38241 LELR Magazine V3

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38241 LELR Magazine V3 Powered By Docstoc
					                                  OCTOBER 2006
                                       Issue 115

Labour & European
Law Review
Sick note
Disabled not entitled to
full sick pay
Pg 6

No need to consult
with employees
Pg 8

Know your rights
More about the age regulations
Pg 10

Onus on claimant to prove facts
Pg 14

Caught by COT3
ACAS does not advise on merits
Pg 16

Blow your whistle
Former employees protected
Pg 17
    In the news
    Section Header                                                                                                                                                                                                                                    In the news

Surveying the scene                                                                                                               Ready, willing and able
Employers have become more aware of the                                                                                           Over one million 50 - 65 year olds            The TUC estimates that without an             Go to:
importance of a good work-life balance, according                                                                                 who want to work can’t get a job              extra one million people in work by           unemployment.pdf to download a copy of
to the 2004 DTI Workplace Employment Relations                                                                                    because employers won’t recruit               2015 workers will face higher taxes,          the report.
Survey. The report, which is the fifth in a series                                                                                 older workers or retain the ones              later retirement or old-age poverty.
that started in 1980, also shows that:                                                                                            they already employ, according
                                                                                                                                  to a recent TUC report.                       The TUC is calling on employers to carry
• fewer workplaces are reporting grievances                                                                                                                                     out age audits of their staff to establish
• union representatives are working more closely with                                                                             The report, Ready Willing and Able,           an age profile of their workforce and
  management on changes in the workplace                                                                                          rubbishes the myth of luxury early            negotiate an “age management” policy
• more representatives say that managers value their opinions                                                                     retirement for the “baby boom”                with trade unions and employees to
• managers are more positive about the climate of                                                                                 generation. Of the 2.6 million 50 - 65 year   eliminate age discrimination and retain
  employment relations                                                                                                            olds who are currently unemployed or          older workers.
• the decline in union recognition has halted in larger                                                                           economically inactive, over a third want
  workplaces                                                                                                                      a job, with 250,000 actively looking and      It says this should include identifying and
• employers have increased their provision of flexible working                                                                     750,000 who say they want work.               supporting training needs and offering
  arrangements, and                                                                                                                                                             older staff flexible working to downshift
• there is greater provision of leave arrangements for parents.                                                                   Over the next ten years the number of         towards retirement. To underpin such
                                                                                                                                  people under 50 will fall by two per cent     measures the Government should extend
The information for the report was collected from more than                                                                       while the number aged 50 - 69 will rise       to over-fifties the right to request to
3,000 managers, nearly 1,000 employee representatives, and                                                                        by 17 per cent, massively increasing the      work flexibly and the right to training
over 22,000 employees. Go to:                                                                        ratio of pensioners to working people.        with paid time off.
to download a copy of the report.

                                                                                                                                  One in ten injured at work
Commission reports                                                                                                                                                                             Insurance company                     “AXA says that it is shocked
                                                                  The three statutory Commissions – the Equal                                                                                  AXA recently published                at the number of work-related
                                                                  Opportunities Commission, Disability Rights                                                                                  research that shows that              injuries sustained by employees
                                                                  Commission and the Commission for Racial                                                                                     as many as one in ten                 which are the result of physical
                                                                  Equality - have recently published their annual                                                                              people has sustained an               assault by customers and
                                                                  reports.                                                                                                                     injury in the workplace in            colleagues. We see thousands of
                                                                                                                                                                                               the past five years.                   claims every year where workers
                                                                  The Commission for Equality and Human Rights, to be set up in                                                                                                      have been injured at work through
                                                                  October 2007, will mean the end of the EOC and DRC in their                                                                  Responding to the findings, Tom        a criminal act. Employers have
                                                                  current forms. The CRE is scheduled to be absorbed into the                                                                  Jones, a partner with Thompsons       statutory duties and yet pay lip
                                                                  new Commission in 2009.                                                                                                      Solicitors said: “The insurance       service to it and leave frontline
                                                                                                                                                                                               industry has been complaining for     staff to fend for themselves.”
                                                                  Go to: for the full report from the                                                                           years about the costs of paying
                                                                  Equal Opportunities Commission                                                                                               compensation to injured people.       Thompsons Solicitors are experts
                                                                  Go to: for the full report from the                                                                           Thompsons and the trade unions        in all personal injury matters. Go
                                                                  Disability Rights Commission                                                                                                 have always said that one sure        to: for
                                                                  Go to: for the full report from the                                                                           way to reduce costs is to reduce      accurate claims advice.
                                                                  Commission for Racial Equality                                                                                               workplace accidents.

2                      T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                                T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                           3
    In the news                                                                                                                                                                                                                                               In the news

                                                       TUPE 2006                                                                        All in a day
                                                                                                                                        The EAT, in Rainbow International v
                                                                                                                                                                                                       Share and
                                                                                                                                                                                                       share alike
                                                       Following the introduction of the Transfer of Undertakings                       Taylor, has clarified that the extension of
                                                       (Protection of Employment Regulations) 2006, the DTI                             time under regulation 15 of the dispute
                                                       has now issued guidance relating to payments made by                             resolution regulations provides for three
                                                       the Secretary of State to employees on insolvency and                            months, not three months less one day.
                                                                                                                                        In this case Mr Taylor resigned on 20 June 2005,               The EAT has confirmed in The Print Factory
                                                       Although the guidance makes clear that it is not an authoritative                making 19 September the date by which he needed                (London) 1991 Ltd v Millam that tribunals cannot
                                                       interpretation of the regulations, it sets out the approach that the Secretary   to lodge his claim. However, this was extended under           “lift the corporate veil” when trying to decide whether
                                                       of State will take in deciding liability for making payments under the           the regulations by three months. As the extension              a TUPE transfer has taken place in the absence of
                                                       provisions of:                                                                   began on 20 September, he had to lodge his claim by            evidence of a sham.
                                                                                                                                        20 December, which he did.
                                                       • Part XI of the Employment Rights Act 1996 (redundancy payments) and                                                                           In this case, Mr Millam worked for Fencourt Printers, which was sold to
                                                       • Part XII of the 1996 Act (payments on insolvency of the employer).                                                                            McCorquodale in 1999 as part of a share sale agreement. He was given
                                                                                                                                                                                                       conflicting information as to the identity of his employer, although he
                                                       This guidance replaces earlier advice in relation to the 2006 TUPE regulations                                                                  was paid by McCorquodale who also administered his pension.
                                                       and insolvency. Go to: for a copy.
                                                                                                                                                                                                       The two companies subsequently went into administration in 2005 and

It’s not personal
                                                                                                                                                                                                       Mr Millam lost his job. The following day McCorquodale was bought by
                                                                                                                                                                                                       The Print Factory, and Mr Millam made a number of claims, including
                                                                                                                                                                                                       that there had been a transfer of his employment to McCorquodale.

                                                                                                                                                                                                       Although the Employment Tribunal agreed with him, the EAT held that
                                                                                                                                                                                                       the effect of the tribunal’s decision was to “lift the corporate veil”.
                                                                                                                                                                                                       It said that it is well established law that this can only be “pierced”
                                                                                                                                                                                                       where “special circumstances exist indicating that it is a mere façade
In a recent decision – Martins v Castlehill and Bisset                                                                                                                                                 concealing the true facts”.
- the Employment Appeal Tribunal (EAT) held

                                                                                                                                        Mutually obliged
that time limits cannot be extended for bringing a
tribunal claim under the statutory dispute resolution
procedures if the discrimination claim is against
another employee.

Ms Martins lodged discrimination claims against both her employer
and Mrs Bisset more than three months after the last incident
allegedly took place. However, as she had submitted her step one                                                                        One of the essentials of a contract of employment
grievance letter, the normal time limit was extended to six months.                                                                     is what the courts call “mutuality of obligation”.
                                                                                                                                        In other words, that one party is obliged to offer
But as the statutory grievance procedure rules only applied to claims                                                                   work and the other to accept it.
brought against the claimant’s employer, she could not bring the
claim against her colleague as she was out of time.                                                                                     The EAT has put a new gloss on this requirement in ABC News
                                                                                                                                        Intercontinental v Gizbert by ruling that Mr Gizbert (a TV
In coming to this conclusion, the EAT relied on section 30 of the                                                                       reporter), was obliged to decide whether to accept or refuse
Employment Act 2002, which states that the grievance procedure                                                                          assignments “in good faith”. For its part, ABC News had
requirements are “statutorily inserted into every contract of                                                                           to provide him with a minimum of 100 days’ work per year.
employment”. As she did not have a contract with Mrs Bisset, the
EAT reasoned that the procedure did not apply. However, as section                                                                      It argued, therefore, that there was mutuality in the arrangements
30 has not yet come into force, the decision may be appealed.                                                                           and that Mr Gizbert could pursue his claim of unfair dismissal.

4                      T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                                      T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                5
    Disability discrimination                                                                                                                                                                                             discrimination
                                                                                                                                                                                                               DisabilitySection Header

Sick note
Section 3A of the Disability Discrimination Act                                                          In O’Hanlon v HM Revenue &                   • by disregarding her disability related        First of all, it pointed out that tribunals
                                                                                                         Customs, the Employment Appeal                 absence for the purposes of the sick          would end up “entering into a form
(DDA) sets out three ways in which employers can                                                         Tribunal (EAT) said that failing to pay a      pay rules so that it did not trigger          of wage fixing for the disabled sick”.
discriminate against disabled people, one of which                                                       disabled person full pay while on sick         the points at which half pay and              Secondly, that the point of the Act was
                                                                                                         leave did not amount to a failure to make      pensionable pay became payable.               not to treat disabled people “as objects
is a failure to make reasonable adjustments.                                                             a reasonable adjustment.                       Her sick leave would then have                of charity”, but to require modifications
                                                                                                                                                        totalled less than six months.                to help disabled people play a full part in
                                                                                                         What were the basic facts?                                                                   the “world of work”.
                                                                                                                                                      What did the tribunal decide?
                                                                                                         Mrs O’Hanlon started work for HMRC                                                           As for the question of disability
                                                                                                         in 1985. She was diagnosed with clinical     The tribunal said that the rules on sick        discrimination, it said that the correct
                                                                                                         depression in 1988, after which she was      pay constituted a “provision, criteria or       comparator was someone who had
                                                                                                         off for long periods of sick leave.          practice” which placed Mrs O’Hanlon at          not been off work at all, as opposed to
                                                                                                                                                      a substantial disadvantage in comparison        someone who had been off work for
                                                                                                                                                      with people who were not disabled.              non-disability related sickness.
                                                                                                                                                      As such, the Revenue were under a
                                                                                                         The real reason for                          duty to make reasonable adjustments.The         The employer was wrong to argue that

                                                                                                         her treatment was                            tribunal decided that the first adjustment
                                                                                                                                                      was not reasonable, however, mainly
                                                                                                                                                                                                      it was the policy, and not the disability,
                                                                                                                                                                                                      that caused the difference in treatment.

                                                                                                         because she had                              because of cost considerations.Although
                                                                                                                                                      the Revenue could afford to pay sick pay
                                                                                                                                                                                                      The real reason for her treatment was
                                                                                                                                                                                                      because she had been off work for 26

                                                                                                         been off work for                            to Mrs O’Hanlon indefinitely, it could not
                                                                                                                                                      sustain that approach for all its disabled
                                                                                                                                                                                                      weeks. And the underlying reason for that
                                                                                                                                                                                                      absence was her disability. The Revenue

                                                                                                         26 weeks.                                    employees.                                      had, therefore, discriminated against her.

                                                                                                                                                      The tribunal also said she was not              But was it justified? The tribunal was
                                                                                                                                                      discriminated against for a reason related      right to decide that there was no
                                                                                                         The Revenue’s sick pay scheme provided       to her disability, given that she was treated   reasonable adjustment which could be
                                                                                                         for six months full pay and six months       in exactly the same way as a non-disabled       made to the level of sick pay. It also found
                                                                                                         half pay, subject to a maximum of 12         person. However, it went on to say that even    that there were powerful economic
                                                                                                         months paid sick leave in any four years.    if it did amount to unlawful discrimination,    reasons for the rule adopted, which were
                                                                                                         After that employees were only entitled      the Revenue’s treatment of her was justified     “material and substantial”.
                                                                                                         to their equivalent pension rate of pay,     because of the costs involved.
                                                                                                         or half pay, whichever was less.                                                             In any event, it said that “justification
                                                                                                                                                      What did the EAT decide?                        could simply be the fact that the
                                                                                                         Mrs O’Hanlon lodged a tribunal claim,                                                        employer considered it appropriate
                                                                                                         stating that her employers should have       The EAT agreed with the tribunal that           to pay those who attend work and
                                                                                                         paid her in full by making one of the        Mrs O’Hanlon had been disadvantaged             contribute to the operation more than
                                                                                                         following two adjustments:                   by the sick pay scheme rules. However,          those whose absence prevents that”.
                                                                                                                                                      it said that it would be “a very rare case
                                                                                                         • by disregarding her disability related     indeed” where giving higher sick pay to a
                                                                                                           absence for the purposes of the sick pay   disabled employee would be considered a
                                                                                                           rules, or                                  reasonable adjustment.

6                     T H OM P S O N S S O L I C I T O R S P E R S O N A L I N J U RY L AW R E V I E W                           T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                 7
    Disability discrimination
    Section Header                                                                                                                                                                                                                                   discrimination
                                                                                                                                                                                                                                          DisabilitySection Header

The Disability Discrimination Act (DDA) says that employers have to
make “reasonable adjustments” in certain circumstances if a disabled
person is placed at a substantial disadvantage in comparison with a non
disabled person.

In Tarbuck v Sainsbury Supermarkets        fixed term assignment with support from         Tarbuck, following her objection to being
Ltd (2006, IRLR 664; IDS 811), the         the occupational health department.            put in the “at risk” category in early
Employment Appeal Tribunal (EAT) said                                                     July 2003.
that employers do not have to consult      In June that year she was told that
with employees before making the           she was “at risk” of redundancy, which         Following the decision in Mid-
adjustments.                               entitled her to priority status in applying    Staffordshire General Hospitals NHS
                                           for vacant posts. She argued that the          Trust v Cambridge, the tribunal said
                                           stress of being in the “at risk” category      the company should have done this “to
                                           would affect her return to work, and as        agree the particular steps to be taken
The company was                            a result she was removed from the list.        to eliminate her disadvantage in the
                                                                                          competition for jobs”.
not required to                            She then applied unsuccessfully for a finance
                                           systems job and complained that she had        Mrs Tarbuck appealed parts of the
artificially create a                       not been given priority status for the         tribunal decision, arguing that her
                                           application. In October, she was offered a     employer should have given her priority     therefore allowed her appeal on this           treated less favourably and the company     either of the parties and so the tribunal
job for a disabled                         three month assignment but rejected it.        status when she applied for the finance      point and remitted it to the tribunal for      had not failed to make a relevant           could not raise this point unilaterally.
                                           Shortly afterwards, she was placed in the      systems job. The employers cross-           further consideration.                         adjustment in this regard.                  The EAT said that there is no separate
person.                                    “at risk” category again, and was given        appealed.                                                                                                                              and distinct duty of reasonable
                                           formal notice of redundancy in November.                                                   However, it said that the tribunal had         What did the EAT decide                     adjustment on an employer to consult
                                           Her employment ended in February 2004.         What did the EAT decide                     correctly applied the shifting burden of       about Sainsbury’s appeal?                   the disabled employee about what
                                                                                          about Mrs Tarbuck’s appeal?                 proof under the DDA, and that it was not                                                   adjustments they should make (although
What were the basic facts?                 Mrs Tarbuck complained of disability                                                       necessary to ask Sainsbury to explain why      The EAT then considered Sainsbury’s         it would be good practice to do so).
                                           discrimination and unfair dismissal.           The EAT decided that the tribunal had       they had failed to interview Mrs Tarbuck for   appeal. It said the tribunal had been       The only relevant question was whether
Mrs Tarbuck worked as a business analyst                                                  not been clear in its reasoning when        another post that it ultimately did not fill.   wrong to conclude that they had failed      the employer had complied with their
and IT project manager for Sainsbury. In   What did the tribunal decide?                  it held that it was not a reasonable                                                       to make a reasonable adjustment when        obligations or not. That being so, Mid-
March 2003, it was agreed after she had                                                   adjustment for Sainsbury to give Mrs        The company was not required to                they did not consult with her over what     Staffordshire General Hospitals NHS
been off work with depression, that she    The tribunal said that Sainsbury had failed,   Tarbuck priority status again when          artificially create a job for a disabled        help she might need in finding alternative   Trust v Cambridge had been incorrectly
should return on a part time basis to a    among other things, to consult with Mrs        applying for the finance system job. It      person. She had not, therefore, been           work. This issue had not been raised by     decided.

8                     T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                                       T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                            9
 Age regulations                                                                                                                                                   Section Header
                                                                                                                                                                   Age regulations

You’re how old?
Now that the age discrimination regulations have
come into effect (see LELR 114 for an outline),
employees have the right to request to work
beyond their retirement date.

                                                   Richard Arthur, a solicitor from               to a meeting to discuss the request, the    least four weeks) to expire before 1
                                                   Thompsons Employment Rights Unit in            right to be accompanied and the right       April 2007; the employer has made the
                                                   London, looks at two specific aspects of        of appeal can be found in LELR 114.         employee aware before 1 October 2006
                                                   the regulations –transitional provisions                                                   that they consider that the employee
                                                   and retirement dismissals.                     What are the transitional                   is being retired on the expiry date; and
                                                                                                  provisions?                                 on or as soon as is practicable after
                                                   What are the standard rules?                                                               1 October, the employee notifies the
                                                                                                  If the “expiry date” is on or after 1       employer in writing of their right to
                                                   For people retiring with “expiry dates”        October 2006, but before 1 April 2007,      make a request, the employer is treated
                                                   on or after 1 April 2007, the standard         the regulations set out transitional        as complying with their Paragraph 2 Duty.
                                                   rules will apply.                              arrangements which apply in four
                                                                                                  different circumstances.                    An employee’s request to stay on,
                                                   The regulations impose two notification                                                     which otherwise complies with the
                                                   duties on employers:                                                                       requirements described in LELR 114,

                                                   (i) an employer intending to “retire” an
                                                                                                  For people retiring                         will be valid if made:

                                                       employee must notify the employee in
                                                       writing of the employee’s right to make
                                                                                                  with “expiry dates”                         • where practicable, at least four weeks
                                                                                                                                                before the expiry date or
                                                       a request and the date on which they
                                                       intend to retire the employee between
                                                                                                  on or after 1 April                         • where this is not practicable, as soon
                                                       six months and one year before the         2007, the standard                            as reasonably practicable (either before
                                                       intended date of retirement                                                              or after the expiry date), but not more
                                                       (the “Paragraph 2 Duty”)                   rules will apply.                             than four weeks after the expiry date.

                                                   (ii) where an employer fails to comply                                                     If the employer fails to notify the employee
                                                        with their Paragraph 2 Duty, they                                                     on or as soon as reasonably practicable
                                                        have a continuing duty to notify the      What happens if four weeks’                 after 1 October of their right to make a
                                                        employee as in (i) until the fourteenth   notice is given before                      request to stay on, the Paragraph 2 Duty
                                                        day before the operative date of          1 October?                                  does not apply and the Paragraph 4 Duty
                                                        termination (the “Paragraph 4 Duty”).                                                 applies up to the expiry date.
                                                                                                  If the employer gives notice before
                                                   Details about the employee’s procedure         1 October of at least the period required   The employee can make a request to stay
                                                   for making a request to stay on, the right     by the contract of employment (or at        on either before or after notification.

                                                                           T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                          11
     Age regulations                                                                                                                                                                                                                                                               Age regulations

What happens if less than four                                                                                                               How do unions work out the reason for dismissal?
weeks notice is given before
1 October?                                                                                                                                   The reason for dismissal can be worked out using the following table
                                                                                                                                             (remembering that any retirement age below age 65 needs objective justification):
If the employer gives notice before
1 October which will expire before 1                                                                                                                    Normal retirement
                                                                                                                                                                             Date of termination       Employer’s compliance with notification requirements            Reason for dismissal
April 2007, but the period of notice given                                                                                                              age (“NRA”)
is less than four weeks (irrespective of
                                                                                                                                                 1      None                 Before age 65                                                                            Not retirement
what is provided for in the contract: or
the employer has not made the employee                                                                                                                                                                 Employer complies with Paragraph 2 Duty;
                                                                                                                                                 2      None                 At or after age 65                                                                       Retirement
aware before 1 October that they                                                                                                                                                                       contract terminates on “intended date”
consider the employee is being retired                                                                                                                                                                 Employer complies with Paragraph 2 Duty;
                                                                                                                                                 3      None                 At or after age 65                                                                       Not retirement
on the expiry date; and on or as soon as                                                                                                                                                               contract terminates before “intended date”
reasonably practicable after 1 October,                                                                                                                                                                Employer fails to comply with Paragraph 2 Duty;
                                                                                                                                                 4      None                 At or after age 65                                                                       Not retirement
the employer notifies the employee in                                                                                                                                                                   contract terminates before “intended date”
writing of their right to make a request,                                                                                                                                                              Any other case where employer fails to comply with
                                                                                                                                                 5      None                 At or after age 65                                                                       Could be retirement
the employer is treated as complying with                                                                                                                                                              Paragraph 2 Duty
their Paragraph 2 Duty.
                                                                                                                                                 6      Yes                  Before NRA                                                                               Not retirement

The employee has the right to make a                                                                                                                                                                   Employer complies with Paragraph 2 Duty;
                                                                                                                                                 7      65 or higher         On or after NRA                                                                          Retirement
request to stay on. If the employer fails                                                                                                                                                              contract terminates on “intended date”

to notify the employee on or as soon as                                                                                                                                                                Employer complies with Paragraph 2 Duty;
                                                                                                                                                 8      65 or higher         On or after NRA                                                                          Not retirement
reasonably practicable after 1 October of                                                                                                                                                              contract terminates before “intended date”

their right to make a request, the Paragraph                                                                                                                                                           Employer fails to comply with Paragraph 2 Duty;
                                                                                                                                                 9      65 or higher         On or after NRA                                                                          Not retirement
2 Duty does not apply and the Paragraph 4                                                                                                                                                              contract terminates before “intended date”

Duty applies up to the expiry date.                                                                                                                                                                    Any other case where employer fails to comply with
                                                                                                                                                10      65 or higher         On or after NRA                                                                          Could be retirement
                                                 notice, if longer) to expire before 1 April   unfair dismissal, retirement dismissals                                                                 Paragraph 2 Duty

What happens if notice is                        2007, then the Paragraph 2 Duty does not      over age 65 will almost always be fair if
                                                                                                                                                11      Below 65             On or after NRA
                                                                                                                                                                                                       If the retirement age can not be objectively justified,         If the retirement age can not be
given on or after 1 October?                     apply and the Paragraph 4 Duty applies        the employer complies with their                                                                        not retirement                                                 objectively justified, not retirement

                                                 up to the expiry date. The employee can       notification obligations.                                                                                Employer complies with Paragraph 2 Duty;                       If the retirement age can be
                                                                                                                                                12      Below 65             On or after NRA
If the employer gives notice on or after         make a request to stay on.                                                                                                                            contract terminates on “intended date”                         objectively justified, retirement

1 October as required by the contract (or                                                      However, it is clear that some employers                                                                Employer complies with Paragraph 2 Duty;                       Even if the retirement age can be
                                                                                                                                                13      Below 65             On or after NRA
statutory, if longer) to expire before 1 April   What are retirement dismissals?               have already dismissed older workers                                                                    contract terminates before “intended date”                     objectively justified, not retirement

2007; and before, or the same day as giving                                                    before 1 October to prevent the over 65s                                                                Any other case where employer fails to comply with
                                                                                                                                                14      Below 65             On or after NRA                                                                          Could be retirement
notice of dismissal, the employer notifies        The age regulations have also introduced      from acquiring the right to claim unfair                                                                Paragraph 2 Duty

the employee in writing of their right to        a new potentially fair reason for dismissal   dismissal. Unions will need to be astute to
make a request, the employer is treated as       - retirement. Although employees over         identify the real reason for dismissal.       What if the reason “could be”                        Where the reason (or principal reason)
complying with their Paragraph 2 Duty.           the age of 65 now have the right to claim                                                   retirement?                                          for the dismissal is retirement, the                          Stop Press: Pensions
                                                                                                                                                                                                  employee is regarded as unfairly dismissed                    provision delayed
The employee has the right to make a                                                                                                         If the reason for the dismissal “could be”           if, and only if, the employer has failed to
request to stay on. If the employer fails
to notify the employee before, or on the         It is clear that some employers have                                                        retirement, a tribunal will have “particular
                                                                                                                                             regard” to the following criteria, to
                                                                                                                                                                                                  comply with                                                   The Government has
                                                                                                                                                                                                                                                                announced that it is to delay the
same day as, giving notice of dismissal
of their right to make a request, the            already dismissed older workers before                                                      determine if the reason is actually
                                                                                                                                             retirement or not:
                                                                                                                                                                                                  • their Paragraph 4 Duty (assuming
                                                                                                                                                                                                    they didn’t comply with their Paragraph
                                                                                                                                                                                                                                                                implementation of the pensions
                                                                                                                                                                                                                                                                provisions, apparently to allow
Paragraph 2 Duty does not apply and
the Paragraph 4 Duty applies up to the
                                                 1 October to prevent the over 65s                                                           • whether or not the employer complied
                                                                                                                                                                                                    2 Duty)
                                                                                                                                                                                                  • their duties to consider a request and
                                                                                                                                                                                                                                                                more time for employers to “get
                                                                                                                                                                                                                                                                to grips with them”. These are now
expiry date.
                                                 from acquiring the right to claim unfair                                                      with their Paragraph 4 Duty
                                                                                                                                             • if so, when and
                                                                                                                                                                                                    arrange a meeting or
                                                                                                                                                                                                  • their duty to consider an appeal.
                                                                                                                                                                                                                                                                expected to be implemented on
                                                                                                                                                                                                                                                                1 December, following an additional
If the employer gives notice on or after
1 October which is shorter than the
                                                 dismissal.                                                                                  • whether or not the employer followed
                                                                                                                                               or sought to follow the procedures for

contractual notice (or the statutory                                                                                                           holding a meeting to consider a request.

12                       T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                                            T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                                    13
  Religion and belief                                                                                                                                               Religion and belief

Religious regulation
                                                     In Mohmed v West Coast Trains                 had been resolved by about September.           stage. If the company was able to produce
                                                     Ltd (the first decision on religious           That meant that his case did not fall           evidence that the tribunal preferred, then
In discrimination cases, the law says that workers   discrimination), the Employment Appeal        within the RBR.                                 the fact would not be proved.
                                                     Tribunal (EAT) said that tribunals could,
have to identify facts from which a tribunal         at that first stage, also take into account    In any event, it said that Mr Mohmed had        What did the EAT decide?
could conclude that there has been unlawful          facts put forward by the employer that        not satisfied stage one of the test set
                                                     disproved what the worker was alleging.       down by the Court of Appeal in Igen v           And the EAT agreed with the company.
discrimination before the burden of proof                                                          Wong Ltd (LELR 99). In other words,             It said that Mr Mohmed had to prove
passes to the employer.                              What were the basic facts?                    that he had not proven, on the balance          facts from which a tribunal could infer
                                                                                                   of probabilities, facts from which the          that the company had treated him less
                                                     Mr Mohmed worked for West Coast               tribunal could conclude that the company        favourably than a hypothetical non-Muslim
                                                     Trains Ltd as a customer services assistant   had committed an unlawful act of                comparator on grounds of his religion
                                                     from June 2003 to February 2004. A            discrimination.                                 or belief.
                                                     Muslim of Indian origin, his religion
                                                     dictated that his beard should be about                                                       To ascertain those facts, the tribunal had
                                                     four inches in length.                                                                        to follow the Court of Appeal’s guidance
                                                                                                   The tribunal had                                in Igen. This stated that tribunals could
                                                     The company gave Mr Mohmed a copy                                                             not take the employer’s explanation for
                                                     of its uniforms policy at the start of his    to follow the                                   his dismissal (in other words, his lack of
                                                     probationary period, which made clear                                                         enthusiasm) into account at stage one.
                                                     that his beard should be kept neat and        Court of Appeal’s
                                                     tidy. Towards the end of his training                                                         However, if tribunals could only take
                                                     period in August, he was asked to trim his    guidance in Igen.                               account of facts relied on by the claimant,
                                                     beard and according to the company, the                                                       it would have to ignore all the facts put
                                                     issue was resolved by September.                                                              forward by the company. In this case, facts
                                                                                                                                                   about its uniforms policy that required
                                                     According to Mr Mohmed, however, his          What did the parties argue on                   beards to be kept neat and tidy; and the
                                                     manager continued to complain about his       appeal?                                         fact that it had a Sikh employee who
                                                     beard until early December, shortly after                                                     conformed with that policy.
                                                     the religion and belief regulations (RBR)     Mr Mohmed argued that regulation 29 of
                                                     came into force on 2 December 2003.           the RBR required the tribunal to apply the      The EAT concluded the tribunal was
                                                                                                   two stage test in Igen. At the first stage, it   right to decide that the issue of his beard
                                                     Mr Mohmed was dismissed in February           must only look at the facts put forward by      had nothing “to do with his religion and
                                                     “for lack of enthusiasm”. He claimed          the claimant, and must disregard any non-       everything to do with the company’s
                                                     direct and indirect racial and religious      discriminatory explanation put forward by       concern to enforce its uniform standard”.
                                                     discrimination, harassment and                the respondent.
                                                     victimisation.                                                                                Mr Mohmed had not satisfied the
                                                                                                   The company, on the other hand, said that       first stage of the Igen test and there
                                                     What did the tribunal decide?                 there was no requirement on tribunals           had not, therefore, been any unlawful
                                                                                                   just to look at the facts put forward by        discrimination.
                                                     The tribunal decided, on the facts before     the claimant. It argued that the onus was
                                                     it, that the issue of Mr Mohmed’s beard       on the claimant to prove those facts at that

                                                                             T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                             15
     Duties of ACAS officers                                                                                                                                                                                                                             Whistle blowing

Caught by COT3                                                                                                                          Blow your whistle
                                                                                                                                        Section 47(B)(1) of the 1996 Employment Rights Act (ERA) states that “a
Under section 18 of the Employment Tribunals Act (ETA), ACAS                                                                            worker has the right not to be subjected to any detriment by any act, or any
officers have a duty “to endeavour to promote a settlement”.                                                                             deliberate failure to act, by his employer done on the ground that the worker
                                                                                                                                        has made a protected disclosure”.
In Clarke and ors v Redcar and               A large number of women accepted the         It looked in particular at the duties of an   The Court of Appeal has decided in            basis that “rights enshrined within the       withholding references for existing
Cleveland Borough Council; Wilson            negotiated deal, but then lodged equal       ACAS conciliation officer under section        Woodward v Abbey National plc                 Employment Rights Act do not in general       employees but perfectly lawful in the
and ors v Stockton on Tees Borough           pay claims, as did women working for         18 of the Employment Tribunals Act, and       (2006, IRLR 677) that that protection         terms, apply to incidents occurring after     case of ex-employees.
Council (2006, IRLR 324; IDS 811),           Stockton Borough Council where similar       set out the following principles:             applies to former employees, as well as       the termination of employment, whereas
the Employment Appeal Tribunal (EAT)         facts applied.                                                                             existing ones.                                the Discrimination Acts do”.                  On that basis, the Court ruled that
has said that that duty does not require                                                  • ACAS officers have no responsibility to                                                                                                  Fadipe was inconsistent with the wider
officers to give advice as to the merits of   What did the tribunal decide?                  ensure that the terms of the settlement     What were the basic facts?                    The EAT also said it was bound by Fadipe      application given by their Lordships in
a claim.                                                                                    are fair on the employee                                                                  and that it had not been overruled by         Rhys-Harper and could not stand.
                                             The tribunal struck out the women’s          • the expression “promote a settlement”       Mrs Woodward was head of financial             Rhys-Harper, because the latter only
What were the facts?                         claims on the ground that they had been         must be given a liberal construction,      institutions for Abbey National plc from      related to discrimination complaints.         The Court concluded “It simply makes
                                             validly settled up to the date when they        depending on the circumstances of the      1991 until she was made redundant                                                           no sense at all to protect the current
In May 2003, Redcar Council agreed with      signed and returned the COT3, although          particular case                            in 1994. She complained in 2003 that          Should Fadipe be overturned?                  employee but not the former employee,
the recognized unions to implement           not up to 1 April 2004.                      • ACAS officers must not give advice           the company had subjected her to a                                                          especially since the frequent response of
the 1997 single status (or Green Book)                                                      about the merits of a case                  detriment, contrary to section 47B of the     The Court of Appeal said that the first        the embittered exposed employer may
agreement introducing a new pay              This was despite the fact that the           • Tribunals must not consider whether         ERA, because she had blown the whistle        question to answer was whether Fadipe         well be dismissal and a determination to
structure with effect from 1 April 2004.     claimants “were not aware of the               the ACAS officer correctly interpreted       on various dubious financial practices         should be overturned.                         make life impossible for the nasty little
                                             possibility that they could receive a more     their duties; the officer just has to have   while she was still an employee.                                                            sneak for as long thereafter as he can.
It also started negotiations with ACAS       substantial amount if the case was taken       intended to act as per section 18                                                         It looked at the relevant legislation – the   If it is in the public interest to blow the
and the unions to settle the potential       to a tribunal and they were successful”.     • if the ACAS officer acted in bad faith       She alleged that, since leaving the           ERA and the discrimination legislation –      whistle, and the Act shows that it is, then
claims of employees up to the date of                                                        or adopted unfair methods when             company, it had failed to provide her         and concluded that although the language      he who blows the whistle should be
implementation, based on their length of     Nor were the agreements void for                promoting a settlement, the agreement      with a number of references that she          and framework were slightly different         protected when he becomes victimised
service and hours of work.                   “unconscionable conduct” by the                 might be set aside and might not           had requested and failed to try to find        in each, they were all dealing with the       for doing so, whenever the retribution
                                             employers, but even if there had been           operate as a bar to proceedings.           her any alternative employment.               same concept. In other words, to protect      is exacted”.
At around the same time, a number of         such conduct, the tribunal said that the                                                                                                 employees “from detriment in retaliation
women employees lodged equal pay             claimants had endorsed the COT3 by           Contrary to what the claimants argued,        What did the tribunals                        for his or her sex, race, disability or
claims, comparing themselves with men in     receiving and cashing their settlement       therefore, officers were not under a duty      decide?                                       whistle-blowing….All four Acts are,             Comment
predominantly male-dominated jobs. The       cheques.                                     to give advice, to evaluate the claims and                                                  therefore, dealing with victimisation in
Council admitted it was in breach of the                                                  to ensure that the claimants understood       The tribunal decided that it could not        one form or another. If the common              This is a sensible decision by the
Equal Pay Act.                               The women appealed, arguing that the         the nature and extent of all their            hear her claim because it was bound by        theme is victimisation, it would be odd         Court of Appeal and means that
                                             ACAS officer had not fulfilled her duties      potential claims.                             the 2001 Court of Appeal decision in the      indeed if the same sort of act could be         whistle blowers with claims of post
The negotiations with the unions             under section 18, as the agreement had                                                     case of Fadipe v Reed Nursing Personnel,      victimisation for one purpose, but not for      employment victimisation receive
continued and in January 2004, ACAS          not been made “with the assistance of a      Finally, the EAT said that the tribunal       barring claims relating to events that take   the other”.                                     the same protection as those with
produced a COT3 (or conciliated              conciliation officer” as required under       was wrong to hold that each COT3 only         place after the person’s employment                                                           post employment claims of race,
agreement), in “full and final settlement”    section 77 of the Sex Discrimination Act.    settled the claimants’ equal pay claims up    has ended.                                    Secondly, it said that it was absurd to         sex or disability. However, although
of all claims in connection with the terms                                                to the date on which they signed. Instead,                                                  limit victimisation to acts during an           the Court now recognises that such
of the women’s contracts. A covering         What did the EAT decide?                     it made an order that the agreements          And it distinguished the decision of          employment contract, as opposed to              claims are possible in practice, it is
letter from the Council made clear that                                                   settled the claims up to 1 April 2004.        the House of Lords in Rhys-Harper             events after termination. The Court             notoriously difficult to prove the link
employees who accepted the offer would       The EAT said that the COT3 was                                                             v Relaxion Group Plc which said that          said that it was difficult to believe that       between the negative reference and
forfeit their statutory rights to bring      valid and that the claimants could not                                                     workers could bring claims, post              Parliament could have intended to let           the protected conduct.
equal pay claims.                            therefore bring equal pay claims.                                                          termination of employment, on the             employers discriminate in giving or

16                     T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                                       T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                             17
     Redundancy consultation                                                                                                                               Redundancy consultation

Giving notice
                                                     In Vauxhall Motors Ltd v Transport           by the proposed restructuring.                  wish it in this case. …We do not accept the
                                                     and General Workers Union (2006,             The company argued that it could rely           submission of the respondents that Section
Section 188 of the Trade Union and Labour            IRLR 674), the Employment Appeal             on the statutory information supplied to        188 offers an “unlimited shelf-life”.
                                                     Tribunal (EAT) said that although section    the union in January 2003, and dismissed
Relations (Consolidation) Act 1992 states that
                                                     188 does not have an unlimited shelf life,   the 46 temporary employees on 26                The tribunal went on to find that the
employers have to consult with unions (and           employers do not have to issue fresh         November 2004. The union argued that            company had not consulted meaningfully
                                                     notices if a subsequent consultation         the company had breached its section            with the union after 27 September 2004,
stipulates the time scale in which it must happen)   relates to the same employees and the        188 obligations.                                nor had it sent the union the mandatory
before going ahead with any redundancies.            same prospective redundancies.                                                               information required by section 188(4).
                                                                                                  What does the law say?                          It ordered the company to pay a 70-day
                                                     What were the basic facts?                                                                   protective award in favour of the 46
                                                                                                  Section 188, TULRCA says:                       dismissed employees.
                                                     In 2002, the company hired hundreds
                                                     of temporary workers on fixed term            (1) An employer proposing to dismiss            What did the EAT decide?
                                                     contracts. In January 2003, it notified           as redundant an employee of a
                                                     the DTI that it would be making 400 of           description in respect of which an          Although the EAT agreed with the
                                                     them redundant between 25 April and 5            independent trade union is recognised       tribunal that section 188 did not provide
                                                     September. It also sent the information          by him shall consult representatives        an unlimited shelf-life, it did not agree that
                                                     required under TULRCA to the union.              of the union about the dismissal in         it had been exhausted in this case. Instead
                                                                                                      accordance with this section.               it said that, provided the consultation
                                                     Following consultations with the union,                                                      deals with the same employees and the
                                                     no one was made redundant in 2003,           (2) The consultation must begin at the          same prospective redundancies, the
                                                     but in March 2004 the company, without           earliest opportunity, and in any event–     employer would not be in breach of
                                                     informing the union, requested and           (a) where the employer is proposing to          section 188.
                                                     received a six-month extension to the            dismiss as redundant 100 or more
                                                     application registered with the DTI in           employees at one establishment              In this case, there had been an on-going
                                                     January 2003.                                    within a period of 90 days or less, at      dialogue about the status, extension and
                                                                                                      least 90 days before the first of those      transfer of the temporary employees
                                                     In September, the company told the               dismissals takes effect;                    from February 2003 until the dismissals
                                                     union there would be no compulsory           (b) where the employer is proposing             in November 2004. The entire consultation
                                                     redundancies, but lodged a new notification       to dismiss as redundant at least 10         process had therefore continued seamlessly.
                                                     with the DTI of 345 potential redundancies       but less than 100 employees at one          The elastic did not break and a fresh
                                                     between October 2004 and September               establishment within a period of 30         section 188 process was not triggered.
                                                     2005. It did not give the union a copy.          days or less, at least 30 days before the
                                                                                                      first of those dismissals takes effect.      It also said that the reference in section
                                                     In October 2004, over 300 redundancies                                                       188 to a period of 90 days did not
                                                     were announced at Ellesmere Port.            What did the tribunal decide?                   mean that if the process of consultation
                                                     The trade union side argued that the                                                         extended beyond that period, it then
                                                     remaining temporary employees (of            And the tribunal agreed. It said that “a        had to restart. The 90-day period fixed
                                                     whom only about 46 remained) should be       redundancy situation cannot be an on-going      the start of consultation, not the end.
                                                     joined with the other employees affected     piece of elastic as the respondent would

18                                                                          T H OM P S O N S S O L I C I T O R S L A B O U R & E U RO P E A N L AW R E V I E W                                 19
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