Busy week for employment law
A number of employment law changes take place every April. Here is a selection of this month's key changes so far:
1 April
2 April
Agency workers - in the tribunals again
The last few months have seen a number of cases dealing with the status of agency workers. At issue in each of them have been the rights of an agency worker and the obligations of an "end user", in a triangular arrangement, where an end user contracts with an agency for the supply of a worker. Whilst there is a contract between the end user and the agency and a separate contract between the agency and the worker, there is usually no written contract between the worker and the end user. The triangular arrangement has caused untold difficulties for agency workers who want to claim unfair dismissal against the end user; a claim which can only be brought by employees.
Two decisions last month followed the trend set by James v Greenwich Council and Craigie v London Borough of Haringey (reported in our updates on 12 January and on 9 March), which established that the agency workers in those cases were not employees of the end user.
In Heatherwood and Wexham Park Hospitals NHS Trust v Kulubowila and ors, the Employment Appeal Tribunal (EAT) confirmed that it was not enough to form the view that because the worker looked like an employee, acted like an employee and was treated like an employee, the business reality was that he was an employee and that the tribunal must therefore imply a contract of employment. As the affairs of the parties were consistent with the express triangular agreements (i.e. the contract for services between the worker and the agency and the contract between the agency and the end user), it was not necessary to infer a contract of employment between the Trust and the worker.
Similarly, in Astbury v Gist Ltd, the EAT again confirmed that a contract of service did not exist between the worker and the agency. Both cases note that if Parliament had intended agency workers to enjoy ordinary unfair dismissal protection against end users, it would have extended that protection to them. It has not yet done so and therefore a change in legislation would be required.
Statutory grievance procedure
The EAT has resolved a question which often arises under the statutory dispute resolution procedures, providing welcome guidance on the requirement for employees to initiate a statutory grievance.
In
The EAT held that the grievance in this case was that the employer had dismissed the employee. The contention that such a dismissal was in breach of the Disability Discrimination Act 1995 was an issue which one would normally expect to arise and be explored in the context of the dismissal procedures. There was therefore no obligation on the employee to raise a separate grievance.
The EAT noted that where a complaint is about the dismissal or matters pertaining to that dismissal (including the reason why it is said to be unfair or unlawful), these issues can be aired and considered through the dismissal process. It would create considerable difficulties if the dismissal procedure had to be complied with for the purpose of dealing with the act of dismissal itself, whilst issues relating to the manner or reason for the dismissal (such as whether it was in breach of any discrimination provisions), had to be the subject of a separate grievance and be resolved according to a different set of procedural rules.
Part-time workers and bank holidays
The Court of Session in Scotland has confirmed that an employer who failed to provide a part-time employee with time off in lieu for public holidays falling on a Monday was not discriminating against him under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations).
In McMenemy v Capita Business Services Ltd, a part-time employee worked on Wednesdays, Thursdays and Fridays. The employer's standard employment contract for all employees (including part-time employees) provided that they were only entitled to those public holidays which fell on the employees' normal working days. The employee concerned was therefore not allowed time off in lieu when public holidays fell on Mondays. The employee claimed that this amounted to less favourable treatment on the grounds of his part-time status.
By way of background, under the Regulations, a part-time worker has the right not to be treated less favourably than a comparable full-time worker is relation to the terms of his contract or by being subject to any other detriment by his employer. This applies only where the less favourable treatment is on the ground of the worker's part-time status and it cannot be justified on objective grounds. In determining whether a worker has been treated less favourably than a full-time comparator, the pro-rata principle should be applied, unless inappropriate. This principle means that where a comparable full-time worker receives pay or any other benefit, a part-time worker should receive not less than the proportion of that pay or benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker.
The Court of Session confirmed that although the employee in this case suffered a detriment under the Regulations as he did not receive days off in lieu for statutory holidays, this treatment was on the ground that he did not work on Mondays and not because of his part-time status. A full-time worker who did not work on a Monday would have been treated in the same way.
Whilst this case provides useful guidance in relation to the rights of part-time workers, it should be noted that this was a decision of the Inner House of the Court of Session. Although tribunals in
Gender equality duty - EOC warns against complacency
The EOC has put leaders of all public sector bodies on notice to prepare for one of the biggest changes in sex equality legislation: the gender equality duty.
As outlined above, the gender equality duty comes into force on 6 April 2007, placing the onus on public authorities to eliminate sex discrimination and promote sex equality.
The EOC has warned that there is no room for complacency about sex equality if the transformation of public services is to become reality. It recommends a shift away from the one-size fits all approach to one which puts the individual at the heart of the service, recognising the different needs of men and women. This duty follows quickly on the heels of the disability duty introduced in December 2006.
New ACAS guidance
ACAS has produced new guidance in time for the extension of the right to request flexible working arrangements to employees who care for adults, which, as noted above, comes into force on 6 April 2007.
It has produced an advisory booklet on flexible working and work-life balance and an updated advice leaflet on the right to request flexible working for employers, parents and carers.
Flexible Working Bill
The Liberal Democrats introduced a Flexible Working Bill in the House of Commons last week, to extend the right to request flexible working to all parents with children under the age of 18.
The right to request flexible working current applies to parents with children under the age of six (and, from 6 April, to carers of adults). The Bill has been ordered to be read a second time on 19 October 2007.
Ageism still rife in the workplace
Despite age equality legislation coming into force in October 2006, ageism is still alive and well in British workplaces, according to new research from the Employer's Forum on Age (EFA).
A fifth (20%) of the people surveyed said that age has stood in the way of them getting a job, and almost two thirds (63%) thought that the new legislation has made little or no difference to the way that people are recruited. The research also revealed that more than one in four (27%) 16-24 year olds think that age has stood in the way of them getting a job (compared to just 15% of 35-44 year olds), and one in five (19%) 25-34 year olds have seen ageist behaviour in their workplace over the last six months (compared to just 6% of 55-64 year olds).
The EFA commented that the research shows that age stereotypes have been built into British workplace culture and a change in the law is merely the first step in a long journey towards tackling endemic social prejudices.
SMEs lag behind on diversity
Small- and medium-sized
In a survey of 300 such businesses, research found that 90% of them had less than 10% of black or minority ethnic (BME) managers, and 35% had none. When respondents to the research were asked if they thought diversity could contribute to better business performance only 33.5% agreed, showing that many remain to be convinced.
Pregnancy at work - bridging the "knowledge gap"
Only 4 in 10 mums think their bosses fully understand how to manage pregnant staff, according to the findings of an online survey released today by Netmums and the EOC.
The online survey of 2,080 mums also revealed that:
To bridge the 'knowledge gap' and make pregnancy in the workplace easier for everyone, the EOC has launched a toolkit to help individuals and employers understand their rights and responsibilities.
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