CLB Employment Solutionsprotecting your business
May 2010

Welcome to our special election newsletter. This edition focuses on the employment law related plans of the parties for the forthcoming Parliament. Whichever party you support, you'll be sure to find the information you require.

If we actually run through the manifestos of each main party, they are all remarkably similar. All agree on the expansion of equality legislation (although the Lib Dems suggest auditing all businesses with 100 plus staff rather than the 250 limit currently proposed) and the repeal of the retirement age (which is essential to raise tax revenues). The election has been fought on the ?jobs tax? issue and the parties remain divided on the issue of a rise in NI contributions. The Tories would repeal this rise upon being elected whilst the other two main parties would keep it; the caveat being that the Lib Dems would scrap it when they had the chance (and given that we need to make year on year savings of £80billion over the next three years it is unlikely that this point will come any time soon). The Tories wish to replace the Human Rights Act with a different Act of Parliament, however, given the current Act stems from the European Charter of Fundamental Rights (derived from the Convention on Human Rights and subsidiary European legislation), it is a little difficult to see how it would differ. Any changes would probably mean a basic interpretation of the Charter with provisos that would allow a more conservative (small c) interpretation of the law rather than the current liberal (small l) approach taken by the UK courts. I hope that they have good lawyers!

With not much to choose between the parties it is worth bearing in mind that making £80billion in savings over the next few years is going to hurt every employer in some way; so whoever you chose, you'll probably end up hating them by 2013!

No party has even come close to disclosing plans on where the cuts will fall, partly due to the issue being electoral suicide and partly due to the shameful failure of Labour to order a comprehensive spending review ? a political decision (and by that I mean a politically motivated decision designed to help win the election by not telling anyone how bad our finances actually are) that could have huge ramifications for Sterling and therefore our economy. Because of this we have no idea if the employment plans outlined in the manifestos have a chance of becoming law. We will just have to wait and see!

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 08000 320 974 or by e-mail to enquiries@clbemployment.com.

Regards
Will Burrows


This month's news:

1. Election 2010 and employment law

2. Equality Act 2010 (again!)

3. Religion and belief

4. Absence from work and the Icelandic volcano

5. Holidays and sickness

6. The Baby P case dismissal

7. Whistleblowing

8. Disability discrimination

9. and finally...




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1. Election 2010 and employment law

Here are some verbatim employment law related extracts from the election manifestos of the three main parties (see also the notes on the Equality Act below).

LABOUR:

  • Public sector pay: "a one per cent cap on basic pay uplifts for 2011-12 and 2012-13"; "Any government-controlled appointment involving a salary over £150,000 will require ministerial sign-off"; "tough reforms to public-sector pensions".
  • Minimum Wage: "A National Minimum Wage rising at least in line with average earnings, and a new £40-a-week Better Off in Work guarantee".
  • National Insurance: "one penny on National Insurance Contributions" (note: understood to mean 1p per £1 increase in all employer and employee contributions - one effect being to double employee NICs on higher rates of pay).
  • Equal Pay: "We will encourage employers to make greater use of pay reviews and equality checks to eliminate unfair pay gaps, including inequalities in pay between men and women".
  • Parental leave: "We will introduce a new Fathers? Month, four weeks of paid leave rather than the current two"; "... we will introduce more flexibility to the nine months? paid leave that mothers currently enjoy ? allowing them to share this entitlement with fathers after a minimum of six months" (note: already done - see the Additional Paternity Leave Regulations 2010, SI 2010/1055 in force from 6 April 2010 and reported in our April newsletter).
  • School leaving age: "raising the education and training leaving age to 18".
  • Retirement age: "we will now proceed to end default retirement at 65"; "we will enable people aged 60 and over to claim Working Tax Credit if they work at least 16 hours a week, rather than 30 hours as at present".
  • Flexible working: "By the end of the next Parliament we will ensure that the right to flexible working is extended for older people...."
  • Immigration: "There will be no unskilled migration from outside the EU...public procurement will in future give priority to local people. The points-based system will be used to control migration with limits for high skilled workers ....".
  • Human Rights Act: "We will not repeal or resile from it".

CONSERVATIVES:

  • Public sector pay: "freeze public sector pay for one year in 2011, excluding the one million lowest paid workers"; "cap public sector pensions above £50,000"; "require anyone paid more than the Prime Minister in the public sector to have their salary signed off by the Treasury"; "require public bodies to publish online the ... salaries and expenses of senior officials paid more than the lowest salary permissible in Pay Band 1 of the Senior Civil Service".
  • Minimum Wage: "we will keep the minimum wage"
  • National Insurance: "any new business will pay no Employers' National Insurance on the first ten employees it hires during its first year"; "We will ... raise the primary threshold for National Insurance by £24 a week and raise the Upper Earnings Limit by £29 a week; and raise the secondary threshold at which employers start paying National Insurance by £21 a week".
  • Equal Pay: "we will force equal pay audits on any company found to be discriminating on the basis of gender."
  • Parental leave: "We will introduce a new system of flexible parental leave which lets parents share maternity leave between them, while ensuring that parents on leave can stay in touch with their employer".
  • Retirement age: "We will look at how to abolish the default retirement age"; "We will reward those who have saved for their retirement by ending the effective obligation to buy an annuity at age 75."
  • Flexible working: "we will initially extend the right to request flexible working to every parent with a child under the age of 18"; "we will in the longer term, extend the right to request flexible working to all, but only in the light of experience and after full consultation";
  • Immigration: "an annual limit on the number of non-EU economic migrants admitted into the UK to live and work"; "...transitional controls as a matter of course in the future for all new EU Member States".
  • Working with vulnerable adults and children: "we will review the criminal records and ?vetting and barring? regime and scale it back to common sense levels".
  • Whistleblowing: "We will ensure that NHS staff are protected if they raise concerns about patient safety".
  • Human Rights Act.: "...we will replace the Human Rights Act with a UK Bill of Rights".
  • (Not in the manifesto:) TUPE: The Employment Lawyers Association Briefing Magazine of April 2010 quotes Lord Hunt, the Conservative shadow minister for business, as saying that "A conservative government would seek to rein in" the service provision changes part of the TUPE regulations where they go beyond "what is required" (presumably meaning 'required by the EC Acquired Rights Directive').

LIBERAL DEMOCRATS:

  • Public sector pay: "A cash limit on public sector pay rises of £400 for 2 years".
  • Minimum Wage: "Set the minimum wage at the same level for all workers over 16 (except for those on apprenticeships)".
  • National Insurance: "the increase in National Insurance Contributions is a damaging tax on jobs and an unfair tax on employees, so when resources allow we would seek to reverse it".
  • Equal Pay: "...fair pay audits for every company with over 100 employees to combat discrimination in pay, for example against women. We will also require all public companies to declare in full all remunerations of £200,000 per year or more".
  • Parental leave: "Give fathers the right to time off for ante-natal appointments. Allow parents to share the allocation of maternity and paternity leave between them in whatever way suits them best".
  • School leaving age: "Maintain the current school leaving age".
  • Retirement age: "Scrap compulsory retirement ages..."; "scrapping the rules that compel you to buy an annuity when you reach 75".
  • Flexible working: Proposals include "Extending the right to request flexible working to all employees".
  • Immigration: "Introduce a regional points-based system to ensure that migrants can work only where they are needed".
  • Job applicants and discrimination: "Requiring name-blind job application forms to reduce sex and race discrimination in employment, initially for every company with over 100 employees"; "Make it illegal for a Local Health Board to allow a doctor to work in the UK without passing robust language and competence tests".
  • Human Rights Act: "Ensure that everyone has the same protections under the law by protecting the Human Rights Act".

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2. Equality Act 2010 (again!)

As reported in last month's newsletter the Equality Bill received the Royal Assent on 8 April 2010 and became the Equality Act 2010

Most of the Act is expected to be brought into force in early October 2010. In that context it is worth noting what is likely to happen if the Conservative Party wins the General Election. In the final debate on the Bill in the House of Commons, on 6 April 2010, the Conservative Party spokesman and shadow minister, Mark Harper MP, said:

"..... the Conservative party has never opposed the Bill. We are very pleased that it is nearing the end of its progress and that it will get Royal Assent before the House is dissolved. The reason for that is because it consolidates nine Acts of Parliament, 100 pieces of secondary legislation and 2,500 pages of guidance, and because it has been welcomed by many organisations as broadly simplifying and making more straightforward the existing law. What we have said is that we do not agree with three parts of the Bill. If we form the Government after the next election, we will not bring those three requirements - socio-economic duty, the mistaken way in which the Government are tackling equal pay, and positive action .... - into force".

So it is clear that with relatively minor exceptions the Act is going to come into force regardless of which party wins the General Election.

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3. Religion and belief

There has been much, sometimes ill-informed, discussion in the Press and indeed the Church, about the way employment tribunals have recently been handling religious discrimination cases.

A host of senior Church figures, including the former Archbishop of Canterbury, Lord Carey, recently wrote a letter to the Daily Telegraph specifically about the case of a nurse, Shirley Chaplin, who has lost a religious discrimination claim against her employer, the Royal Devon and Exeter Hospital (see below). In an article in the Guardian about another cases involving the Relate charity (also see below) Lord Carey is reported as claiming that the judiciary is tipping the legal balance against believers in 'a deeply unedifying collision of human rights'. In his Easter sermon Dr Rowan Williams, the current Archbishop of Canterbury referred to "wooden-headed bureaucratic silliness combined with a well-meaning and completely misplaced anxiety about giving offence to non-Christians" as a reason for the "curious contemporary belief that Christians are both too unimportant for their convictions to be worth bothering with and too dangerous for them to be allowed to manifest those convictions".

However much (or little) one may approve of those sentiments, and in general terms there is no doubt much to be said for them, it is worth noting that the views they represent do not seem to be supported by the specific examples which gave rise to them. Relevant law is not as simple as those views might suggest. This does not of course mean that the law could not be improved (for example, the statutory duty on an employer to make "reasonable adjustments" to accommodate the needs of a disabled person might be extended to cover the reasonable needs of a person who has a particular religious belief) but it does suggest that, however eminent the source, polarised positions need to be very carefully considered before action is taken in accordance with them.

The Shirley Chaplin case involved a nurse who was not allowed to wear a crucifix attached to a necklace at work. She lost her religious discrimination claim at an employment tribunal. What is not obvious from most of the press coverage is that she was allowed to wear the crucifix at work save when carrying out clinical functions on the ward. Matrons at the hospital concluded that in that particular circumstance there was a danger of elderly and sometimes confused patients pulling on the crucifix and that accordingly there was a health and safety risk. Although the hospital had suggested that Nurse Chaplin could wear the crucifix under her shirt when carrying out clinical functions on the ward she rejected that and other potential compromises. The employment tribunal which heard her case considered that the hospital had acted reasonably. Bearing in mind that there is no Church requirement that a crucifix should be worn, let alone worn on the outside of clothing, it considered that any detriment she had suffered was relatively slight - and so any discrimination against her was "justified" and did not entitle her to compensation.

The other case noted above concerned a Christian relationship counsellor, Mr McFarlane employed by Relate Avon. He refused to provide psychosexual therapy to same sex couples because of his Christian beliefs. Relate Avon dismissed him. He was dismissed because his refusal was contrary to the terms on which he worked including a stated policy that a "therapist must be aware of his or her own prejudices and avoid discrimination, for example on grounds of religion, race, gender, age, beliefs, sexual orientation, disability. The therapist has a responsibility to be aware of his or her own issues of prejudice and stereotyping and particularly to consider ways in which this may be affecting the therapeutic relationship".

Mr McFarlane was not dismissed because of his religious views but because of his refusal to work in accordance with his employer's policy. This may sound like splitting hairs but in fact it is far from that. The law here has to quite subtle - if it were not all sorts of unpleasant activities, including some terrorist atrocities, might be held to be lawful on the basis that they were a manifestation of a religious belief. So the law provides that actions which are indirectly discriminatory (such as the dismissal of Mr MacFarlane or the refusal to allow Nurse Chaplin to wear a crucifix) will be lawful if justified - essentially meaning they will be lawful if they are "a proportionate means to achieve a legitimate purpose". That of course can provide scope for considerable discussion and argument and tribunals may not always come to the right answer. But over simplistic criticism of the law, which demands that in deciding whether an employee has suffered from unlawful religious discrimination at the hands of their employer a tribunal must look at the employer's reasons for treating the employee as he, she or it did rather than at the employee's reasons for acting as he or she did, faces the risk of being counter-productive.

You can read more about the Shirley Chaplin case on our blog.

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4. Absence from work and the Icelandic volcano

Met Office reports in early May say the Icelandic volcano with the difficult-to-pronounce name is still erupting (actually it seems that "Eyjafjallajokull" may be the name of the glacier above the volcano rather than the volcano itself). So it is probably not too late to consider some of the employment law implications.

These can best be divided into two parts, related respectively to those unable to get back to the UK from overseas and to those who are affected even though they personally are not abroad.

First, staff who are stranded abroad.

The basic position is that an employee is not entitled to be paid for time he is absent because of travel problems. However this, of course, is subject to the terms of his or her contract. Two particular points need to be borne in mind and specific advice should be taken where appropriate. The two points are (i) that the general rule is that it is unlawful for an employer to make any deduction from the wages of a worker employed by him unless the worker has agreed in writing to the deduction being made or it is a deduction required by law (such as PAYE); and (ii) that in respect of an employee who is absent abroad on work rather than holiday any refusal to pay in full not only wages but also additional expenses could in some cases arguably give the employee the right to resign and claim constructive unfair dismissal.

From a practical point of view, the best solution may be for the employer to come to a sensible agreement (by email or telephone) with a stranded employee, for example that some "stranded time" might be treated as counting towards paid holiday entitlement or coming to an agreement that lost time will be made up on returning home. It is relevant here to note that under the Working Time Regulations the basic rule is that an employer who requires an employee to take holiday at a particular time must give the employee notice which is at least twice as long as the amount of holiday to be taken.

Second, staff who are affected even though they personally are not abroad. This might be, for example, because they are required to do extra work to cover for a colleague who is stuck abroad or because they have to stay at home to look after a child or dependant as a result of schoolteachers or a carer being stranded abroad.

In respect of employees who are asked to do extra work, the Working Time Regulations are likely to be relevant as well as the terms of the individual's employment contract. Again advice should be taken, but in general terms, unless a worker has agreed to opt out of the "48 hours per week averaged over 17 weeks" maximum working hours limit, he or she has the statutory right not to be subjected to any detriment for refusing to do so. In respect of employees who cannot come into work because of child care responsibilities, note should be taken of the statutory rule that employees are entitled to a reasonable amount of unpaid time off work to deal with emergencies involving a dependant (as defined in Employment Rights Act 1996 s.57A).

Further, employers must remember that the Working Time Regulations provide a statutory right to rest breaks. In general workers are entitled to rest breaks of at least 20 minutes every 6 hours, plus 11 hours in every 24 hour period and at least 24 hours each week or 48 hours each fortnight.

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5. Holidays and sickness

In last month's newsletter, we drew attention to a pair of cases in which separate employment tribunals had applied recent decisions of the Court of Justice of the European Communities to hold (i) that if sickness and holiday coincide towards the end of a holiday year then the holiday can be carried forward to the next year and (ii) that an employee is entitled to holiday pay even though he is on long term sick leave.

In April there was another decision of the European Court concerning employees' rights to holiday pay. In this case a public sector worker in the Tirol moved from full to part time work. Under relevant Tirolean/Austrian law the worker either suffered a reduction in the right to paid annual leave accumulated but not taken while working full-time or could take the full leave with a reduced level of holiday pay. The European Court ruled that this is incompatible with EU law. The Court held that a reduction of working hours when moving from full-time to part-time employment cannot reduce the right to annual leave that the worker has accumulated during the period of full time employment.

For those who want to read the full judgment, it is available here: Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol (CJEC on 22nd April 2010).

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6. The Baby P case dismissal

Sharon Shoesmith was Director of Children and Young People's Services for the London Borough of Haringey. Following the death of Peter Connelly ("Baby P" - who was on the Borough's child protection register), and following the convictions of his mother and others for causing or allowing his death, the Secretary of State for Children, Schools and Families asked Ofsted to produce a report into the child safeguarding arrangements within Haringey. Following the report the Secretary of State appointed others in place of Ms Shoesmith and her deputy, with immediate effect.

Shortly afterwards, in December 2008, a panel of councillors of the Borough sitting at an internal hearing summarily dismissed her without compensation. Ms Shoesmith appealed but a second panel of councillors confirmed the decision of the first. Considerable media attention surrounded all these events.

Ms Shoesmith brought judicial review proceedings challenging the lawfulness of the Ofsted report, the directions of the Secretary of State and the decisions of the Borough. She alleged unfairness in the procedures adopted, breaches of the principles of natural justice and, in the case of the Secretary of State's decision, taking into account immaterial considerations (a petition). Due to the amount of time which had passed since Ms Shoesmith's employment with the Borough had ended, the relief sought was effectively for declarations that each of the processes was flawed by legally actionable unfairness, rather than an attempt to have her reinstated in her former job. Ms Shoesmith has lost.

The High Court found there had been no political interference with the Ofsted inspection or report, that it had not been targeted against Ms Shoesmith personally, that the Secretary of State had received a report from Ofsted telling him "that there were significant weakness in safeguarding and child protection arrangements in Haringey" and that "the arrangements for the leadership and management of safeguarding by the local authority and partner agencies in Haringey are inadequate". It was also found that the Secretary of State had not been influenced by the petition noted above.

With regard to Ms Shoesmith's claims against the Borough, the judge determined these should heard by an Employment Tribunal rather than in judicial review proceedings. It is understood the tribunal hearing is unlikely to take place before Autumn 2010.

In dismissing the applications against the decisions of the Secretary of State and the Ofsted report, the Judge indicated that he "reached those conclusions with a lurking sense of unease" due to the way in which the legal relationship between central government and local government operates in this kind of situation. He recommended discussions between central government, local government organisations and representatives of those who are employed in positions that might be affected by a direction from central government, in order to establish a protocol for dealing with this kind of situation in the future.

There are press reports that Ms Shoesmith is considering a further appeal to the Court of Appeal (see for example The Guardian - 23.4.2010).

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7. Whistleblowing

A recent case has shown that a worker can succeed in a whistleblowing claim even when the whistleblowing was in a previous employment.

A Mr Elstone had had a long and senior career in the petro-chemical industry, mainly with BP. In February 2006 he took up a new job with a separate company, Petrotechnics.

Whilst employed by Petrotechnics he apparently made a series of protected disclosures to two senior BP employees about safety issues. These matters were said to be confidential and Petrotechnics dismissed him for gross misconduct.

Almost immediately he took up an appointment as a consultant to BP but this was terminated after Petrotechnics managers told BP that they had dismissed Mr Elstone for gross misconduct for disclosing Petrotechnics' confidential information.

Mr Elstone presented a "whistleblowing" complaint to an employment tribunal. He won on the basis that under the law he could bring a claim if he had made a protected disclosure while a worker of any employer and not just of the employer who (later) caused him to suffer detriment. BP appealed to the EAT but has lost.

The EAT said "...the disclosure need not relate to the employer, nor to the employer's business, nor need it be made to the employer himself".

The fundamental point was that the law defines a qualifying disclosure as one which is made "by a worker" and makes no express requirement that the worker be in any particular employment. Similarly there is no requirement that a qualifying disclosure must be about the worker's present employer, nor that it must be made to his present employer nor that it must be made at any particular time.

This case shows that a worker can win a victimisation claim as a result of having made a protected disclosure while he was working for a previous employer. However in practice it is probably more likely that such a claim would arise, where having left a job, an individual is applying for another job with a new employer and is rejected because of the previous "whistleblowing". The BP plc v Elstone case which is noted here does not cover that position. Although this point is undecided, and there are arguments to the contrary, it may be that a job applicant in that position could win a claim on the basis that a "worker" is defined for the purpose to include an "individual who .... where the employment has ceased, worked under a" contract.

While the position of a job applicant is not covered by the BP plc v Elstone case, and the specific protection given by statute to job applicants against rejection because of sex, race, age, disability, sexual orientation or religion does not cover whistleblowing cases, the fact that the EAT pointed out in the case that "It is protection, rather than the identity of the employer, which is central ..." and that there should be a "purposive approach to the statutory provisions" is enough to suggest that employers should be cautious if considering rejecting a job-applicant because he or she is a proven whistleblower. As noted in the preceding paragraph, there is legal argument which could support a claim in those circumstances. It would be prudent to contact us for up to date, informed legal advice in any relevant situation.

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8. Disability discrimination

We drew attention in our newsletter of August 2009 to the important House of Lords case of SCA Packaging Limited v Boyle. The case concerned a healthy woman who had brought a disability discrimination claim against her employer on the basis that she had been discriminated against and although currently healthy she had previously suffered from a disability. Crucially, she claimed that the disability was "likely to recur". The law specifically provides that in that situation, provided other required conditions such as the long term nature of the disability are fulfilled, a worker can bring a claim under the Disability Discrimination Act 1995.

In summer 2009 the House of Lords ruled that "likely" in this context means "could well happen" rather than "more likely than not". In other words, in spite of official (non legally binding) government guidance to the contrary, "likely to recur" for this purpose does not mean that there must be a more than 50% chance of recurrence. The House of Lords took the view that if Parliament had intended "likely" to mean "more likely than not" it would have used the word "probable". Whether or not this view attributed greater perspicacity to Parliament than merited is a matter of opinion but in any event the result for Mrs Boyle was that she won her case.

That was last summer. Those who took note of the decision will be interested to know that it has recently been announced, in April 2010, that Mrs Boyle has agreed to settle for £125,000. The settlement was made, without admission of liability by the SCA Packaging company, in respect of all Mrs Boyle's claims which included allegations of discrimination on grounds of sex, victimisation and unfair selection for redundancy as well as disability.

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9. and finally ...

Airline disputes - Spanish style

We noted some of the legal implications of the dispute between BA and its cabin crews in our March 2010 newsletter. Spanish airline staff are taking a rather different approach to that adopted by Unison in its fight with BA. First it was the WI (remember "Calendar Girls"?); now it's the female cabin crew on Spanish airline Air Comet (no doubt you've guessed what's coming).

The Spanish airline filed for administration in December 2009 after a British court impounded nine of its aircraft at the request of a German bank, HSH Nordbank. Female cabin crew working for the airline had not been paid for months. They decided that rather than simply rely on their rights under EC Directive 80/987 (which requires EU Member States to provide a degree of financial protection to employees in the event of the insolvency of their employer) they would take more direct action. They stripped off to pose for a calendar. Who could disagree with Adriano Ricardo (Miss August) who said ?...it?s a different and elegant way of highlighting our plight"?

As with the calendar produced (for charity) by their original WI role models, it seems the Spanish airline's cabin crew calendar sold like hot cakes and is now something of a collectors' item. If you feel you need to undertake further research concerning this significant (?) employment law topic, yes, here is the link!


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