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RECENT CASES - HIGHLIGHTS |
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Time off Annual leave – workers may recover unpaid holiday pay as an unlawful deduction of wages See EM ¶4040, ¶3056 The House of Lords has held that workers may claim unpaid holiday pay under the provisions relating to deductions from pay, rather than being restricted to claiming under the Working Time Regulations. This means that employees will be able to recover accrued holiday pay for substantial periods, potentially the whole of their employment, as the provisions relating to deductions from pay allow recovery for a series of deductions as long as the claim is made within 3 months of the last deduction. Recovery under the Working Time Regulations requires employees to bring claims within 3 months of the date that each payment was due. HM Revenue and Customs v Stringer and ors [2009] UKHL 31
Annual leave – sickness during annual leave – entitlement to take leave lost after recovery See EM ¶4008 The European Court of Justice has held that where an employee is sick during a period of annual leave he will be entitled to take an equivalent period of annual leave after he is fit to return to work, and that, if necessary, this leave may be taken in a subsequent leave year. Vicente Pereda (Free movement of persons) [2009] EUECJ C-277/08 Comment As a result of this decision, the Working Time Regulations will require amendment to permit workers to carry forward annual leave in such circumstances. Equality at work Victimisation – non-payment of discrimination compensation award may amount to post-employment victimisation See EM ¶5222, ¶9715 The Court of Appeal has held that failure to pay a discrimination compensation award may constitute post-employment victimisation and be a ground for new proceedings, even though there may be other routes the claimant could use to enforce the award. Rank Nemo (DMS) Ltd v Coutinho [2009] EWCA 454
Disability discrimination – “likely to recur” means “could well happen” See EM ¶5476, ¶5481 The House of Lords has upheld the decision of the Northern Ireland Court of Appeal that in the Disability Discrimination Act “likely to recur” means “could well happen”, overturning previous authorities which required it to be “more likely than not” that the condition would recur. SCA Packaging v Boyle [2009] UKHL 37
Disability discrimination – access to a profession not treated as a day-to-day activity See EM ¶5486 The EAT has held that a person who did not meet the eyesight standard required for service as a police officer was not disabled, so that refusal of her application did not amount to unlawful disability discrimination. A civilian police employee who was also a special constable applied to be a police officer but failed the medical because the eyesight in her left eye was impaired. While the impairment affected some normal day-to-day activities to a minor extent, the EAT held that exclusion from a profession did not amount to a substantial adverse effect in this case. Lothian and Borders Police v Cumming [2009] UKEAT 0077_08_2907
Equal pay – “piggyback” claims allowed See EM ¶5653, ¶5667 The EAT has considered “piggyback” contingent claims for equal pay by men comparing themselves to women who were themselves bringing equal pay claims using other men as comparators. If they were successful in their claims, the women comparators would be paid more that the male claimants for like work. The EAT ruled that: » a man can claim equal pay with a woman who is paid a higher rate for like work as a result of her own equal pay claim; » that claim can extend to any period of arrears awarded to the female comparator; and » it was permissible for a man to start proceedings before the equal pay claim made by the female comparator was completed. The EAT also found that the men could claim under the Sex Discrimination Act where they had been denied bonuses paid to women in settlement of equal pay claims. McAvoy and ors v South Tyneside Borough Council and ors [2009] EAT cases 0006/08, 0057/08, 0058/08, 0168/08, 0276/08 Discipline and grievance Disciplinary hearings – whether legal representation should be allowed See EM ¶6557 The Court of Appeal has allowed an appeal against the decision of the High Court in Kulkarni v Milton Keynes Hospital NHS Trust. In this case, a doctor was subject to disciplinary proceedings in which he was represented by a medical defence organisation, who considered that he should be legally represented. An earlier contract giving him an express right to such representation had been varied in 2005, and replaced by a contract which provided that the employee could be represented by a: » colleague, friend, partner or spouse; or » representative from or retained by a trade union or defence organisation. The clause went on to say that such a representative could be legally qualified but would not be acting in a legal capacity. However, it also said that a representative was entitled to present the employee’s case, address the panel and question any evidence. The Court considered that the wording of the clause permitted the employee to be legally represented providing that the representative was instructed by his defence organisation, and that any legally qualified representative could use all his professional skills once retained. Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789 Comment Because it was found that in this particular case the employee was contractually entitled to legal representation, it was not necessary to rule on whether refusal to allow legal representation was a breach of human rights. However, the Court commented that had they been required to decide on the point, they would have ruled that refusal of legal representation at the initial disciplinary hearing would be a breach of the right to a fair hearing under Art 6 of the European Convention on Human Rights and under the concept of natural justice, because the doctor was facing what was in effect a criminal charge, although it was being dealt with by disciplinary proceedings. These comments are in line with R (on the application of G) v Governors of X School [2009] UKHC 504 (Admin), where the High Court held that a dismissal could have greater consequences for the employee than losing his job, for example if dismissal may also lead to a ban from further employment involving children, an employee is entitled to have representation at the internal hearing as part of his right to a fair trial under Art 6 of the European Convention of Human Rights. As a result of these decisions, employers of medical professionals, those providing educational or care services to children or vulnerable adults and other regulated professions should ensure that employees are allowed legal representation at internal disciplinary hearings. Ending employment Retirement – default retirement age justified by UK social policy objectives See EM ¶8201 The High Court has held that the default retirement age of 65 is justified by social policy objectives, including facilitating workforce planning and avoiding an adverse impact on occupational pensions. It commented, however, that had the review of the retirement age not been brought forward to 2010 (EN09/10 item 10) it would not necessarily have come to the same conclusion. Age UK, R (on the application of) v Attorney General [2009] EWHC 2336 (Admin)
Redundancy – length of service as a factor in redundancy selection not age discrimination See EM ¶8836, ¶5615 The Court of Appeal has considered whether it is permissible to use length of service as a factor in redundancy selection and has held that service could be justified as promoting loyalty and a stable workforce, and that, as part of a matrix where it was only one of a number of criteria, it was proportionate. The Court also agreed that giving weighting to long service constitutes a benefit to employees. Rolls Royce plc v Unite the Union [2009] EWCA Civ 387 Employment claims Online submission of employment tribunal claim – importance of setting out details of workplace See EM ¶9510 This case concerned a tribunal application presented online. The claimants’ representative submitted the form completed with the address of the employer in Bristol, but omitted the claimants’ place of work, which he did not know. The central server relayed the form to the Bristol tribunal as the most appropriate office because where no place of work is completed it is assumed that the place of work is the employer’s business address. In fact the claimants worked in Scotland and only a Scottish tribunal would have jurisdiction. The Bristol tribunal office therefore rejected the claim, and a subsequent attempt to present the claim in Scotland was out of time. The EAT rejected an argument by the claimants that once a claim is submitted online to the single server dealing with all tribunal claims in the United Kingdom, it is held for all tribunals in the UK and should be treated as submitted to the correct tribunal. McFadyen and ors v PB Recovery Ltd and ors [2009] UKEAT 0072_08_3107 Comment While it is not compulsory to complete the section of the ET1 form showing the employee’s place of work, if different from the employer’s place of business, this case shows the importance of doing so, as failure to complete it may result in the form being directed to the wrong tribunal office. Where employees work for an English company, but work in Scotland, or vice versa, the mistake may, as in this case, mean the claim is rejected.
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We send email updates which detail all the recent changes that have been added to our online updates page and the online version to all subscribers. These can be accessed by clicking on the updates in the emails, by using the online updates page or by using the online version of your Memo. We have selected a few of the cases most likely in our view to have a widespread impact since our first Newsletter, and summarise these below. |
