In the light of the ECJ and House of Lords judgment in Stringer & ors v HMRC [2009] ICR 985 an employment tribunal at Sheffield has now held that an employee who was off work sick for the whole of a holiday year was entitled to holiday pay as a wrongful deduction from wages.
There is now available on the emplaw web-site a transcript of the Sheffield Employment Tribunal's January 2010 judgment in Rawlings v The Direct Garage Door Company Ltd.
Friday, 26 March 2010
Thursday, 25 March 2010
Chamber of Commerce Wants ACAS to Vet ET1s
The British Chambers of Commerce, with the help of employment lawyers at Brabners Chaffe Street, have produced a report entitled "Employment Regulation: up to the job? with the aim of improving the process of going to an employment tribunal.
The main purpose of the report is to present "a number of ways that employment legislation and the Tribunal system can be rebalanced, resulting in reduced costs, less bureaucracy and improving the competitiveness of the UK economy".
Out of the lengthy report one of the proposals would be that:
Any claimant who has not received professional advice would be obliged to go through their ET1 form with Acas before submitting their claim. The idea is that this would prevent claims with no real chance of success getting into the tribunal system at all, thus saving time and money for both the employer and the Tribunal service.
This ill conceived plan in my view relies heavily on untrained lawyers to give legal advice. We all know that trained lawyers come with varying degrees of competency but to expect ACAS mediators to know the law and take responsibility for what is in essence, legal advice seems like an onerous burden to lay at their feet.
The report also suggests an enforced mediation with ACAS in some cases with the penalty of a longer wait before being heard at tribunal for those uninterested. This fast track ACAS conciliation system would be applicable for employees claiming less than £3,000.
Again, this enforced mediation forgets that the process of employment litigation already has the ACAS grievance and dismissal/disciplinary procedures in place which holds the threat of financial penalties for those not adhering to mediation rules.
Stangely, the report also states that employers should not have the same health and safety responsibilities towards remote workers and lone workers as they do towards office based staff. If this latter proposal alone were to be introduced it would have to overturn entrenched principles found in law and would certainly require legislation in order to introduce it soundly.
The main purpose of the report is to present "a number of ways that employment legislation and the Tribunal system can be rebalanced, resulting in reduced costs, less bureaucracy and improving the competitiveness of the UK economy".
Out of the lengthy report one of the proposals would be that:
Any claimant who has not received professional advice would be obliged to go through their ET1 form with Acas before submitting their claim. The idea is that this would prevent claims with no real chance of success getting into the tribunal system at all, thus saving time and money for both the employer and the Tribunal service.
This ill conceived plan in my view relies heavily on untrained lawyers to give legal advice. We all know that trained lawyers come with varying degrees of competency but to expect ACAS mediators to know the law and take responsibility for what is in essence, legal advice seems like an onerous burden to lay at their feet.
The report also suggests an enforced mediation with ACAS in some cases with the penalty of a longer wait before being heard at tribunal for those uninterested. This fast track ACAS conciliation system would be applicable for employees claiming less than £3,000.
Again, this enforced mediation forgets that the process of employment litigation already has the ACAS grievance and dismissal/disciplinary procedures in place which holds the threat of financial penalties for those not adhering to mediation rules.
Stangely, the report also states that employers should not have the same health and safety responsibilities towards remote workers and lone workers as they do towards office based staff. If this latter proposal alone were to be introduced it would have to overturn entrenched principles found in law and would certainly require legislation in order to introduce it soundly.
Wednesday, 24 March 2010
New Legal News Site Launched
www.lawnewsuk.co.uk is an online legal community and offers something fresh to all those with an interest in law. Not only firm news is covered but also legal developments in a range of areas. There is also training news and a novel section of MP4 videos offered by law firms.
Monday, 15 March 2010
The Equality Act and New Law to Protect the Disabled
It is likely that this huge piece of legislation will soon become law. The 3rd and final reading of the Equality Bill is scheduled for March 2010. Large parts of the Act are likely to come into effect in autumn 2010, 5 years after the Discrimination Law Review launched in 2005.
The Act repeals and replaces the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, much of the Equality Act 2006, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, and the Equality Act (Sexual Orientation) Regulations 2007 (all as subsequently amended), plus other ancillary pieces of legislation. At first blush this should make discrimination law far more concise and easy to navigate.
The Act is more ambitious however, than a simple piece of legislation aimed at consolidating preceding material; new legal concepts such as 'perceived discrimination and 'Protected Characteristics' emerge for the first time.
There will be increased support for disabled people in the Equality Act
Enquiries About Health - Pre-Employment
The Act is likely to include a new clause 40 on pre-employment enquiries about disability and health, which should diminish the likelihood of disabled not reaching the interview stage.
If an applicant claims that a potential employer has enquired about his or her health before making 'a relevant decision', the new clause 40 shifts the burden of proof onto the employer so that, in the absence of any other explanation, the tribunal must hold that a contravention has occurred. A relevant decision is one that determines progression to the next round of the application process or a decision on who gets the job.
Employers can ask some questions relating to disability before employment however, the section will not apply to questions which are necessary to establish whether;
a duty to make reasonable adjustments arises;
to monitor diversity in applicants;
to enable an employer to take positive action;
or, if the employer requires a potential employee to have a particular disability, the questions necessary to establish this.
This will soon form part of a CPD course found on www.cupidtraining.co.uk
The Act repeals and replaces the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, much of the Equality Act 2006, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, and the Equality Act (Sexual Orientation) Regulations 2007 (all as subsequently amended), plus other ancillary pieces of legislation. At first blush this should make discrimination law far more concise and easy to navigate.
The Act is more ambitious however, than a simple piece of legislation aimed at consolidating preceding material; new legal concepts such as 'perceived discrimination and 'Protected Characteristics' emerge for the first time.
There will be increased support for disabled people in the Equality Act
Enquiries About Health - Pre-Employment
The Act is likely to include a new clause 40 on pre-employment enquiries about disability and health, which should diminish the likelihood of disabled not reaching the interview stage.
If an applicant claims that a potential employer has enquired about his or her health before making 'a relevant decision', the new clause 40 shifts the burden of proof onto the employer so that, in the absence of any other explanation, the tribunal must hold that a contravention has occurred. A relevant decision is one that determines progression to the next round of the application process or a decision on who gets the job.
Employers can ask some questions relating to disability before employment however, the section will not apply to questions which are necessary to establish whether;
a duty to make reasonable adjustments arises;
to monitor diversity in applicants;
to enable an employer to take positive action;
or, if the employer requires a potential employee to have a particular disability, the questions necessary to establish this.
This will soon form part of a CPD course found on www.cupidtraining.co.uk
Sunday, 7 March 2010
Counter Claim Confusion
Counter claims are a useful tactic for putting pressure on a Claimant if nothing else but remember under the ERA that you can only add a counter claim as a Respondent if the Claim is for a contractual breach.
Wednesday, 24 February 2010
Shifting the Burden of Proof in Discrimination Claims
Where an employee claims unlawful racial discrimination it is not enough to show that conduct is unreasonable or unfair for the burden of proof to be shifted to the employer to demonstrate that there was no racially motivated reason for the action complained of. For the burden of proof to shift it must be shown that there was some racial motivation.
In the case of, Commisioner of Police of The Metropolis & Anor v Osinaike EAT on 22nd February 2010On 3rd June 2009 the London South employment tribunal dismissed most of the harassment claims of Ms Osinaike claims save one. The tribunal found in her favour that her complaint of racial harassment was well founded in that she was told in June 2007 by the Senior Management Team that she needed to see a psychiatrist. The tribunal concluded that had Ms Osinaike been white, the Police "would have readily understood the difficulties of her continued placement within Southwark and addressed those matters as opposed to seeing her as irrational and in need of psychiatric intervention".
At the EAT The Respondents were successful with their appeal:
The EAT said that simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof. There was no evidence to suggest any racial element in the actions taken by the Police, which would be a pre-requisite for transferring the burden of proof to make the Police liable unless they showed a non-discriminatory explanation for what happened. In this case it was "notable that the Tribunal nowhere considered the reasons why the [police] acted as they did. The only finding made was the acceptance of [the police occupational health adviser's] view that this was an example of an occasion on which the [Police] 'found it more convenient to medicalise the situation and refer the Claimant to Occupational Health'. This on the face of it has nothing to do with race."
In short, if one is considering an appeal the findings of fact made by the ET must point to a discriminatory motive before the burden is shifted to the employer under the Igen V Wong principles.
http://www.bailii.org/uk/cases/UKEAT/2010/0373_09_2202.html
In the case of, Commisioner of Police of The Metropolis & Anor v Osinaike EAT on 22nd February 2010On 3rd June 2009 the London South employment tribunal dismissed most of the harassment claims of Ms Osinaike claims save one. The tribunal found in her favour that her complaint of racial harassment was well founded in that she was told in June 2007 by the Senior Management Team that she needed to see a psychiatrist. The tribunal concluded that had Ms Osinaike been white, the Police "would have readily understood the difficulties of her continued placement within Southwark and addressed those matters as opposed to seeing her as irrational and in need of psychiatric intervention".
At the EAT The Respondents were successful with their appeal:
The EAT said that simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof. There was no evidence to suggest any racial element in the actions taken by the Police, which would be a pre-requisite for transferring the burden of proof to make the Police liable unless they showed a non-discriminatory explanation for what happened. In this case it was "notable that the Tribunal nowhere considered the reasons why the [police] acted as they did. The only finding made was the acceptance of [the police occupational health adviser's] view that this was an example of an occasion on which the [Police] 'found it more convenient to medicalise the situation and refer the Claimant to Occupational Health'. This on the face of it has nothing to do with race."
In short, if one is considering an appeal the findings of fact made by the ET must point to a discriminatory motive before the burden is shifted to the employer under the Igen V Wong principles.
http://www.bailii.org/uk/cases/UKEAT/2010/0373_09_2202.html
Tuesday, 16 February 2010
Request to Remove Cross did Not amount to Religious Discrimination
BA's 'no visible jewellery' policy not discriminatory
In Eweida v British Airways Plc, Ms Eweida has lost before the Court of Appeal in her challenge to the EAT's decision that BA's uniform policy, which required E to remove or conceal her cross, did not amount to indirect religious discrimination. In dismissing the appeal, the Court of Appeal noted that where an employer is faced with conflicting responses to a provision, criterion or practice from people of different beliefs, a blanket ban may sometimes be the only fair solution.
E, a practising Christian, worked for BA as a member of check-in staff. For most of the time she was employed, BA's uniform policy permitted employees to wear any jewellery they wished provided it was not visible. Items deemed to be a mandatory religious requirement which could not be concealed could be permitted by management. After refusing to conceal a silver cross she wore on a necklace, E was sent home without pay. She brought a number of claims against BA, including direct and indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660.
The tribunal dismissed all of E's claims. The indirect discrimination claim failed as BA's policy did not put E at a particular disadvantage when compared to others. However, the tribunal went on to note that if BA's policy was indirectly discriminatory, it would not have been justified as a proportionate response to the legitimate aim of achieving brand uniformity. On appeal, the EAT (Brief 867) held that in order for an indirect discrimination claim to succeed there must be evidence of group disadvantage. Given that the tribunal had found that no one but E felt disadvantaged by BA's policy, her claim must fail. BA's appeal against the tribunal's finding on justification also failed. Both BA and E appealed. E argued that BA's policy was indirectly discriminatory even if only she was disadvantaged by it.
The Court of Appeal observed that, for an indirect discrimination claim to be successful, there must be a provision, criterion or practice (PCP), applied to all employees, which puts 'or would put' persons who share the claimant's religion or belief at a disadvantage compared to other persons. In the Court of Appeal's view, there was no reason to depart from the natural reading of 'persons' in Reg 3(1)(b)(i). There was nothing in the EU Equal Treatment Framework Directive (No.2000/78) to suggest that its use of the word 'persons' was intended to include solitary disadvantage within the scope of an indirect discrimination claim. The Court therefore endorsed the EAT's statement that, in order to establish indirect discrimination, it must be possible to make some 'general statements' about a religious group such than an employer ought reasonably be able to appreciate that a PCP may have a disparate adverse impact on that group. The use of 'would put' in Reg 3(1)(b)(i) could not be read so as to require the tribunal to create a hypothetical peer group who suffer the same disadvantage from the PCP as E. The tribunal's finding was that the disadvantage suffered by E was suffered by her alone: neither evidentially nor inferentially was anyone else similarly disadvantaged. This meant her claim had to fail.
The Court also rejected E's argument based on Article 9 of the European Convention on Human Rights. Cases such as Kalac v Turkey 1997 27 EHRR 552 showed that Article 9 does not protect every act motivated by religion or belief.
As to justification, the majority of the Court of Appeal indicated that, had the point arisen for consideration, it would have been inclined to allow BA's appeal and overturn the tribunal's finding that the policy could not be justified. When considered on the footing that the indirect discrimination claim was advanced in the Court of Appeal - the disadvantage to a single individual stemming from the policy - the tribunal's finding of facts showed that the policy was a proportionate means of achieving a legitimate aim. Furthermore, Lord Justice Sedley indicated that he would have had difficulty with the tribunal's decision even on the alternative basis that the policy disadvantaged Christians as a group.
This report is from IDS Employment Law Brief.
Further information:
http://www.bailii.org/ew/cases/EWCA/Civ/2010/80.html
In Eweida v British Airways Plc, Ms Eweida has lost before the Court of Appeal in her challenge to the EAT's decision that BA's uniform policy, which required E to remove or conceal her cross, did not amount to indirect religious discrimination. In dismissing the appeal, the Court of Appeal noted that where an employer is faced with conflicting responses to a provision, criterion or practice from people of different beliefs, a blanket ban may sometimes be the only fair solution.
E, a practising Christian, worked for BA as a member of check-in staff. For most of the time she was employed, BA's uniform policy permitted employees to wear any jewellery they wished provided it was not visible. Items deemed to be a mandatory religious requirement which could not be concealed could be permitted by management. After refusing to conceal a silver cross she wore on a necklace, E was sent home without pay. She brought a number of claims against BA, including direct and indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660.
The tribunal dismissed all of E's claims. The indirect discrimination claim failed as BA's policy did not put E at a particular disadvantage when compared to others. However, the tribunal went on to note that if BA's policy was indirectly discriminatory, it would not have been justified as a proportionate response to the legitimate aim of achieving brand uniformity. On appeal, the EAT (Brief 867) held that in order for an indirect discrimination claim to succeed there must be evidence of group disadvantage. Given that the tribunal had found that no one but E felt disadvantaged by BA's policy, her claim must fail. BA's appeal against the tribunal's finding on justification also failed. Both BA and E appealed. E argued that BA's policy was indirectly discriminatory even if only she was disadvantaged by it.
The Court of Appeal observed that, for an indirect discrimination claim to be successful, there must be a provision, criterion or practice (PCP), applied to all employees, which puts 'or would put' persons who share the claimant's religion or belief at a disadvantage compared to other persons. In the Court of Appeal's view, there was no reason to depart from the natural reading of 'persons' in Reg 3(1)(b)(i). There was nothing in the EU Equal Treatment Framework Directive (No.2000/78) to suggest that its use of the word 'persons' was intended to include solitary disadvantage within the scope of an indirect discrimination claim. The Court therefore endorsed the EAT's statement that, in order to establish indirect discrimination, it must be possible to make some 'general statements' about a religious group such than an employer ought reasonably be able to appreciate that a PCP may have a disparate adverse impact on that group. The use of 'would put' in Reg 3(1)(b)(i) could not be read so as to require the tribunal to create a hypothetical peer group who suffer the same disadvantage from the PCP as E. The tribunal's finding was that the disadvantage suffered by E was suffered by her alone: neither evidentially nor inferentially was anyone else similarly disadvantaged. This meant her claim had to fail.
The Court also rejected E's argument based on Article 9 of the European Convention on Human Rights. Cases such as Kalac v Turkey 1997 27 EHRR 552 showed that Article 9 does not protect every act motivated by religion or belief.
As to justification, the majority of the Court of Appeal indicated that, had the point arisen for consideration, it would have been inclined to allow BA's appeal and overturn the tribunal's finding that the policy could not be justified. When considered on the footing that the indirect discrimination claim was advanced in the Court of Appeal - the disadvantage to a single individual stemming from the policy - the tribunal's finding of facts showed that the policy was a proportionate means of achieving a legitimate aim. Furthermore, Lord Justice Sedley indicated that he would have had difficulty with the tribunal's decision even on the alternative basis that the policy disadvantaged Christians as a group.
This report is from IDS Employment Law Brief.
Further information:
http://www.bailii.org/ew/cases/EWCA/Civ/2010/80.html
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