UK: This Month's Top Employment Cases – April 2010

Last Updated: 30 April 2010
Article by Speechly Bircham Employment Group

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:

Sick leave and holiday - An employment

tribunal, relying on the ECJ's decision in Pereda v Madrid Movilidad SA, confirmed that annual leave that was not taken due to sickness could be carried over to the following holiday year. In deciding this, the tribunal interpreted the provision in the Working Time Regulations 1998 (the Regulations) preventing carrying over of statutory holiday in line with the EU Working Time Directive which permitted such a carrying over. The justification for interpreting it in this way was that to do so was compatible with the underlying health and safety purpose of the Regulations (Shah v First West Yorkshire Ltd).

Please click here to read further comment on this case.

Temporary agency worker unable to bring either unfair dismissal or discrimination claim – the Court of Appeal confirmed that an agency worker who worked under a temporary contract as a prison cleaner for his agency's client, HM Prison Service, did not become an employee of the client for the purposes of an unfair dismissal claim. On the facts he was not employed by the agency either so he had no claim for unfair dismissal. More surprisingly, the Court also found that he was not "employed" by the client under the wider definition of employment in the discrimination legislation in which he would need to demonstrate that he had a contract personally do any work, and therefore could not pursue discrimination claims against the client. This leaves open the possibility that many other agency workers may be left in a similar position – that is no protection at all under discrimination law, either against the agency or its client. This is likely to be something that is reviewed in any post election review of this area of the law (Muschett v HM Prison Service).

Concealment of necklace cross not discriminatory -

The Court of Appeal confirmed that a Christian employee did not suffer indirect discrimination on the ground of her religion or belief, when, in line with its uniform policy (which prohibited customer facing staff from wearing any visible item of adornment), she was prevented from displaying a cross on her necklace. Under the uniform policy only items worn because of mandatory religious requirements which could not be concealed under the uniform were permitted to be visible e.g. the hijab, turban and skull cap. For a claim of indirect discrimination to succeed the Court of Appeal considered that treatment must actually or potentially disadvantage a group and not just an individual and here, although Ms Eweida clearly felt very strongly about the importance of displaying her cross, the Court found this was not a mandatory requirement of her religion. This is an interesting area of debate as it means that an individual's own religious faith, or their interpretation of a wider faith, is not capable of protection unless it can be shown to be in line with a bigger group. On the one hand this means that employers do not have to worry about a whole series of individualistic religious beliefs but, on the other hand, members of religions like Christianity which have very few (if any) mandatory requirements of outward demonstration of their faith will find it hard to claim protection for any attempt (however small) to show their faith. (Eweida v British Airways plc).

Serial litigant fails in age discrimination claims - the EAT dismissed a number of claims by an experienced accountant in her late forties who, although clearly overqualified, had applied for jobs advertised by various employment agencies for newly qualified accountants and then claimed age discrimination against the employment agencies when she was not invited to interview. Even if she had potentially been discriminated on the grounds of her age, she was precluded from bringing the claims on the basis that she did not actually want the jobs for which she had applied and therefore she had not suffered any detriment in being denied the roles (Keane v Investigo and ors).

TUPE – Duty to inform even if no duty to consult - a transferor under TUPE has an obligation both to inform elected representatives of the affected employees about a transfer (and certain related issues) and to consult about measures which are expected to be taken in connection with those employees. In this case information was provided very late in the day (bearing in mind the annual factory shut down immediately before the transfer date) which meant that there was no opportunity for any consultation to take place. The employer argued that as no measures were to be taken the duty to consult did not arise. On that basis the employer argued first that it did not matter the information was provided late in the day and secondly that in fact the duty to inform itself did not arise given the absence of any need to consult. These arguments were rejected. There are two separate obligations and so the absence of statutory consultation did not remove the information requirement. Further, because the provision of the information is partly to allow the affected employees to engage in discussion with the employer about what is happening (whether or not this constituted statutory consultation under the TUPE regs) it matters that the information was so late. (Cable Realisations Ltd v GMB Northern).

Lawful for employers to change terms without express consent

EAT upheld a tribunal decision that Asda was entitled to rely upon a statement in its employee handbook reserving the right to vary contractual terms in order to introduce a new pay regime, without the express consent of its employees. The decision is of great potential use to employers. It is important to note that the wording here was very clear in its terms so there could be no doubt that the intention was to allow unilateral variation of contractual terms by Asda. Further, although not a determining point in this case, another tribunal asked to consider the issue might have taken the view that the unequal bargaining power between the employer and employee at the time the contract was entered into called into question whether the wording, however clear and unequivocal, actually represented the intention of parties (Bateman and ors v Asda Stores 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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