United States: UK Employment Law Update, March 2013

Welcome to the latest issue of the Steptoe Employment Law Update.

The Employment Law Updates are aimed at providing information on recent developments in UK employment law. It is our desire to provide you with not only an update of the law, but also a practical insight in managing workplace issues on a proactive basis.

To achieve our objectives and to continuously improve the Updates, it is important that we receive feedback from you.  Please e-mail any comments or suggestions you may have to employmentgroup@steptoe.com.   We look forward to hearing from you.

1. Increase in unpaid parental leave

The Parental Leave (EU Directive) Regulations 2013 came into force on 8 March 2013. Employees are now entitled to 18 weeks' leave in respect of any child, an increase of 5 weeks. Employees still have to have 1 year's continuous service before they qualify for this entitlement.

2. Advisory fuel rates per mile

HMRC has published new advisory fuel rates for company cars which apply to all journeys on or after 1 March 2013. The rates are used only when employers either reimburse employees for business travel in their company cars or require employees to repay the cost of fuel used for private travel. The next review will be 1 June 2013.

Company cars with reduced emissions will be subject to revised new percentage bands from 2015/16 as part of a £100 million package to incentivise the purchase and manufacture of ultra-low emission vehicles in the UK. The measures will take effect from 6 April 2015.

3. Health and safety on construction sites

Between 18 February and 15 March 2013 Health and Safety Executive inspectors made unannounced visits to certain construction sites to ensure they are being properly managed due to their risk activity. The inspectors checked for general good order, assessed welfare facilities and whether suitable protection was being used appropriately. The intention is to reduce the number of injuries and deaths across sites. If workers are being put at unnecessary risk strong action will be taken by HSE.

4. Collective redundancy consultation

Draft Regulations have been published to shorten the consultation period for proposals to make more than 100 or more people redundant from 90 days to 45 days and to bring fixed term employees into the headcount. The new Regulations will come into effect on 6 April 2013. The length of period between notifying the Secretary of State and the first dismissal taking effect is also reduced from 90 to 45 days. The trigger date is when the proposal to make 100 or more people redundant occurs on or after 6 April 2013.

5. Ending the employment relationship

The Government has now published its response to the Ending the Relationship consultation to deal with pre-termination negotiations being inadmissible in unfair dismissal cases and a new statutory code of practice and accompanying guidance on how to resolve workplace disputes.

ACAS has also published a draft statutory code for public consultation. The Government proposes to introduce a 12 month pay cap on the unfair dismissal compensatory award with the overall cap on compensation (currently £74,200) remaining in place. This means that compensation will be capped at the lower of one year's pay and the existing limit. It is anticipated the changes to the compensatory award will come into effect in Summer 2013.

The current median award for unfair dismissal is £4,560 and the Government is not proceeding with a proposal to provide a guideline tariff for settlements.

For the Government's response to consultation and the consultation on the new Code of Practice on settlement agreements click here.

Consultation closes on 9 April 2013.

6. Early conciliation

Consultation has closed on the Government's consultation on how it proposes ACAS deal with requests for early conciliation from prospective claimants who, once the Enterprise and Regulatory Reform Bill 2012-2013 comes into force, will have to make such a request before they can issue certain proceedings in the employment tribunal. The proposed steps are that the Claimant would send a completed EC form to ACAS. An early conciliation support officer will then contact the Claimant to check the details. The Conciliator will then attempt to promote settlement by contacting the prospective Respondent and where both parties have agreed to participate in the conciliation process the Conciliator will have one calendar month from the date of the form to promote settlement between them. The final step will be dealing with the outcome of this conciliation, whether success or failure. Only once a Claimant has satisfied the early conciliation requirement he will be able to proceed with a claim. Failure to do so will result in the dismissal of the claim.

7. Whistleblowing

The Government has proposed amendments to the Enterprise and Regulatory Reform Bill 2012-2013 which now includes a provision which protects whistle-blowers from acts of detriment by their co-workers or agents of the employer.

Where an employer is potentially vicariously liable for the detriment of its workers it will be a statutory defence for the employer to show that it took all reasonable steps to prevent the detrimental treatment.

This is in addition to two changes already scheduled whereby there will be a requirement for protected whistle-blowers to be acting in the public interest although that may not wholly exclude self-interest claims and the removal of the requirement for disclosure to be in good faith. This will be replaced by the power of a tribunal to reduce compensation by up to 25% if the disclosure by the employee is not made in good faith.

8. Sickness absence

The Government has issued new guidance for employers, employees and doctors on using fit notes to their full potential by looking at an individual's condition and what an employee can do rather than what they cannot. The Government is also launching a review of workplace sickness absence to improve opportunities for employees to return to work. There will be a health and work assessment and advisory service aimed at helping employees back to work sooner and better guidance on what employers can do to manage sickness absence.

For copies of the Government's guidance click here.

9. TUPE reforms

The Government has issued a consultation on its proposed reforms to the Transfer of Undertakings (Protection of Employment) Regulations 2006. Consultation will close on 11 April 2013. The changes will come into effect in October 2013 save in respect of the possible repeal of the service provision change regulation where this will be implemented over a period of years. The proposed changes include:

• Removing the obligation to provide employee liability information
• Changing the provisions that restrict changes to terms post transfer
• Including change of location as an ETO reason
• Providing that the transferee can consult on collective redundancies with the transferor's employees prior to the transfer
• Allowing businesses with 10 employees or fewer to inform and consult with their employees directly.

For BIS' consultation paper click here.

10. Pension auto-enrolment and TUPE

The Government has issued a consultation paper seeking views on proposed regulations to clarify the policy intention behind the pension protection regulations following a TUPE transfer so that a transferee will be able to match the contributions paid by the transferor immediately prior to the transfer as an alternative to matching the level of contributions chosen by the employee following the introduction of the Automatic Enrolment requirement up to a maximum of 6%.

11. Changes to immigration rules

The Government has announced new codes of practice for skilled migrant workers from outside the EU which will apply from 6 April 2013. These codes set out which occupations are sufficiently skilled to qualify for Tier 2 of the points based system. The new minimum rates of pay for Tier 2 (General) threshold will be £20,300. The threshold for exemption from the requirement to advertise at the Job Centre will increase to £71,000. The threshold for exemption from the annual limit on restricted certificate of sponsorship and from the resident labour market test will increase to £152,100. The new Tier 2 intra-company transfer threshold will be £40,600 for long term staff and £24,300 for short-term staff, skills transfers and graduate trainees.

12. ACAS' draft flexible working code

ACAS has published for consultation a draft statutory code of practice which lists the steps to be taken in order to comply with the requirement to handle eligible employees' requests for flexible working in place of the current statutory procedure. The consultation closes on 20 May 2013. The code is not intended to discuss good practice around the extended right but ACAS will produce a non-statutory good practice guide with practical examples of managing such requests in the workplace.

The new right will be implemented in 2014 in the Children and Families Bill extending the right to request to all employees with 26 weeks' service. Employers will be required to respond to flexible working requests in a "reasonable manner" on the assumption that they will be granted unless there is a business reason for not doing so as set out in the legislation.

13. Shared parental leave and pay

The Government has published the Children and Families Bill on shared parental leave. The Regulations have not yet been published. Although women will continue to be eligible for maternity leave and statutory maternity pay or maternity allowance they will be able to choose to end their leave and pay or allowance early and share the remaining leave and pay with their partner. Eligible adopters will also be able to use the new system for shared parental leave and pay. Changes are expected to take effect in 2015.

14. Dismissal for political reasons

In Redfearn v United Kingdom 2012 ECHR 1878 the European Court of Human Rights held that the UK was in breach of Article 11 of the European Convention on Human Rights by failing to take measures to protect employees with less than 1 year's service from dismissal on the grounds of their political beliefs.

Rather than appealing the decision, the Government has proposed an amendment to the Enterprise and Regulatory Reform Bill 2012-2013 by inserting a new right in the Employment Rights Act 1996, to disapply the 2 year qualifying period of employment if the reason for the dismissal is or relates to an employee's political opinions or affiliation. This provision will come into effect 2 months after the date the Bill receives the Royal Assent and will apply to dismissals after that date.

15. Previous Warnings

Davies v Sandwell Metropolitan Borough Council 2013 AER 310

Ms Davies was a teacher. In February 2005 she was given a final written warning for alleged misconduct that was to last for 24 months. She did not pursue an appeal and in 2006 after a further disciplinary hearing Sandwell dismissed her having taken into account her previous warning. An employment tribunal held that she had not been unfairly dismissed. Sandwell's decision fell within the range of reasonable responses and it could take the previous warning into account. She appealed and the EAT held that the tribunal had misdirected itself with regard to the effect of her failure to appeal against the final warning. On remittal the tribunal concluded that Sandwell had issued the final written warning in good faith and Ms Davies had been fairly dismissed. The EAT further dismissed her second appeal as did the Court of Appeal. It held that it was legitimate for the employer to rely on a final warning provided it was issued in good faith and was not manifestly inappropriate. The tribunal had not erred when it found that the final warning had properly been taken into account by Sandwell when it decided to dismiss her.

Key point: There are only limited circumstances when a tribunal will be entitled to reopen an employer's decision to issue a final warning on which it later relies to dismiss for further misconduct. Should an employee appeal against a final warning? If not, that should be one of the factors taken into account by a tribunal when applying the tests set out in Stein that it would be legitimate for an employer to rely on a final warning as long as it is issued in good faith, that there had been at least prima facie grounds for imposing it and it had not been manifestly inappropriate.

16. Legal Advice Privilege

R (Prudential plc and another) v Special Commissioner of Income Tax January 2013

Prudential argued that legal advice privilege, which applies to documents created for the purpose of seeking or giving legal advice, should also apply where the party had taken legal advice from non-lawyers, in this case, accountants. The Supreme Court disagreed. Legal advice privilege only applied to communications with qualified lawyers.

Key point: Documents which are not covered by legal advice privilege or litigation privilege may be discloseable to employees under Data Protection Act or in discovery during litigation.

17. Age Discrimination

Lockwood v Department of Work and Pensions and another 2013 UKEAT 0094/12

Ms Lockwood was made redundant and received a redundancy payment of approximately £11,000. However under the voluntary redundancy scheme offered by DWP, had she been 35 with the same length of service she would have been entitled to a payment of nearly £18,000. She was unhappy about the lawfulness of this age related disparity. She therefore brought a claim for direct age discrimination and less favourable treatment but was unsuccessful. Her appeal was also unsuccessful. The reason for the disparity in the redundancy payments was purely public interest. The enhanced redundancy payment for older workers was to reflect the greater loss suffered by older employees who lose their employment and was a legitimate aim so the test of objective justification was easily met. The Seldon case was considered and applied.

Key point: An employer's redundancy policy for older workers may not amount to direct age discrimination where it can be objectively justified on strong social policy grounds.

Homer v Chief Constable of West Yorkshire Police ET/1803238/2007

Following remission from the Supreme Court the tribunal in this case found that the requirement for Mr Homer to hold a law degree in order to progress up the pay scale in the police was not objectively justified. The Supreme Court had previously held that the requirement to hold a law degree was indirect discrimination against an employee who was approaching retirement age and who therefore did not have the time to obtain a degree unless it could be objectively justified. Mr Homer's argument was that an exception could have been made for existing staff and the tribunal agreed. Mr Homer therefore succeeded in his claim of indirect age discrimination.

Key point: An employer must not grant special privileges to a single member of a protected group as that could amount to discrimination in itself. Proper evidence will be required to establish that an employer is justified in applying a PCP to the whole workforce.

18. Guidance on Religion and Belief in the Workplace

Following the recent judgments concerning employees and their religious rights in the workplace, namely the cases of Eweida, Chaplin, Ladele and McFarlane, the Equality and Human Rights Commission have issued a guide for employers on dealing with religion or belief requests as they affect work duties. There are some very helpful examples of requests and how employers might deal with them.

For the guidance click here.

19. TUPE Consultation and Collective Redundancy

Unison v London Borough of Barnet and another ET/3302128/2012

Unison were successful in obtaining a protective award from an employment tribunal as a result of a failure by Barnet to provide adequate information concerning agency workers during the consultation exercises on the collective redundancy and pre transfer consultation under TUPE.

Since 1 October 2011 information to be provided to the employee representatives should include details about agency workers. The information to be provided however is the employer's use of agency workers throughout its business and not just on the part being transferred. In this case neither Barnet nor Unison were aware of the requirement at branch level until late October 2011. Unison brought a claim in the tribunal and Barnet accepted it had not provided the relevant information. It offered in evidence in mitigation that there was a considerable amount of consultation and information provided to the union but to no avail. The tribunal made three awards: 60 days' pay in relation to the redundancies, and equivalent award of 40 and 50 days' pay in relation to the two transfers. The awards were applied to all employees who either transferred or were made redundant as a consequence, not simply those employees made redundant after the transfer.

Key point: The case is a useful reminder of the potential cost of omitting this information for the employee representatives.

20. TUPE and Collective Agreements

Parkwood Leisure Ltd v Alemo Herron Case C-426/11

The Advocate General opined in this case that EU law does not preclude national courts giving a dynamic as opposed to static interpretation to Article 3(1) of the EU Acquired Rights Directive. The critical question the Advocate General answered was whether public sector employees who were subject to industry wide negotiated terms remained entitled to the benefit of increases in NJC pay negotiated under those terms after they had transferred to the private sector. Parkwood had earlier resisted claims for pay rises by employees who had transferred to Parkwood from Lewisham, as Parkwood resisted these pay claims not having been a party to the pay negotiations and not recognising any of the relevant unions. The case was referred to the ECJ when the Supreme Court found it unable to resolve the issue. The Advocate General noted that the UK had not exercised the option permitted by the Directive to render liability for contractual obligations joint and several nor to limit the period for which collective agreements survive transfer. The case was distinguishable from Werhof.

Member States are not precluded from implementing more generous provisions nor from interpreting their national laws more generously than the Directive requires. The Directive therefore did not interfere with the right of the UK to allow the use of dynamic clauses when referring to future collective agreements and to protect such agreements indefinitely on transfer.

The judgment of the ECJ is awaited.

Key point: Due diligence concerning contractual terms in collective agreements is now more important than ever. Nevertheless the Government is consulting on TUPE changes and the Government may seek to limit the period for which TUPE protection lasts more generally in the light of this opinion.

21. Freedom of Expression and Employee Confidentiality

Hill v Governing Body of Great Tey Primary School UKEAT/0237/12

Ms Hill was dismissed for disclosing confidential information to third parties after she witnessed a child being hurt by other children in the school playground. Although she referred the matter to the Head Teacher she also spoke to the child's mother afterwards. When she was suspended pending the outcome of an investigation into her conduct she contacted the press about this suspension, resulting in unfavourable media for the school. The School Governors found that she had breached confidentiality by speaking to the parents and press and her actions had seriously damaged public confidence in the school. She brought whistleblowing and unfair dismissal proceedings against the school. Her whistleblowing claim was dismissed but she was found to have been unfairly dismissed. The tribunal nevertheless considered that her compensatory award should be reduced under the "Polkey" decision and for contributory fault. The tribunal concluded that her dismissal was within the band of reasonable responses and she would have been dismissed fairly after two months if a proper procedure had been followed by the school. Her two months' compensation was reduced by 80% taking into account her contributory fault in causing her own dismissal. Her claim that the right of freedom of expression under Article 10 of the ECHR was engaged in her case was rejected. She appealed and was successful on the "Polkey" point. The EAT remitted the question of what remedy she should have to the tribunal.

Key point: The judgment sets out how Article 10 of the ECHR affected the case and how to strike a balance between restrictions on confidentiality and freedom of expression.

22. EU Law - France

• Secondment
  An employer wishing to repatriate an employee back to France must offer an equivalent position in France and obtain the employee's agreement to that position according to the French Supreme Court. If the employer does not do this and the employee then decides to terminate the employment contract, the employer is liable for abusive termination.
• Documents in a foreign language may not be introduced as evidence without French translation
  Documents written in a foreign language are not admissible as evidence where they are not translated into French according to the French Supreme Court. This rule applies to all documents whatever their nature, including emails that a party wants to rely on in Court. Where there is no translation Judges at their discretion may either ignore the documents or postpone the hearing until the documents have been translated into French.
• Employee's Right to see Payslips
  An employee suing his employer for pay discrimination is entitled to have access to colleague's payslips and an employer's claim that such access would breach privacy rights of other employees is not valid according to the French Supreme Court. An employer cannot unfairly retain documents needed by a plaintiff to protect his legitimate rights that are based on a principle of equal treatment. In this case the employee was able to obtain a court injunction requiring his employer to provide him copies of his colleagues' payslips.
• Source: Jeantet et Associés

23. End of Legal Aid for most Employment Matters

On 1 April 2013 the Legal Aid Sentencing and Punishment of Offenders Act 2012 will remove legal aid from new employment law cases except claims in relation to discrimination law. The service to be rendered in respect of those claims will be through telephone or online advice by three providers.

Advice can be obtained online at: www.claonlineadvice.justice.gov.uk.

24. Non-Executive Directors

The Institute of Chartered Secretaries and Administrators has published a guidance note on the liability of non executive directors. It is important that such directors think carefully about the steps they should and might take to ensure not only they are effective in their role but that they are also not exposing themselves to liability. There are a number of key recommendations the Institute recommends directors should consider before joining the board.

For the guidance click here.

25. Quarterly Tribunal Statistics

The Ministry of Justice has published statistics in relation to claims received by employment tribunals in the period 1 July to 30 September 2012. There were 45,300 claims, an increase of 13% more than in the same period in 2011 12, mainly due to multiple claims.

26. PAYE and Real Time Information

The first Real Time PAYE returns will be due on the first employee payday on or after 6 April 2013. From April employers will be required to move to this new way of reporting. Instead of sending the forms at the end of the year, the employer will send a submission each time or before employees are paid. Employers will need to make sure that software will allow them to meet the obligations from April 2013. A list of HMRC recognised products can be found on their website. No penalties will be imposed for late reporting until 2014. Employers with less than 9 employees will be able to use HMRC's free Basic PAYE Tools package to report the payroll information online.

27. Redundancy and the Insolvent Employer

The Insolvency Service has issued a fact sheet and guidance on the rights of employees when made redundant by an insolvent employer. The Redundancy Payment Service was established to provide a way in which ex employees would receive some but not all of the payments that they are due.

For the guidance click here.

28. Cap on Bankers' Bonuses

The European Parliament has reached a deal to cap bankers' annual bonuses at the level of their annual salaries. Larger bonuses could be awarded if at least 65% of the shareholders owning half of the shares represented agree. If the bank issues a bonus beyond the level of a banker's annual salary then one-quarter of the bonus must be deferred for at least five years. If approved by the European Parliament, Member States would need to include the rules in their national laws by 1 January 2014. Britain is set to challenge this.

29. Victimisation and the Equality Act 2010

Rowstock Ltd and another v Jessemey UKEAT/0112/12/DM

The EAT has held in this case that the Equality Act 2010 provides no remedy for post-employment victimisation. Section 108 of the Act makes express provision for discrimination suffered after the termination of the employment relationship but there is an express exception in s.108(7) governing claims of victimisation which could not be interpreted by the EAT to provide Mr Jessemey with a remedy. Mr Jessemey has been granted permission to appeal.

He was dismissed on the grounds of retirement shortly before his 66th birthday and he complained that his dismissal was unfair and age discriminatory. Whilst looking for alternative work he discovered that Rowstock had provided an unfavourable reference to an agency on him and he brought a further complaint that he had suffered post employment victimisation because he had issued tribunal proceedings in relation to his dismissal. Whilst Rowstock conceded that it had failed to follow the statutory procedures in relation to age related retirement and therefore his dismissal was automatically unfair and age discriminatory, his claim failed even though the poor reference had indeed been given because tribunal proceedings had been pursued. The tribunal had no jurisdiction to award any remedy. On appeal the Court appreciated that this produced an obvious omission in the statutory protection from discrimination but it was not within its powers to remedy that. Parliamentary intervention may be required to close the loophole and correct this apparent drafting error if Mr Jessemey's appeal is unsuccessful.

30. Race Discrimination

Pasab Ltd t/a Jhoots Pharmacy and another v Woods 2012 EWCA Civ 1578

Ms Wood lost her case for victimisation after she was dismissed by her employer for making an allegation that the company was "a little Sikh club" which only looked after Sikhs. The EAT held that the reason for her dismissal was her employer's belief that she had made a racist comment. Ms Woods appealed to the Court of Appeal who held that she was dismissed not because she made a remark which the tribunal considered objectively to be a complaint of discrimination (a protected act), but that she had made a racist remark. The protected act was not the reason why her employer had acted as it did.

Key point: This is not an easy case to interpret. Ms Wood always denied making a protected act.

London Borough of Hackney v Sivanandan & Ors 2013 EWCA Civ 22

The Court of Appeal has held in this case which had lasted 12 years that an employment tribunal could not apportion a compensation award between the Respondents when the damage is indivisible in a vicarious liability case. The Council and its employee Ms White, were found to be liable for discriminatory acts against Mr Sivanandan. Ms White was ordered to pay £1,900 approximately in respect of injury to feelings and the Council was jointly and severally liable to pay £421,415 as compensation for discrimination in 2 unsuccessful job interviews. The Court confirmed that the tribunal had erred in apportioning the award against Ms White. She and the Council were jointly liable for the victimisation against Mr Sivanandan but the Council could not succeed on its argument that its liability should be limited to the lesser amount that the tribunal had erroneously decided to apportion to Ms White at the first remedies hearing.

Key point: It is not open to tribunals to apportion liability in respect of joint tortfeasors. Each is jointly and severally liable for the entire loss caused by the discrimination.

31. Caste Discrimination

The case of Begraj v Heer Manak Solicitors ET Case 1307858/10 collapsed recently on the recusal of the judge. Even though the case had been part heard for 36 days, unless there is a successful appeal from the judge's decision to stand down, the case will have to be reheard.

Mr and Mrs B claimed that their employer objected to their relationship because they were from different castes and were less favourably treated when they announced their marriage. Section 9(5) of the Equality Act 2010 which has yet to be brought into force provides that an order may be made for caste to be an aspect of race.

The House of Lords in March 2013 agreed an amendment to the Enterprise and Regulatory Reform Bill 2012-2013, which would make caste discrimination unlawful under the Equity Act 2010. However, the Government has stated that it did not intend to make caste discrimination unlawful at the present time. It is awaiting examination and report from the Equality and Human Rights Commission.

32. Bring Your Own Device

The Information Commissioner's Office has published guidance on Bring Your Own Device. The guidance considers the data protection issues for employers who permit employees to use their personal devices for work purposes such as smartphones and tablets. The guidance recommends employers implement and maintain an acceptable use policy.

For the guidance click here.

33. Whistleblowing

The Government has set out a list for those people wishing to make a disclosure of alleged wrongdoing or malpractice of who can be contacted other than their employers. The list is set out by sector and it includes guidance on the area to which each body applies and contact details. These range from broadcasting to utilities. In order to make a disclosure the BIS has said the type of malpractice which has been discovered should be written down and included with evidence to support this and sent to the correct relevant body.

For the list click here.

34. Agency Working Regulations

Discrimination

Pegg v London Borough of Camden

Miss Pegg was awarded compensation of £35,000 following the termination of her contract as she was off work due to depression following a series of bereavements. While receiving medical care at home for a panic attack she was informed via the telephone that her contract was being terminated due to poor attendance. She had worked for 44 weeks. The tribunal determined that as Miss Pegg was under an obligation to work for Camden, it was under a duty not to discriminate against her as an agency worker. The question whether equality law protects agency workers from discrimination by the organisation they are supplied to was answered in the affirmative.

Key point: Agency workers are entitled to the same degree of protection from discrimination at their place of work as permanent employees.

Swedish Derogation

Bray and others v Monarch Personnel Refuelling (UK) Limited (ET 1801581/2012)

This is an employment tribunal case and the first one where the issue of the Swedish derogation provisions of the Agency Workers Regulations 2010 has been considered.

The Agency Workers Regulations provide an exemption from the principle of equal treatment, where an agency worker enters into a permanent contract with a temporary work agency. Tanker drivers were employed by Monarch on zero hour contracts and assigned to BP to make deliveries to petrol stations on a series of assignments over a long period. On the implementation of the Agency Workers Regulations, BP was concerned that if the agency workers' pay was uplifted in line with its permanent staff it could face pressure from its unionised workforce to restore the pay differential. Therefore, BP advised all its agencies that its current assignments would be concluded in November 2011 to be followed by fresh assignments starting on 1 December 2011 for which only drivers working under the Swedish derogation would be accepted.

New contracts were issued on 15 November 2011 to the tanker drivers. They were told that they would not be able to continue working for BP unless they accepted the offer of new contracts. The claimants who remained dissatisfied with the imposition of the new contracts bought claims arguing that their contracts did not comply with Regulation 10, namely that for the derogation to apply the contract had to be entered into before the beginning of the first assignment under that contract. It was held that the first assignment referred to in Regulation 10 was the new assignment which started on 1 December 2011. Even though there had been previous assignments prior to that without gaps the Regulation did not refer to the entire period of hiring.

They had already entered into the contracts before the first assignment under those new contracts started. The guaranteed hour's contract was a new standalone contract not simply a variation of the previous contract. Because of the change of hours from zero hours this was a fundamental change and the contract were compliant with the Regulations.

Key point: There is likely to be pressure exerted on temporary work agencies to use the Swedish derogation provisions where possible, if hirers wish to avoid pay parity.

35. Pension Rights for Civil Partners

Walker v Innospec Limited and others (ET 2411316/2011)

W was a retired member of the Innospec pension scheme. He claimed that Innospec had discriminated against him because his pension to his civil partner was only in relation to service since 5 December 2005, the date the Civil Partnership Act 2004 came into force. As the Equality Act 2010 requires civil partners to be treated in the same way as spouses on the death of the scheme member Innospec relied on this so that only pensionable service completed after 5 December 2005 was relevant.

Mr Walker was successful in his claims for direct and indirect discrimination on the basis that the exemption contravened the Directive prohibiting discrimination on the grounds of sexual orientation. Innospec's arguments and reference to costs implications were rejected. Innospec had argued that costs of providing Mr Walker's civil partner with a spouse's pension could cost at least £400,000. The Judge specifically held that the Equality Act by exempting service completed before 5 December contravened the Directive.

Key point: Trustees of similar pension schemes will need to consider what action to take in relation to this issue although it is still subject to appeal to the Employment Appeal Tribunal.

36. Covert Recordings

Vaughan v London Borough of Lewisham and Others 2013 UKEAT 0534/12

Miss Vaughan brought claims for discrimination against Lewisham and asked for 39 hours of covert recordings that she had made to be relied on. She claimed that the recordings would show that the notes made by Lewisham were inaccurate or wrong. The Judge refused her application. On appeal, EAT held that the judge was right to refuse the application because it is not possible for her to form any view on the relevance and admissibility of the tapes. Had Miss Vaughan lodged a more focused application supported by transcripts of the recordings which she sought to rely on together with an explanation of why they are relevant, she might have been successful.

Key point: Covert recordings may expose injustice but are inherently unreliable and must be used wisely.

37. Recognising a Trade Union

Working Links v Public and Commercial Services Union UK EAT/0305/12

Although there had been a history of discussions and consultation between Working Links and the Union the Trade Union was unable to show that it has been recognised for the purposes of collective bargaining.

The history of discussion and consultation fell short of the clear evidence of recognition needed in the absence of a written agreement. Negotiation had a different meaning from consultation. The claim arose in the context of a claim by the Union that Working Links had failed to consult them about proposed redundancies in accordance with Section 188 of the Trade Union & Labour Relations Consolidation Act 1992. To have the standing to bring a claim alleging a breach of Section 188 a Trade Union must not only be recognised but also must be recognised in respect of the description of the employees affected by proposed dismissals for redundancy or who may be affected by measures taken in connection with those dismissals. The case was remitted to a different employment judge to consider the issues relevant to whether the Claimant had standing to bring a claim under Section 189.

Key point: Recognition of a trade union for collective bargaining purposes is an important matter. To constitute collective bargaining there must be negotiation of collective agreements.

38. Disclosure of Conviction

R (on the application of A) v Chief Constable of Kent Constabulary

A registered nurse - A - employed at a care home working with elderly and vulnerable adults was dismissed from her role but was subsequently reinstated after there was no evidence to support the allegations of her mistreatment of residents. She was not included on a "barred list" nor any interim conditions of practice ordered on her. After a police investigation, the CPS offered no evidence and she was acquitted of any wrong-doing.

When she applied for a new job, the allegations against her were disclosed by Kent Constabulary, it having considered that the risk posed to children and vulnerable adults outweighed her right to privacy. As a result she was unable to obtain work.

She claimed judicial review of the Chief Constable's decision to disclose the allegations which had been raised against her and also made a claim under the Human Rights Act 1998. She was successful. A fair balance had to be struck between the interests of the community and the protection of individual rights and it was disproportionate for her professional life to be blighted in a manner which it had been when the allegations had been repeatedly found to be unreliable. Accordingly, disclosure of the allegations by Kent Constabulary had been in breach of Article 8 of the ECHR and Section 6(1) of the 1998 Act. The decision by Kent Constabulary to disclose would be quashed.

R (T and others) v Chief Constable of Greater Manchester and others [2013] EWCA Civ 25

T received two warnings in connection with stolen bicycles when he was 11. He believed they were spent but they were disclosed years later in a criminal records check when he sought a part time job and when he enrolled in a university course, because both involved contact with children.

T argued that the criminal records checking scheme was incompatible with Article 8 of the ECHR. His proceedings were dismissed and he appealed. The Court allowed his appeal. Disclosure of information about past convictions had interfered with his Article 8 rights. The blanket disclosure of all convictions and cautions was disproportionate. A requirement that serious offences should never be rehabilitated was proportionate and that did not breach Article 8. T's age at the time of the offence made his case even stronger than it would have been if he had been an adult at the time of the thefts.

The Court directed its decision will not take effect pending determination by the Supreme Court of the Home Office's application for leave to appeal.

Key point: The Court of Appeal rejected the assertion that an employer can be trusted to assess the relevance of the conviction or caution by taking into account matters such as the seriousness of the offence, the age of the offender at the time and the lapse of time since it was committed when deciding whether to employ the candidate.

39. Reopened Disciplinary Process Not Unfair

Christou and another v Haringey London Borough 2013 EWCA Civ 178

The Court of Appeal considered the case of two council employees who had initially received final written warnings in respect of their handling of the Baby P case and whether they were fairly dismissed after new management took a different view and instigated a second set of disciplinary proceedings, which resulted in their dismissal for gross misconduct. The employees had appealed to the Employment Appeal Tribunal submitting that Haringey had been estopped as a matter of law from reopening the disciplinary process at all so that the dismissals had been necessarily unfair. The EAT had rejected that submission as the disciplinary procedure had not constituted an adjudication between the parties so as to have engaged the res judicata doctrine. In the employment context the disciplinary process was conferred on an employer by reason of the nature of the relationship. It was far removed from the process of litigation or adjudication, which was in essence where the doctrine of res judicata applied. The Court also rejected their arguments that the second disciplinary procedure was an abuse of process.

Key point: The res judicata doctrine applies only to procedures which involve establishing the existence of a legal right or determining a dispute not an employer's disciplinary hearing.

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