Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
September 2011

Welcome to the September edition of the Canter Levin & Berg Employment Solutions newsletter.

We have a wide range of employment law issues covered in this month's edition, ranging from the imminent implementation of the Agency Workers Directive to reduction in maternity benefits, more about social media and discrimination against a Polish worker called "Borat".

We lead with key questions about the effect of the Agency Workers Regulations as well as access to detailed guidance. We also review the current position of the proposed extension of the right to request flexible working following the Government's recent consultation.

Our review of recent cases includes consideration of whether indirect discrimination can be justified on the ground of cost alone, an employer justified retirement age as an alternative to the abolition of the state retirement age and the perennial (and highly complex) question of just when is the effective date of termination for calculating entitlement to claim unfair dismissal.

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Martin Malone

This month's news:

1. new agency worker rules - do they matter to you?

Implementation of the Agency Workers Directive has been in the pipeline for years. After several delays, the UK Regulations which enact the requirements of the Directive finally come into force on 1 October. But what do they mean in practice for employers?

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August 2011
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2. extension of flexible working rights

The Government has made clear for some time its intention to extend the right to request flexible working to most employees rather than just those who having caring responsibilities.

In September 2010 the Department for Business Innovation and Skills announced an intention to extend flexible working rights to all parents of children under 18 from April 2011 (covering a further 300,000 employees) and plans to roll out the rights to all employees. Extension of the rights would be accompanied with a new and simplified system for requesting parental leave.

However the April 2011 change was postponed. The reason given by the Government was the economic climate but it was made clear that the widening of entitlement remained firmly on its agenda (in accordance with the Coalition Agreement).

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3. end of compulsory retirement, but?

In April 2011 my colleague Kath Kelly wrote an article about the end of the statutory retirement age and highlighted some possible alternatives. The time is now upon us because this Friday 30 September is the last date on which notice given last April can take effect. Consequently, any attempts to impose compulsory retirement after this date and based on the state retirement age will be ineffective as well as being potentially discriminatory and constituting unfair dismissal.

However, Kath also highlighted possible alternatives to statutory retirement and one of these is an employer justified retirement age. Clarification in this respect has been provided by the European Court in the case of Prigge -v- Lufthansa.

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4. factually incorrect but still discrimination

A Leeds employment tribunal has ruled that a Polish worker who was routinely called Borat by a work colleague over a four week period was subjected to race discrimination.

Adrian Ruda joined TEi in Wakefield as a quality assurance engineer. In 2010 he brought a number of claims against his employer, alleging race and sexual orientation discrimination. Most were dismissed by the tribunal which found Mr Ruda's evidence to be "less than persuasive and less than honest". However, the complaint that he was called Borat was upheld. This meant that he was subjected to a humiliating and degrading working environment and he was also a victim of direct race discrimination.

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5. unfair dismissal as a result of claiming to have been unfairly dismissed

The case of M-Choice UK Limited -v- Aalders, which was recently considered by the Employment Appeal Tribunal, demonstrates the complexities which can arise when trying to establish when someone was dismissed. The date of termination can be vital in determining whether or not a claim of unfar dismissal can be maintained.

Ms Aalders commenced employment with M-Choice on 1 February 2010. She was entitled to six months' notice of termination of employment. On 26 July 2010 she was sent a letter which purported to give notice of termination, stating "as from 26 July 2010, ending the work relationship as per (sic) 1 February 2011 at the latest".

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6. social networking guidance from ACAS

In our May newsletter we announced that, like many employers, 2011 has seen us expand into the world of social networking with Twitter, Facebook and LinkedIn pages.

In June I wrote about cases which have resulted from the use of social media and informed subscribers about the social media policy which we have added to our library of template documents.

ACAS has now endorsed this approach with guidance published for employers about dealing with social networking.

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7. family unfriendly?

McGrigors is one the leading UK-based law firms with offices in London, Edinburgh, Glasgow, Belfast, Aberdeen, Manchester, Qatar and Falkland Islands. It describes itself as one of the UK's most dynamic law firms and reports in a recent press release that it has signed a commitment to widen access to the legal profession.

However, in a firm-wide memo issued on 13 September, staff were informed that it is commencing a consultation on paying bonuses to mothers who return to work and reducing pay for mothers who take a second maternity leave within 18 months from their last one.

It also plans to reduce long term sickness benefits.

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8. indirect discrimination justified by expense alone

The recent case of Cherfi -v- G4S Security Services Limited has provided the Employment Appeal Tribunal (EAT) with an opportunity to consider whether indirect discrimination can be justified on the ground of cost alone.

Mr Cherfi worked as a security guard at a site in Highgate from 2005. He regularly took time off work on Friday (paid) lunchtimes to attend prayers at a mosque. In 2008 his employer told him that he could no longer do so because there was a contractual obligation to keep a minimum number of guards on site during operating hours. He was offered a changed working pattern, working Mondays to Thursdays and alternating Saturdays and Sundays so that he could take Friday as a day off. Mr Cherti refused this offer. Instead, he took time off for sick leave, annual leave or authorised unpaid leave.

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