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1. Age Discrimination
In the case of Beck -v- Canadian Imperial Bank of Commerce an Employment Tribunal upheld a complaint of age discrimination by a 42 year old Head of Marketing who had been dismissed ostensibly for redundancy whilst the bank was seeking to recruit a replacement with a “younger entrepreneurial profile”. The burden was on the bank to explain the use of the word “younger” in the recruitment brief and the tribunal did not accept the bank’s argument that it simply meant less experienced.
The claim was brought after a restructuring proposal put forward by the Claimant’s line managers, both of whom were younger than the Claimant himself. The Claimant did not get on with his line managers and the tribunal concluded that the purported redundancy was a sham and that the intention was to bring in a younger replacement.
A salutary reminder that restructuring/redundancy is not a panacea for all ills and that, when recruiting staff, employers should avoid at all costs using words such as “younger” and “older”.
2. Disciplinary Proceedings and Legal Representation
In the case of R -v- X School and Others the Court of Appeal has confirmed that a teaching assistant was entitled to legal representation by virtue of Article 6 of the European Convention on Human Rights (right to a fair trial) during disciplinary proceedings for alleged sexual misconduct with a child. The Court of Appeal was satisfied that Article 6 was engaged because of the seriousness of the disciplinary charge and the fact that, if upheld, its likely effect in practice would be to end the employee’s career in education.
This case serves to confirm that the more serious an allegation or charge the more astute the courts will be to ensure that the process followed by the employer is rigorously fair. In practice cases in which there is a right to legal representation will be relatively rare, but this was one of those cases.
3. Holiday Entitlement under the Working Time Regulations
Under the WTR a worker who wishes to take holiday must give notice to their employer twice as many days in advance of the number of days holiday they wish to take. The employer can respond with a counter notice refusing the holiday request, either in whole or in part. These provisions can be varied by the employment contract.
In the case of Lyons -v- Mitie Security Limited the EAT had to consider whether the employer was legally obliged to permit the employee to take all his WTR holiday during the applicable holiday year or whether a request could be refused when it was made towards the end of the holiday year and did not fit in with the employer’s staffing patterns.
The employee’s contract specified that holiday requests had to be submitted at least 4 weeks in advance and that all holiday had to be taken during the current holiday year and could not be carried forward. Pay for holiday entitlement not taken in the current year was forfeited.
In this case the holiday year ran from 1st April to 31st March. At the beginning of March the employee had 9 days holiday outstanding. On 6th March he requested payment for the 9 days before the end of the holiday year, but did not specifically request to take the days as holiday. The employers refused to pay him for the holidays.
The employee argued that he had an inalienable right under the WTR to receive his full paid holiday entitlement during the holiday year. However, this argument was rejected on the basis that, whilst employers must not operate the notice provisions unreasonably, arbitrarily or capriciously so as to deny any lawfully requested entitlement, nevertheless a worker who fails to comply with notice provisions which are operated correctly will lose the right to take holiday and to receive pay for it.
4. TUPE - Information and Consultation
Under TUPE an employer must inform and consult the appropriate representatives of “affected employees” in relation to any measures which the employer envisages taking in relation to the affected employees. TUPE defines “affected employees” as any employees of either the transferor or the transferee who may be affected by the transfer or by measures taken in connection with it.
In the case of Unison -v- Somerset County Council the EAT ruled that the affected employees were those who would or might be transferred and those who had internal job applications pending at the time of transfer. However, the definition did not extend to other employees in the workforce who might in the future apply for a vacancy in the part transferred.
In this case the County Council and the Borough Council decided to transfer some of their administrative work to a new joint venture company which would be controlled and operated by IBM. There was a lengthy tendering and negotiation process during which detailed consultation took place between the Councils and Unison. A staffing agreement was entered into under which employees who worked in the relevant parts of the Councils had the choice whether to transfer to the new joint venture company or to remain an employee of the Council.
Some aspects of the staffing agreement were contentious, including the position with regard to future recruitment by the joint venture company. The Councils agreed with the joint venture company that they would advertise future vacancies to Council employees in the first instance, but that it could recruit externally if the proportion of Council employees who were seconded to the project were 70% or more.
The union complained that the Councils had failed to comply with the duty of consultation in that this was a measure taken in connection with the transfer about which there had not been consultation.
This argument was rejected by the EAT as this was not a measure which impinged on affected employees: the definition did not extend to employees in the Council who might at some time in the future apply for a vacancy with the joint venture company.
The comments in this note are of a general nature only. Full advice should be sought on any specific problems.
ASHTON BOND GIGG
January 2010
| Christopher Gigg | David Hardstaff | Kathryn Meir |
| cgigg@abg-law.com | dhardstaff@abg-law.com | kmeir@abg-law.com |
| D: 0115 9343310 | D: 0115 9343323 | D: 0115 9343308 |