Employment Review - November 2009
In this month’s review we look at current and future changes to the law relating to agency workers. We also review the decision that was widely reported in the media regarding whether belief in climate change could constitute a belief within the meaning of the Religion or Belief Regulations. We also comment on the decision of the EAT on associative discrimination in the context of the Disability Discrimination Act 1995 in the Coleman case as well as other recently reported decisions.
Hanif Lula
LEGISLATION UPDATE - Agency Workers
The Fixed-term Employees (Prevention of Less Favourable Treatment)
(Amendment) Regulations 2008
Regulations amending the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 so that agency workers on contracts of less than three months are entitled to SSP came into force on 27 October 2009.
Agency Workers Directive
The government has published draft Agency Workers Regulations 2010 to implement the EC Agency Workers Directive with effect from October 2011.
An accompanying press release confirms that “the Government is committed to getting this legislation on the Statute Book by the end of this Parliament” and that “the law will come into force in the UK in October 2011″.
The main effect of the regulations will be to ensure that after 12 weeks in a given job, agency workers will be entitled to equal treatment with other staff as far as basic working and employment conditions are concerned, including pay and holidays, as if they had been recruited directly by the hirer.
In addition, from the first day of their assignment agency workers will be entitled to (i) information about vacancies the hirer may have to give them the same opportunity as other workers to find permanent employment; (ii) equal access to on-site facilities such as childcare and transport services; (iii) additional rights for new and expectant mothers including the right to reasonable time off to attend ante-natal appointments and adjustments to working conditions and working hours.
Employment tribunals will be given jurisdiction to hear complaints from agency workers who consider their rights under the regulations have been breached or that they have suffered a detriment for asserting their rights under the regulations.
There will be a 3 month time limit from the date of the alleged breach or detriment for making an application to a tribunal. In detriment cases, tribunals will be able to award compensation for injury to feelings.
Back to the top
Grainger plc v Nicholson - belief in climate change disaster is capable of being a belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
This case was reported in our June 2009 review. Mr Nicholson was made redundant by his employer, Grainger plc, from his position as head of sustainability.
Mr Nicholson lodged claims including one asserting that he had been dismissed because of his belief in climate change. He claimed that his dismissal on grounds of redundancy was an act of discrimination on grounds of his “philosophical belief”. He stressed that his views were not just an opinion; his philosophical belief affected almost every aspect of his life including his choice of home, how he travelled and what he ate.
Having regard to case law before the European Court of Human Rights, where that court had stated that for a belief to qualify for protection it must have sufficient cogency, seriousness, cohesion and importance as well as being worthy of respect in a civilised society, the Tribunal found, at a preliminary hearing in March 2009, that Mr Nicholson’s beliefs about climate change did amount to a philosophical belief within the Employment Equality (Religion or Belief) Regulations 2003.
Grainger PLC appealed to the EAT. It argued that Mr Nicholson’s assertion is “a scientific view rather than a philosophical one. Philosophy deals with matters that are not capable of scientific proof……. What Mr Nicholson asserts is a scientific claim that if we don’t urgently cut carbon emissions, we will not avoid catastrophic climate change. There is nothing philosophical about that”.
Mr Nicholson in turn argued that “The philosophical belief in this case is that mankind is headed towards catastrophic climate change and that, as a result, we are under a duty to do all that we can to live our lives so as to mitigate or avoid that catastrophe for future generations”.
A judge in the EAT has agreed that the case can proceed to a hearing on the basis that “the asserted belief held by Mr Nicholson upon which he bases his claim of discrimination is capable of being a belief for the purposes of” the 2003 Regulations.
The EAT made it clear that if and when the case comes before a tribunal to be heard on its merits, as it can now do, Mr Nicholson will need to provide (i) evidence directed to the genuineness of his belief; (ii) evidence that it is a belief rather than “an opinion or viewpoint based on the present state of information available” and (iii) evidence from which the Tribunal could conclude that his dismissal was on the grounds of that belief.
The EAT judge said Mr Nicholson would also have to show that his belief is one concerning “a weighty and substantial aspect of human life and behaviour” which attains “a certain level of cogency, seriousness, cohesion and importance” and which is “worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”.
As a matter of law, there is particular importance in the distinction drawn by the EAT judge between “philosophical belief” on the one hand (which is covered by the 2003 regulations) and “an opinion or viewpoint based on the present state of information available” (which is not covered).
What does this mean for employers?
Ensure that allegations of discrimination under the Regulations are considered carefully in light of the broad view taken by the tribunal as to the definition of philosophical belief. Employers would need to consider, if placed in similar circumstances, whether the employee’s belief was sufficient to amount to a philosophical belief.
Disability Discrimination, carers and interpretation of UK law in the light of EU law to cover associative discrimination - EBR Attridge Law (1) Law (2) v Coleman.
Miss Coleman brought a claim for unfair constructive dismissal and discrimination contrary to the Disability Discrimination Act alleging direct discrimination, disability related discrimination, harassment and victimisation. Miss Coleman is not disabled but claimed that she had been discriminated against on the grounds of her being the carer of a disabled person, her son. It was accepted by the tribunal that her son was disabled for the purposes of the DDA. She claimed that she had been forced to resign from her position at Attridge Law after she requested time off to look after her disabled son. She claimed that her managers had called her “lazy” as a result of this request. She also claimed that she was not permitted the same flexibility in her working hours as her colleagues who were parents of non-disabled children.
The claim raised a preliminary issue of whether she was entitled to bring such a claim on the basis of her association with her son’s disability. This was the matter referred to the ECJ which found that the Framework Directive protected those who were discriminated by virtue of association.
The tribunal ruled in November 2008 that it has jurisdiction to hear a disability discrimination claim by an employee on the basis that she was discriminated against by her employer because she took time off work to look after her disabled son by, in effect, inserting new words into the Act.
Employment tribunals only have jurisdiction insofar as they are given it by an Act of Parliament. The tribunal would have been obliged to hold that it could not hear the case. The tribunal held that effectively inserting words into the Act was necessary to comply with EU law.
The employer appealed and the matter went to the Employment Appeal Tribunal in July 2009. The Employment Appeal Tribunal agreed with the employment judge that, on a proper interpretation of the Disability Discrimination Act 1995, employment tribunals do have jurisdiction in such a case. The result is that Mrs Coleman’s case can now go to an employment tribunal for a hearing on its merits.
In an employment context, the wording of the Act assists only employees who suffer from a disability and does not help protect employees who are carers of disabled people. The EAT decision confirms that as a matter of law a broad, purposive, interpretation must be given to the UK Act to bring it into line with EC law even though this effectively means adding words which Parliament never included.
The ECJ ruling was directly binding on public authority employers but not on private sector employers. By interpreting the domestic law provisions of the DDA 1995 as it has done, the EAT has ensured that the same rules are now binding on private sector employers.
What should employers do?
This case has many implications for employers, particularly in relation to employees’ requests for flexible working. Employers will have to take into account whether the employee is associated with people covered by any discrimination legislation.
Dismissal for some other substantial reason where dismissal at the request of the third party
In the EAT case, Mr Henderson was a minibus driver working with disabled children in South Tyneside. The minibus service was provided under contract to South Tyneside Metropolitan Borough Council by a charity for which Mr Henderson worked. Mr Henderson initially had a clear CRB check but then allegations were made concerning his nieces. Although the police did not prosecute and Mr Henderson protested his innocence, after reviewing the case the South Tyneside Safeguarding Children Board decided that abuse had taken place and that Mr Henderson could no longer work with children. Under the terms of its contract the Council had the absolute right to veto the employment of any individual to provide the service. Mr Henderson’s employer suspended him while it tried to persuade the Council to reconsider. When this failed, since it had no other roles available for him, it decided that it had no choice but to dismiss him.
An employment tribunal concluded that the dismissal was fair - it was for a “substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held” (namely third party pressure). The tribunal found that the employer had done all it reasonably could to support Mr Henderson but in the end had had no choice but to dismiss him. The tribunal held that dismissal was within the range of reasonable responses available to the employer. Mr Henderson appealed to the EAT. The EAT upheld the original tribunal’s ruling. The customer or client is under no obligation to behave fairly towards the employee. In this case Mr Henderson may have been unfairly treated by being unable to put his case to the South Tyneside Safeguarding Children Board but however unfortunate for him that did not make it unfair for the employer to dismiss him.
What does this mean for employers?
Employers should in such circumstances, before dismissing the employee, ensure that it has taken steps to address the issue with the third party. If this fails and the employment is dependant on the decisions of a third party an employer can fairly dismiss an employee for ‘some other substantial reason’.
Breach of contract claims - limits on compensation
In such cases it can be tempting for the claimant to effectively ‘dress up’ their unfair dismissal claim as a breach of contract (otherwise called wrongful dismissal) claim. As such it could be brought in the ordinary courts where there is no statutory limit on the amount of damages which can be awarded.
Mr Edwards was employed by the Chesterfield Royal Hospital NHS Foundation Trust as a Consultant. Allegations were made that he had undertaken inappropriate examinations of one his patients in the Hospital’s A&E Department. Mr Edwards denied that such an examination had taken place. A disciplinary hearing was held, following which he was dismissed for gross professional and personal misconduct.
Mr Edwards brought an unfair dismissal claim to an employment tribunal but then withdrew it and instead filed a claim for breach of contract in the High Court. He claimed around £4m for loss of earnings on the basis that his career had been ruined.
The alleged breach of contract was that the employer had failed to follow the disciplinary procedure which applied under the terms of his employment. Mr Edwards pointed out that after his dismissal the allegations against him had been considered by the General Medical Council. The GMC had dismissed the allegations and decided that no further action needed to be taken. He argued that if the proper disciplinary procedure to which he was entitled under his contract had been followed the same conclusion would have been reached by his employers - in effect he would have been exonerated.
The High Court dismissed the bulk of Mr Edwards’ claim. It found that as a general rule damages for wrongful dismissal cannot exceed the income that a claimant would have received if he had been given proper notice under his contract.
In this case Mr Edwards was entitled to a three month notice period, so three month’s salary was the maximum he could receive - although he was also awarded an amount to compensate for the salary he would have earned during the period that the contractual disciplinary procedure would have taken if it had been followed.
The thinking underlying this is that at common law an employer is always entitled to dismiss an employee for any reason on giving him contractual notice. It follows, on this basis, that the employee’s loss cannot be more than the amount which would have been
payable to him if contractual notice had been given and therefore damages for breach of an employment contract will generally be limited to that amount.
What should employers do?
Ensure that disciplinary procedures are followed as the High Court found that the employer failed to follow the disciplinary procedures. It compensated Mr Edwards for the loss sustained if the disciplinary procedure had been followed by the employer. However the Court was not prepared in the context of a breach of contract claim to award future loss of earnings on the basis that, had the disciplinary procedure been carried out correctly, the employee would not have been dismissed.
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.David Potter
Cumberland Court,
80 Mount Street,
Nottingham NG1 6HH
Tel: 0115 936 9389
Fax: 0115 859 9617
david.potter@freethcartwright.co.uk
Joanne Kay
Floor 2, West Point,
Cardinal Square,
10 Nottingham Road,
Derby DE1 3QT
Tel: 0845 634 1724
Fax: 0115 859 9617
joanne.kay@freethcartwright.co.uk
Julian Middleton
One Colton Square,
Leicester LE1 1QH
Tel: 0845 634 2598
Fax: 0845 634 2595
julian.middleton@freethcartwright.co.uk
Pat Jones
St James Building,
61-95 Oxford Street,
Manchester M1 6FQ
Tel: 0845 634 2561
Fax: 0845 634 2541
pat.jones@freethcartwright.co.uk
Vanessa DiCuffa
3rd Floor, 75 Colmore Row
Birmingham B3 2AP
Tel: 0845 634 2584
Fax: 0845 634 2576
vanessa.dicuffa@freethcartwright.co.uk
Banking & Finance / Business Services / Corporate Finance / Construction / Employment / Public Sector Real Estate / Services for Individuals / Taxation
Offices in: Birmingham, Derby, Leicester , Manchester and Nottingham