Wright, Johnston & Mackenzie Solicitors

Representation at the Employment Tribunal

It has long been the case that anyone can represent a claimant at the Employment Tribunal. However, now anyone who represents claimants or who advertises for employment-related business must be registered with and pay a fee to a new regulator (with the exception of practising solicitors and barristers).

At the end of April, over 1,000 applications for registration had been received.

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Seconds, Anyone?

A group of school dinner ladies who claimed equal pay in 1998 received a letter from their employer which warned that their claims could have a severe impact on staff and deprive children of school dinners.

The House of Lords has recently ruled that this amounted to victimisation. The dinner ladies could now receive compensation up to the sum of ?10,000 each.

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Should I Stay or Should I Go?

In the recent case of Sandu v Jan de Rijk Transport Limited, the Court of Appeal considered whether an employee had resigned or was dismissed.

Mr Sandu was told that he was going to be dismissed during a meeting with his employers. During that same meeting, he entered into a severance (compromise) agreement.

Prior to this action, case law suggested that if there was negotiation, discussion and genuine choice on the part of the employee, it was likely to be a resignation.

In this case however, the Court held that the employee had been dismissed. He had not been informed of the purpose of the meeting, he had not been given an opportunity to obtain advice and the terms of the agreement were not favourable to him. Mr Sandu had merely attempted to ?salvage what he could from the inevitable fact that he was going to be dismissed?.

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Discrimination ? What?s New?

Age discrimination ? the first claim under the new Regulations
A 67-year-old woman who worked for the NHS and who was sacked the day before the age discrimination laws came into force has won her job back. When Mrs Southcott was dismissed she received 11 weeks pay, equal to her notice period. However, if she had been dismissed the following day, she would have been entitled to 11 months pay. Mrs Southcott raised a claim with the backing of Unison and has won her right to be reinstated.

Gender Equality Duty
From 6th April, public authorities have a positive duty to ensure gender equality for their employees under the Equality Act 2006.

Disability Discrimination
A recent decision of the Court of Appeal (O?Hanlon v HM Revenue & Customs) has confirmed that an employer is not obliged to pay salary to disabled employees pursuant to its duty to make reasonable adjustments. To do so would have been a disincentive to returning to work.

In the case of Project Management Institute v Latif, the Employment Appeal Tribunal has held that the qualifications institute failed to make reasonable adjustments to enable a blind candidate to sit a computer-based exam. This is notwithstanding the fact that PMI had allowed Ms Latif extra time to sit the exam and had provided a reader at their own expense. However, they had not carried out a proper assessment of Ms Latif’s needs and had refused her request to use specialist software.

This is the first reported EAT decision considering failure to make reasonable adjustments and the burden of proof. The Claimant must show that they have been disadvantaged by a provision, criterion or practice, and that a reasonable adjustment has been suggested. Only then will the burden pass to a Respondent.

Previously it was reported that, in the case of Tarbuck v Sainsburys Supermarkets Limited, the EAT ruled that an employer?s failure to make an assessment of a disabled employee does not amount to a failure to make a reasonable adjustment under the Disability Discrimination Act 1995.

The Claimant in the more recent case of Spence v Intype Libra Limited argued that the Tarbuck case had been wrongly decided and this has been supported by the Disability Rights Commission. It is thought that the unsuccessful Claimant in the Spence case will appeal to the Court of Appeal on this point so we will keep you updated.

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Paternity Leave and Pay

The DTI has issued a further consultation paper on statutory paternity leave and pay.

The new scheme will allow a mother to pass some of their statutory maternity leave (and pay) to the father, if the mother wants to return to work during either ordinary or additional maternity leave.

This change will help to keep the law up to date with current trends in today?s society. In many families, the mother earns more than the father and so it will be beneficial to allow the mother to return to work without losing maternity leave and pay.

Consultation on the implementation of the scheme ends on 3rd August 2007.

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The ACAS Report on Sexual Orientation, Religion and Belief Discrimination Legislation.

ACAS has released it?s findings on the impact of the Sexual Orientation Regulations and the Religion or Belief Regulations 2003. The main findings are as follows:

  Workplace discrimination allegations regarding sexual orientation were dominated by claims of bullying and harassment including name-calling, threats and physical assaults.

  Many claims involving religion or belief discrimination also involved bullying and harassment. In addition, many claims involved difficulty over working hours, time off or leave to follow religious practices, promotion or retirement and workplace dress codes.

  Many religion or belief discrimination claims involve an overlap with race discrimination legislation ? around 66%.

  Approximately two-thirds of claims of sexual orientation discrimination and religion or belief discrimination between January 2004 and September 2006 were brought by men.

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Maternity Leave - Return to Work

The law states that an employee who has been on maternity leave has the right to return to work to do the same job which she did before her absence.

The scope of this right was explored by the Employment Appeal Tribunal in Blundell v Governing Body of St Andrew’s Catholic Primary School. It was held that the purpose of the legislation was to avoid burdening mothers with young children by ensuring that they return to a work situation as near as possible to that which they left.

The EAT clarified that, in considering whether a later job was the same job as before maternity leave, it is necessary to consider three factors; nature, capacity and place.

The Claimant was employed as a primary school teacher, and she returned to work as a primary school teacher. Therefore the statutory requirement was satisfied.

In this case, the Claimant was employed as a school teacher and she returned to work as a school teacher. However, as the custom at the school where the claimant worked was to require teachers to change classes every two years, the Claimant did not teach the same class on her return to work. The EAT held that the claimant could not insist on coming back to teach the same class.

In addition, the EAT held that the head teacher’s failure to consult the claimant about which class she would prefer to teach was discrimination under the Sex Discrimination Act 1975 and amounted to a detriment. This was because other teachers who were not on maternity leave were asked, notwithstanding the fact that there was no guarantee that preferences would be granted.

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Statutory Grievance Procedure

Yet more guidance on what constitutes a step-one grievance!

The EAT has held that a note produced by an employee’s manager during a meeting which contained “various details of complaints… which could, at least in places, reasonably be expected to raise with any employer reading them, concerns about allegations of sex and race discrimination” can constitute a written statement of grievance under step one of the standard grievance procedure.

The EAT clarified that the matter will always depend on the particular facts of the case. Although employers should know where they stand, the threshold to be crossed by employees should not be set high.

Remember, however, Statutory Grievance and Disciplinary Rules are about to change. We will keep you informed.

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Further Information

For further information on these or any other employment issues please contact:

Martin Stephen .(JavaScript must be enabled to view this email address), 0141 248 3434

Andrew Wilson .(JavaScript must be enabled to view this email address) or 0131 221 5560

Liam Entwistle .(JavaScript must be enabled to view this email address). 0141 248 3434

Geraldine Leonard (Praesidium) .(JavaScript must be enabled to view this email address) 0141 248 3434 or 07876 330 156

Julia MacDonald (Human Resources) .(JavaScript must be enabled to view this email address) 0141 248 3434

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