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Archive for June, 2011

In this case a teacher was dismissed after allegations of indecency. The school reported the outcome of the disciplinary hearing to ISA, the Independent Safeguarding Authority, which had the power to place the teacher on a barred list to prevent him teaching in schools. The teacher challenged the refusal to allow him legal representation at the disciplinary hearing held by the school. The Supreme Court  held that there is no right under Article 6 of the ECHR to legal representation at a disciplinary hearing where dismissal could lead to a process capable of barring an individual from a profession, where the barring decision is sufficiently independent of the dismissal decision.

The caveat [see italics] is important and employers should be aware that where a decision in one set of proceedings impacts on another decision involving a person’s civil rights, then the right to a fair hearing [and by implication the right to legal representation at the disciplinary hearing] may be invoked.

Case reference: R (on the application of G) v The Governors of School X.

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A claim of indirect religious discrimination failed when an employer’s refusal to allow a Moslem employee leave from the work site for Friday midday prayers was held to be objectively justifiable. It is important to take the circumstances into account because this employer had made efforts to accommodate the religious belief. In this case, the employee had access to a prayer room on site and had been offered the chance to work shifts avoiding Fridays. The security firm (employer) concerned was committed by contract to provide a certain number of guards on the site at any time.  The case is Cherfi v G4S Security Services.

UK employment law distinguishes between direct and indirect discrimination and indirect discrimination is less clear cut than direct discrimination. Here claimant employees have to show that some provision, criterion or practice has been applied to them which in practice has the effect of putting people who share their protected characteristic (here being Moslem) at a disadvantage compared with others.

The EAT upheld the Tribunal’s judgment, finding that the Tribunal had carried out the necessary balancing exercise between the operational needs of the employer and the disadvantageous effect on the employee and was right to conclude there was no indirect discrimination.

The EAT said that it would have “taken as correct” the approach suggested in Woodcock v North Cumbria Primary Care Trust [2011] (another EAT case), that as long as a policy is proportionate, costs alone might justify that policy.

However, employers should consider all the factors in context before deciding to discriminate as the outcome could be expensive!

‘Religious belief’ includes for example Christianity, Islam, Judaism, Rastafarianism, Sikhism, Zoroastrianism and denominations or sects such as Methodism within Christianity and Sunni within Islam. It also covers philosophical beliefs such as humanism and atheism for example. Other philosophical beliefs may be protected if they meet certain characteristics, for example a belief in the importance of climate change. However a belief in white racial supremacy would not be protected because it is not compatible with human dignity and does not respect the rights of others. Such a belief would not meet the criteria laid down by the courts.

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Whether or not an employee can rely on a pay rise awarded under a collective agreement agreed ‘after’ a TUPE transfer takes place is still up in the air. The Supreme Court has declined to rule on the point and the question has been referred to the CJEC. (Parkwood Leisure Ltd v Alemo-Herron & Ors)

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Public sector workers back mass strike over pensions. Up to 750,000 public sector workers will hold a co-ordinated strike later this month after members of a third major union backed industrial action. The TUC and Unison are likely to hold ballots and expect it to become a major dispute with long term industrial action accross our public services.

The strikes are in protest at proposed changes to public sector pensions. Dave Prentis of Unison said there had been hardly any real progress and he thought his members would vote for strike action if a ballot was called

In order to try to reduce the rising cost of public sector pensions, the government is seeking a 3% increase in employee pension contributions, which amounts to a doubling for many public sector staff.

Unions say that plans under discussion also include reducing pension benefits and expecting staff to work for longer.

But the government said public sector workers would continue to get a guaranteed pension level – something, it said, “very few private sector employers still offer”.

More from the BBC.

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Following a dispute about Keiron Fallon’s decision to switch horses for the Epsom Derby last weekend, the Court of Appeal considered a racehorse owner’s appeal against the refusal to grant him an injunction in order to prevent Fallon riding a favourite from another stable. The Court of Appeal was not impressed by what it referred to as Fallon’s “cynical disregard of a contract'” that he recently signed to prevent him doing that very thing.

The earlier decision in the High Court to allow the race to go ahead rather than issue an injunction was overruled and the owner Mr Araci was successful. In the final analysis, neither horse won on the day… but that may have been different if the injunction had not been granted! Isn’t this the whole point of restrictive covenants?

Argument before the Court of Appeal centred on whether or not it would be “oppressive to the defendant or cause him particular hardship” if the injunction were granted.  The High Court, in its discretion, had found in favour of Kieron Fallon and had also found that damages would be an adequate remedy. The Court of Appeal did not agreen and decided that it would be a complex matter to settle the damages if Fallon were allowed to ride a competitor’s horse and that where there is a clear breach of a covenant which is designed to prevent a person from doing something he or she has promised not to do, there must be special circumstances such as restraint of trade contrary to public policy, before the court will exercise its discretion to refuse an injunction.

The Court of Appeal decision seems completely logical and may leave some commentators wondering how it could ever have been decided otherwise. It is worth noting that the legal costs are likely to be considerable in these cases and although employers often incorporate restrictive covenants in their employment contracts as a ‘cover-all’ they may not be worth the paper they are written on if the terms are unclear, the employee has casually or unwillingly agreed to be bound by the terms and the effect of the restriction would in practice cause the employee hardship.

For those reasons it is good practice to make such covenants as specific as possible to the individual and the circumstances concerned, as was the case here, and to review them regularly to ensure they remain relevant. General statements, casually dished out to all and sundry are less easily enforced.

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The Transnational Information and Consultation of Employees (Amendment) Regulations 2010 are in force from 5th June 2011 and 1st October 2011.

The original EC Works Council Directive of 1994 required Member States to introduce laws requiring large scale  transnational employers  (1000 workers and over) to inform and consult with workers on a wide range of matters. In the UK this has been achieved by the Transnational Information and Consultation of Employees Regulations 1999, SI 1999/3323 . Another version, Directive 2009/38/EC was passed on 6th May 2009 which requires changes to be made to the 1999 regulations by 5th June 2011.  These changes are now being implemented.

The Regulations:

  •     introduce new obligations on central management on the way that information and consultation should take place in EWCs;
  •     define more clearly what constitutes a transnational issue which EWCs are entitled to consider;
  •     require that EWCs are adapted following significant structural changes to the company to ensure that all employees are represented (the ‘adaptation clause’);
  •     create a new right for members of EWCs and Special Negotiating Bodies to receive necessary training;
  •     create an obligation for the central management to provide the EWC with the means required to fulfil its duties
  •     provide for a link to be established between consultations at national level on issues where national employee representation bodies are entitled to be consulted and related consultations with the EWC where issues related to transnational matters;
  •     increase the maximum penalty from £75,000 to £100,000 that can be awarded for a breach of  the Regulations
  •     establish the Central Arbitration Committee (CAC) as the tribunal to hear the majority of complaints brought in Great Britain.

The full Regulations can be found at the goverment website.

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New advisory fuel rates apply to all journeys on or after 1st June 2011. For one month, employers may use either the previous or new current rates, as they choose. Employers may therefore make or require supplementary payments if they so wish, but are under no obligation to do either.

The previous “advisory fuel rates” for company cars were set to apply from 1st March 2011 (eg 13p per mile for a petrol engined car of 1400 cc or less up to 21p per mile for a petrol engined car of 2000 cc or more).

The rates are now increased further, from 1st June 2011 (eg 15p per mile for a petrol engined car of 1400 cc or less up to 26p per mile for a petrol engined car of 2000 cc or more).

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