CLB Employment Solutionsprotecting your business

September 2009

We certainly have a full and varied newsletter this month. From 10 year old ECJ cases (yes, the wheels of justice do actually turn this slowly in some cases) to Peers of the Realm finding themselves well and truly hoisted by their own petard.

The news that Baroness Scotland, the current Attorney-General (with a firm emphasis on the word “current”) has been charged and fined for employing an illegal worker is framed in irony to a degree that is seldom seen outside an episode of Seinfeld. If you will permit me, I will set the scene for the implementation of the Immigration, Asylum and Nationality Act 2006. The Government, often accused by businesses and voters alike of operating an open borders policy and failing to deal with those who enter or remain illegally on a security level, decides to pass the job of enforcing the problem on to small businesses by making them vet job applications by requesting and inspecting the authenticity of identification and work documents (including passports and visas). Cue outrage from the Chambers of Commerce and various small business groups rightly pointing out that their members could face jail for failing to do what even the Government clearly could not do. The legislation was pushed through and championed by Baroness Scotland. We have held seminars for dozens of businesses over the past 18 months regarding this legislation and seminar notes are available on request by calling (free) 08000 320 974. The response that we have had has been that the Government is passing the buck.

That the Attorney-General has fallen foul of her own legislation is vindication for all those who have complained to us over the years that the checks were completely unworkable for small businesses and that they were not set up for checking falsified documentation and asking questions about applicants' rights to work, especially when faced with potential discrimination accusations from disgruntled workers. We sincerely hope that the Government tackles this issue where is should be tackled i.e. the UK Border Agency and at the Home Office. However, all must remember that, for the moment, the rules remain in full force and effect, as demonstrated by the fine imposed today.

The ECJ's ruling on holiday pay is likely to cause a sinking feeling in the stomachs of HR professionals everywhere. As if managing long term sickness was not trying enough, we now have to ring fence annual leave and allow it to be taken in the next period even if it was not used; cue the sick employee giving notice of a return to work and then making an application for 6 weeks' holiday leave.

Finally, if you think that employment law in the UK can sometimes favour the employee, please see our last article from Spain. Despite the learned Employment Judge's ruling, which was actually consistent with the UK's approach to such matters, we can assure our subscribers that language use in this country has not degenerated to the point whereby the comments made by the employee in Judge Vidal's case would be acceptable in 99% of UK workplaces. We will, therefore, continue to advise our clients that insubordination should be taken extremely seriously.

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


Martin Malone

This month's news:

1. Guidance on collective redundancy consulation

2. Changes to maternity and paternity leave

3. Swine flu absences could hit 27% of workforce

4. TUPE round-up

5. Attorney General falls foul of rules on hiring illegal workers

6. Band of reasonable responses and constructive dismissal

7. Government retreat on Vetting and Barring Scheme

8. European Court says claim back holidays lost to sickness but wasn't even asked the question

9. Failure to redeploy can be age discrimination

10. JobCentre Plus costs £3.36bn but fails small businesses

11. Detailed guidance on work-related stress

12. ...and finally

Employment Solutions

september 2009

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previous newsletters

August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
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June 2008
May 2008
April 2008

1. Guidance on collective redundancy consulation

As regular readers are no doubt aware, there are important rules which govern consultation for collective redundancies. There is a statutory duty to consult if at least 20 employees are being dismissed at one establishment in a 90 day period. Consultation must begin "in good time" and at least 30 days before the first of the redundancies is proposed to take place or 90 days if there are to be 100 or more redundancies. Consultation is also an essential element in any redundancy process, even if there is only one affected employee, but in cases involving fewer employees the rules are less strict. Accordingly, what follows is of relevance to all employers dealing with redundancies.

In Akavan Erityisalojen Keskusliitto AEK ry and others -v- Fujitsu Siemens Computers Oy the European Court of Justice (ECJ) was asked to consider various aspects of the procedural requirements pursuant to the Collective Redundancies Directive (No.98/59). Three key points were highlighted:

  1. an employer triggers the duty to consult when there is a decision or change of activity which compels the employer to plan for redundancies;
  2. in a group of companies the obligation to consult falls on the subsidiary within which the redundancies are contemplated; and
  3. the obligation to consult is not dependant on the employer being able to supply all necessary information to employee representatives.

It is the third point which is of particular interest. As suggested by the names of the parties this is a case which was referred to the ECJ from Finland. On 7 December 1999 the Fujitsu parent company proposed selling one of their factories and on 14 December the diretors supported the proposal. Consultations were proposed from 20 December 1999 to 31 January 2000 with redundancies commencing on 1 February 2000. The unions contended that the decision about redundancies was made at the latest on 14 December so the delay until 20 December fell foul of the Directive. Fujitsu contended that decisions concerning redundancies were not made until 1 February because, until then, alternatives such as a sale or commercial partnership with another business were under active consideration. The Finnish employment and appeal courts agreed with Fujitsu and held that there had been genuine and sufficient consultation. However, the ECJ has attached importance to the references in the Directive to "projected" redundancies rather than the point at which there is a settled intention to make people redundant. The trigger point is when the employer makes "strategic decisions" so that, when the case is referred back to the Finnish appeal court, it is likely that the trigger date will be determined as 14 December.

At CLB Employment Solutions we know that, in practice, very few employers commence redundancy consultation at the point when projected redundancies are identified. The ECJ decision makes clear that an employer cannot wait until all necessary information for consultation is to hand; rather, further information should be disclosed as it becomes available during the consultation process. Employers in all organisations, whatever the size and number of possible redundancies, must therefore be careful to avoid delaying the commencement of consultation or run the risk of unfair dismissal and, in appropriate cases, protective awards of up to 90 days' pay.

Incidentally, you might be wondering why we are reporting as "news" a decision which concerns events which took place as long ago as 1999 and 2000. The answer is that, remarkably, the ECJ judgment was handed down on 10 September 2009 and the case must now be referred back to the Finnish appeal court for further consideration!

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2. Changes to maternity and paternity leave

In his speech to the TUC on 15 September Gordon Brown made his first reference to the need for "cuts", a contentious development which will no doubt keep political commentators exercised until the next election (and probably well beyond). The important consequence in the field of employment law is that, as an immediate example of the pressure on spending and on the same day, it was announced that Labour will not go ahead with the proposed extension of maternity pay from nine months to a year due to the cost. The additional pay would have been worth up to £1600 for each eligible family and the cost would have been met largely from public funds.

However, plans to allow mothers to transfer part of their maternity leave to the father have survived, albeit that the introduction of the change has been postponed for a year (applying to children due on or after 3 April 2011). When introduced, mothers with maternity leave outstanding when the child is six months old will be able to transfer the balance of entitlement to maternity leave (up to a further six months) to the father. Taking into account the retreat from extension of statutory maternity pay this means that fathers will be entitled to claim up to three months' SMP if the leave is taken during what would otherwise be the mother's statutory maternity pay period (39 weeks).

There is an obvious additional bureaucratic burden in that employers of both the mother and father will become responsible for administering maternity pay arrangements. It will also be necessary for employers to redraft contracts of employment both in terms of allowing for father's maternity leave and pay (particularly if the contract refers to provision of the statutory entitlement) and in reviewing and if necessary implementing any changes to maternity leave and pay which exceed the statutory minimum.

In practice, it is expected that take up of the new entitlement will be low because, in many cases, it will mean that fathers will take a significant cut in pay. However, all employers will be required to have procedures in place to implement the new arrangements if requested. Those arrangements will permit parents to "self-certify" by providing details of their eligibility to their employers. Existing rights to paid paternity leave, unpaid parental leave and to request flexible working remain unaffected.

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3. Swine flu absences could hit 27% of workforce

There are mixed reports about the likelihood of a resurgence of swine flu this autumn. The estimated number of cases in England rose from 3000 to 5000 last week but in Scotland there was a sharp increase to 6000. In his weekly briefing, Sir Liam Donaldson, the Government's Chief Medical Officer, stated:

"We might be seeing the start of an upturn. There are straws in the wind, from the increase in consultations with GPs and a small increase in hospitalisations. It suggests swine flu is coming back."

It is therefore worth bearing in mind that in one week in July there were over 100,000 cases and the general consensus is that a second wave of the disease would have a much more widespread impact. As a result, many employers are making plans for coping with significant staff absences. Although the Government has estimated that peak absence rates could reach 12% of the workforce, Sainsburys are planning for absences of up to 25%. The reason is that many of their employees have to care for children and other dependants and it is also anticipated that many will live in households which are affected by swine flu so there will be the risk of infection if these people attend work. It is anticipated that if there is a significant increase in the number of people contracting the disease, containing measures will include encouraging people not to congregate in public places, not only affecting the level of absenteeism but also the ability of employees to carry out normal functions in the face of temporary closures of locations where people meet in the course of their work.

The most obvious likely impact is school closures and this is something which has been specifically considered by the BBC. The Corporation has based its contingency plans on the Government's estimate of 12% employee absence as a direct result of contracting the disease but has factored in a further 15% if schools are closed.

In another development, employers have reiterated concerns about employees taking advantage of the situtation to take additional leave without good reason. As we have previously reported it is anticipated that employees will be allowed to self-certify their absence for up to 14 days. The Government is being urged to reduce the self-certification period to 10 days but even if the reduction is agreed, the opportunity for abuse of the entitlement remains obvious. The dilemma for employers is that, although return to work meetings are sensible and recommended, they are after the event. Attempts to catch out employees by investigating during their absence may well lead to breaches of the implied mutual duty of trust and confidence which is incorporated into all contracts of employment and, in more serious cases, could trigger the added problem of industrial action.

It is easy just to wait and see in the hope that concerns have been overstated and the anticipated problems just won't arise. Many employers will remember the time and money spent in preparing for the supposedly devastating effects of the "Millennium Bug" which turned out to be a great deal of fuss about nothing. However, those who watched the recent drama about the Spanish Flu of 1918 on BBC Four will know that it was a timely reminder that the disease was first identified in America in March 1918, spread worldwide by June 1918, infected 50% of the world's population and killed 40-50 million people. Subsequent flu outbreaks have been very much less severe but it is worth remembering that the World Health Organisation have described swine flu as "unstoppable" and the Government's "first wave" of vaccinations is intended to cover 13 million with contingency plans to vaccinate the entire population.

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4. TUPE round-up

It appears that not a month can pass without us reporting further developments in connection with TUPE (transfers of undertakings) - one of the most complicated and most frequently misunderstood areas of employment law.

Service provision transfers continue to head the agenda. The conventional wisdom when dealing with TUPE transfers has been that, for there to be a relevant transfer (i.e. one in respect of which protection under the TUPE Regulations applies) there must exist a stable economic entity which retains its identity following the transfer. Countless cases have been concerned with what, exactly, this means. However, all changed with the introduction of the 2006 TUPE Regulations and we are now seeing key provisions being interpreted and refined as cases work their way through the system.

We have reported in recent newsletters about how "service provision changes" can lead to the unexpected application of TUPE protection, particularly in the context of tender exercises.

In Metropolitan Resources Ltd. -v- Churchill Dulwich Ltd. (In Liquidation), Martin Cambridge and others the Employment Appeal tribunal has taken the opportunity to review the new law and provide guidance on the application of the Regulations when there is a "service provision change". Metropolitan appealed against an employment tribunal decision that employees transferred to it from Churchill had the benefit of TUPE protection. Churchill provided accommodation for asylum seekers under a time-limited contract with a charity. Before that contract expired, the charity entered into a very similar contract with Metropolitan and Metropolitan took over the provision of the accommodation. The relevant employees continued working until the initial contract came to an end. Churchill had written to Metropolitan stating that they considered that the 2006 Regulations applied. Metropolitan evidently disagreed because, when the employees turned up at Metropolitan's premises, they were sent home. At the tribunal Metropolitan contended a "multi-factorial" approach should have been applied (relying on EAT authority - Cheesman -v- R Brewer Contracts Ltd..

In the EAT Judge Burke QC pointed out that the 2006 Regulations were intended to "remove or alleviate the uncertainties and difficulties" created by the need to establish a stable economic entity which retained its identity following the transfer. It was noted that there is no reference in the 2006 Regulations to an economic entity in the context of a service provision change. Rather, in this context there is a relevant transfer if:

  • there was, immediately before the change relied upon, an organised grouping of employees which had as its principal purpose the carrying out of the activities in question;
  • the client intended that those activities would be carried out by the alleged transferee (other than in connection with a single specific event or a task of short term duration);
  • the activities did not consist totally or mainly of the supply of goods for the client's use; and
  • the activities have ceased to be carried out by the alleged transferor and were instead carried out by the alleged transferee.

The guidance from EAT suggests that these factors should be applied to the facts in each case. There is no need to apply a purposive approach (i.e. aimed at giving effect to the intended protection) but instead to apply the words of the Regulations in a way which is straightforward and with common sense (words which have rarely applied when considering TUPE!). Further, the multi-factorial approach referred to in Cheesman does not apply.

Meanwhile, in Tapere -v- South London & Maudsley NHS Trust, the EAT has held that employers who are relocated in the event of a TUPE transfer may be able to claim constructive and consequently unfair dismissal. It is usual (and strongly recommended) for all employees' contracts of employment to include a mobility clause. Frequently, such a clause will specify the area covered so that it appears reasonable. In this case the clause allowed the employer to move employees to other locations "within the Trust". The EAT held that this meant only the Trust's locations and not their worksites. As a result, TUPE transferred employees were entitled to claim constructive dismissal because there was a "substantial change to working conditions" which operated to the employees' "material detriment". Significantly, although establishing a substantial change is an objective question of fact, the test for detriment is subjective so it needs to be considered from the employee's point of view.

Finally on the topic of TUPE (thank goodness!), things get even more complicated with the decision of the Court of Appeal in Oakland -v- Wellswood which is yet to be reported. The case concerns so-called "pre-pack administrations". TUPE does not apply to insolvency proceedings begun with a view to liquidation. Company administration is a procedure whereby an administrator is appointed with a view to securing the survival of the business as a going concern. However, there has been a tendency in recent years for insolvency practitioners to work with company directors and shareholders to put together a predetermined package pursuant to which arrangements are made to sell the business right away, quite often to a new company that has been formed for the purpose. The company in administration then goes into insolvent liquidation and the new company is not saddled with TUPE transferred employees. It is no surprise that these arrangements are controversial and often cause considerable annoyance to the creditors of the company in liquidation. However, such arrangements have been supported by the courts, even in the face of opposition from a company's major creditor, because they can secure jobs which would otherwise be lost, albeit that employees do not have TUPE protection.

In a development which many employment lawyers regard as well overdue it has been reported that the Court of Appeal has decided in Oakwood that employees do have TUPE protection in such circumstances. Details of the judgment are awaited with interest and if the reports are correct, the result will be the closure of what has widely been regarded as an unfair loophole.

When faced with any transfer or potential transfer (including a service provision change) it is essential to start from the perspective that the Regulations do apply. As you will no doubt have gathered from this and our previous TUPE items, legal advice and representation is essential and you should not hesitate to contact us as soon as the merest possibility of a TUPE transfer becomes apparent.

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5. Attorney General falls foul of rules on hiring illegal workers

As many readers will be aware (and as reported in our blog) the Attorney General has, rather embarrassingly, sacked her housekeeper after claims that she had overstayed her visa and was no longer legally entitled to work in the UK. Baroness Scotland attends the Cabinet in her capacity as the Government's legal adviser. On 16 September her office issued a statement saying that Tongan national Loloahi Tapui was hired "in good faith" and that she "never knowingly employed an illegal immigrant". The statement continued:

"Baroness Scotland saw documents which led her to believe Ms Tapui was entitled to work in this country. Prior to being hired, Ms Tapui was in registered employment. She is registered for tax and insurance and at no point prior to the matter being raised...did Baroness Scotland believe that there was any question over her entitlement to work. She has now been dismissed with immediate effect."

Which is all very well, but...

Under the Immigration, Asylum and Nationality Act 2006 there is a statutory distinction between knowingly and unknowingly employing someone who is not entitled to work in the UK but both are illegal. The former carries a prison sentence of up to two years and an unlimited fine on conviction and the latter carries a penalty notice and a penalty of up to £10,000. Significantly, it is up to the Home Office to decide whether to impose a penalty at all. Pursuant to section 15 of the Act, the fact that the employer did not know that the employee was not allowed to work in the UK is not an adequate excuse.

Although the embarrassment factor in this case is obvious, it is easy to sympathise with Baroness Scotland. While the intention of the legislation is obvious and has a proper purpose, the burdens placed on all employers are remarkably onerous and unforgiving. Notwithstanding her clear statement that she was unaware that she had done anything wrong, Baroness Scotland's case was the subject of an inquiry which, on 22 September, resulted in a £5,000 fine. It is clear that many employers are facing convictions when they genuinely believed that they had done all that was required of them in order to establish that an employee was entitled to work in the UK. Of course, those who undertake no checks or patently inadequate checks deserve no sympathy and the case serves as a timely reminder that all employers must have in place documented procedures to ensure that, if called upon to to do, they can demonstrate compliance. Details of the (enormously complicated) prescribed requirements are set out in the Immigration (Restrictions on Employment) Order 2007, SI 2007/3290.

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6. Band of reasonable responses and constructive dismissal

Employers with experience of unfair dismissal claims will probably have heard of the "band of reasonable responses test". When considering unfair dismissal claims, tribunals decide whether an employer has acted reasonably in treating a "potentially fair reason" (misconduct, capability, redundancy, legal obligation to terminate employment, or "some other substantial reason") as a sufficient reason for dismissal, having regard to the size and administrative resources of the employer and the substantial merits of the case. The tribunal then goes on to consider whether the response of the employer fell within the band of reasonable responses open to a reasonable employer having carried out a sufficient investigation. If not, the dismissal is unfair.

In Bournemouth University Higher Education Corporation -v- Buckland, the University appealed against a finding that it had unfairly dismissed Professor Buckland. He taught a course and marked the examination papers. A high proportion of students failed. The University arranged for the papers to be re-marked by another academic and the Chair of the board of exminers approved the revised marks without referring to Professor Buckland. He complained and an inquiry criticised the conduct of the Chair of the board of examiners. Professor Buckland remained dissatisfied so he resigned and claimed constructive unfair dismissal. The tribunal found in favour of the Professor on the basis that the actions of the University amounted to a fundamental breach of his contract of employment since they were calculated to destroy the relationship of trust and confidence between the parties. The inquiry carried out by the University had not cured the breach.

The University appealed on the basis that fundamental breach could only be shown where the actions of the employer fell outside the band of reasonable responses open to it and the tribunal was wrong to conclude that the inquiry had not cured any breach.

The EAT issued a reminder that it is vital to take each stage of the process in turn. The first question is whether there has been a dismissal (including constructive dismissal). Second is whether there was a potentially fair reason for dismissal and third is whether the employer acted reasonably in treating that reason as a sufficient reason for dismissal. The "band of reasonable responses" test applies only to the third question so the University was wrong in getting it mixed up with questions concerning the constructive dismissal. Unreasonable conduct alone is insufficient to establish constructive dismissal - there must be a fundamental breach of contract.

However, all was not lost for the University. Applying the questions in the correct manner, the University was in fundamental breach of the contract but the tribunal was wrong to conclude that the inquiry had not cured the breach. The result of the inquiry effectively vindicated Professor Buckland and there was nothing more that could reasonably be expected of the University. The tribunal had mistakenly considered whether Professor Buckland had been exonerated by the inquiry from his own point of view. In fact, the University was no longer in breach of contract when the Professor resigned so that, since there was no (constructive) dismissal, there could not be an unfair dismissal.

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7. Government retreat on Vetting and Barring Scheme

In recent newsletters we have been reporting on the outcry concerning the potential effects of the Government's new Vetting and Barring Scheme. While the need to protect children and vulnerable people from contact with unsuitable individuals is obvious and entirely necessary, there has been widespread concern that the new scheme would effectively cast all adults working with children as presumed to be unsuitable unless cleared in advance. Prominent children's authors including Philip Pullman and Anthony Horowitz threatened to stop visiting schools rather than subjecting themselves to the "insulting" requirement. In last month's newsletter we reported that the restrictions might even apply to the MPs responsible for the legislation. On a wider level, concerns were expressed about people who give up their time to take children to sports teams or Scout meetings being required to pay £64 for criminal record checks and further payments for each organisation they assisted with. The rules would also have applied to parents allowing foreign pupils to stay in their houses as part of school exchange programmes. The NSPCC expressed concern that the new rules, estimated as applying to one quarter of the adult population, would stop people doing things that were "perfectly safe and normal".

On 15 September Education Secretary Ed Balls announced a review of the scheme. There will be a fresh examination of the proposed scheme to ensure that the "right balance" is struck over how many people will face checks. Sir Roger Singleton, head of the new Independent Safeguarding Authority responsible for the scheme has stated:

"We need to calm down and consider carefully what this scheme is and is not about. It is not about interfering with the sensible arrangements which parents make with each other to take their children to schools and clubs."

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8. European Court says claim back holidays lost to sickness but wasn't even asked the question

"Claim Back Holidays Lost to Sickness" pronounced the Daily Telegraph on 14 September. "Fallen sick on leave from work? Don't worry, now you can claim the time back!" snorted the Daily Mail. But the real irony is that the European Court of Justice was not even asked to rule on the point.

In Pereda -v- Madrid Movilidad SA (ECJ C-277/08) Vicente Pareda was employed to remove cars which were illegally parked. He was allocated holiday leave in 2007 from 16 July to 14 August. However, following an accident at work on 3 July he was off work until 13 August. That meant he was left with only two days' holiday leave. He was refused a re-allocation of holiday leave from 15 November to 15 December and the court in Madrid referred the following question to the ECJ:

"Must Article 7(1) of Directive 2003/88/EC (the Working Time Directive) be interpreted as meaning that when the period of leave allocated in the undertaking's annual planning of leave coincides in time with a temporary disability following an accident at work which happened before that period of leave began, the employee affected, once he returns to work, has the entitlement to use his leave on dates different from thise originally allocated, irrespective of whether the calendar year to which they relate has ended?"

The ECJ decided to "rephrase" this by asking what is, effectively, a quite different question:

"...essentially, whether Article 7...must be interpreted as precluding national provisions or collective agreements which provide that a worker who is on sick leave during a period of annual leave scheduled in the annual leave planning schedule of the undertaking which employs him does not have the right, following his recovery, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period."

Paraphrasing very considerably, the ECJ has answered its own question by saying that the right to take additional (or presumably it would maintain, substitute) holiday entitlement does exist and, in doing so, has caused consternation by ruling that a worker who falls (sufficiently?!) ill while on holiday can insist on additional holiday entitlement to "make up for" the time "lost" while on holiday. This is not the situation which applied to Sr. Pareda whose accident at work preceded his scheduled holiday. However, since the ECJ is our highest judicial authority and its decisions are of direct application in employment law cases, all national courts, from tribunals to the new Supreme Court, will be obliged to apply the decision.

We need not begin to explain the practical difficulties which are likely to follow for employers. It has to be assumed that this is not what the ECJ intended and employers must hope that a "correction" will not take as long as the Finnish case referred to in our first newsletter item!

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9. Failure to redeploy can be age discrimination

In last month's newsletter we reported on the Government's review of the default retirement age and the likelihood that it will be abolished or increased significantly. The recent decision in London Borough of Tower Hamlets -v- Wooster is a useful reminder that, as the law stands, age discrimination can present very practical problems for employers, particularly in the context of secondment and redundancy.

Mr Wooster was employed by Tower Hamlets but, from 2003, was seconded to a social landlord, EEH. In October 2006 he was told that his secondment was coming to an end and that, unless a suitable post could be found for him with the Council, he would be made redundant. The Council refused an offer by EEH to extend his secondment and he was duly made redundant. He was 49.

He claimed unfair dismissal and age discrimination. Incidentally the Council failed to follow correct procedure so that the dismissal was automatically unfair. It was also found liable for age discrimination and the decision was upheld on appeal because the Council was found to have been motivated by a desire to avoid him becoming entitled to an early retirement pension. As is so often the case, the employer was found out by its own records. If the extension to secondment had been agreed Mr Wooster would have become entitled to his pension. When the extension was ruled out the Council noted, "If he goes now we do save the pension". The damage was done.

Ironically, the Council could not have extended the secondment because, if it had done so, it would have acted ultra vires (beyond the scope of its authority) and therefore unlawfully. Therefore, if handled correctly, the Council would have had an absolute defence to the age discrimination claim on the ground of justification - it could not have extended the employment on secondment and there were no alternatives. It didn't matter: the employer had allowed the pension issue to play a part in its decision and age discrimination was therefore established.

The decision reinforces the need for employers to be alert to ensure that all employment law issues, and particularly those concerning discrimination, must be considered at all stages of relevant processes. As always, we encourage all subscribers to CLB Employment Solutions to contact us whenever any employment and HR issues arise. As demonstrated by this case, the cost of subscription and a free telephone call can often be a fraction of the cost of not doing so.

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10. JobCentre Plus costs £3.36bn but fails small businesses

The Federation of Small Businesses has highlighted that Job Centres "are not working" for their members. In a survey of 2500 small businesses, one in three said that the services on offer were "ineffective". Fewer than 20% said that they used Jobcentre Plus to recruit, saying that the organisation is one which "appears focused on processing benefits applications [rather than being one] that supports work".

National Chairman of the FSB, John Wright, said:

"[Our] members feel let down by a service which appears to offer precious little for the £3.36bn Jobcentre Plus costs each year. As small businesses are the country's key employers, and are known to give a larger proportion of jobs to those who have previously been unemployed than big business, it's time the government reformed JobCentre Plus and made it work effectively."

At CLB Employment Solutions, we know that the majority of our subscribers pay fees (often as much as 20% of annual starting salary) to recruitment agencies and big money to place recruitment adverts. In the words of a recent marketing campaign "there is a better way" and we support the FSB's campaign to get the most out of a service we all pay for. As part of our subscription service, we provide comprehensive support to ensure that all legal aspects of recruitment are taken care of. We'd like to know your experiences of recruitment and its significant costs. We can help you with ensuring that you get value for money. Contact us at for more information.

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11. Detailed guidance on work-related stress

The Health and Safety Executive publishes extensive guidance on work-related issues. Their website "myth of the month" is well worth bookmarking. Particularly useful are their topic inspection packs which provide guidance to inspectors on how to approach workplace issues. This month they have issued comprehensive guidance on work-related stress. Although intended for inspectors, the guidance includes really useful assistance for employers in managing this problematic area.

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12. ...and finally

horizontal platforms

On 17 September it was announced that the London Fire Authority is to approve plans to remove "horizontal platforms" from fire stations. The "horizontal platforms" as they are officially described, otherwise known as beds, are provided for firefighters who currently work 15 hour shifts from 6.00 p.m. to 9.00 a.m. All 5800 staff will be moved from 15 to 12 hour shifts. One senior source is reported in the Evening Standard as saying "Do you know any other occupation where people are able to sleep on duty?". On a (briefly) more serious note the obvious reality is that firefighters perform an invaluable function and the idea that they work 12 let alone 15 hour shifts is (in the writer's humble opinion) a cause of huge concern. Although they can cause inconvenience for employers, many employment laws exist for a very good reason and the Working Time opt-out for firefighters is currently under review in Parliament.

Eastern European prejudice?

Mihaela Popa is currently pursuing an employment tribunal claim against accountants PriceWaterhouseCoopers for £40m.

She maintains that she was told by colleagues that "Eastern Europeans are whores" and asked when she was returning to Romania. It is also reported that work colleagues believed that she was a communist spy for the Romanian secret police. She joined PwC's offices in London in September 2004 after spending a year at their Chicago offices. On a salary of £40,000 p.a. she says that she was told that she would become a £750,000 a year partner.

Ms Popa maintains that her route to partnership was defeated by racism and maintains that the treatment of her got worse until she went off sick with anxiety and depression before resigning in November 2006. She was employed by UBS in December 2006 and made redundant in May 2008 before a spell with Credit Suisse until she was made redundant in December 2008. PwC have described her as a "vexatious litigant".

The tribunal continues.

Sikh policeman says "I felt that I was on 'Only Fools and Horses'"

Sikh police officer Gurmeal Singh has brought employment tribunal proceedings against Greater Manchester Police for religious and race discrimination on account of his turban. We could be forgiven for thinking that "the turban issue" was resolved in the early days of discrimination law when a high profile case was brought shortly after the Race Relations Act 1976 and led to the Motor-Cycle Crash Helmets (Religious Exemption) Act 1976. However, Mr Singh maintains that he was not allowed to use pedal cycles without wearing a helmet so that he had to cover the same area by foot "when others had the luxury of pedal cycle policing". According to the SikhiWiki website (yes, it does really exist with that name), employers need to make suitable adjustments to allow Sikhs to wear turbans so that (as legislated by section 11, Employment Act 1989) Sikhs on construction sites do not need to wear safety helmets but damages for injuries are limited to those recoverable had a safety helmet been worn. Mr Singh also maintains that his application for promotion was held up for 18 months after an assistant chief constable expressed concern that he did not wear an official police badge on his turban.

Mr Singh says that when he was asked to wear a modified turban he felt that he was in a famous episode of 'Only Fools and Horses' in which Del Boy, taking a delivery of 200 "crash turbans", said that they were the "essential accessory for fashion-conscious, motorbike-riding Sikhs throughout Peckham".

What do you have to say to get dismissed?

A Catalan employment court has upheld a claim of wrongful dismissal after an employee called his boss a "son of a whore". The tribunal held that the employee should have got his job back and awarded him 6483 euros (£5800). The employee called his manager a "hijo de puta" (son of a whore) and "loco" (crazy) after he was refused his monthly expenses claim. Employment Judge Sara Maria Posa Vidal said "Without a doubt, both expressions are insulting. The social degradation of language means that those used by the former employee in question, are now a commonly used form of language in certain working environments, especially during the course of heated arguments."

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