In This Edition:
- A Message from Employment Law specialist Dominic Bayne.
- An article by Bryony Clayton in light of the "Hall v Chief Constable of West Yorkshire police" decision.
- An Article by Claire Millns considering the decision of the "Tirkey v Chandhok Anor" case 2015.
- Nicola Twine's helpful guidance on Tupe's treatment of long term sick employees.
- An article By Dominic Bayne takes a brief look at the implications of the European decision in Tyco Integrated Services, which hit the headlines last month, concerning the application of the Working Time Directive to workers travelling to work.
A message from Employment Law specialist Dominic Bayne
Welcome to the Autumn edition of our Parklane Plowden employment e-newsletter.
The nights are now longer than the days, our political leaders have returned from setting out their visions at their autumn conferences, and the minimum wage has just made its first faltering step towards becoming a ‘living wage’. It must be October.
Since our last newsletter, the Court of Appeal has dismissed UNISON’s challenge to the tribunal fee regime, and the number of tribunal claims continues to be stubbornly low. Indeed although overall numbers of claims are only a fraction of what they once were, the proportion of successful claims seems to have been largely unaffected; so to the extent that fees were intended to weed out unmeritorious claims, the baby and the bathwater seem to have been thrown out in equal measure. But for those with an interest in effective access to justice, some slightly encouraging noises are at last beginning to emanate from Westminster and Holyrood.
On 1st September 2015, the Scottish Government announced that it would be abolishing tribunal fees once it has the power to do so. That should come with the passing of the Scotland Bill, currently going through parliament. Meanwhile, south of the border, the government’s announcement in June that it intended to review the fee system by the end of the year has been followed by a very helpful House of Commons Briefing Paper which quietly contrasts the ministerial assurances that introducing fees would not stifle genuine claims, with the reality that practitioners have experienced. If you have a quiet moment, it makes for some interesting reading.
In this e-newsletter:
Bryony Clayton considers Hall v Chief Constable of West Yorkshire Police and the mistakes that tribunals are making when considering discrimination ‘arising from’ disability
Claire Millns asks, in the light of Tirkey v Chandhok, whether the existing protection from race discrimination is wide enough to cover caste-based discrimination, despite the delay in implementing regulations to that effect.
Nicola Twine explores the practical implications of BT Managed Services Ltd v Edwards, in which a permanently incapacitated employee was held not to be assigned to the transferring workforce.
Finally, I take a brief look at the implications of the European decision in Tyco Integrated Services, which hit the headlines last month, concerning the application of the Working Time Directive to workers travelling to work.
We welcome feedback and any topics requests for future e-newsletters. Please feel free to tweet us @parklaneplowden or email us at events@parklaneplowden.co.uk.
Dominic Bayne
Employment Team
Dominic.bayne@parklaneplowden.co.uk
September 2015
In light of the Employment Appeal Tribunal decision in Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15/LA, has section 15 Equality Act 2010 solved the problem it was intended to address?
In light of the Employment Appeal Tribunal decision in Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15/LA, has section 15 Equality Act 2010 solved the problem it was intended to address?
Section 15 of the Equality Act 2010 (‘EqA 2010’) provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. There is a defence for an employer under subsection (2) which provides that subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
The rationale behind section 15 is set out in the Explanatory Note. It is said that whilst the Disability Discrimination Act 1995 provided protection from disability-related discrimination, following the judgment of the House of the Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people.
It will be remembered that the Court of Appeal decision in Clark v Novacold [1999] ICR 951 to the effect that there was no requirement to show a causal link between the reason for the treatment complained of and the disability was reversed in Malcolm: Lord Scott made clear in Malcolm that 'if the physical or mental condition that constitutes the disability has played no motivating part in the decision of the alleged discriminator to inflict on the disabled person the treatment complained of, the alleged discriminator's reason for that treatment cannot … relate to the disability' (para 29).
Baroness Hale (concurring with the majority on this point) similarly held 'I agree with Lord Bingham that to establish liability for the statutory tort of discrimination against a disabled person, it is necessary to show that the alleged discriminator either knew or ought to have known of the disability (not, of course, that in law it amounted to a disability within the meaning of the Act)’. Section 15 is aimed at re-establishing the appropriate balance between enabling a disabled person to make out a case of experiencing detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.
Please follow this link to read the full article (opens a new browser)
In light of the Employment Tribunal decision in Tirkey v Chandhok Anor [2015] ET 3400174/2013 are those subject to caste-based discrimination now protected?
The concept of “caste” is complex. It is generally understood to refer to hereditary, endogamous (marrying within the group) communities differentiated according to different functions or roles in life. The concept is commonly associated with southern Asia, and particularly India.
Caste discrimination is not expressly prohibited under UK equality legislation, although section 9 of the Equality Act 2010, as amended, requires the government to pass secondary legislation to make caste an aspect of race, thereby making caste discrimination a form of race discrimination. Ministers indicated in early 2013 that they expected that the issue of caste to be considered by government in the summer of 2015. However, news on secondary legislation has gone quiet. It remains to be seen whether the case of Tirkey will catch the government's eye and create any momentum for the change. In the meantime, does the case of Tirkey provide any protection for those subject to caste discrimination?
Background to the EAT decision
In January 2014 the case of Tirkey came before Langstaff J, President of the EAT, on a preliminary issue.
Mr and Mrs Chandhok employed Ms Tirkey, a worker from India, as a nanny. Her caste is the Adivasi, which is known as a "servant caste." She claimed that the Chandhoks treated her badly and in a demeaning manner, partly because she was from a lower caste. Ms Tirkey is a Christian.
The Chandhoks appealed against the decision of the Employment Tribunal, arguing that part of the claim should be struck out because caste is not a protected characteristic and did not fall within the definition of “race” in section 9 of the Equality Act 2010.
The case is significant as it is the first time an appellate court has been asked to consider the issue of caste based discrimination.
The EAT rejected the Chandhoks' appeal, finding that the definition of "race" in the Equality Act 2010, which includes "ethnic origin", is wide enough to encompass caste.
To read the full article please follow this link (opens in a new browser)
Helpful guidance on TUPE's treatment of long-term sick employees:
BT Managed Services Ltd v Edwards & Anor
On most business acquisition disposals or changes of service provider there is there is a question of what happens to the dedicated workforce. The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) can be a minefield for employers and give rise to expensive as well as explosive consequences. Inheriting employees on long term sick can be a hazard of a TUPE transfer
The EAT in BT Managed Services Ltd v Edwards & Anor recently considered whether an employee absent from work on long term sick leave, and regarded as permanently incapacitated, should transfer under TUPE with the rest of his colleagues when the service he was assigned to transferred to the new contractor?
The case concerned a ‘Service Provision Change’ (SPC) under reg. 3(1)(b). In simple terms when a SPC change occurs the ‘organised grouping of employees’ carrying out the work on behalf of the client will generally transfer to the new contractor under TUPE. That ‘organised grouping’ can be limited to a single employee (reg. 2(1)) but the carrying out of activities on behalf of the client must be the principle purpose of that organised grouping (reg. 3(1)(b)) in order to transfer.
Background
Mr Edwards was employed by British Telecommunications Managed Services Ltd (‘BTMS’) as a Field Operations Engineer. He originally worked for the mobile phone provider, Orange, but in 2009 his employment transferred to BTMS on outsourcing of the domestic network contract (‘DNO’). Mr Edwards had by this time been on long term sick for some time, due to heart condition. Attempts were made to find him less strenuous work but he was deemed permanently unfit and in 2010 was put on BTMS’s PHI scheme. He remained ‘on the books’.
To read the rest of the article please follow this link (opens a new browser)
In Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL the CJEU held that the time taken by technicians to travel to and from their first and last appointments of the day must be regarded as ‘working time’. What are the domestic implications of that decision?
Tyco is in the business of installing and maintaining security systems. Its technicians set off each morning from their homes in company vans to the first appointment on a list sent to them the night before. They return home once the last of those appointments has been completed. The geographical areas that they cover are such that their initial and final journeys can be as long as 100km and take as much as 3 hours. Whilst Tyco regarded travelling between appointment as working time within the meaning of the Working Time Directive, they treated the journeys to and from the first and last appointments of the day differently. The technicians argued that Tyco was wrong to exclude those journeys, and that they should be regarded as at work from the moment they left home. The CJEU agreed, sweeping aside the objections of the UK and Spanish governments in the process.
Judging from the newspaper headlines the next day, you would have been forgiven for thinking that the judgment was a victory for Britain’s low paid care workers, and other iterant employees, who should now be due a pay rise; but is the judgment really as wide ranging as that; and what, if any, effect does it have on the way the national minimum wage is calculated?
The CJEU Decision
The Court reminded itself that the definition of ‘working time’ at Article 2(1) of the directive has 3 elements to it: (1) the worker must be carrying out his duties, (2) they must be at their employer’s disposal, and (3) they must be working. It had little difficulty with the first of those elements. ‘Carrying out duties’ did not just mean providing technical services to customers but included the necessary ancillary tasks as well: just as travelling between appointments was part of the technician’s duties, so was travelling to and from the first and last. As to the second element, the Court noted that the technicians had a contractual obligation to attend the first and last appointments, which could be cancelled or changed by the employer at any time, and that during the travel time employees were not at liberty to use their time freely. It followed that they were at their employer’s disposal.
To read the rest of the article please follow this link (opens a new browser)
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