UK: This Month's Top Employment Cases

Last Updated: 22 January 2010
Article by Speechly Bircham Employment Group

Here is a brief summary of recent cases we think are of particular interest.

Sham contracts – The Court of Appeal has confirmed that when looking at the genuineness of express terms of an employment contract when determining an individual's status, a tribunal should look at the written agreement, the conduct of the parties and their expectations to find out the true status. It is not however necessary to show that there had been a common intention to mislead. The question arose in the context of contracts that purported to appoint individuals as independent contractors, and not employees. The individuals successfully argued that the terms of the contracts were a sham and that they should in fact be treated as employees, with all the statutory protection that status involves. (Autoclenz Ltd v Belcher and ors)

Service provision change – The Employment Appeal Tribunal (EAT) has looked at the question of what constitutes a "service provision change" for the purposes of the revised TUPE Regulations introduced in 2006. The case concerned the provision of catering services at a BMW plant. The outgoing contractor's services had included a requirement to prepare hot food. The incoming contractor did not have to do so. Although the underlying purpose was still to feed the workers at the plant the EAT concluded that activities were fundamentally different such that the change did not constitute a service provision change for the purposes of the TUPE Regulations. (OCS Group UK Ltd v Jones and anor)

Maternity leave and notice requirements – The claimant had failed to comply with the notice requirements for statutory maternity leave (to inform her employer of the pregnancy by the end of the 15th week before the expected week of childbirth and the date she intends to take her leave). The EAT accepted her argument that the failure was because it had not been reasonably practicable for her to do so (she was unaware of her entitlement). The EAT therefore held that she was entitled to her maternity benefits. This is a reminder that although there are strict notice requirements, if these are missed because it was not reasonably practicable to comply, as long as notice is given as soon as reasonably practicable thereafter (in this case. when the claimant did become aware of her entitlement), the notice requirement will be satisfied. (Alphonsus RC Primary School v Blenkinsop)

Job rejection not disability discrimination – The EAT has held that a person's inability to meet the physical requirements for entry into a profession (in this case the claimant failed an eyesight test to become a police officer) is not a relevant adverse effect on that person's ability to carry out day to day activities. Accordingly, that failure will not automatically mean that they will be disabled for the purposes of the Disability Discrimination Act 1995. The claimant's eyesight problem was serious enough to mean she failed the police force test but did not in itself materially impact her day to day activities meaning she did not qualify for protection under the Act. (Chief Constable of Lothian and Borders Police v Cumming)

Disability discrimination and reasonable adjustments – The EAT has confirmed that an employer has a defence to a disabled employee's claim for failure to make reasonable adjustments if the employer did not know and could not have been expected to have known about a particular effect of the employee's disability (even though the employer may have known that the employee was disabled). This conflicts with a previous EAT decision (Eastern and Coastal Kent Primary Care Trust v Grey) in which it held that the defence would only apply if the employee did not know and could not reasonably be expected to know both of the disability and that the employee was likely to be at a significant disadvantage. Although the decision would appear to put the onus on employees to make sure their employer knows all about the disability and its impact on them, in reality a prudent employer will, when it becomes aware of a disability, make its own enquiries rather than leaving it to the employee. (Secretary of State for the Department for Work and Pensions v Alam)

Revision of injury to feelings awards in discrimination claims – The EAT has increased the bands (known as the Vento guidelines) in which an award for injury to feelings in discrimination cases can be made. The adjustments, to reflect inflation since the Vento decision, mean that the upper limit of the top band is increased from £25,000 to £30,000, the middle band from £15,000 to £18,000 and the lower band from £5,000 to £6,000. The EAT also said that disputes about where an award should sit within a particular band are likely to be questions for tribunals to decide as questions of fact. The EAT is more likely to consider them to be questions of law (which can be appealed) if they are about placement in the wrong band or at the extremes of a band. (Da'Bell v National Society for the Prevention of Cruelty to Children)

Redundancy selection and unfair dismissal – A tribunal has held that the use of company values as part of the redundancy selection procedure was unfair. Though it was not in itself unfair to use company values as part of the selection process the claimant had had no training on what the values meant and the values were inherently subjective, with no method of cross-checking different managers. The decision therefore underlines the need for redundancy selection criteria to be fair and, in so far as possible, objective. (Howard v Siemens Energy Services)

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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