Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
June 2014

Welcome to our round up of employment law news in June

The latest figures on employment tribunal claims have shown a slight reduction in the number of claims in the second quarter following the introduction of employment tribunal fees. Claims dropped by 81% between January and March 2014 in comparison with a year earlier. This removes the notion that the previous quarter's figures were a blip and increases the chances of a successful challenge to the fees regime when Unison's appeal against last year's judicial review hearing takes place.

In the meantime there is a trend emerging of employees taking their claims to the county court where fees are much lower but the inconvenience and costs risks for employers are much higher.

Employers who delay in paying out tribunal awards are to face much tougher sanctions, as announced in The Small Business, Enterprise and Employment Bill. Enforcement officers will issue 28-day notices to defaulting employers. If they are still not paid a penalty notice will be issued requiring the additional payment of 50% of the outstanding amount, subject to minimum of £100 and a maximum of £5,000. The penalty will be haved if payment is made within 14 days.

There is yet another decision from the European Court concerning holiday pay. A German widow was held to be entitled to her husband's outstanding holiday pay notwithstanding that he died. The German court held, as one might expect, that the contract of employment and corresponding entitlements ended when the employee died but the European Court disagreed and directed that she should be paid for 140.5 days' untaken holiday

This month's reports include plans to abolish exclusivity in zero hours contracts, spent convictions and CRB checks, an important case concerning age discrimination and those who may influence the decision to dismiss, a warning that over 25% of employees may be planning flexible working applications and the highly contentious question of whether obesity is a disability.


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This month's news round-up:

1. Vince Cable announces end of exclusivity clauses in zero hours contracts

vince-cable

As I've mentioned in numerous recent posts, zero hours contracts have attracted a good deal of attention over the last few months, not least because they are in much more widespread use than many had thought.

Both the government and opposition have had them in their sights, not from the point of view of banning them (or at least not any more), but with a view to eliminating the abuses which are believed by many to accompany them.

One particularly iniquitous aspect of some existing contracts is the requirement to work exclusively for the employer, even though there is no guarantee that work will be provided. It is estimated that some 125,000 people are currently tied to such contracts. The government's conclusion on completion of its consultation is that this restriction will no longer be permitted.

Announcing the reform, Vince Cable said:

Zero hours contracts have a place in today's labour market. They offer valuable flexible working opportunities for students, older people and other people looking to top up their income and find work that suits their personal circumstances.

But it has become clear that some unscrupulous employers abuse the flexibility that these contracts offer to the detriment of their workers. Today (25 June 2014), we are legislating to clamp down on abuses to ensure people get a fair deal.

Last December (2013), I launched a consultation into this issue. Following overwhelming evidence we are now banning the use of exclusivity in zero hours contracts and committing to increase the availability of information for employees on these contracts. We will also work with unions and business to develop a best practice code of conduct aimed at employers who wish to use zero hours contracts as part of their workforce.

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2. golf club shenanigans can prove to be expensive - a very British scandal

golf

Golf club chit chat and generally bad behaviour has frequently resulted in employment tribunal claims. It has often been the case that sometimes well meaning but misguided committee members have caused a great deal of trouble by failing to apply correct employment practices.

Cases include Gorleston Golf Club, Nizels Golf Club and Irvine Ravenspark Golf Club, plus other local cases that we know about but can't report for confidentiality reasons.

Margaret_Chadwick

A good example of the level of "misunderstanding" that there can be emerged in the case of Chadwick v Aldeburgh Golf Club. Mrs Chadwick was assistant secretary of the club, located in Suffolk. For those who do not know Aldeburgh it is quintessentially British and renowned for its arts and music festival, founded by Sir Benjamin Britten. She was suspended after mentioning to a lady club captain that members had been gossiping about her and the club secretary, a Mr Bill Beckett. She also said that she had seen the lady captain, 73 year old Juliet Brereton, "trying to squeeze Mr Beckett's bottom". It was decided that this behaviour (reporting not bottom squeezing!) was unprofessional and that the remarks were unfounded. As a result Mrs Chadwick was suspended and removed from the club. Two months later she was dismissed for gross misconduct.

She commenced employment tribunal proceedings in which she claimed that she had been bullied by Mr Beckett within weeks of him arriving at the club. She maintained that she had an unblemished employment record for four years prior to his arrival and had received a 10% pay rise in 2011 in recognition of her work. It emerged in evidence that , at his previous club, Mr Beckett was referred to as "Ayatollah" because of his dictatorial manner.

Remarkably, when appealing a written warning Mrs Chadwick was told that she was not a victim of bullying "because there has been no physical violence towards you". The club captain, Steve Beaumont, noting Mr Beckett's "deep, loud and somewhat gruff voice" noted that it was "typically South African". He believed that his voice and attitude "may be forceful but this may be ascribed to his determination to get things done".

Unsurprisingly Employment Judge Robin Postle observed that the rejection of Mrs Chadwick's complaint displayed "amazing ignorance, naivety and total misunderstanding of bullying and harassment".

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3. minor and spent offences must no longer appear on CRB checks

Chris Grayling

R (on the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) is a decision of the Supreme Court concerning the disclosure of convictions.

Criminal record checks (commonly referred to as CRB checks) have been commonplace in some employment sectors for many years and for obviously good reasons. However, over the last few years their use has become much more widespread. According the latest available figures 2,981,958 checks were carried out in 2011 and it is likely that the number has increased in subsequent years (estimated 4 million in 2013). There has also been a great deal of concern expressed about the number of inaccurate records held - since 2003 over 19,500 challenges have been upheld.

Another area of concern is that historic offences might unfairly prejudice jobseekers and thereby undermine the objective of having spent convictions. For example, The Guardian reported the case of an otherwise exemplary A grade student who was prevented from training as a doctor at Imperial College because of a "spent" conviction. Majid Ahmed had served four months' community service when a minor following a conviction for burglary.

The Home Secretary and the Justice Secretary took the issue to the Supreme Court when it was held by the Court of Appeal that prospective employers did not need to be notified about spent convictions.

Under the Rehabilitation of Offenders Act 1974 if someone is asked about his or her criminal record there is no obligation to disclose spent convictions. Further, an employer must not make any decision prejudicial to the individual with reference to spent convictions. This also applies to cautions, warnings and reprimands (which are treated as spent as soon as they are given).

However there are exceptions to these general rules, particularly with reference to certain types of employment and professions. In these cases enhanced criminal record certificates can be obtained which include disclosure of every "relevant matter" on the Police National Computer, including spent convictions and cautions. Incidentally, there are similar concerns about the accuracy of data held on the PNC. 3509 people have been found to have inaccurate records in the four years to 2012, over the same period, 2918 had the record of the wrong person disclosed in response to a CRB enquiry and 3547 people had the wrong information recorded or passed on by the police at a local level.

In this case the Supreme Court considered "T" to whom two police warnings were issued in 2002 concerning the theft of two bicycles. The warnings were disclosed in 2008 when he applied for a part-time job with a football club and, again, in 2010 when he applied for a place on a sports studies course.

"JB" was 41 when she was issued with a caution in 2001 concerning the theft from a shop of a packet of false fingernails. In 2009, having completed a training course for employment in the care sector, the training organisation told her that it was unable to put her forward for employment when the caution came to light.

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4. the mental processes of decision influencers that can lead to age discrimination

canada-life

In Reynolds v CLFIS (UK) Limited Mr Justice Singh, sitting in the Employment Appeal Tribunal, considered the motivations of individuals, conscious or subconscious, that can lead to discrimination.

Dr Reynolds OBE was employed by Canada Life from 1968 to 1992 as a doctor and insurance expert and, latterly, as the Company's chief medical officer. In 1992 she was made redundant but continued working on a consultancy basis. However in 2010 the consultancy agreement was terminated by Canada Life. A Mr McMillan had made a presentation to Mr Ian Gilmour, the Company's most senior employee in the UK. As a result of the presentation Mr Gilmour decided that Dr Reynolds was not delivering the service required and could not remain in her post as chief medical officer. Following discussions between others including the HR manager it was decided that a clean break was required by dispensing with her services altogether.

Dr Reynolds believed that the decision was prompted by age discrimination. At the date of termination she was 73 years old and had worked for Canada Life for 42 years. At the resulting employment tribunal hearing all attention focused on the mindset of the person who took the decision to dismiss. The claim failed and Dr Reynolds appealed on the basis that analysis of the decision to dismiss should not have been confined only to the person who ostensibly took the decision.

On appeal it was acknowledged that the decision to terminate the contract "had been shaped and informed by the views of other persons, in particular a presentation given to the eventual decision-maker", Mr Gilmour. Accordingly it was necessary to consider the mental processes in the context of age bias not just of Mr Gilmour but also others in the organisation whose views might have had a significant influence on the decision.

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5. are you ready for this? over a quarter of all employees are planning to make flexible working applications

flexible-working

As I reported last month the right to request flexible working is extended to most employees with effect from 30 June 2014. According to a YouGov survey of over 2000 adults carried out for Croner 26% of UK workers plan to do so. However research by Timewise suggests that as many as two in five employees want to work fewer hours or remotely, in addition to the 25% of employees who already work part time (8.18 million currently work 30 or fewer hours per week). In the longer term 70% of employees say that they want to work flexibly at some point in the future.

There is a significant disparity in the availability of part time work between junior and senior posts. 43% of advertised jobs open to flexible working are junior or entry level whereas only 9% of leadership roles and 14% of directorship roles offer flexibility. One of the problems facing applicants for flexible working is that there is a common perception still held by managers that this demonstrates a lack of ambition or less commitment, particularly in SMEs.

This manifests itself in the concern expressed by applicants for flexible working. The Timewise survey revealed that 42% of people who need flexibility worry about when to ask about it in the recruitment process and 52% feel nervous or very nervous about doing so.

From the employers' perspective research conducted for Weber Shandwick revealed that 11% think that the changes will have a positive effect, 21% a negative effect and 64% think it will make no difference, while 4% don't know. However 9 in 10 employers say that they welcome questions about flexible working.

Significantly, 75% of employers say that they have had no training on how to deal with flexible working applications.

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6. is obesity a disability?

Obesity_soap

Under the Equality Act 2010 disability is a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on one's ability to carry out normal daily activities. According to government guidance "Substantial" is more than minor or trivial - e.g. it takes much longer than it usually would to complete a daily task like getting dressed, and "long-term" means 12 months or more - e.g. a breathing condition that develops as a result of a lung infection.

What is potentially a landmark case was heard by the European Court on 12 June and the decision when delivered could have ramifications that require significant adjustments to working arrangements. Danish child minder Karsten Kaltoft weighs 25 stone. He was sacked by his local authority because he could not perform his duties. As a result of his size he is unable to tie children's shoelaces.

Of course, the main dilemma here is whether the condition is regarded as self-inflicted or caused by, say, a genetic predisposition. Medical evidence in this regard (should it be treated as a distinction) is likely to prove to be very contentious. And what of conditions which might have been caused or contributed to by obesity, e.g. diabetes? In Walker v Sita (2013) the Employment Appeal Tribunal noted that 21.5 stone Mr Walker suffered from 16 medical conditions which were compounded by his obesity. The employment tribunal found that he was not disabled since there was not a physical or organic cause of his conditions other than his obesity. The EAT disagreed and held that he was disabled on the basis that his physical and mental impairments were genuine and their cause was irrelevant. However it was noted that obesity in itself did not render him disabled. If the European Court decision goes in favour of Mr Kaltoft such distinctions will no longer matter.

Changes that may have to be implemented include special seating, access to the workplace and the location of car parking places. Further, employees will not be able to be dismissed merely because they are morbidly obese.

In the UK 64% of adults are classed as overweight or obese, of which 23.1% are obese. The number of obese people has trebled in the last 25 years.

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