Defining the Employment relationship

Who is an ‘employee’? - There can be no binding precedent for any category of workers. - Use existing case-law to draw analogies between similar categories of worker. - Different criteria will apply depending on the context e.g. vicarious liability, health and safety, social security, income tax.

Statutory definition Employment Rights Act 1996, section 230 - (1) ‘Employee’ = individual who has entered into or works under a contract of employment. - (2) ‘Contract of employment’ = a contract of service/apprenticeship, whether express or implied, and whether oral or in writing. - ‘Worker’ defined in (3)

‘Contract gateway’? ERA + common law à employee status turns on establishing a contract of service, as opposed to a contract for services (which indicates the person is performing work as an independent contractor).

Common law ‘3 step’ approach used by Mckenna J in Ready Mixed Concrete: 1. Is there a ‘wage-work’ bargain? 2. Has the employee agreed that he will be subject to the employer’s control to a sufficient degree?

-Control = necessary but not determinative. -Nowadays, with modern working conditions – it cannot be sole indicator. -But still very important: - Humberstone v Northern Timber Mills: “does ultimate authority over the man in the performance of his work reside in the employer so that he was subject to the latter’s order and directions”.

-Lack of control does not negate employee status (e.g. skilled workers – may have very little supervision yet still be employees) -Extensive control does not guarantee employee status (Queensland Stations, approved in Ready Mixed Concrete).

3. Are the other provisions of the contract consistent with it being a contract of service?

But, there is no decisive test for employee status Courts have considered following factors:

- Whose business it is o Montreal v Montreal Locomotive – Fourfold test involving control, ownership of tools, chance of profit and risk of loss.

- Integration o Stevenson, Jordan and Harrison Ltd v Macdonald and Evans – Denning: “In a contract of service a man is employed as part of the business + his work is an integral part of the business but under a contract for services his work, although for the business, is not integrated into it but only accessory to it”.

- Economic reality o US v Silk – who bears the financial risk? o An employee who has nothing to invest in an enterprise beyond the time he puts in + who sells his services to only one “customer”, the employer, is economically dependent upon that work. An independent contractor is not normally dependent upon only one customer, but rather, being in business for herself.

o Stringfellow Restaurants v Quashie – lap dancer subject to ‘club agreement’ + ‘house rules’, weekly rota, had to book for holidays. § Provided own costumes + could work elsewhere on non-scheduled days § No ‘wage’ – just fees from customers out of which she had to pay tips to the floor manager § Services dispensed with after 80 weeks + she claimed UD § EAT: She was self-employed: took risk of earning nothing + she dealt with tax + holiday pay.

No strict rules on which factors to be considered or their relative weight, but case law can assist…

Ready Mixed Concrete v Minister of Pensions: - Is Mr Latimer, a truck driver delivering RMC concrete, an employee for the purposes of social security contributions? - Court considered: o ‘Whenever and Wherever’ clause – depending on availability o Could not use truck for any other purpose o Uniform o Company had strict control over maintenance of the vehicle - BUT: o Ownership of assets o Result-based remuneration – paid on mileage basis, per amount of concrete delivered o System for appointing substitute driver – administered by owner drivers only o Freedom to choose where to buy fuel - Held: Independent contractor. Contract = contract of carriage, not contract of employment.

Market Investigations Ltd v Minister of Social Security - Is Mrs Irving, an interviewer for a market research company, an employee for the purposes of social security contributions? - Company only had a handful of permanent interviewers but most interviewers (Mrs I) were only engaged for particular assignments. - Is she in business on her own account? i.e. owns equipment, hires own helpers, bears financial risk? - Pro- Employee status: o Extent + degree of control o Imperative language of ‘Interviewer’s Guide’ + detailed engagement instructions for the particular survey - Against: o Company could not dictate when Mrs I should work o Could work for other employers if she wanted o No entitlement to sick pay or holidays - Held: Mrs I was an employee for the duration of her assignment. - Gives rise to concept of a series of contracts of service. - Obiter: ability to deploy skill + personality is frequently present in contracts of service.

Broader approach: Lane v Shire Roofing Company (Oxford) Ltd - Mr L fell from ladder while repairing a roof. Did company owe him a duty of care in respect of his health and safety? - Court considered control + whose business was involved. - Public policy consideration – safety at work. - Held: Mr L = employee.

Montgomery v Johnson Underwood - M = part-time receptionist, employed through employment agency. - Sought UD from agency + firm she worked for. - CoA: ‘control’ + ‘mutuality of obligation’ = ‘irreducible minimum’ for a contract of employment. - Held: No employee status - agency had lack of control over her. She had not ‘transmuted’ over time into an employee.

Troutbeck SA v White & Todd (On control…) - Mummery LJ: should address cumulative effect of the provisions + circumstances of the relationship rather than treating absence of day-to-day control as determinative factor.

EVOLVING CONTRACT WITH CLIENT OVER TIME? Motorola v Davidson - Skilled telephone repairer, recruited by agency to the client’s own specifications. - Worked wholly for client for 2yrs, entirely under its control + no contract with agency. - Client disciplined worker when concerned + effected termination through agency. - Complained for UD. - Held: There was an employment contract with the CLIENT.

Also implied in Franks v Reuters

‘Umbrella’ contracts and the requirement of mutuality of obligation è “Casual” workers typically work on a series of short engagements/contracts, but lack a clear on-going relationship. è ‘Mutuality of obligation’ = obligation of the employer to offer work to the employee; and the obligation of the employee to do work for the employer. è Mutuality can ‘link up’ a series of shorter contracts of service, into a single overarching contract of employment.

O’Kelly v Trusthouse Forte plc - ‘Regular casual’ waiters hired by hotel for short catering jobs. - Hotel kept a list of preferential casuals, who would be removed from list if ever refuse work. - Waiters claimed UD + that they had been employed under an overall, continuous contract. - In favour of employee status: holiday pay, ‘integration’ into the organisation (uniform, a specific ‘casuals’ handbook and were included in the company consultation process) + were under extensive control + supervision. - Against status: no sick pay, no fringe benefits and no company pension scheme. - ET + CoA: They were in business on their own account – ‘It was purely a commercial transaction for the supply + purchase of services for specific events’ o Did not matter that the casuals only worked for hotel –this was ‘their choice’. - Held: They were independent contractors.

St Ives Plymouth v Haggerty - Book-binder kept on a bank of casual workers by a publisher + used regularly over considerable period of time. - Held: entitled to claim UD as overall umbrella contract had evolved due to conduct of parties, lengthy period of employment + ‘importance’ of work.

Nethermere (St Neots) Ltd v Taverna & Gardiner - Outworkers making garments at home on piecework basis. - They claimed unfair dismissal. - Approach: ‘useful’ (but not ‘fundamental’) test: mutuality? - Held: Homeworkers were employees. - They had a regular, longstanding arrangement, even though not covered by a formal contract.

Clark v Oxfordshire Health Authority - Clark had been a ‘Bank nurse’ + claimed UD, on the basis that she had been employed under a ‘global’ contract across various engagements. - ET found: o Though she never refused work, there was no obligation for her to accept work nor any obligation on the Authority to offer her work; o She was not entitled to any pay when she did not work, nor holiday or sick pay. - Held: No ‘global’ contract as lack of mutuality. Thus, C = not an employee across the whole period of claim.

Express and Echo Publications Ltd v Tanton - Driver made redundant + sought a written statement of particulars of employment. - Clause of his contract gave him the right to provide a substitute driver. - Held: T = not an employee. Substitution clauses = ‘inherently inconsistent’ with employment status. o Personal service = an ‘irreducible minimum’ for a contract of employment.

Rubenstein, M, ‘Highlights’ - This decision carries with it real danger of abuse. - Opens possibility for employers to draft contracts which will negate employment status for certain workers by including a substitution clause in their contracts.

Carmichael v National Power plc - Could power station tour guides employed on an ‘as required’ basis, require a written statement of their terms of employment under s1 EPA (now ERA= only employees can require this). - Held: lack of mutuality (the ‘irreducible minimum’) as there was no contractual relationship with the company.

Wilson v Circular Distributors - Mr W worked as a ‘relief area manager’ + claimed UD from CD. - Contract set out with many ‘employment-like’ features but which also stated ‘due to fluctuating workload of a RAM, there are no regular or guaranteed hours of work per work’. - Held: Mutuality present. ‘If there is work available it must be offered + when work is offered, we are quite satisfied that the terms of the contract require Mr W to undertake that work unless there is some very good reason’. Employee status. - For absence of mutuality, there has to be absence of obligations on both sides.

Knight v BCCP - C worked for a taxi company for 6 weeks before being dismissed. - Following termination he claimed statutory notice pay under s86 ERA 1996. - C did not receive any holiday pay, sick pay or overtime. He worked under the taxi firm’s control to a degree + only received wages for the occasions he worked. - No mutuality of obligation – C was under no obligation to accept work + taxi firm under no obligation to offer work to C. - Held: C was not an employee + so not entitled to be paid notice pay.

Where casuals cannot establish mutuality, could argue that there is a series of (short) contracts of employment?

‘The Contract for Intermittent Employment’ Anne Davies 2007 - Freedland: the law ought to recognise a contract for intermittent employment which would continue to exist during periods of no work, with a minimal set of mutual obligations between the parties. - Would increase the chances of regular casuals obtaining access to employment rights, whilst occasional casuals still be excluded. - An acceptable compromise between recognising vulnerability of casual workers + imposing excessive costs on firms. BUT, - How might a court interpret the parties’ obligations in the sub-employment phase? o How can this be distinguished from post-employment? - Should those with such a contract would count as employees when working, but workers when not working?

Employer strategies to avoid employee status àSelf-description – a declaration about employee status

Stevedoring & Haulage Services Ltd v Fuller - Respondents worked as casual dockers + sought a written statement of their terms of employment. - Documents provide that casual work was to be done ‘on an ad hoc and temporary basis’, with ‘no obligation on the company to provide…work nor for you to accept any work’. - Held: The express terms negative any mutuality of obligations – this was fatal to the contention that the casuals could be employees.

àSubstitution clauses – problem: ability to appoint a replacement negates personal service, which is deemed essential. - Express and Echo Publications Ltd v Tanton - Macfarlane v Glasgow City Council: Gym teacher claiming UD because she refused to accept a contract with her employer designating her as self-employed. o Held: no need for her to provide services personally at all times. A limited power of delegation could be consistent with an employment relationship. o Distinguished from Tanton: § C was restricted to nominating substitutes from GCC’s approved list § Employer occasionally organised the substitute § Substitutes were paid directly by employer.

Potter v Staffordshire Sentinel Newspapers Ltd - Mr P worked as a newspaper Home Delivery Agent + claimed UD. - Clause in his contract: conferred a right to substitute. - Held: P was not an employee as clause was inconsistent with a contract of employment: personal service was one of the ‘irreducible minima’ of a contract of service. - Distinguished MacFarlane: that was a ‘factual/practical’ arrangement for providing a substitute: it was not a written term of the contract.

BUT: Autoclenz v Belcher - Supreme Court held: the real situation trumped what was written in the contract. - The fact that the ‘employer’ had written a substitution clause into the contracts did not reflect the reality as everyone expected the valeters to carry out their duties personally.

Was it a sham? Redrow Homes (Yorkshire) v Buckborough - If so, the court will ignore the ‘label’ placed on the relationship by the contract and instead look at the reality or the situation.

SPECIAL CATEGORIES OF WORKER

1) Agency workers Tripartite relationship: with the worker, the agency, and the client (end-user). - The client usually has extensive control, but lacks any contractual relationship with the worker – there will usually be no contract of employment with such end-user. o James v London Borough of Greenwich –EAT refused to apply Motorola. o Agency worker supplied to the council, worked consistently for it for 3yrs, when dismissed tried to claim UD. No – not an employee of the council.

- The agency will have the contractual nexus, but often limited control + no obligation to offer continuing work. - The agency can be regarded as the employer in respect of a particular assignment which the worker is given (even if there was no overarching contract of employment). - McMeechan v Secretary of State for Employment: CoA: having looked at all the terms of the single engagement, there was a contract of service. o For temporary or casual workers there are often 2 engagements to consider: o The general engagement – under which sporadic tasks are performed, and o The specific engagement, which begins + ends with the performance of any one task. o Each engagement is capable, in its context, to give rise to a contract of employment.

*Agency Workers Regulations 2010 came into force in Oct 2011. = Agency workers will have same rights to pay, benefits, rest periods and holidays as ordinary permanent workers, as long as the agency worker had been engaged for 12 consecutive weeks.

The UK is the biggest user of agency workers in the EU!

2) Home Workers - Nethermere (St Neots) - Airfix Footwear Ltd v Cope - C (outworker) dismissed by company, wanted to claim UD. - No specific agreement on where to work. - Had worked for 7yrs, 5 days a week + paid weekly wages. - Took occasional breaks when demand was low. - Company told her how to do the work, etc. - No entitlement to holiday/sick pay + no provisions as to notice of termination of employment. - Tribunal: she worked under a continuing contract of service because of the continuing relationship that had built up over the years. - Irrelevant in this case whether individual daily contracts were separate employments or not.

However, it is often difficult to establish the necessary ongoing mutuality of obligation to change a series of short-term contracts into a single “umbrella” contract.

3) Casual (zero-hours) Workers - O’Kelly v Trusthouse - Carmichael - Wilson v Circular Distributors

CONTINUITY OF EMPLOYMENT Employee status will not always be enough to secure statutory protection.

Hours of Work? R v SS for Employment, ex p EOC - No requirement to work a minimum number of hours per week to be able to bring proceedings under UD + redundancy legislation.

Duration? - Unfair Dismissal – ERA, s108: 2yrs continuous employment for most cases (from April 2012), subject to certain exceptions where no qualifying period required (s108(3)). - Redundancy – ERA, s155: 2yr qualifying period

Breaks in Employment? Dealt with in ERA, s212 - Makes easier to link up a series of individual contracts – helpful for ‘casuals’ - Flack v Kodak Ltd: EAT: when determining whether gap in employment is due to a temporary cessation of work, tribunal must look at the whole period of employment, rather than adopt a strict mathematical approach. - Hussain v Acorn Independent College: EAT: a teacher’s continuity of employment had not been broken by the summer holidays, even though the first contract had only been temporary.

- Curr v Marks & Spencer: 17yrs service, then resigned, but with intention of re-employment. - 4yr break before re-employed, then made redundant. - C wanted the 17yrs employment to be considered in calculating redundancy pay - HL: Not allowed. There was no arrangement of this when he went on his career break. - S212(3) not satisfied. Big emphasis on resigning + reemployment.

…So you’re not an employee: are you a ‘Worker’? - Statutory definition: ERA 1996, s230(3)

Three ‘PILLARS’ of being a worker: 1. Personal service – Mirror Group Newspapers 2. A contract including mutuality of obligation 3. Lack of a business undertaking by the individual performing the work

Byrne Brothers (Formwork) Ltd v Baird Ø Building workers claimed holiday pay under the Working Time Regs 1998. Ø They signed an agreement which included that they were not entitled to holiday/sick pay, that the contractor would incur no liability for failing to offer assignments to the subcontractor + that the sub-contractor could refuse assignments/ employ additional labour at his own cost. Ø Held: Building workers were workers + could claim for holiday pay under WTRs on the ground that they were obliged to ‘perform personally…work or services’ but did not do so in the capacity of a ‘business undertaking’. Ø Completely dependent on the 1 firm.

COMPARE: Redrow Homes (Yorkshire) v Wright Ø Bricklayers sought compensation in respect to their entitlement to leave under WTRs. Ø Held: There was a contract for services with each individual subcontractor. The intention of the parties was that they individually performed the work in question.

James v Redcats (Brands) Ltd Ø C worked as a courier + sought to claim breach of national minimum wage (NMWA 1998). Ø She used her own car to deliver + only worked for respondent firm. Employer set deadlines for deliveries + gave detailed instructions on how work was to be carried out. Ø Held: Worker status.

Redrow Homes (Yorkshire) v Buckborough Ø Bricklayers asserted a right to compensation for holiday pay, as ‘workers’ under WTRs. Ø Terms of engagement stated the bricklayers were self-employed + could use substitutes. Ø ET found that substitution provision was a sham: it provided for unrealistic possibilities + could not reasonably be expected to happen. Ø For there to be a sham, both parties must intend that the documents do not create the legal rights + obligations they appear to create. Ø Tribunal found enough factual evidence to show that the substitution clause was never intended to have effect. They intended that the work was always to be carried out personally. Ø Held: Bricklayers were workers + entitled to relief.

Zero Hours Contracts? Saha v Viewpoint Field Services - Telephone interviewer for market research company. - Given shifts + had to say which ones she might be able to do. - Sporadic work pattern – between 7-43hrs a week. - Company conducted employment audit + decided interviewers were not employees, so needed to take them all back as self-employed, terminating current arrangement. - C claimed UD but failed – no employee status à company under no obligation to give work + she had declined work.

The following employment protections extend to ‘workers’: - Working Time Regulations 1998 (including paid holiday) - National Minimum Wage Act 1998 - Part-time Workers Regulations 2000

EXAMPLES OF SCOPE OF DEFINITION - Percy v Board of National Mission of the Church of Scotland o Female minister obliged to stand down because of affair with a married church elder. o Could not claim UD as not an employee of the church. o But, could bring a claim for sex discrimination using wider definition.

- Pimlico Plumbers o Contractor wore uniform, drove marked vans, directed to customers by the company. o In agreement, were described as self-employed – having to look after own tax + NI, providing own equipment + had to be insured. o But, no obligation on either side to give/perform work, although flexibility in who did what work. o C claimed UD on termination + disability discrimination + outstanding statutory holiday pay. o EAT: No an ‘employee’ under ERA but could claim other things under wider definition as he was a ‘worker’.

THE FUTURE Should the focus be on dependency + subordination in the relationship rather than the contract? - Potential extension of ‘employee’ protections to ‘workers’? - Community meaning of ‘worker’? - Workers in particular sections already have special provisions and exclusions, e.g. mobile workers – Road Transport (Working Time) Regulations 2005.

Recent initiatives on casual work: - Policy debate on protection of casual workers - Recently, government has introduced measures to regulate ‘zero hours contracts’

Department for Business, Innovation and Skills (2013): Zero Hours Contracts: Consultation - Zero-hours contracts are beneficial when used responsibly. - But, they have been used to abuse + exploit individuals in the workplace. - Concerns around the use of 0hrs contracts: o 1) Exclusivity – whilst excl. clauses may be justified in some cases, they have been used to prevent individuals from working for another employer even if the current employer is offering no work. o 2) Transparency – individuals aren’t always clear on the conditions + consequences of these contracts + or on their access to personal finance markets + their eligibility for benefits payments when their hours of work frequently changed. - Govt. considering (for problem 1): o Banning the use of exclusivity clauses in contracts that offer no guarantee of work. o Issuing guidance on the fair use of exclusivity clauses in employment contracts. o An employer-led Code of Practice on the use of exclusivity clauses, with an option of Government sponsorship of the Code. o Rely on existing redress available through common law which allows individuals to challenge exclusivity clauses. - For problem 2: o Improving the content and accessibility of information, advice and guidance on § (a) employment contracts and rights, and § (b) entitlement of zero hours workers to benefits. o Encouraging an employer-led Code of Practice on the fair use of zero hours contracts. o Government providing model clauses for zero hours contracts.

‘Government Crackdown on Zero Hours Contract Abusers’ - Business secretary Vince Cable: plans to ban exclusivity clauses. - Ban set to benefit an estimate of 125,000 zero hours contract workers. - Will allow workers to look for additional work to boost their income.

Department for BIS (2014) Zero Hours Contracts – Banning Exclusivity Clauses: Tackling Avoidance The Small Business, Enterprise and Employment Bill will: • ban exclusivity terms in zero hours contracts • allow for regulations to be created to deal with employers who avoid the ban • provide routes of compensation for employees who have been offered a contract with an exclusivity clause

Small Business, Enterprise and Employment Act 2015: S153: Exclusivity terms unenforceable in zero hours contracts.

A rethink of statutory scope? ERA, s23: The extension power - A power to extend the coverage of employment law was included – govt. envisaged the power being used to ensure all workers (other than the genuinely self-employed) enjoy the minimum standards of protection + none are excluded simply because of technicalities?

TERMS OF THE EMPLOYMENT CONTRACT

Formation of the Employment Contract + the Sources of Terms v S230(2) ERA à a contract of employment = contract of service/apprenticeship, whether express or implied, and (if express) whether oral or in writing. v S1 ERA à (1) employer must give employee a written statement of particulars of employment. v (2) Statement shall not be given later than 2 months after start of employment.

(s1) Contents of the statement = basic terms: - Names of the parties - Date of start of employment; and of continuous employment - Rate of remuneration & intervals at which remuneration is paid, working hours & holidays - Place of work/job title - Length of notice

(s3) Employer is required to include a note specifying disciplinary rules (or point employee to a document of rules that is ‘reasonably accessible’). - Should specify a person the employee can apply to if dissatisfied with a disciplinary decision, + a person in which a grievance relating to employment can be made.

System Floors (UK) Ltd v Daniel: The written statement is not the contract of employment, but is the only evidence of the contract. So, employee can’t argue that provisions in the statement do not reflect the overall agreement between the parties – it is not the contract.

v S203 – restrictions on contracting out: (1) A provision in an agreement…is void if it purports: o (a) to exclude/limit the operation of any provision of this Act, or o (b) to preclude a person from bringing any proceedings under this Act before an industrial tribunal

v (s198) Exclusion for short-term employment (less than a month) – ss1-7 do not apply.

Remedies for breach of s1 ERA: è Reference to ET to get particulars, under ss11 and 12 ERA; and è If the employee has been successful in another statutory action against the employer (UD, redundancy), the ET may award between 2-4 weeks’ pay under s38 EA 2002, subject to a max. week’s pay of £400 as of 1 Feb 2011 (s227 ERA 1996).

SOURCES OF TERMS 1) Express terms - Courts have been creative in interpreting apparently harsh express terms

Clark v Nomura International plc: A prima facie unfettered discretion is qualified by a duty to act rationally + in good faith. Held: The employer had acted irrationally in exercising its discretion by deciding to award a nil bonus (according to the express provision) + so found a breach of the express term.

BUT, Locke v Candy & Candy: CA upheld a decision that where a bonus clause stipulated that an employee had to be “employed by the company in order to receive the bonus”, he was not entitled to any bonus when summarily dismissed under the terms of a payment in lieu of notice clause 10 days before it became due.

Johnstone v Bloomsbury Health Authority: Express term relating to working hours was qualified by D’s duty of care, implied by law, in respect of the safety of the employee.

The Unfair Contract Terms Act 1977 does not apply to employment contracts – employees are NOT dealing as ‘consumers’ or on the employer’s ‘standard terms of business’ (i.e. s3). - Commerzbank AG v Keen

2) Terms incorporated from collective agreements

S1(4)(j) ERA à The (s1 written) statement shall also contain particulars…of any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made. - Possible incorporation into individual contract based on ‘custom and practice’ of negotiating agreements with trade unions.

Henry v London General Transport Services Ltd: BoP on employer to show employees accepted new terms. Issue = whether employees had accepted the terms, by working under them for 2 years.

Some terms are not ‘apt’ for incorporation into individual employment contracts as by nature only give rise to the union + not its members. - Kaur v MG Rover Group Ltd:

3) Terms Incorporated from Employer Handbooks & the effect of Employer Policies Will the provisions in employer handbooks become terms of the employment contract? - Yes: grievance procedures + pay-related provisions usually will be effectively incorporated. o Robertson v British Gas Corporation: regarded a bonus incentive scheme. - No: if just ‘instructions’ under the managerial prerogative. o SoS Employment v ASLEF: employees placing literal interpretation on employer’s instructions with the purpose of injuring the employer’s business so as to secure a wage increase.

4) “Subjective” common law implied terms Traditional common law grounds for implying terms: - If ‘necessary’ to give business efficacy to the contract: The Moorcock - The ‘officious bystander’ test: Shirlaw v Southern Foundrier - Based on presumed intent with respect to the particular contract (depends on case facts).

5) “Objective” common law terms

6) Variation of Employment Contract - The employer has no right to unilaterally vary the terms of the contract unless such right is expressly reserved: Robinson v Page. - But, not all variations require consent – an employer is entitled to make rules for the conduct of employees at the work place. - No inference of a repudiatory breach because one employee is unable to comply with a general policy introduced for a legitimate purpose. o Dryden v Greater Glasgow Health Board: EAT: introduction of a new non-smoking policy amounted to a ‘works rule’ which had no contractual effect, so could not be used as a foundation for a constructive dismissal claim.

IMPLIED TERMS àStatutory terms: o Minimum notice of termination o Minimum wage o Maximum working hours o Parental leave

àCustom and practice: (Can arise from the particular workplace, or the sector generally) o Custom need not be universal + there is no need to show the individual employee was subjectively aware of it: o Sagar v Ridehalgh & Son Ltd: A reduction in pay for poor workmanship was not treated as an unlawful deduction from wages. Mills in the locality had the custom of deducting for work that had been performed without reasonable care and skill in the management’s eyes (had been so for about 30yrs, despite nothing being said in the oral agreement + no provisions in the collective agreement).

o A regular + consistent practice by the employer, brought to the attention of the employees + followed for a substantial period of time, can result in a binding contractual obligation: o Albion Automotive Ltd v Walker: W was made redundant by A. A’s parent company had conducted 6 previous redundancy exercises prior to making W redundant. Previous redundancies included enhanced benefits. o Held: W was contractually entitled to the enhanced redundancy terms – on the basis that it had become an established practice at A. (A held to be in breach of contract).

Implied Common Law Terms in the Contract of Employment a) The Wage/Work bargain -An action for wages is a debt action for a liquidated sum. -An employee may also seek damages – i.e. where the employer fails to give appropriate notice. -Employers can make deductions for poor quality of work: Sagar v Ridehalgh. -Employees must be ready + willing to work in order to claim their wages.

-When employees only perform part of their duties? Miles v Wakefield Borough Council: Employers are allowed to deduct a sum from wages representing the time not worked. Employee not entitled to any pay for that part. - Registrar refused to perform marriages on Saturday, docked 3/37ths pay

-Where the ‘part’ cannot be identified, harsh results can follow: Wiluszynski v LB of Tower Hamlets: Employer entitled to give no pay for the entire period. - Employees refused to perform some duties, employer said do all or no pay; court approved no pay

-If employees perform their duties with the aim of disrupting their employer (‘work-to-rule’), they lose their entitlement to wages: Ticehurst v British Telecommunications plc - If ‘work-to-rule’ without goodwill, violates duty to act faithfully -BUT, employer must make it clear that it won’t pay for partial performance from the start.

Does an employer have a duty to provide work, or only to pay wages? - Generally, wages are enough: Turner v Sawdon & Co - Unless: o Public visibility is essential to the nature of the employment, e.g. singers o Keeping up to date + in practice is essential professionally, e.g. chartered accountants. - ‘Garden Leave’ clauses generally acceptable. - But, injunction to prevent the employee from working may be refused if no real risk of detriment to the employer: Provident Financial Group v Hayward.

b) Employer Duty of Care i. HEALTH AND SAFETY

Physical safety -Employers have a common law duty to provide a safe system of work for their employees. -Wilsons & Clyde Coal v English: This includes providing competent + safe fellow employees.

-Health and Safety at Work Act 1974, s1: Duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees it extends to. -s2(2)(e): “The provision + maintenance of a working environment…that is…without risks to health, and adequate as regards facilities + arrangements for their welfare at work”.

Waltons and Morse v Dorrington: Providing a smoke-free working environment – held to be an implied term (added to HSWA meaning).

Developing medical knowledge and general awareness of risks… Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Ltd: Factory had known of the risk of developing scrotal cancer to its employees (working with mineral oil) + had failed to warn the workforce of the risk / institute periodic medical examinations of workers exposed to the risk. One employee died from the cancer. Test of the ‘reasonably prudent employer’ – for preventing risks to his employees + provide adequate warnings of risks involved (Swanwick J).

Work-related stress - Employer’s DoC extends to employee’s psychiatric health: - Walker v Northumberland CC: Social worker reported his stress due to increased workload. He was promised an assistant on return but this assistant was only intermittently available. He suffered a 2nd breakdown, for which employer held liable.

- Sutherland v Hatton: - Question = was the kind of harm to the particular employee reasonably foreseeable? + once this risk to health (from stress) was foreseeable, whether the employer breached his duty to take reasonable care + whether that breach had caused the harm suffered. - No liability if employer not told of potential problem, but no need if obvious.

Hale LJ set out 16 ‘practical propositions’, including: o The ordinary principles of employer liability apply to claims for psychiatric (or physical) illness/injury arising from stress at work o Threshold question = whether this kind of harm was reasonably foreseeable o Foreseeability depends on what employer knows/ought to know about the individual employee (i.e. about a mental disorder?) o Test is the same whatever the type of employment o Factors likely to be relevant…… o Employer generally does not have to make searching inquiries of the employee o Employer is only in breach if he fails to take reasonable steps o Size + scope of employer’s operation = relevant in deciding what is reasonable o An employer who offers a confidential advice service is unlikely to be in breach o If only reasonable + effective step = dimiss/demote employee – employer will not be in breach o C must show that breach has caused/materially contributed to harm suffered

Young v Post Office: Where employee has already suffered psychiatric illness resulting from occupational stress, it is reasonably foreseeable that there may be a recurrence if appropriate steps are not taken when employee returns to work. (Employee not required to tell employer that job is again becoming too much).

Barber v Somerset CC: The fact that all employees were overworked was no excused.

Intel Corporation (UK) Ltd v Daw: The fact that the employer had a counselling service which employee could have used did not discharge employer’s DoC.

Health & Safety Executive Management Standards (good practice, but not legally binding): -Defines the characteristics/culture of an organisation where the risks from work related stress are being effectively managed + controlled.

è Demonstrate good practice through a step by step risk assessment approach; è Allow assessment of the current situation using surveys + other techniques; è Promote active discussion + working in partnership with employees to help decide on practical improvements that can be made; è Help simplify risk assessment for work related stress by: o Identifying the main risk factors for work related stress; o Helping employers focus on the underlying causes + their prevention; and o Providing a yardstick by which organisations can gauge their performance in tackling the key causes of stress.

ii. REFERENCES Spring v Guardian Assurance: Employer owes a DoC to the employee in writing a reference. Bartholomew v LB of Hackney: References should be “true, accurate and fair”. -Data Protection Act 1998, s7: Employee access to references.

iii. GRIEVANCE PROCEDURES Goold v McConnell: Employers should give employees a reasonable opportunity to complain + obtain redress for their grievances.

àCo-operation and Good Faith - Employees must act in the employer’s interest.

Lister v Romford Ice and Cold Storage Co: Employee has DoC in performance of duties + employer can recover damages against negligent employees for breaching this implied term. - No duty of employer to insure (Lords Somerville + Radcliffe dissented)

ASLEF: ‘Work-to-rule’ can be a breach of employee’s duty to cooperate. Train drivers insisted on checking every single train door before departure. Implied term to “serve the employer faithfully within the requirements of the contract”. - Confirmed in Ticehurst v BT plc

**NOTE: Employees are not generally ‘fiduciaries’ so, no duty to disclose their misconduct – Bell v Lever Bros.

àMutual Trust and Confidence - Most litigated area in employment contracts. - It is breached where 1 party acts inconsistently with the ongoing relationship of trust + confidence between the parties. - Rationale: striking a balance between the managerial prerogative + the employee’s interest in not being unfairly treated.

Wilson v Racher: “A contract of service imposes on the parties a duty of mutual respect”.

Pepper v Webb: Gardner (C) places plants in garden, not quite where R wanted them. R asks them to be moved. C: “I couldn’t care less”. R claimed breach of implied term by C’s bad language.

Robinson v Crompton Parkinson: Unsubstantiated accusation of theft, destroyed relationship of trust. Employer had breached implied term.

Bracebridge Engineering v Darby: Failure of employer to investigate sexual abuse claim constituted a repudiatory breach.

Woods v WM Car Services: Breach of implied term of ‘respect’ constitutes a repudiatory breach of contract. - Covers conduct OBJECTIVELY ‘calculated and likely to destroy/seriously damage the relationship of trust + confidence’. - Confirmed in Lewis v Motorworld Garages (no need to show intent).

Malik v Bank of Credit and Commerce International (BCCI): No need to show that employer’s conduct was targeted at the individual employee, + the employee does not even have to be aware of the conduct at the time. - Due to stigma attached to BCCI (for high-level fraud), meaning C’s, after redundancy, could not find another financial sector job, they claimed for damages for monetary loss suffered by them as a result of unemployment – Court accepted this argument. Lord Steyn: - Breach of term of mutual trust + confidence applies only where there is ‘no reasonable and proper cause’ for the employer’s conduct. - Only if the conduct is ‘calculated to destroy…’

SCOPE of the obligation - Johnson: No breach of term through the manner of dismissal. - Gogay: Employer’s decision to suspend the C (care worker), before investigation of the child abuse claims was held to be a breach of the term. o Damages were awarded for depression flowing from suspension. o Distinguished Johnson – (1) suspension (vs dismissal), (2) psychiatric injury (vs injured feelings). - Eastwood/McCabe: ‘Johnson exclusion area’ has been narrowly construed: any cause of action accruing before the dismissal remains unimpaired. - Employees can recover for loss of pay during suspension, and for psychiatric illness caused by pre-dismissal unfair treatment. - Crossly: No duty on the employer to look out for the employee’s economic wellbeing. - COMPARE: Lennon v Commissioner of Police for the Metropolis: Employer expressly assumed responsibility for advice which was erroneous + on which C had relied, causing him economic loss - Baldwin: No breach if susceptibility unknown.

Most recent SC decision on issue of breach of an express term: Edwards v Chesterfield Royal Hospital NHS; Botham v MoD: An employee cannot recover damages at common law for full losses where the employer is in breach of express terms in a contractually binding disciplinary procedure which results in dismissal. - In this case, damages for wrongful dismissal limited to what he would have earned during the time it would have taken for the correct disciplinary procedure to be carried out, together with the notice period. - Botham: the additional claim that but for the breaches of contract he would not have incurred the cost of legal representation in the ET + EAT also fell within the Johnson exclusion zone + was contrary to the statutory cost-free regime.

AN OVERRIDING TERM? - Does the duty of respect assume an overriding character? i.e. ‘terms…so important that they will be applied by the court irrespective of the parties’ intentions’ (Smith & Baker). - United Bank v Akhtar: o “It is proper to imply an overriding obligation [of trust and respect] which is independent of, and in addition to, the literal interpretation of the actions which are permitted to the employer under the terms of the contract”.

- 11% of men + 41% of women work part-time. - The mean hourly gender pay gap = 16.4% (for full-time employees). - Skilled trade, management + professional jobs (male-dominated sectors) are the least likely to be offered with flexible hours. o Men are still primarily the breadwinners o Women choosing motherhood must give up career benefits enjoyed by men

UK Floor of Rights: Key Legislation è ERA 1996 è National Minimum Wage Act 1998 è Working Time Regs 1998 è Part-time Workers & Fixed-term Employees (Prevention of Less Favourable Treatment) Regs 2000 & 2002 è Maternity & Parental Leave Regs 1999 è Flexible Working Regs 2002

UN Universal Declaration of Human Rights: Art 23: (2): Everyone…has the right to equal pay for equal work. (3): Everyone who works has the right to just + favourable remuneration ensuring for himself + his family an existence worthy of human dignity…

National Minimum Wage Act 1998 (+Regs 1999) Rationales for NMW: ¨ Work-life balance is a nonsense if not even a 40-hour week will support a family. ¨ Elimination of poverty. ¨ Floor on wages encourages the search for cost savings elsewhere, hence innovation.

Impact of NMW: ¨ Vast majority of workers targeted have enjoyed over 30% increase in pay + benefits ¨ 2/3 of beneficiaries are women; 2/3 of those are part-time; sharpest increase in women’s vs. men’s wages in a decade ¨ Increased wage bill didn’t slow productivity or lead to a loss of jobs; both rose in some sectors

Who can benefit? S54: workers (personal, contract of employment + not professional / business undertaking). - Expressly includes agency workers (s34) + home workers (s35) - Excludes: voluntary workers, armed forces, au pairs, etc. - Edmonds v Lawson: a pupil barrister does not qualify as a worker for the purposes of minimum wage!

RATE of pay (in tiers): For adults, youths and apprentices.

Pay + hours: - S1(4) + Reg 10 - “Pay” = base pay + incentives, bonuses, tips paid through payroll, before usual deductions. - Nerva v UK – gratuities on credit cards/cheques paid out to waiters directly through the employer as ‘additional pay’ may count as part of the week’s pay? - Not “pay” = premium shift pay + overtime, geographic allowance, etc.

- What counts as “working time” for the nat min wage? - Same as under WTR: 4 categories of work for which the NMW should be paid. o ‘Time work’ – work that is paid for by reference to set/varying hours or period of time (Reg 3) o ‘Salaried hours work’ – work by reference to basic hours where a worker is paid an annual salary by equal instalments (Reg 4) o ‘Output work’ – number of pieces made or some other measure of output such as sales made (Reg 5) o ‘Unmeasured work’ – work that does not fit in any of the above categories, including work where there are no specified hours + the worker is required to work when needed/work is available (Reg 6)

- The hourly rate for each is calculated in accordance with Regs 20-29. - South Manchester Abbeyfield Society v Hopkins: Workers could only claim the NMW for hours “on call” if they were “awake for the purpose of working”.

Other statutory pay: Statutory sick pay - Social Security Contributions and Benefits Act 1992 – sets statutory sick pay. - Express terms in the contract can IMPROVE sick pay. - Must be agreed by both parties – tribunal can only reaffirm what is already agreed (Eagland v British Telecommunications plc)

Guarantee pay - Applies to employees for whom no work is available due to any occurrence affecting the normal working of the business (ss28-35 ERA). - To qualify, must be employed more than 1 month.

Suspension pay - Applies to employees suspended from work due to an unsafe working environment. Workers must be paid up to 26 weeks (ss64-65). - To qualify, must be employed more than 1 month.

Protection from unlawful deductions (Wages Act claims) - ERA s13: deductions must be authorised by state/have the workers’ written consent. - Ss17-21: retail workers – deductions to make up for cash + stock shortages are capped.

Working Time Regulations 1998 Rationales: ¨ Work-life balance inexistent if need to spend all time at work. ¨ Workers’ health+ safety.

Impact: ¨ Impact has not been so hard on businesses/leaders – raised productivity. ¨ Only reduced over 48hr/wk work by 25%. ¨ Unpaid overtime remains high, especially among managers.

Key provisions è Maximum weekly working time (Reg 4(1)) = 48hrs/week, taking average over 17wks. è Night work (Regs 6-7) – limited to 8hrs in a 24hr period. o A period of 7hrs or more at “night time” – includes time when a worker is on call but not actually working (British Nursing Association v IR). è Rest breaks + Rest Periods (Regs 10-12) o Rest breaks of 20mins/day over 6hrs o The Corps of Commissionaires Management v Hughes: Held: a worker, working in excess of 6hrs was entitled to only one rest break a day. è Annual leave (Regs 13-16) – 5.6 weeks paid leave

Who can benefit? - ‘Workers’ (Reg 2(1)) - Excluded sectors (Reg 18) o Certain sectors had originally been excluded (junior doctors, road transport) - Domestic servants in a private household are excluded (Reg 19) - Other ‘special’ cases where the WTR do not apply (Reg 21) - MS’s cannot impose any additional preconditions to protection: employees do not need to be continuously employed for any minimum period in order to qualify for annual leave (R v Secretary of State for Trade and Industry, ex parte BECTU)

“Working Time” (Reg 2) (a) Any period during which he is working, at his employer’s disposal + carrying out his activity or duties, (b) Any period during which he is receiving relevant training, and (c) Any additional period which is to be treated as working time for the purpose of these Regs under a relevant agreement

Time spent “on call”. - Sindicato de Medicos de Asistencia Publica (SIMAP) v Counselleria: time spent on call in the premises counted as working time. - MacCartney v Oversley House Management: no matter if the worker is sleeping (on site).

Employer duties è To “take all reasonable steps” to ensure compliance (Regs 4(2) and 6(2)) è Record-keeping requirements help enforcement, Reg 9

Individual employees have a statutory remedy under Reg 30 in respect of: è Rest breaks and annual leave provisions è They do not cover the maximum working week nor night work provisions o Barber v RJB Mining (UK): A breach of contract claim is possible if a term can be implied into the contract, that the employer will not ask the employee to work beyond 48hrs. The employee will have a damages action. è Criminal sanctions apply for breach of the maximum 48hr week + night work provisions, enforced by Health & Safety Executive (Reg 28). è ERA 1996 s45A: Protects employees from suffering detriment on the ground that they relied on the Working Time Regulations.

“Unmeasured working time” – Reg 20

Individual opt-outs – Reg 4 - Individuals can agree to work more than 48hr weeks, provided it is in writing.

Collective opt-outs - Union agreements - Workforce agreements entered into + signed by workforce representatives or a majority of workers - Must be in writing, and cover all workers or entire sections of the workforce.

Dominiques v Centre Informatique du Centre Oust Atlantique: right to 4 weeks paid annual leave under the WTD is sufficiently precise + unconditional to have direct effect. An individual can bring a direct claim against public employers if they do not receive this right.

KHS AG v Schulte: There can be a limit to the length of time an employee on long term sick leave can continue to carry over untaken statutory leave. German law said in this case: 15 month time limit. ECJ: there could be a limit to the length of time (but did not give a limit). Guidance: 6 months would not be acceptable as a limit, but 18 months would be.

Russel v Transocean International: Entitlement to annual leave can be satisfied during period when workers are not otherwise required to work. ECJ: Employers were entitled to insist that employees working on an offshore installation took their annual paid leave during “field break” spent on shore.

Part-time + fixed-term working Rationale: - Occupational segregation of part-time + fixed-term work in low-paid sections is very high in the UK - Lower pay prevents part-time + fixed-term work from being an answer to work/life balance issues - Big issues about zero hours contracts in news recently - Little security of employment

Impact of regulation on P-T and F-T work - Effectiveness of Regs undermined by focus on full-time comparator - P-T Regs define overtime as beyond full time - F-T and P-T workers must be engaged in the same or broadly similar work (Reg 2(4)(a)) - F-T Regs allow nearly 4yrs of consecutive contracts (Reg 8)

Part-time Workers (Prevention of Less Favourable Treatment) Regs 2000 - Reg 2: Meaning of full-time worker, part-time worker + comparable full-time worker - Reg 5: Less favourable treatment of P-T workers (the right not to be treated this way)

- The types of contract listed under Reg 2(3) are mutually exclusive, and both part + full time workers may fall within any category. o Matthews v Kent & Medway Towns Fire Authority: retained firefighters alleging they have been less favourably treated than full-time firefighters. o Tribunals comparing jobs should look at the work done by both groups as a whole, focusing on the similarities, not the differences. o If much of the work they do is exactly the same, are any differences so important as to prevent it being regarded as ‘the same or broadly similar’? o The employer must intend to treat the employee less favourably on the sole ground that he is a part-time worker (McMenemy v Capital Business Services)

Fixed-term Employees (Prevention of Less Favourable Treatment) Regs 2002 - Reg 3: Less favourable treatment of fixed-term employees - The requirement of ‘objective grounds’ justifying use of fixed use contracts rather than a permanent one is to prevent abuse (Adneler v Ellinikas Organisms Galaktos): “to be justified by the presence of specific factors relating in particular to the activity in question and the consideration under which it is carried out”.

Maternity and Parental Rights + Flexible Work Key legislation: v ERA 1996, ss71-73 v Maternity and Parental Leave Regulations 1999 v Paternity and Adoption Leave Regs 2002 v Paternity and Adoption Leave (Amendment) Regs 2008

MATERNITY RIGHTS

1. Pregnancy-related dismissal

ERA 1996, s99 (Unfair dismissal, leave for family reasons) Maternity and Parental Leave Regs 1999, Reg 20 - Dismissal due to pregnancy-related illness after the end of maternity leave was covered, as the reason arose during the relevant period - Caledonia Bureau Investment & Property v Caffrey: Dismissal due to pregnancy- related illness after the end of maternity leave was covered, as the reason arose during the relevant period.

2. Statutory maternity leave

- All women are entitled to 52wks leave will full contract rights (except pay). - First 26 are ‘ordinary’, another 26 are ‘additional’ – Reg 7 - ‘Compulsory’ maternity leave = 2wks after childbirth - Reg 4: Entitlement to ordinary + additional maternity leave requires employee to notify employer. - Reg 6: When maternity leave starts.

Statutory maternity pay (SMP) - Pregnant Workers’ Directive: arrangements to be made for remuneration under Art 11 - Must qualify: ‘employee’ for at least 26wks, etc. - Pay = for 39 consecutive weeks, 90% of employee’s average weekly earnings for first 6wks.

Rights during maternity leave - Webb v EMO Air Cargo: Dismissal of a female worker on grounds of pregnancy constituted direct sex discrimination without the need for comparison with a ‘sick man’. - Gillespie v Northern Health and Social Services Board: SMP rate of pay could be lower than rate of pay during regular employment without breach of equal treatment provisions. - Curr v Marks&Spencer: If an employee resigns at the end of maternity leave – even if under a child break scheme, view a view of returning to work – she may lose valuable employment rights such as accrued continuity of employment for the purposes of redundancy pay.

Time off for ante-natal care (Ss55-56 ERA) - Ordinary paternity and Adoption Leave (Paternity and Adoption Leave Regs 2002) o Fathers, husbands, or ‘partners’, including same-sex relationships o 2wks paid leave (same rate as SMP) o Must be taken in child’s first year - Additional Paternity Leave Regulations 2010 o Minimum period of leave is 2wks + maximum is 26wks

Protection against Unfair Dismissal - ERA, s99 - Paternity and Adoption Leave Regulations 2002, Reg 29 - Additional Paternity Leave Regs, Reg 34 - Atkins v Coyle Personell plc: Not enough that the dismissal was “associated with” taking paternity leave, there must be ‘causation’.

THE FUTURE: Shared Parental Leave BIS Consultation on Modern Workplaces - We retain a highly gendered, inflexible approach to parental leave rights, one that entrenches the assumption that the mother must be the primary carer in the early stages of a child’s life + prevents fathers from getting involved. This must change.

Children and Families Act 2014, Part 7 - Coalition govt. has designed a much more flexible scheme of ‘SPL’.

KEY POINTS: - Mothers will continue to be entitled to 52wks of ML and 39wks of pay. - Mothers can choose to end ML early + opt for SPL. - Parents will be able to share leave largely according to their choice. They will be able to take leave concurrently. - SPL will be able to be taken at any time to 52wks from the birth. - Scheme came into effect April 2015 for children born on/after this date. - The leave schedule will have to be discussed with employers.

Kingsley Napely Employment Law Blog “We do not know how society’s norms are going to shift. For millennia there has been an assumption that mothers, not fathers, will be primarily responsible for nurturing babies.”

PARENTAL RIGHTS AND FLEXIBLE WORK Key leg: Maternity and Parental Leave Regulations 1999 - Parents with 1yr of service are entitled to 18wks of UNPAID parental leave for each child under 5 in their care (Reg 15(1)) - Leave amount is per child under child’s 5th birthday - 18wks for disabled child until 18th birthday - Default requires leave taken by the week. Maximum of 4wks leave to be taken in any 1yr (Sch 2, Reg 8). - Parental leave cannot be sought for 1 day, but for 1 week minimum. o South Central Trains v Rodway

Emergency leave: s57A - Right to take reasonable time off to arrange for care of dependants - Qua v John Ford Morrison: It does not allow for the employee to take time off to care for the dependant herself. - The leave is unpaid, there is no qualifying period, and no maximum or minimum leave. - Unreasonable refusal of leave gives rise to a tribunal claim under s57B. - Forster v Cartwright Black Solicitors: Not a right to compassionate leave: much narrower, and restricted to making necessary ‘practical’ arrangements in respect of dependant’s death.

The right to request flexible work (ERA ss80F-80I; Flexible Working (Procedural Requirements) Regs 2002; Flexible Working (Eligibility, Complaints, and Remedies) Regs 2002) - Who can apply? - Employees with 26wks service + a child under 17 (or disabled child under 18) may request change to hours, times, and location - Right also applies to carers of live-in relative, partner, or spouse - Limit of 1 application a year - 80F: Applications must specify the change sought + explain how the employee believes the employer might deal with it - 80G: Employer’s duties in relation to application under 80F - Commotion v Rutty: The tribunal is entitled to consider the evidence + consider whether the reasons for rejection of the application lie within s80G.

Evaluating parental rights - Scope: ‘employees’ not ‘workers’? - Gendered provisions - Ability of employer to postpone parental leave by up to 6 months, under Maternity and Parental Leave Regs 1999, Sch2, para 6. - Problems with the enforcement of flexible working.

Discrimination: prohibited conduct and proof

Governed by the Equality Act 2010 - But note: many pre-EA cases still applicable

EA 2010 Coverage: “Protected characteristics” at work: - Sex – s11 - Race – s9 (colour, national origin, nationality, ethnicity, caste) - Disability – s6 - Sexual orientation – s12 - Gender reassignment – s7 - Religion or belief – s10 (incl. philosophical belief, absence of belief) - Age – s5 - Marriage + civil partnership – s8 - Pregnancy + maternity – s18

It applies beyond the normal “employee” definition - Encompasses workers, some agency workers + some office holders who wouldn’t usually satisfy “employee”/”worker” definition – s83(2)(a) - S41: specific “contracts workers” provisions - Discrimination must be connected to the employment relationship but extends to the period after termination (Relaxation Group v Rhys-Harper) - The EHRC has published a Code of Practice of Employment o Although not legally binding, has a serious significance + Employment Tribunals are required to take it into account

How the EA works àSeparate sections for: - What the characteristic refers to - What each type of prohibited conduct – direct discrimination, indirect discrimination, harassment, victimization, etc… consists of - In what situations each type of conduct is prohibited o Marriage + civil partnerships discrimination is excluded from the ‘indirect discrimination’ provisions o Pregnancy + maternity discrimination can only be during the defined maternity period o Many exceptions + qualifications to the ‘age’ characteristic

DISCRIMINATION CONCEPTS A. Direct discrimination (s13 EA) - Less favourable treatment that a similarly situated comparator (hypothetical) - i.e. treated less favourably because of a protected characteristic (or because associated with someone who has it (discrimination by association) or is thought that they have it (perception discrimination)) - Comparator (s23) = person of OPPOSITE sex, race, orientation, with “same, or not materially different” circumstances - Don’t need comparator in pregnancy + maternity discrimination cases - TEST = “but for” objective test: “would she have been treated the same as a man, in a similar situation, but for her sex?” o IF YES – this is direct discrimination!

- James v Eastleigh BC: demonstrates wide scope of s13 o 61yr old man complained when he was charged 75p to swim in local pool whilst wife (same age) was admitted free o The local authority policy = free entry to those past state pensionable age (was 65 for men, 60 for women) o CoA: no less favourable treatment on the ground of sex – the reason for the concession was to benefit pensioners, not to discrimination against men o BUT: HL: asked the objective test: “would C have received the same treatment but for his sex?” Answer = NO! § Therefore this WAS direct discrimination

- Identifying a proper comparator o All circumstances relevant to the treatment must be the same or not materially different o Shamoon v CC of RUC: C was a chief inspector whose appraisal duties had been removed from her after complaints. So she claimed sex discrimination. § Held: chosen comparators were inappropriate – 2 male chief inspectors that were NOT similarly situated (no complaint against them, so court could not examine how they had been treated) o Must not take into account as a distinguishing factor something that flows directly from the protected characteristic § Lockwood v Dept. for Work and Pensions: the tribunal misconceived the point of comparison – by comparing people over 35 to a 26yr old woman, but stating that younger women can more easily find subsequent employment (Not the point!!!) o Where there is NO true comparator, ET use a HYPOTHETICAL one: § Balamoody v UK Central Council for Nursing • Court asked how the employer acted ‘in cases which, while not identical, were also not wholly dissimilar’ o Less favourable treatment + differential dress codes for men + women? § DWP v Thompson: Employers can have ‘sex specific’ codes as long as some restrictions are imposed on both • She had not been discriminated against as the company had imposed different but equivalent restrictions on male members of staff • Held: dress code could be a ‘relevant circumstance’ under s23 + discrimination only if the code’s terms governing sex is significantly less favourable than for the other sex

- Direct discrimination CANNOT be objective justified except for age discrimination (S13(2))

B. Occupational requirements (ORs) – Sch 9, paras 1-6 EA 2010 o Explanatory Notes explain these as a need for authenticity or realism might require someone of a particular race, sex, age for acting roles o Must be PROPORTIONATE to a legitimate aim – it must be a defining characteristic of the job + correspond to a ‘real need’ of the business, not just a preference o Applies to ALL protected characteristics o Very narrow exceptions for ministers of religion, e.g. that Catholic priests be male + unmarried o Applies ONLY to direct discrimination, not to indirect nor victimization or harassment - Etam v Rowan – man denied job as assistant in women’s clothing shop. Court said this could be an OR for decency to require women. BUT: store already had enough women to do that task! - Lambeth BC v CRE – housing office advertised for Asians or Afro-Caribbean o Held: Welfare OR did not work – the jobs were management + did not involve giving ‘personal services’

C. Indirect Discrimination (s19 EA) - Applies to all protected characteristics EXCEPT pregnancy + maternity - Where a rule applies to ALL employees but particularly disadvantages people who share a protected characteristic - “Employer applies a provision, criteria or practice (PCP) that puts or would put people with C’s protected characteristic at a disadvantage” - Statistical proof is not that important, but identification of the CORRECT POOL for comparison is important

4 requirements i. The employer applies (or would apply) a PCP equally to everyone within the relevant group ii. The PCP puts people who shared the worker’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic iii. The PCP puts the worker at that disadvantage; and iv. The employer cannot show that the PCP is a proportionate means of achieving a legitimate aim

- Differential treatment must be justified by aims unrelated to any sex-based discrimination, and further, must consider whether such aims could be achieved through other means – Stenicke v Budensanstalt fur Arbeit - Selection of CORRECT pool for comparison is VITAL: - London Underground v Edwards (No 2) o New rule required that all train drivers move to a flexible shift system. All 2000 men accepted, only 1 out of 21 women could not accept. This woman claimed indirect sex discrimination o Held: Claim accepted. Considerable difference between 100% men complying and 95.5% of women complying, taking into account the number of male + female tube drivers + that women were more likely to be single mothers

- Games v University of Kent o Part-time university lecturer who sought a full-time post was barred by a new rule requiring those appointed to full-time posts to have a PhD – this had become important very recently in his profession o He alleged age discrimination as older people (like him) who would not have considered a PhD important earlier in his career, were at a disadvantage. He compared himself to younger colleagues, that they were more likely to have a PhD. o Held: Court rejected his argument. A PCP must be assessed at the time it is applied, and a pool cannot be compared on the basis of how its members might have behaved

- Refusal of 50% part-time work COULD be sex discrimination o British Airways v Starmer: BA’s decision to require a female employee to work 75% of her full-time hours following her request to reduce hours to 50% WAS indirectly discriminatory. It was a PCP that had a disparate impact on women + was not justified

- CHEZ Raspredelenie Bulgaria: CJEU: C need not be a member of the affected group, but did need to be affected in the same way - COMPARE: Essop v Home Office (UK Border Agency): C MUST establish group disadvantage + WHY the PCP disadvantaged them individually

D. Justification – s19(4) EA - Indirect discrimination can be JUSTIFIED if the PCP that causes it is “a proportionate means of achieving a legitimate aim” - Employer’s objective MUST be legitimate - Tribunal must consider whether the requirement is a reasonable means of achieving that objective (balancing the discriminatory effect of the condition + the reasonable needs of the employer)

- Board of Governors of St Matthias CE School v Crizzle o Mrs Crizzle was of Asian origin + not a communicant Roman Catholic. Did not qualify for the position as head teacher. It was in the school’s best interest to be led by a head teacher who could assist at mass + give communion.

- When considering proportionality, the Tribunal must take into account the reasonable needs of the business - But, this did not permit the margin of discretion/range of reasonable responses test to be applied. - Hardy’s & Hanson v Lax o Tribunal decides if PCP is objectively justified, rather than asking whether the employer’s views are within the range of reasonable views - Legitimate public interest may be justified if they made the ‘discriminatory’ feature the only criterion, ignoring other factors (e.g. personal circumstances) o Mangold v Helm - If a legitimate aim could ONLY be achieved through disproportionate means, it could NOT be justified o GMB v Allen: Employer did pay analysis: showed women were underpaid + much larger group of men overpaid § Employer told GMB Union, representing all the employees, that if the women got their damages, employer could not protect men from pay cuts § GMB misled women, convinced them to settle § EAT: GMB negotiating position indirect discrimination, but justified, as necessary § CoA: found it to be UNJUSTIFIED – dishonesty is NOT proportionate

- Cherfi v G4S Security Services o Cherfi (Muslim) was employed as a security guard + regularly left the site on Friday to attend a mosque o G4S stopped this on the basis that they were contractually obliged to ensure the specified number of security guards were present throughout operating hours o Held: (obiter) G4S could rely on cost alone in order to justify an otherwise indirectly discriminatory policy

- Justification + the CJEU o Bilka: PCP must “correspond to a real need on the part of the undertaking, [be] appropriate with a view to achieving the objectives pursued, and [be] necessary to that end” o Chez: (a) need not be the C’s group; (b) particular disadvantage not necessarily the same

E. Positive Action – s158 EA - Where a member of a protected group is treated better to correct for disadvantage. Not about treating others worse. - E.g. a newspaper wishes to improve disabled people’s chances of being selected for its vacancies. So, it guarantees interviews to disabled people - Still limited, but less limited than in older legislation - Employer must “reasonably think” one of the situations in s158(1)(a)-(c) is met + the action taken must be PROPORTIONATE to one of the stated aims in s158(2)(a)-(c) - If a particular group is underrepresented in the workforce, an employer may take steps to encourage members of that group to apply, and may use the protected characteristics as a “tie breaker” if qualifications are equal Example under old law: - Lommers v Minister van Landbouw: preferential access to nursery places for the children of female employees could be allowed, subject to proportionality, under Art 2(4) Equal Treatment Directive

F. Harassment – s26 EA - Applies to ALL protected characteristics EXCEPT pregnancy + maternity, marriage + civil partnership - “Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual” - Tribunal considering whether an employee has been discriminated against by use of racist language should consider: o 1) Whether the language has been used o 2) Whether the employee has suffered detriment as a result o This may be easy to establish, but CANNOT be assumed – Thomas v Robinson - English v Thomas Sanderson: abuse was on grounds of sexual orientation, whether real or supposed, if it was the basis of harassment directed at V, no matter whether the tormentors believed it to be true - In deciding whether the conduct has the effect referred to in s5(1)(b), must take into account: o A) the perception of B o B) the other circumstances of the case o C) whether it is reasonable for the conduct to have that effect

G. Victimisation – s27 - No need for a comparator - When an individual is treated badly because they have made/supported a complaint or raised a grievance under the EA 2010, or because they are suspected of doing so - Not protected by s27 if complaint was untrue/made maliciously – s27(3) - Discriminatory act may be carried out subconsciously – Nagarajan v London Regional Transport - In deciding whether victimisation had occurred, court should focus on word ‘detriment’ rather than looking at point of view of alleged discriminator – St Helens MBC v Derbyshire

H. Contractual Terms - Applicants + hiring: recruitment must not put persons of a given sex, race, etc. at disadvantage (ss39-40) - Contracts + dress codes: o Wearing a nurse’s cap as part of the women’s uniform is NOT ‘less favourable treatment’ – Burrett v West Birmingham Health Authority o Smith v Safeway: Male delicatessen assistant challenged a rule that men had to have short hair, whereas women could have their hair tied off of their faces. Claim was allowed. EAT noted that hair length applies to outside the workplace, unlike, i.e. jewellery, so would be unfair to make him cut his hair o DWP v Thompson: focusing on specific differences between men + women was incorrect o SG v St Gregory’s Catholic Science College: Collins J: a uniform policy of prohibiting cornrows hairstyle for all pupils, without exception, could result in indirect race discrimination § N.B. applied to students, not workers

I. Proving discrimination - Evidence can be direct OR circumstantial - S138: procedure for obtaining information

Direct evidence = VERY RARE - i.e. testimony or docs that show intent to discriminate - EEOC v Texaco: taped board meetings

Statistical evidence - Can support circumstantial case of direct discrimination: glass ceiling - More often used as primary proof of indirect discrimination – e.g. London Underground v Edwards - Less important now statutory wording in s19 has changed to “puts/would put”

S136: Burden-shifting: Tribunals “shall” find for C if employer cannot “prove” discrimination

- Igen v Wong: C must prove facts from which Tribunal “could” infer that discrimination occurred o Inferences can arise from evasive answers; inconsistency with own or “good” practice o Respondent must then prove with “cogent” evidence, facts on basis of which court “would” conclude it did not commit discrimination alleged o Must prove treatment was “in no sense whatsoever” on ground of sex, race…etc…

- Hewage v Grampian Health Board: Intersectional discrimination claim upheld in that a white male could be a comparator to an Asian female. S136 had shifted the BoP to employer, who could provide no adequate explanation

Grounds of Discrimination

Overview: 1) Specific grounds of discrimination (the “protected characteristics” that are covered by the Equality Act 2010)

2) Particular focus on Disability Discrimination

3) Particular focus on Religion or Belief as a Protected Characteristic

4) Defences: Occupational requirements and Justification

5) The Equality Act 2010 – important, miscellaneous provisions

1. Grounds of discrimination and related issues

Equality Act 2010, Chapter 1

è The ‘protected characteristics’ are set out in the Equality Act 2010, s 4:

S5: Age - Protects people of ALL ages - Legislation treating older workers differently, designed to facilitate their employment, could be justified as a legitimate aim, however, the means adopted must not go beyond what is appropriate + necessary – Mangold - N.B. Even direct age discrimination CAN be justified (s13(2)) o It is the only protected characteristic in which this can happen - The Default Retirement Age has been abolished. Now retirement ages will need to be justified.

S6: Disability - Physical or mental impairment, with substantial + long term adverse effect on P’s ability to carry out normal day-to-day activities.

1

S7: Gender Reassignment - A person has this protected characteristic if they are proposing to undergo, is undergoing or has undergone a process for the purpose of reassigning the person’s sex by changing physiological/other attributes of sex. - Transsexual person - An individual does not have to undergo medical treatment in order to be protected. - If an individual has been diagnosed with “Gender Dysphoria” or “Gender Identity Disorder”, provided the requirements for the definition of disability (s6) are met, they may also be protected by disability provisions.

S8: Marriage & Civil Partnership

S9: Race - Includes: Colour, nationality, ethnic or national origin. - Dawkins v Environment Dept: D (a Rastafarian) applied for job where rule required short hair; refused to cut dreadlocks. Discrimination based on ethnicity? o CoA: An ethnic group must have a ‘long shared history + cultural tradition.

S10: Religion or Belief - Any religion/belief or lack of religion/belief

S11: Sex - Contracts & Dress codes: treating different genders according to convention is not less favourable treatment – Thompson v DWP. o But: SG v St Gregory’s Catholic Science College. - Applies to men and women (and reassigned) - Harassment and victimization can be based on gender + hence sex discrimination.

S12: Sexual Orientation - A person’s sexual orientation towards – persons of the same sex, persons of the opposite sex, persons of either sex…

S18: Pregnancy & Maternity - A person discriminates against a woman if, in the protected period in relation to a pregnancy of hers, she is treated unfavourably: o Because of the pregnancy, or o Because of illness suffered by her as a result of it - A person is discriminating against a woman if they treat her unfavourably because she is on compulsory maternity leave (or has exercised or is seeking to exercise the right to ordinary or additional maternity leave)

-All grounds of discrimination handled similarly EXCEPT disability. -Discrimination: direct (incl. discrim. by association + perception discrim.), indirect, harassment, 3rd party harassment and victimization. -Positive action is limited BUT not as limited as under previous legislation.

2

DIRECT DISCRIMINATION = less favourable treatment than comparator on forbidden ground causing detriment - Prima facie case shifts burden to Respondent – OR’s

INDIRECT DISCRIMINATION = facially neutral practice/requirement has disproportionate effect on group - Mostly proved by statistics - Legitimate need for policy can be justified

2. DISABILITY DISCRIMINATION: A SINGULAR CHALLENGE Has a different statutory structure to the other protected characteristics

Definition of disability è s.6 of the Equality Act 2010: “A physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day- to-day activities”

è “Long term” – 1 year or recurring illness – Sched 1, para 2(1)

è “Substantial” – not minor or trivial – s.212(1) of Equality Act 2010 è S4(1) Equality Act 2010 (Disability Regs 2010): Certain conditions excluded from definition of disability e.g. alcoholism, hayfever.

è “Normal day-to-day activities” = e.g. using a telephone, reading a book, using public transport…

è ‘Recurrence’? o Swift: S took sick leave with psychiatric illness after bullying + harassment by 2 colleagues. She asked employer to arrange for her not to work with them again, but this did not happen. o She claimed disability discrimination, arguing her employer had not made reasonable adjustments. o Held: She must show that the medical condition has a “substantial adverse effect on day-to-day activities” for 1yr or more. If the adverse effects last for less time than that, their condition can still amount to a disability if it is likely to recur. o EAT: S was not disabled. She failed to establish that the effects of her condition were likely to recur. o TEST = whether the “substantial adverse effect” was likely to recur, not whether the illness was likely to recur.

Murray v Newham Citizens Advice Bureau: - EAT: M’s tendency to physical abuse was not a condition excluded from being an impairment under the Disability Discrimination (Meaning of Disability) Regs 1996. - C suffered from paranoid schizophrenia, with a tendency to violence as a direct result of that condition.

3

- He had been treated less favourably on the grounds of that propensity to violence. Discrimination. - Excluded “conditions” are envisaged as freestanding conditions, rather than direct consequences of a physical/mental impairment.

Power v Panasonic UK Ltd - P was employed as an area sales manager. She was dismissed after a reorganisation, having been off sick before this. She claimed disability discrimination. - She WAS suffering from depression + drinking heavily during her period of sick leave. - She was NOT disabled within the meaning of the Act, as alcohol addiction is expressly excluded as an impairment in DD(MD) Regs 1996. - P appealed, citing that the tribunal should not have regard to the cause... - Appeal was allowed + retrial ordered à ET must ascertain whether the impairment itself is a disability within the Act…not the cause.

DEFINITION OF DISCRIMINATION

Direct (s.13) v Like-for-like comparison is needed here to prove anti-disabled bias – receive worse treatment than someone not disabled. v Direct discrimination CANNOT be justified.

Indirect (s.19) v Did not exist prior to EA 2010. v Rule or requirement applies to all but particularly disadvantaged people with a particular disability as compared with people who do not have that particular disability. v It CAN be justified v If justified, NOT unlawful.

Arising from Disability (s.15) v Treating disabled person unfairly because of something connected with their disability – e.g. tendency to make spelling mistakes arising from dyslexia v BUT employer must know or reasonably be expected to know person has a disability – s15(2) v CAN be justified. v If justified, NOT unlawful.

Jenkins v Legoland Windsor: J (Legoland employee) had a withered left arm which he wears in a sling. - He was one of 58 employees presented with a long-service award modelled in Lego. Each model related to the employee’s work. J, however, was presented with a model depicting a man with his arm in a sling, - He complained of disability discrimination – other employees were

4

identified by their work whereas his identification was his disability. - ET: Dismissed. - EAT: Tribunal’s decision was perverse. All but 3 of the 58 models depicted the individual in a workplace context. - A reasonable person would take the view that he had been subjected to a detriment by being identified purely by reference to his disability at such a ceremony. FOUND disability discrimination.

Also: Harassment (s.26), Victimisation (s.27).

The duty to make reasonable adjustments ss.20-21 of the Equality Act 2010 - Applies where a disabled person experiences a “substantial disadvantage” – one which is more than minor or trivial (s212(1)) - ‘Reasonable’ = based on cost & efficacy - Costs not to be passed on to disabled person - Applies if employer knows/could be reasonably expected to know (Sch 8, paras 20(1)(a) and (b)).

Tarbuck v Sainsburys Supermarkets EAT: a failure to make a proper assessment of reasonable adjustments alone IS NOT itself a breach of the duty to make reasonable adjustments under DDA. - Although an employer would put itself seriously at risk if it did not make such enquiries, tribunals should apply an objective test based on the steps the employer took/ did not take, not on whether it had consulted over those steps.

Nottinghamshire County Council v Meikle: Long term sickness because of disability - Court considered whether employer should disapply the normal sick pay + continue to pay full pay for the whole period? - The employee’s absence with stress (the disability relied on) had itself been caused by the employer’s failure to deal properly with the problem that he had been having with worsening eyesight. - A fragile authority.

5

Archibold v Fyfe Council: X (council road sweeper) developed a disability making it impossible for her to do her job (unable to walk). No adjustments could be made to her job, but a higher grade job was available. - Policy of the company was to award this job based on competitive interview. - So, gave her the opportunity to apply. - But she didn’t get any as there was always a better candidate. - So, eventually they had to dismiss her. - HL took liberal approach. Believed council had not necessarily made ALL reasonable adjustments. Read ‘transferring’ to mean ‘appointing’. - Lady Hale: ‘to the extent that the duty to make reasonable adjustments requires it, employer is not only permitted, but obliged to treat a disabled person more favourably than others’.

Williams v J Walter Thompson Group: W needed special equipment + training because she was blind. Employer claimed its failure to make reasonable adjustments was justified because of the time + cost involved. Tribunal rejected this. Held: Company knew she was blind when it employer her, but undertook no investigation + made no plans to cope with this before/after her employment started.

Southampton CC v Randall: Held: the employer should have CREATED a job for the disabled employee, but that was on particular facts (in particular that the college was at the time going through a ‘blank sheet of paper’ exercise in restructuring all jobs.

- All about REASONABLESS of the adjustment. There is no justification defence to a reasonable adjustments claim.

Cordell v Foreign and Commonwealth Office: Confirms that an employer CAN refuse to make adjustments on the basis of cost alone. - But EAT stress the fact-sensitive nature of such claims à may be difficult to predict with confidence when such a refusal will be considered reasonable. - A deaf diplomat was selected for a post in Kazakhstan. But, the FCO considered the cost or providing English-speaking lipspeaker support would be too great, upwards of £249,500 per annum. No direct discrimination. EAT upheld ET’s decision that it would not be reasonable.

-EHRC Code of Practice, 6.28.

3. RELIGION OR BELIEF AS A PROTECTED CHARACTERISTIC

Race discrimination law and religious groups

Some claims from members of religious groups have been successful under race discrimination law. - Mandla v Dowell Lee: Sikh schoolboy was refused admission to a private

6

preparatory school because he would not remove the turban. - HL refused CoA decision, and held: Sikhs were entitled to the protection of the RRA 1976.

The European Convention on Human Rights

Article 9 ECHR: Right to freedom of thought, conscience and religion…including freedom…to manifest religion or belief, in worship, teaching, practice and observance. - 9(2): The right may be subject to restrictions that are ‘prescribed by law and…necessary in a democratic society…for the protection of the rights and freedoms of others.

Article 14; prohibits discrimination inter alia on the ground of religion.

Definition of religion or belief Department of Trade and Industry (2001): - Given the wide variety of different faiths + beliefs - Better to leave it to the courts to resolve definitional issues as they arise

S10 ERA: (1) Religion = any religion (including lack or religion) (2) Belief = any religious/philosophical belief (or lack of belief)

A broad interpretation: Grainger plc v Nicholson: When dismissed from his job, G claimed that the real reason was his belief in climate change. - ET Held: belief in man-made climate change + alleged resulting moral imperatives amounted to a protected philosophical belief. o A belief is not excluded just because it is a political belief (e.g. Marxism) or based on science rather than religion (Darwinism), provided that it meets the Grainger criteria. o Belief does not need to be shared by others + can be a ‘one-off’ or single issue that does not govern the entirety of the believer’s life (e.g. pacifism or vegetarianism).

Greater Manchester Police Authority v Power: ‘Spiritualism’, involving a belief in life after death + communication with spirits ‘on the other side’ has the necessary cogency, seriousness and importance to fall within the definition of ‘philosophical belief for the purpose of the Act’. SOME EXCEPTIONS:

Genuine occupational requirements

On top of the general exclusion for ‘occupational requirements,’ (Sch 9) there is an exception for organizations with ‘an ethos based on religion or belief,’ EA 2010, Sch9, para 3.

7

¨ A person (A) with an ethos based on religion or belief does not [contravene the Act] by applying ….a requirement to be of a particular religion or belief if A shows that…. (a) it is an occupational requirement (b) the application of the requirement is a proportionate means of achieving a legitimate aim and (c) the person to whom A applies the requirement does not meet it.

Manifestation and practice of religious beliefs Department of Trade and Industry: Employers may need to accommodate a wide variety of religious + cultural needs of workers - Such as different dietary requirements + prayer room facilities - Or to accommodate cultural or religious holidays + restrictions on hours of work

- Rules on dress and appearance at work have been claimed to particularly disadvantage certain religion/belief groups + featured in a number of decided cases. - Employees subject to dress codes could potentially be found to have been subject to indirect discrimination.

Indirect discrimination (S19) ¨ (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory…. ¨ (2) A P/C/P is discriminatory if: ¨ (a) A applies, or would apply, it to persons with whom B does not share the characteristic; ¨ (b) it puts, or would put, persons with whom B shares the characteristic at a partic. disadvantage….; ¨ (c) it puts, or would put, B at the disadvantage, and ¨ (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

- Amzi v Kirklees MBC: A teaching assistant was suspended for refusing an instruction not to wear a full facial veil when in class assisting a male teacher. o EAT upheld ET’s rejection of her claim of religious discrimination. o No direct discrimination as any assistant who wanted to hide his/her face for any reason would have been treated in the same way. o Indirect discrimination? They agreed that there was a PCP which put the C as a Muslim at a particular disadvantage, but this was justified by the school’s concerns about the effect the veil had on her ability to communicate properly with the children + the impracticability of her suggestions for dealing with her requirements in other ways.

- Eweida v British Airways: Employer was held not to have committed indirect religious discrimination by banning the wearing of visible jewellery, as being inconsistent with the employer’s uniform, even though this conflicted with C’s

8

belief that she must wear + display a cross pendant around her neck.

- Eweida and others v UK: ECHR: found that in Eweida there had been insufficient consideration of the relative importance of the employer’s objective as against the right to free exercise of religion. o An employer cannot defend itself against a claim of religious discrimination by pointing out that the employee could resign. o Restriction could not stand as it did not represent a real need of the business: it could have accommodated the cross necklace without doing violence to its objectives – restriction was NOT proportionate. o Cross would have no ‘negative impact on BA’s brand or image…’

- ECHR upheld decisions of domestic courts for the 3 other cases brought under Eweida v UK – each of which had rejected religious claims. o Ladele, McFarlane and Chaplin

KEY ISSUES FROM EWEIDA - Identifying a disadvantaged group (see MBA v LN of Merton) - Volunteering? (e.g. Ahmad v UK) - Justification? (Eweida/Chaplin) - Religion/sexual orientation - A clash of rights?

N.B. Ahmad v UK: ECHR revealed that requirements of religious observance are likely to take second place to commercial + business considerations, and the primacy of contractual obligations.

Volunteering for discrimination? Gwyneth Pitt: Ø Post-Eweida, courts + tribunals must now take Art 9 more seriously. Ø The idea that the employee’s rights are not infringed when he/she voluntarily undertakes a contract of employment which conflicts with their religion/belief has finally been laid to rest by this decision.

Identifying a disadvantaged group - An issue that has arisen in the case law is whether the employee can show the existence of a disadvantaged group à Eweida

More recently: Mba v London Borough of Merton: CoA dismissed appeal of Christian care worker against EAT decision that a requirement that she work on Sundays indirectly discriminated against her on the grounds of religion/belief. Found that: Mrs Mba’s employer had relied upon a legitimate aim + had used proportionate means to achieve it by requiring her to work on Sundays.

Kay LJ: Not necessarily to establish that all/most Christians would be put at a particular disadvantage. It is permissible to define C’s religion/belief more narrowly than that.

9

Religion and sexual orientation: a clash of rights?

It appears that a particularly forceful justification will be required in cases that involve an infringement on the right to be protected from discrimination on grounds of sexual orientation.

Eweida (above), McFarlane v Relate Avon [2009] All ER (D) 233, Ladele v LB Islington [2009] All ER (D) 148, Ladele v Islington LBC; McFarlane v Relate [2010] IRLR 872.

A new approach in the UK? - Leigh and Hambler article + Gibson article – support a reasonable accommodation model.

4. DEFENCES

(i) Occupational Requirements (ORs) – Schedule 9, paras 1-6 of the Equality Act 2010

- EA Explanatory Notes: where a need for authenticity/realism might require someone of a particular race, sex, age for acting roles/modeling jobs. - Very narrow exceptions for ministers of religion e.g. that Catholic priests be male and unmarried (Schedule 9, para 3) - Applies to all protected characteristics - Only applies to direct + indirect discrimination, not to harassment or victimisation.

Etam v Rowan: Man denied job as assistant in women’s clothing shop. - Court said could be OR for decency to require a woman. - But: Store had enough women to do that task.

Lambeth LBC v CRE: Housing office advertised for Asians or Afro-Caribbeans. - Welfare OR did not work because the jobs were management, and did not involve giving ‘personal services’.

(ii) Justification (“a proportionate means of achieving a legitimate aim”)

- Employer’s objective must be LEGITIMATE - And Tribunal must consider whether the requirement is a reasonable means of achieving that objective, balancing the discriminatory effect of the condition and the reasonable needs of the employer.

Board of Governors of St Matthias CE School v Crizzle: The objective of the governors of a CoE school of having a headteacher who could lead in the spiritual worship of the school related to the spiritual practices + ethos of the schools. The governors’ objective was reasonable + their requirement that application for the post

10

of headteacher should be committed communicant Christians was justifiable, despite its discriminatory effect on applicants of Asian origin.

-Asked (1) Objective legitimate? (2) Requirement reasonable means of achieving? (3) Did the school’s need outweigh the discriminatory effect on the applicant’s racial group?

- When considering the proportionality of a ‘provision, criterion or practice’ the Tribunal must take into account the reasonable needs of the business but this did not permit the margin of discretion or range of reasonable responses test to be applied.

Hardy & Hansons plc v Lax: Is the PCP objectively justified ?

- Legitimate public interest aims nonetheless could not be justified if they made the ‘discriminatory’ feature the only criterion, ignoring other factors (e.g: personal circumstances or general structure of the labour market), Mangold v Helm [2006] IRLR 143 (ECJ) (above)

- If a legitimate aim could only be achieved through disproportionate means, it could not be justified…

GMB v Allen: Employer did pay analysis: showed women were underpaid & much larger group of men overpaid. - Employer told GMB union, representing all the employees, that if the women got their damages, employer could not protect men from pay cuts. - GMB misled women; convinced them to settle. - EAT: Found GMB negotiating position indirect discrimination, but justified, as “necessary”. - CA found unjustified: dishonesty not proportionate.

Eweida: Para 94 ECHR: “While BA’s aim was undoubtedly legitimate, the domestic courts accorded it too much weight. - E’s cross was discreet + cannot have detracted from her professional appearance. - There was no evidence that the wearing of other, previously authorized, items of religious clothing…by other employees… had any negative impact on BA’s brand/image.”

‘Justification’ applies to INDIRECT and disability discrimination (and direct discrimination on the grounds of age). - Azmi; Eweida

11

5. THE EQUALITY ACT 2010 – IMPORTANT, MISCELLANEOUS PROVISIONS

- ss.39-40 – Circumstances in which employers must not discriminate and/or harass (including job applicants, not just workers or employees)

- s.41 – Discrimination against contract workers o Contract workers similarly protected against discrimination, harassment + victimization. o S41(7): definition of contract worker. o S41(4): Reasonable adjustments

- s.60 – Employment health-related checks o Limits circumstances when you can ask health-related questions BEFORE you have offered the individual a job. o Up to this point, you can only ask health-related questions to help you: § S60(6)(a): Decide whether you need to make any reasonable adjustments for the person to the recruitment process § S60(6)(b): Decide whether an applicant can carry out a function that is essential (“intrinsic”) to the job § S60(6)(c): Monitor diversity among people making applications for jobs. § S60(6)(d): Take positive action to assist disabled people.

- s.124 – Extending ET’s powers – able now to make recommendations affecting not only the C but also other employees (under previous legislation could only make recommendations for the benefit of C).

12

COMMON LAW DISMISSAL/ WRONGFUL DISMISSAL

= A common law action for breach of contract (if dismissal breaches the employment contract) - Usually = inappropriate notice or an inappropriate procedure

At common law, employers may dismiss for ANY REASON AT ALL - NOTICE TERM? o If employment contract has express notice period – must be enforced o S1(4)(e): details of notice period + how it is to be exercised must be contained in the statement of initial particulars – should be given to employee within 2 months of commencement o Fixed-term contracts terminable at end of term unless express term for earlier notice o Without express notice term in indefinite contracts, courts IMPLY reasonable notice – determined according to custom, pay period and status of employee o Statutory minimum notice = a minimum notice period is inserted into ALL employment contracts – ERA s86 § Express notice provisions may NOT go below this § Minimum notice period = based on length of service § 1 week notice if continuous service between 1 month + 2 years § 1 week per year of continuous service after 2 years (up to 12 week maximum) o Rai v Somerfield Stores: An ULTIMATUM (e.g. if you are late tomorrow you’re sacked) is NOT notice

SUMMARY DISMISSAL = a dismissal without notice

- Summary dismissal is JUSTIFIED if the employee breaches the contract – a repudiatory breach (i.e. gross misconduct) - Laws v London Chronicle: o Disregard of an essential condition of the contract of service, i.e. theft (disregarding the duty of good faith) OR insubordination (disregarding the duty of obedience) can constitute a repudiatory breach - Wilson v Rocher: o A single incident of obscene language by the employee, when provoked by the employer, was NOT enough o Gardener swore at his employer in the presence of the employer’s family, but he had been provoked by unjustified criticisms by the employer o Court: Was C’s conduct insulting + subordinate to such a degree as to be incompatible with the continuance of the relation of master + servant? - Denco Ltd v Johnson: o Unauthorised use of a computer is itself gross misconduct. o Employee used unauthorised password to get into system containing confidential information o Irrelevant that this motives were not malicious - Pepper v Webb: o Insolent conduct can amount to repudiation by the employee + justify summary dismissal

*** ACAS give guidance on how to handle these issues in the workplace - ET will take it into account when considering relevant cases - Tribunal can adjust any awards made in relevant cases by up to 25% (for unreasonable failure to comply with Code)

REMEDIES FOR WRONGFUL DISMISSAL A. Contractual damages o Dismissed employees can usually only be awarded for the notice period, but employees may try for additional damages for harms that flow from the dismissal o Addis v Gramophone: § No recovery of money for “handicap on the market” (reputational harm because of sacking) beyond the notice period, whether arising from breach or in a case of wrongful dismissal o Malik v BCCi: § Damages for breach of implied term of mutual trust + confidence, through running a corrupt business, can be recovered where the damage to reputation is caused by employer conduct prior to dismissal § A claim for “stigma” damages was allowed because it did not flow from the dismissal itself o Johnson v Unisys: § UD (statutory regime) which places a cap on damages, precludes a common law development in respect of WRONGFUL DISMISSAL (despite them being different) § Cannot develop any novel theories for damages remedies in connection with a dismissal § Held: Common law may not develop a damages remedy for non-pecuniary loss from a breach of implied term of T+C if the thing that causes the breach is the dismissal of the manner of it o Eastwood v Magnox Electric plc: § Where employee suffers financial loss from psychiatric illness caused by his pre-dismissal unfair treatment, he has a COMMON LAW cause of action that preceded (+ was independent of), his subsequent dismissal o Harper v Virgin Net Ltd: § No wrongful dismissal damages for ‘loss of a chance’ to claim UD (i.e. where failure to give notice meant employee did not have sufficient continuous employment to qualify for UD protection) o Edwards v Chesterfield Royal Hospital NHS: § No damages beyond the lawful date of termination could be recovered at common law where the employer breaches the express terms in a contractually binding disciplinary procedure, even if breach of procedure caused the dismissal – any damages flowing from the dismissal must be sought through UD o Fraser v HLMAD: § No “top-up” of damages over £25,000 in High Court if claim brought first in ET

B. Enforcement of the contract of employment - Specific performance + injunctions against dismissal o Hill v C A Parsons & Co: injunctions can be granted in special circumstances where an invalid notice of termination is given § After 35yrs of working for an employer, an employee was dismissed with 1 month of notice. His contract required 6 months of notice. Injunction awarded o Irani v Southampton & South West Hampshire HA: § Employers must first exhaust the procedures for resolving disputes incorporated into C’s conditions of employment o Robb v LBC Hammersmith & Fulham: § Injunction requiring employer to maintain suspension on full pay rather than summary dismissal, reinstating disciplinary procedures + awaiting completion § R, following suspected illegal swap transactions, was dismissed without pay § Injunction ordered to keep him paid on suspension while investigation was carried out o Jones v Gwent CC: § Injunction restraining employer from dismissing employee granted on basis that letter of dismissal was contrary to contract of employment + hence invalid

- Other limitations on power to terminate o Societe Generale v Geys: § A repudiatory breach by the employer (i.e. action inconsistent with continuation of employment relationship) does not result in termination without acceptance by employee o Contract can incorporate discipline/grievance procedure in its express terms o If the procedure applies to the dismissal + if the procedure has the employee stay on the payroll during the process, then she can recover pay for the procedure period § Gunton v Richmond Upon Thames LBC o This is on top of any damages for a notice period, with no duty to mitigate loss

Substantive limiting terms - Sometimes contracts specify permissible grounds for dismissal – can be treated as abrogating the power to dismiss with notice - Presumption is that employers do not intend this – but this can be rebutted - Where substantive conditions grant ‘tenure’, damages are paid from dismissal until time of claim, new employment or mitigation UNFAIR DISMISSAL

ERA s94(1): “An employee has the right not to be unfairly dismissed by his employer”

- Qualification to claim? S108 – continuity requirements – 2 years since April 2012 - Who is disqualified? Ss193, 199, 200 (i.e. police, national security) - Failure to follow ACAS can affect remedies/make dismissal unfair

DISMISSAL UNDER STATUTE - Need a dismissal in order to bring a UD claim – so need one of (a)-(c) to apply:

S95 definition: Includes: a. Termination by employer (whether with/without notice) - Kwik Fit v Lineham § Resignations given in the heat of the moment may not count as true ‘resignations’ + in special circumstances, the employer should allow a reasonable time to pass before accepting it - Tanner v Kean § Where words/actions are unambiguous prima facie, employer generally entitled to accept § ‘Special circumstances’ may arise – C was publicly rebuked, so threw his keys, left + asked for wages next day § The employer must allow time for this to be revoked - London Probation Board v Kirkpatrick § An agreement between employer + employee to ‘reinstate’ employee after an original dismissal was purely contractual + could be effective in erasing any gap in continuity of employment for the purposes of UD

“Special circumstances” – relate to personality conflict, individual traits, or heat of the moment

b. Expiration of a fixed-term contract without renewal on the same terms - Counts as a dismissal + must be defended in the same way

c. Termination of the contract by the employee, in circs where she is entitled to terminate without notice – because of employer’s conduct (constructive dismissal) - Employer repudiation (express or implied) forces resignation - Western Excavating v Sharp § The “contract test” applies – the employer’s conduct must amount to a repudiatory (fundamental) breach of contract § Simply acting ‘unreasonably’ is not enough - Lewis v Motorworld Garages § A series of acts by the employer can cumulatively be taken into account, using an objective test - McBride v Falkirk Football Club § Breach of the implied term of trust + confidence is a repudiatory breach § This is judged objectively

What counts as breach of confidence? - Unreasonable changes in job duties, or demotion - Failure to consult worker on new program affecting her job, so as to suggest she was no longer wanted - Humiliating office tasks - Pattern of insults - Unreasonably refusing a loan ordinarily given

d. Agreed termination? (Neither a dismissal nor resignation) - S203: no contracting out of UD protection - Igbo v Matthey Chemicals - Rai v Somerfield Stores - Contracts for a particular task terminate by agreement on completion - Fixed Term Employees Regulations 2002 – BROAD definition of ‘fixed term’

e. Frustration? = An event that renders performance impossible – contract terminates - This is not a dismissal - Nottcutt v Universal Equipment Co § A heart attack meant the employee could no longer do the job - Warner v Armfield Retail & Leisure § Before frustration can be considered, the tribunal must be satisfied that any reasonable adjustments the employer was under a duty to make had been made

The Effective Date of Termination – s97 - 3 month limitation period to make a claim to tribunal begins to run at end of actual notice/ date of termination - Continuity + compensatory pay are calculated with statutory notice added on - Harper v Virgin Net - Wedgwood v Minstergate Hull

FAIR REASON FOR DISMISSAL – s98(1) - Once there is a dismissal, the employer must prove a reason + that reason must come under one of the categories of “potentially fair reason” - S92 = right to request statement of reasons for dismissal – written statement of reason must be provided within 14 days of the employee’s request - S98(1)-(3) - The employer bears the burden of proving the reason for dismissal. The reason must have applied at the TIME of dismissal

Categories: a. Capability or qualifications b. Conduct c. Retirement d. Redundancy e. Statutory contravention (i.e. continuing to employ this person would contravene a statute) f. “some other substantial reason of a kind to justify dismissal” (SOSR)

- Note: the employer CANNOT rely on facts he was no aware of at the time of dismissal – W Devis & Sons Ltd v Atkins

STANDARD OF FAIRNESS - Applies to ALL dismissals NOT automatically unfair - “Automatic” skips fairness à straight to remedies - Neutral burden of proof – “fairness” depends on reasonableness of employers decision - Iceland Frozen Foods v Jones: Browne Wilkinson J’s guidance: - Start with words of s98(4) - ET must consider REASONABLENESS, not fairness - ET must not substitute its own decision as to the right course - Most cases – there is a band of reasonable responses - ET must decide whether it fell within it - If handbook says offence leads to dismissal, can challenge for inconsistent enforcement - Saunders v Scottish National Camps - (This was judged before laws on sexual orientation legislation were passed) - Employee was a homosexual, working with kids at a camp - Employer sacked him because he was gay, giving the reasoning that he thought he was a predator, even though he was not in fact a predator - EAT: as many otherwise reasonable employers would think gays should not work with kids, dismissal was ‘in the band’ (court does not consider fairness at this point) - Haddon v Van Den Berg Foods Ltd - Office party during working hours serving alcohol - Employee being celebrated for long service. He gets too drunk. He leaves early + goes home - Employer sacks employee for going home early - Tribunal: sacking him for this was within the band, as they couldn’t say that the handful of employers who would do the same were necessarily unreasonable employers - EAT reversed this decision – equating ‘band’ with perversity - BUT: HSBC v Madden – OVERRULED Haddon - Sainsbury’s supermarkets v Hitt - Range of reasonable responses test applies to employer’s investigation – it should be no worse than what at least some reasonable employers would do

Criticisms of the ‘band’ - How are tribunals to identify the content of the fictional ‘band’ of responses - Who are these fictional employers? - What if all they do is reflect the actual responses of actual employers – is this reasonable?

REQUIREMENTS OF REASONABLENESS Capability or qualifications (ss98(2)(a) and 98(3)) - Key cases: performance, ill-health - USUAL RULE = require a series of progressive warnings, failure to remedy - BUT: Alidair v Taylor - Pilot failed to land plane properly – this is a job which requires perfection - Employer belief in capability is what matters – one failure was enough (exception) - Polkey v A E Dayton Services Ltd - Procedural unfairness leads to a UD if it was not reasonable on the part of the employer – it is no defence for an employer to say the unfair procedure made no difference…if the decision not to afford the procedure was unreasonable at the time

- East Lindsey DC v Daubney - Ill-health case – employer must have investigated situation, consulted the employee, considered medical evidence etc. before dismissing for ill-health - Bliss v South East Thames RHA - Note: beware invasive medical inquiries - Requiring an employee to have a psychiatric examination amounted to repudiation of the contract - DB Schenker Rail v Doolan - The standard of enquiry required is the Burchell test - The decision to dismiss under this reason is a managerial one, not a medical one – the manager should make its own assessment of the risk to an employee’s health

Misconduct dismissals (s98(2)(b)) - Major issue is sufficiency of investigation - Has a rule been consistently enforced? - Burden is neutral – employer doesn’t need to put forward evidence of employee conduct - BHS v Burchell test = - If conduct is not admitted, but suspected, must apply this test: - The test for reasonableness of investigation: § Reasonable belief § Based on reasonable evidence § Derived from a reasonable investigation - This was affirmed in Salford Royal NHS Foundation Trust v Roldan - Sainsbury’s Supermarkets v Hitt - Box of razor blades were missing, but later found in H’s locker - He & another had access to this locker + access to the razor blades - EAT: found unreasonable non-investigation of who had keys to locker, who else had opportunity + where another manager was - HL: band test applies AS WELL AS Burchell test – found that other employers would have done no more

- Monie v Coral Racing: - Employers cannot rely upon subsequent, different reasons for dismissal - Parr v Whitbread - Where the employer reasonably suspects a group of employees of misconduct, dismissal of the whole group may be fair provided a reasonable investigation (a) cannot identify the true culprit, (b) it must have been one of them and (c) it could have been any of them

Failure to follow procedure? - Polkey v A E Dayton Services Ltd - Westminster CC v Cabaj: - Breach of the employer’s contractually agreed appeal procedure does not automatically make the dismissal unfair, if it was reasonable for the employer to see it as futile

Conduct outside employment - Outside conduct CAN show dishonesty or unfitness, affecting working relationships or make an employer look bad in the public eye - X v Y: dismissal on account of ‘private’ conduct could infringe Art 9 – but on the facts it did not as the relevant acts, which happened in a public place, fell outside ‘private life’ - Pay v Lancashire Probation Service - Fetish club performances + sado masochism merchandising affected public trust of probation officer, so dismissal deemed fair

E-misconduct - Game Retail Ltd v Laws: a non-work related twitter rant outside of working hours was posted on a twitter account originally set up for work purposes, and was followed by clients - This dismissal was found to be fair - Crisp v Apple Retail (UK): - Dismissal of an employee for posting comments on Facebook was found to be fair

REMEDIES FOR UD 1. Reinstatement + re-engagement – ERA ss112-116 - Employers can be ordered to take a dismissed employee back - Reinstatement = treat as if never dismissed – they get their old job back - Reengagement = getting another, different job with your former employer - This is unusual in practice

2. Compensation - By far the most common remedy for UD a. The basic + additional awards § Calculated according to statutory formula (incl. years of service) + are not based on loss § Ss119-122 b. Compensatory award – s123 § = lost wages, manner of dismissal (stigma), future lost wages, lost statutory rights, lost fringe benefits § Norton Tool Co Ltd v Tewson: damages are available only for lost wages + other pecuniary losses § Johnson v Unisys: no contract damages for injured feelings in manner of dismissal, although Lord Hoffman in his obiter dicta: “I see no reason why in an appropriate case it should not include compensation for distress, humiliation, damage to reputation in the community or to family life” § BUT: Dunnachie v Kingston-upon-Hull CC: HL: no unfair dismissal compensation for injured feelings in manner of dismissal § Brown v Careham Hall: stigma damages only awarded where employee’s difficulty in finding new employment is attributable to the dismissal itself

- Employee under a duty to mitigate his losses – s123(4) - There is a cap on the maximum compensatory award that the ET can award for UD (in most cases = 1 year’s pay)

ECONOMIC DISMISSALS

Redundancy - This is a ‘potentially fair reason for dismissal’ - If it applies, employee entitled to a statutory payment - Defined in s139 ERA: o The employer ceases to do business: § For which the employee was taken on § In the location where the employee was taken on

- The factual test usually applies to ‘location’ – High Table v Horst: o Waitresses had a mobility clause in their contract – where the employer could require them to work in locations other than their usual location o Employer stopped doing business where they did work, but rather than move them to another location under the mobility clause, dismissed them as redundant

- Exol Lubricants Ltd v Birch: o Where an employee in fact works in a number of locations, the contract can be looked to for determining the relevant ‘location’ o Lorry drivers were contracted to work out of a Wednesbury depot – but employer allowed them to park in Stockport o Employer tried to make them redundant on the ground that they stopped delivering near Stockport, but EAT said no redundancy as work had not ceased in Wednesbury

àHas the employer’s business changed to the extent that the need for employees to carry out work of a particular kind (WOPK) has ceased? - WOPK does not necessarily relate to the work done by the redundant employee - Instead – ask whether the employer has experienced a diminished need for WOPK and the dismissal of the claimant is causally connected with that diminution - Murray v Foyle Meats: o Approved Safeway Stores v Burrell – has a redundancy situation arisen + has he/she lost employment because of it? - Mere change in job specifications is not a ‘redundancy’ - Therefore a restructuring that significantly changes a worker’s job does not necessarily mean that they are redundant because their old job is gone - North Riding Garages v Butterwick: o Employee failed to adapt to change in the structure/manner that the job is to be done (managing a petrol station). Was the same kind of work – just a different way. Couldn’t claim redundancy. - Redundancy does not require that the number of employees has diminished - Murphy v Epsom College: o Plumbers needed for heating, but the heating was updated to a computer controlled system – fundamentally different o One of the 2 plumbers was unwilling/unable to perform all the necessary new functions – so he was dismissed + replaced by a heating technician o CoA: he was made redundant since the employer’s need for plumbers was reduced from 2 to 1 on the reorganization

Redundancy is a potentially fair reason for dismissal – s98(2)(c) - If the definition applies, redundancy is presumed to be fair - The question of fairness is always focused on one of the following procedural matters:

a. Unfair selection procedure o Williams v Compare Maxam Ltd: sets out a checklist (Browne-Wilkinson J) – current standards of fair industrial procedure: § 1) Give as much warning as possible § 2) Consultation (seek to agree selection criteria) § 3) Use objective selection criteria § 4) Selection criteria applied fairly (comply with criteria + consider union objections) § 5) Consideration of suitable alternative employment o Even employers with a union must adopt (1), (3) and (5)

o British Aerospace plc v Green: The system of redundancy selection adopted must be fair + reasonable + applied fairly + reasonably between employees o King v Eaton Ltd: Consultation must be meaningful: § A selected employee was not given the scores of others not selected, and the only employer witness at trial could not say why any particular scores had been awarded o The Williams criteria may be departed from where redundancy arose from reorganisation + choices had to be made about filling the different, newly created role

b. Automatically unfair redundancy o S105: union members selected for redundancy when non-union members are not o Redundancy IS unfair if the employee can show that the circumstances producing the redundancy applied equally to other comparable employees in the same undertaking who were not dismissed

c. Failure to warn or consult o Williams v Compair Maxam Ltd: § Where the employer recognizes a union the necessary consultations will normally be with that union § Selection criteria should be objectively applied – on the basis of matters such as length of service, experience, efficiency, etc. o Polkey v A E Dayton Services Ltd: § Procedural fairness is a central factor § All employers (union or not) should consult with affected employees § Consultation means not only providing information but considering suggestions for avoiding or minimising job loss o Directive 98/59 – requires that notice should not be given until the necessary consultation period is COMPLETED

d. Failure to consider redeployment o Vokes v Bear: failure to make a reasonable attempt at redeployment could be regarded as ‘unreasonable behaviour’ in respect of the decision to dismiss

e. Redundancy compensation o If an employee is made redundant, even if it is found to be a fair redundancy the employee is entitled to a payment based on the number of years of service. o Rationales: § Reward for long service § Cushions the blow of being made unemployed § Protects employees against arbitrary mass dismissals § Imposes a cost on employers for reductions in force, making them consider alternatives

Statutory redundancy payment = s135(1) - Payable regardless of whether redundancy, fair or unfair - Amount calculated according to weekly pay, length of service + age – s162

NOTE: Alternative employment – s141 – employee not entitled to redundancy payment if: 1. He was offered ‘suitable’ alternative employment and 2. He unreasonably refuses

- S138 – a four week trial period applies - Redundancy dismissals are unfair if employer fails to consider alternative employment - ‘Suitable’ alternative? – Conditions must be substantially equivalent to the employment which has ceased o Taylor v Kent CC: is the new post substantially the equivalent of the previous post?

Pre-conditions to statutory redundancy pay: - If there is a dismissal by reason of redundancy – s147 - There is a presumption that the reason for dismissal = redundancy – s163 - 2 years’ continuous employment – s155 - Certain exclusions apply (same as UD claims – i.e. nat. security…) - The govt. guarantees payments by insolvent employers

Reorganisation For some economic reason or another, employer may want to reorganise their company, and this MAY RESULT in redundancies. - It can come under SOSR for dismissal – s98(1)(b) – where a reorganisation results in dismissals that do not fit WOPK - If it is SOSR – no redundancy payment + if it is a fair SOSR – no damages - SOSR is potentially fair if reorganisation is not a sham - Tribunals will assume that if a company takes a business decision to reorganise, this is probably a business necessity - Sham = pretending they need to reorganise so that they can rid of employees - Once the tribunal has established it is not a sham, ask 3 questions: a) Was the reorganisation necessary? § Originally: Ellis: business must be on the verge of failing without changes § But, standard was lowered: • Hollister v National Union of Farmers: it is sufficient that if there is a good, sound business reason for the reorganization (leaves a lot up to the employer’s discretion) § Evans v Elementa Holdings Ltd: EAT appeared to move in the direction of redressing this imbalance by considering whether it was reasonable for the employee to reject the employer’s changes § Chubb Fire Security Ltd v Harper: • Court refused to follow Evans – instead tribunal may consider, as one factor, whether the employer had acted reasonably in deciding that the advantages of the reorganization to it outweighed the disadvantages to the employee § Richmond Precision Engineering Ltd v Pearce: • Griffiths LJ: “The hurdle over which the employer jump[s] at this stage of enquiry into a UD complaint is designed to deter employers from dismissing employees for some trivial/unworthy reason”

• All circumstances should be taken into account in considering reasonableness, in the context of whether there was a ‘sound business reason’ for the reorganisation: St John of God (Care Services) Ltd v Brooks

Was it necessary to insist on changing the employee's job? - Focus here is whether reasonable employer would require these changes to this C’s job, and dismiss the employee if he/she refused. - i.e. If 90% of the employees went along with the change: evidence that what employer did was PROBABLY NOT UNREASONABLE… (Williams)

Was there sufficient consultation? - Ellis v Brighton Co-operative Society Ltd: EAT: there must be proper consultation, not just the presentation of a fait accompli or ultimatum