UK: Employment Briefing - October 2011

Last Updated: 14 November 2011
Article by Brian Gegg and Jesper Christensen

Global conspiracy belief not protected

A tribunal has held, at a pre hearing review, that an employee's genuinely held beliefs that the 9/11 and 7/7 attacks were 'false flag operations' sanctioned by the UK and the US and that the approach of the UK government and police to counter terrorism were 'utter shams', did not satisfy the test of possessing the requisite 'cogency and coherence' to be a philosophical belief within the definition of the pre-Equality Act Religion or Belief Regulations 2003.

In Farrell v South Yorkshire Police Authority, Mr Farrell worked as a 'principal intelligence analyst' for the South Yorkshire police authority. He produced a document on 'strategic threat assessment' which expressed the views above. He was dismissed as his views were considered to be incompatible with his contract. At a pre hearing review to consider whether his views fell within the definition of 'philosophical beliefs' which would be protected from discriminatory treatment, the tribunal judge considered the test set out in Grainger plc v Nicholson and found that, whilst the beliefs were genuinely held and were a genuine belief as to a weighty and substantial aspect of human life and behaviour, they 'completely failed to meet even a bare minimum standard of coherence and cohesion'.

Interestingly, the judge in this case did not agree with the police authority's contention that Mr Farrell's beliefs were not worthy of respect in a democratic society. The decision does provide some clarity on where the boundaries of 'philosophical belief' lie in favour of employers.

Summary dismissal during notice

It is common practice for employers to dismiss employees summarily rather than with notice where to give notice would enable an employee to accrue the necessary one year's qualifying service (soon to increase to two years) to claim unfair dismissal. A new case has examined the extent of an employer's ability to summarily dismiss where it has already given notice.

In M-Choice UK Ltd v Aalders, Ms Aalders was placed on six months garden leave some six months into her contract and told that her employment would end on the anniversary of her joining M-Choice 'at the latest'. Ms Aalders brought a claim for unfair dismissal stating that her employment was due to terminate on the one year anniversary. A fortnight before the proposed termination date, M-Choice wrote to say Ms Aalders' employment was being terminated with immediate effect. Ms Aalders then amended her claim to state that the principal reason for her dismissal was because she had asserted a statutory right (which is automatically unfair under section 104(1) of the Employment Rights Act 1996).

The EAT overturned the tribunal judge's decision that the second letter sent by M-Choice did not bring forward the effective date of termination. The EAT held instead that the dismissal date was the earlier date on which Ms Aalders was summarily dismissed. Ms Aalders did not therefore qualify to claim unfair dismissal. The legislation makes it clear that the effective date of termination is either when notice expires or when an employee is summarily dismissed. There was nothing in the legislation which entitled the courts to treat a situation as frozen in time with no regard to subsequent events (ie the summary dismissal).

This case makes clear that an employer is entitled, once it has given notice of dismissal, to supersede that notice with a summary dismissal, thereby disentitling an employee to claim unfair dismissal.

Post transfer liabilities and the NI fund

In Pressure Coolers Ltd v Molloy the EAT followed the line of reasoning in OTG v Barke that liabilities in respect of an employee who transfers under TUPE cannot fall to be paid by the Secretary of State out of the National Insurance Fund.

In this case, Mr Molloy was employed by MI Ltd as a bench fitter. MI entered into a creditors' voluntary arrangement and then agreed that PC Ltd would acquire its business. An administration pre-pack was prepared, MI Ltd was put into administration and its business simultaneously transferred to PC Ltd under a pre-pack sale agreement.

Mr Molloy's employment transferred to PC Ltd but on the same day PC Ltd dismissed him with immediate effect by reason of redundancy. Mr Molloy was owed wages and entitled to accrued and unpaid holiday.

Mr Molloy brought proceedings against MI Ltd and PC Ltd for unfair dismissal, notice pay, unpaid holiday and wages due and also joined the Secretary of State.

With regard to the Secretary of State, the EAT upheld the tribunal's decision that the relevant debts (pay arrears and holiday pay) had to arise before the transfer to qualify as debts to be paid out of the NI fund. The EAT noted the decision in OTG v Barke that the Secretary of State would only take on 'past liabilities' owed by the transferor to the employees as at the date of transfer. The relevant debts had to arise before the transfer in order to come within the State guarantee. In respect of the unfair dismissal basic award and notice pay, neither of these liabilities in any event could be said to have crystallised at the point of transfer since they only accrued when Mr Molloy was dismissed.

Age discrimination

In Prigge and others v Deutsche Lufthansa AG the ECJ held that a compulsory retirement age of 60 for Lufthansa airline pilots was in breach of the Equal Treatment Directive.

Mr Prigge and his colleagues were employed by Lufhansa as pilots. A collective agreement governing their contracts provided that their employment would be terminated without notice at the end of the month in which they reached 60.

The pilots brought claims that they were discriminated against by reason of their age and the claim was referred to the ECJ. The ECJ noted that German and international law has fixed the compulsory age limit for pilots at 65 and that therefore the age limit of 60 was not justified as 'necessary' for the protection of heath under Article 2(5) of the Directive which permits limited exemptions. The absolute age limit of 60 in the collective agreement 'was not necessary for the achievement of the pursued objective'.

The ECJ also rejected the defence that airline pilots require certain physical attributes which decline with age. Finally, it also held that the retirement age could not be objectively justified because the ECJ had previously held that legitimate aims must be social policy objectives and an aim such as air traffic safety does not fall into this category. This is arguably a curious decision since the safety of passengers would seem to fall squarely within this category.

In this case, the ECJ was obliged to take into account national and international air safety rules which permitted airline pilots to continue flying until they were 65. It may have been a different outcome without such evidence.

And finally...

Unfair Dismissal – qualifying service to increase to two years

As highlighted in our recent briefing, from 6 April 2012 the qualifying service period to claim unfair dismissal is set to increase to two years.

EHRC press for review of Eweida and Ladele

The Equality and Human Rights Commission (EHRC) have expressed discomfort with the decisions in Eweida v British Airways plc and Ladele and McFarlane v United Kingdom and is intervening before the European Court of Human Rights. It is arguing that in these cases, the courts have interpreted the law on religion and belief too narrowly and have failed to take proper account of Article 9(2) of the European Convention on Human Rights. The EHRC contends that the bar has been set too high for religion or belief discrimination claims to succeed. It is putting the case that an employer should take steps to accommodate an employee's religious requirements.

Appeal on volunteer's discrimination case

The Supreme Court has given leave to appeal the decision in X v Mid Sussex Citizens Advice Bureau and others in which the Court of Appeal held that a volunteer working for the CAB could not bring a discrimination claim under the Disability Discrimination Act or under the Equal Treatment Directive.

Dismissal of claim challenging Civil Service reforms

The High Court has dismissed a challenge brought by unions that the reforms of the Civil Service Redundancy Scheme were in breach of Human Rights legislation. The High Court found that the reduction in rights was justified in order to spread the burden fairly.

Amendments to Agency Workers Regulations

The Agency Workers Regulations 2010 have been amended to correct drafting errors. The amendments widen the definition of agency worker to cover individuals with a contract of employment with a temporary work agency (TWA) or 'any other contract to perform work and services personally'.

Where a permanent contract provides for pay between assignments, the amending regulations clarify that TWAs are not obliged to find suitable work and pay agency workers who are not working.

Finally, the 'reasonable steps' statutory defence for breach of equal treatment is only available to TWAs, not hirers.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.