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.

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