In 2009 the courts and tribunals have continued to keep employment lawyers and HR professionals on their toes with a constant stream of significant cases. David Murphy takes a brief look at a dozen of the most significant and the key points arising from them.

1.  Compensation – Chagger v Abbey National – Court of Appeal
Issue: Whether an employer could be liable for “stigma” compensation where it dismissed an employee on discriminatory grounds and he could not get another job because he brought a discrimination claim.

Key points:
1. Compensatory awards may be increased to reflect the stigma of bringing a claim.  This could add significantly to the value of claims (in this case over £2m was awarded).  An employer can therefore be liable for stigma compensation. 
2.  The employee must provide compelling evidence if he wishes to be compensated for “stigma loss”.

2.  Director / employee status - Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld – Court of Appeal
Issue:  Whether a director and controlling shareholder of a company can also be an employee and therefore make a claim on the National Insurance Fund for payments due if the company becomes insolvent.

Key points: 
1.  It is possible for a director and controlling shareholder of a company to also be an employee. 
2.  The Court provided guidance to Tribunals on what factors they should considering when addressing this point - http://www.hrlaw.co.uk/site/news/can_a_director_also_be_an_employee.html

3.  Discrimination – Case No.1 - Amnesty International v Ahmed – Employment Appeal Tribunal
Issue:  Did Amnesty discriminate when it did not promote an employee to a post due to concerns that the person’s ethnicity may affect Amnesty’s reputation for impartiality and increase safety risks?

Key points: 
1.  A benign motive is no defence to a discrimination claim; the only issue was whether the reason for the treatment was the employee’s ethnicity.
2.  The fact that an employee has been discriminated against does not automatically mean the employee has been constructively dismissed.

4.  Discrimination – Case No. 2 - Grainger v Nicholson – Employment Appeal Tribunal
Issue:  Whether the employee’s belief in man-made climate change was a “philosophical belief” under the religion or belief discrimination regulations.

Key points: 
1.  His belief was a “philosophical belief”.
2.  The Employment Appeal Tribunal set out the factors to be considered by tribunals when deciding whether a belief qualified as a “philosophical belief”.

5.  Discrimination – Case No. 3 - English v Thomas Sanderson Blinds – Court of Appeal
Issue:   Was a heterosexual employee protected by the sexual orientation discrimination regulations when he was tormented by homophobic banter about him being “gay”.

Key points: 
1.  He was protected under the sexual orientation discrimination regulations.
2.  Employers are exposed to claims even if the grounds for the discrimination are factually incorrect.

6.  Discrimination – Case No. 4  - Da’Bell v NSPCC – Employment Appeal Tribunal
Issue:  The amount that can be awarded for “injury to feelings” in discrimination cases and whether the “Vento” bands be increased to account for inflation.

Key point:
The bands were increased.  The lower band is now up to £6,000, the middle band is now up to £18,000 and the upper band is now up to £30,000.

7.  Holidays and Sickness – Case No. 1 - HMRC v Stringer – European Court of Justice and the House of Lords
Issue:  Do workers on sick pay continue to accrue holiday rights?

Key points:
1.  The European Court of Justice confirmed that workers on sick leave continue to accrue holiday rights.
2.  The House of Lords said that the Working Time Regulations must be read in such as a way as to allow workers on long term sick leave to take their statutory holiday entitlement and be paid in respect of it.
3.  The position on carry over of accrued holiday from one holiday year to the next is still unclear.

8.  Holidays and Sickness – Case No. 2  - Pereda v Madrid Movidad – European Court of Justice
Issue: Can an worker “reclaim” holiday if they are sick when on holiday?

Key points:
1.  The ECJ said that workers must be able to reclaim holiday lost due to sickness and to take such holiday at a later date.
2.  The ECJ’s decision conflicts with the UK Working Time Regulations which will need to be amended. 

9.  Representation at disciplinary hearings  - Kulkarni v Milton Keynes Hospital NHS Trust – Court of Appeal
Issue:  Whether the right to a fair hearing enshrined in Article 6 of the European Convention on Human Rights meant that an employee can be accompanied by a lawyer a disciplinary meeting.

Key points: 
1.  Article 6 can give an employee a right to be accompanied a disciplinary hearing by a lawyer where the employee risks losing the ability to practise his profession if he is dismissed.
2.  The case is being appealed to the Supreme Court so this may not the last word on the subject.

10.  Redundancy selection - Rolls Royce v Unite - Court of Appeal
Issue: Was it lawful to take into account an employee’s length of service as part of a redundancy selection exercise?

Key point:
Taking into account length of service was lawful because in doing so Rolls Royce was pursuing a legitimate aim (rewarding loyalty) and doing so in a proportionate way (it was one of many criteria used).

11.  Retirement - The Heyday case – High Court
Issue:  Was the statutory default retirement age of 65 lawful?

Key point:
1.  The statutory default retirement age is lawful…….for the time being. 
2.  The Government will be reviewing the position in early 2010.  As a result the default retirement age may be increased in the future.

12.  TUPE transfers - Tapere v South London & Maudsley NHS Trust – Employment Appeal Tribunal
Issue:  Was a change in location and a resulting change in commuting distance of 2.5 miles following a TUPE transfer a “substantial change in working conditions to the material detriment” of the employee such that she could treat her contract as terminated by dismissal under TUPE?

Key point:
1.  The change was a substantial change to the employee’s material detriment.
2.  Whether or not something is to the employee’s material detriment should be considered from the employee’s point of view.

David Murphy is an employment and HR lawyer and a Senior Associate at Fox Williams LLP.  He can be contacted on 020 7614 2633 or dmurphy@foxwilliams.com