Ashfords Solicitors - Employment Law Update

Detriments to ex-employees

In Woodward v Abbey National plc, the Court of Appeal held that individuals can rely on the provisions of the Employment Rights Act 1996 (ERA) regarding whistle-blowing when they are subjected to a detriment after termination of employment.

The 2001 Court of Appeal case of Fadipe v Reed Nursing Personnel Limited held that ex-employees were not able to rely on the whistle-blowing rights in the ERA in order to claim for protection against detriments occurring after their employment had ended.

Contrast this with Rhys-Harper v Relaxation Group plc (2003) in which the House of Lords held that ex-employees could rely on the discrimination legislation for detriments committed after the employment ended in connection with victimisation.

The Court of Appeal in Woodward agreed that the whistle-blowing procedures of the ERA can be relied upon by individuals who are subjected to a detriment by their employer after termination of their employment.

This ruling provides a precedent to allow for cases of individuals who have been subjected to a detriment under the Employment Rights Act 1996 after the course of employment. However, the various tests for this have not been expressly set out and are to be spelt out by the Employment Tribunal at some point in the future.

When does a TUPE Transfer take place?

In North West Training and Enterprise Council Limited (t/a Celtec) v Astley & Others, the House of Lords held that a TUPE transfer must take place on a specific date and cannot take place over an extended period of time. Further, it has ruled that employees and employers cannot agree or arrange for the transfer to take place on a different date to the true legal date of the transfer.

The Department of Education (DofE) established Training and Enterprise Councils (TECs) with the intention of taking over the DofE's responsibility of training young people.

Many civil servants were seconded to the TEC's. Three years later they had the choice of returning to the DofE or remaining with the TECs and transferring into the TECs employment.

The Claimants resigned from the DofE and signed new contracts with the employer, Celtec.

The Claimants were made redundant in 1998 and claimed redundancy payments. They claimed they were continuously employed from the start of their employment with DofE, however Celtec argued they were only continuously employed from 1993.

The case was referred to the ECJ. The court ruled that the relevant date of a transfer under the governing directive was the date on which responsibility as an employer for continuing the business transferred to the transferee from the transferor. That date could not be postponed to another date agreed between the transferor and transferee.

Therefore, the House of Lords held that the Claimants were all TUPE transferred to Celtec in September 1990, despite the fact that everyone understood that they were seconded out, as this was when the TEC's began business.

The House of Lords also ruled that as the parties could not agree a transfer date, the operation of TUPE took precedence over any alternative arrangement between the parties. The Claimants could, therefore, rely on their continuity of employment with the DofE.

Disability discrimination decisions

Two recent cases have been heard which deal with disability discrimination:

Tudor v Spen Corner Veterinary Centre and Tschimmel discussed a direct disability discrimination claim under s3A(5) Disability Discrimination Act 1995.
Cosentino v Cable News International Inc assesses the compensation in a disability discrimination claim.

Tudor

Ms Tudor worked as an animal nursing assistant. After suffering a stroke, she lost her vision. Her employer instantly dismissed Ms Tudor after they discovered that she was blind as they had assumed that she would not be able to do her job. Ms Tudor's employer did not discuss the matter with her or obtain any medical evidence to show this.

The tribunal found that the comparator here should be an employee who had broken their leg, resulting in uncertainty over the date on which they could return to work. It was held that the employer had made a stereotypical assumption as to the likelihood of Ms Tudor returning to her job and this assumption would not have been made about the comparator.

Ms Tudor successfully claimed for disability discrimination, failure to make reasonable adjustments and unfair dismissal.

Cosentino

When cases involving discrimination are taken to the tribunal, the tribunal has to assess claims for loss of earnings, injury to feelings, personal injury and aggravated damages.

Ms Cosentino brought a claim for unfair dismissal and disability discrimination. Ms Cosentino suffered from a depressive illness affecting her ability to work night time shifts. The tribunal found that her employer, Cable News International Inc (CNN), moved her back to night work in the hopes that this would cause her to resign. CNN were aware of her medical condition. In March 2004, when she refused voluntary redundancy, she was dismissed.

The tribunal awarded Ms Cosentino the sum of £246,799. The key points of the tribunal's analysis of how this figure was arrived at are:-

The period for future loss of earnings was four years calculated from the date of the hearing. The tribunal considered the chance that Ms Cosentino would have been promoted in this period and took into consideration the fact that her condition was worsened by the treatment she received from her employee
Personal injury damages were found to be £10,000
The second band of Vento was considered appropriate. £15,000 was awarded for injury to feelings. If the top band had been awarded, there would have been an overlap with the personal injury damages, meaning a discount to prevent doubt recovery
Aggravated damages were awarded to the sum of £7,500 in that Ms Cosentino's treatment by her employer was considered to be 'high-handed or oppressive or even on occasions malicious'.

Work and Families Act 2006

In The Work and Families Act 2006 received Royal Assent on 21 June 2006 to make further changes to legislation geared towards families, including the amount of maternity pay, the contact employers and employees can have whilst on maternity leave and the right to request flexible working.

The Act will make a number of changes to family orientated legislation, including:-

1. Allowing the Secretary of State the power to make regulations to:

a. Entitle fathers to an extra period of paternity leave, encouraging fathers to take leave and receive statutory pay if the mother returns to work after six months but before the end of her maternity leave period

b. Introducing a two month notice period for women who wish to change the date on which they return from work following maternity leave, allowing women and their employers to plan for this

c. 'Keep in touch days' will be introduced meaning a woman can return to work for a few days whilst on maternity leave if agreed with the employer

d. Employers will be entitled to reasonable contact with their employees who are on maternity leave to encourage better planning for the woman's return to work

2. Increasing Statutory Maternity Pay, Statutory Adoption Pay and Maternity Allowance to nine months from April 2007. The intention is to increase this to 12 months in the future.

3. Giving those who care for adults the right to request flexible working which will be possible from April 2007.

Holiday leave to be increased

In addition to the Work and Families Act, there are future plans to increase the minimum annual leave entitlement from 20 days to 28 days. This will mean workers will receive paid leave for bank and public holidays in addition to the current four-week minimum holiday entitlement.

The DTI has published a consultation paper to seek views on how to attain their objective of making sure that bank and public holiday leave is additional to the minimum 4 week holiday prerogative.

An employee who works a 5-day week would have their holiday increased from 20 to 28 days per year. Part time employees would be entitled to an increase in holiday pro-rata.

The paper seeks views on the following:

Whether employees should be entitled to carry over the extra 1.6 weeks annual leave into the following year.
The benefit and impact of increasing the annual leave entitlement from 4 weeks to 5.6 weeks.
Measures that may help to manage the increased leave
Whether, as the Government has proposed, the holiday entitlement should be introduced gradually.

The proposals will not:

Alter the yearly leave notice requests
Create a statutory right for the additional holiday to be taken on an annual or bank holiday
Alter the relationship between any contract provision and the statutory entitlement

The consultation will end on the 22nd of September 2006.

Depending on the outcome of the initial consultation, detailed proposals and the draft regulations are intended to be brought forward for consultation at the end of this year.

Increase in national minimum wage

The National Minimum Wage Regulations have now been published which will increase the National Minimum Wage (NMW) from October 2006.

The NMW will be increase as follows:

from £5.05 to £5.35 per hour for adults;
from £4.25 to £4.45 per hour for those aged between 18 yrs and 21 yrs;
from £3.00 to £3.30 per hour for those aged under 18 yrs.

The Regulations 2006 will come into force on 1st October 2006 immediately after the Employment Equality (Age) Regulations 2006

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

1st July 2006

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Employment Law Update - July 2006