UK: Employment Briefing - January 2010

Last Updated: 30 September 2010
Article by Brian Gegg, Jesper Christensen and Marc Meryon

Originally published January 2010

Use of Protection from Harassment Act in Employment Case

In Veakins v Keir Islington Ltd an employee was successfully able to pursue a claim under the Protection from Harassment Act 1997 (Harassment Act) in relation to matters which arose at work. The Court of Appeal gave useful guidance in this case as to when a claim under the Harassment Act might be appropriate.

Miss Veakins had been subjected to a course of consistent bullying behaviour from her superior, Mrs Lavy, which included embarrassing public telling-offs, petty disputes and the ripping up of a letter of complaint written by Miss Veakins. Mrs Lavy had also persistently asked other employees questions about Miss Veakins' private life.

Miss Veakins brought a claim under s1(1) of the Harassment Act which provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment. This prohibition is enforceable by a criminal offence and a civil remedy. The Recorder dismissed Miss Veakins's claim noting the criminal sanction under the Act and stating 'I cannot see that any sensible prosecuting authority would pursue these allegations criminally.[...] These extremely regrettable episodes, though made out factually, do not come anywhere near the line of criminality [to] bring them within section 1 of the Harassment Act'.

The Court of Appeal disagreed. It stated that since the case of Majrowski, courts have been enjoined to consider whether the conduct complained of is 'oppressive and unacceptable' and asked 'if the Recorder had considered the evidence by reference to the test of 'oppressive and unacceptable' would he inevitably have come to the same conclusion[...]?.... The Court found that he would not and that the account of victimisation, demoralisation and reduction of a robust woman to a state of clinical depression crossed the line into conduct which is 'oppressive and unreasonable'.

The court noted that since the case of Hatton v Sutherland it has been more difficult for employees to succeed in negligence claims based on stress at work and it may be that this has prompted more employees to seek redress by reference to harassment and the statutory tort. Whilst the court thought the facts in this case were 'extraordinary' and that not many workplace cases would give rise to this liability, it is likely that the decision will fuel more claims under the Harassment Act where there has been an oppressive course of conduct.

High Court Grants Injunction On Grounds Of Inadequate Ballot Notice

In EDF Energy Powerlink Ltd v RMT the High Court had to consider whether a ballot concerning possible industrial action complied with the ballot requirements under section 226A of the Trade Union Law Reform (Consolidation) Act (TULRCA), namely whether the union had supplied sufficient information about the categories of employee to be balloted. EDF sought an injunction from the High Court restraining the union from relying on the ballot notice which, it claimed, did not adequately identify the categories of staff which were being balloted. This meant that EDF could not make any contingency planning and any industrial action which might result would cause severe disruption to passengers on the London Underground.

The High Court granted an injunction to EDF, rejecting the RMT's argument that upholding EDF's position would infringe the 'right to strike' principle under Article 11 of the European Convention of Human Rights. The Court agreed with the decision in Metrobus Ltd v UNITE that the notification and balloting requirements in TULRCA were not onerous or oppressive.

The High Court held that EDF was entitled to be told which trades were being balloted and which might later be called out on strike. EDF was not seeking a detailed job description but it would make a material difference to EDF if, for example, a trade room inspector withdrew his labour as opposed to a fitter. The RMT's breach was not technical or immaterial and the Court considered the prospects of a strike and the consequences of an unlawful strike to be sufficiently imminent to merit an injunction.

Territorial Jurisdiction

The Court of Appeal has handed down its decision in Diggins v Condor Marine finding that a Suffolk based employee who worked fortnightly shifts on a ship between the Channel Islands and Portsmouth could bring an unfair dismissal complaint even though the employer was based in Guernsey and the boat was registered in Nassau, Bahamas. The court applied the decision in Lawson v Serco, considering Mr Diggins as falling into the second category of case identified in that case, ie that of the peripatetic worker. The Court emphasised that the key question is not where the employer is based but where the employee is based. To that end, where Mr Diggins was concerned 'there can only be one sensible answer: it is where his duty begins and where it ends'. The Court did not accept that the considerations of where the company operated or where the ship was registered were likely to have any significant influence on the question where a particular employee was based.

This case firmly follows the line taken in Lawson v Serco filling the gap left in the legislation following the repeal of s106 of the Employment Rights Act which had provided that the right to claim unfair dismissal did not apply to employees who ordinarily worked outside Great Britain. The approach now taken by the courts is a pragmatic one, focusing on where the employee is actually based throughout the performance of his contract.

EAT Uphold ET's Decision in McFarlane v Relate

The EAT has upheld the Tribunal's finding in McFarlane v Relate Avon Ltd (reported in Employment Briefing March 09) that a Christian counsellor who objected to offering sexual counselling to same sex couples was fairly dismissed. Following the decision in London Borough of Islington v Ladele the EAT held that Mr McFarlane was not dismissed for being a Christian but because a manifestation of his beliefs contradicted a legitimate aim of Relate, namely to offer counselling services to all sections of the community, regardless of their sexual orientation, among other things. Given Relate's strong commitment to providing such counselling to all, without discrimination, it could justify dismissing Mr McFarlane as a proportionate means of achieving that aim. The EAT also rejected Mr McFarlane's argument that he was assisted by Article 9 of the European Convention of Human Rights (right to freedom of thought, conscience and religion), noting that Kalac v Turkey made clear that an employee does not have 'an unqualified right to manifest their religion'.

In Ladele, the EAT held that a Christian registrar who was dismissed for refusing to perform civil partnership ceremonies had not been discriminated against on the ground of her religious belief. Ms Ladele has appealed the decision against her to the Court of Appeal and judgment is awaited.

Providing Information: TUPE

In Cable Realisations Ltd v GMB Northern the EAT upheld a Tribunal's decision that when providing information under Regulation 13(2) of the TUPE 2006 Regulations, where no duty to consult under Regulation 13(6) was triggered as no measures were envisaged, the transferor should have taken into account a period of annual shutdown when employees were absent from work. Regulation 13(2) provides that the employer must provide certain information long enough before a relevant transfer to enable the employer of any affected employees to consult appropriate representatives. Regulation 13(6) provides that where 'measures' are envisaged in relation to affected employees the employer must consult with appropriate representatives. In other words, the required duty to consult only comes into play where measures are intended. The consultation envisaged by Regulation 13(2) is voluntary.

Cable had insisted on a quick sale of its ailing cable business to Paramount. On 15 August 2007 Paramount provided Cable with the information required under Regulation 13(2) and on the same day the union was provided with the same information. In particular, Paramount stated that there were no measures envisaged in relation to the transfer. On 17 August the factory closed early for the annual shutdown between 20 and 31 August, during which period about 99% of union (GMB) employees were on holiday. The transfer was completed on 3 September, on which day there was a meeting between Cable, Paramount and GMB representatives. The GMB claimed breach of the duty to inform in that inadequate time was given between 15 August and 3 September given the annual shutdown.

The EAT held that the purpose behind the requirement to provide information under Regulation 13(2) is to allow the employees' representatives to engage in a consultation process with the employer on an informed basis. A responsible employer will not necessarily limit consultation to 'measures' and the purpose of providing information is therefore to assist voluntary as well as compulsory consultation. In deciding that the information had not been provided 'long enough' before the transfer to facilitate consultation, the EAT held that the tribunal were entitled to take into account the annual shutdown. When assessing the size of the protective award, the EAT awarded 3 weeks' pay per affected employee to reflect the 'justice of the case'.

And Finally...

Equality Bill

The Equality Bill has had its third reading in the House of Commons and has passed to the House of Lords for consideration. The Bill will harmonise and, in some cases, extend existing discrimination law covering the protected characteristics. It will also address recent case law which is generally seen as having weakened discrimination protection and harmonise provisions defining indirect discrimination.

Increase in Parental Leave

A new Framework Agreement concluded by the EU social partners will give each working parent the right to an increased four months leave after the birth or adoption of a child (up from the existing three months). At least one month of the leave cannot be transferred to the other parent. The European Commission will now submit a proposal to the Council of Ministers for the Framework Agreement to be implemented by way of an amendment to the Parental Leave Directive.

Right to Request Time Off for Training

The Government intends to introduce a right to request time off to undertake training relevant to the employee's job (to enable them to become more productive or effective at work) for all employees who have been continuously employed for 26 weeks. The right will be introduced for staff in organisations with 250 or more employees from April 2010 and extended to all employees from April 2011. Employers will have to seriously consider all such requests but can refuse requests where there is a good business reason for doing so. Employers are not expected to pay for the training.

The new right will be included in the Apprenticeships, Skills, Children and Learning Bill which is currently being debated in the House of Lords.

Government's Response to Outlawing Blacklists Consultation

The Government has published its response to the consultation on outlawing blacklisting workers for union membership or activities. The Government intends to amend the draft regulations and bring them into effect in early 2010.

EWC Directive Consultation

The Government has launched a consultation on implementation of the recast European Works Council Directive by means of the Transnational Information and Consultation Regulations 2010 which will amend the 1999 Regulations. Consultation will close on 12 February 2010.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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