An employment tribunal ruled in July that the Bishop of Hereford was unreasonable to refuse to appoint a gay man to the post of Diocesan Youth Officer. Accordingly the Church was in breach of the Employment Equality (Sexual Orientation) Regulations 2003 and could not use the exemption in those regulations designed for cases where "the employment is for purposes of an organised religion".
The man concerned had been selected by a panel as the most suitable applicant for the job. The important point which influenced the tribunal was that he was not in a gay relationship when he applied for the job and that he specifically stated to the Bishop that he had no current intention of entering into one. Nevertheless the Bishop took the view that it was not realistic to think that he would not reenter one if the opportunity arose, especially in light of the fact that he had only very recently been in a homosexual relationship. The employment tribunal thought the Bishop was unreasonable to have taken this view notwithstanding his long pastoral experience and that the man complained to the Bishop that he (the Bishop) had "someone to cuddle with and other things and to whom you can come home to and unload at the end of a grim day and yet you deny me that".
The tribunal reserved the question of compensation to a future date.
As is well known, age discrimination in the employment field became unlawful on 1st October 2006 when the Employment Equality (Age) Regulations 2006 came into force. As is also well known, by way of exception to the normal rules the regulations specifically permit enforced retirement at (or over) age 65. However as the regulations were made to comply with a European Directive the British government was restricted in what it could and could not do. Objectors have argued that the Directive does not specifically allow this "age 65 retirement" exception, that it must therefore be unlawful under EC law and that it must be removed.
Following up on this point, a group known as HeyDay, part of Age Concern, took the British government to the High Court at the end of 2006. The High Court decided that the matter required consideration by the European Court of Justice and so decided to refer questions to the ECJ. At last, on 24th July 2007, the High Court has finalised the exact wording of the (five) questions to put to the ECJ, the basic one being "Does the scope of the Directive extend to national rules which permit employers to dismiss employees aged 65 or over by reason of retirement?".
Most commentators take the view that HeyDay will not win its challenge but as there will probably not be a final ruling before 2009 the question is likely to remain open for some time yet. Nevertheless in at least one recent case, in July 2007, the Southampton employment tribunal refused to stay a forcibly retired employee's case pending the outcome of the HeyDay appeal. The employee in the case was aged over 65 and the tribunal simply struck out her claim "as having no reasonable prospect of success".
In July, the government made formal regulations to bring this year's increases in the Natonal Minimum Wage. The new rates of NMW come into effect on 1st October 2007. The main changes are as follows:
The regulations also add three new classes of persons to those who do not qualify for the national minimum wage as follows (i) persons doing work experience as part of a further education course; (ii) workers participating in the latest phase of the Leonardo d Vinci Porgramme (an EC scheme providing participants with vocational training); and (iii) workers participating in the EC Youth in Action Programme.
We are all used to ex-employees making employment tribunal claims against employers. However it's not so common for an employer to bring a claim against an ex-employee. But employers should always remember that employment contracts are mutual. They give employers legal rights as well as giving rights to employees.
Nonetheless, except in cases where an employer is taking legal action to prevent an ex-employee entering into unfair competition in breach of a restrictive covenant, it is probably fair to say that in cash terms the scales are weighted against employers. In a recent case a Polish nanny quit her job without giving notice. The nanny brought claims for unpaid holiday pay and breach of the minimum wage rules (both of which she won). The employer, who was also Polish, hit back with counter-claims for an unpaid telephone bill, for the cost of replacing a skirt and a CD which she claimed the nanny had stolen, for the cost of repairing a computer which she claimed the nanny had broken, for repayment of £65 for a travel ticket she had bought for the nanny, rounding it all off with an allegation that the nanny's failure to give notice was a breach of contract.
The employer eventually won the breach of contract claim but was only awarded the difference between the cost of a replacement nanny for a week minus the minimum wage which would have been payable to the original nanny if she had not left - just £13.85. The employer also won £9.51 for the unpaid telephone bill and the £65 for the travel ticket. But to do all this she had to go to the Employment Appeal Tribunal where she was represented, no doubt at considerable cost, by a barrister and solicitors (see Davis v Pyrz in the EAT on 3rd April 2007).
The moral of the story is too obvious to need stating. If an employer feels aggrieved at having been taken for a ride by an employee, the best advice, at any rate from a financial point of view, can sometimes be to put it down to experience and move on. The sound old motoring adage comes to mind "He was right, dead right, as he sped along; but he's just as dead as if he'd been wrong".
As from 1st October 2007 the minimum annual holiday entitlement for most full time workers increases from 20 days a year to 24 days. There will be a further increase to 28 days from 1st April 2009. There is a pro rata increase for part-time workers. Appropriate regulations were made in July 2007.
The government's original intention was that the new regulations would give all workers the legal right to normal bank and public holidays as paid holidays on top of the 4 minimum weeks paid annual leave currently required. This has been dropped and there will still be no statutory right to time off on bank and public holidays. However in most cases a worker who is already entitled to time off for bank and/or public holidays will not be entitled to the new statutory increase in holiday entitlement as well - "in most cases" has to be said because certain conditions have to be fulfilled, such as that there must be a written "relevant agreement" in force on 1st October 2007 under which the worker has a contractual right to time off on bank and public holidays.
Technically, the new statutory right will be to 4.8 weeks annual holiday from 1st October 2007, increasing to 5.6 weeks from 1st April 2009. Unlike the basic 4 weeks which is required by EC law the additional holiday entitlement is purely domestic and so is not circumscribed by EC requirements. Thus there can be, and there is, some relaxation of the rules about commutation for cash and about carry forward of untaken holiday. The detail of the arrangements is quite complicated and we recommend that advice is taken in all but the most straightforward of cases.
It is not unusual for an employer who is dismissing an employee to arrange for the employee to leave at once, without working out the notice period to which he is entitled and instead to provide him with "pay in lieu of notice" (often called a PILON).
In a recent case in the Inner House of the Scottish Court of Session (a senior Scottish court equivalent to the English Court of Appeal) it was held that where an employment contract provides for a specific minimum period of notice there is no implied right for the employer to pay a PILON instead of allowing the employee to work out his notice. Thus where an employment contract provides for a specific minimum period of notice the employer can only provide pay in lieu of notice if the employee agrees or if there is an express contractual term giving the employer the right to require the employee to accept pay in lieu of notice.
In the case in question, the result was clearly fair. The employer was hoping to get away with paying a PILON equal to 12 months' salary on making a senior employee redundant. The employee won his claim that he was entitled to work out his 12 month's notice which might well result in him being entitled to a bonus on top of salary.
It should be noted that tax law can result in disadvantage to both employer and employee if an employment contract contains a clause expressly giving the employer the right to require an employee to accept pay in lieu of notice. Operation of such a clause can result in loss of potential tax exemption on the first £30,000 of pay in lieu of notice. It follows that great care should be taken before including such a clause in an employment contract. It can be prudent for employers to consider the possibility of alternatives with their legal and tax advisers before doing so.
What is now a highly sophisticated employment tribunal system was originally intended to provide an informal, speedy and low cost method of settling disputes between employers and employees. One aspect of this is that, even now, in most cases there are strict limits to the maximum cash awards which an employment tribunal can make. However the position is quite different in discrimination cases. Even though employment discrimination cases come before employment tribunals, there are no cash limits to the amounts that can be awarded.
Thus in a recent race discrimination case, an employment tribunal made an award of no less than £814,877. A surgeon of Indian origin had complained to a tribunal that refusal by the authorities to allow him to transfer to a new consultant urologist grade introduced in 1995 was unlawful race discrimination. He lost his case but he had another string to his bow. His professional association, the BMA, had not provided him with the support to which he considered he was entitled in bringing his case against the authorities. So he sued the BMA saying that they had been guilty of race discrimination and victimisation in not providing full support - and this time he won. The BMA appealed to the Employment Appeal Tribunal and lost. It appealed on to the Court of Appeal, basing its appeal mainly on an argument that the original tribunal had used the wrong pool of comparators in coming to its decision that there had been discrimination. The Court of Appeal has recently given judgment in favour of the BMA.
While the BMA thus eventually defeated Mr Chaudhary's claim, the fact that it had to go to all the way to the Court of Appeal to do so, the technical nature of the arguments it had to put forward and the size of the original award against it all go to show how important it is to take great care to avoid doing anything which might result in being on the wrong end of a discrimination suit. This case, and the one noted immediately below, are examples of the fact that it is not only employers who have to take care: professional associations and trade unions can also be at risk if a failure to provide support for their members amounts to unlawful discrimination. This is a developing area of law and it is prudent to take expert advice in good time in any potentially difficult situation.
Over the centuries it has been a problem for moralists and philosophers: in what circumstances, if any, can the use of illegitimate means be acceptable because the ultimate purpose is good? From medieval consideration of the problem of the "just war" right through to today's debate on use of stem cells in research, the tension gives rise to continuing and important debate.
Employment law is in the thick of it. Recently female members of the GMB trade union complained to an employment tribunal that their union acted unlawfully by failing to press home their equal pay claims against their employer, the Middlesbrough Metropolitan Borough Council. The union took the view that it had a duty to all its members, male and female. If it won equal pay for the women concerned there would be problems for other members, including possible job losses, as the employer clearly did not have unlimited resources and would have to find the money from somewhere. In the event the union decided to give priority to achieving equality for the future rather than to press for satisfaction of back pay claims by the female members concerned.
A solicitor, Stefan Cross, who specialises in fighting equal pay cases for local government and other public sector female employees, became involved. Acting on a "no win, no fee" basis he contended that the women concerned had been let down by the GMB and that their failure to press the women's claims amounted to unlawful sex discrimination. The women won their sex discrimination claim against the GMB union at an employment tribunal in June 2006 and the union appealed. In July 2007 the EAT overturned the original tribunal's judgment. The EAT agreed with the women that the GMB union had been "guilty" of indirect sex discrimination but held that this discrimination was justified as proportionate to a legitimate objective and was therefore not unlawful. Addressing the point head on, the EAT ruled unambiguously that "the fact that the objective might be achieved by using unlawful, even dishonest, practices does not necessarily mean that the means are disproportionate once it is accepted that the aim itself is legitimate". In other words, in this particular case, the end justified the means.
Since our last newsletter the Government has announced an Employment Simplification Bill. Also the Tribunals, Courts and Enforcement Bill has received Royal Assent. Notes these and on all other current employment law related Bills and prospective Bills are included on our website, together with an archive of lapsed employment law related Bills since 2002.
Summaries of all cases reported in the main employment law reports so far issued in 2007 (ICR 2007 and IRLR 2007) are now noted/summarised on our website. This is in addition to summaries and/or headnotes of more than 2,000 other employment cases, new and old, all linked to commentary as appropriate.