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Employment Law

Legal guidance - compliance - software

01 FEB 2012

Case Law Update

Paid work experience requirement indirectly discriminatory

An industrial tribunal in Northern Ireland has found in the case of Crilly v Ballymagroarty Hazelbank Community Partnership that a requirement for a job candidate to have two years' paid work experience over a five-year period had a disproportionate adverse impact on women and constituted indirect sex discrimination.

The claimant had not had paid work for six years, due to childcare responsibilities, though she had extensive high-level voluntary involvement in community development and neighbourhood regeneration.   When she was not shortlisted she claimed that the paid work experience requirement was indirectly discriminatory.  The tribunal found that the five year requirement had a disproportionate impact on women and that, although the aims underpinning the requirement were legitimate (the employer wanted someone to begin work immediately with minimal training and supervision) they were not proportionate.

Adjournment for claimant who was unwell

The EAT has held in the case of O'Cathail v Transport for London that the tribunal should not have proceeded to hear a claim in the Claimant's absence when he applied for a second adjournment on the grounds of ill-health.

Although the tribunal accepted that the Claimant was ill, it refused the adjournment for reasons which included the duration of time since the alleged events.

The EAT will only examine adjournment decisions in limited circumstances which include where the fairness of the proceedings as a whole is endangered.  The EAT will then consider whether the decision was a fair solution.

No detriment where overtime refused

The EAT has held in the case of Arriva London South Ltd v Nicolaou that a bus driver who had refused to sign a 48-hour week opt-out did not suffer a detriment on being refused an opportunity to work overtime by his employer.

The employer did not consider the Claimant for overtime, justifying its decision on the basis that it had a duty to ensure that it kept to its policy of preventing the Claimant exceeding a 48-hour average working week, in line with Regulation 4(2) WTR 1998.  The Claimant claimed a detriment connected with his assertion of his right to opt-out.  The EAT held that the reason why the employee was refused overtime was to enforce a policy and observed that the policy was designed to ensure that employees who exercised their right not to opt-out of the 48-hour week maintained that right.

Violent employees and vicarious liability

The Court of Appeal has considered the issue of vicarious liability in the conjoined cases of Weddall v Barchester Healthcare and Wallbank v Wallbank Fox Designs Ltd.

In considering the circumstances of each case the Court explored the key authorities on vicarious liability which establish that there must be sufficient connection between what the employee is required to do and unlawful violence towards a third party.  It identified the importance of the closeness of the connection between the wrongful act and the employment.

Mr Weddall was assaulted by an employee who had refused on the phone to work a night shift and then turned up at the workplace.  The Court found that the employee was acting personally for his own reasons and, as the underlying instruction was merely a pretext for an act of violence unconnected with his work, the employer could not be held vicariously liable.  However, in the other case vicarious liability was established.  Here, the employee was undertaking a task and Mr Wallbank sought to help him.  The employee then threw Mr Wallbank onto a table and he sustained some injuries.  The Court held that the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction given to him.

Right to 4 weeks' annual leave under the EU Directive

The ECJ has held in the case of Dominguez v Centre Informatique du Centre Ouest Atlantique that the right to four weeks' paid annual leave contained in the EU Working Time Directive has direct effect.

This will only apply to public sector employers.  The ECJ confirmed that it is not possible to enforce Directive rights against a private sector employer.

When the Advocate General gave her Opinion on the case last year she considered whether the right to paid annual leave could be characterised as a "fundamental principle" of EU law, which would justify disregarding national law even in a purely private sector dispute.  In a case on age discrimination Kücükdeveci (Case C-555/07), the ECJ held that the prohibition on age discrimination was so fundamental that an employee could rely on it to disapply contrary national law in a claim against a private sector employer.  However the Advocate General did not think such an approach would be justified in relation to the right to paid annual leave.  It would seem from this that the approach taken in Kücükdeveci cannot be extended to working time law.

Chief police officer found to be vicariously liable under Sex Discrimination Act 1975

The EAT has held in the case of Metropolitan Police v Weeks that a chief police officer could be vicariously liable for the alleged discriminatory acts of a police officer against a civilian employee under the Sex Discrimination Act 1975.

The Claimant was a Senior Crime Intelligence Researcher employed by the Commissioner of Police of the Metropolis and was line managed by a City of London Police Detective Sergeant.  The Claimant's line manager rejected her application for flexible working and subsequently requested the cessation of the Claimant's shift allowance.  The EAT concluded that the Commissioner was aware of the decisions made by the Claimant's line manager and also concluded that these decisions were made either expressly or impliedly on his instructions, with his consent and on his behalf.

Successive use of fixed-term contracts

The ECJ has held in the case of Kücük v Land Nordrhein-Westfalen that employing a worker on successive fixed-term contracts to continually cover different absent workers is not a breach of the EU Framework Directive on Fixed-Term Work, even if the cover is required continuously for several years.

While a temporary need to replace permanent staff may in principle constitute an objective reason justifying the use of fixed-term contracts, it is for the national court to assess whether, in all the circumstances, the renewal of the fixed-term contract in question is intended to cover temporary needs and is not in fact being used to meet permanent needs.

Ms Kücük worked as a clerk under 13 fixed-term contracts between July 1996 and December 2007.  These contracts were all for the purpose of providing cover while other clerks, employed on permanent contracts, were absent on maternity leave.  She claimed that the German law which permits consecutive fixed-term contracts where there are objective grounds, such as replacing an absent employee, breached clause 5(1) of the Framework Directive on fixed-term work.  Although clause 5(1) is intended to prevent abuse through the successive use of fixed-term contracts, it enables Member States to specify objective reasons justifying their renewal.  It will be up to the referring Federal Labour Court to assess whether Ms Kücük's employment over 11 years under 13 fixed-term contracts could be justified under clause 5(1).

Death benefits and details about widow's pension provided jointly to member and spouse

The Pensions Ombudsman has issued a determination in relation to a complaint by Mrs S E Wheeldon against NHS Business Services Authority (81348/2).

The complainant was a widow of a deceased member of the NHS Pension Scheme and she claimed that her husband (Dr Wheeldon) had relied upon an incorrect statement of a widow's pension when making his will which resulted in Mrs Wheeldon receiving less under her husband's will.

In 1994, the scheme administrator wrote to Dr Wheeldon and stated that his wife would be entitled to a widow's pension of £6,575.98 a year.  The Ombudsman found that Dr Wheeldon relied upon this in his inheritance planning and that the scheme administrators owed both Dr Wheeldon and his widow a duty of care as they were member and contingent member and the information was given to them jointly.  The Ombudsman found that Dr Wheeldon would have left more of his estate to his wife had he been aware of the correct amount of pension due to her and directed that £37,000 be paid to her to compensate her for this loss.

Reasonable for a member to rely on an overstatement

In a complaint by Mr Major against the British Steel Pension Scheme (82840/1), the Pensions Ombudsman has determined that it is reasonable for a member to rely on an incorrect benefit statements given to him without checking the figures.

Mr Major was a member of the British Steel Pension Scheme who was offered voluntary redundancy by his employer in 2009 and received an estimate of the pension benefits he would receive from the trustees.  This incorrectly augmented his yearly pension and lump sum.  Mr Major had previously received another benefit statement in 2007 which had also overstated his years of pensionable service.

Mr Major claimed that he decided to take voluntary redundancy on the basis of the incorrect estimate made to him in 2009 but his scheme benefits turned out to be significantly lower than the estimate.  While the error in the estimate was obvious to a pensions expert, the Ombudsman held that Mr Major should have been able to rely on the figures he was given for the specific purpose without having to check them.  The trustees were ordered to pay the member a lump sum equal to his lost earnings to age 65 and an additional pension which Mr Major would have received, had he stayed in service until age 65.

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