Morton Fraser Employment Bulletin March 2010

There are still a few spaces available for our Essential Employment Law seminars on Fit Notes & Absence Management later this month. The seminars, which take place in Glasgow and Edinburgh, will consider the legal and practical implications of dealing with employees who are on long term sick leave as well as the consequences for employers of the new “fit notes” which are due to replace sick notes in April. We will also be joined by a GP who will comment on the way that fit notes are likely to be approached by GPs.

In addition, we will be joined by Donna McVey of Your Personal Best, who is a leading personal trainer and sports therapist. Donna will provide an insight from a health and wellbeing perspective.

The dates and times are:
Glasgow Office 16 March 2009 8:30-9:30am
Edinburgh Office 17 March 2009 17:15-18:15pm

If you are interested in attending any of these seminars, please sign up here.

The Employment Appeal Tribunal has delivered its judgment in Bateman v Asda Stores Ltd which considered the lawfulness of an employer’s decision to adjust its employees’ terms and conditions of employment. The EAT concluded that an employer is allowed to make unilateral alterations to contractual terms where there is a broad contractual right to do so, if this is in line with business needs, without the express consent of their employees. This can include changes to pay rates and the number of hours worked. However it is necessary that the alterations are put into effect correctly and that the employer acts in accordance with their implied duty to maintain trust and confidence.

It was established that Asda had acted properly in adapting the terms and conditions for the small proportion of staff who had refused to accept a new wage framework. Although this decision is good news for employers, employers do still need to be very careful when changing terms and conditions of employment unilaterally and advice should be taken.

In Shah v First West Yorkshire Limited, Mr Shah suffered a broken ankle that prevented him going on a pre-arranged holiday. When he returned to work, he tried to reclaim the holiday days but was told they were “lost” as a new holiday year had begun. He raised a claim for this entitlement with the Employment Tribunal and won. The Tribunal stated their decision was based on interpreting the UK law so that it was "compatible with the underlying thrust of the legislation”.

This case follows the line established by two recent European cases in relation to sickness during annual leave, and is again a warning to employers to be careful when dealing with situations where sickness and holidays clash. Although the decision is not binding on other Employment Tribunals it does perhaps provide an indication as to how Tribunals are likely to approach this issue.

See our blog entry Holiday Entitlement When Off Sick for our thoughts on the implications of this decision for employers.

In Buckland v Bournemouth University Higher Education Corporation, the claimant was a professor at Bournemouth University. By re-marking papers the claimant had already marked, the Employment Tribunal held that the University had fundamentally breached a term of the employment contract: that of mutual trust and confidence.

Although the University had held an inquiry into what had happened, the Employment Tribunal considered that the inquiry’s report did not go far enough in exonerating the claimant. The Employment Appeal Tribunal disagreed, saying that the University had “cured” the breach by holding the inquiry and issuing the report.

The Court of Appeal held that the breach should be looked at objectively so that if one party fundamentally breaches the contract, the other party is entitled to walk away, regardless of any attempt by the first party to cure the breach. In this case, the claimant was entitled to resign and claim constructive dismissal.

This decision is important as it is the first of its kind on this point of law and has implications for employers who materially breach an employee’s contract and then attempt to remedy the situation. According to the Court of Appeal, any remedy would be too little too late and the employee is entitled to reject the contract and resign, claiming constructive dismissal.

In Muschett v HM Prison Service the Court of Appeal considered the employment status of an agency worker supplied to the Prison Service by the agency Brook Street. It concluded that the agency worker, who was on a temporary contract, was not an employee of the Prison Service. In addition the Court held that Mr Muschett was not employed by the Prison Service in terms of the broader definition in the discrimination legislation. Therefore, he could not raise a discrimination claim against the Prison Service. This decision underlines the difficulty agency workers can encounter when they have an employment complaint. There is a gap in the law which can result, as it did in this case, with the worker finding himself without redress against either the agency or the client (in this case the Prison Service).

The long running case of Eweida v British Airways has recently been considered by the Court of Appeal which concluded that Mrs Eweida, a Christian, was not discriminated against as a result of BA’s refusal to allow her to wear a visible cross, in accordance with its uniform policy which did not allow visible jewelry.

Mrs Eweida claimed that BA’s refusal to allow her to wear the cross visibly amounted to indirect religious discrimination. The Court of Appeal disagreed. It concluded that it was not possible to make a general statement about the religious group concerned such that the employer should be able to appreciate that failing to allow the employee concerned to wear her necklace may have a disproportionate impact upon her religious group. In other words for a finding of indirect discrimination it is necessary to show that a group of people are disadvantaged by the policy, rather than just one individual.

The Department for Business Innovation and Skills has published research on small businesses and their confidence and awareness of employment law.

According to the study, more than one third (34%) of respondents claimed employment law obligations are “not relevant” to their businesses.

This statistic is worrying as it is essential that employers are aware of their employment law obligations even if a business only has one employee. A failure to be aware may lead to a costly Employment Tribunal award being made.

If you are concerned over whether or not you are meeting your obligations, please feel free to contact us. You may also wish to consider our Employment Protection Package.

Don’t forget, you can keep up to date with changes in employment law in between bulletins on our employment blog. Recent topics have included:

• Bankers’ Bonus Payments
• Britain’s Got Talent…Simon Cowell’s Got A Problem…
• Shorter Working Weeks?
• Holiday Entitlement When Off Sick
• Spitting mad…

Click here to view to view our Employment Blog.

We have launched an Employment Protection Package for employers to provide a comprehensive solution to employment law issues.

The Employment Protection Package includes:

• Annual employment documentation health check
• 24 hour access to employment law advice
• Tribunal awards insurance cover of up to £250,000 including legal costs
• Affordable monthly fixed fee payments

Click here for further details or for a free quote: Employment Protection Package