Employment Update - January 2010
Friday 29th January 2010
Employment Law
Even though there are only a few months until the General Election, there are still important employment law changes in the pipeline. An outline of the changes is set out below:
1. A new Equality Act expected to get Royal Assent
The long-awaited Equality Act is likely to become a reality this year, and is expected to come into force in October 2010. The government showed a determination to get it through its Report Stage and Third Reading in the House of Commons on 2nd December 2009 (passed by 338 votes to 8), making it likely that the bill will become law before the general election.
The Bill is designed to bring together various legislation on discrimination in one Act and to extend it where appropriate. Most of the Bill has remained intact, and the details have been covered in the April, May and July editions of our Employment Updates.
Significant amendments made to the original bill as it progressed through the House of Commons include:
- enabling direct discrimination claims to be brought in relation to a combination of any two of the following protected characteristics: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation; and
- a new clause restricting the ability of employers to use questionnaires during recruitment to ask about disability issues.
The Bill is now progressing through the Committee Stage of the House of Lords.
2. A new ACAS Code of Practice on Time Off for Trade Union Duties and Activities, which came into force on 1st January 2010
This came into force on 1st January 2010, updating and replacing the previous code, to ensure that the code reflects modern practices.
The Code is admissible as evidence in determining any issues in Employment Tribunal proceedings. However, you cannot bring a claim for breach of the Code itself.
3. New Regulations prohibiting blacklisting of workers, expected to come into force between February and April 2010
The Employment Relations Act 1999 (Blacklists) Regulations 2010 are due to come into force between February and April 2010.
The new law will make it illegal, subject to limited exceptions, to 'compile, use, sell or supply' lists of trade union members or activists, which might be used by employers or employment agencies for the purposes of discrimination, either in terms of recruitment or during periods or work.
Individuals who suffer loss as a result of such unlawful activities will be entitled to bring a claim in either the Employment Tribunal or the County Court.
4. New Regulations giving Employment Tribunals the power to pass on whistleblower allegations to the relevant authority, which are expected to apply from April 2010
The government has published this month its draft version of the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010, which enable Employment Tribunals to pass on 'whistleblowing' allegations to any one of over 50 listed regulatory authorities.
This will apply to claims, or amended claims, arising on or after 6 April 2010. However, it will only happen at the discretion of the Tribunal, and only if the claimant indicates on the claim form (ET1) that the claim includes a 'protected disclosure' and that they wish for the allegation to be referred to the relevant authorities.
It will remain to be seen whether claimants use the threat of authorising a referral as a bargaining tool to obtain a higher settlement. If this does occur, the number of referrals may be small, and the aim of the reform may be largely defeated.
5. Consultation on the default retirement age is due to come to an end on 1st February 2010
The default retirement age is currently 65, but this has come under legal attack (albeit thus far unsuccessfully), and the government seems increasingly minded to abolish or raise it.
Therefore, a consultation period was commenced to ascertain views from across the board and the deadline for submissions is 1st February 2010. Realistically, any change in the law is likely to be implemented in 2011 at the earliest, and it seems that a new government is unlikely to embark on a radical change of course.
6. Immigration rules for those coming to work in the UK will be tightened from April 2010
Employers that may want to employ immigrants need to be aware that the rules are being tightened up. Workers will now need to be earning a salary of at least £20,000 to qualify as 'skilled' (previously £17,000), and overseas workers that want to transfer to a UK branch of their company will need to have worked for the overseas subsidiary for one year (previously 6 months).
The changes are possible as a result of powers given to the Home Secretary to vary the 'points-based system', which now operates for potential immigrants. Indeed, this agenda of helping out British workers at a time of relatively high unemployment is one which may become more prominent as we approach election time.
The changes will take effect from 1st April 2010.
7. A new right to request time off work for training, for employees that work for businesses with more than 250 employees, expected to come into force in April 2010
Following the passing into law of the Apprenticeships, Skills, Children and Learning Act on 13th November 2009, a new right for employees to request time off for training will exist from April 2010. However, the new right will only initially apply to those employed by organisations of 250 or more employees. Other employees will have to wait until April 2011.
Requests will need to specify how the training will enhance the effectiveness of the employee in the business and how it will improve the performance of the business. It is, in many ways, similar to the right to request flexible working. For example, the request must be made in writing and employers must give valid reasons for turning it down. There are ten acceptable reasons for refusing a request, including unavailability of appropriate training, lack of relevance to the employee's job, unacceptable costs burdens or impact on quality of work or on the ability to satisfy customer demand. Employees will also have the right to appeal any adverse decision.
8. 'Fit notes' are due to replace sick notes in April 2010
In April 2010 the Social Security (Medical Evidence)) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010 come into force. This will replace the present 'sick note' with a new 'fit note'.
This is not just an exercise in positive thinking. The new system will allow doctors the option of indicating that someone 'may be fit for some work now', rather than just saying they are still not ready to resume work fully.
9. The Normal Minimum Pension Age to increase from 50 to 55 from April 2010
The Normal Minimum Pension Age is the earliest age at which a member of a UK registered pension scheme can ordinarily draw their pension. On 6 April 2010, it will rise from 50 to 55.
There are two exceptions: 'ill-health' pensions and, subject to certain conditions, pensions which gave a right, or a prospective right, to members to take their pension between 50 and 55 on or before 5th April 2006.
It is also worth noting that new rights for fathers to take advantage of up to 26 weeks additional paternity leave 'transferred from the mother', will not be exercised in 2010. Although the legislation will come into force in April 2010, the change will only impact upon parents of babies due from 3rd April 2011.
Case law
Employees elected to office in the union can have two employers
In The Prison Officers Association v Gough UKEAT/0405/09/DA the Employment Appeals Tribunal (EAT) ruled that:
- it is entirely possible to be an office holder and be an employee. Normal contractual principles needed to be applied to the role; and
- an individual can have two employers provided the contracts of employment are compatible with each other. In this case, the claimant was an employee of both the Prison Service and the Prison Officers Association (POA).
The Facts
A prison officer, Mr Gough, had been elected to the positions of National Executive Officer and then National Vice Chairman of the POA while maintaining his job as a prison officer. His union role took up about 15% of his time. At a Pre-Hearing Review of claims brought by Mr Gough against the POA, it was ordered that he was indeed an employee of the POA. The POA appealed to the EAT against that decision.
A second claimant, Mr Cox, was treated in exactly the same way as Mr Gough, and hence the EAT judgment merely refers to the facts of Mr Gough’s case.
Decision
In dismissing the appeal, the Tribunal attacked two possible arguments that Mr Gough was not an employee of the POA.
Firstly, the EAT ruled that an office holder could be an employee, applying the factors listed in 102 Social Club v Bickerton [1977] I.C.R. 911 to this particular case.
In essence, this involved the application of normal contractual principles. It was noted in this case, for example, that payment was fixed in advance, was due as of right to the claimant, was not insubstantial (about £14,000) and was paid in return for services rendered. This could be compared to a situation in which a ‘bounty’ is paid after the event, or where work is carried out voluntarily and only expenses are paid.
It was also persuasive that the claimant’s work was subject to ‘control and orders’ of the POA, and that the ‘extent and weight of the duties was considerable’.
Secondly, the EAT applied Viasystem v Thermal Transfer [2005] IRLR 983, and stated that it was possible to have two employers as long as the two contracts of employment were compatible with each other. The EAT rejected claims from Counsel for the POA that the compatibility issue had not been addressed in front of the original hearing. Moreover, they stressed that the focus in this case had to be whether the claimant could effectively fulfil their contracts with the POA. The Prison Service were not a potential defendant, and therefore any issues they may have had with the encroachment of POA duties into the claimant’s role as a prison officer were irrelevant.
Two ECJ rulings on age discrimination show importance of case by case approach
Article 4 justification and maximum recruitment ages
In Wolf v Stadt Frankfurt am Main (C-229/08) the European Court of Justice (ECJ) held that a maximum recruitment age of 30 for intermediate career posts in the fire service was not contrary to the EU Equal Treatment Framework Directive (No. 2000/78) (the Directive).
Ignoring numerous questions posed by the German national court about Article 6 of the Directive, the ECJ decided that the difference in treatment of people of different ages could be justified under Article 4(1). The following four stage test had been satisfied:
- there was a legitimate aim;
- there was a genuine and determining occupational requirement;
- this requirement was linked to the characteristic discriminated against (i.e. age here); and
- the less favourable treatment was proportionate to the legitimate aim.
However, the ECJ based its reasoning at every stage on the precise facts of the case. It observed that preserving the capacity of emergency services 'to carry out their range of functions' was mentioned within the preamble to the Directive (Stage 1); it described the tasks of the fire service (Stage 2); it quoted scientific data about at what age the more physically demanding tasks could not be performed (Stage 3); and it made statements about the proportion of officials above this age that could be sustained within the service (Stage 4).
Therefore, if any of the facts had been different, the outcome may have been different. Even a different emergency service, or a different age limit within the fire service, could have led to one or more of the tests not being satisfied. This case is certainly not a green light for the widespread use of maximum recruitment ages.
Article 6 justification and upper age limits
In Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe (C-341/08) it was ruled that a maximum age of 68 for dentists in the German national health service 'to protect the health of patients against the decline in performance of those dentists after that age' was precluded by the Directive, but that it could have been justified under Article 6(1) had it also applied to private dentists.
Article 6 allows discrimination which is 'objectively and reasonably justified by a legitimate aim. If the means of achieving that aim are appropriate and justified'.
In this case, the ECJ concluded that the 'legitimate aim' of protecting public health, could be achieved either through ensuring the quality of medical professionals or, indirectly, through maintaining the 'financial balance' of the health service. Alternatively, a desire to share out employment opportunities between the generations could be a legitimate aim.
However, the case turned on whether exceptions to the maximum age undermined the case that there was an 'appropriate and justified' regime. The ECJ considered that any attempt to achieve a legitimate aim must be 'consistent and systematic'. Yet exceptions existed in this case for dentists covering shortages, those that had not accrued twenty years experience, and, lastly, for private dentists.
The use of older dentists to cover shortages was perhaps unsurprisingly seen as consistent with any of the aims discussed. More controversially, however, the same was said of allowing dentists to accrue twenty years service. This seems illogical in cases where the aim is to maintain the quality of medical professionals, but the ECJ noted that this exception was temporary, and only affected a small number of dentists (and therefore patients).
However, the final exception for private dentists was considered to be contrary to the aim of protecting patients from incompetent practitioners. To satisfy the Directive, therefore, such a policy would need to be framed in terms of an aim to maintain financial balance in the national health service or to share out employment opportunities at a time of surplus supply.
Petersen leaves some awkward ambiguities. The ECJ merely accepted an assumption that dentists' performance declines with age, and that 68 was an appropriate upper age. Therefore, the case is of little assistance to those wanting guidance as to what might be an acceptable age limit, or as to what method might be used to derive an appropriate limit in each case. Similarly, in ruling that the scope of exceptions might be crucial, it leaves us guessing as to where the line may be drawn. Petersen also demonstrates that many cases may be won or lost on unpredictable decisions made by national courts regarding the aim of discriminatory measures.
Risk Assessments for pregnant employees only need to be carried out in certain circumstances
In O'Neill v Buckinghamshire County Council UKEAT/0020/09/JOJ the EAT ruled that there must be some sort of risk to a pregnant employee for a requirement for a formal risk assessment to arise. It is therefore not the case, as one might assume, that the purpose of the risk assessment is to identify if there is any potential risk to the employee.
The Facts
The claimant, Ms L O'Neill, was employed at a junior school. Several members of staff at the school, including the head, found Ms O'Neill hard to work with, and concerns were raised about her professionalism. An investigation commenced as part of disciplinary proceedings, during which Ms O'Neill informed the school that she was pregnant. A disciplinary hearing was subsequently postponed in the light of her pregnancy, sickness and maternity leave. On returning to work Ms O'Neill resigned before this hearing could be held. She then made a claim for constructive dismissal and sex discrimination to the Employment Tribunal. Her claim was dismissed, but she appealed to the EAT.
The Decision
Firstly, the EAT concluded that there was nothing in section 3A of the Sex Discrimination Act 1975 (SDA) which could be construed as positive discrimination towards pregnant employees. It was unsuccessfully argued before the tribunal that disciplinary proceedings against Ms O'Neill should have been abandoned once it was realised she was pregnant.
Secondly, the EAT endorsed a three stage test, put forward by Counsel for the respondent, to decide when a risk assessment should be undertaken for a pregnant employee.
- Did the employee notify the employer in writing that she is pregnant?
- Was the work of a kind which could involve a risk of harm or danger to the health and safety of a new expectant mother or that of her baby?
- Did the risk arise from either processes or working conditions or physical biological chemical agents in the workplace at the time specified?
All of these questions need to be answered in the affirmative, and in this case the EAT concluded that Ms O'Neill had failed to identify a risk from her work as a teacher. The general 'stress' of the job was seen as insufficient to make her case, and the EAT decided that a disciplinary procedure could not be counted as a 'process' or a 'working condition' under stage 3.
Comment
Having found that there was no obligation on the employer to carry out a risk assessment, other questions raised by the claimant became irrelevant to deciding the outcome of this case. The EAT did, however, go on to make some additional observations. While caution should be exercised in putting too much weight to overly sparse analysis, some of these comments were nevertheless interesting.
The EAT, for example, tentatively suggested that there was nothing within the relevant regulations to demand that there be a meeting with the employee regarding a pregnancy risk assessment.
It was also cautiously suggested that for sex discrimination to result from a failure to carry out such a risk assessment, there is no need for there to be a detriment to the employee. The test for sex discrimination in these circumstances would therefore be: that there is an obligation to carry out a risk assessment and that there was a failure to carry out the risk assessment.
Employment News
UNISON report increase in workplace bullying
The public sector trade union, UNISON, commissioned Portsmouth University to carry out a survey into workplace bullying in 2009, which concluded that bullying at work has more than doubled in the last ten years and that more than one-third of workers have said that they have been bullied in the last six months.
While trends in levels of bullying are notoriously difficult to measure, the recession may well have changed the dynamic between employees and managers in many work places. Employers need to be aware that, where managers are having difficulty in dealing with greater pressure at work, or are insufficiently trained, their interactions with staff can be perceived as bullying.
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