General News, Articles and Information from The POA North of the Border:


Levy & McRae Newsbrief: January 2014

Justifying Lower Severance Payments for Younger Employees

Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195, CA.

The comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position, in all respects, as the complainant, save only that he or she is not a member of the protected class. For the purposes of the comparative exercise, the relevant circumstances must be the same, or not materially different. On this basis, the Court of Appeal has held that, in the case of alleged age discrimination, it was wrong to reject a comparison as not being valid, where any difference in circumstances related to the difference in age.



Looking Back on Employment Law in 2013

The Government’s stated aim in employment law is to remove regulatory burdens on business (the “Red Tape Challenge”) and barriers to a “flexible, effective and fair” labour market. The result has been a spate of new and amended legislation in 2013.



Employers Should Not Blindly Adopt an Occupational Health Opinion That an Employee is Not Disabled

The Court of Appeal has held that an employer was wrong to have unthinkingly followed an occupational health adviser’s opinion that an employee was not disabled. The adviser had stated, without explanation, that the employee, who had been signed off work for depression caused by work-related stress, was not “covered” by the disability discrimination legislation. The employer argued that because of this statement, it could not have had actual or constructive knowledge that the employee was in fact disabled. The employer therefore believed that this was sufficient to avoid the obligation to make reasonable adjustments.



Dismissal of School Caretaker for Historical Unproven Abuse Allegations Was Unfair

The EAT has upheld an employment tribunal’s decision that the dismissal of a school caretaker in response to unproven allegations of historical sex abuse was unfair. The school had been informed of the allegations by the police, who were investigating them, but at the time of the caretaker’s dismissal, no criminal charges had been brought. The school governors decided to dismiss the caretaker on the basis that trust and confidence had broken down to the point where it was irreparable. It was felt that the matter could seriously damage the confidence that parents and public had in the school.



Agency Worker Regulations Do Not Cover Workers Engaged Indefinitely

In Moran and ors v Ideal Cleaning Services Ltd and anor the EAT has held that the concept of ‘temporary’ in the Agency Workers Regulations 2010 SI 2010/93 and the EU Temporary Agency Workers Directive (No.2008/104) means ‘not permanent’. Thus, an employment judge had been right to find that agency workers did not come within the scope of the Regulations where their agency arrangement was on an indefinite and not a temporary basis.



New TUPE Implementation Date

The Department for Business, Innovation and Skills has published its seventh statement of new regulation.



Equal Pay: First Consideration by EAT Under Equality Act 2010

Does an equal pay claim have to establish either direct or indirect discrimination?

Not always, if the reasons provided by the employer for inequality of pay are not accepted by the Claimant, according to the decision in Calmac Ferries v Wallace.



Disciplinary Hearings and High Court Injunctions

Can a court intervene to restrain an employer from requiring an employee to face a charge of potential gross misconduct at a disciplinary hearing if the conduct complained of is not sufficiently serious to support such a finding?



Consultation on Use of Zero-Hours Contracts Published

The Government has published a consultation on the use of zero-hours contracts. Although the Government does not propose an outright ban of the widely criticised contracts, one possible action it identifies is a ban on ‘exclusivity clauses’, which prevent workers working for more than one employer, in contracts that offer no guarantee of work. The Government states that, at this stage, it has no preferred options. The consultation closes on 13 March 2014.



Labour Party Member’s Belief in “Democratic Socialism” Was a Philosophical Belief Under Equality Act 2010

In Olivier v Department of Work and Pensions ET/1701407/2013, an employment tribunal considered, as a preliminary issue, whether an employee’s belief in “democratic socialism” could amount to a philosophical belief for the purpose of bringing a discrimination claim.



High Court Strikes Out Court Proceedings as Abuse of Process After Withdrawal of Similar Tribunal Claims

The claimant commenced nine claims in the employment tribunal and also issued proceedings in the High Court arising from the same facts. In an earlier application (Vaughan v London Borough of Lewisham and others [2013] EWHC 795 (QB)), Sharp J (as she then was) stayed the court proceedings to avoid a multiplicity of claims. In a tactical move, the claimant subsequently withdrew the outstanding tribunals claims and obtained an order lifting the stay. The defendants applied for the court claims to be struck out as an abuse of process.



Dismissal: Whether Head Teacher Dismissed

Can a letter from a governing body of a community school confirming that a decision had been taken to dismiss have the effect of giving notice to terminate the employment of a teacher employed at that school?



Unfair Dismissal: Relevance of Previous Warnings

Can an employment tribunal decide that it is within the range of reasonable responses for an employer to dismiss an employee taking into account a final written warning when an appeal against it remained outstanding, without hearing evidence regarding the imposition of the warning?



Travel Disruption Due to Bad Weather

When the weather makes it difficult to travel, employers and employees should consider how this could impact on the workplace.