Here is a brief summary of recent cases we think are of particular interest.
Sham contracts – The Court of Appeal has confirmed that when looking at the genuineness of express terms of an employment contract when determining an individual's status, a tribunal should look at the written agreement, the conduct of the parties and their expectations to find out the true status. It is not however necessary to show that there had been a common intention to mislead. The question arose in the context of contracts that purported to appoint individuals as independent contractors, and not employees. The individuals successfully argued that the terms of the contracts were a sham and that they should in fact be treated as employees, with all the statutory protection that status involves. (Autoclenz Ltd v Belcher and ors)
Service provision change – The
Employment Appeal Tribunal (EAT) has looked at the question of what
constitutes a "service provision change" for the purposes
of the revised TUPE Regulations introduced in 2006. The case
concerned the provision of catering services at a BMW plant. The
outgoing contractor's services had included a requirement to
prepare hot food. The incoming contractor did not have to do so.
Although the underlying purpose was still to feed the workers at
the plant the EAT concluded that activities were fundamentally
different such that the change did not constitute a service
provision change for the purposes of the TUPE Regulations. (OCS
Group UK Ltd v Jones and anor)
Maternity leave and notice requirements
– The claimant had failed to comply with the notice
requirements for statutory maternity leave (to inform her employer
of the pregnancy by the end of the 15th week before the expected
week of childbirth and the date she intends to take her leave). The
EAT accepted her argument that the failure was because it had not
been reasonably practicable for her to do so (she was unaware of
her entitlement). The EAT therefore held that she was entitled to
her maternity benefits. This is a reminder that although there are
strict notice requirements, if these are missed because it was not
reasonably practicable to comply, as long as notice is given as
soon as reasonably practicable thereafter (in this case. when the
claimant did become aware of her entitlement), the notice
requirement will be satisfied. (Alphonsus RC Primary School v
Blenkinsop)
Job rejection not disability discrimination
– The EAT has held that a person's inability to meet
the physical requirements for entry into a profession (in this case
the claimant failed an eyesight test to become a police officer) is
not a relevant adverse effect on that person's ability to carry
out day to day activities. Accordingly, that failure will not
automatically mean that they will be disabled for the purposes of
the Disability Discrimination Act 1995. The claimant's eyesight
problem was serious enough to mean she failed the police force test
but did not in itself materially impact her day to day activities
meaning she did not qualify for protection under the Act.
(Chief Constable of Lothian and Borders Police v
Cumming)
Disability discrimination and reasonable
adjustments – The EAT has confirmed that an
employer has a defence to a disabled employee's claim for
failure to make reasonable adjustments if the employer did not know
and could not have been expected to have known about a particular
effect of the employee's disability (even though the employer
may have known that the employee was disabled). This conflicts with
a previous EAT decision (Eastern and Coastal Kent Primary Care
Trust v Grey) in which it held that the defence would only
apply if the employee did not know and could not reasonably be
expected to know both of the disability and that the employee was
likely to be at a significant disadvantage. Although the decision
would appear to put the onus on employees to make sure their
employer knows all about the disability and its impact on them, in
reality a prudent employer will, when it becomes aware of a
disability, make its own enquiries rather than leaving it to the
employee. (Secretary of State for the Department for Work and
Pensions v Alam)
Revision of injury to feelings awards in discrimination
claims – The EAT has increased the bands (known
as the Vento guidelines) in which an award for injury to feelings
in discrimination cases can be made. The adjustments, to reflect
inflation since the Vento decision, mean that the upper limit of
the top band is increased from £25,000 to £30,000, the
middle band from £15,000 to £18,000 and the lower band
from £5,000 to £6,000. The EAT also said that disputes
about where an award should sit within a particular band are likely
to be questions for tribunals to decide as questions of fact. The
EAT is more likely to consider them to be questions of law (which
can be appealed) if they are about placement in the wrong band or
at the extremes of a band. (Da'Bell v National Society for
the Prevention of Cruelty to Children)
Redundancy selection and unfair dismissal
– A tribunal has held that the use of company values as
part of the redundancy selection procedure was unfair. Though it
was not in itself unfair to use company values as part of the
selection process the claimant had had no training on what the
values meant and the values were inherently subjective, with no
method of cross-checking different managers. The decision therefore
underlines the need for redundancy selection criteria to be fair
and, in so far as possible, objective. (Howard v Siemens Energy
Services)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.