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DISCRIM: Treating one group differently than another group
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The
Equality Act 2010 unifies various types of discrimination
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4 types of prohibited conduct
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PROTECTED CHARACTERISTICS:AGE –s5
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RACE –s9
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RELIGION/BELIEF – s10 –
religious belief, philosophical belief, lack of beliefSEX –s11 – men/womenSEXUAL ORIENTATION –s12 – same sex, opposite sex, both sexes
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*Impairment – Power v Panasonic UK Ltd – Becoming depressed, will still be an impairment, regardless if it is self-induced through alcohol – how impairment is
caused is irrelevant
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*long term – last/likely to last 12 months or for the rest of their life
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CLAIMS PROCEDURE:*Try to resolve the dispute internally following the ACAS Code on disciplinary and grievance
procedures
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EVIDENTIAL ISSUES – if above does not work, then move to evidential issues
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Then respondent to provide adequate explanation
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*Comparators and statistics used in ET*Other acts*EO policy – these things should not happen*Questionnaire – send this to the company for
explanation*Remarks/prejudice and witnesses*Medical evidence for disability in particular
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*Compensation – loss of earnings, injury to feelings, psychiatric damage, aggravated damages (company prolonged the situation by not dealing with the
problem)*Injury to feelings – Vento case guidelines (Da’Bell v NSPCC affirmed the guidelines, taking into account inflation: minor cases: £500-£6k, more serious: £6k£18k, most serious: £18k-£30k
DIRECT DISCRIMINATION*s13 EA 2010 direct – less favourable treatment (needs to be a comparator), because of (establishing casual link, which can be difficult)
protected characteristic (which one?)*Noon v North West Health Authority (1988) –Dr had superior qualifications/experience
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*Direct discrim also covers the perception of particular group or association discrim or person’s characterestic, such as with sexual
orientation, but this can be applied to other protected characteristics
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*BUT direct discrim permitted if can show
occupational requirement eg casting for acting jobs, refuge for female victim’s of domestic violence
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VICTIMISATION *s27 EA 10 – can be victimized to any one of
the protected characteristics
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The detriment does not
have to be financial
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Nagarajan v LRT
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Claimant just needs to establish they suffered a detriment
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*They need to take steps to ensure employee can work in that particular environment
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Provision, criteria and practice (PCP) in place/physical feature/ lack of auxiliary aid; substantial disadvantage; such steps as is
reasonable; to avoid disadvantage/provide auxiliary aid
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*BUT defence if don’t know/could not reasonably
be expected to know P is disabled
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*Mandla v Dowell Lee CF with Panesar v Nestle*London Underground v Edwards (No 2) *British Airways v Starmer (female pilot
wanting to reduce working hrs for childcare = indirect discrimination, as predominantly women who have childcare issues and want to work part-time basis)
HARASSMENT *s26 EA 10 – unwanted conduct (obvious risk or victim made clear – subject and objective element), re protected characteristic, purpose or effect
(jokes?), violating dignity/intimidating environment (objective or subjective?)*Harassment is now a stand-alone claim - Strathclyde Regional Council v Porcelli (1986) –
s26(2)and (3) EA 10
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English v Thomas Sanderson Blinds
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Addressed in s109 EA 10
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It is an important part of UK labour law, protecting employees whose business is being transferred to another business
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*Companies can buy a whole company (share sell) or a particular part(s) of a
company
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1
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2
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3
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4
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EC
law: The Acquired Rights Directive
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When that happens, because the company is still the same company, all contractual obligations stay the same
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The regulations also apply in some cases for work transferred to contractors
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*TUPE also covers when selling part of a business
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*TUPE is not
welcomed by businesses
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WHEN DOES TUPE APPLY?Does TUPE apply to your client? Reg 2(1): applies only to employees ‘any individual who works for another person, whether under a
contract of service or apprenticeship or otherwise’ *Relevant transfer: s3(1)(a) – do we have an undertaking?*Economic entity, which retains its identity, which means
when there has been a transfer of significant tangible or intangible assets, or a major part of the workforce - Suzen v Gebaudereinigung GmbH
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*Spijkers shopping list (from Spijkers v Gebrroeders Benedik Abattoir 1986) looks at whether it being transferred
as a going concern
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*There was a discussion as to whether Suzen looking at the economic
entity is most important or Spikers re how much is being retained
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*But see: ECM (Vehicle Delivery Service) Ltd 1999
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*CA: Rejected the argument (from
Suzen) that where all that remained was the activity, then there could not be a transfer
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*Can take into account reasons
why employees were not transferred
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*See ADI (UK) Ltd v Willer *See also
RCO Support Services and Aintree Hosiptal Trust v UNISON– rejection of Suzen
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Effectively it covers 3 different types of arrangements: outsourcing, subsequent outsourcing and
insourcing
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*Service Provision Change will be a
relevant transfer provided that there is an organised grouping of employees (Reg3(3)(a)(i)); essentially dedicated to that job and none of exceptions apply
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*Imagine a company that has in-house
cleaners
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The new company that takes over the work may employ the same cleaners
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// If any staff are dismissed by either employer for a reason connected with the new arrangement this will automatically be deemed an UD and the new employer
will be liable for any statutory claims arising as a result
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Has there been a transfer for the purposes of TUPE 2006? If no – if dismissed consider claims for statutory UD
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TRANSFERS Automatic Transfer Principle – Reg
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3 the transfer does not terminate employment
contracts
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4(1) provides that employment contracts 'shall have effect after the transfer as if originally made between the person so employed and the
transferee'
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Employees transfer on same terms and conditions
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WHICH EMPLOYEES ARE AFFECTED? Employees
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*it also points out that to fall within the protection of TUPE, you had to have an
employment contract "immediately before the transfer", r
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This was the issue in Litster v Forth Dry Dock, where a relaxed and purposive interpretation was given
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*‘so long as they are assigned to the business/part transferred’ - Question of fact – case by case basis –
mathematical approach (work out % time spent) and holistic approach (overall)
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Temporary assignments not covered
- Botzen v Rotterdamsche Droogdok Maatshappij BV – they were assigned in a general capacity
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Effect of an objection: the employee’s contract of employment and the rights, powers, duties, liabilities under or in
connection with them will not transfer to the transferee
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*where an employee objects to the change in the identity of the employer, then r
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He is to be treated as if his contract terminated when the
transfer takes place, but that he is not dismissed (unless of course the employer actually does dismiss him), r
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This issue came up in Wilson v St Helens Borough
Council
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4 (9): Non repudiatory breach with notice Statutory right: Resigns in circumstances where a transfer would involve a substantial change in working
conditions to their detriment – liability transfers to the transferee
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4(11): where the contract is varied detrimentally on transfer, employees can treat themselves as
dismissed by the employer
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Also the Tapere case ruled on the interpretation of mobility clauses, and where a
relevant transfer involves a substantial change in working conditions which is to the employee’s material detriment, held that "detriment" should be considered using the
subjective approach which applies in discrimination law
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HOW IS TRANSFEREE AFFECTED? *Rights, duties,
powers, liabilities, anything done or not done, transfers from to transferee, BUT not criminal liability
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4(4) it says that variations of employment terms 'shall be void' if the main
reason is the transfer itself or 'a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce
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4(5) it
is emphasised that employees and employers can agree to change terms where this is not the case
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Employees
can cherry pick to get the best deal
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Daddys Dance Hall– ECJ: a variation is ineffective if the transfer itself is the
reason for the variation
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CAN: Change t and cs for an ETO reason entailing changes in the workforce OR For an
unconnected reason
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HAS EMPLOYEE BEEN DISMISSED BEFORE THE RELEVANT FACTOR? Eligibility for unfair dismissal(Burden on claimant)
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If yes: Reg 7(1) dismissal will be automatically unfair dismissal if dismissed because of the transfer or a reason connected with the transfer
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Claim will be against the transferor
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What is certainly not included in this concept is dismissals
simply to improve the price of the company before its sale
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e
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98(2)(c))
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An economic reason is a reason relating to profitably or market performance of the business; technical reason relates to nature of the equipment or production processes;
organisational – management or structure of the business)
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Delabole Slate Co Ltd v Berriman– changes in the numbers employed or the functions performed by employees, not just the new people coming in in isolation
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Transferor will have no defence
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Procedural fairness: Iceland Frozen Foods
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135 ERA 1996
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This means an unfair dismissal claim can be brought against either party
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See further:
Dynamex Friction Ltd v Amicus*ETO reason defence unsuccessful - Wheeler v Patel & Golding Group/ Spaceright Europe v Baillavoine
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In contrast *ETO reason defence successful- Honeycombe 78 Ltd v Cummins (dismissed some of the staff as did not have the £ to pay them – cost
cutting measure)LEGAL CONSEQUENCES OF A TRANSFER – duty to inform (if contract stays the same) and consult (more significant changes)
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Specific information to be provided (reg 13(2))
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*Transferor to provide transferee with: Employee Liability Information, In Writing,
At least 2wks before the transfer
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For transferee – failure to supply ELI: declaration; compensation (min £500 per employee)
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Due diligence is very important ie finding out what you are
buying/getting
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This gives employees increased certainty
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This has been particularly
highlighted in connection with law firms
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Under the new rules, if a client decides to source their legal work from a different provider, the legal team from the old provider would be entitled to transfer to the new
provider under the same terms and conditions as before; if the new provider were to object, the new employees would be entitled to sue for unfair dismissal
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An exemption for professional services firms had apparently been mooted by the government but was eventually
ruled out
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In certain sectors, particularly advertising, there was strong
support for the idea of introducing an exemption
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// There are potential problems for employees as well
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But they have no option to seek redundancy from their current employer, even though their post is effectively being deleted
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// Ultimately, whether TUPE applies in any situation depends on all relevant circumstances, and in the event of a dispute this
can only be settled at an employment tribunal or higher court
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HEALTH AND SAFETY; VICARIOUS LIABILITY - *Employer will be liable for the acts committed by the employee in the course of his employment
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*Liability for independent contractors is more complex -Biffa Waste Services Ltd v Maschinenfabric GmbH *Modern
test, see Lister v Hesley Hall Ltd/ Fennelly v Connex South Eastern Ltd
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HARASSMENT AND
BULLYING *Protection from Harassment Act 1997 (civil liability for tort s
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26 Equality Act 2010: harassment prohibited generally
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As such Health and Safety Executive (HSE) was formed
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Covers all employees, except domestic workers
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Covers non-employees affected by activities carried out in
workplace
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However, Act creates criminal sanctions
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*The HSE is responsible along with enforcement officers, for enforcement and prosecutions under the
Act
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*Improvement notices: S21: inspection of opinion that person
contravening statutory provision, or has done so and likely to be repeated, then can give an Improvement Notice to remedy contravention – cannot be less than 21
days
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*Can take effect immediately or after a certain period
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*Withdrawal of
notice: A inspector may be withdrawn at anytime before expiry of 21 days or a deferred prohibition notice
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*Effect on notice: Improvement notice suspended or withdrawn; Prohibition notice only suspended if ET directs and only
for a limited time
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Breach of a statutory duty; 2
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Absence of risk of any
danger; and 4
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1
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Does not matter that there has been no accidents
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2
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The ET will also take into account reputation of company
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Absence of risk of any danger - South Surbiton Co-operative Society v Wilcox ((even though the risk was
minimal it was an absolute liability, so had to fix the tile)/CF Associate Dairies Ltd v Hartley4
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*TC Harrison Ltd (Newcastle-upon-Lyme) Ltd v Ramsey*Financial difficulties are no defence – otherwise a firm could have an advantage over competitors,
keeping down prices and undercutting them, but not following requirements
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* Factors to consider: efforts to remedy breach; strength of
appeal; was breach trivial (South Surbiton Co-Operative Society)*Failure to comply with order - Criminal offence – no defence that employer took reasonable
practicable steps to comply with order
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ET only applies
to civil matters
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*Failure = contempt of court
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*Consequences for breach: Up to 6 months custodial/ £20,000 fine (Magistrates Court)/ Up to 2
yrs/ unlimited fine (Crown Court)
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But see also General Cleaning Contractors Ltd v Christmas
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*Provide and maintain plant and systems of work; Safety
when using, storing, transport items, etc; Training, instruction and supervision of employees; Keep premises in a safe condition; Safe premises with adequate facilities and
arrangements for welfare at work
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2(3), only applies to employers with 5 or more employees
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Needs to be brought to attention of all e’yees, but no guidance as to how
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g
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Non-English speakers/readers should be informed in a different way
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*Extent of duty owed to non-employees - S
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If there is a potential hazard must provide info to: Visitors, Employees, Visitors
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‘so far as is reasonably practicable’ (so) are not exposed to risks to their health and safety
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7 Duties at work: Reasonable care of H&S of
himself and others; To co-operate with e’yer re H&S duties
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8 Do not interfere with H&S provisions
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RIGHTS OF
EMPLOYEES (ERA 1996) - S
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* S
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KEY EUROPEAN REGULATIONS: ‘Six Pack’ Regulations came into force in 1993
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PENALTY OF BREACH - *Individual
or organisations can be charged and convicted
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*Armour v Skeen: failure of
senior management in H&S policy implementation
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*Reverse burden of proof - Under s
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*Balance of probabilities: civil standard
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Then burden passes to accused that they have done all which was reasonably
practicable to avoid risk
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*An offence
requires: Manages or organises its activities which causes death, in a manner which amounts to a gross breach of duty of care; Way in which senior managers manage or
organise substantial activities must be a substantial element of the breach; A breach occurs when it falls below what can reasonably be expected or organisation in the
circumstances
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This is rare!
TRADE UNIONS: *Defined by s
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*One of first issues was whether TU had
legal personality? This is resolved by statute
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10 TULR(C)A states that a TU is not a body corporate
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* No legal personality and so property will be held by trustees on trust
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*Another are is whether they can be sued for defamation? According to Electrical, Electronic Telecommunications and Plumbing Union v Times Newspapers,
they can not, as people are speaking as individuals
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2 TULR(C)A
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Procedure to becoming listed: Fee, Copy of rules, List of officers, Address of head office, Details and name
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*A TU to receive a certificate must be independent: *It is not under the domination/control of e’yer groups or associations; Not liable for interference by
above groups because of financial/ material support, which would tend to give control
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Possible to appeal against refusal
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Many have received certificates
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Refused: Blue Circle Staff Association v Certification Officer (clearly evident that staff association had been formed by
management pressure ie no independent)
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Refused: Squibb UK Staff Association v
Certification Officer*Advantages of cert of i: Member has a right not to suffer detriment or be dismissed because of TU membership, activities or using TU services
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110 ERA 1996) * Negotiate to remove right of e’yees to strike (s
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203(sA) ERA 1996
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RECOGNITION BY THE EmR*The employer can chose to recognise a TU
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Balance is still very much
in the emr favour
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* Right for members/ officials to receive time off (pay) for duties/activities *Protection from detriment and dismissal
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NUTGW v Charles Ingram & Co Ltd established five criteria:Question of fact & law; Recognition
requires mutuality; Express or implied agreement for recognition; If implied must be clear & unequivocal acts/conduct over time; Can be partial recognition for some
purposes
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*Does not apply where e’yer employees less than 21 e’yees
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This is complicated procedure, so may
be better for emr to enter voluntary recognition, so as not to effect workforce morale
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Areas covered by CB
include:*Voluntary agreement – s178 applies - Wide type of matters (inc): t & cs; Termination/suspension; Allocation of hours; Discipline; Physical condition of
workplace; Pay, hours & holidays
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*s
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*legal effect of CB - Governed by ss
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Establishes procedures to be used in a dispute
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Presumption that
agreement is not legally enforceable unless made in writing & contains provision stating intention agreement is legally enforcable
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An employer can sue a Trade Union
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Limited protection afforded by statute with govern strike action
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*Also there could be criminal offence:Criminal conspiracy
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*Statutory
protection - Statute protects TU when they are pursuing legitimate objectives
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TU
only protected if definition applies
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Definition: a dispute between workers and employers which relates to:
T&Cs/ physical conditions of workplace; Engagement/non-engagement, termination or suspension of workers; Allocation of work or duties of workers; Discipline matters;
Membership/non-membership of a TU; Facilities for TU officials; Machinery for consultation or negotiations
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*b) ‘in contemplation of’ - Act needs to be in contemplation of a trade dispute
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*’in furtherance of’
- It must be done in furtherance of that trade dispute and not for another reason
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*Effect of statutory protection - S
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*BUT Restrictions on statutory protection: S
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Purpose is to strengthen TU positions
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219 apply to forcing
an employer to recognise a TU
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*Effect of loss of statutory immunity: TU is liable in
tort to the employer
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219
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* Limitation on damages per claim depending
on number of members – maximum £250,000
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There is no legal requirement for a secret ballot (support of
members), but the effect of no ballot: Industrial action authorised/endorsed by TU will not be protected by s
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TU liable in tort; Members & public who are effected can
apply for injunction to prevent strike; and Employees who strike lose protection of s
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This would be an official unprotected industrial action
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226 must be met
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Send sample voting paper to e’yer 3 days before ballot
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All members who TU believes will be induced to strike must be balloted
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Separate workplace ballots and requirement that majority of workers vote in favour
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Voting matters must relate to a trade dispute
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Details of votes must be given to members and
employers
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Industrial action which takes place afterwards will not be protected
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S
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TU free to adopt own rules if within statutory framework
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*Taking disciplinary
action against a member: Power to discipline/expel/impose fines must be contained in rules
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*TU cannot oust the jurisdiction of the courts
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* Expelled member can seek declaration, injunction and damages from the courts
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Failure to properly advise/submit claim at ET will see TU liable
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This covers payment of strike money not
contained in rules and imposing a levy whose purpose is ultra vires
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TU GOVERNANCE*Executive Committee - Governed by s
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Elected by a ballot every 5 years
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*Accounts and records:
Duty to keep accounts and records s
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* An annual financial statement must be sent to all members
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*It is like a trust
system
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* S
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* Allows for removal of trustees
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*Legal for TU to have a political fund and pursue political
objects under ss
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Trade Union Act 1913
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*Members can contribute to fund but no other TU assets can be
added
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*Fund can be used to finance political parties, support candidates, literature and pay for conferences
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TU could support Conservatives or Liberal Democrats
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24 TULR(C)A stipulates this requirement
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24A); Limited disclosure: consent, required by certification
officer, and investigation a crime
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This might be included in their rules
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*Limits on restricting membership: Cannot exclude membership or arbitrary and unreasonable grounds
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*S
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TU MEMBERSHIP RIGHTS:*Access to employment; Inducement relating to TU membership or activities; Action short of dismissal; Time off work for trade union
duties; Time off work for trade union activities; Dismissal on grounds of trade union activities/ membership; Dismissal in connection with industrial action
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137(1) *When a person will be regarded as having refused employment: S
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*A claim can then be made to the Employment Tribunal
within 3 months of the act complained of
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137 prevents closed shops within the UK
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An
investigation by the Information Commissioner led to the Employment Relations Act 1999 (Blacklists) Regulations 2010
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It should be a free choice to join a union
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146 worker protected from detriment/deliberate failure to
act by employer, if for purpose of: Deterrence/penalising because of membership; Preventing/deterring taking part in activities at appropriate time, or penalising;
Preventing/deterring/or penalising use of TU services at appropriate time; Compulsion to join a TU
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*Need to show that action taken against worker as an individual
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*Time off work for TU duties:
S
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*Time of work for
TU activities: S
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The employer does not have to pay the employee for time off in relation to TU activities
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152 states that a
dismissal of an employee will be unfair if the reason was because the employee: Is/proposes to become a member of an independent TU; Proposes to/has taken part in TU
activities/sought services at an appropriate time ; If dismissed because of refusal to join a TU or a particular TU; Made use of TU services at an appropriate time
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Emee can not be dismissed if they have followed correct procedure re strike action
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Must follow fair procedure; *TU supports industrial action but unprotected
(s219 excludes these)
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This is worse case for members, as a lot of time it transpires after strike that what they were doing was
unprotected, and subsequently they are lawfully dismissed*; official protected strike and the protection afforded to members under s238A
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ET: LEGAL FRAMEWORK*Governed by the Employment Tribunals Act 1996*Constitution and procedure contained in the Employment Tribunals (Constitution and
Rules of Procedure) Regulations 2004*Statutory claims (such as unfair dismissal and discrimination) can only be brought at the ET*Contractual claims (e
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wrongful
dismissal) can be bought at both the ET (under £25,000) and the County Court
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*Extend time limit when not reasonably practical (out the country, postal strike) – UD, breach of contract, TUPE
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*NOT REASONABLE PRACTICABLE TEST: Cambridge & Peterborough Foundation NHS Trust v Crouchman/ Palmer v Southend0n-Sea BC/ Times Newspapers v O’Reagan; but see Union Cartage Co Ltd v Blunden
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COMMENCING PROCEEDINGS AND ACAS*Dispute arises *Try sort it out *Get advice *Send Claim to
tribunal office (claim not accepted if in complete, without merit, out of time, etc) * Claim accepted, sent to the R and conciliation starts
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Copies of completed ET3 sent to employee and ACAS
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If no response
received/response not accepted so default j’ment entered
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*After this within 26wks there is case management
directions and a hearing is held *a Further 4wks after this allows j’ment to be issued
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*Compromise Agreement: S203 ERA 1996: prevents the voluntary surrender of statutory rights
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*Unless: ACAS or a representative who has authority to negotiate; collective agreement; A compromise agreement
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*Disclosure: there is no automatic disclosure (to give up documents)
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*At tribunal, there is an Employment Judge and two lay members with employment law background
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*The parties usually state their cases each, then cross-examination, with finally each
giving a summation
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