Employment Review - January 2009
In this month’s Review we give details of two recent decisions which have reinforced the protection of rights if individuals can show they have been subject to harassment or discrimination on the grounds of sexual orientation; a link to a consultation on revisions to the 2003 Code of Practice; time off for trade union duties and activities; a case involving a resignation in the heat of the moment; when length of service pay criteria must be justified for equal pay; MEPs vote against working time opt-out and the new figures for calculating redundancy payments and compensation for unfair dismissal.
Sexual Orientation Discrimination
Acas consults on time off for trade union duties and activities
Resignation in the heat of the moment
Equal pay: when length of service pay criteria must be justified
MEPs vote against working time opt-out
Increases in Limits
Sexual Orientation Discrimination
Two recent decisions have reinforced the protection of rights and have resulted in a widening of individuals ability to bring claims showing that they have been subject to harassment or discrimination on the grounds of sexual orientation.
The first case involved a claim brought by Stephen English against Thomas Sanderson Ltd. He originally came from Brighton and had been to boarding school. Some of his work colleagues decided that these facts meant that when they “teased” him they would do so by calling him a “faggot” and subjected him to sexual innuendo relating to homosexuality.
In fact Stephen English is heterosexual and it was accepted and acknowledged before the Tribunal that this was well known by those abusing him and they did not believe him to be gay. However he argued before the courts his claim for sexual orientation harassment should succeed because he was being subjected to harassment on the grounds of sexual orientation whether his tormentors perceived him to be gay or not. The Court of Appeal decided that his claim against his employer should succeed. The critical fact was that Stephen English was taunted as gay. It did not matter whether he was in fact gay or not.
The Court emphasised that this was one of the public policy aims in the legislation. It further added there could not be a requirement on a person being subject to homophobic taunts to disclose his sexuality before he could be protected by the law.
The decision means that anyone subjected to any form of homophobic abuse in the workplace by other employees will be able to succeed in a sexual orientation harassment claim.
The key lesson for employers is that any “banter” with homophobic connotations (or indeed racial, religious, gender or age connotations) must not be allowed in the workplace as it leaves the organisation vulnerable to potential claims from employees.
The second decision from the Employment Appeal Tribunal is the well publicised claim of the Registrar, Lilian Ladele, against London Borough of Islington. She was employed as a Registrar who refused to conduct civil partnership ceremonies despite the Council’s policy that all Registrars should do so. The Council subsequently took disciplinary action
against her.
She claimed that she had suffered discrimination and harassment on the grounds of her religious beliefs, as she would not conduct such ceremonies. The Council believed if they allowed her to refuse to conduct such ceremonies it would undermine their commitment to ensuring that their services were provided by all employees in a non-discriminatory way. They believed that it would send out the wrong message to staff and others if they organised the work so that she did not conduct civil partnership ceremonies. It is important to note that two gay employees of the Council had raised complaints about Ms Ladele’s refusal.
The EAT has found that this did not amount to direct discrimination on religious grounds at all. Her indirect discrimination claim was also rejected and, most notably, the EAT concluded that the Counsil’s policy of requiring all Registrars to conduct civil ceremonies was entirely justified even though it would be a requirement with which less employees sharing Ladele’s beliefs would be able to comply.
The Tribunal accepted that the Council’s aims were entirely correct and the policy appropriate, as making an exception for Ms Ladele would undermine the objective of providing services for all without discrimination.
An employer is not required to ascertain views of an employee as to which duties they can perform in accordance with their religious views, at least in circumstances where the employee’s personal stance involves discrimination on the grounds of sexual orientation, so long as the practice is universally applied by the employer.
Acas consults on time off for trade union duties and activities
On 15 December 2008 Acas launched a consultation on revisions to the 2003 Code of Practice, Time off for trade union duties and activities. Acas will also issue a guide, “Developing effective employee representation: a guide to managing provisions for time off, training and facilities”, with the draft code, covering all types of employee epresentation including those with statutory rights to paid time off, training and facilities and ‘voluntary’ representatives with no such legal rights.
The consultation closes on 16 March 2009. See here for details: http://www.acas.org.uk/index.aspx?articleid=2123
Resignation in the heat of the moment
This case involved an employee Mr Ali, who was employed by Birmingham City Council as a data entry clerk. Mr Ali claimed he was “under pressure, stressed out and couldn’t think straight”, and as a result Mr Ali handed a letter of resignation to his manager.
His manager, on advice from the Council’s Human Resources department, offered Mr Ali a 20-minute cooling-off period to reconsider his decision. As Mr Ali appeared to be upset at the end of the 20 minutes, his manager told him to take further time to consider his resignation. After another 10 minutes, Mr Ali confirmed his wish to resign with immediate effect which was accepted. His manager took his fob key and escorted him from the premises.
Mr Ali subsequently contacted the Council and was told that, as he had resigned, he did not have an automatic right to return. He sent an e-mail to his manager advising that he wished to return to work. The council responded by stating that “a decision has been made not to reinstate your contract and your resignation therefore still stands”.
Mr Ali issued tribunal proceedings for unfair dismissal. The Tribunal at first instance found that there were no special circumstances and therefore the tribunal did not have jurisdiction to hear his claim. He had used unambiguous words of resignation, had confirmed his wish to resign after having an opportunity to reflect and had not attempted to reverse his decision until he sent his manager an e-mail.
In the Employment Appeal Tribunal Mr Ali argued:
- First, that special circumstances existed in his case (his purported resignation had been given in the heat of the moment), that there had been no real resignation and that the employment judge had erred in finding that his case was not covered by the exception to the general rule.
- Second, that the Council had failed to provide him with a reasonable opportunity to reflect and, during this period, to adequately investigate the circumstances of his resignation.
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Third, that the employment judge had erred by failing to find that he had rescinded his resignation before it had been accepted by the Council.
Mr Ali accepted that he could only rely on his second and third arguments if the EAT found that the employment judge had erred in holding that special circumstances did not exist in his case.
The EAT rejected Mr Ali’s principal argument. It held that, on the facts, the employment judge had been entitled to hold that his resignation had not been tendered in the heat of the moment. Mr Ali had persisted in his desire to resign after being given an opportunity to reflect. His decision was therefore considered, not impulsive. Further, Mr Ali had not tried to withdraw his resignation until more than four days afterwards. During this period, either by his positive conduct or by failing to inform the Council otherwise, he as indicating clearlythat he wished to resign.
Despite dismissing Mr Ali’s appeal on this basis, the EAT considered Mr Ali’s second and third arguments. Mr Ali argued that the employment judge had failed to consider what would have been a reasonable amount of time for the Council to wait before accepting his resignation. He suggested that the judge, who had also failed to recognise that the Council was under a duty to consider what Mr Ali’s continuing and true intention was, should have held that 30 minutes was insufficient time for him to consider his position. The EAT is agreed. It held that the employment judge had been entitled to find that, in the circumstances, Mr Ali had been given a reasonable opportunity for reflection.
Mr Ali also argued that the employment judge had failed to consider whether is resignation was capable of being rescinded before it was accepted (given less than two days after his resignation, he had asked for more time to consider his position before he asked to rescind his resignation in an e-mail to the Council). The EAT held that this argument was factually flawed because the Council had, through Mr Ali’s manager, accepted his resignation. In any event, Mr Ali had made no attempt to rescind his resignation before his e-mail. Even if he had been covered by special circumstances he would only have had a short period of time to rescind his resignation (limited by the EAT in Kwik-Fit v Lineham to “a day or 2″) and his attempt would have been too late.
The question of whether an employee has resigned or been dismissed frequently arises when the employee claims they were given no option but to resign or were “forced” to resign. This category of dismissal was referred to in Sothern v Franks Charlesly & Co Limited as “an employee being jostled into a decision by the employer”. However, it is important for employers to remember the other two categories identified by the
Court of Appeal: immature employees and those that take decisions “in the heat of the moment”. In such cases, rather than accepting a resignation at face value, employers should make sure they give the opportunity to reflect on their decision. As the EAT in this case points out, this need not take a particularly long time. However, employers should ensure that they are satisfied that an employee has had an opportunity for calm reflection and this is likely to depend on the facts of each case. Employees who wish to change their minds about a resignation submitted in such circumstances should ensure that they act without any delay to put their request to their employer.
Equal pay: when length of service pay criteria must be justified
In Cadman v Health & Safety Executive the ECJ held that, for equal pay purposes, an employer will not always be required to show specific objective justification for using potentially indirectly discriminatory length of service pay criteria. However, specific justification will be required where a woman provides evidence capable of raising “serious doubts” that a length of service criterion is appropriate. This decision gave rise to a debate as to how “serious doubts” could be shown in this context.
Mrs Wilson was an HSE inspector who, due to having less service, was paid less than three “equal” male colleagues. When her equal pay claim was heard by the tribunal she accepted that, given the nature of the job, performance was likely to improve with experience for the first few years of service. However, she argued that the ten-year period during which the HSE’s incremental pay scale applied was too long to be justifiable. While the tribunal agreed that a shorter period would have been appropriate, it dismissed her claim in the light of the ECJ’s decision in Cadman. It held that, once Mrs Wilson accepted that her employer could justify using a length of service criterion to any extent, then no “serious doubts” about that criterion could exist. Accordingly, the HSE was not required to show specific justification in respect of the ten-year period during which length of service affected pay.
The EAT allowed Mrs Wilson’s appeal. It saw no rationale for limiting the “serious doubts” test to the question of whether any length of service criterion was appropriate for a particular job. Rather, such doubts could also arise about the time period for which a length of service criterion affects pay. The EAT remitted the case to a different tribunal to determine whether there were serious doubts as to whether the HSE’s ten-year pay incremental pay scale was appropriate.
MEPs vote against working time opt-out
The European Parliament has voted to end the UK’s opt-out from the maximum 48-hour working week, contained in the European Working Time Directive. A majority of MEPs, in a 421-273 vote, want the opt-out to be axed within three years.
John Cridland, CBI Deputy Director-General, called the vote “misguided” and said that it would “replace opportunity with obstruction”. Shadow business secretary Alan Duncan also described the vote as “economic madness” in the current recession. However, Unite joint general secretary Tony Woodley commented that “tired, overstretched workers are not productive workers and are putting themselves and others at risk”.
The UK Government will now enter negotiations with the European Council of Ministers to prevent the opt-out from being scrapped as early as next year. However, it is likely that the discussions will reach a deadlock and that the opt-out will continue.
Increases in Limits
In calculating redundancy payments and compensation for unfair dismissal, new figures have been published. These apply to dismissals where the effective date of termination of employment is on or after 1 February 2009.
The new figures are:
- £350 (up from £330) will be the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award for unfair dismissal;
- £10,500 (up from £9,900) will be the maximum statutory redundancy payment or basic award for unfair dismissal;
- £66,200 (up from £63,000) will be the maximum compensatory awards which can be made for unfair dismissal.
These increases mean that the maximum total unfair dismissal award (taking in to account both the basic and compensatory award) is now as much as £76,700. It is therefore important for employers to ensure that they follow the procedures in redundancy situations, consider all dismissals properly and ensure that the defence of each claim is thoroughly considered.
This update is only a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist advice should be sought from a member of the Freeth Cartwright Employment Team in relation to any queries that may arise.
Pat Jones
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Vanessa DiCuffa
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Tel: 0845 634 2584
Fax: 0845 634 2576
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David Potter
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Nottingham NG1 6HH
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Fax: 0115 859 9617
david.potter@freethcartwright.co.uk
Joanne Kay
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Cardinal Square,
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Tel: 0845 634 1724
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Julian Middleton
One Colton Square,
Leicester LE1 1QH
Tel: 0116 248 1115
Fax: 0845 634 2595
julian.middleton@freethcartwright.co.uk
This update is only a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist advice should be sought from a member of the Freeth Cartwright Employment Team in relation to any queries that may arise.
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