HR advice from the Professionals

Some recent employment cases….

Justifying the Handling of Alcohol in Religious Discrimination case

Ahmed v Tesco Stores Ltd 2008

A Muslim employee of Tesco’s claimed he was discriminated against under the Employment Equality (Religion or Belief) Regulations 2003 after he was required to handle alcohol. The employee resigned and claimed constructive dismissal on the grounds that by expecting him to handle alcohol was against his religious beliefs. The Employment Tribunal agreed with Tesco’s that this practice was justified due to the fact that the company would not be able to supply its stores with its products without the employee carrying it. To add to this, the tribunal took into consideration that the fact the employee was required to carry alcohol was addressed at the interview stage and documented to support.

Implications for the Employer

Although most tribunal claims will be supported by various facts within the case, it is important for employers to identify and deal with any potential issues early in the recruitment process that may result in a discriminatory outcome and ultimately a claim.

Homophobic Banter and its Implications

English v Thomas Sanderson Ltd 2008

Previously, the Sexual Orientation Regulations 2003 included only unwanted conduct based on the victim’s (or someone else’s) perceived sexual orientation but an employee won a tribunal claim for the teasing he received about his sexuality even though there was no real acceptance by those colleagues that he was gay. The employee was subjected to homophobic banter where colleagues suggested he was gay as he attended a boarding school and lived in Brighton.

Implications for the Employer

Employers will be required to educate their staff on the misuse of ‘banter’ and that unwanted conduct, regardless of sex, race, disability, religion or sexual orientation can amount to discrimination.

Redundancy Selection and Age Discriminations

Rolls-Royce v Unite 2009

A Company alleged that the redundancy selection matrix they had agreed with the trade union could not proceed as it amounted to age discrimination. The redundancy selection process used a points system based on five criteria in addition to each employee could receive one extra point for each year of continuous service. Those with the least points were selected for redundancy. The Court agreed with the union that the continuous service points were objectively justified. Given the use of these points with the other criteria within the matrix, the length of service points were capable of being justified as they did achieve a legitimate aim. The scheme agreed with the union had the legitimate aim of peaceful redundancy selection, and the aim of respecting the loyalty and experience of the older employees and protecting older employees who find it harder to get jobs from becoming unemployed. In addition the age award fell squarely within the length of service exception.

Implications for the Employer

Employers should have in place a carefully planned redundancy procedure which can be used if the need to make redundancies arises. Selection criteria used in any redundancy procedure must be objective and verifiable against, for example, attendance and personnel records and must be applied fairly and not be discriminatory. If employers do use length of service criteria as part of a redundancy selection process, they may be able to defend their use of this criterion if they can show it fulfils a business need or achieves a legitimate aim of the business or, as part of a matrix, be a valid and fair indicator of loyalty and experience.

Stress and Employer Duties

Dickens v O2 plc 2008

An employee who was given promotion to management and promised support and training was not given and found the new role to be overly demanding. She informed her manager that she was very stressed and was told to use the company’s confidential counselling service. As she was already receiving counselling, she did not do this. She repeated her concerns and was referred to the occupational health department, but this was not actioned. She then signed off work with anxiety and depression. She brought a claim against her ex-employer for personal injury and sought damages for injuries that she had suffered due to psychiatric injury from stress at work. The Court held that the employer was largely responsible for the employee’s psychiatric injury. Although the employee had not suffered a previous breakdown, the injury was foreseeable as the employee had advised the company over a period of time of her problems. The referral to a counselling service suggested by her manager was an inadequate response.

Implications for the Employer

Employers should be proactive in dealing with stress issues in the workplace and be aware of and follow the Health and Safety Executives management standards for work-related stress. One way to deal with this is to implement a ‘dealing with stress at work’ policy to help introduce measures to reduce and prevent stress, or provide Managers with training in how to deal with employees who complain that they are over-worked and suffering from stress. Employers should take action to investigate a stress situation, listen to the employee, take steps to alleviate the situation. A mere referral to a counselling service alone is not enough to guarantee an escape from a finding of breach of duty.

Recent TUPE cases

Dynamex Friction Ltd & Another v Amicus & Others 2008

DyFriction Dynamics Limited was in financial difficulties and joint administrators were appointed who dismissed all of the employees immediately, on the grounds that there were no funds available to pay them. A week later, some of the assets of Friction were sold to another company (set up by a former employee and the sole director of the old company) called Dynamex Friction Limited. The issues were essentially whether: there had been a transfer of undertaking from Friction to Dynamex, and if the reason for the dismissals was related to the transfer or was an economic, technical or organisational (ETO) reason.

Eventually the Court of Appeal held that there was a transfer of an undertaking but that the reason for the dismissal was an economic one as there were simply no funds to pay the employees

Implications for the Employers

In TUPE transfers, the transferee (‘new’ employer) may be liable for dismissals made before the transfer for a reason connected with the transfer, even if the transferee played no part in the decision. Also, where employees are dismissed before a TUPE transfer, the reason for dismissal will determine whether the transferor is liable, or whether the employment liabilities pass to the transferee. It is important to note the thought process of the person making the decision to dismiss the employees will dictate whether the dismissals are transfer related or if there is an ETO reason.

Kimberley group Housing Ltd v Hambley and Others; Angel Services (UK) Ltd v Hambley & Others 2008

Lena Homes had a contract with the Home Office under which it provided accommodation and related services for asylum seekers. In 2006 this contract was awarded to the companies Kimberley and Angel. Kimberley and Angel did not accept that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) applied and therefore employees of Lena Homes who had been engaged in the relevant services lost their jobs. Six of them brought a claim under TUPE.
On appeal, Tribunal found that although a service provision change had taken place, employee liabilities could not be divided between Kimberley and Angel on a percentage basis. The apportionment of liabilities in a service provision change should be treated the same as a traditional transfer. Kimberley had taken over the majority of the activities carried out by the employees and they therefore transferred to Kimberley which was now responsible for all liabilities under their employment contracts.

Implications for the Employers

When a service which is originally provided by one employer is instead provided by two or more new potential employers the parties must decide which employees are assigned to the activities involved in the service provision change to determine who is liable for the employees. The employees’ employment will transfer to the transferee who takes on the particular activities. The approach in cases of a service provision change between employers is therefore no different to the approach already established for traditional TUPE transfers.

Regent Security Services v Power 2008

The employee was the only person doing a particular job and prior to the transfer to Regent his contract of employment stated a contractual retirement age (CRA) of 60 years. Shortly before the transfer to Regent he agreed to change his contract so that his normal retirement age (NRA) would rise to 65 years. It was established before the Tribunal that the change was by reason of the transfer.

Later that year, Regent informed him that they intended to retire him at 60 years. He objected claiming that his NRA was now 65 years, but his employment was ended and he brought an unfair dismissal claim. The employee argued that his NRA was 65 years as he had agreed a CRA of 65 years with Regent. However, Regent contended that the variation was void under TUPE as it was by reason of transfer under the principle that changes made by reason of the transfer were void and that transferring employees could not be deprived of their previous rights. The employee argued that only changes to his detriment were void as a result of TUPE and that the change to his contractual retirement age was beneficial. The employee won. The CA agreed with the EAT and decided that an employee should be able to hold the employer to a variation of a term more favourable to the employee, but not one which would be detrimental to the employee.

Implications for the Employers

It appears that employees can choose between enforcing an old term or the new term based on their choice of which they think is most beneficial. Following a TUPE transfer some beneficial changes to the terms and conditions of employment by the ‘new’ employer may be valid even if they are by reason of the transfer. Employers will therefore probably be bound by variations of terms following a TUPE transfer which are more favourable to employees.

Health and Safety Offences Act 2008 (16^th January 2009)

This new act will result in increased penalties and harsher punishments for those who break health and safety law to try and act as further encouragement for Senior Managers to improve their health and safety responsibilities. Maximum penalties will increase from £5,000 to £20,000. Breaches in regulation could be classed as a criminal offence, with stricter punishments on those of authority.

Implications for the Employer

For those that are not already, Senior Managers need to take a systematic approach, ensure risk assessments are carried out properly and procedures are in place to minimise risks and help protect their staff.