Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
January 2013

A somewhat belated Happy New Year and welcome to our first newsletter of 2013.

The year has got off to a busy start with the usual raft of proposals and preparations in advance of the introduction of new rules and procedures in April. The Government has announced plans to remove the "gold plating" from the TUPE rules (i.e. going beyond what the European Directive requires) with particular reference to service provision changes and procedural aspects. We are also preparing for the introduction of fees for employment tribunal claims (about which more next month) and there has been the victory of Nadia Eweida in the European Court of Human Rights, allowing her to wear a visible religious symbol (a cross) at work, somewhat tempered by the failure of Shirley Chaplin (on very similar facts) and two other claimants, all within the same judgment. I will be looking at the judgment and, in particular, the practical effect for employers next month, along with the proposed cap on unfair dismissal compensation, revised "fit note" guidance for GPs in conjunction with changes to sickness reporting and proposals for further reforms for agency workers.

Meanwhile, this month's reports cover the usual wide range of employment law issues, from a BNP member driving a minibus with mainly Asian passengers to gaps between employment and whether continuity is preserved and two reports concerning the use of Facebook both at work and at home. There is also an interesting decision concerning whether a Christian can be required to work on Sundays. Finally, I've taken a brief look at John McCririck's much heralded but perhaps slightly tongue in cheek claim against Channel 4 alleging age discrimination law. How discrimination law can apparently come to the support of the most unlikely candidates!

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Regards
Martin Malone


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This month's news round-up:

1. political beliefs should be protected

Serco

In Redfearn v UK, the European Court of Human Rights (ECHR) has ruled on whether an employee who was an elected BNP councillor was entitled to protection from dismissal on the grounds of his political associations.

Arthur Redfearn was disabled and drove a bus for disabled people. He was rated as "first class employee" by his Asian supervisor. He worked for Serco, which had a contract to drive schoolchildren and others for Bradford City Council. When he was elected, the Council decided to dismiss him because they were concerned that his continued presence could be a health and safety risk if it provoked attacks on vehicles and/or could result in the Company losing the contract. He had not got the necessary qualifying service (one year, at that time) to make an unfair dismissal claim, so he made a claim for direct and indirect race discrimination, which failed in the Court of Appeal; there was no direct discrimination and any indirect discrimination was justified.

He then took his case to the ECHR, arguing that the lack of unfair dismissal protection meant that UK law did not adequately protect his rights of association and to freedom of expression. The ECHR upheld his claim: while the primary obligation is on the state (rather than private employers) to uphold human rights, it had an obligation to provide protection from dismissal on the grounds of belonging to a political party, including for those with less than a year’s service. Further, it commented that Article 11 protects not only “persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb”.

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2. short term and one off service provision changes

Liddell Coaches

Liddell's Coaches v Cook is another case involving a contract to bus children from one place to another (see also Redfearn -v- UK above). In this case the legal issue concerned the exclusion of service provision changes “other than in connection with a single specific event or task of short-term duration” from TUPE. When East Ayrshire council found out it had built a primary school over a mineshaft, it had to “decant” the children to other schools while it rebuilt it. To do that it entered into five one year contracts with Liddells, a bus company. Typically, contracts for school transport were of three to five years' duration. The next year more contracts were let to cover the final months of the rebuild. Liddells only won one of the five contracts, with the others going to other companies including three to a company called Abbey. Two drivers lost their jobs at Liddells, and the question was whether they had transferred to Abbey or not.

The Employment Appeal Tribunal upheld the decision of an Employment Tribunal that they had not. The contract was for a single specific event – to cover the period during which children had to be bussed elsewhere whilst the school was rebuilt. As Lady Smith pointed out, there was no need for that event also to be of short term duration to fall within the exception – there were two separate exceptions – one relating to single events and the other relating to events of short duration, notwithstanding Department of Business Innovation and Skills guidance suggesting the contrary. As it happened, in context, one year was a short term duration in any event.

The EAT judgment was very specific in its analysis of what constitute long term and short term activities:

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3. when training schemes don't add up

DWP

The Court of Appeal has considered the correct interpretation of provisions of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 which exclude work under certain training and work experience schemes from the calculation of a period of successive fixed terms.

The Regulations provide that once an employee has worked for four years on successive fixed term contracts, he or she becomes a permanent employee, and is entitled to a declaration to that effect – which is what Mrs Hudson sought in her claim against the Department of Work and Pensions. She had been taken on in 2006 by the DWP as part of the New Deal (an excluded scheme under the Regulations), to get work experience, an arrangement which was originally for a one year fixed term, but was twice extended by a further year. When it expired, she was kept on for another year, with arrangements being made to help her broaden her experience and improve her job prospects. She then secured a further job with the DWP in open competition, which was not, this time, a training role.

The question was whether, once the employee was in a non-excluded position, previous training posts could be counted towards her successive fixed terms, or whether the wording of the Regulations meant that they should be permanently left out of the reckoning. The majority of the Court of Appeal took the latter view, and as Lord Justice Elias pointed out, if that were not the meaning of the exclusion, it would have the unfair result of discouraging employers who offer exempt training scheme contracts from offering further contracts at the end of training. However, I take the view that the preferred analysis can be found in the dissenting judgment of Dame Janet Smith.

You might be forgiven for thinking that there is some skewed logic being applied in the majority decision, particularly with reference to the words "Prevention of Less Favourable Treatment" in the title of the Regulations. Is it really that much of a burden for employers that have, in one capacity or another, had someone working for them for four years, to have that contract effectively turned into a permanent contract? Is it really a disincentive to offers of training for employers to be concerned that after four years contracts might be treated as permanent? Is it really the function of the Court to offer what is, effectively a political and social analysis of what might not have been meant by an exclusion in Regulations?

Further, there are those (me included) who might see it as ironic that Regulation 18 provides that:

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4. settling TUPE claims

signature

Two recent cases have considered the effect of compromise agreements in TUPE cases where claims are made against more than one employer.

In Optimum Group Services Plc v Muir the Employment Appeal Tribunal looked at the situation in which an employee with a claim arising out of a TUPE transfer reached a settlement with one transferee (in a case where he was claiming against the transferor and a number of other potential transferees), while carrying on against other respondents. At the tribunal hearing he did not disclose the settlement, which the Employment Tribunal decided should not be deducted from the compensation he was awarded. It included a compensatory award of £23,668.84, after applying a 50% deduction to reflect the possibility he would have been made redundant in any event.

The Employment Appeal Tribunal overturned this decision, remarking that the compensatory award “should not over compensate the claimant. To do so could hardly be said to be just or equitable“. It ordered the claimant to disclose the £20,000 he had received under the compromise agreement, and ruled that it should be deducted from the figure he could recover for loss of earnings. It did, however make it clear that under Norton Tool Co Ltd v Tewson, notice pay would continue to fall outside the principle that there should be no double recovery of loss of earnings.

Lady Smith summarised the principles governing the award of compensation as follows:

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5. new employment with the same employer or continuous employment throughout?

Madhouse Store

Welton v Deluxe Retail (t/a Madhouse) is a case concerning continuity of employment for the purposes of calculating qualifying service for statutory employment rights. Under these provisions, any week when the employee’s relations with his or her employer are “governed by a contract of employment” will count towards continuous employment.

The case came about after Mr Welton was dismissed by Deluxe on 23 February 2010 – a Tuesday – when they closed their Sheffield shop down. The working week ran from Sunday to Saturday and therefore ended on Saturday 27 February 2010. At some point in the next working week, he was offered, and accepted, a job at another of Deluxe’s shops, in Blackpool. He started work on 8 March, i.e. more than a week after the previous working week ended.

Mr Welton resigned from his employment by letter dated 11 December 2010. Consequently, if employment at both stores was treated as continuous then he had sufficient service in order bring his claim. However, if the employment at the Blackpool store did not count as continuing from his employment at the Sheffield store then he did not. It was found at a preliminary hearing that he was not offered employment before the Sheffield store closed and the earliest date on which an offer to employ him in Blackpool was made was on 1 March.

The question was - did his contract begin when he actually started work, in which case there was a one-week break in continuity, or did it start at the earlier date when he accepted the offer? Mr Welton (representing himself in The Employment Appeal Tribunal) put up three arguments:

  1. 1. that he should be seen as being subject to a contract of employment during the first working week after the termination of his employment at Sheffield;
  2. 2. that, if not, his absence was due to a "temporary cessation of work" and, therefore, not a termination of employment; or
  3. 3. if not, there was an arrangement, albeit after the event, that his absence should not break contunuity of employment.

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6. can you be sacked for posting on your own Facebook page?

Facebook

There has been a notable increase in the number of employers (particularly those in the public sector for some reason) checking their employees' social media activity. Personal Facebook pages appear to have come in for considerable scrutiny and comments which might be construed as critical or otherwise potentially damaging to the employer have resulted in disciplinary cases and, on occasion, dismissals. Sometimes such action has resulted from contributing to someone else's page.

Against this background Smith v Trafford Housing Trust was one of the most newsworthy cases in late 2012, arising as it did from disciplinary action taken against an employee for posting comments on Facebook which were critical of the idea of gay marriages in church. The High Court found squarely that Trafford had been in breach of contract in demoting Mr Smith for those remarks, making it clear that there was no realistic chance of anyone reading those comments on his wall (which Mr Smith clearly treated as a personal social medium) as being in any way representative of his employer’s views.

The approach adopted by the High Court (Mr Smith elected to claim damages for breach of contract rather than compensation for unfair dismissal) is worthy of fairly detailed consideration, bearing in mind that Facebook is ubiquitous and its users are often straying into the publication of material which would never otherwise have seen the light of day.

On a Sunday morning Mr Smith read an article on the BBC News website entitled "Gay church 'marriages' set to get the go-ahead". He posted a link to the article on his Facebook wall and added the comment "an equality too far". Later that day one of his Facebook friends (who happened also to be a work colleague) replied "Does this mean that you don't approve?". After a brief further exchange Mr Smith posted "no not really, I don't understand why people who have no faith and don't believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn't impose its rules on places of faith and conscience".

As a result of his posts Mr Smith was suspended from work and faced disciplinary proceedings.

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7. using Facebook (and other social media) at work

Facebook at work

It was reported on 9 January that 11 staff in the Department for Work and Pensions have been sacked for using Facebook or Twitter at work. They are among 116 DWP employees to have faced disciplinary proceedings concerning their use of social media since January 2009. Of the remainder 34 received a final written warning, 35 a written warning and 36 a reprimand.

Most employers have a policy dealing with access to social media. For example, at Canter Levin & Berg we have a fairly detailed social media policy which assists our staff in getting the most out of social media for both their own and the Firm's benefit. There are also very clear guidelines about what should and should not be done and said and the important interaction with other key policies, such as that dealing with equality and diversity.

We also provide our Employment Solutions subscribers with a draft policy which can be tailored to suit their particular requirements. In practice we find that there is a wide range of views about what should or should not be tolerated, from a complete ban on all social media use during working hours to the positive encouragement of contributions and participation, particularly if the company has itself embraced social media as a way of engaging with clients, customers and enquirers.

Theo Paphitis, Ryman Chairman and TV "Dragon", is at one end of the spectrum:

The explosion in online activity has resulted in an orgy of self-indulgence and exhibitionism. Businesses might have been helped by the ability to promote themselves on the internet, but they have also been hit by the web's encouragement of time-wasting by their staff.

His view is particularly surprising, taking into account his own high profile in social media, as demonstrated by his promotion of "Small Business Sunday" on Twitter (#sbs).

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8. never on Sunday...well, maybe

Sunday church

Can a Christian care worker be required to work on Sundays? In February 2012 I reported the employment tribunal decision in the case of Celestine Mba v Merton Council. The decision went against Ms Mba and she was clearly aghast at what she regarded as intolerance against her own faith in what she considered to be a Christian country. It is therefore no surprise that the case subsequently found its way to the Employment Appeal Tribunal. According to the EAT judgment in Mba v the Mayor and Burgesses of the London Borough of Merton the answer can be "yes, there is a requirement to work on Sundays" in certain circumstances. Well, let's face it, you didn't expect an unequivocal decision one way or the other in the fields of employment and discrimination law did you?!

Ms Mba was a care worker in a children's home. Her contract provided that she could be required to work on Sundays but the employer accommodated her wish not to do so for two years. The Authority then began to rota her for Sunday working as a result of understaffing. She objected on the basis that the requirement discriminated against Christians, including her, on the ground of her religious belief and was therefore contrary to the protection provided by the Employment Equality (Religion or Belief) Regulations 2003 (now incorporated within the Equality Act 2010). Her refusal to work on Sundays led to a final written warning and she resigned on the basis that the employer had imposed a provision, criterion or practice (PCP) that discriminated against Christians.

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9. is John McCririck really in line for punitive damages?

mccririck

According to aggrieved former Channel 4 Racing pundit John McCririck, he is entitled to damages for age discrimination of £3m since he was not retained by new producers IMG Sports Media when they took over TV horse racing coverage from Highflyer Productions on 1 January 2013. He says he is being represented on a no win no fee basis by specialist employment and sports law solicitor Stephen Beverley of West End firm Cavendish Legal Group.

Following the BBC's abandonment of racing coverage, including the Derby, Royal Ascot and the Grand National, the new Channel 4 contract brings with it exclusive terrestrial coverage of racing on the Channel. Perhaps not surprisingly the team selected is drawn from both the prior BBC and C4 racing teams and among those not selected (in addition to Mr McCririck) were C4's Derek "Tommo" Thompson (62) and the BBC's Willie Carson (70).

72 year old McCririck issued a statement on 9 January:

"Channel 4 and production company IMG Sports Media were yesterday each served a letter before action for age discrimination. After 29 years with Channel 4 Racing, on a rolling annual contract, I have been sacked without any consultation or cogent explanation. I am 72.

"For loss of future earnings, unfair career damaging (sic), public humiliation, stress and mental anguish, I will be seeking £500,000. Ageism is illegal. For tens of thousands of employees it has become the feared scourge of our society.

"This litigation should prove to be a watershed."

So can Mr McCririck really claim punitive damages at all, let alone for £2.5m?

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