Employment Law Newsletter April 2013

Dear Employer
As winter finally departs, and spring appears, we are pleased to welcome some new subscribers to this newsletter following our successful seminar earlier this month. This highlighted some new issues that arise from the explosion of the use of social media, and also the problem of ownership of data belonging to the employer which is stored digitally. Those of you who have not had your employment contract/policies reviewed for some time may like to consider this. As always, we are here to help.
Meanwhile, if you have any particular employment issues, please do not hesitate to contact us: details are at the end of this letter. If you have any comments or suggestions on this newsletter, please email newsletter@breezeandwyles.co.uk
Kind regards
The Employment Law Team
Some Recent Cases in Employment Law
This case is relevant to all those who offer voluntary severance schemes when redundancies are considered. HM Land Registry needed to reduce staff numbers and offered an early release scheme. It decided to exclude from consideration anyone on a career break who was not due to return until after March 2010. Ms McGlue had been on a career break since March 2008. The break was approved for up to five years but she would be entitled to return to work at any time upon giving reasonable notice. When she applied for the early release scheme, she was told that she was excluded because of her career break but she was not told that, if she gave notice to return before April 2010, she would be eligible. She raised a grievance which was rejected. She then brought a claim of indirect discrimination (amongst other things). Her grievance had included the fact that she thought their selection policy excluding those on a career break might constitute discrimination against her on the grounds of sex because she thought it more likely that women would be on such a break rather than men and it would, therefore, disproportionately affect women.
The Tribunal concluded that she had been indirectly discriminated against because a provision, criterion or practice (PCP) had been applied to her as part of a group which was excluded from consideration because they were on a career break and had not indicated a return to work before 1st April 2010, and that that criterion disadvantaged her in particular. Also, the Tribunal held that she was entitled to receive damages for the full payment she would have received if she had been accepted for the scheme: the Tribunal accepted her evidence that she would have taken the payment and found equally well paid work elsewhere, so there was no basis (as the Land Registry argued) on which to offset any financial benefit she might have had by remaining in employment.
The Land Registry appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the Tribunal’s award as far as her compensation payment was concerned (£72,000), plus £12,000 for injury to feelings (recoverable for discrimination). The only item the EAT did not uphold was an additional £5000 for aggravated damages. [HMRC v McGlue]
In case employers missed it in the press, the employee who was suspended without pay for four months by British Airways for breaching its uniform policy – she had visibly worn a small cross while working on the check-in desk – has won her case for discrimination in the European Court of Human Rights, arguing that the UK had failed to protect her rights under Articles 9 and/or 14 of the European Convention for Human Rights. Article 9 (in summary) provides that everyone has the right to freedom of thought, conscience and religion, including freedom to manifest religion or belief; Article 14 guarantees that the rights under the Convention will be protected in a non-discriminatory manner. Ms Eweida had lost her claim in the Tribunal, the EAT and the Court of Appeal. The European Court took the view that BA’s corporate image was not a sufficient reason to have interfered with her right to manifest her Christian beliefs by wearing a discreet cross.
Other discrimination claims were dealt with at the European Court of Human Rights which had also reached the press at the early stages. One of these was the Registrar who was dismissed by London Borough of Islington for refusing to carry out same sex unions. Ms Ladele had succeeded at the Employment Tribunal but lost at the EAT and Court of Appeal. She also lost at the European Court. Although it was felt that her rights under Articles 9 and 14 had been interfered with, the interference was justified because the right for it was the desire of the employer to protect the rights of others – in this case, the rights of homosexual clients.
What’s in the pipeline
On 6th April, the rules relating to the minimum consultation period where an employer proposes 100 or more redundancies at one establishment within 90 days were intended to change. The minimum consultation is intended to fall from 90 days to 45 days. However, the draft is still to be approved by Parliament.
Also, the collective redundancy consultation rules will be amended to exclude the expiry of fixed-term contracts from the calculation of the number of redundancies taking place in the relevant period.
Increase in Statutory Sick Pay (SSP) : this increased on 6th April from £85.85 to £86.70
Statutory maternity pay, ordinary and additional statutory paternity pay and statutory adoption pay : on 7th April, these increased from £135.45 to £136.78
Increase in damages for pain and suffering (including injury to feelings) : on 1st April the level of general damages on grounds such as “pain and suffering”, which includes injury to feelings awards in discrimination claims, increased by 10%. There are different levels of compensation for injury to feelings, which are now as follows:
• Up to £6000
• £6000 – £18,000
• £18,000 – £30,000
The amount recoverable depends on the severity of the discrimination.
From 1st October 2013, the following new rates will apply:
• The adult rate will increase from £6.19 by 12p to £6.31 an hour
• The rate for 18-20 year olds will increase from £4.98 by 5p to £5.03 an hour
• The rate for 16-17 year olds will increase from £3.68 by 4p to £3.72 an hour
• The apprentice rate will increase from £2.65 by 3p to £2.68 an hour
• The accommodation offset will increase from £4.82 to £4.91
The Employer Traps and Other Tips
As seen in the case of HM Land Registry v McGlue, the criteria for voluntary redundancy schemes need to be considered carefully to avoid discrimination on any of the protected characteristics. Just to remind you, these are age, disability, gender, marriage & civil partnership, pregnancy & maternity, race, religion and belief, sex and sexual orientation. Sometimes policies can be indirectly discriminatory because they apply a PCP (see above).
Do you know who has ownership of your database if your employee leaves? Has your employee got some of your contacts on his or her social networking site, e.g. LinkedIn? What happens to these when your employee leaves? These are issues that all too often employers fail to consider when their employment contracts are being drafted. Do not under-estimate the value of your database and confidential information generally and take advice as to suitable policies before it is too late.


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