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The Human Rights Act, which incorporates the European Convention on Human Rights into UK law, came into force on 2 October 2000. At the time there was considerable speculation about its likely impact on employment law. In the event the Act has had a modest effect, with only a handful of cases reaching the higher courts. However, as the recent decision of the Court of Appeal in Copsey v WWB Devin Clays Ltd shows, human rights issues continue to arise from time to time and are not always easy to resolve.
Employee refuses Sunday working
The case concerned a practising Christian who was sacked for refusing to accept a new shift system which involved Sunday working. He subsequently claimed he had been unfairly dismissed ‘for being a Christian’, arguing that the dismissal had breached Article 9 of the European Convention which guarantees freedom of religion. The employment tribunal rejected his claim, taking the view that Article 9 was irrelevant. The reason for the dismissal was simply the employee's failure to agree to a change in terms. This amounted to ‘some other substantial reason’ for the dismissal and, as the employer had acted reasonably, the dismissal was fair.
Disagreement in the Court of Appeal
The Court of Appeal upheld the tribunal's decision, but the judges could not agree on whether Article 9 applied to the case. Their disagreement arose because UK courts must take account of European case law which suggests that Article 9 does not apply where there is a clash between working practices and the employee's religious convictions. However the rationale for this view - that the employee can always resign if he feels sufficiently strongly - is unconvincing. This led one of their Lordships to distinguish the European cases, whilst another decided reluctantly that they should be followed. The third felt that Article 9 added nothing to existing unfair dismissal law. An appeal to the House of Lords is likely.
Practical implications
Until the uncertainty is resolved, employers may be able to avoid liability for unfair dismissal in this type of case if they make significant and genuine efforts to reach an accommodation with the employee (including offering alternative employment where available) before they decide to dismiss. However, legal advice should always be taken in a case of this kind, particularly as an employer could also be faced with a claim for indirect discrimination under the religious discrimination regulations, which came into force after the facts in this case.
Redundancy Dismissals and Suitable Alternative Employment
A redundancy dismissal may be unfair, and so lead to a claim for compensation, if the employer has not followed a fair procedure prior to dismissal. As a general rule, such a procedure requires the employer to consider whether there is any suitable alternative employment available with the immediate employer or another company within the group. The extent of this duty was recently considered by the EAT in Fisher v Hoopoe Finance Ltd.
Lack of financial information
Mr Fisher was employed as a manager earning £40,000 a year. A redundancy situation arose and as part of the consultation process he was given a list of alternative jobs, including a Sales Manager in another group company. However, no further information was given and he did not pursue the position. In due course Mr Fisher was made redundant. However, shortly afterwards the Sales job was advertised at a salary of £40,000. The employee argued that had he known the size of the salary he would have given the job serious consideration. He therefore claimed his dismissal was unfair.
The EAT found in the employee's favour, holding that financial information such as salary details should normally be made available to the employee to enable him to make a realistic decision. However, if the employee fails to request further information or to indicate an interest in the vacancy this could lead to a reduction in compensation for unfair dismissal on the grounds of contributory conduct.
Practical Implications
The Fisher case is particularly relevant to group companies or other large organisations where simply giving the job title of a vacancy may not be very meaningful. Managers should bear this in mind when conducting redundancy exercises and ensure that their procedures reflect the need to consider giving further information.
Do You Need To Know…?
Single Equality Act back on the Agenda
The Government has announced that its commitment to introduce a Single Equality Act (SEA) will be honoured in this Parliament. At present discrimination law is scattered amongst various statutes, regulations, Codes of Practice and EC Directives. This leads to a complex body of law which is ever more complicated to apply.
The form the SEA takes will depend largely on the work of the Discrimination Law Review which was set up by the Government in March 2005 to consider how discrimination law can be simplified and modernised. The Review is expected to report in the summer of 2006.
Tribunal statistics show a drop in claims
The latest annual report of the Employment Tribunal Service makes interesting reading. In the year ending 31 March 2005 there were just over 86,000 tribunal claims, down 25 per cent on the previous year. Some of the drop can be explained by a few large multiple claims in 2003/2004 which distorted the figures. However, even when such claims are ignored, there is a clear downward trend in single applications since 1998. Whether this will continue is hard to predict. Many believe that the age discrimination regulations - due to take effect in October 2006 - will give rise to a large number of claims. On the other hand the full effect of the new statutory disciplinary and grievance procedures, which the Government hoped would reduce the overall level of claims, is not yet apparent as these were only introduced in October 2004, half way through the statistical year.
Timetable for DDA changes
The timetable for implementing important changes to the Disability Discrimination Act has been laid before Parliament. This shows that provisions to extend the DDA to cover people with HIV, cancer or MS from the point of diagnosis will take effect on 5 December 2005 as will the abolition of the requirement that a mental illness be clinically well-recognised. However, the introduction of the new duty on public authorities to promote equality of opportunity for disabled people will not come into effect until 4 December 2006.
Training for managers on the new rules will be essential. However, with compensation in disability cases rising sharply (the average award is now £17,736 up from £16,214 in the previous year) employers need to ensure that managers are fully up to date on all aspects of disability discrimination, not just the forthcoming changes.
Cases referred to in this article: Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932; Fisher v Hoopoe Finance Ltd EAT 0043/05.
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Employers who fail to inform and consult employees in connection with a TUPE transfer may have to pay a penalty of 13 weeks’ gross pay to all affected employees.
Many employers will have experienced the situation whereby a senior employee leaves the company and shortly afterwards begins to solicit key clients in breach of his/her restrictive covenants.
Failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures will usually increase the risk of a dismissal being found to be procedurally unfair and can result in increased compensation being payable to a dismissed employee.
BIS has published an updated indicative timetable of the planned key dates for the Enterprise and Regulatory Reform Act 2013 and the introduction of financial penalties for employers who breach workers rights will now not be in October 2013.
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