Happy Easter to all our subscribers and service users!
Whilst we are all utilising the four day Easter weekend to relax and recuperate, those of us wandering back to work with our heads filled with more relaxing matters will come across a host of April employment law changes upon our return.
Whether fit notes are indeed fit for purpose will rather depend upon whether or not GPs have had proper training on occupational health matters, health and safety legislation and employment law. From our initial investigations it appears that they have not. This will no doubt create a risky area for employers. Do you rely upon the information given in the notes? If the GP says that the employee is fit for some work, how do you organise this around their usual role? If the employee disagrees with the GP, do you discipline the employee if he does not attend work? The Government has charged onward into the valley with scarcely a care for those who have to deal with these matters on a day-to-day basis. There are a great deal of potential problems with which we will have to wrestle until the Government takes the logical step and creates a state run occupational health service.
The dispute that is cracking BA from side to side has thrown up an interesting point. BA is going to remove the non-contractual travel perks from striking workers. Union lawyers have been advising that, in doing so, whilst not breaching the employees' contracts or committing any offence under TULR or ERA, BA may well have offended the new regulations outlawing the making of blacklists for trade union activity. The legislation, heavily influenced by Unite, may not allow BA to make a list of striking employees for the purpose of removing their perks. We shall see how this turns out.
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 email@example.com.
This month's news:
1. Fit notes replace sickness notes in April
As from 6 April 2010 the various forms of workers' sick note (also known as a medical certificate or a doctor?s statement) are to be replaced by a single fitness for work medical certificate or "fit note".
The basic law is not changed. As now, from the eighth day of sickness absence employers will be able to require employees to provide formal medical evidence about their sickness to support a claim for Statutory Sick Pay (similar evidence is also required for claiming health related State benefits). Traditionally this has been done by the employee providing evidence in the form of a "sick note" from a doctor.
The general idea is that the new medical certificate will enable the doctor to say that a person may be fit for some work rather than simply that they are not ready to resume normal work.
The detail, including the wording of the new "fit note", is contained in regulations (the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010, SI 2010/137). The regulations set out a form of medical certificate headed "Statement of Fitness for Work for Social Security or Statutory Sick Pay". The main operative part, signed by the doctor and providing a space for notes, provides:
"I advise you that: you are not fit for work OR you may be fit for work taking account of the following advice: If available, and with your employer?s agreement, you may benefit from: a phased return to work; altered hours; amended duties / workplace adaptations".
The government hopes that the change, which follows last summer's extensive government consultation on "Reforming the Medical Statement", will save the economy £240m over the next ten years by aiding the recovery and return of sick workers and maintaining their skills.
Under the TUPE regulations, on acquisition of a business or undertaking employers automatically take on employees working in that business or undertaking. Their employment contracts "have effect after the transfer as if originally made between the person so employed and the [new employer]". As a general rule the new employer cannot change the terms of those contracts. So what happens when the employment contracts provide for salaries to be as negotiated from time to time by the original employer (or an employer's organisation) with a particular trade union?
The Court of Appeal has recently given a definitive answer to this question. A Mr Alemo-Herron and his fellow claimants worked for Lewisham LBC. Their terms and conditions of employment were subject to collective agreements made from time to time between Lewisham and the National Joint Council for Local Government Services (NJC). In 2002 their employment transferred under TUPE to a company called CCL and again in 2004 to Parkwood Leisure. CCL awarded pay increases in line with post-2002 NJC agreements and (without acknowledging any liability to do so) so did Parkwood in 2005. However, Parkwood refused to award pay increases in line with a 2007 agreement negotiated between Lewisham and the NJC.
Mr Alemo-Herron and other employees sued. When their case came before the EAT, they won. The EAT held that Parkwood was obliged to give effect to the pay increase agreed between Lewisham and the NJC in the 2007 collective agreement despite the fact that it was negotiated after the date of the transfer and despite the fact that Parkwood had nothing to do with the negotiations. The EAT reasoned that it was a contractual term that successive collective agreements would increase pay. There was no basis for discontinuing this practice, the TUPE regulations clearly applied and so the employees won.
Parkwood appealed to the Court of Appeal. The judges there took a different view. They considered that the relevant part of the TUPE regulations could be given either a "static" interpretation, as had been given by the EAT, or a "dynamic" interpretation. They favoured the latter. The Court of Appeal pointed out that in a similar case in 2006 the European Court of Justice had given a "dynamic" interpretation to the relevant part of the EC Acquired Rights Directive, pursuant to which the British TUPE regulations were made (Werhof v Freeway Traffic Services GmbH and Co KG ECJ 2006 in which the ECJ ruled that changes in a collective agreement between a worker's organisation and the transferor employer made more than 12 months after what in the UK would be called a TUPE transfer were effectively not covered by the Acquired Rights Directive).
Although it is possible for British regulations to "gold plate" EC rules and thus provide employees with more protections than the minimum required by EC directives, the Court of Appeal found there was nothing to require the TUPE regulations to be interpreted in such a way in this case. Accordingly it followed the lead of the European Court of Justice (which, incidentally, pursuant to the recent Lisbon Treaty, is now technically called the "Court of Justice of the European Communities"). Overruling previous decisions to the contrary the Court of Appeal thus held in effect that if an employee's employment is transferred to a new employer by reason of a TUPE transfer and his or her terms of employment incorporate terms of a collective agreement to which the new employer is not a party, the new employer does not need to give effect to subsequent pay increases agreed under that collective agreement.
So this time British employers, who traditionally worry about the impact of EU law on British employment law, will want to give at least two cheers for the European Court. It clearly paved the way for a decision by our Court of Appeal which employers will applaud.
Every so often there are stories in the newspapers about unscrupulous individuals taking advantage of British anti-discrimination law. A typical scam involves a person from an ethnic minority answering a job advertisement by sending in two identical applications - identical save that one application uses a very "British sounding" name while the other uses the applicant's real, "foreign sounding", name. If the employer responds favourably to one of the applications but not the other, for example by offering an interview to the British sounding applicant but not to the other, a threat of litigation follows.
It is said that sophisticated scamsters know enough about the tribunal rules of procedure to ensure that the threatened proceedings will be in a tribunal far away from the target employer's address. Unsurprisingly it may be easier as well as less embarrassing for the employer to pay a few hundred pounds to "settle out of court" than to fight the claim. Indeed there have been suggestions over the years that a few individuals have made significant sums of money by bringing bogus claims in this way. Of course an out of court settlement not only means that the employer avoids publicity; it also means that the serial scamster remains anonymous, making it less likely that he or she will be found out when trying the same sting on another unsuspecting employer.
There have been two recent examples of a variation on this theme. In one a job applicant took a case as far as the EAT. A beneficial result is that there is now a clear, high level, explanation of how and why such claims have no basis in law.
In the case in question a Ms Keane, an experienced accountant in her early 50s, apparently sought out and then applied for jobs advertised as suitable for recently qualified accountants. When she was not offered interviews she brought age discrimination claims against the agencies which advertised the jobs concerned (under the Employment Equality (Age) Regulations 2006). Some of the agencies settled "out of court". Others refused and she sued. She had received well over £20,000 from settlement deals by December 2009 when her case came before the EAT - to be fair it was not all profit as, she claimed, she had spent a considerable amount in costs.
Not surprisingly both an employment tribunal and the EAT dismissed her claim. Both the tribunal and the EAT held that such claims have no basis in law. An applicant who is not considered for a job in which he or she is not interested cannot in any ordinary sense of the word be said to have suffered a detriment ? or, to be more precise, cannot be said to have been unfavourably treated or put at a disadvantage. Therefore there will have been no unlawful discrimination.
Meanwhile, the Times reported on 7th February that in a separate case a Mr John Berry "is believed to have earned thousands of pounds by bombarding employers with claims of ageism simply because they used the words 'school leaver' or 'recent graduate' in job advertisements".
It is worth noting that in 2009 official research conducted for the DWP used the technique noted at the beginning of this note in an attempt to ascertain the extent to which people with African and Asian names face discrimination when they apply for jobs. Three fake identities - Nazia Mahmood, Mariam Namagembe and Alison Taylor - were given similar experience and qualifications. Interestingly, "Alison White" was offered almost twice as many job interviews as her two "aliases".
Employers should be alert to such scams. A solicitor's letter is generally all that is required to stop fraudulent job applicants in their tracks.
Over the last few months staff problems at British Airways have been, and continue to be, much in the news. The problems BA has been facing may be greater than those of smaller employers in terms of the money involved but otherwise there may be similarities given that employment law generally is not affected by the size of the employer (although there are significant exceptions to this). A brief rundown from a legal point of view of what has been happening may therefore be useful and of interest.
There have been a couple of recent cases suggesting a trend (no more than that) to the effect that parties to an employment tribunal case may sometimes be allowed "another go" if things have gone wrong as a result of negligence or other conduct of their advisers.
In the past it was unlikely that failure by an adviser to present a client's claim within the strict time limits allowed would be enough to persuade an employment tribunal that the client should be allowed to present the claim out of time. Courts would generally say it had been reasonably practicable for a claim to have been brought in time if the only reason for it being late was the fault of an adviser. On that basis an extension of time would generally be refused, leaving the hapless claimant to bring a separate negligence action against the adviser with all the resulting uncertainties, expense and time involved in doing that.
There was a well known case in 2005 in which the Court of Appeal tempered the strictness of this general practice by refusing to apply it willy nilly, especially where the adviser was not a lawyer. A Ms Williams-Ryan was allowed to proceed with a claim against Marks & Spencer even though it was presented out of time as a result of faulty advice from staff at a Citizens Advice Bureau.
It seems that the trend towards allowing a claimant to proceed with a claim which has been presented out of time because of the fault of an adviser is now extending to cases where the adviser is a lawyer. In January 2010, the EAT overruled an employment judge's decision to reject a claim presented by an experienced employment lawyer a few hours out of time. The EAT said that the employment judge had "..... failed to draw a distinction between [Mrs Benjamin-Cole's] position as client and the defaults of the person to whom she entrusted the litigation and relied on for advice" and allowed her to proceed with her claim even though the employment judge had rejected it.
In a separate EAT case in February 2010 an employment tribunal had dismissed a disability discrimination claim as a result of being misled on an important point by the claimant's barrister. The claimant, a Mr Marsden, instructed another barrister to appeal to the EAT. Having heard the full facts, the EAT revoked the dismissal of the claim and it can therefore now proceed notwithstanding the general rule that failings of a party's representatives, professional or otherwise, will not generally constitute a ground for review and notwithstanding that the claimant could have brought a claim against the first barrister.
None of this, of course, makes it sensible for a client to cut corners by instructing an inept lawyer but it does suggest a greater appreciation by judges of the practical difficulties which a client can face if let down by their adviser.
6. Equal Pay
Claims for equal pay by women who are doing the same work as men employed by the same employer (or work of equal value or which is rated as equivalent to the work of the men) are continuing in full spate. Although the amount involved in any individual case is generally not very large, overall these cases involve huge amounts of money. That is because they are often multiple claims brought by large numbers of low paid female staff employed by local authorities and because the law allows the claims to be back dated for up to six years. In addition "no win - no fee" lawyers will often encourage the women concerned to exercise legal rights of which they may otherwise have been unaware.
In two different cases in February 2010 the Court of Appeal and the EAT handed down judgments which confirm an important principle relevant in such cases. The cases in question involved female ancillary workers (such as cleaners) employed in the Court of Appeal case by Sheffield City Council and in the EAT case by Newcastle Upon Tyne NHS Hospitals Trust. In both cases the women claimed that they should receive amounts equal to bonuses paid to male comparators.
The point of principle is best explained by reference to the defence put forward by Newcastle Hospital. The Hospital pointed out that it was paying the going market rate to the cleaning ladies and that the reason it paid bonuses to the porters was that otherwise it would not have been able to recruit enough of them. Equal pay law is part of sex discrimination law and the Hospital claimed, essentially, that there was no sex discrimination in what it had done as it merely reflected rates of pay in the job market. On that basis it argued that it was entitled to the benefit of a defence provided by the Equal Pay Act 1970, generally referred to as the "genuine material factor other than sex" defence (the EAT disliked this "clumsy" expression and preferred a reference to the "employer's explanation for the pay differential complained of").
Both an employment tribunal and on appeal the EAT dismissed this argument. The factor relied on by the NHS trust employer was "tainted by sex" because it originated in an intention to match market rates which were depressed by factors peculiar to women. The EAT confirmed that ?where there are pay arrangements which on their face appear to reflect historical sexist assumptions about what jobs and rates of pay are appropriate for men and women, it will be a rare case in practice where the employer is able to establish that the pay structure is not sex tainted".
The Court of Appeal came to a similar decision in the Sheffield City Council case noted above. The Court of Appeal pointed out that if statistics show an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, the difference will be assumed to be sex discriminatory. The onus is then on the employer to prove that pay differences are based on objectively justified factors unrelated to sex.
Although that confirms a basic principle of general importance about the "genuine material factor other than sex" defence, it was not the end of either case. There was also another possible defence. Newcastle Hospital in the one case and Sheffield Council in the other could still defeat the women's claim if they could show that the pay differentials were "objectively justified", in other words if they could show that they were a "proportionate means to achieve a legitimate aim". In the EAT (Newcastle Hospital) case, an employment tribunal had already ruled on that point - the pay differential was not objectively justified and so it followed that it was unlawful. However in the Court of Appeal (Sheffield Council) case there had been no ruling on the justification point and so that case has been remitted back to the Employment Tribunal for a decision on that issue.
There have been many column inches in recent newspapers devoted to a 23 February 2010 proposal to change the EU Pregnant Workers' Directive to increase the minimum maternity leave entitlement of working mothers throughout the EU from 14 to 20 weeks. Some of the reporting can only be described as alarmist.
It may be useful to readers for the proposal to be put in perspective.
You don't need us to tell you that Andrew Rawnsley, an associate editor at the Observer newspaper, has written a book alleging that Gordon Brown has been bullying staff at No 10. Andrew Rawnsley has succeeded in getting huge publicity for his book ("The End of the Party", published on 1 March 2010) but this may be based more on his skill as a self-publicist than on any particularly serious allegation against Mr Brown. The most sensible comment on the furore may be one made by Tony Blair. When asked on the BBC World Service's World Today programme about the way prime ministers treated their staff he replied: "Well I think I know what you're referring to and I honestly have absolutely nothing to say about that at all."
That is not to say that bullying at work is anything other than a serious subject. It is. What may be interesting to readers of this employment law newsletter is whether conduct by Mr Brown or anyone else counts as "bullying" in a legal sense.
With the exception of the Protection from Harassment Act 1997 noted below there is no UK legislation which specifically protects those who may be suffering, or have suffered, from bullying or vindictive behaviour at work. The position generally depends on whether the "bullied" worker can claim that his or her "normal" legal rights have been infringed.
Thus to get legal protection or redress a person who considers that he or she has been bullied must generally look to parts of employment related law which may be relevant or to the general law. Often anti-discrimination law will be in point - but this requires the claimant to show that he or she has suffered a detriment by reason of age, race, sex or any other "protected characteristic" (to use a phrase which we will be hearing a lot more of if the Equality Bill currently before Parliament is enacted).
Also relevant will be human rights law and occasionally the Protection from Harassment Act 1997. Although primarily a criminal statute, that Act provides that conduct which amounts to harassment of another "may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question". Damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. To succeed in a claim there must be conduct (i) which occurs on at least two occasions; (ii) which is targeted at the claimant; (iii) which is calculated in an objective sense to cause alarm or distress; and (iv) which is objectively judged to be oppressive and unreasonable.
While civil claims under the Protection from Harassment Act are rare, as it happens there was such a case in February 2010. A Ms Rayment won damages against the Ministry of Defence in the High Court under the Act. She had been a volunteer member of the Territorial Army, later got a job working for the Honourable Artillery Company in City Road, London and then claimed she had been subjected to persistent, offensive, abusive and intimidating bullying and humiliating and insulting behaviour. The Judge in the High Court found there were faults on both sides. After awarding her just under £7,000, the judge (when considering whether to award costs) heard, perhaps to the embarassment of the Ministry of Defence, that Ms Rayment had turned down a pre-trial settlement offer of £60,000 plus £125,000 costs. Her success was thus something of a pyrrhic victory.
The message for employers and employees is that allegations of bullying need to be taken extremely seriously but that to give rights of legal redress there must be evidence of more than just office banter and/or generally an infringement of rights protected by anti-discrimination law.
As for human rights, a recent education law case has shown that establishing "inhuman and degrading" treatment is very difficult. Henry Webster was subjected to a horrific attack on school grounds when aged 15 and a claim for damages for negligence was brought against the Governors of Ridgeway Foundation School. There was also a claim under the Human Rights Act. The claim failed (although he was entitled to compensation in a separate claim using the Criminal Injuries Compensation Authority). Mr Justice Nicol described the human rights claim as hopeless. In order to succeed it would have been necessary to show that the Governors knew or ought reasonably to have known that he would be exposed to treatment that could be described as inhuman or degrading. Proof of that was always going to be extremely unlikely so the Governors were entitled to recover indemnity costs (i.e. effectively all their costs) in connection with the human rights claim and a payment on account of those costs of £250,000.
Positive discrimination and everyone's unhappy
German telecommunications giant Deutsche Telekom has decided to implement a policy of "positive" sex discrimination by introducing a quota system so that a third of upper and middle managers will be women by 2015. However, the proposal has not gone down well with either men or women, with a spokesman for the company stating:
"In Germany 60% of graduates are women and we are facing a serious shortage of talent. If we do not change the way that our company operates we will not have the right leaders for the future....It has been a very difficult decision and people in the company are not happy. Men are afraid and women - who have achieved their level of seniority without quotas - are angry."
According to a recent article in the Guardian, Forza AW, a meat supplier to Asda has advertised for workers who "must speak Polish". One British applicant was first asked whether he was Polish and then told "Actually, you have to be fluent because the health and safety training is all done in Polish."
Meanwhile a computer company in Bristol has caused consternation by advertising for a consultant on a £38,000 salary and preferably of Indian origin. The advert reads, ?"Minimum six years of experience in IT... The person should be a UK citizen with security clearance from the UK Government. Preferably of Indian origin."?
Liverpool lawyers facing discrimination claim
Far be it from us to indulge in any schadenfreude but we couldn't help noticing that law firm DLA Piper is currently facing a discrimination claim after Liverpool based partner Sarah Sweeney claims she was slapped on the bottom by a more senior partner before being sacked when she said she wanted to start a family. According to a report in the Daily Telegraph Ms Sweeney said there was the culture of an "old boys' club" at the firm's Liverpool office. She maintains that the office's managing partner, Philip Rooney, said that women who have children could not and should not work. Ms Sweeney and her husband commenced IVF treatment after he was diagnosed with testicular cancer and she was handed her notice when three months' pregnant. She told the tribunal that the fact she was a married woman of child-bearing age was "the major factor" when it came to deciding whether she should be kept on. Mr Rooney is alleged to have made his statement about women with children when at a department night out at Chester races in 1998.
Ms Sweeney also alleges that she was slapped on the bottom by Mr Rooney's manager, Paul Firth, when at a DLA function at Tate Liverpool. Mr Firth denies the allegation and also denies having said "you can't blame me for trying" when allegedly inviting Ms Sweeney to his room at the Hard Day's Night Hotel. According to a report in the Liverpool Daily Post, when cross-examined, Mr Firth said ?"I gave her my view about the quality of the hotel. The feelings on the hotel I had were mixed...I said it was worth a look."?
The hearing continues.
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