Employment Law miscellany   December 2007
a periodical round up of topical issues and comment from Oliver Britton, solicitor
01707 660375 info@oliverbritton.co.uk

Some Cheer : less New Legislation The traditional but not exclusive dates when new employment regulations and laws become effective are April 1st (appropriately) and October 1st (to brighten the end of  summer) each year. Perhaps because it had other things on its mind the government’s flood in this field was modest this October and there is nothing of major importance to report. Annual leave entitlement has increased to 24 days p.a ; the annual increase in Nat. Min Wage took the adult level to £5.52 p.hr; acts of race or religious discrimination in the workplace may amount to a criminal offence; foster carers and their spouses/partners acquired the right to request flexible working; and the Commission for Equality and Human Rights (CEHR) took over from  CRE, DRC and EOC   - so, that’s two less acronyms to savour over the port.   Enjoy this relative lull while you can. Pretend it’s a Christmas present and here are more brightly coloured packages  - some of which remind us of how easy it can be for an employer to be up before the beaks. Agency workers – again In a worker/recruitment agency/end user triangle even if the parties intend to create a triangular relationship and not a contract of employment a Tribunal may ignore the paperwork and imply a contract of employment between the worker and the end user. In National Grid v Wood the EAT said that although the parties intended that the documentation should create the legal rights and obligations that they gave the appearance of creating - and was not therefore a “sham”-  but said that even though the documents  may have expressed what the parties intended at the outset, on the facts of the case it was necessary to imply a contract between the agency worker and the end user. The worker had undergone two end-user interviews in competition for the post, the end user had also vetted him and the worker had negotiated during his work

directly with the end user for a longer notice period (than the agency had provided) and with regard to pay and holiday arrangements. All this pointed to an employment relationship. End users should be sure that triangular situations do reflect the intentions of the parties but if those intentions are not reflected by the actuality of the working relationship a contract of employment is likely to be implied if that would give business reality to the situation. Nominating Holiday Periods InSumsion v BBC (Scotland) Mr Sumsion had been taken on by the BBC to work on a programme from May to October. He had to be available six days per week. He was entitled to six days holiday, to be taken (in effect) on every other Saturday. He asked to take them as a block. When refused this he went to a Tribunal. An employer may by notice require a worker to take leave 'on particular days'. In spite of arguments for Mr Sumsion that to legitimise the arrangement would negate the intent of the annual holiday provisions, for example, by allowing the employer to stipulate as 'holiday' a day on which it was never actually intended that the individual should work the BBC won. It was recognised that there might be a case where the employer, in nominating a Saturday, was guilty of perpetrating a 'sham', not giving 'real' holiday, in which case the result might be different. It is not easy for an employee to prove a sham and this case serves to highlight that an employer has a fair amount of leeway in nominating when holidays are taken provided that it is done well in advance and the contract of employment also gives the employer the same flexibility as the statute. Rolled up holiday pay As reported in these columns, in March 2006, the ECJ decided that it was incompatible with the Working Time Directive for workers to receive their statutory holiday pay staggered over the year, paid together with, i.e. rolled up in,  remuneration for work done, rather than as a separate payment in respect of a specific period of leave actually taken by the worker unless the arrangement of paying holiday pay weekly or monthly was ‘transparent and comprehensible’.

 

Generally, it had been thought that in order to be the right side of the ECJ quite a few hoops needed to be negotiated. However, in Lyddon v Englefield Brickwork, the EAT found in favour of the company in a case where the worker had no written terms of employment (in breach of the Employment Rights Act) and no written explanation in advance of the holiday pay system. However, he had been informed that part of his pay was referable to holiday pay and when he received his computer-generated payslip, it showed the precise amount of holiday pay paid to him as a separate item added to his basic pay. For this system to be lawful, it was not necessary for there to have been a written contractual term or for the precise amount to have been agreed before he started work. It was sufficient that he was told that a system for ‘rolling up’ holiday pay was in place, that such a system did in fact exist and he could see how the pay was calculated. Ideally, employers who wish to pay rolled up holiday pay would include a clear explanation in terms of employment, company handbook or the like but the ECJ ruling now seems to be less severe than first thought. Untidy locks sacking not discrimination In the recent case of Harris v NKL Automotive & Matrix Consultancy it was accepted that Mr Harris, a Rastafarian, had had long hair tied back in a ponytail when he was recruited. Later there were complaints about his ‘untidy hair’. It was only after he had been dismissed that he filed a grievance mentioning for the first time that he was Rastafarian and alleging discrimination on grounds of his philosophical beliefs. As the employer had been unaware of his beliefs until the grievance there could be no direct discrimination because until that point; nor was there indirect discrimination because he had dreadlocked hair when he joined and it was only when it was believed to have become untidy that any problem had arisen. Additionally, the employer could defend its position based on the wording of its dress code - ‘smart professional haircut and ensure all hair is tidy’. This would amount to justification or proportionality in requiring the dreadlocks to conform with its rules. The Employment Equality (Religion and Belief) Regulations 2003 had been the basis of the discrimination claim; he had not worked with the employer long enough to claim a simple unfair dismissal.

However, the  EAT referred the claim back to the Tribunal to decide if, in treating his grievance dismissively, the employer had been guilty of victimising the employee on the ground of his belief. Employers need to be careful to ensure that their dress codes are not liable to breach Regulations protecting religious beliefs. Interestingly, in the earlier, much publicized, case of the veiled Muslim teaching assistant (Azmi v Kirklees Metropolitan Borough Council) the only claim on which the employee succeeded was victimisation, arising from shortcomings in the handling of the grievance procedure. In that case, the claimant was awarded £1,000 in compensation for victimisation, uplifted by 10% for procedural failures. Penalties for disobedience to Rules Failure to comply with the (hopefully) condemned Dispute Resolution rules can lead to an uplift of up to 50% of the award that a tribunal makes. The amount of uplift is very much a matter of discretion and the EAT has generally avoided giving guidance. In Apuit v Kennedy it was said that the fact that an employer was large did not justify an increase on the minimum uplift of 10%. Contrarily, in Cex Ltd v Lewis the fact that the employer was ignorant of the rules meant that an increase above 10% was not justified. Just because an employer is large does not, of course, automatically mean that it knows the Rules but, in the real world the likelihood is that the large employer will know the Rules or, arguably, has less excuse for not knowing them. Anyway, the morals of this tale are: if you are an employer and have read this you cannot be ignorant of the Rules– sorry; and the EAT is not necessarily consistent in its decision-making. Now what made any of us think that it might be? For back numbers and other materials/links remember to visit my website at www.oliverbritton.co.uk Although the material in this newsletter covers legal matters I do not intend that the contents should constitute legal advice. I hope readers will find the newsletter informative and interesting. I have aimed to be accurate at the date of going to press but the information in it is not intended to be a substitute for obtaining specific legal advice and should not be relied on. Copyright 2007 - Oliver Britton. Published by Oliver Britton, 16 Billy Lows Lane , Potters Bar , EN6 1XN . Regulated by The Law Society.