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Inform: Employment
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Welcome to this month's Inform: Employment
This month saw the release of the Court of Appeal's decision in a long-running case concerning the employment status of agency workers, James v London Borough of Greenwich. The decision has not lived up to some people's expectations as it was hoped that the Court of Appeal would clarify the perceived inconsistencies in the different cases on this subject. The decision will however give employers comfort that there will be fewer agency relationships which will be found to be employment. The question of the rights afforded to agency workers has received much press attention of late as Gordon Brown met with Trade Union leaders to propose a formal enquiry on the controversial issue. The Temporary and Agency Workers' Bill, which had previously stalled through having little support, was this month backed in Parliament by an overwhelming 147 votes to 11. It does still have a long way to go before it becomes law, particularly in the face of Government opposition.
In what could be a potentially problematic development for employers, Alan Johnson, the Health Secretary, has encouraged family doctors to "change our sick-note culture into a well-note culture" by telling employers the tasks their sick employees can perform to encourage them to return to work. This could leave employers having to deal with suggestions which are impractical in their particular work environment and may lead to animosity and further problems when such changes are rejected by an employer.
This month has seen a number of quite interesting decisions, including one which confirms retirement ages for partners in professional firms can be justified and another on taking into account expired warnings.
Alan Julyan
Head of Employment
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To be, or not to be ... an employee?
The long awaited decision of the Court of Appeal in the agency worker case of James v London Borough of Greenwich was published this month. The court upheld the previous finding that Ms James was not an employee of the Council, for whom she had worked through agencies for a number of years. It confirmed that the question to ask is whether or not it is necessary to imply a contract of employment between the agency worker and the end-user. The threshold to cross to satisfy this test is high and it is clear this will be difficult to prove going forward, particularly where there are contractual arrangements in place between the agency and the end-user and the worker and the end-user which properly explain the situation and which are not sham arrangements.
The Court of Appeal, also, helpfully, confirmed its disagreement with the view expressed in the Dacas case that the mere passage of time could justify an implied contract of employment between a worker and an end-user. The Court of Appeal also denied that there was any conflict in the previous case law and indicated that if any change in the law was required this should come from parliament, not the courts
Be warned
The Court of Appeal in the case of Airbus UK Limited v Webb has confirmed that spent warnings can be taken into account in reaching the decision to dismiss an employee, albeit in a narrow way.
Mr Webb, three weeks after the expiry of a previous final written warning, was, along with four colleagues, found guilty of gross misconduct. Mr Webb was summarily dismissed, unlike his four colleagues who were given final written warnings on the basis that, unlike Mr Webb, they had no prior disciplinary record. The Court of Appeal held that, having established that the conduct in question constituted gross misconduct, the employer could at that stage take the expired warnings into consideration when considering what sanction to impose. Previously the view has been that expired warnings must be ignored for all purposes.
It is important to emphasise that the case has a narrow remit. Expired warnings cannot be taken into account to determine the seriousness of the offence but only the sanction to impose. If an employee commits an act that warrants only a warning the sanction cannot be escalated to dismissal because of the existence of previous expired warnings.
Employers should consider revising disciplinary policies which state that expired warnings will not be taken into account. If the situation arises where an expired warning is to be taken into account, careful consideration should be given as to whether this is permitted in the circumstances and also to the wording in a letter which sets out the basis on which that warning has been taken into account.
Homophobic teasing of heterosexual employee found not to constitute harassment
In the case of English v Thomas Sanderson Blinds Limited, the Employment Appeal Tribunal found there was no harassment contrary to the Employment Equality (Sexual Orientation) Regulations 2004 in circumstances where Mr English was subjected to homophobic taunts because he had gone to a boarding school in Brighton. The basis of the finding was that Mr English was not homosexual, his colleagues did not believe that he was homosexual and Mr English knew his colleagues did not think that he was homosexual. The wording in the regulations "on the grounds of sexual orientation" does not cover this type of harassment.
It is thought that our Regulations do not properly implement the European Framework Directive. It may therefore be that in the future the Regulations will be amended and the position will change. In the meantime, the Employment Appeal Tribunal has given leave to appeal to the Court of Appeal, acknowledging that the position is unacceptable. Similar issues arise in relation to the way in which domestic regulations deal with harassment on other unlawful grounds.
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Discrimination by association
In the case of Coleman v Attridge Law and Law, Miss Coleman brought a tribunal claim alleging that she had suffered discrimination contrary to the Disability Discrimination Act. It was her son, who she cared for, that was disabled, not her. Miss Coleman argued that the European Directive which the Disability Discrimination Act is intended to implement, prohibits discrimination by association. The Employment Appeal Tribunal referred the question as to whether this was correct to the European Court of Justice.
Decisions of the European Court of Justice are preceded by, and indeed informed by, an opinion of the Advocate General. The Advocate General in his opinion, which was published this month, confirmed that the Directive does cover associative disability discrimination. The European Court of Justice still needs to give its decision, which may or may not follow that of the Advocate General. If it does follow it then it may be that the Disability Discrimination Act will need to be amended.
The changes brought about by this case could be far-reaching and could significantly widen the net of our current discrimination laws, particularly if this principle extends beyond disability discrimination and into the realms of other discrimination such as religion and belief and sexual orientation.
Retiring partners
The case of Seldon v Clarkson Wright & Jakes involved the compulsory retirement of a partner in a law firm at the age of 65. Regulation 30 of the Employment Equality (Age) Regulations 2006 which currently allows for compulsory retirement only applies to employees not partners.
The Employment Tribunal found that such compulsory retirement constituted direct age discrimination but that this could be objectively justified. The legitimate aims the Tribunal relied on in reading this conclusion included the need to provide assistant solicitors with the opportunity of partnership to ensure their retention, the ability to allow a partnership to plan for the future with some certainty and to limit the need to expel partners for under-performance. Other aims were rejected, including that every partner can expect to become a senior partner in due course and there must be sufficient turnover of partners to achieve this.
The decision is one which will be welcomed by partnerships due to the flexibility it may afford. The decision also accords in part with the principle of compulsory retirement under Regulation 30. The decision is however being appealed and, furthermore, it will be interesting to see whether the changes to Regulation 30, whether by virtue of the Heyday challenge or otherwise, will mean that this position will also alter in the future.
Collective consultation - volunteers for redundancy
The Employment Appeal Tribunal has confirmed that when calculating whether the threshold for collective consultation on redundancies has been reached, employees who have volunteered for redundancy may, depending on the circumstances, need to be taken to account.
BA bears its cross
In the long-running and well publicised religious discrimination claim brought by a British Airways check-in desk employee over her desire to wear a cross, the Employment Tribunal has held that the dress code which prohibited this was not unlawfully discriminatory. The dress code has since been relaxed in any event.
A note and a reminder
From 6 April 2008 Statutory Maternity Pay increases to £117.18 per week (from £112.75) and Statutory Sick Pay increases to £75.40 per week (from £72.55).
As we reported last month, new measures to tackle illegal working came into force on 29 February under the Immigration, Asylum and Nationality Act 2006, including an increase in the civil penalty for employers who employ illegal migrant workers to up to £10,000 per illegal worker. Click here to view last month's report. For more information please contact Anne-Marie Balfour or Jessica Halling.
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Speechly Bircham LLP is a limited liability partnership registered in England and Wales (registered number OC321620) and is regulated by the Solicitors Regulation Authority. A list of members' names is open to inspection at our registered office, 6 St Andrew Street, London EC4A 3LX
Speechly Bircham LLP 6 St Andrew St London EC4A 3LX
Tel +44 (0)20 7427 6400 Fax +44 (0)20 7427 6600
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