Wright, Johnston & Mackenzie Solicitors

Retirement Age

Our September Employment Briefing addressed the issue of the Government phasing out the Default Retirement Age (DRA). 

The DRA will cease completely from 1st October 2011 and no new notices of intended retirement can be issued after April 2011. From 1st October 2011 employers who wish to retire employees at a given age, will have to provide an objective justification for doing so. It will no longer be simply a matter of following a formal process.

Under the new rules, the current procedural requirements will be abolished.

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Retirement – request to continue working

You may already be aware that under the current procedures, employees can ask to postpone their intended retirement date.

Some academics have suggested that this is simply a ‘box ticking’ exercise, and it has long been regarded as a matter of form rather than substance but the employment case of Ayodele v Compass Group plc casts doubt on that suggestion.

In Ayodele, the Employment Tribunal found that the employer had not kept an open mind when hearing an employee’s request not to retire.  The Tribunal held that a sham process would not comply with nor be in the spirit of the legislation.  The employer must meet the employee and consider their request with an open mind. 

The employee in this case was awarded £16,000 in compensation.

Critics claim this decision is wrong because the obligations referred to by the Tribunal are not clearly expressed in the working of the Regulations.

An appeal has been lodged at the Employment Appeal Tribunal (EAT) and this case will be a key one for employers who are keen to press through retirements before the DRA is scrapped next year.

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Minimum wage and ‘on call’ time

The EAT recently gave its decision in the case of South Manchester Abbeyfield Society v Hopkins & Others regarding payment for time spent on call.

The Abbeyfield Society employed Ms Hopkins and Mrs Woodworth as housekeepers in sheltered accommodation.

The housekeepers worked 37.5 hours per week (08.30 to 14.00 and 16.00 to 18.00 Monday to Thursday) but were required to be on call in a flat provided for them from 21.00 to 08.00 each working day.  They claimed that the hours they were on call were hours during which they were “at work”, and so they were entitled to be paid for those on call hours at least at the rate of the national minimum wage.

Reversing the decision of the Employment Tribunal, the EAT held that not all of the hours spent on call could be taken into account for the purposes of a claim in contract under the National Minimum Wage Act. 

Under the National Minimum Wage Regulations 15(1A) and 16(1A), the Employees could only claim for such hours that they were awake for the purpose of working.

A claim might have existed (were it not now out of time) in respect of statutory compensation for breach of rest-break or maximum working week Regulations.

The case was remitted back to the Employment Tribunal to consider how long the Employees spent awake for the purpose of working, to decide whether a payment was due under the National Minimum Wage legislation. 

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Employment Appeal Tribunal rejects pregnancy-based associative sex discrimination claim

In the case of Kulikaoskas v Macduff Shellfish and another, it was held that an employee allegedly dismissed because of his partner’s pregnancy, could not bring an associative pregnancy discrimination claim.

Kulikaoskas and his partner were employed by Macduff Shellfish for approximately one month in 2009 before they were both dismissed.  Kulikaoskas claimed that he was dismissed after he told his supervisor that he helped his partner lift heavy weights at work because she was pregnant.  Macduff Shellfish asserted that this was not the case, and that Kulikaoskas was dismissed for poor performance. 

Kulikaoskas raised his claim under the s.3A of the Sex Discrimination Act 1975 (now repealed by the Equality Act) and submitted that it should be interpreted as covering associative pregnancy discrimination.  The Tribunal refused to accept Kulikaoskas’s claim, and the EAT upheld the decision of the ET.

Although this case came prior to the implementation of the Equality Act 2010, the EAT commented that it was not ‘entirely clear’ whether the Equality Act could be read as rendering associative pregnancy discrimination as unlawful.

Section 18 of the Equality Act replicates s.3A of the Sex Discrimination Act and requires that unfavourable treatment must relate to the claimant’s own pregnancy, meaning that associative discrimination is not covered.  However, under s.13 an employee could claim sex discrimination because of his or her association with a pregnant woman.

It remains to be seen how the courts and tribunals will interpret the relevant provisions. Kulikaoskas has been granted leave to appeal to the Court of Session, which will hopefully provide fresh guidance.

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Woodcock v Cumbria Primary Care NHS Trust

This case challenges the orthodox view that an employer is not entitled to rely on cost alone when attempting to justify discrimination.

Mr Woodcock was dismissed with notice.  The dismissal took effect before his 50th birthday, which would have triggered early retirement benefits. He claimed age discrimination, but the claim failed.  The Tribunal decided that, even though he had been treated less favourably on the grounds of his age, the decision to dismiss him early was justified as a proportionate means of achieving a legitimate aim.  This was upheld by the EAT.

Whilst the EAT emphasised that it was not departing from previous authorities in this area, it cast doubt on the previous approach to justification as a proportionate means of achieving a legitimate aim.

The previous case of Cross v British Airways suggested that “an employer seeking to justify a discriminatory provision, criterion or practice cannot rely solely on considerations of cost. He can however put cost into the balance, together with other justifications if there are any.”

That decision is often summarised by saying that “cost alone” can never justify a measure or a state of affairs that has a discriminatory impact but that “cost plus some other factor” may be enough.

However, the EAT in Woodcock noted that the “cost plus” approach tended to lead Tribunals and parties into artificial game-playing of find the other factor.  They found it hard to see the principled basis for a rule that such considerations can never by themselves constitute sufficient justification or why they need the admixture of some other element in order to be legitimised.

It is now at least possible to argue justification on the grounds of cost alone.

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Redundancy and Discrimination - the Burden of Proof

The case of Hammonds LLP v Mwitta is authority for the proposition that an otherwise fair dismissal is not rendered unfair because it takes place within the protected period for consultation in breach of s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Ms Mwitta joined Hammonds as a newly qualified solicitor on 11 September 2006. She is of mixed race, her father is Tanzanian and her mother Russian. She joined Hammonds’ Corporate Strategy and Finance Department (‘CSF’) in Leeds where there were various categories of junior solicitors, ranging from Senior Associates (just below Partner level) through Associates to Lawyers. Ms Mwitta was engaged as a Lawyer.

Ms Mwitta complained that two Partners did not allocate work to her because of her race. Ms Mwitta was among four solicitors in the Lawyer pool for selection for redundancy at the Leeds office. 

The Employment Tribunal had referred to the 1976 Race Relations Act in reaching its decision on race discrimination.  Under the 1976 Act, the ET was satisfied that Ms Mwitta had established a case for a race discrimination claim, therefore the burden of proof then passed to Hammonds to establish a non-discriminatory reason for the treatment complained of.

The EAT held that the ET must find facts from which they could conclude that there had been discrimination on grounds of race, not there could have been. The EAT emphasised that the absence of an explanation for differential treatment may not be relied upon to establish the prima facie case.

In this case, the ET had not found facts from which they could conclude properly that the claimant had been discriminated against on the grounds of her race. The claim was therefore remitted to be re-heard before a different Tribunal.

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Serial litigants at risk of paying costs

The EAT has dismissed four appeals by the alleged serial litigant John Berry.  Mr Berry is in his 50s, and apparently scours the internet for job adverts calling for a ‘recent school leaver’ or suchlike, then brings an age discrimination claim against the business or organisation advertising the job. In the vast majority of cases, it is thought that the business or organisation settles for a few thousand pounds to avoid litigation.

The EAT has dismissed four appeals by Mr Berry whilst making it clear that they are not in a position to assess Mr Berry’s motivation in bringing the claims.  The EAT also indicated that those who seek to exploit discrimination legislation for financial gain are liable to find themselves facing a liability for costs.

This is a useful decision for business facing claims from claimants who appear to be serial litigants.

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