Employment Law Update May 2012 - 17/05/2012

News Update 

Working time rules will cover self-employed goods/passenger vehicle drivers
The Road Transport (Working Time) (Amendment) Regulations 2012 came into force on 11 May 2012 and amend the Road Transport (Working Time) Regulations 2005 to provide that self-employed drivers are now subject to the working time rules on breaks, rest periods, maximum working time, night work and record keeping set out in those Regulations.

Apprenticeships to last a minimum of 12 months
The Government has announced that, subject to consultation, from August 2012, apprenticeships for all age groups will last for a minimum period of 12 months except for those aged 19 or over whose apprenticeships may last for less than 12 months if prior learning or attainment has been recorded.

Update on automatic pension enrolment
The Government has launched a consultation on draft regulations which if brought into force would mean employers with less than 250 employees would not need to comply with the automatic enrolment pensions provisions until a later date and would lengthen the traditional periods before contribution rates would reach their highest level.

Under the draft regulations, the dates for employers with more than 250 employees on their PAYE scheme at 1 April 2012 will remain unchanged. However for employees with less than 250 employees the dates would be as follows:-

- 50-249 employees = dates between 1 April 2014 and 1 April 2015
- 40-49 workers = 1 August 2015
- 30-39 workers = 1 October 2015
- Less than 30 employees = dates between 1 June 2015 and 1 April 2017

Responses were due to be submitted by 4 May 2012 and we will provide further details of the response in a later Employment Law Update.

Relaxation of Sunday trading laws for the Olympics
On 1 May 2012, the Bill to suspend Sunday Trading Laws during the Olympic and Paralympic Games received Royal Assent.

The suspension will last for 8 days, from 22 July 2012 until 9 September 2012, following which the restrictions will resume.

Unemployment rate falls
It has been announced that UK unemployment fell by 35,000 to 2.65 million in the three months to February which is the first fall in almost a year. Unemployment rate was 8.3%, down from 8.4% in the previous 3 month period.

Case Updates

No requirement on employer to disclose employment information to unsuccessful candidate
The ECJ in Meister v Speech Design Carrier Systems GmbH has held that under EU law there is no requirement for employers facing a discrimination claim from an unsuccessful job applicant to disclose information on the successful applicant. However, a refusal to provide such information may be taken into account when establishing facts from which direct or indirect discrimination may be inferred.

In this case, a German company, SDCS, had advertised a vacancy for an ‘experienced software developer’. Ms Meister, who was a Russian national with a degree in systems engineering, applied for the job. She was unsuccessful and did not get to the interview stage. The company re-advertised the vacancy and Ms Meister applied again but as before, she did not get to the interview stage. The company did not give her a reason for why she had not been successful.
Ms Meister brought a discrimination claim against SDCS on the basis that she had been treated less favourably on the grounds of her sex, age and ethnic origin. During the proceedings, Ms Meister requested details about the person who got the job so she could seek to demonstrate that she was better qualified for the position.

Her claim was dismissed at first instance and on appeal the court in Germany made a reference to the ECJ asking whether a worker, who had been rejected for a job for which they plausibly met the job requirements, is entitled to get hold of information in relation to whether the employer hired someone else and on what basis.

The ECJ essentially found that there is no specific entitlement for individuals to obtain such information from employers. However, the ECJ discussed the objectives of the discrimination legislation and highlighted that the referring court may take into account SDCS’s refusal to disclose the information and the fact that they did not dispute that Ms Meister met the requirements in the job advertisement.

Effective date of termination was the date the resignation letter was opened
In the case of Horwood v Lincolnshire County Council, the EAT agreed with the employment tribunal that the effect date of termination of an employee’s employment was the date her letter of resignation was received and opened by her employer and as such her employer’s response that her resignation would take place in a few days time had no effect in law.

In this case, Mrs Horwood had worked as a Practice Manager for the council. She resigned following disciplinary proceedings in which she was given a final written warning, demoted and relocated offices. Mrs Horwood felt that there were procedural defects in the disciplinary procedure which together with her enforced demotion amounted to a fundamental breach of contract by the council.

Mrs Horwood resigned with immediate effect by letter dated 29 January 2010 in which she made it clear that she believed she had been constructively unfairly dismissed. The council replied on 2 February 2010 informing her that her resignation would begin from the date of their letter. Mrs Horwood received her salary up to and including that date and thereafter received her pension.

Mrs Horwood submitted claims for unfair constructive dismissal and unlawful deduction of wages on 29 April 2010. In her claim forms she stated her employment had ended on 2 February 2010 (the date of the council’s letter). The council claimed that she had presented her claims out of time.

The tribunal held that she had presented her claims out of time by one day as the effective date of termination was 29 January. Mrs Horwood appealed against that decision. The EAT rejected her appeal and held that where an employee resigns, the effective date of termination is the date when the employee clearly communicates their intention to leave. The EAT found that Mrs Horwood’s letter of resignation was unequivocal and once the letter had been received by the council the resignation was effective. The effective date of termination could not be altered by the fact that the council told Mrs Horwood her resignation would commence on a later date nor by the fact that she continued to receive her salary until 2 February and her pension from 3 February. The EAT also rejected the argument that it was not reasonably practicable for Mrs Horwood to issue her claims in time because she had been misled by her employer about the effective date of termination.

Accusing an employee of lying about miscarriage did not amount to pregnancy harassment
In Warby v Wunda Group plc the EAT upheld the decision of the tribunal that an employee was not harassed on the ground of pregnancy when the employee was accused of lying about her pregnancy and miscarriage because the context in which the comment was made related to lying generally and not the employee’s pregnancy.

In this case Ms Warby worked as a sales consultant and she had a disagreement with her manager about her wage. During one heated exchange Ms Warby claimed her wages were being reduced because she was pregnant. Her manager denied this but went on to ask why she had lied about having a miscarriage which was based on anomalies in relation to dates on Facebook.
Ms Warby brought a number of claims against her employer, including harassment. The tribunal did find that the comment made by her manager created an 'intimidating, hostile, degrading, humiliating or offensive' environment as stated in the legislation but said that the comment was not made on the ground of her pregnancy but in relation to lying generally and as such did not amount to harassment on the ground of pregnancy. This was upheld by the EAT.

Employee automatically dismissed for accompanying colleagues
The tribunal held in Evans v Open Sight that an employee who was dismissed shortly after accompanying a colleague at a disciplinary hearing had been automatically unfairly dismissed for exercising the statutory right to accompany colleagues to such hearings. There was insufficient evidence that the dismissal was for capability or conduct.

A worker’s right to be accompanied by a colleague or trade union official to any disciplinary or grievance hearing is found in section 10 of the Employment Relations Act 1999. Under section 12(3) of the Act employees will automatically be regarded as unfairly dismissed if the reason (or principal reason) for dismissal was that they accompanied or tried to accompany a colleague to a meeting in accordance with section 10.

In this case Ms Evans worked as a training coordinator and her contract contained a three month probationary period. There has been some disagreement between the senior management in the company about her appointment, particularly from the deputy chief executive.

When a colleague of Ms Evans’ was suspended following complaints made by the deputy chief executive, Ms Evans accompanied her colleague to the disciplinary hearing in which she challenged issues in relation to the deputy chief executive. Ms Evans line manager was also suspended during the course of the investigations and Ms Evans accompanied her to her disciplinary hearing. Another colleague who had raised a grievance against the deputy chief executive also asked Ms Evans to accompanying her to her grievance meeting.
The deputy chief executive became Ms Evans line manager as a result of the suspensions in the business. Ms Evans was called to a probationary review meeting by the deputy chief executive in which she raised concerns about Ms Evans capability and performance and alleged that she had shown her a lack of respect. Ms Evans was then given notice of her dismissal.

Ms Evans succeeded in her automatic unfair dismissal claim. The tribunal found that there was no evidence raised about her performance prior to the probationary review meeting and evidence in the tribunal demonstrated that the deputy chief executive was unhappy about Ms Evans accompanying colleagues to their disciplinary hearings and felt Ms Evans had taken time off without permission. The deputy chief executive had also written a note requesting advice from her HR adviser in which she said that she did not think it was appropriate for Ms Evans to accompany three colleagues to their hearings. The tribunal found that it was not simply a coincidence that Ms Evans had been dismissed shortly after representing colleagues at disciplinary hearings and she had been automatically unfairly dismissed. This demonstrates that where a dismissal follows shortly after an employee has accompanied a colleague to their disciplinary hearing tribunals will scrutinize the employer’s reason to a high degree.

Effective date of termination brought forward by second notice of dismissal
In the case of Parker Rhodes Hickmotts Solicitors v Harvey the EAT held that when the employer sent a second notice of dismissal it had the effect of making the effective date of termination an earlier date than the one that had been set out in the first notice of dismissal. This meant that the employee in question did not have the sufficient qualifying period of service to bring a claim for unfair dismissal.

Mr Harvey started as a solicitor at PRH Solicitors on 1 September 2009. On 29 July 2010 he was informed by letter that he would be redundant from 31 August 2010 and would be paid in lieu of holiday and notice up to 30 August 2010. His employer was concerned that the reference to 31 August in the letter might mean Mr Harvey had reached the required qualifying period of service. His employer sent him another letter on 29 July 2010 which was exactly the same as the first letter but informed him that he would be redundant from 28 August 2010.

When Mr Harvey subsequently brought a claim for unfair dismissal, the employment tribunal judge found that the effective date of termination was 31 August 2010 and that Mr Harvey had not accepted any change to that date. His employer appealed.

The EAT referred to existing case law in which employees had been given notice of their dismissal but had then been summarily dismissed during their notice period and the effective date of termination was held to be the date of summary dismissal. In this case the EAT upheld the employer’s appeal and said that there was no difference between dismissal with notice and summary dismissal as they are both dismissals under the legislation. The reason for the second dismissal was not relevant in determining the effective date of termination. The judge found that the second letter was not a variation requiring Mr Harvey’s consent; it was a new notice and could therefore be unilateral.

Retirement
In R & R Plant (Peterborough) Ltd v Bailey, the Court of Appeal looked at Schedule 6 of the Employment Equality (Age) Regulations 2006. These Regulations were repealed on 6 April 2011 but transitional provisions were put in place which means this decision could be of relevance for some employers.
Under the Regulations employers who had had an employee approaching the employer’s normal retirement age and wanted to retire the employee, could notify the employee of its intention to retire him at a certain date. Under the statutory retirement procedure, the employer had to be given advance notice of the retirement date and be given the opportunity to request to work for a further period and note retire. Employers were not bound to agree to an employee’s request to work for a longer period. If the provisions in the Regulations were followed then the reason for dismissal was deemed to be retirement and such a dismissal would not be unfair nor age discriminatory.
The Court of Appeal has confirmed in this case that where an employee was given notice of the employer’s intention to retire them but the letter did not expressly say they had a right not to retire “pursuant to paragraph 5 of Schedule 6 of the Age Regulations”, the dismissal did not fall within the statutory procedure and his dismissal was unfair.

Compulsory retirement age
In this case, Mr Selden was an equity partner in a firm of solicitors. He was compulsorily retired at the end of the year following his 65th birthday in line with the partnership deed. He brought a claim for unlawful direct age discrimination.

The Supreme Court in Seldon v Clarkson Wright and Jakes (A Partnership) has held that the compulsory retirement of Mr Seldon was not unlawful because three of the employer’s reasons in justifying indirect age discrimination were for a legitimate aim. The three reasons were staff retention by ensuring staff had the opportunity of becoming a partner after a reasonable period, workforce planning and of limiting the need to expel partners by way of performance management contributing to a congenial culture were not individual aims of the business but social policy aims in line with the equal treatment directive.

This case means that while there remains some scope for employers to have in place mandatory retirement ages if it can be justified on legitimate grounds, it remains difficult to determine what age that might be.

Forthcoming Legislation

June 2012
 
Extra Bank Holiday. The May Bank Holiday will be moved to Monday 4 June 2012 and an extra Bank Holiday added on Tuesday 5 June 2012 to celebrate the Queen’s Diamond Jubilee.

1 October 2012. 

Protected Disclosures The Pensions Regulator is to be added to the list of people to whom a protected disclosure may be made in relation to matters in respect of occupational pension schemes and other private pension arrangements.

Automatic pension enrolment For those employers with over 120,000 workers on their PAYE scheme.

New National Minimum Wage Rates The new National Minimum Wage Rates detailed in the News Update section above will come into effect.

5 October 2012
 
Retirement This is the latest possible date for retirement under the statutory redundancy procedure.

2012 onwards
 
Pensions Act 2008 – amendments

• Automatic enrolment of eligible employees into, and mandatory employer contributions to, qualifying pension schemes – to be phased in from 2012 over a 5 year period.
• New offences created – such as wilful failure to comply with the automatic enrolment provisions – up to 2 years’ imprisonment and/or a fine.
• A new head of automatic unfair dismissal is created where employees are dismissed for exercising their rights under the Act or as a result of an employer being prosecuted under the Act.
• Workers are given a new right not to suffer a detriment as a result of enforcing their rights under the Act.

2012

Consultation on changes to the Working Time Regulations Consultations have taken place on proposals to amend the WTR to take into account European case law which has determined that workers who are unable to take their annual leave as a result of sickness absence or maternity or parental leave in the current leave year must be able to carry it over into the following leave year. The Response to the Consultation is due this year.

Other proposed developments that do not yet have a confirmed date but will be implemented when Parliamentary time allows:-

Employer financial penalties for breaching employment rights
Allow judges to sit alone in the EAT
Early conciliation
Others areas in which the Government is likely to consult this year include:-

The introduction of protected conversations
Simplifying compromise agreements
New rapid resolution scheme
Collective redundancy consultation
TUPE

By 2012

Education and Skills Act 2008 Obliges employers in England and Wales to release young people for education or training and check whether a young person in participating in education or training before employing them.

2013

New Employment Tribunal Code to come into effect The new Code, following the review by Mr Justice Underhill, will come into effect.

Parental Leave Parental Leave extends from three to four months for each parent.

April 2015

Flexible system of shared parental leave is to be introduced This consultation closed on 8 August 2011 and a response is currently awaited. The response is expected in early 2012. The aim is for the system to be introduced in April 2015, subject to affordability.

6 April 2015

Tax exemption for wholly electrically propelled cars Such cars are currently subject to a five-year exemption from taxable benefit charge. From 6 April 2015 this will be 9%.