Articles by ‘Gemma Ospedale’

In HM Land Registry v McGlue, the EAT found that an employee who was excluded from a voluntary severance scheme on grounds which were found to be discriminatory, and remained in employment, was nonetheless entitled to receive the full compensation for the amount of the severance package which she would have received had she not been discriminated against. It also held that there should be no deduction for the fact that she remained in post. Her evidence was that, had she been selected, she would have taken the payment and found another job with an equal salary so would have remained working, so therefore there was no basis on which to off-set any financial benefit gained by her for remaining in employment with the Respondent.

The horrifying story of Baby P raises its head again in the context of the recent Court of Appeal decision in the appeal brought by the employees who were dismissed as a result of what happened. [read more] The high profile case of Christou v London Borough of Haringay arose out of the circumstances of the Baby P case. The Claimants were social workers who were disciplined following the death of Baby P under the council’s disciplinary procedures and given written warnings. However, following the extensive publicity, the original disciplinary proceedings were revisited, found to be unsafe, and fresh disciplinary proceedings were commenced, as a result of which the Claimants were dismissed.

The case in this section gives some interesting guidance to employers carrying out a redundancy process and operating selection criteria. Purely objective criteria may not, in isolation, always be the most appropriate ones to use. [read more] In Mental Health Care (UK) Limited v Biluan and another, the EAT has held that it is not necessarily fair to carry out a redundancy selection exercise based purely on competency tests at the time, especially if no consideration has been given to past performance.

In a case which will cause some consternation for employers, the EAT has declared that covert recordings made by employees without the knowledge of the employer are admissible in evidence in tribunal claims. In Vaughan v London Borough of Lewisham and others, the EAT has overturned an Employment Judge’s decision to refuse the application of a Claimant to submit in evidence 39 hours of covert recordings which she had made using a dictaphone, of discussions between herself and her managers and colleagues. She claimed that these would show that the Respondent’s notes were inaccurate or wrong.

Currently, the Equality Act provides no remedy for employees for acts of victimisation done by an employer once the employee’s employment has ended. As a result of the case in this section, the law may well be changed. In Rowstock Limited v Jessemey, the EAT has upheld an Employment Tribunal decision that a Claimant who was dismissed in breach of the then statutory retirement procedures and who then issued a claim, was subsequently victimised for bringing the claim when the employer gave him an unfavourable reference. Consequently he brought a victimisation claim. However both the Tribunal and the EAT found that the Equality Act did not provide a remedy for post termination victimisation. The Equality and Human Rights commission intervened in the appeal to the EAT and all the parties accepted that, if this was correct, it would not be compatible with the Equal Treatment Directive. The EAT considered it would exceed its judicial remit if it construed into the relevant section wording which was directly opposite to what was expressly stated. Consequently there was no remedy available for the Claimant for the act of victimisation.

In Taiwo v Olaigbe, the EAT has upheld a Tribunal decision that the Claimant, who is Nigerian and was engaged as a domestic with the Respondent, had been treated appallingly badly, but not on the grounds of direct or indirect race discrimination. This was found to be the case, even though the Tribunal had found that the cause of the treatment was strongly associated with her vulnerability caused by lack of English and dependence on her employers to remain in the UK. Other factors which caused her vulnerability, such as low socio-economic status and the imbalance of power between the employer and the employee, meant that the factual cause of the unfavourable treatment was not inevitably linked to her immigration status.

In Heafield v Time Newspaper Limited the EAT has held that the editor of a newspaper did not harass a Roman Catholic sub editor on the grounds of his religion or belief by referring to “the f***ing Pope” in the context of chasing up an article about the Pope which was due to be published. It was clear that this remark could not reasonably be considered to have had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual concerned within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.

The EAT has declared that it is not indirectly discriminatory on the grounds of religion or belief to require Christians to work on Sundays in rotation.

Haq and others v Audit Commission is a Court of Appeal decision on whether or not a pay protection policy, which resulted in men receiving a higher salary for doing like work than women, was discriminatory.

The Government has announced the recommendations for the increase in the national minimum wage rates which will take effect from 1 October 2013 as follows: –

The Home Office has announced changes to the Code of Practice in relation to skilled migrant workers outside the EEA, which came into effect on the 6th April 2013.

The DWP has issued new guidance for employers and doctors on the use of fit notes, which focuses on emphasising looking at what a person can do rather than what they cannot do,