Wright, Johnston & Mackenzie Solicitors

Advocate General rejects Heyday's challenge

The age lobbying organisation Heyday’s challenge to the UK Government’s position supporting the right of employers to have a compulsory retirement age of 65 has suffered a serious setback.

The Advocate General has concluded that there is nothing in the European Equal Treatment Directive to prevent the Government from introducing a rule which allows employers to dismiss employees aged 65 or over if the reason for dismissal is retirement. However, the rule must be capable of being justified in the context of labour market objectives and employment policy.

Although the Advocate General’s Opinion is not binding on the European Court of Justice, which is expected to return it?s decision in the case later this year, it’s decision is likely to be the same.

However, there is still hope for Heyday. Whilst having a mandatory retirement age is not of itself a breach of European law, any mandatory retirement age still has to be justified. The Government has promised to review the matter again in 2011.

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European Court of Justice decides that discrimination by association is unlawful

The EC Equal Treatment Framework was introduced with the intention of eliminating inequalities in employment based on factors such as religion, age, disability and sexual orientation. Member states were obliged to introduce national laws to enforce this and the UK parliament passed the Disability Discrimination Act (DDA) in 1995.

In Coleman v Attridge Law and another Attridge Law employed C, who was not disabled but was the sole carer for her disabled son. After four years service, C accepted voluntary redundancy and later raised unfair constructive dismissal proceedings under the DDA before an employment tribunal. C made various allegations of harassment and less favourable treatment including that her employer accused her of manipulating her working conditions and called her “lazy” when she sought to take time off to care for her son. C argued that she had suffered discrimination by association with her son’s disability.

The Employment Tribunal (ET) held that the DDA, on a literal reading, did not cover such discrimination but felt that the Directive had intended to. It decided to postpone the case and ask the ECJ for guidance.

The ECJ held that associative discrimination did fall within the Directive’s protection. The principle of equal treatment enshrined in the Directive applies to the particular grounds of discrimination, not to particular types of person.

It is not limited to people who themselves have a disability. The objective of combating discrimination on the abovementioned grounds would be undermined if a claimant in C’s position could not claim direct discrimination.

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Employers have implied right to impose garden leave

In SG&R Valuation Service Co v Boudrais, two departing employees breached their contracts of employment by attempting to take confidential information and fellow employees to a rival company. The employees’ contracts were silent on the issue of gardening leave and the High Court was asked to decide whether an implied right to impose this was open to the employer.

The Court established, firstly, that the employees did have a right to work. It was observed that this right is not absolute and that employers can reasonably withhold work where the employee is not ready or willing to work.

The Court held that the actions of the employees in seeking to damage their employer’s business amounted to a breach of their contractual obligations. Their wrongdoing demonstrated that they were not ready or willing to work, and so it was not unreasonable for their employer to deny them work by imposing garden leave for the rest of their notice periods.

Although this case establishes no new legal principles, it clarifies the relationship between the employee’s right to work and the employer’s right to withhold it. It also highlights the need to have a ‘garden leaveI clause in all contracts of employment.

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Disputes rise as partners fall out over contracts

According to the Law Society of England and Wales, commercial disputes are rising as businesses verify the terms of their contracts with customers and suppliers in light of the current economic slowdown.

Paul Marsh, President of the Law Society of England and Wales, said: “Our members are telling us that companies are exercising caution with their contracts as they tighten their belts. In a healthy economic climate, businesses tend to be less strict, but when finances begin to suffer they are less relaxed. Disputes tend to arise over what is a fair or unfair contract term. In the current climate many contracts will be under the microscope.”

The President explained: “Going through the courts is sometimes unavoidable in commercial disputes but there are other options. Many solicitors, as well as being skilled litigators, are also trained in alternative dispute resolution methods, such as mediation. Not every dispute needs to go to court, but the need for a legal professional to iron out and explain the contractual liabilities is vital.”

The number of companies becoming insolvent is up 15 per cent in the second quarter of 2008 compared with the same period in 2007.

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Agreement on Holiday Dates overrides Statutory Rules

In Industry & Commerce Maintenance v Briffa, the employer gave Mr Briffa one week’s notice of termination of his employment. It required him to take 4 days holiday in his last week to use up his outstanding entitlement.

An Employment Tribunal held that the employer was in breach of Working Time Regulations (WTR) 1998 Reg 15, which requires that an employer must give notice of holiday dates “double the amount of time to be taken”. Since Mr Briffa was not given 8 days notice of his holiday, the employer could not require him to take holidays. As a consequence, he was awarded 4 days pay in lieu of the 4 days holiday.

The Employment Appeal Tribunal (EAT) allowed the employer’s appeal.

The original Tribunal had totally overlooked that the basic requirement in WTR Reg 15 can be varied or excluded by a “relevant agreement”. In this case, there was a contractual term covering the position and this was legally enforceable between the parties. This amounted to a “relevant agreement” under Reg 2 and it overrode Reg 15.

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Poor grasp of English is not a disability

A Polish cleaner attempted to sue her employers for alleged discrimination based on her poor grasp of English. The cleaner claimed her employers exploited her inability to understand her job contract by paying her less than the minimum wage for cleaning rooms at an English hotel chain.

The employee had agreed to be paid £1.24 for each hotel room she cleaned, but found it was impossible to clean the three rooms an hour necessary to earn the £5.52 national minimum wage. She claimed that not speaking and not understanding the language is a disability similar to being deaf, mute and illiterate.

However, perhaps not unsurprisingly, the Judge dismissed the claim at a hearing in Bedford. He stated that the claimant’s language difficulties are not capable of being classed as an impairment within the meaning of the Disability Discrimination Act.

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Libel damages for university lecturer accused of faking expenses

A university lecturer has been paid £10,000 in an out of court settlement of his libel claim, after his employer wrongly accused him of falsifying his expenses claims. Initially, the lecturer’s legitimate £180 travel expenses claim was rejected. When he enquired as to why it was rejected, he received an abusive email from the university’s finance director who dismissed his query and accused him of fraudulently falsifying the document.

The lecturer instructed his lawyers to write to the finance director asking for an apology but the allegations were simply repeated. The lecturer then filed a claim for damages against the director and the university in February and went to the High Court in an effort to clear his name and seek damages because of the unrepentant and unapologetic stance taken by director.

In March of this year, an application by the university to have the matter thrown out on the grounds that it was “frivolous” was refused by the judge. The lecturer accepted an out of court settlement of £10,000.

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MP states law against "Islamophobia in the workplace" needed

One of the UK’s most prominent Muslim MP’s has called for a law against religious discrimination to be introduced to improve the lives of British Muslims.

Government Whip, Sadiq Khan, said that the forthcoming Single Equality Act, which could force public bodies to actively promote equality on grounds of gender, race and disability, must also tackle religion and end “Islamophobia in the workplace”.

In a pamphlet published by the Fabian Society, Mr Khan suggested that Muslims are being denied good jobs and left feeling like “second-class citizens”. He said this was fuelling alienation and the rise of extremism but could be combated by a combination of improved rights and enhanced responsibilities.

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Strict new jobs list for migrant workers looming

A strict new list of shortage jobs, which targets migration and the needs of British businesses, while reinforcing the selective approach of the new points based system, was presented to the Home Office in September by the Migration Advisory Committee (MAC), an independent panel of economists.

The recommended shortage occupation list would reduce the number of jobs open to migrants from one million to 700,000 and defines more tightly which positions cannot easily be filled by resident workers. The MAC, charged with overhauling the current shortage occupation list, will pressure test their recommendations before publishing the final list in October.

Border and Immigration Minister Liam Byrne said: “Our new Australian-style points system is flexible to meet the needs of British business while ensuring that only those we want and no more can come here to work. This tough new shortage occupation list ensures that. Those that do come will need to work hard, play by the rules and speak English.”

If you would like a copy of our Factsheet on employing migrant workers please email Chris Thomson through .(JavaScript must be enabled to view this email address)

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'Bin Laden' joke prompts record award

Halima Aziz was suspended from work by her employer, the Crown Prosecution Service, after allegedly commenting that she believed she was being treated “like a friend of Osama Bin Laden”.

An Employment Tribunal found the CPS guilty of race discrimination and, after a series of appeals all the way to the Court of Appeal, the matter finally returned to the Tribunal for compensation to be awarded.

The Tribunal awarded a record ?600,000 compensation as well as ordering that Ms Aziz be given an apology and be re-instated. It concluded that the CPS’s actions were “astonishing” and that the inquiry carried out by Chief Executive, Peter Lewis, was “a whitewash”. The CPS has said that it accepts the Tribunal’s recommendations.

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New legislation for October

Changes to the law being introduced in October include:

  The National Minimum Wage will increase to £5.73 for adults aged 22 and over

  Women on Additional Maternity Leave (whose babies are due on or after 5/10/08) will be entitled to the same terms and conditions as those on Ordinary Maternity Leave

  Employers will no longer be required to exhibit their Employer’s Liability Insurance Certificate at the workplace, provided an accessible electronic copy is made available

  Agency workers on contracts of less than 3 months will no longer be excluded from Statutory Sick Pay

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WJM Employment Club

Our next meeting will be taking place on the 10th December in our Glasgow office. We meet at the earlier time of 4.00 pm to start promptly at 4.15pm. As we plan this next session, we would really appreciate your thoughts. If you have any issues that you would like addressed on the night please let us know. Email topics or questions to .(JavaScript must be enabled to view this email address).

If you would like to attend the December meeting, please contact Emma McNeil by email to .(JavaScript must be enabled to view this email address) or by telephone on 0141 223 7280.

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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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Employment Firm of the Year 2008

The Law Awards of Scotland

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