Agreement on Holiday Dates overrides Statutory Rules

 

In Industry & Commerce Maintenance v Briffa, Mr Briffa was given one week’s notice of termination.  The letter stated that Mr Briffa was not, under the terms of his contract required to work his notice and that he should take any unused holiday in his last week for which he would be paid.

 

 

Mr Briffa’s acceptance of the terms and conditions of his employment was evidenced by his signature on the contract dated 5 June 2005.  Mr Briffa was also made aware of a variation to a contractual term requiring individuals when they are not required to work, upon receiving a notice, to regard themselves as being on holiday during the notice period. This variation was posted to all employees on 4 July 2005.

 

 

Once Mr Briffa’s employment terminated on 17 August 2007, he submitted a claim at the Employment Tribunal for outstanding holiday pay.  The Respondent resisted the claim, relying on the contractual variation. The employment tribunal accepted that whilst the variation was a term of the contract, it fell foul of Regulation 15 of the Working Time Regulations 1998 (WTR) and concluded that Mr Briffa was entitled to four days outstanding pay. The Respondents appealed.

 

 

The EAT upheld the appeal.  The EAT found that the tribunal had failed to recognise that Regulation 15 could be varied or dis-applied by a relevant agreement.  The EAT found that since the variation was in writing it was held to be legally enforceable and therefore was a relevant agreement within the meaning of Regulation 2.  Consequently, the Respondent was not obligated to give notice in the manner prescribed under Regulation 15.

 

 

In conclusion, the EAT confirmed that the policy behind the WTR is to “ensure that workers take sufficient holiday with pay”. In this case it was decided that “the purpose behind the Regulations, implementing the Working Time Directive had been fulfilled in this case”. 
 

Government consults on flexible working

From April 2009, parents with parental responsibility will be able to request flexible working arrangements for children who are under the age of 16, following a consultation published by the Government on Tuesday 26 August 2008.

Pat McFadden, the Employment Relations Minister advised that the consultation was seeking ways to reduce the administrative burdens on businesses where possible when processing requests for flexible working.  The consultation considers amending the current obligation on the employer to provide the employee with written acceptance of his or her request for flexible working. The employee will now only receive such notification in writing from the employer if he specifically requests it. An employer will not however, be discharged from his or her duty with respect to notifying an employee where their request for flexible working has been denied.

The consultation recognises the need for there to be greater awareness amongst employees and employers as to their right to make flexible working requests. It proposes to provide businesses with more information and guidance about dealing with flexible working requests.

The government has endorsed the BusinessLink.gov.uk website as a means of providing cost effective guidance and information to employees and employers.  The information can be found under the heading ‘Employing People’ which even provides online forms that employers can use to deal with flexible working requests.

Access the consultation document at http://www.berr.gov.uk/files/file47434.pdf

Acts of discrimination occurring abroad cannot contribute to a ‘continuing act’

In the case of Tradition Securities and Futures SA v X and Anor EAT, the claimant X was unsuccessful in trying to get the tribunal to treat discrimination she had faced whilst being employed in Paris as a ‘continuing act’. The tribunal refused to consider the treatment she suffered as a ‘continuing act’ on the grounds that it only had jurisdiction to deal with the alleged discrimination that took place in England. 

X, a French national was employed, by TSF for a period of 5 years.  She spent three years working in the Paris office before transferring to the London office, where she worked for a further two years.   In November 2006, X left her job and brought a claim against TSF for sex discrimination. X alleged that over the course of the five years she was employed, she had suffered acts of sex discrimination and harassment. At a pre-hearing review the tribunal decided that an employment tribunal could hear the allegations of discrimination relating to X’s employment in Paris, on the basis that the discrimination was a continuing act. TSF appealed.

At the appeal, the Employment Appeal Tribunal (EAT) considered the tribunal’s earlier decision and found that it had erred in its decision to hear the sex discrimination claim in connection with the period of employment in Paris.   The EAT disregarded the tribunal’s ‘continuing act’ argument on the grounds that it was inappropriate to refer to S.76 of the Sex Discrimination Act 1975 because it only deals with time limits and not the issue of jurisdiction.

The EAT likened the position to an employee trying to establish retrospective jurisdiction for discriminatory acts committed before the Religion or Belief Discrimination Regulations came into force in 2003. X’s response to this was to argue that the sex discrimination was illegal under EU law in France at the time of the alleged discrimination. However, the EAT felt that ‘it would be very curious if the English employment tribunal… retrospectively acquired jurisdiction to consider her complaints of harassment and discrimination’ in another jurisdiction.

TSF’s appeal was allowed. However, it was also decided that any material evidence relating to the alleged sex discrimination in Paris would be admissible if it could help in going to the issue of the period of employment in London.

Disability Discrimination – ECJ Decision

The ECJ has, this morning, published its landmark decision in Coleman v Attridge Law. Following the Advocate General’s opinion given on 31 January 2008, the ECJ has confirmed that the Equal Treatment Framework Directive is intended to prohibit associative discrimination in the context of direct discrimination and harassment. According to the ECJ’s decision, the Directive is intended to prohibit direct discrimination or harassment on grounds of disability, even where the person concerned is not disabled themselves.

Ms Coleman, who is the primary carer of her disabled son, alleges she was directly discriminated against and harassed by her former employers on grounds of the disability of her son.

The Directive applies to age, sexual orientation, religion and belief, as well as disability. Following the ECJ’s decision, direct discrimination by association in those other contexts must also be prohibited. (However, the Employment Equality (Age) Regulations 2006 do not yet appear to afford protection from direct discrimination by association in the context of age.)

Age Discrimination – Staying Compulsory Retirement Cases

The Court of Appeal has confirmed in the case of Johns v Solent that cases which raise the same issue as the Heyday case in the ECJ should be stayed (not struck out).

This means that where Claimant brings a claim of age discrimination in respect of a retirement dismissal at age 65, the case should be stayed notwithstanding that regulation 30 of the Age Regulations appears to make such a claim impossible.

In the Heyday appeal, Age Concern is challenging the legitimacy of regulation 30 ( where the dismissal of a person is not unlawful at or over the age of 65 where the reason for the dismissal is retirement), arguing that it is incompatible with the Equal Treatment Framework Directive. If it is indeed found to be incompatible, then the government will need to objectively justify a mandatory retirement age of 65.

A Grievance is a Grievance even when it says it’s not

In Procek v Oakford Farms Ltd, the Claimant presented a grievance which expressly stated that it was informal, and that a failure to address it would result in a formal grievance, under the 2004 Regulations, being lodged. A further grievance was never lodged.

The EAT held that the letter was nevertheless a valid grievance under the Employment Act 2002. It was stated that the only question to be asked is whether it satisfies the requirements laid down for a Step 1 grievance letter. This merely requires that the grievance is set out in writing and sent to the employer, and that had been done.

As the employer was not aware that it was a grievance, a statutory uplift in compensation was not applied as it was pointed out that the tribunal had a discretion under s31(4) of the 2002 Act to conclude that it would not be “just and equitable” to apply any uplift.

First criminal convictions for deliberate non-payment of the national minimum wage

The owners of a butcher’s shop in Yorkshire have become the first employers in the country to be convicted of deliberately not paying staff the national minimum wage. The owners were ordered to pay a combined amount of over £10,000 in compensation to two former employees, plus costs.

The Employers had set out to conceal their underpayments. Adequate records had not been kept and then pay records had been falsified in an attempt to convince HM Revenue and Customs compliance officers that they had been paying the correct amounts. As a result of their actions they were found guilty of various offences under S.31 of the National Minimum Wage Act 1998.

The Government, in the Employment Bill, is toughening up powers to punish those who don’t pay the minimum wage, including introducing potentially unlimited fines. Inspectors will also have greater investigative powers.

No victimisation where proceedings brought to ‘harass’ employer

In HM Prison Service v Ibimidun the EAT has held that a claimant who was dismissed for bringing proceedings under the Race Relations Act 1976 was not subjected to victimisation because his dismissal resulted from the manner in which he brought proceedings, rather than the fact of those proceedings. In the circumstances, the claimant’s dismissal for bringing proceedings simply to harass his employer, rather than to receive just compensation, was not an act deserving of protection under the victimisation provisions.

House of Lords wades into disability discrimination law

The House of Lords decided in the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm, which overturned the Court of Appeal’s decision that a disabled tenant had been discriminated against by his landlord contrary to Part III of the Disability Discrimination Act 1995. Although not an ‘employment law’ case, their Lordships’ opinions seem destined to have a significant impact on disability discrimination law in the employment arena. It is of particular note that the majority of the House concluded that the well-established ‘comparator’ test for DDA purposes, laid down by the Court of Appeal back in 1999 in Clark v Novacold, is incorrect. Put simply, the approach advocated by the Lords would make it more difficult for employees to succeed with certain DDA complaints.

A Proposed Review of no-win, no-fee funding

The Ministry of Justice has yesterday, announced a review of no-win, no-fee funding in employment cases.

Stating that “we are aware of growing concerns that they may not always be operating in the interests of access to justice”. It is expected that the review is expected to be completed by the autumn.

Click here for the full press release http://www.wired-gov.net/wg/wg-news-1.nsf/lfi/162562