Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
March 2012

Welcome to our March newsletter.

Behind the headlines created by the Budget and the interminable and strikingly accurate speculation leading up to it, the world of employment law has been moving at its usually high pace and with predictable unpredictableness. Hearings in the East London Tribunal have been cancelled because they've run out of money and can't pay the judges and a French porter at the Royal College of General Practitioners who was called Inspector Clouseau is in line for a five figure payout because he was likened to a "stereotypically bumbling French character". The eight day hearing is likely to cost the College over £100,000 in compensation and costs.

In the meantime the Beecroft Report which I commented on last October concerning stripping away unfair dismissal law and introducing "no fault dismissals" seems to have been marginalised to virtual oblivion. Although there has been much talk about relaxing rules for employers the latest indications are that any changes will only apply to businesses with 10 or fewer employees. According to a recent report in the Daily Telegraph larger firms will have to "persuade staff to leave" rather than firing them. As pointed out by their political correspondent, Christopher Hope, the latest "call for evidence" announced by George Osborne marks "the almost complete evisceration of the original Beecroft report". Of course the other consequence of the call for evidence is that any changes in this regard should not be expected for some time, if at all.

Our reports this month cover over zealous attempts by a company to impose post termination restrictions on one of its former middle managers, the inevitable TUPE case, the restriction on remedies caused by an illegal employment contract and an important case for those who regularly work abroad.

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February 2012
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This month's news:

1. Court of Appeal critical of heavy handed attempt to injunct former employee

In Caterpillar Logistics Services (UK) Ltd v de Crean, the Court of Appeal has upheld the refusal of an injunction application against a former employee.

Mrs de Crean had worked in a senior capacity and had a contract which included a confidentiality agreement but did not include terms restricting her activities after her employment ended. Three weeks after she resigned to join another company, the employer, with no prior warning, sent a long letter to her threatening legal proceedings. It made allegations of misconduct and demanded that she give undertakings not to use or disclose confidential information as they defined it, and also agreeing not to carry out certain areas of work in her new job. She was not prepared to give undertakings in these terms and the employer attempted to seek an injunction, first in the High Court and then in the Court of Appeal.

Both courts refused the application, and were highly critical of the employers’ over-reaction to the situation and their high-handed actions.

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2. when is a group not a “grouping”?

Only organised groupings of employees, whose principal purpose is carrying out activities for a particular client, will be transferred under the service provision change sections of TUPE, and Eddie Stobart Ltd. v Moreman sheds useful light on what amounts to an “organised grouping” for this purpose.

The case was brought by 35 workers in a meat warehouse operated by Eddie Stobart Limited. They worked on warehousing contracts for a number of suppliers of meat to supermarkets, picking the meat to be supplied. Eddie Stobart shut down this warehousing operation.

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3. more about domestic workers, unfair dismissal and illegal contracts

Last month we reported the decision in Jose v Julio (and other linked cases) concerning au pairs and the minimum wage.

This month sees a new case looking at the position of a domestic worker from overseas and the extent to which she could benefit from UK employment law rights. The complications in Zarkasi v Anindita and another were that (i) this worker entered the UK using false documents obtained by her employer – with her full agreement and co-operation, (ii) she was thus an illegal immigrant with had no legal right to work in this country, and (iii) she believed - or at least was prepared to claim - that she had been the victim of human trafficking.

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4. British employment law protection in Libya and elsewhere

Commuting is no fun, unless you are fortunate enough to work from home, but imagine the plight of the international commuter. Now at least they may have the comfort of knowing that they have employment law protection, as this case shows.

Since 1996, when the territorial restriction was removed from unfair dismissal legislation, there has been a series of cases looking at how far unfair dismissal protection applies to workers who spend all or part of the their time working outside the UK. Two situations were set out in Lawson v Serco [2006] ICR 250 where an employee could claim unfair dismissal while working abroad:

  1. - employees based in the UK, even though they carry out many of their duties abroad – “peripatetic” employees; and
  2. - expatriate employees – who both live and work outside the UK – who may be covered by unfair dismissal law in special cases where there is enough of a connection with the UK, for example living in an extra territorial enclave such as a military base or who are posted abroad to work for a UK based business

Are these categories exhaustive, or is it possible for employees working under different arrangements to have UK employment protection? This question of exactly what Lord Hoffman intended his categories to amount to in 2006 has often been debated, but given it was a House of Lords decision this has never been in an authoritative context - until now.

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5. rights of long term sick employees to paid sick leave are directly enforceable

Dominguez v Centre Informatique du Centre Ouest Atlantique is a decision of the CJEC (European Court) concerning the Working Time Directive which looked at whether a provision of French law imposing a rule that workers on sick leave must have actually worked for at least a month in a leave year before they could take, or be paid for, any annual leave accrued under the French equivalent of the Working Time Regulations was permissible. The court said no, and then went on to say that the relevant provisions of the Working Time Directive are "directly effective". The principle of "direct effectiveness" means that EU Directives which meet certain criteria (as to clarity) can be enforced against the State or an emanation of the State (in other words, Government departments and other public bodies, including some previously nationalised organisations), even if a particular provision has not yet become part of national law.

Why is this case important for us – after all we don’t have the same rule in UK law?

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6. is "hot-desking" bad for your health?

Two cases this month looked at the impact of the application of provisions, criteria or practices ("PCPs") in the workplace and employers’ duties to make reasonable adjustments.

The first, Roberts v North West Ambulance Service, related to an ambulance dispatcher who suffered social anxiety disorder. He worked shifts, and the employer operated a "hot-desking" system in the room where he worked. After sitting at a desk in the middle of the room, Mr Roberts decided that this may exacerbate his condition. He therefore moved to a desk at the edge of the room, and asked that he should always work there. Although the employer agreed in principle, the practical steps they took did not guarantee this would always happen, and the shift patterns made if difficult to ensure that he should have the same desk all the time.

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7. disability adjustments for exams

The second of this month's two disability cases, Burke v The College of Law & Anor, was a decision of the Court of Appeal concerning a mature student at the College of Law who had multiple sclerosis. He was seeking to qualify as a solicitor, and over the period of the legal practice course agreed a number of adjustments with the College to mitigate the effect of his disability. As the exams approached, he made requests for further special arrangements. These, including 60% extra time to complete exam papers with opportunities to take breaks, were agreed. However, part way through the exams, Mr Burke asked for yet more adjustments, including being allowed to take the remaining exams at home in Brighton and unsupervised. The College refused this, but did offer to arrange accommodation for him near the college during the exam period.

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8. watching weight...and employment status

Employment status often falls to be considered by courts and tribunals, not least because so many important consequences flow from it – employment rights, for example, and tax and NI treatment. Weight Watchers v HMRC is a decision of the Upper Tribunal (Tax and Chancery Chamber) concerning the employment status of Weight Watchers leaders. It examines the key three ”tools for identifying an employment relationship” of mutuality of obligation, control, and that the terms are otherwise consistent with an employment contract, and makes some interesting observations on how these apply in the particular case.

Weight Watchers leaders have contracts with the Weight Watchers organisation (WWUK) which specifically state that leaders are independent contractors. Under these contracts they run meetings, arrange hire of premises by WWUK, recruit clerks and “weighers”, receive a commission based on numbers attending meetings, and are reimbursed some of their expenses.

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9. paper boys and girls served with redundancy notices

In an extraordinary turn of events the regional newpaper conglomerate Northcliffe Media, which publishes 113 newspaper titles, has served redundancy notices on newspaper boys and girls in Crawley. Unsurprisingly the young workers have turned to social media by setting up a Boycott the Crawley News Facebook page. According to a report in the Press Gazette Hannah, the founder of the Facebook page, stated:

They should have looked after the people who had looked after them for over 20 years, the distributors who had done a fantastic job. They should have been given the chance to negotiate costs and lower their fee if necessary.

Only as a last ditch attempt should they have been ruthless. They didn't contact the advertisers to see if they would increase their payments, they didnt contact the effort at all actually. Just push the paper boys and girls and the distribution company aside and go with the cheap foreign labour

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