Toupee

From now on my preferred pronunciation of TUPE will be 'toupee' as this appears to be the accepted way that non-lawyers wish to pronounce it. Perhaps this is simply my way of trying to inject some humour into what is otherwise a very dry and complex area of employment law.

I recently had cause to delve into the regulations and was struck yet again how lacking in justice the rules can sometimes turn out to be. At the end of the hearing the Judge was apologetic as to the outcome which saw a Claimant lose because he had objected prior to the transfer and found himself unable to show that the proposed changes amounted to a substantial enough change and also did not fundamentally breach his contract of employment.

The operation of Reg 4 and in particular 4(7) - (9) creates real risk for an employee who thinks his job might change. If he does want to object he must be sure what the changes are, so that when he does leave he is not left without a remedy by virtue of Reg 4(8).

What can we learn from this? If you are advising a client pre-transfer you need to be certain that any changes are substantial. The best advice, if you are not sure, is to recommend they hang on until after the transfer and see how things work out. This would have been good advice for the Claimant who received an apology from the Judge but no compensation.

Peter D

Baby Boomers Have It All?

Need I say any more? The government have decided to plough on with removing the default retirement age.

http://www.bis.gov.uk/assets/biscore/employment-matters/docs/p/11-536-phasing-out-default-retirement-age-government-response.pdf

From an employment lawyers point of view this looks to me to be more fertile territory for work in the coming 12 months. No upper limit will mean that older workers will be managed out of the business. These workers tend to be higher earners, have more service and on average are more likely to have health issues (disability). From a government who said they wanted to simplify Employment Law (see link below) this move is surprising and not welcomed by business. For the older worker this is a life line as many people carry on working not because they want to but because they have no choice and need the money to make ends meet. My own view for what it is worth is that this is one way to help support an ageing population but I fear that this is being done at the expense of the next generation who will now have less opportunity to get on the jobs ladder.

http://www.personneltoday.com/articles/2010/11/01/56855/changing-unfair-dismissal-rights-would-be-regressive.html

Peter D

Beauty Before Age?

Having left for work a bit later this morning I sat in the bath listening to Radio 5 Live's phone in. Today's topic was age discrimination at the BBC prompted by the case of Miriam O'Reilly who was sacked from her job as presenter of Country File. For the full story follow the link:

http://www.telegraph.co.uk/culture/tvandradio/bbc/8252309/Miriam-OReilly-set-to-return-to-BBC-after-winning-tribunal-case.html

What struck me was that amongst the normal banter including one man's view that Sue Barker is no longer sexy (when did that happen) someone came up with a very good comment: Aren't television presenters performers? Put another way is it a genuine occupational requirement that a presenter is 'easy on the eye' or is there more to it than that? Are we entering a new era where each time a presenter is replaced by a younger model the cry goes up discrimination? Some people might say that this is in fact a case of an ageing presenter having her cake and eating it. May be what we are in fact seeing is a sea change in how society views age in much the same way as British society began to embrace the problems of sex and race discrimination in the mid-70s?

I just have a feeling that this will be a very busy year in age discrimination.

Peter D

Bad Dog No Biscuit

I find myself somewhat shamefully returning to the blog having neglected it for many months. So my New Year's resolution is try to blog at least twice a month!

Peter D

Summer Seminar

The Team are delivering a Seminar on 11th June 2010. I will talking about the new Employment Agency rules that are being introduced next year. If you have a topic you want covered please contact Mark who is coordinating things in Chambers.

Peter D

Bye Bye Baby ........

In these difficult financial times women who are taking periods of maternity leave are returning to find that their jobs have disappeared. I have come across this in two different contexts in the last few weeks with one lady finding that her sales territory had doubled whilst she was on additional maternity leave (AML) and the other who was simply made redundant after her AML ended.

It seems to me that a lot is made of the special position of women returning to work in the press but surely there is not a lot you can do as a woman returning to work when your job has disappeared? Or is there?

It is a relatively painless economy not to cover work during an employee’s maternity leave but what happens when the employee wants to come back to work. The employer will be faced with trying to take the employee back where there is in reality no job.

Extra caution has to be exercised as what looks like a cut and dried redundancy for the returnee is in fact an act of discrimination. There is a substantial risk that the reason for the employee not having a job is because that employee was on maternity leave. The employer has not bothered with following a redundancy selection procedure as the returnee self selected by not being on site. A Tribunal is going to look long and hard at where the work has gone and if other employees have taken on the work.

An added difficulty arises where a vacancy which might have been appropriate has been filled during the AML as the regulations make it clear that the returnee has priority over other employees.

If the previous job has disappeared then the returnee is entitled to be offered a suitable vacancy. Bear in mind that this offer must take into account that the returnee has a new baby and the offer should be as near as possible to the job that she left.

In short an employer’s use of maternity leave as an economy is in many cases short sighted and stores up problems for the business. If there is a redundancy situation whilst the employee is away on maternity leave then this should be addressed at the time and not left to be cleared up when the employee returns. The risks are obvious and more importantly it may prove impossible to undo the situation on the employee’s return!

I have set out below Reg 10 of Maternity and Parental Leave etc Regulations 1999. I have also inserted a link to the case Blundell v St Andrews Primary School in the Employment Appeal Tribunal in 2007 a case dealing with offers of alternative employment to a returnee from AML.

10 Redundancy during maternity leave

(1) This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

(3) The new contract of employment must be such that—

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

Blundell v St Andrews Primary School:

http://www.bailii.org/uk/cases/UKEAT/2007/0329_06_1005.html

Peter D

The Queen's Shilling

The days of press gangs are passed but it seems to me that the rules governing service in the Armed Services are ripe for an update.

An officer is commissioned to serve the Crown pursuant to the Royal Prerogative. Officers of Her Majesty's forces do not have any contractual relationship with the Crown. This principle which was approved in Leaman v R [1920] 3 K.B. 663 is that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract.

The extent of the Royal Prerogative in modern days has been the subject of judicial analysis by the House of Lords in 1985 who expressed the view that the concept of an ‘irresistible and absolute’ prerogative was old fashion. In the light of the more recent changes to UK law as a result of the Human Rights Act (HRA) and the Equal Treatment Directive it has become clear that the prerogative is not absolute. The armed forces can be challenged where the individual can bring his or herself within the Human Rights Act or the Equal Treatment Directive.

The question of a contract between the officer and the Crown has recently been looked at in Newell v Ministry of Defence [2002] EWHC 1006 where Elias J restated the applicable law concluding that there is no contract between the officer and the Crown.

The issue of an unfair dismissal claim was considered by the Court of Appeal in Melbourne v Ministry of Defence [2002] EWCA Civ 754. The Court approved the reasoning of the Employment Appeal Tribunal in Melbourne v Ministry of Defence [2002] EAT/522/00.

The Employment Appeal Tribunal reviewed the state of the law and concluded that a member of the armed forces could not bring a claim for unfair dismissal (see para 2 – 4). The Employment Rights Act 1996 (ERA) does make provision at S 192 ERA for this but the section has not yet been made into law. The present position remains that members of the armed services cannot bring claims under the ERA.

The Court of Appeal looked at the application of the HRA. The conclusion was the same. Article 6 of the HRA was not breached. There is a detailed analysis of the point in para 17 – 20. In should be noted that one attack was on the non-implementation of S 192 ERA but this failed (see para 20).

A serving officer is allowed to seek redress and does so utilising the Redress of Individual Grievances: Service Complaints. Note this procedure must be completed prior to any action being launched for race or sex discrimination in the Employment Tribunal.

There is no external appeal in respect other ‘employment type’ claims other than Judicial Review. This route is available as Taylor LJ pointed out in R v Army Board of the Defence Council [1991] ICR 537 at 550 that as the complaints procedure is the only means of addressing fundamental statutory rights for members of the armed forces the complaints procedure needs to be operated with a high degree of fairness.

In short once you have accepted the Queen's Shilling you are at her command with no right to claim a breach of contract, non-payment of wages, unfair dismissal or many other forms of redress which arise out of the regular employment relationship.

Peter D