www.parissmith.co.uk
Employment law
newsletter
July 2014
1. No duty to make adjustments for mother of
disabled child
The Court of Appeal has held that employers are not
required to make reasonable adjustments under the
Equality Act 2010 for non-disabled employees associated
with disabled people.
Background
Ms Hainsworth was employed by the MOD in a teaching
role in Germany. The MOD provided facilities to educate
the children of employees who worked outside the UK
but these were not designed for children with significant
needs, such as Ms Hainsworth’s daughter who has
Down’s syndrome. As her daughter could not be schooled
in the garrison where she worked, she requested a
transfer to the UK to help meet her daughter’s needs.
When the request was rejected, Ms Hainsworth brought
a claim stating that the MOD was under a duty to make a
reasonable adjustment to her role (i.e. transferring her to
the UK) due to her daughter’s disability.
The Court of Appeal rejected this argument. They held that
it was clear from the legislation that, although employees
are protected from associative discrimination in relation
to direct disability discrimination and harassment, this is
not the case in relation to the duty to make reasonable
adjustments.
What does this mean?
Employers are not obliged to make adjustments for nondisabled employees who are in some way associated with
a disabled person.
What should employers do?
Whilst this case makes it clear that employers do not have
to make adjustments to accommodate, for example, an
employee’s disabled child, it would be good practice for
an employer to do what it reasonably can to assist such
an employee.
Employers should remember that since 30 June 2014 all
employees with more than 26 weeks’ continuous service
have had the right to request flexible working, which could
be an option for employees struggling to cope with a
disabled relative. A female employee responsible for an ill
child may also be able to claim indirect sex discrimination,
due to the fact that female employees are more likely to
have childcare responsibilities.
Reference: Hainsworth v Ministry of Defence
2. Loss of status amounted to harassment related
to disability
The Employment Appeal Tribunal (EAT) has held that
changes which led to a meaningful job becoming a menial
one violated a disabled employee’s dignity and created
a demeaning environment. This therefore amounted to
harassment related to disability.
Employers are only required to make reasonable
adjustments for disabled employees and job applicants.
© 2014 Paris Smith LLP
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Employment law newsletter
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Background
What should employers do?
Ms Hughes was a senior and long serving nurse who
developed Parkinson’s disease and could no longer carry
out clinical duties. She was transferred to an alternative
non-clinical role giving her responsibility for helping to
develop the nursing service, stock control, arranging
training for staff and assisting with clinical protocols and
risk assessments. However, over time, the meaningful
aspects of the role were eroded so that the role became
menial. Ms Hughes’ responsibility for training was
assigned to someone else without consulting with her,
policies she had written were not progressed any further
and stock control was limited to managing the stocking of
cardboard boxes. On one occasion she was required to
clear out a room and move furniture.
It sometimes becomes necessary to make changes to
a person’s job because, for example, they are no longer
fit to carry out certain aspects of the role. However, care
should be taken to consult with an employee about the
changes that need to be made, with the aid of medical
advice if necessary. Employers should then make sure
that that new role is not eroded over time so as to make
it a menial role.
The EAT held that Ms Hughes’ dignity had been violated
by the gradual erosion of her role and that this amounted
to harassment related to disability.
The European Court of Justice (ECJ) has held that a
deceased worker retains the right to pay in lieu of accrued
but untaken statutory holiday and that payment does not
depend on an interested party making an application.
Reference: Betsi Cadwaladr University Health Board v
Hughes and others
3. Estates of deceased workers are entitled to
payment in lieu of untaken holiday
What does this mean?
Background
The EAT in this case emphasised that ‘violating’ is a
strong word which should not be used lightly. Offending
someone’s dignity or hurting it is not sufficient to amount
to harassment, particularly if it should have been clear
that any offence was unintended. The effects of the
behaviour must be serious and marked and words used
must be considered in context. Thus, a letter sent by the
employer to consultants referring to the deterioration of
Ms Hughes’ health, and the employer referring her to
occupational health at points when her condition was
well managed, were not acts of harassment. However,
given the cumulative impact of the gradual erosion of her
role and her loss of status, it was correct to say that Ms
Hughes’ dignity had been violated in this case.
Therefore, the transformation of a job, even when it is
done unwittingly, from a meaningful one to a menial one
has the potential to constitute unwanted conduct which
has the effect of violating the employee’s dignity and
of creating a demeaning environment. This amounts to
unlawful harassment related to disability.
© 2014 Paris Smith LLP
Mr Bollacke was employed for several years before he
became unfit for work for several months. He then died
in November 2010. At the time of his death he had 140.5
days accrued but untaken holiday. His wife brought a
claim in the German court seeking payment from the
employer for her husband’s unpaid holiday pay.
The matter was referred to the ECJ to consider the
requirements of the Working Time Directive. This is
implemented in the UK by the Working Time Regulations
1998, which state that workers are entitled to payment in
lieu of untaken statutory holiday.
The ECJ stated that a worker’s entitlement to paid holiday
is a particularly important principle of European law and
where it is impossible for the worker to take holiday
because the employment relationship has come to an
end, the worker is entitled to payment in lieu. It is not
possible for national legislation to state that no payment
in lieu will be made if an employee has been off sick for
the whole or part of the leave year. The ECJ therefore
concluded that a worker’s death cannot remove their right
to a payment in lieu of untaken holiday.
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What does this mean?
The death of a worker does not remove their right to a
payment in lieu of untaken statutory holiday and, therefore,
a payment should be made to the worker’s estate in
respect of any accrued untaken statutory holiday. This
should be done automatically by the employer - there is
no requirement for the estate or any interested party to
make an application for such a payment.
What should employers do?
Upon the death of a worker the employer should seek
to establish the identity of the personal representative(s)
responsible for administering the worker’s estate and
then pay them any amounts due in respect of accrued but
untaken statutory holiday.
Case reference: Bollacke v K + K Klaas & Kock B.V. and
Co
4. Unfair constructive dismissal and affirmation of
contracts
The Employment Appeal Tribunal (EAT) has recently
given judgment in two separate cases on the question of
whether a contract has been affirmed by an employee.
This is important in cases where there has been a
fundamental breach of contract by the employer. In this
circumstance, the employee has the choice of either
resigning in response to that breach and claiming
constructive unfair dismissal or waiving the breach and
treating the contract as continuing. The latter is known as
affirming the contract. An employee who wishes to claim
constructive unfair dismissal must therefore not delay too
long in resigning and accepting the breach of contract by
the employer. Under s95(1)(c) of the Employment Rights
Act 1996, the employee can accept the breach with or
without notice.
In the first case, the EAT held that an employee who
gave much more notice than was contractually required
for his own financial gain had affirmed his contract and,
therefore, could not claim constructive unfair dismissal.
The EAT also clarified that it is possible for an employee
to affirm their contract even after they have resigned in
response to a fundamental breach of contract.
© 2014 Paris Smith LLP
In the second case, the EAT held that a delay in resigning
(when the employee was on sick leave) did not necessarily
amount to an affirmation of a breach of contract.
Background
In the first case, Mr Cockram was unhappy with the
outcome of a grievance he had raised and therefore
resigned. His resignation letter referred to the fact that
he considered his employer to be in fundamental breach
of contract but he gave notice that expired seven months
later (even though his contract only required him to give 3
months’ notice). He stated that he was giving such a long
notice period because he had no other work and needed
to “work for a reasonable period of time and it is for this
reason only that I am giving notice”. After Mr Cockram
had worked his seven month notice period, he claimed
constructive unfair dismissal.
The employer applied to have Mr Cockram’s claim
struck out on the basis that he had affirmed the contract
by giving seven months’ notice, which was significantly
longer than the notice period he was required to give. The
Tribunal agreed. Mr Cockram had been motivated by his
own financial reasons and had affirmed the contract. The
EAT dismissed Mr Cockram’s appeal. In particular, it held
that affirmation of the contract could take place after the
employee had resigned.
In the second case, Mr Chindove was a warehouse
operative who brought a grievance relating to racial
harassment and discrimination by a fellow employee.
There was a delay in the company dealing with the
grievance. In late August, Mr Chindove went on sick
leave. On 9 September, the company reported its findings
to him. Mr Chindove was unhappy with the findings and
escalated the matter to head office under the company’s
‘special complaint’ procedure. On 11 October, he received
a letter inviting him to discuss the matter but on 18
October he resigned. He subsequently brought a claim of
constructive unfair dismissal.
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The Tribunal dismissed his claim on the basis that the last
breach of contract had been the delay in responding to
the grievance (which continued until 9 September) and
that the six week delay between this and Mr Chindove’s
resignation was too long for that resignation to be in
response to the breach. The EAT disagreed and held
that the test of constructive dismissal is one of conduct,
not time, and the principle is whether the employee
has demonstrated his choice to accept the employer’s
fundamental breach and resign in response to it. Given
that Mr Chindove had been off sick, he had not acted
to affirm the contract during the delay between the
fundamental breach of contract and his resignation.
What should employers do?
What does this mean?
References: Cockram v Air Products Plc , Chindove v
William Morrisons Supermarket Plc
In constructive dismissal cases timing is usually
important. However, it is not to be taken in isolation. The
question is whether the employee has demonstrated
that they have made a choice to accept the employer’s
fundamental breach, which they will do by their conduct.
This will generally be by continuing to work in the job or by
communications which show that they intend the contract
to continue.
In the Cockram case, the EAT stressed that the question
of whether a contract has been affirmed or not following
an employer’s fundamental breach of contract is fact
sensitive. All the circumstances of the case will be relevant
including the length of notice given and the reason why
the notice has been given (in this case, for financial
gain). The offer to work for the employer for longer than
required by the contract of employment (in this case for
seven months rather than three) and receiving substantial
remuneration for doing so was consistent with a finding
that Mr Cockram had affirmed his contract.
In the Chindove case, the EAT held that if an employee
is off sick and not actively working it is harder to infer the
affirmation of the contract.
Employers should not assume that a delay in resigning
will cause an employee’s constructive unfair dismissal
claim to fail. These cases show that a Tribunal will look
at the employee’s conduct in all the circumstances when
assessing whether there has been an affirmation of the
contract and will not just look at the period of time that
has elapsed. Furthermore, Tribunals will treat periods of
delay when an employee is off sick differently to periods
of delay when they are at work. Arguably this principle
would also apply to other absences such as maternity or
paternity leave.
5. ACAS guidance on TUPE
ACAS has published new TUPE guidance to help
employers handle business transfers. TUPE protects
employees’ rights when the business for which they work
transfers to a new employer. The new guidance provides
a clear overview of TUPE requirements, explaining when
TUPE applies and including advice on getting the process
right, particularly in relation to information and consultation
requirements.
This guidance has been updated following recent
changes in the law relating to TUPE, including the fact
that changes to terms and conditions can now be made
post-transfer if there is a valid economic, technical or
organisational (ETO) reason entailing changes in the
workforce (including a change in workplace location) and
the employee consents to the change.
In addition, in relation to transfers which take place on
or after 31 July 2014, businesses with fewer than 10
employees (micro-businesses) are no longer required
to invite the election of employee representatives for
consultation purposes (if no existing arrangements are in
place). However, such businesses will still need to inform
and consult with the individual employees directly.
A full copy of the new ACAS guidance can be found at:
http://www.acas.org.uk/index.aspx?articleid=1655.
© 2014 Paris Smith LLP
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Employment law newsletter
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6. Compulsory equal pay audits are to be introduced
Draft legislation has been published requiring Tribunals to
order employers who have been found in breach of equal
pay law to carry out and publish equal pay audits. The
legislation is expected to come into force on 1 October
2014 and will only apply to equal pay claims presented on
or after that date.
The draft regulations provide exemptions for microbusinesses (those with fewer than 10 employees) and
new businesses (those businesses set up during the
period of 12 months up to the date on which the equal
pay complaint was made). Audits will not be ordered if the
employer has carried out an equal pay audit in the three
years prior to the breach identified, it is clear without an
audit whether any action is required to avoid equal pay
breaches occurring or continuing, the Tribunal has no
reason to think there might be other equal pay breaches,
or the disadvantages of an audit would outweigh its
benefits.
An equal pay audit will involve the publication of relevant
gender pay information, identify any differences in pay
between men and women and the reasons for those
differences, include the reasons for any potential equal pay
breach identified by the audit, and set out the employer’s
plan to avoid breaches occurring or continuing.
The Tribunal will determine whether an audit is compliant
and then the employer must publish the audit on its
website and keep it there for three years. Employers that
fail to carry out an audit when ordered to do so, with no
reasonable excuse, face a fine of up to £5,000.
It is worth noting that employers will only be required to
carry out such audits when they have lost an equal pay
case. The prospect of having to carry out an equal pay
audit may therefore encourage employers to settle their
equal pay cases.
7. The Government has
employment law reforms
announced
further
On 25 June 2014, the Government announced further
employment law reforms.
These reforms, if approved by Parliament, will:
• Ban exclusivity clauses in zero hour contracts,
enabling zero hours workers to work for more than
one employer
• Increase the penalties imposed on employers that fail
to pay the National Minimum Wage so that a penalty
of up to £20,000 will be payable per worker
• Reform whistle-blowing reporting requirements
in order to achieve a consistent standard of best
practice for handling disclosures and provide greater
reassurance to the whistle-blower that action is being
taken by the prescribed person
• Create stronger financial penalties for employers
who fail to pay Employment Tribunal awards (such
penalties being up to 50% of the original award,
capped at £5,000). Currently only around half of all
successful claimants are actually paid their Tribunal
awards. However, this penalty will be payable to the
Secretary of State and not to the claimant
• Reduce the delays in Employment Tribunals by
limiting the number of postponements allowed and
requiring Tribunals to consider costs orders in the
case of short notice postponements
• Allow exit payments to be recovered from public
sector employees in certain circumstances, including
when they leave and re-join the same part of the
public sector within a year
The Bill will now work its way through Parliament. It is not
yet known when the Government intends the Bill to come
into force.
Reference: The Small
Employment Bill 2014
Business,
Enterprise
and
Reference: Draft Equality Act 2010 (Equal Pay Audits)
Regulations 2014
© 2014 Paris Smith LLP
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Find out more
This is a summary of some of the key principles only
and is aimed at providing general information rather
than giving any specific advice. If you would like further
detailed advice on the matters dealt with in this newsletter
then please contact a member of the Employment Team.
Kathryn Casey-Evans
Associate
023 8048 2361
[email protected]
Clive Dobbin
Partner
023 8048 2370
[email protected]
Jane Biddlecombe
Solicitor
023 8048 2374
[email protected]
David Roath
Partner
023 8048 2238
[email protected]
Claire Merritt
Solicitor
023 8048 2112
[email protected]
Stephanie Merritt
Associate
023 8048 2364
[email protected]
Gemma Robinson
Solicitor
023 8048 2343
[email protected]
© 2014 Paris Smith LLP
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