You’re Hired

sales manager Lee McQueen, won the fourth series of the BBC’s Apprentice despite having been caught lying on his CV in an earlier episode. The success of Mr McQueen may encourage other job seekers to embellish their CV’s in the hope of getting their dream job. Employers should ensure that details on CV’s are followed up and checked.

Unreasonable delay in Disciplinary Procedure is an Automatically Unfair Dismissal

The EAT has held that a dismissal is automatically unfair when the employer delays unreasonably in following the statutory dismissal procedure.

In Yorkshire Housing v Swanson the EAT stated that the delay provisions, despite being in a different Part of Schedule 1 to the Employment Act 2002 to the standard dismissal procedure, were mandatory rules that had to be followed. If the rules were breached, then it would lead to a finding of automatic unfair dismissal.

The EAT acknowledged the difficulty construing unreasonable delay as falling within “non-completion”, since very often the procedures would be completed – although late. In this case the employer had delayed for five months between holding the disciplinary meeting and writing the letter dismissing the Claimant. The EAT held that for policy reasons that there should be a finding of automatic unfair dismissal.

 

Proposed New Right to Time Off for Training

 
The Department for Innovation, Universities and Skills has issued a consultation paper on the proposed new right to request time off for training.

It is proposed that the new right would be similar to the current right to request flexible working.
Employees that have worked for longer than six months would gain a legal right to ask their employer to give them time away from their duties to undertake relevant training, which their employers would be required to seriously consider.  

 

Equal pay grievances have to be “essentially the same” as the ET Claim form

The Court of Session has, today, largely upheld that EAT’s decision in Cannop & Others –v- The Highland Council.

The Court confirmed that there does require to be a necessary relationship between the grievance and the claim form. However, the exact wording of the EAT’s order created some ambiguity as to its scope. The Court of Session therefore amended the wording of the EAT’s order and substituted the test to be applied in comparing the grievance with the claim form with “essentially the same” as opposed to “not materially different.”

UK workers can continue to opt out of the 48 hr working week.

The EU Employment Council has today announced an agreement to allow the UK to continue permitting employees to opt-out of the 48-hour maximum average working week.

For the full press release, see here.

New EAT Practice Direction handed down

 

The EAT has handed down a new Practice Direction, ‘Employment Appeal Tribunal – Procedure (2008)’, covering various aspects of procedure in the EAT, including the lodging of appeals. The new Practice Direction came into force on 22 May 2008 and replaces all previous Practice Directions. It has been updated to acknowledge, among other things, the Court of Appeal’s recent guidance on time limits in Jurkowska v Hlmad Ltd (Brief 852).

The Practice Direction, which is currently only available as a PDF file, can be downloaded from the EAT website here.

Consideration of what is a Detriment

The EAT in Bayode v Chief Constable of Derbyshire, has again considered the meaning of ‘detriment’. The police officer appealed to the EAT on whether the mere act of a written record being made, where there was no inappropriate action, could be a detriment in the context of race discrimination; the material complaint was one of victimisation by colleagues. Other police officers had made notes of an incident in their Note Books, before passing the comments onto more senior colleagues; the Appellant had not known of these written comments until disclosure in the employment tribunal proceedings.

The Appellant argued that the tribunal had failed to consider the detriment arising from the recording of the comments. It was submitted that the effect of the entries on the Appellant should have been considered, and this effect constituted a detriment. The EAT rejected this submission; the wide definition of detriment was considered, but the EAT still concluded that the tribunal had made no error in concluding that the making and content of the notebook entries did not amount to a detriment.

Equal Pay Comparators

In a recent decision, previous case law relating the Equal Pay has been overturned. In Walton Centre for Neurology v. Bewley, the EAT has held that a woman’s successor in a job cannot be used as a comparator for the purposes of an equal pay claim.

The EAT accepted the Appellant’s submission that the 1970 Act does not permit a comparison with a woman’s successor because the statute envisages a specific person contemporaneously employed with whom a comparison can be made. However, this was not determinative of the appeal because it was necessary to consider whether the Act should be read in accordance with EU law.

Having examined the case-law at some length, the EAT decided that comparison with a successor is not permitted under EU law either. The logic behind comparison with a successor was the same as that behind allowing a hypothetical comparator; in essence, it is an exercise in speculation as to what would have happened if they had been employed contemporaneously. This is not consistent with the structure of the Equal Pay legislation, which requires comparison with an actual comparator and not a hypothetical comparator.

A failed objection to a TUPE Transfer

In the case of Capital Health Services-v-Mclean, the EAT noted that employees are plainly entitled to object to being transferred to the employment of another employer.

However, whether the employee has “objected” is a question of fact to be decided objectively in all the circumstances. TUPE 1981 Reg 5 (now TUPE 2006 Reg 4) states that such objection will prevent a transfer occurring and end the contract of employment, and it makes no provision allowing employees to work out their notice. In this case, the Claimant objected to being transferred. She resigned on 31 March 2006, stating that due to her professional commitments she would work a “period of secondment” with the new employer, until she actually left on 12 May. However, there was no role that the Claimant could have returned to with her original employer at the end of any “secondment”. Her original employer paid the Claimant for what it saw as her working out her notice period.

It was held that on the facts the Claimant did not object to transfer – she simply insisted that she would only transfer for a limited period of time. Therefore there was a TUPE transfer of her contract of employment to the new employer for 6 weeks.

Agency workers to have equal rights with permanent staff

The Government, after long-standing resistance, has agreed to give agency workers the right to terms and conditions of employment comparable to those enjoyed by their permanent counterparts.

Agency workers are to have equal treatment with comparable permanent workers after 12 weeks of employment. The agreement defines equal treatment as ‘at least the basic working and employment conditions that would apply to the workers concerned if they had been recruited directly by that undertaking to occupy the same job’. However, employers will not have to make the same pension provision for their agency workers as they do for permanent staff. The new arrangements will be reviewed after a suitable period to establish how they are working in practice.

The Government has stated that it will now work with members of the European Union to reach agreement on the exact terms of the Directive. Areas to be discussed include mechanisms for resolving disputes, and anti-avoidance measures to deal with workers on repeated short-term contracts. It is intended that the Directive will be finalised in time to introduce legislation within the next parliamentary session.