UK: This Month's Top Employment Cases

Last Updated: 26 March 2010

Here is a brief summary of recent cases we think are of particular interest. If you would like advice on any particular area, please contact your usual Speechlys' contact or one of the employment partners listed on the front page of this Inform:

Clarity on age-related notice periods and the relationship between EU and national law - The European Court of Justice (ECJ) held that a German law, which disregarded employment before the age of 25 when calculating service–related notice periods, was directly discriminatory and could not be objectively justified. In terms of the wider implications of the case, the ECJ confirmed that the prohibition on age discrimination is a general principle of EU law. Consequently, rights under a directive which gives expression to this principle of EU Law are, contrary to the general rule, enforceable in the private sector. This case could therefore have ramifications for some UK laws e.g. the basic awards for unfair dismissal and redundancy which are based on age during each year of service (Kücükdeveci v Swedex GmbH und Co KG).

Legal representation at conduct hearings – The Court of Appeal held that a school employee was entitled to legal representation at disciplinary hearings under Article 6 of the European Convention on Human Rights given the seriousness of the charge (an inappropriate relationship with a child) and the impact that the result of the hearing could have on the employee's ability ever to practice his profession again (Governors of X School v R (on the application of G and ors)). Please click here to read further comments on this case.

Maximum working age – The ECJ held that a maximum working age could be justified under the Equal Treatment Directive, for example, as a proportionate way of ensuring that work is offered to different generations. The case concerned a rule prohibiting those over 68 from being registered as dentists within the German national health service. The justification was that a growth in dentist numbers had placed a financial strain on the system and it was felt unfair that the burden should be born simply by the young through limiting new admissions. (Petersen v Berfungsausschuss für Zahnärzte für den Bezzirk Westfalen-Lippe).

Maximum recruiting age - In another German age discrimination case the ECJ upheld a maximum age for German fire fighter recruits of 30. The justification of the rule was that fire fighters need to be fit to do their work, that there is a significant training investment which the employer needs to be able to recoup during active fire fighting service and there is a blanket assumption that the fire fighters tend to lose the required fitness levels in their mid 40s. Despite this broad and somewhat questionable generalisation the justification defence was accepted. (Wolf v Stadt Frankfurt am Main)

Competition law breaches and the rule that claimants cannot benefit from their own wrongdoing - The facts of this case are quite complex. Safeway had admitted price fixing in the milk market and had been subjected to a large fine. It then sought to claim the amount of the award from the employees responsible for the price fixing, none of whom were board members, on the basis that the D & O insurance would ultimately foot the bill. The employees sought to strike out the claim on the basis of the maxim that a claimant ought not to be able to benefit from its own wrongdoing – ie that the acts complained about, the price fixing, had in effect been done by Safeway. The High Court refused the strike out application. Although Safeway assumed vicarious liability for the acts concerned, that was not sufficient to make them its own acts for the purposes of the maxim. The case is of benefit to employers in various regulated environments where fines might be imposed on the employer as a result of unauthorised acts of its employees. (Safeway Stores Ltd and ors v Twigger and ors).

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.

Transferred employees and collective agreements determining pay – The Court of Appeal has followed the ECJ decision in Werhof v Freeway Traffic Systems GmbH and Co KG and held that a 'static' interpretation (rather than a 'dynamic' interpretation) should be given to transferred employment contracts under the transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), so that where a collective agreement is in place pre transfer only terms agreed at the date of transfer are binding on the transferee. In this case, under a clause in the transferred employees' contracts, pay rises were linked to a public service national negotiated framework. After transfer of the employees to the private sector that framework produced pay rises from which the transferred employees sought to benefit. Their claim was unsuccessful. The 'static' interpretation meant that the transferee was not bound by any pay rises which were determined by collective agreement following the transfer but only those in place as at the transfer. (Parkwood Leisure Ltd v Alemo-Herron).

Untaken holiday – The Employment Appeal Tribunal (EAT) held that, provided an employer does not refuse holiday requests in an unreasonable, arbitrary or capricious way, workers can lose their right to untaken days of statutory holiday at the end of the holiday year (Lyons v Mitie Security Ltd).

Obligation to provide work – The Court of Appeal upheld an injunction preventing sales agents from working for another company during their notice periods. The Court also confirmed the right of the employer to suspend the sales agents during their notice periods, even though the effect of this was to prevent the sales agents from earning a living as they were paid by commission. By agreeing to start work for a competitor (and indeed registering as agents for the competitor), the sales agents had breached their duty of good faith and, consequently, the employer no longer had an obligation to provide them with work (Standard Life Health Care Ltd v Gorman and ors).

Unlawful industrial action – In a case which has attracted significant press and public attention shortly before Christmas the High Court granted an interim injunction which prevented British Airways cabin crew from striking over the Christmas period. This was because the trade union's ballot for strike action had included members who the union knew were no longer entitled to vote, as they would no longer be employed at the time of the strike having accepted voluntary redundancy. The trade union had therefore failed to comply with the statutory requirements for ballots. Although the union has now of course begun strike action following a fresh ballot, this was after considerable cost and a degree of loss of face. The case highlights the importance for unions of following the letter of the legislation as well as the benefit from an employer's perspective of analysing every step taken by a union in preparation for a strike to ensure such compliance. (British Airways plc v Unite the Union).

Harassment – The Protection from Harassment Act 1997 (the PHA) offers employees an alternative route to pursue claims of harassment against employers. The Court of Appeal has however reaffirmed that the threshold for conduct to establish liability under the act is set high. The behaviour concerned must be more than simply unreasonable. It must be "oppressive and unacceptable" and must be such as would sustain criminal liability. This is a high burden and reinforces the view that the POA is not an easy way out for harassed employees to avoid having to prove that the harassment stemmed from a protected status under the discrimination legislation. (Veakins v Kier Islington Ltd).

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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