Employment Contracts and Rights in Business

BUSINESS CONTRACTS EMPLOYING



Contract of service- employee contract



Contract for service- contractors contract



Do they have to do the work themselves?



Can someone tell them at any time what to

do, where to carry out the work or when and

how to do it?



Can they work a set amount of hours?



Can someone move them from task to task?



Are they paid by the hour, week, or month?



Can they get overtime pay or bonus payment?



Can they hire someone to do the work or engage

helpers at their own expense?



Do they risk their own money?



Do they provide the main items of equipment they

need to do their job, not just the small tools that

many employees provide for themselves?



Do they agree to do a job for a fixed price regardless

of how long the job may take?



Can they decide what work to do, how and when to

do the work and where to provide the services?



Do they regularly work for a number of different

people?



Do they have to correct unsatisfactory work in their

own time and at their own.



Express terms

◦

Can arise informally by word of mouth but should be

provided in writing within two months of employment

(s1 of the Employment Rights Act 1996 (ERA 1996));

failure to provide this does not invalidate the contract



Implied terms

◦

Custom and practice;

◦

Works and staff rules

◦

Collective agreements

◦

Statute

◦

Common law rights and duties of employers and

employee



Employment Particulars



Wages and Payment



Disclosure and Detriment



Sunday’s betting Time off and suspensions



Child care



Dismissals notice and reasons

◦

Unfair dismissals

◦

Redundancy Payment

◦

Employer Insolvency



Parties’ names



Date when the employment began



Note of any disciplinary and grievance

procedures



Full particulars of:

◦

pay entitlement; hours of work; holiday entitlement;

sick leave; pension rights; length of notice to be

given to and by the employer; title of the

employee’s job and job description; length or

duration of employment; place where the employee

is expected to work



Custom and practice-



Work and staff rules

◦

Not necessarily terms of the contract but failure to

obey these rules is likely to be treated as evidence

of failure to obey reasonable orders



Collective agreements

◦

An agreement between union and employer may

expressly or impliedly form part of employment

contract



Statute

◦

Legislations increasingly restricts employers’

freedom to impose terms of their choice on

employees



Terms implied at common law

◦

Common law imposes duties on both employer and

employee (Tort)

3.

Some 

Terms implied by statute.

The employee should:



Do their job with reasonable skill and care



Reasonable standards depends the status of the

employee in the organisation



Obey all reasonable orders



So long as it does not require the employee to do

something outside of the job description, unless

stipulated in the employee contract



There is no endangerment to the personal safety or

liberty of the employee



Does not break the law



Act in good faith towards the employer



Not to act in conflict with employee interest



Not to reveal confidential information



To account for all profits

It is implied in the contract of employment that the employer

will:



Pay the employee as agreed by the contract;

◦

Most employees are entitled to a minimum wage under the

Minimum wage Act 1999 (amended in 2010)

◦

Obligation to pay employee exists whether or not the employer

has provided work



Not undermine the trust and confidence of the employee

◦

Several things fall under this obligation including failure to

provide support to employees at busy times, criticising a

supervisor or superior before his subordinates, or failure to

protect the employee against harassment

◦

Breach of this duty may be grounds for a claim and the employee

can leave without notice



Provide the employee with safe working conditions

◦

Health and safety must be observed in the workplace

◦

Liability for breach of this duty is imposed through the law of tort

at both common law and statute

Two possible rights of action in tort may be

open to an employee injured at work:



An action for breach of the employer’s

common law duty of care



An action for the breach of statutory duty

◦

Eg. Health and Safety

◦

Stress at Work

There are three interlinked obligations:

1.

To provide competent staff

2.

To provide safe premises (Knowles v

Liverpool CC (1993))

3.

To provide a safe system of work (Walker v

Northumberland County Council, 1995)



Tort – negligence – duty of care – overworked schoolteacher –

duty owed when problem known or should have been known]



D the council which employed C a 52 year old schoolteacher as

head of mathematics in a comprehensive school. He worked long

hours about which he complained of ‘work overload’. Following a

period of sickness because he was ‘overstressed/depression’ he

suffered a mental breakdown at school.

Held

: The school owed C a duty of care, and their breach of that

caused the claimant’s nervous breakdown. The employer’s duty

to take some action arose when the claimant saw separately each

member of the school’s senior management team. It continued

so long as nothing was done to help the claimant. The senior

management team should have made inquiries about his

problems and seen what they could have done to ease them,

instead of brushing him off unsympathetically or sympathising

but simply telling him to prioritise his work.

Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968]

The Health and Safety Act 1974 covers specific

areas of workplace safety. It is important in three

respects:

1.

It imposed general duties on both employers

and employees to maintain health and safety;

2.

It created the Health and Safety Executive, with

powers to enforce the legislation;

3.

It gave wide powers to the Department of Works

and Pensions to make detailed legally binding

regulations to cover particular hazards



Equal Pay Act 1970 amended in 1983



Sex Discrimination Act 1975



Race Relations Act 1976 amended 2000



Disability Discrimination Act 1995 amended

2003



At present the minimum hourly rate is set at

£5.93. Workers aged 18 or over but who have

not reached 22 are entitled to a minimum

hourly rate of £4.92. Workers who are above

compulsory school age but have not reached

their 18th birthday are entitled to £3.64/

hour.



Required that women be paid the same rate

as any man in the workplace who is doing

◦

The same or similar work;

◦

Work which is rated as equivalent work by a job

evaluation scheme

◦

Work of equal value



It is illegal to discriminate directly or indirectly against persons on

the grounds of their sex or marital status. It includes:

◦

Direct discrimination 

s1(1)(a) is if a woman is treated on the

grounds of her sex less favourably than a man

◦

Sexual harassment-

not specifically identified in the SDA 1975; but

a complainant could succeed on proof

◦

Indirect discrimination

-amended 2001 by the Sex Discrimination

and Burden of Proof) Regulation: s (2)(b): concerned with covert

discrimination e.g. height restriction, that excludes the majority of

a sex.

◦

Discrimination on the grounds of marital status:

 s 3-  a person

can not be treated differently because of their marital status.

◦

Discrimination on grounds of victimisation

: s 4 (1)- illegal to treat

someone differently because they have asserted their rights under

any Act

Discrimination can come into play in relations

to employment in some of the following

ways:



Advertising jobs



Interviewing and selection procedures



Training



Promotion



Other facilities available to employees ( like

canteen, social club or medical services)



Membership of trade unions and professional

bodies

Certain qualities such as strength and stamina are not

treated as sex specific. The burden of proving that

the GOQ lies with the employer and is possible as

follows:



The essential nature of the job- 

i.e. a man may need

to play a male role in a play; or a male model for a

nude exhibition



Issues of privacy

: lavatory or locker room attendants



Lack of facilities- if the job requires workers to live

on the premises and facilities can only be provided

for one sex



Single-sex hospitals or prisons- employing persons

of one sex to care for patients etc.



Pregnancy and Parental responsibility-

protected under the SDA 1975; the Equal

Treatment Directive (76/207/EEC) and the

Pregnancy Workers Directive (92/85/EC) and

ERA 1999



Pensions

 – EPA 1970, SDA 1975, Pensions Act

1995 ss 62-66



Gender reassignment- 

Equal Treatment

Directive(76/207/EEC); SDA 1975 amended

to protect transsexuals

Under the 

Maternity and Parental Leave 

(Amendment)

Regulations 2002 

and the 

Work and Families Act 2006 

all

pregnant employees are entitled to paid time off for

antenatal care. In addition, pregnant employees are entitled

to 52 weeks’ maternity leave. This consists of 26 weeks’

Ordinary Maternity Leave and 26 weeks’ Additional Maternity

Leave.



Paternity Leave

: 

The Employment Act 2002 

provides a

right for the partner of the mother or adopter leave to take

up to two weeks paternity leave. The partner could be the

father, or someone (either female or male) who lives in an

‘enduring family relationship’ with the mother or adopter.

In order to be eligible for the leave, the partner must have

been employed for not less than 26 weeks prior to the

14th week before the birth or adoption.

Eligible employees who have at 

least 26 weeks 

of continuous

service at the time can apply:

Under the Employment Act 2002  

(and more recently the

Flexible Working (Eligibility, Complaints and Remedies)

(Amendment) Regulations 2009),



employees with children currently under the age of 17, or

18 if disabled, have a right to request flexible working

arrangements.



Under the Flexible Working Regulations (2006)

, eligible

employees have the right to request flexible working to

care for an adult in need of care.



Employers can refuse

 but must 

give the reasons 

for refusal

in writing 

and show that they have 

seriously considered

the request 

by holding a meeting 

with the employee to

discuss this.



Working Time Regulations 1998 established

the basis for paid annual leave and the

amount of entitlement was increased by the

Working Time (Amendment) Regulations

2007



These Regulations increased the holiday

entitlement, originally to 4.8 weeks, with

effect from that date and have since

increased them to 

5.6 weeks

.

Part-time workers



 Under the 

Part-time Workers Regulations 

part-timers

must be treated no less favourably than their full-

time counterparts.

Sick pay



If an employee is sick for less than 4 days they are

not entitled to Statutory Sick Pay (SSP). If for more

than 4 days they are entitled provided they are not

excluded (e.g. over 65; pay is less than required to

make National Insurance Contributions; on short term

contract - 3 months or less; pregnant employees.

Sick Pay is recoverable from the Government.

Defines 

racial grounds 

as colour, race, nationality, ethnic or

national origin.



Direct discrimination

: treating someone unfavourably on racial

grounds



Indirect discrimination

: when a condition is imposed on

members of a racial group which is applied equally to people

who are not members of that group (forbidding long beard or

hair in the workplace directly discriminates against Sikhs; it can

be held if it is shown that this is for health and safety reasons or

other justifiable reason)



Racial harassment

:  this was not specifically defined but the RRA

(Amendment) Regulations  2003 in accordance with EU Race

Equality Directive (200/43/EC)



Discrimination by victimisation

: a person cannot be victimised

because they have asserted their rights



Discrimination in Employment

: covers all aspects of employment



It outlaws discriminatory practices in

recruitment, terms of employment, transfer

and training, employment benefits and

dismissal and other detrimental treatment.



Its provisions largely reflect those of the SDA

1975 and the RRA 1976 although indirect

discrimination is not covered under this Act.



Replaced by the Equality Act 2010

◦

The Disability Equality Duty in the DDA

continues to apply.

Disability discrimination – assessment of

disability – likelihood of disability recurring



M had suffered from psychological disorders

but recovered after medical treatment. M was

offered a job as a database assistant for the

College. When the College learned of M’s

medical history it withdrew the offer. M

brought a disability discrimination claim.



Review this case and discuss the legal issues

regarding M’s disability in respect of the

Disability Discrimination Act 1995



The employment tribunal accepted that M had a mental impairment but

held that she was not disabled within the meaning of section 1 of the

Disability Discrimination Act 1995, as the impairment did not have a

substantial and long-term adverse effect and there was no evidence that

the condition was likely to recur.



The EAT reversed the decision, stating that the tribunal ought to have

taken into account medical evidence between the date of the

discrimination and the hearing of the claim, which showed a relapse.



The College appealed on the basis that when considering whether the

effect of a medical condition was likely to recur the employer had to

base its decision on the circumstances existing at that date, and that

what actually happened after that date was not relevant to the tribunal’s

decision.



The Court of Appeal allowed the appeal. On the facts, there was no

evidence at the time of the decision that M’s condition was likely to

recur. The tribunal should only consider evidence available at the

relevant time.



The SDA 1975 offered no direct protection



Human rights legislation does under the European Convention on

Human Rights



The Employment Equalities Act (Sexual Orientation) Regulations

2007 (‘Sexual Orientation Regulations 2007’) under powers

conferred by the Equality Act 2006 makes it unlawful to discriminate

anyone because of their sexual orientation

Two genuine qualifications exists which may permit discrimination:

1.

Where the nature of the employment requires an employee to have

a specific sexual orientation

2.

Where the employment relates to an organised religion, the

doctrine of which requires a specific sexual orientation, or where

the discrimination is necessary to avoid conflict with the religion

of a significant number of the religion’s adherents.



The Employment Equality (Religion or Belief)

Regulations 2003 were introduced as a result of

implementation of the Equal Treatment Directive

of 2000



It is unlawful to discriminate directly or indirectly

on the grounds of religious belief, eg. uniform,

dress, or leave for the purpose of religious

observance



General occupational requirements protect those

organisations whose ethos is based on religion or

belief such as churches, mosques and religious

schools

◦

Eweida v British Airways pl

c [2009] IRLR 78

Eweida v British Airways pl

c [2009] IRLR 78

The individual who argues that she has been subjected

to indirect discrimination because a workplace rule

conflicts with her personal belief.



The claimant was a Christian who objected to BA's

policy of requiring jewellery to be worn concealed by

the uniform. There were exceptions for those whose

religions required them to wear items that could not

be so concealed.



She brought claims of direct and indirect

discrimination on grounds of religious belief, as well

as harassment discrimination.



All these claims failed. She appealed against

the finding of indirect discrimination only.

The Employment Tribunal had held that there

was no such discrimination because there

was no evidence that a group of Christians

were put at a particular religious

disadvantage when compared with non-

Christians. The EAT dismissed the appeal and

held that this was a cogent and justified

conclusion displaying no error of law.



in order for indirect discrimination contrary

to the 

Employment Equality (Religion or

Belief) Regulations 2003 SI 2003/1660

 to be

established, it must be possible to make

some general statements which would be true

about a religious group such that an

employer ought reasonably to be able to

appreciate that any particular provision may

have a disparate adverse impact on the

group.



The Employment Equality (Age) Discrimination Regulations

2006 (the Regulations) covered anyone who was working

under a contract personally against discrimination because of

their age.



However,



On 1st October 2010 the Equality Act 2010 came into force

to govern equality in the workplace. It replaces the Age

Discrimination Act and covers age as a protected

characteristic. If someone is treated less favourably in their

actual or potential place of work than others because of their

age, then age discrimination occurs.

◦

Recruitment:

 If you are within six months of the normal retirement

age at the time of your application for a job the employer is

entitled to reject your application on the grounds of your age

without this being age discrimination.

◦

Positive action:

 The Regulations permit the employer to

discriminate positively, provided the employer can justify this

◦

Statutory authority:

 If your employer can show that what was done

was done in order to comply with a requirement of any statutory

provision then the treatment will not be unlawful age

discrimination.

◦

Exception relating to certain benefits based on length of service: 

If

your length of service is less than 5 years then you will not be able

to complain that you have been the subject of age discrimination

in relation to the award of a differential rate of benefit compared

to another worker which is based on the fact that the other

worker’s length of service is longer than yours.

◦

Redundancy payments:

 The Regulations do not make it unlawful

to pay differing amounts of enhanced redundancy pay to

employees. 

Now Covers:



Age, disability, gender reassignment,

marriage and civil partnership, pregnancy and

maternity, race, religion or belief, sex, and

sexual orientation.



The Act introduces the concept of “protected

characteristics” which correlate to the existing

discrimination strands (with the exception to

those contained in the Sex Discrimination Act).



States that it is unlawful for 

staff or employers 

to

discriminate 

directly

 or 

indirectly

, or 

harass

customers or clients 

because of the protected

characteristics of disability, gender reassignment,

pregnancy and maternity, race, religion or belief,

sex, and sexual orientation in the provision of

goods and services



Victimisation

 - the definition is no longer based on less

favourable treatment and now occurs when an employee is

subjected to a detriment, such as being denied a training

opportunity or a promotion because he or she made or

supported a complaint or raised a grievance under the

Equality Act 2010, or because he or she is suspected of

doing so, or being about to do so.



Discrimination arising from disability

 – the Act has made it

easier for someone to show they are disabled; if they have

a mental or physical impairment which has a substantial

and long term adverse effect on their ability to carry out

normal day-to-day activities, which would include using a

telephone, reading instructions.  The Act includes a new

protection; stating that it is discrimination to treat a

disabled person unfavourably because of something

connected with their disability.



Positive action

 – the Act allows an employer to take positive

action if you think that employees or prospective employees who

have a “protected characteristic” suffer a disadvantage connected

to that characteristic.



Pre-employment questionnaires

 – the Act limits the

circumstances when you can ask a candidate about their

health.  Employers can only ask health-related questions 1) to

decide whether you need to make any reasonable adjustments

for the person for the interview process 2) to decide whether an

applicant can carry out a function that is intrinsic to the job 3) to

monitor diversity 4) to assist disabled people 5) to assure

yourself that a candidate has the disability where the job

genuinely requires the jobholder to have a disability.



Equal pay

 - a claim for 'equal pay' can be made in the absence of

a comparator under the remit of direct sex discrimination where

the treatment can be shown to be because of a person's sex.  For

example where an employer says 'I would pay you more if you

were a man'.



Secrecy clauses

 – it will be unlawful to prevent or restrict

employees from having a discussion to establish if differences in

pay exist that are related to protected characteristics.



The Commission for Equality and Human Rights



Created under the Equality Act 2006 to replace:

◦

The Equal Opportunities Commission (EOC)



Enjoyed powers derived from the Sexual Discrimination Act

1975

◦

Commission for Racial Equality

(CRE): 

s 43



Had statutory duty to work towards the elimination of racial

discrimination and to promote equal opportunity between

the members of different racial groups.

◦

Disability Rights Commission (DRC)



Created by the Disability Rights Commission Act 1998 with

advisory powers only on the rights of disability. It replace the

National Disability Council

Workers are protected under the Employment Rights Act 1996

from being sacked or chosen unfairly for redundancy and can

bring a claim of unfair dismissal after 

one year of continuous

service

 and a claim for 

redundancy pay after two years' service

.



Wrongful dismissal

: An employee dismissed without appropriate

notice may sue in the civil courts for breach of contract



Unfair dismissal

: statutory right giving employees with one

year’s service the right to complain to a Tribunal that they have

not been treated fairly or reasonably by their employer.



Redundancy: 

if an employee is dismissed because the business

as a whole, or the particular workplace where the employee

worked, has closed down



 A breach of contract if the employer terminates

the employment contract contrary to the terms

contained in it - for instance, by failing to give

the correct notice.



In those circumstances compensation is usually

loss of earnings for the notice period.



The minimum statutory periods of notice

required from an employer are:

1 month to 2 years of employment: 1 weeks’

notice

2 years to 12 years’ employment:1week for each

year worked

12 years plus of employment:12 weeks’ notice



Failure to pay statutory notice gives rise to a

claim of unlawful deduction from wages.

Claims must be brought within 3 months of

termination of the contract and must satisfy

the following criteria:



Continuous employment: one year



The employee must prove the fact of the

dismissal



The employer must prove the dismissal was

not unfair



Maximum amount claimant to receive now is

£68,400

The employee just has to show that the dismissal was for one of the

following reasons:



 Membership (or non membership) of a trade union or for trade union

activities



 Something to do with health and safety



Bringing proceedings against the employer for breaking certain statutory

employment rights



Unlawful discrimination on grounds of race, sex, disability, religion or

belief, sexual orientation or age



Pregnancy or any other reason connected with the pregnancy



When the employee’s work is transferred to another employer, under the

Transfer of Undertakings (Protection of Employment) Regulations (TUPE)



Refusing to forego a right under the Working Time Regulations



Seeking to enforce rights under the National Minimum Wage Act



Making a protected disclosure under the whistle blowing legislation



Trying to obtain (or prevent) recognition of an independent trade union



Seeking to exercise the right to be accompanied at a grievance

or disciplinary hearing



Taking part in lawful industrial action



In connection with the employee’s rights with regard to parental,

paternity or adoption leave, time off for looking after

dependants, maternity leave or the right to ask to work flexibly



Taking action in connection with part-time workers’ or fixed

term workers’ rights



Refusal by a shop worker to work on Sunday



Connected with an employee’s function as a pension fund

trustee



In breach of the Information and Consultation Regulations 2004



In connection with retirement when the employer has not

informed the employee of their right to request to continue

working; or while the “duty to consider” procedure is ongoing

The law says that it is fair for employers to

dismiss an employee for one of the following

reasons:

• Misconduct at work

• Lack of capability (or qualifications) to do

the job

• Redundancy

• A statutory requirement

• Retirement

• Some other substantial reason



This dismissal is defined by the Employment Rights

Act 1996, where it confirms that an employee may

terminate the contract either with or without notice

by reason of the employer's conduct.



An employee may 

resign 

from their employment but

may make a claim that they had been dismissed by

virtue of their 

employer's behaviour

, which 

breached

the contract of employment.



This may be as a result of 

deliberate obstructive

behaviour, 

e.g. changing rotas at short notice,

allocation of duties unfairly distributed, harassment,

sexual or otherwise, or the lack of a procedure for

dealing with any claim of discrimination or

harassment. Claims may occur from a single act or

the escalation of behaviour or acts by the employer.

A redundant employee may have the right to

claim under one or both of the following:

Redundancy payment-

 employees may have

statutory entitlement to compensation for

losing their jobs

Unfair dismissal

- if they can prove the method

by which they were selected for redundancy

did not meet standards of good industrial

practice

Employees are eligible for statutory redundancy payments if:



they have two or more years continuous service since the

age of 18



they are below “normal” retirement age (which depends on

the employer’s normal practice on retirement)



For each full year of continuous employment up to a

maximum of 20 weeks, an employee is entitled to:

age 41 to 64: one and a half week’s pay per year of service

age 22 to 40: one week’s pay per year of service

up to age 21: half a week’s pay per year of service

There is a limit to the basic weekly pay which can be claimed

and which is updated every year. Currently it is £380. This

limit is updated every year.

Employees can lose their right to a statutory

redundancy payment if:



They are offered their old job back or a suitable

alternative and they unreasonably refuse



They are dismissed for gross misconduct during

the redundancy notice



They resign before the end of the notice period

A contractual redundancy payment is only payable

if there is a contractual right to an enhanced

payment. A policy which is expressed to be

discretionary will not usually be contractual

unless very specific other conditions apply



Fixed Term Employees have certain rights

following the introduction of the 

Fixed

Term Employees Regulations in October

2002.

The 

Transfer of Undertakings (Protection of

Employment) Regulations 2006 (TUPE)



The primary piece of legislation governing the

transfer of an undertaking i.e. a business, or

part of one, to another.



The regulations were designed to protect

employee rights in a business transfer

situation, guaranteeing them the same terms

and conditions, with continuity of

employment, as under the previous

ownership.

If a potential disciplinary situation occurs, the

first thing for an employer to do is to



Gather all relevant facts

, via a detailed

investigation

◦

could be no disciplinary measures necessary

◦

If correct procedure not followed: employer may

pay increased compensation by up to 25%;

employee receive decreased compensation of 25%



Hold a disciplinary hearing

◦

allowing employee a chance to state their case

◦

Send letter inviting them to the disciplinary and

inform the employee of the procedure being used



TUPE 2006 legislation 

applies to all relevant

transfers including:



Service provision changes

◦

Where services are outsourced, 'in-sourced' or assigned

to a new contractor, such as in labour-intensive services

like office cleaning, catering, security, and waste

collection.



Business purchase or sale

◦

When a business is bought or sold, either in full or in

part, as a going concern.



Lease or license transfer

◦

When the lease or license on a business’ premises is

taken over and the business continues to operate there.



TUPE is a complex legislation and its

application difficult to discern.



It is advisable to engage the services of a

legal specialist when transferring an

undertaking



Inform and consult with affected employees

◦

Details of the transfer and any proposed measures

must be discussed with staff, or staff

representatives, before the transfer takes place.



Employee liability information must be

provided by outgoing employer to incoming

employer

◦

written details of the transferring employees must

be provided by the outgoing employer a minimum

of 14 days before the transfer

◦

Details of all associated rights and liabilities being

transferred must also be provided

Compensation for New Employer



If the outgoing employer fails to pass on this

information then the incoming employer can apply

for compensation at the Employment Tribunal

where the minimum award is £500 per employee

Compensation for Employees



Employees who are not adequately informed or

consulted about the transfer are entitled to make a

claim at the Employment Tribunal where,

depending on the seriousness of the employer’s

failure to comply with TUPE, up to 13 weeks’ pay

per affected employee can be awarded.

CASE LAW

UPDATE

QUIZ

•

Is the use of length of service as a selection criterion in a

redundancy process discriminatory on the basis of age?

QUESTION 1

•

Is the use of length of service as a selection criterion in a

redundancy process discriminatory on the basis of age?

QUESTION 1

•

Is it reasonable for one individual to carry out a redundancy

selection process without reference to company documents and

where there is no supporting evidence?

QUESTION 2

•

Is it reasonable for one individual to carry out a redundancy

selection process without reference to company documents and

where there is no supporting evidence?

QUESTION 2

•

Can the Disability Discrimination Act protect those associated with

disabled persons from harassment?

QUESTION 3

•

Can the Disability Discrimination Act protect those associated with

disabled persons from harassment?

QUESTION 3

•

Is it indirect age discrimination to require an employee to hold a

law degree in order to be paid a higher pay scale?

QUESTION 4

•

Is it indirect age discrimination to require an employee to hold a

law degree in order to be paid a higher pay scale?

QUESTION 4

•

Can an employee be exercising their rights to time off for

dependants if they have advance warning of the unavailability of

their child minder?

QUESTION 5

•

Can an employee be exercising their rights to time off for

dependants if they have advance warning of the unavailability of

their child minder?

QUESTION 5

•

Can an employer be liable for stress caused to an employee

where they have a confidential counselling service and suggests

to the employee that they use it?

QUESTION 6

•

Can an employer be liable for stress caused to an employee

where they have a confidential counselling service and suggests

to the employee that they use it?

QUESTION 6

•

Can it be unlawful to harass an employee by virtue of another

person’s religious beliefs?

QUESTION 7

•

Can it be unlawful to harass an employee by virtue of another

person’s religious beliefs?

QUESTION 7

•

Is British Airway’s policy of forbidding a silver cross from being

visibly warn outside the uniform indirect discrimination against

Christians?

QUESTION 8

•

Is British Airway’s policy of forbidding a silver cross from being

visibly warn outside the uniform indirect discrimination against

Christians?

QUESTION 8

•

Is it unlawful discrimination to subject a colleague who you know

is straight to homophobic banter?

QUESTION 9

•

Is it unlawful discrimination to subject a colleague who you know

is straight to homophobic banter?

QUESTION 9

•

Can workers who are absent due to sickness continue to accrue

paid annual leave?

QUESTION 10

•

Can workers who are absent due to sickness continue to accrue

paid annual leave?

QUESTION 10



FACTS



Mrs Bonassera was employed by Fulcrum Pharma

(Europe) Ltd as an HR manager. She was supported by

an HR executive. In April 2009, Mrs Bonassera was

informed that she was at risk of redundancy. No such

notification was given to the executive.



A period of consultation followed, during which Mrs

Bonassera made clear her view that the executive

should also have been placed at risk and should be

the one to be made redundant. Mrs Bonassera argued

that she could cover the executive's work. Fulcrum

considered this suggestion, along with various other

options, but decided to dismiss Mrs Bonassera. She

issued an unfair dismissal claim.



The employment tribunal decided that Mrs

Bonassera had been unfairly dismissed. Fulcrum

had acted incorrectly in deciding that, as the role

to be removed was that of HR manager, Mrs

Bonassera should be the only person in the "at-

risk" pool. In the tribunal's view, the HR function

was being reduced from two to one and Fulcrum

should have placed both employees in the pool

and selected one to remain in the executive's

role. Even though Mrs Bonassera had not

specifically raised the question of pooling during

the consultation process, it was nonetheless

incumbent on the employer to address this issue.



The EAT agreed with the tribunal's unfair dismissal

finding, based on Fulcrum's failure to consult properly and

to consider the possibility of a pool of two. However, the

EAT said that the mere fact that Mrs Bonassera had

previously carried out the more junior functions and that

the executive had "acted up" during Mrs Bonassera's sick

leave were not, by themselves, sufficient factors to dictate

a pool of two.



The EAT confirmed its previous guidance that factors to

consider when deciding if a subordinate employee should

be brought into a pool are: whether or not there is a

vacancy; how different the two jobs are; the difference in

remuneration; the relative length of service of the

employees; and the qualifications of the employee in

danger of redundancy. Also, a starting point may be to

determine whether or not the senior employee would

consider the junior role at the reduced salary.



Pothecary Witham Weld (!) Hawthorne (2) v (1) Bullimore (2)

Sebastians Solicitors, EAT



The claimant in this case was given an unfavourable reference by

her former employer (Pothecary Witham Weld) and argued this

was due to her previously bringing sex discrimination claims

against the employer.



The tribunal agreed and found the employer had victimised the

claimant. In coming to its decision, the tribunal applied the

reverse burden of proof - in other words, the claimant proved

facts from which the tribunal could conclude there was

victimisation in the absence of an adequate explanation from the

employer.



This meant that the employer then had to prove that it did not

victimise the claimant, which it had not been able to do.



The employer appealed to the Employment

Appeal Tribunal (EAT) on the basis that the

reverse burden of proof does not apply to

victimisation claims.



The EAT held the reverse burden of proof

does apply to victimisation claims under the

Sex Discrimination Act because of the

differences in the wording of the Race

Relations Act and the Sex Discrimination Act.



Key points



The reverse burden of proof applies to victimisation claims

under the Sex Discrimination Act.



The reverse burden of proof only applies under the Race

Relations Act in cases of discrimination on the grounds of

race or ethnic or national origins. It does not apply to

victimisation under the Race Relations Act.



What you should do



Be aware that claims for victimisation could arise a long

time after the employee's employment has ended (four

years in this case) and that the reverse burden of proof

makes it difficult for employers as they have to 'prove their

innocence'.



Be careful when writing references, and in particular do

not refer to employment claims brought by employees.