There have been some interesting reported cases over the last couple of weeks on a broad range of topics. For instance,
Legal Representation at Internal Disciplinary Hearings
In G v X School, a Court of Appeal case, it was held that a teaching assistant was entitled to legal representation at an internal disciplinary/grievance hearing in circumstances where that person’s right to practise in the profession was at risk. In this particular case G was a teacher accused of sexual contact with a pupil at the school where he taught. He was dismissed following investigation but was not allowed to have legal representation at the internal disciplinary hearing. Subsequently the school reported him to the relevant regulatory body for consideration of whether he should be barred from working with children. The case of Kulkarni v Milton Keynes General Hospital NHS Trust [2009] was followed and it was held that Article 6 of the ECHR required G to have legal representation because of the effect his dismissal would have on the decision of the ISA. Note in both these cases they were against public authorities and the same result would not necessarily be the case if the employee was working in the private sector. For example a banker facing a disciplinary hearing for an alleged offence of dishonesty would probably not be entitled to rely on this case even though his dismissal would be reported to the FSA and could lead to him losing his registration to practise.
Age Discrimination
The Employment Equality (Age) Regulations 2006 prohibit behaviour that subjects someone to less favourable treatment on the basis of a person’s age. However, it can be permissible to discriminate against someone on the ground of their age if there is a “genuine occupational requirement”. The case of Wolf v Stadt Frankfurt Am Main heard before the European Court of Justice (ECJ) held that it was lawful for an upper age limit of 30 to be applied by the Federal state of Hesse in Germany on recruiting firemen. However, in another German case before the ECJ, Petersen v Berufungsausschuss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe it was not justifiable for a maximum age of 68 to be imposed on doctors and dentists practising in the state medical system where it was alleged that the rule was necessary to protect patients from a decline in performance as doctors and dentists got older: no such age limit existed in the private sector. In other words, age limits on occupations can be imposed, but there will need to be a good reason for doing so.
Disability Discrimination
The definition of disability contained in the Disability Discrimination Regulations 1995 is a complex one and requires that the impairment be permanent or lasts for at least one year. The case of Patel v Oldham MBC, heard before the Employment Appeal Tribunal (EAT) decided that when assessing whether the impairment will last for 12 months or more, it is necessary to consider whether another illness is likely to develop or has developed for the purpose of Schedule 1 paragraph 2 of the DDA. In other words, if the secondary condition develops, or is likely to develop, from the original impairment it can be aggregated onto the original condition for the purpose of the section. In other words, don’t just consider the original illness/injury but consider what secondary consequences there could be.
If you need advice on any of the above issues, or on anything to do with employment law, please contact me at Dale Langley & Co – 0207 464 8433 – or michaelscutt@dalelangley.co.uk
Over on the Dale Langley & Co website I have written about the recently reported case of age discrimination by Achim Beck at his former employer, CIBC. Click here for the post. The case was reported on Times Online on the 29th December. Although Mr Beck has succeeded with his claim, the Employment Tribunal has not yet made an award of compensation and a “remedies hearing” for that purpose is awaited in due course, unless it settles beforehand. I’ll keep an eye out for what could be a big award.
Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family. Nor should they now ask potential employees how old they are. The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years. The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies. However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement. The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”.
The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds. I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time. He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed. The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.
Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.
Bob Ainsworth, the Defence Secretary, has come under fire for not only being a political lightweight out of his depth in one of the most important offices of state, but also for wearing a moustache (well, we are approaching the silly season). An article at www.timesonline.co.uk/tol/life_and_style/men/article6709864.ece suggests that a moustache often signifies the wearer is homosexual or, of more importance to this blog, that it is a symbol of ”the constipated mentality of an inept, small-town jobsworth”, being the impression that Mr Ainsworth’s “facial furniture” gives to some. I make no comment on that.
Luke Leitch, the author of the article, also mentions notable other Jobsworths, including the bus-conductor Blakey from On the Buses - the inspiration for this blog. I can just see him now saying “I hate you Butler” (or should that be “I hate you Mandelson”?) Marvellous.
This Jobsworth doesn’t wear one by the way. Mrs J wouldn’t hear of it.
On the subject of the family we’ve just come back from a relaxing family holiday (there’s a non sequitur for you) and I am still in holiday mode. I was interested to read that the government wants to review the default retirement age of 65. This announcement comes in the week that the Heyday challenge makes its long circuitous route back to the High Court. I doubt that we’ll get Judgment this week, of course, but at long last the end may be in sight.
Whether the government’s decision to review the state retirement age has anything to do with them contemplating defeat in the High Court I couldn’t say but with increasing numbers of pensioners to support in the next thirty plus years it makes sense to allow those who want to carry on working able to do so. There is a mechanism in place at the moment where employees can ask to work on after the default retirement age but it is a bit of a palaver and, like many people, I cannot see how a default retirement age does not discriminate against older people.
More to come on this.
Over the last few weeks I’ve been writing about the various issues surrounding redundancy procedure and selection. A couple of weeks ago an interesting High Court case was reported which dealt with the issues arising on redundancy where selection on the grounds of age became relevant. The case in question was Rolls-Royce v Unite, and was unusual in that the employer was seeking to argue that its own selection criteria was age discriminatory and the Union was arguing that it was not. Normally, of course, one would expect the positions to be reversed.
In this case, Rolls Royce operated a selection criteria that gave points for various factors, such as skill and expertise, achievement of targets, contribution to the business, self-motivation and, particularly relevant for these purposes, length of service. Those with fewest points overall were selected for redundancy. The effect of the length of service factor meant that workers with long service would gain more points and thus be less likely to be selected for redundancy than workers with shorter service who were more likely, therefore, to be younger. Rolls Royce argued that this policy was indirectly discriminatory because it favoured older workers.
The Court disagreed and held that such a policy could be justified by the employer (justification for a policy that is otherwise discriminatory being a defence under Age Discrimination legislation) on the grounds that the policy fulfilled a “business aim”, namely it was a contractual benefit rewarded employees loyalty and also that older workers would find it harder to obtain alternative employment upon redundancy. The scheme was also found to be a means of enabling redundancies in the workforce to be handled “peaceably”.
What does this case mean for employees and employers? For businesses it is a double-edged sword because although on the one hand they may be relieved to know that the application if such a selection policy will not land them with claims for age discrimination, it also means that the flexibility they seek in selecting candidates for redundancy is reduced. Remember, in this case it was Rolls Royce that sought to argue its own policy was discriminatory. The case is also good news for older employees with long service and less good for those with shorter.
This article will appear in the “Docklands” and “Peninsula” newspapers week commencing 1st December.
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