Wright, Johnston & Mackenzie Solicitors

Claim that attempted to ?go baldly where no man had gone before? fails

In a recent case heard by the Employment Tribunal in Glasgow, it was ruled that baldness is not an ?impairment? and, therefore, is not grounds for a disability discrimination claim.

Mr Campbell, a retired art teacher from Denny, Stirlingshire, claimed that his lack of hair had an effect on his ability to do his job. He claimed that he had been mocked and teased for his baldness, which had caused him to leave the school late at night to avoid pupils.

Although Mr Campbell?s claim for constructive and unfair dismissal claim has yet to be heard, the claim under the Disability Discrimination Act was dismissed. The Tribunal stated that just because he was mocked for his baldness did not make it a disability. The Tribunal went on to say that baldness, or any other distinctive body feature such as a large nose, large ears or being below average height, could not reasonably be called impairments and thus do not fall within the ambit of the Disability Discrimination Act.

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Machiavellian machinations not held to be breach of TUPE Regulations

The recently decided case of Dynamex Friction v Amicus has established that when looking at dismissals that are either economic or transfer-related the thought process of the person making the decision is to be considered.

In this case, an Administrator had to dismiss the employees due to the lack of available funds. However, the American Director, who was then handling the day to day running of the business, had secretly arranged for an alternative investment vehicle to acquire the business of the company after the employees were dismissed and then to re-employ the majority of the workers without the compensation costs.

It was alleged that the Administrator?s decision had been affected by this plan. However, the Court of Appeal upheld the earlier decision of the Shrewsbury Employment Tribunal that the decision was an independent one made by the Administrator. The Employer was therefore not in breach of the Regulations.

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ACAS produce guidance on how to deal with depression and other mental health issues in the work place

ACAS have recently released a new guide on ?Health, Work and Wellbeing? which can be downloaded from their website. This aims to ?promote and manage a healthy workplace?. As employers will know, mental health issues in the work place can be disruptive, with many employees suffering from depression, stress and anxiety. It is often difficult for employers to deal with this highly sensitive issue. If you require assistance please contact the Employment Team or our HR Manager, Julia MacDonald.

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Depressed worker wins Tribunal

A reminder that employers have a duty to those employees with mental health issues was highlighted by a recent decision from the Stratford Employment Tribunal.

In this case, Sandra Samuel began to suffer from clinical depression after the birth of her children. Due to this condition she changed from full time hours to working 24 hours a week. After a disciplinary incident, she suffered severe depression, and was subsequently dismissed. Her employers reinstated her and admitted that her condition had not been considered. However, she was not offered a job working at 24 hours a week and she resigned. She subsequently claimed constructive dismissal.

The Tribunal decided that her employers had not taken into consideration her condition and did not give her an opportunity to state her case. Of particular note were the scathing comments levelled at the HR Manager, who was ?unsympathetic? and her manner ?bordered on hostility?.

Employers should note how important it is to consider mental health issues in the work place, to follow procedures and to consider employee?s workloads.

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The burden that proof bears

The Court of Appeal has, in a recent decision, assessed the working of the burden of proof in claims of unfair dismissal. Lord Justice Mummery stated that the burden of proof in proving the reason for dismissal lies with the employer ? ?An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was.?

If the employee asserts a different reason than that given by the employer, then they do not have the burden to prove it, they must merely show some evidence supporting their case.

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Where conception does not mean pregnancy

The European Court of Justice in the case of Mayr v Backerie und Konditorei Gerhard Flockner OHG has decided that women who are receiving IVF treatment but have yet to have their fertilised embryo implanted, are not to be considered ?pregnant? and are, therefore, not protected under the EC Pregnant Workers Directive.

Ms Mayr was employed as a waitress and was dismissed with 2 weeks notice on 10 March 2005. She was undergoing IVF treatment but her embryo, which was fertilised on the 8th March, was not implanted until 3 days later. A claim was brought under an Austrian law prohibiting the dismissal of pregnant workers. As this was a uniquely new situation in Austrian case law, the Austrian courts referred the question of whether or not Ms Mayr was pregnant under the Directive to the European Court of Justice (ECJ).

The ECJ, on considering the nature and purpose of the EC Pregnant Workers Directive, decided that pregnancy must start at implantation and not fertilisation. Their reasoning was that, if the period was to be extended to fertilisation, then this would cover the anomalous situation that women who have had their embryos fertilised and then frozen, sometimes for years will, would be considered ?pregnant? for the time the embryos were frozen. This could be indefinitely in cases where the fertilised embryo was never implanted.

After making this decision, the ECJ also considered whether the Equal Treatment Directive applied as well. They decided that, as such a scenario can only happen to a woman, then to dismiss a women in these conditions would be covered by the Equal Treatment Directive.

Although a technical decision, this should again remind employers that understanding pregnancy and maternity conditions are essential so as to not fall foul of an unnecessary claim.

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WJM Employment Team launch new Employment Club

Would you like to join our Employment Club? At it we will present on employment and HR issues followed by a plenary session in which we will discuss topical issues which you have.

It will be held on 11th June, 13th August, 8th October and 10th December in our Glasgow office at 302 St Vincent Street.

If you would like to attend please email Emma McNeil on .(JavaScript must be enabled to view this email address) or fax on 0141 221 9072.

If there are any particular issues you would like us to cover or if you have any specific questions please email or fax details and we will discuss these during the plenary session.

Registration is from 5.15pm and we will start at 5.30pm prompt. We look forward to seeing you.

Martin Stephen, Head of the WJM Employment Team comments. ?With the ever increasing complexity of employment law, and the challenges that employers face in dealing with these complexities, we believe that the Employment Club will be a useful way for employers to be kept abreast of changes in the law and to have their practical questions answered. The key strength of the Employment Club is its format, in that it is informative but will also allow for discussion and the opportunity to ask questions without being worried about keeping an eye on the clock?

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?Hairdryer treatment? breaks down Employment Relationship

A recent Employment Appeal Tribunal decision has reversed a decision of a Tribunal and held that certain behaviour, whether it was meant to destroy the employment relationship or not, did in fact destroy the relationship. The EAT held that the employee was constructively dismissed.

In the case of Parsons v Bristol Street Fourth Investments Ltd T/a Bristol Street Motors, Mr Parsons was subjected to behaviour from his manager, which included name calling him such as ?Old Parsonage?, ?Old Buzzard? and ?Old Git?; and physical behaviour such as ?habitually grabbing colleagues or striking them in the testicles? and public humiliation in front of colleagues which ?[had Mr Lawrence been a] football manager, might be described as the hairdryer treatment?.

The EAT held that the Tribunal had misunderstood or misapplied the law as they had added to the objective test by including the employer?s intention, and by disregarding the claimant?s feelings. The EAT subsequently held that Mr Parsons had been constructively dismissed.

This case highlights how important it is to educate management staff in how they interact with staff. It also highlights that employers must be aware that, in cases of constructive dismissal, the impact of the employer?s behaviour on the employee is significant (not the employer?s intention).

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Sick Pay not payable when on maternity leave

In Department of Work and Pensions v Sutcliffe the EAT has held that an employee was not entitled to sick pay during ordinary maternity leave.

The claimant had started work for the employer in April 2006, and applied to go on maternity leave on 1st August. As of June she was signed off work until January 2007 with a pregnancy related illness. Her employment contract was forwarded to her stating her contractual terms and referring to the maternity leave policy stored on the employer?s intranet. The contract stated that ?you will be allowed sick absence on full pay, less any Social Security National Insurance Benefits such as . . . Maternity Allowance received, for up to 6 months in any period of 12 months?. The maternity policy stated that an employee with less than 26 weeks service would be entitled to 52 weeks maternity leave and would enjoy all contractual benefits, except remuneration.

The claimant received full pay up till the start of August, and from then on only received maternity allowance. She claimed that this was an unlawful deduction. The Employment Tribunal held that the claimant should have received the sick pay, as it is not remuneration, and also that the maternity leave policy was not incorporated into the contract because she could not access the policy on the intranet as she was off sick.

The EAT held that the Tribunal had been incorrect on both of these points. Firstly ?remuneration? does include sick pay, so it cannot be claimed on maternity leave. Secondly, the maternity leave policy was incorporated into the contract as the employer had done all that was necessary by 1) stating that it was incorporated and 2) telling the claimant where it could be accessed. Regarding the contractual term, the EAT held that it did not provide for a right to sick pay, which was excluded in the case of an employee on maternity leave, and thus could not be relied upon.

This case highlights, again, the importance of being aware of what is required of employers in regard of their responsibilities during maternity leave.

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We strive constantly to improve the services we provide. If you would prefer to receive this Briefing by email please let us know on .(JavaScript must be enabled to view this email address)

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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) 0131 221 5560

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

For information on our HR Services, please contact:

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

For information on Praesidium Employment Law Protection, please contact:

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

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