Wolferstans' Employment Law Newsletter
December 2005
Flexible Working
The statutory scheme for flexible working has a detailed procedure under which an employee can apply for flexible working, and the employer can object for sound business reasons. However, as a recent case has confirmed, even where a refusal to allow flexible working appeared justified under the statutory scheme, it can nonetheless amount to indirect sex discrimination. Where a woman was refused part time working after maternity leave, and her employer insisted that she return to her previous mixture of early and late shifts, such a requirement amounted to indirect sex discrimination because fewer women than men are able to work evenings and weekends.
Fixed-term Discrimination
Regulations passed in 2002 make discrimination against fixed-term employees unlawful. Fixed-term contracts have been widely used in both the public and private sectors and individuals employed on successive fixed-term contracts have not been offered permanent employment. The regulations were introduced to ensure that these arrangements would not result in these workers being treated worse than their permanent colleagues. In a recent decision applying the regulations four government education advisors on fixed-term contracts succeeded in their claim that they should have been entitled to the same valuable civil service redundancy payments as colleagues who were employed on permanent contracts.
Disability Discrimination
The Disability Discrimination Act 2005 introduces certain changes with effect from 5 December 2005. The DDA has been extended to bring HIV, multiple sclerosis, and certain forms of cancer within the scope of the Act’s protection from the point of diagnosis.
Civil Partnership Act 2004
With effect from 5 December 2005 an Order under the Civil Partnership Act 2005 will bring various aspects of employment legislation into line with the new Act. The purpose is to ensure that civil partners benefit from protection similar to that enjoyed by spouses.
Rolled-Up Holiday Pay
There has been on-going litigation as to whether rolled-up holiday pay is lawful or whether it violates the worker’s right to annual leave under the Working Time Directive. Conflicting appeal decisions in England and Scotland have formed different views, and the matter is being referred to the European Court of Justice. The preliminary ruling of the Advocate General is that rolled-up holiday pay arrangements can be lawful but only if the possibility for the worker to take minimum annual leave is ensured in some other way. Any arrangements which are limited to providing for payment of leave but without regulating the taking of the leave itself will probably be in breach of the Directive. In addition, for rolled-up holiday pay arrangements to be lawful it is essential that they are sufficiently transparent that the worker can make his own arrangements for leave.
Difficult Personality – Potentially Fair Reason?
There are five potentially fair reasons for dismissal: conduct, capability, redundancy, illegality, and some other substantial reason. The Court of Appeal has recently ruled that an NHS Trust had acted reasonably in dismissing a difficult senior employee on the grounds of some other substantial reason and conduct. His difficult personality was not of itself a ground for dismissal, but when it manifested itself in such a way as to bring the actions within the list of potentially fair reasons, the dismissal could be fair. The employer was entitled to rely on the reasons of conduct and some other substantial reason.
Solicitor’s letter can be a grievance
There has been a lot of dispute and litigation recently to decide exactly what an employee needs to do in order to raise a formal grievance under the new statutory disciplinary and grievance procedures. The subject is important because failure to raise a grievance can disqualify employees from bringing claims. Two recent cases have held that a solicitor’s letter on behalf of the employee setting out the complaint in writing and threatening legal action was sufficient to constitute a grievance. In another case an employee who complained in writing that she was being bullied by another employer’s staff was held to have raised a grievance against her own employer for the purposes of the statutory procedures. In effect her complaint was that her employer was requiring her to work in these difficult circumstances.
CRE CODE OF PRACTICE
The Commission for Racial Equality has published a revised Code of Practice on Racial Equality in Employment. The Code has been approved by Parliament and will come into force on 6 April 2006. Important changes in the new Code include more examples drawn from Employment Tribunal Case Law with detailed guidance on Ethnic Monitoring, Anti-harassment and Racial Equality Policies. There are also recommendations for Trade Unions, Employment and Recruitment Agencies, and a separate chapter on the Rights and Responsibilities of Workers. The new Code is available at www.cre.gov.uk/gdpract/employmentcode2005.html.
TURNER COMMISSION
The Pensions Commission chaired by Lord Turner has now published its second report. The main recommendations are: a gradual rise in the State Pension Age in line with life expectancy – 66 by 2030, 67 by 2040 and 68 by 2050; the creation of a National Pension Savings Scheme into which employees will be automatically enrolled (with the right to opt out), with a minimum default contribution level of eight per cent (four per cent from the employee, three from the employer, and one from government); to link the basic state pension to average earnings growth; and to introduce a universal basic state pension for the over-75's, to address historical gender inequalities.
CHRISTMAS WISHES
We wish all of our clients and friends a happy Christmas and a prosperous trouble-free New Year.
If you have any questions on the above points or on employment law generally, please speak to Nick Roper, Partner on 01752 292357.