Welcome to our July 2014 Employment Law Newsletter; keeping you up to date with changes in employment law and informing you of recent case law developments over the last month.

CASE LAW DEVELOPMENTS

Compulsory Retirement Age

You will remember the long running case of Seldon –v- Clarkson Wright and Jakes. Mr Seldon had complained of direct discrimination on the grounds of age. The firm of solicitors he had worked for forced him to retire at the age of 65. The Courts held that such discrimination was capable of objective justification based on the specific facts of the case. However the question remained as to whether the mandatory retirement age of 65 was a proportionate means of achieving the firm’s legitimate aims of retention and planning etc. The case was remitted to the Employment Tribunal to make a decision. They held in favour of the retirement age of 65. It was then appealed to the EAT.

The EAT have now held that the Tribunal was entitled to conclude that the age of 65 was an appropriate age. They explained that there needed to be a balance between the discriminatory affect of choosing a particular retirement age against its success in achieving the legitimate aims. They went on to explain that the balance would not necessarily show that a particular point/age could be identified as any more or less appropriate than another particular point/age. However on the evidence that they had before them they agreed that the retirement age of 65 was appropriate. It should be noted that this was a case based on particular facts and the outcome of a similar case may be very different.

Constructive Dismissal and Affirming Contract of Employment

In the case of Chindove –v- Morrisons Supermarket the EAT had to decide whether a delay in resigning in and of itself amounted to an affirmation of a breach of contract. The employee had suffered two acts of racial discrimination at work and although the employers had initially investigated the two acts, the HR Manager ultimately failed to investigate a grievance brought by the employee.

The Employment Tribunal initially held that the employee had affirmed breach of contract the last act of mistreatment, being the HR Manager’s failure to investigate the grievance, taking place 6 weeks before the employee had actually resigned.

This was overturned by the EAT and stated that the matter of time should not to be taken in isolation. The principle to be followed is whether the employee had demonstrated that they had made a choice which will be shown by their conduct. Therefore it should not be taken for granted that an employee who doesn’t resign immediately affirmed the breach of their contract which may have taken place.

Employment Status – Football Referees

A topical case with the World Cup having taken place over the last few weeks is the case of Conroy –v- Scottish Football Association. The question was whether a football referee was an employee under the Employment Rights Act 1996. The EAT held that Mr Conroy was not an employee for the purpose of the Employment Rights Act 1996, however he was held to be an employee for the purpose of the Equality Act 2010 and a worker for the purpose of the Working Time Regulations 1998. He had brought claims for unfair dismissal, age discrimination, and holiday pay. The finding of facts which indicated employment were the provision of health insurance and the fact that referees were not entitled to send a substitute for any match. However there were also other factors that suggested that there was not a contract of employment such as lack of disciplinary procedures, the fact that Mr Conroy purchased his own flags, whistles and notebooks and that he had a right to decline matches just as the Football Association had a right to refrain from offering him any matches.

This case serves to remind us that although an individual may not be held to be an employee, he or she may still have claims under other legislation.

Paid Annual Leave – Workers Death

The CGEU has held in the case of Bollacke –v- Klass and Cock B.V. that the death of a worker does not extinguish his or her right to be paid annual leave. Mrs Bollacke’s husband was employed by the Respondent until his death in service. At the date of his death he had accrued 140.5 days of untaken annual leave as he had been on extended sick leave. His wife succeeded in bringing a claim to be paid for the annual leave that her late husband had accrued.

Associated Discrimination

In the case of Hainsworth –v- Ministry of Defence the Court of Appeal had to make a decision as to whether the Ministry of Defence had a duty to make reasonable adjustments that extended to an employee associated with a disabled person. Mrs Hainsworth was employed by the Ministry of Defence and based in Germany. Although she was not disabled herself, her daughter had Down’s Syndrome. She made a request to be transferred to the UK to enable her daughter to access specialist education and training facilities but was refused. She brought a claim alleging that this refusal amounted to a breach of the obligation to make a reasonable adjustment. The Court of Appeal held the wording of the Equality Act 2010 and Article 5 of the Equal Treatment Framework Directive only applied to reasonable adjustments for the assistance of disabled employees’ or prospective employees’ and did not stretch in order to cover a disabled person associated with an employee.

LEGISLATIVE DEVELOPMENTS

The Flexible Working Regulations 2014

These Regulations came into force on 30th June 2014. All employees now have a right to make a request for flexible working so long as they have been employed for 26 weeks prior to making the request. The basic right to request remains unchanged. Employees can still make up to one written request in each year which employers need to deal with within a 3 month period. An employer can refuse on any of the 8 business grounds that previously existed. A Tribunal can only decide whether the procedure has been properly followed and cannot carry out its own investigation into the wrongs or rights of refusal. The maximum compensation for failing to comply is 8 weeks’ pay which is currently capped at £464.00 per week. It still remains to be seen whether the number of applications for flexible working will increase significantly as a result of the introduction of these Regulations.

Employment Tribunal Fee Remission

With effect from 30th June the Ministry of Justice has simplified the fee remission structure as follows: –

• Applicants no longer need to provide original copies of documents, photocopies will be accepted.

• Applicants will not have to tell HMCTS the exact amount of disposal capital they have, just the relevant threshold it falls into.

• Bank statements can be printed copies from online banking systems.

• DWP letters can now be dated within the last 3 months.

• HMCTS is also producing a clearer simplified form and has announced that if a piece of information is missing it will endeavour to contact the Applicant rather than reject the claim.

In the meantime the Judicial Review of the introduction of the Tribunal Fees is due to be heard by the Court of Appeal and we will of course update you on this in due course.

Small Business Enterprise and Employment Bill 2014

The above Bill has now been published and contains the following: –

• Outlawing Zero Hour Contracts. The bill provides the definition of a Zero Hour Contract and renders any clause which attempts to stop a worker working for someone else as void.

• The power to amend the Employment Tribunal Procedure Rules to limit the number of postponements available to a party and an obligation placed on the Tribunal to consider making a Costs Award if a request for postponement is late. It still remains to be seen what definition of “late” will be.

• A power to allow the Treasury to require repayment of some or all of a termination payment in a public sector exit.

• Finally the Bill also includes a new system for enforcing Tribunal awards which provide for a 28 day warning notice to be sent to the Respondent and if the Tribunal award still remains outstanding a penalty notice will follow, the penalty being 50% of the outstanding amount subject to the minimum of £100 and a maximum of £5,000. Where the full sum and the penalty are then paid within 14 days the penalty is reduced by 50%. The penalty however is payable to the Secretary of State and not the Claimant!

Contact Us

If you require any further clarification in relation to the above developments, or if you need any further assistance, then please do not hesitate to contact our specialist employment solicitors on 0161 832 3304.