15 October 2007

NEWS

Thousands of Small Businesses Crippled by Post Strike

Small businesses are preparing themselves for more disruption as the Communication Workers' Union (CWU) plans a new wave of national strikes by Royal Mail workers.  Read more

Worker Dismissed for Wearing Nose Stud is Reinstated

A worker at Heathrow airport who was dismissed for refusing to remove a nose stud (claiming that it is worn as a symbol of her Hindu faith) has been reinstated.  Read more

Sixty Two Per Cent of Young Workers Won't Reveal Career Goals to Their Bosses

A survey by global HR consultancy BlessingWhite has revealed that 62 per cent of 16-24 year olds do not discuss their career aspirations with their managers.  Read more

Case on "Discrimination by Association" Being Heard by ECJ

A mother's claim that she was discriminated against at work because of her disabled child is now being heard by the European Court of Justice (ECJ).  Read more

Sainsbury's Praises "Superior" Work Ethic of Immigrant Workers

In a written submission to a House of Lords inquiry into the impact of immigration, Sainsbury's has praised immigrant workers' work ethic which is "in many cases superior to domestic workers".  Read more

Businesses Failing to Ensure Work Vehicles are Smoke-Free

According to a survey by Vansunited.co.uk, an online commercial vehicle sales site, hundreds of companies operating light commercial vehicles are risking fines of up to £1,000 for failing to ensure work vehicles are displaying "no smoking" signs.  Read more

LEGISLATION

There is no new legislation to report this week.

CASES

Freshfields Wins Age Discrimination Claim

An employment tribunal has held that a law firm did not discriminate unlawfully on grounds of age when it made changes to its pension arrangements.  Read more

Step 1 Letter Wording Met Statutory Requirements Even Though Possibility of Dismissal not Mentioned

The EAT has held that a step 1 letter inviting an employee to a "formal disciplinary hearing" is capable of implying that the employer is considering dismissal or some other disciplinary action. The letter therefore complied with the statutory dispute resolution procedures.  Read more

NEXT HR NETWORK EVENT

Our next HR Network Event will be our Workshop on Age Discrimination: new cases, new perspectives.  A full list of HR Network workshops and seminars is available here.

FEEDBACK

Please let us know what topics are of interest to you by emailing HRnetwork@pinsentmasons.com. This will help us to shape future editions of this Briefing and HR Network events.

© Pinsent Masons 2007

This bulletin is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.

NEWS

Thousands of Small Businesses Crippled by Post Strike

Small businesses are preparing themselves for more disruption as the Communication Workers' Union

(CWU) plans a new wave of national strikes by Royal Mail workers. 

Consumer groups and businesses leaders have warned that the proposed strikes, centred on a dispute over pay, pensions and working practices, could severely damage the economy and long-term trust in the postal service.  As businesses are recovering from the end of a four-day strike by Royal Mail workers, there is concern that further strikes could worsen problems faced by family businesses who rely on posted cheques to keep their businesses afloat.

A spokesman for the Federation of Small Businesses expressed concern for its members: "Our research shows that 94 per cent of our members use Royal Mail exclusively and 90 per cent send and receive mail every day.  It is devastating for them.  Many small firms rely on cheques coming through the post for their cash flow, and so then have to borrow from the bank.  With the turmoil in the banking sector it is a very difficult time.  These strikes could result in millions or even billions of pounds being lost."  (Times, 10 October 2007)  Back

Worker Dismissed for Wearing Nose Stud is Reinstated

A worker at Heathrow airport who was dismissed for refusing to remove a nose stud (claiming that it is worn as a symbol of her Hindu faith) has been reinstated. 

As reported in our earlier Briefing, Amrit Lalji was dismissed from her job at Heathrow airport by Eurest UK after she refused to remove her nose stud.  Eurest have now reinstated Ms Lalji.  A spokesperson for Eurest said: "In the course of our research we have found that the rules relating to facial piercings are mandatory only in catering operations, her dismissal resulted from a misunderstanding of the rules and is therefore unjustified."

Tahir Bhatti from the GMB union welcomed the decision by Eurest.  (Workplace Law, 5 October 2007) Back

Sixty Two Per Cent of Young Workers Won't Reveal Career Goals to Their Bosses

A survey by global HR consultancy BlessingWhite has revealed that 62 per cent of 16-24 year olds do not discuss their career aspirations with their managers.

The survey of 470 workers in the UK also revealed that 49 per cent of women, compared to 39 per cent of men, discuss their career goals with their managers.

Tom Barry, UK managing director of BlessingWhite, said "Instead of simply drifting along in a job, employees of all ages need to take an active role in determining their future career path.  Only then can employers help them to achieve their goals.  Managers need a framework for structured, open communications with employees about their careers."  (Personnel Today, 10 October 2007)  Back

Case on "Discrimination by Association" Being Heard by ECJ

A mother's claim that she was discriminated against at work because of her disabled child is now being heard by the European Court of Justice (ECJ).

Sharon Coleman, whose son was born with a rare condition affecting his breathing and is also deaf, claims that she was forced to resign from her job as a legal secretary at Attridge Law Solicitors as a result of a range of discriminatory experiences including:

• receiving criticism for seeking to take parental leave at the end of her maternity leave in circumstances where the parent of a non-disabled child would not have been criticised;
• being criticised and described as 'lazy' when she sought to take time off to care for her child, whereas others were allowed time off for the purpose of childcare for their non-disabled children;
• being told that her "fucking child" was "always fucking ill" and accused of using her child to manipulate her work conditions; and
• not being allowed to work from home, whereas others were allowed to do so when they had difficulties with care for non-disabled children.

Ms Coleman's claim, backed by the Equality and Human Rights Commission (EHRC), was referred to the ECJ by the Employment Tribunal in order to decide whether the European Directive Framework Directive gives protection against harassment not only to those who are disabled, but also to people who are discriminated against because of their association with disabled people.  

The legal group director of the EHRC, John Wadham, said: "This is truly a landmark case and I hope it will have a real impact on the lives of millions of carers, sixty per cent of whom are women.  People will no longer have to live in fear of losing their jobs whilst looking after their loved ones, and employers will have to become more flexible.  I hope that employers will recognise the importance of this case which should inform best practice."  (EHRC Press Release, 9 October 2007)  Back

Sainsbury's Praises "Superior" Work Ethic of Immigrant Workers

In a written submission to a House of Lords inquiry into the impact of immigration, Sainsbury's has praised immigrant workers' work ethic which is "in many cases superior to domestic workers".

In its submission Sainsbury's said immigrant workers: "tend to be more willing to work flexibly, and be satisfied with their duties, terms and conditions and productivity requirements."

Sainsbury's also believes the work ethic of immigrant workers is having a positive effect on its domestic staff: "In the long term, this could have a positive effect on their domestic colleagues.  In some areas we have definitely seen a positive shift in culture where migrant workers have been introduced, which has led to a more diverse workforce fostering a more engaged group of workers."

The disadvantages of employing migrants were also addressed by Sainsbury's.  In its submission it wrote: "Language barriers are a disadvantage, and migrants' understanding of health and safety requirements are naturally a major concern.  Here again we have had to take a very flexible approach by adapting our communications and signage."

Sainsbury's said it had increased the number of immigrants it employed over the last two years, an increase which was not resisted by trade unions.  With an ageing UK population, Sainsbury's believes it is likely to continue to increase the number of immigrants it employs. 

As Professor David Blanchflower, who sits on the Bank of England's monetary policy committee, spoke of increased fears of unemployment and increased competition for jobs as a result of immigration, the Commission for Racial Equality (now subsumed into the Equality and Human Rights Commission) said it was important to recognise the wider impact of migrant workers in the economy.  It said: "On the surface, the economic contribution of a low-paid migrant working as a cleaner or a security guard, for instance, may seem small, but it is important to recognise that their work may support that of more highly paid workers."  (Telegraph, 9 October 2007)  Back

Businesses Failing to Ensure Work Vehicles are Smoke-Free

According to a survey by Vansunited.co.uk, an online commercial vehicle sales site, hundreds of companies operating light commercial vehicles are risking fines of up to £1,000 for failing to ensure work vehicles are displaying "no smoking" signs.

The survey of 1,073 van drivers found that just 51 per cent had been provided with a "no smoking" sticker for their work vehicle.  Of those surveyed 44 per cent are unaware of the rules prohibiting smoking in company vehicles and only 22 per cent are being offered support to help them avoid smoking in their vans.

In last week's Briefing we reported that the first fine for smoking in a work vehicle had been issued in North Wales.  The possibility of more fines being issued seems highly likely – the survey by Vansunited.co.uk found that 11 per cent of respondents had flouted the smoke-free regulations by smoking in their work vehicle since the smoking ban came into force on 1 July 2007.

Duncan Colman, manager of Vansunited, said: "Although we may not all agree with the new legislation, our research has shown more support is needed for UK workers – some of whom are heavy smokers – to help them manage the personal implications of the ban and avoid the temptation of lighting up whilst driving.  It will be small businesses that feel the force of the Government's penalties should their workers be caught sparking up."  (Workplace Law, 10 October 2007)

To view our Update on the smoking ban in England click here.  Back

LEGISLATION

There is no new legislation to report this week.

CASES

Freshfields Wins Age Discrimination Claim

An employment tribunal has held that a law firm did not discriminate unlawfully on grounds of age when it made changes to its pension arrangements.

Freshfields made changes to its pension arrangements for partners, recognising that it needed an arrangement which was more sustainable and which took account of the interests of the different generations of partners.  When making the changes, it also introduced transitional arrangements for those nearing retirement age in order to ameliorate the impact of the changes. After opting to retire with a full pension rather than accept a pension reduced by 20% under the transitional arrangements, Peter Bloxham claimed age discrimination.

The employment tribunal held that Mr Bloxham had been treated less favourably on grounds of age and had therefore suffered direct age discrimination, but went on to hold that the treatment was justified as a proportionate means of achieving a legitimate aim and so was not unlawful.  It accepted Freshfields' arguments that:

• The reform of pensions was necessary and finding an acceptable solution was a difficult matter
• The reform involved balancing conflicting interests among different generations
• One of the main drivers had been the unfairness of the existing arrangements to younger partners
• The aim was extremely important to the future of the firm
• A reasonable transitional provision to allow those who had already accrued rights to retire under the existing rules was permissible but it would be a wholly different proposition to suggest those rights should have been enhanced when all others' had been reduced
• The solution was arrived at after many months of work and analysis with the help of expert advice
• The consultation process was extensive and adequate and had included the direct participation of Mr Bloxham at a consultation with a QC on the legality of the arrangements
• Every concern raised by partners in the consultation process was carefully addresses and not rejected without full reasons being given
• The reforms needed the consent of a two-thirds majority of the partners and the substantial majority the proposals actually received indicated there had been sufficient and proper consultation
• No alternative less discriminatory means had been put forward at any stage.

This is one of the first decisions given under the age discrimination regulations and is certainly one of the most high profile.  The tribunal's findings that direct discrimination was justified is of particular interest in view of the fact there no justification defence is available in other areas of discrimination law, such as sex and race discrimination.  The factors taken into account by the employment tribunal in concluding that Freshfields' aims were legitimate and the means used to achieve them proportionate will be of interest to employers seeking guidance in this particularly complex area.   It is interesting that the tribunal considered that the justification test "was not merely met but was comfortably passed" by Freshfields. 

Bloxham v Freshfields Bruckhaus Deringer  Back

Step 1 Letter Wording Met Statutory Requirements Even Though Possibility of Dismissal not Mentioned

The EAT has held that a step 1 letter inviting an employee to a "formal disciplinary hearing" is capable of implying that the employer is considering dismissal or some other disciplinary action. The letter therefore complied with the statutory dispute resolution procedures.

In breach of company policy, two employees had used a company vehicle for purposes unconnected with company business.  The employees were spotted by their manager, who had seen the vehicle in an unusual area and approached them for an explanation.  Both employees admitted that they were using the van for a 'foreigner' (the vernacular for private work within the company) and were dismissed for gross misconduct following a disciplinary hearing.

One of the employees subsequently brought a claim of unfair dismissal before the employment tribunal. The tribunal found that his dismissal was automatically unfair as the company had not followed the correct statutory procedure.  In particular, at step 1 the Claimant's letter did not state that dismissal was a possible outcome of the meeting, and at step 2 the company had failed to provide the Claimant with sufficient detail of its allegations to enable him to consider his response before the meeting.

The EAT disagreed with both conclusions.  Although previous case law had confirmed that at step 1 "the employee simply needs to be told that he is at risk of dismissal and why", the EAT accepted that it was implicit in the step 1 letter to the Claimant that the company was contemplating dismissal or some other form of disciplinary action.  Secondly, although the statutory procedure refers to step 1 and step 2, it is not a requirement that the step 2 events should follow the step 1 letter.  Accordingly, by stating in the step 1 letter that the Claimant's manager (who had caught the Claimant red handed and challenged him at the time) would attend the meeting to present the relevant facts, the company had made the Claimant fully aware of the reasons for the disciplinary meeting and had therefore discharged its obligations under step 2.

Although this case turned on its specific facts, it demonstrates that the EAT is prepared to take a pragmatic view when enforcing the statutory procedures.  However, in the absence of certainty over what may constitute "implicit" compliance, employers should still ensure that the risk of dismissal is clearly communicated to employees in the step 1 letter.

Homeserve v Dixon  Back

© Pinsent Masons 2007

This bulletin is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.

Should you have any questions please contact your usual Pinsent Masons advisor, your local office (see below) or hrnetwork@pinsentmasons.com

National Head of Employment

Chris Booth