higher paid). Any dismissals prompted by such an instruction are very likely to result in unfair dismissal as well as discrimination.

In the meantime it is worth considering that age discrimination is age discrimination even if the person subjected to the discrimination is not "old" and there is an age gap of only a few years as demonstrated in the recent case of Achim Beck reported in our blog.

Another example of the potential for confusion has been demonstrated by an MP's question in Parliament concerning whether a golf club in the questioner's constituency was right to propose to stop offering reduced rates for pensioners on the basis of its understanding of the Equality Bill. The Solicitor-General's reply was clear enough: "No...take it from me - it has got it wrong".

Meanwhile, according to a report in The Sun, the boss of a hairdressing salon in Newcastle has been told that she cannot advertise for a "junior stylist" because this would discriminate against the elderly. Michelle Hilling, 39, commented, "This country has gone completely mad".

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6. Carrying forward annual leave

In last September's newsletter we reported the European case of Pereda -v- Madrid Movilidad SA in which it was held that, in certain circumstances, holiday entitlement which was unused because the employee was on sick leave could be carried forward to the next holiday year. We also reported on the House of Lords decision in Stringer -v- HMRC in which it was held that holiday entitlement continues to accrue during periods of sickness absence.

It should therefore come as no surprise that the effect of these decisions has now worked its way into general employment law practice.

Updated guidance has been issued by Business Link and the issue has been considered by an employment tribunal in the case of Shah -v- First West Yorkshire Ltd. Mr Shah was due to take annual leave from 22 February to 21 March 2009. However, he broke his ankle and was off work from January until 18 April. He was paid holiday pay for the time when he was expected to have been on holiday rather than on sick leave. Mr Shah asked to reclaim his holiday entitlement but was told that the days had been "lost" because the new holiday year started on 31 March and it was Company policy that accrued but untaken holiday entitlement could not be carried forward.

Mr Shah took his complaint to the Leeds Employment Tribunal and won. According to Regulation 13(9) of the Working Time Directive (in its current but no doubt soon to be changed form):

Leave to which a worker is entitled under this regulation may be taken in instalments, but - (a) it may only be taken in the leave year in respect of which it is due, and (b) it may not be replaced by a payment in lieu except where the worker's employment is terminated.

Following the lead in Attridge Law LLP -v- Coleman the Employment Judge took the bold step of adding words to the Regulation in order to give effect to the underlying thrust of the legislation:

I therefore construe Regulation 13(9) by adding at the end of Regulation 13(9)(a) words to the effect:- "Save where a worker has been prevented by illness from taking a period of holiday leave, and returns from sick leave, covering that period of holiday leave, with insufficient time to take that holiday leave within the relevant leave year, in which case, they must be given the opportunity of taking that holiday leave in the following leave year"

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7. And finally...

Wordy lawyers

Although not an employment law case, the Court of Appeal judgment in Midgulf International Limited -v- Groupe Chimique Tunisien is notable for Lord Justice Toulson's vigorous criticism of lawyers who provide an excessive quantity of documents for a hearing. His Lordship's irritation is all too appearent when reading the following:

"I am afraid that the case is a grotesque example of a tendency to burden the court with documents of grossly disproportionate quantity and length. It is a practice which must stop. Far from assisting the court, it makes the work of the court infinitely harder. Hours had to be spent reading through Midgulf's voluminous skeleton arguments, and they were largely wasted hours. It will no doubt also have added greatly and unnecessarily to the costs of the appeal.

"...When [Midgulf's barrister] was asked to explain why the court had been burdened with so many documents and such long skeleton arguments, he explained that it was his intention to provide it with all the written materials which might bear on any point which might arise during the appeal and to provide a full statement of his argument in order that his oral argument could be brief. That may accord with the practice in other jurisdictions, where it is customary for appellate courts to limit the time allowed for oral argument to a short period, but it is emphatically not the proper practice in this jurisdiction.

Equality and Human Rights Commission keeps tribunals busy

It has come to light that in its short existence of two years the Equality and Human Rights Commission (EHRC) has (rather unfortunately) faced no less than 15 employment tribunal claims including allegations of sexism, racism and discrimination against pregnant women. The employment tribunal figures were released by Equalities Minister Maria Eagle following written questions tabled by a number of MPs.

In the meantime EHRC chair, Trevor Phillips, is to be investigated concerning accusations that he attempted to influence three MPs on the Joint Committee on Human Rights which has been conducting an inquiry into the EHRC. Mr Phillips faces allegations of contempt of both Houses of Parliament and as this item is being written, MPs are deciding what action should be taken.

It's all in the job title..

Lincolnshire County Council have recently advertised for the post of "Person Based Transition Facilitator". Earning between £20,858 and £22,958 the successful candidate will have an "exciting opportunity" to be involved in the enabling and delivery of "person centred planning" particularly with "young people in transition" to assist them to become "empowered through person centred planning and approaches". In the words of Michelle Hilling (see item 5 above)...

Dad's Army is racist

According to the Daily Mail David Davidson has been banned from selling his Dad's Army board game on eBay because it has been classed as "memorabilia associated with the Nazi Party". eBay described the game as "offensive material" that could "promote violence, hatred, racial or religious intolerance". It was produced in the 1970s when the corresponding programme was among the most-watched on British television. Notwithstanding Mr Davidson's protest, eBay have stuck to their guns, stating "'We will remove listings that bear the marks of organisations that promote hatred and racial intolerance and we are strict and unapologetic in adhering to this policy". Evidently they don't like it up 'em.

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