Rogers & Norton News

EMPLOYMENT LAW BULLETIN OCTOBER 2013

Monday, October 7, 2013

WELCOME

The number of employment claims is up 10% on this time last year, according to tribunal statistics just published by the government.

Dig deeper into the figures and the picture is a little blurry. What we do know, though, is that sex discrimination and equal pay claims are the biggest risers. And the change from a one to two-year qualifying period for unfair dismissal hasn’t deterred too many claimants so far – in fact, numbers are slightly up on the previous quarter.

So what does this all mean? Probably that these are benchmark statistics. Because it’s when the next set emerges that we’ll be able to see just what effect tribunal fees, introduced this summer, have had.

Farewell third party harassment law

As of 1 October 2013, an employer can no longer be liable for harassment on a worker by a third party. Previously you, as an employer, became liable if a third party such as a customer or supplier harassed one of your workers on three occasions, and you failed to take reasonable steps to stop it.

That’s because the law that introduced it has been scrapped. But this doesn’t mean that employers can turn a blind eye to things that happen between customers, suppliers and workers. Far from it, in fact. Even though the law doesn’t now explicitly impose a liability, the duty to protect employees in the workplace firmly remains.

Failing to prevent harassment could be a fundamental breach of contract. And in some cases an employer’s failure to act could itself be harassment as unwanted conduct related to sex or race – and that’s still covered by the general anti-harassment section of the Equality Act.

In reality, the fact that the third party harassment law has been repealed will not change the way most employers handle these sorts of problems in the workplace. But those that think that this is now one less thing to worry about could be in for a tribunal-shaped surprise.

 A fair, shambolic redundancy

Osoba v Hertfordshire Police

Redundancies and redeployment were on the cards at Hertfordshire Police. Mr Osoba, who had worked there for 30 years, was asked if he was considering retiring or whether he wanted to stay in his role or be redeployed. He wanted to stay.

What followed was a “shambles” which resulted in Mr Osoba being made redundant and bringing an age discrimination claim. The Police had designed a points-based matrix system, which Mr Osoba argued had been deliberately manipulated to score him lower than his colleagues. Dismissing him, he said, would avoid the “headache” of the employer having to recruit someone into his position when he did eventually retire.

The employment tribunal found inconsistencies in the scoring and elements of incompetence, but there was no discrimination. The employer had tried to be fair, had admitted mistakes and those mistakes did not put Mr Osaba at a particular disadvantage compared with colleagues who were not approaching retirement.

The Employment Appeal Tribunal upheld the decision. The officer hadn’t manipulated the scoring or selection because of Mr Osaba’s age.

Employers should derive some comfort from the fact that there may be a little bit of slack in the notoriously tricky task of setting criteria and scoring employees against them. Do your best, be fair and honest and avoid discriminating (at all costs) and you’ll be on strong ground.

Internal appeal cured discrimination

Little v Richmond Pharmacology

The appeal stage of disciplinaries and grievances sometimes gives employees a chance to turn things in their favour. And it’s also a sometimes undervalued tool for employers to put right any mistakes they might have made earlier on in the process.

For Richmond Pharmacology, the appeal was all-important. Ms Little had returned from maternity leave and asked to work part-time. Richmond refused. She appealed that decision, but resigned before the appeal hearing took place. The appeal resulted in her being offered a three-month trial period during which she could work part-time. Ms Little turned this down, saying that her resignation stood.

She claimed constructive unfair dismissal (which was out of time and so could not be heard) and indirect sex discrimination (which she lost, but appealed).

The Employment Appeal Tribunal held that the tribunal had been right to find that she had not suffered a particular disadvantage as a result of the requirement that sales executives should work full-time. The employer had not applied that requirement to her – it had offered her part-time work.

So here Richmond managed to cure that particular detriment before it was too late. And that should be a reminder to all employers of the importance of a rigorous, open-minded appeal process.

Contractual wording

Ahmed v Wincanton Group

It’s not uncommon for employers to try to avoid creating employment relationships. ‘Workers’ or ‘contractors’ are a less protected breed.

But this case is the latest in a series which emphasises that employee status cannot simply be set by either employer or employee.

When Mr Ahmed started working for Wincanton he was given a document containing various terms. One term was that there was no intention to create a contract of employment. Another was that the company had no obligation to offer work assignments but that, if Mr Ahmed accepted work, he’d be deemed to be an employee while it lasted.

Was he an employee or not? The tribunal said no. The initial words of the document said as much, and so he wasn’t eligible to bring an unfair dismissal claim.

The Employment Appeal Tribunal allowed Mr Ahmed’s appeal. Express wording is one thing, but what was the true nature of the parties’ agreement? Did that create an employee/employer relationship? The tribunal here hadn’t properly analysed all the terms of the contract, or how the arrangement worked in practice, and so the case will now be heard again.

Future loss cut short by resignation

Osei-Adjei v RM Education

Mr Osei-Adjei claimed that his former employer had discriminated against him by failing to make reasonable adjustments to account for his dyslexia. That failure had caused him to suffer depression which, for a time, rendered him unfit to work.

The employer had then made all reasonable adjustments to help him return to his job but, despite being given the medical all-clear to go back, he resigned and claimed constructive unfair dismissal.

The Employment Appeal Tribunal (EAT) held that the tribunal had been right to decide that there was no constructive unfair dismissal because there was no breach of contract by the employer. The tribunal did, however, award damages for psychiatric injury and injury to feelings, and one interesting point stemming from that was the question of future loss of earnings.

The EAT held that Mr Osei-Adjei had resigned voluntarily and that his resignation had “broken the chain of causation”. That meant that he was not entitled to future loss of earnings. He was medically fit to work at the date he resigned, and so nothing had prevented him from getting a different job.

Surrogacy and maternity leave

Case C-167/12 – CD v ST

A surrogate mother whose employer denied her paid leave could be paving the way for surrogacy rights to be brought on a par with adoption and maternity.

While women who adopt children get the same rights as mothers who give birth, surrogacy is not covered by legislation. An employment tribunal has asked the European Court of Justice to decide if it ought to be.

The latest is that the surrogate mother is likely to win and to open the doors for others to be allowed maternity leave too. The Advocate General, whose recommendations the European Court usually follows, has said that even where a surrogate mother doesn’t breastfeed her baby she is entitled to maternity leave if she takes that baby into her care after its birth.

The leave would effectively be split between the birth mother and the surrogate mother so that the overall entitlement would not be doubled by including surrogacy in the mix.

And finally…

It’s a story which really hit the headlines: the bullied secretary who got herself some legal qualifications and beat her former employer in a courtroom battle.

Sounds a bit Hollywood? Well it is, and it isn’t. Inspired by the classic movie Erin Brockovich, Alex Gibson from North Wales showed steely determination in righting a wrong. She studied for her law degree while preparing her eight-day disability discrimination and harassment case, founded on her dyslexia.

There are two schools of thought. One is that legal knowledge really does mean the difference between winning and losing a case. Another is that the employment tribunal is supposed to be as much for the lay person as the represented. In spite of efforts to make the system accessible to all (who can afford the tribunal fees) perhaps not everyone is convinced.