In Braithwaite and others v HCL Insurance BPO Services Limited and another, the EAT has upheld a Tribunal decision that an employer imposing new terms and conditions was not unjustified indirect age discrimination. The employer required its employees to agree to the new terms and conditions or be dismissed. This was a provision, criterion or practice that put employees in the age group of 38 to 64 at a particular disadvantage because their longer service meant they had accrued greater entitlements. However as there was no practical alternative open to the employer, the disadvantage was justified as a proportionate means of achieving the employer’s aim of reducing staff costs to ensure its continued existence and having in place a market competitive, non-discriminatory set of terms and conditions. The Tribunal had properly considered the options available to the employer and concluded that these would not achieve the cost savings required – it had also conducted the balancing effect of the employer’s needs weighed against the discriminatory effect on the employees.
Articles by ‘Gemma Ospedale’
In Land Registry v Houghton and others, the EAT has upheld a Tribunal decision that a bonus scheme, which excluded all employees with a formal warning for sickness absence during the financial year from receiving a bonus, was discrimination arising from disability under section 15 of the Equality Act 2010. This rule clearly amounted to unfavourable treatment as a consequence of a disability, since the exclusion was automatic, even for disability related absences. It was held that could not be justified because, among other things, the managers had no discretion under the scheme.
In Rynda (UK) Limited v Rhijnsburger, the Court of Appeal has held that a commercial property manager who was solely responsible for managing a group of Dutch properties for a client comprised an “organised grouping of employees” for the purposes of TUPE. Although she worked alone, she was effectively a one-person department and she had been specifically allocated the Dutch properties by her employer. Accordingly, when the management of the client’s entire portfolio transferred to a subsidiary of the owner, a service provision change took place and the property manager transferred to the subsidiary. The Court held that the fact that she had previously assumed some responsibility for other properties did not affect this as she had always devoted the majority of her time to the Dutch properties and thus the “principle purpose” test was satisfied. The principle that one employee could constitute “and organised grouping of employees” has been well known since the early days of TUPE 2006.
In Booth v Pasta King UK Limited a Tribunal has held a Claimant should be given as long as possible to bring a claim under section 207B of the Employment Rights Act 1996, once the early conciliation process is underway. There is one provision in the ERA which extends a time limit by the amount of time it takes to complete the early conciliation process, and this can then be extended further if the already extended time limit would expire within one month of the date on which the early conciliation ended. The Judge considered that both subsections should operate cumulatively and not as alternatives.
In Williams v Leeds United Football Club the High Court has held that an employer was right to summarily dismiss an employee when it discovered that, 5 years before, he had forwarded a pornographic email to a junior colleague and two external contacts. The employee was already serving 12 months notice of redundancy but when the employer discovered these emails, the High Court considered it was entitled to treat this conduct as a repudiation of the contract of employment despite the fact it was looking for a reason to justify immediate dismissal.
In Shrestha v Genesis Housing Association Ltd, the Court of Appeal has dismissed an appeal against a Tribunal decision which was upheld in the EAT that an employee was fairly dismissed for gross misconduct. It felt that the Tribunal had properly applied the Burchell test of reasonableness and was entitled to find that the employer had indeed carried out a reasonable investigation in the circumstances. The employer was not required to extensively investigate each and every line of defence put forward by the employee. The Court of Appeal considered this would be too narrow an approach and add what it described as an “unwarranted gloss” to the Burchell test. What was important was the reasonableness of the investigation as a whole.
In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust the EAT has upheld an Employment Tribunal decision that it did not have jurisdiction to hear the claim of indirect sex discrimination brought by a university student whose work placement with a NHS Trust had been withdrawn because she could not comply with the required shift patterns due to having a young child.
The case of Deveci and others v Scandinavian Airlines System Denmark – Norway – Sweden is a decision of the European Free Trade Association Court (EFTA). It concerns the application of the Transfer of Undertakings Directive (from which, of course, TUPE emanates). The employees concerned were covered by various collective national and special agreements. Prior to the transfer, the unions to which the Claimants belonged gave notice of termination in relation to the national agreements. Prior to the date on which these agreements would terminate, the employees transferred to SAS. When the national agreements expired a month after the transfer, the transferee placed the employees onto its own collective agreements which resulted in a pay reduction of up to 11.5%, to take effect two months after the date of transfer.
In Boyraz v Turkey the European Court of Human Rights has ruled that a Turkish national was unlawfully discriminated against on the grounds of sex contrary to Article 14 of the European Convention on Human Rights, read together with Article 8. She was initially appointed as a security officer in a state run electricity company but this was cancelled because apparently she did not fulfil the requirements of “being a man” and “having completed military service”. The ECtHR held, amongst other things, that the concept of “private life” in the convention extends to personal identity; and an inherent part of this is a person’s sex. It held that in this case, dismissal from a job purely because of your sex would have a potentially dramatic adverse effect on someone’s self perception and self respect, and therefore private life.
The case of USDAW and another v WW Realisation 1 Limited (in liquidation) and another (generally known as the Woolworths case) was referred to the Advocate General of the ECJ for an opinion on the meaning of the word “establishment”. The case was together with cases from Northern Ireland and Spain which asked very similar questions.
In Lodge v Dignity & Choice in dying and other, the EAT has held that an Australian citizen who was employed by a British company and who worked remotely in Australia for personal reasons was entitled to pursue claims for unfair dismissal and whistle blowing in the UK Employment Tribunal. The EAT found that the work performed by her in Australia was for the benefit of the employer’s London operation and that, even though she was a “virtual employee” in Australia rather than a physical one in London, this did not preclude her from the protection of unfair dismissal legislation.
In Doran v Department for Work and Pensions, the EAT has upheld a Tribunal decision that an employer was not under a duty to make reasonable adjustments in circumstances where an employee off sick had not given any indication that she would be returning to work. Her medical certificates continued to state that she was unfit for work and the impression she gave was that she would not be able to return any time soon. They also accepted the Tribunal’s finding that the onus was on the employee to suggest a lower grade role with a phased return in the event she became fit to do some work.