Case Watch 2012

In December, employment partner Mark Watson spoke at the last Fox Williams hrlaw seminar of the year about some important court and employment tribunal decisions to look out for in 2012. Below is a summary of those cases.

Age discrimination

Justification of a mandatory retirement age is the key issue in the case of Seldon v Clarkson Wright & Jakes. The Supreme Court is to hear an appeal against the Court of Appeal’s conclusion that a rule requiring partners in a law firm to retire at 65 was discriminatory, but was objectively justified. It was a proportionate means of achieving the legitimate aims of workforce planning and providing associates with promotion opportunities. Partners are not employees, but this case will provide some guidance as to what the courts see as objective justification and help identify the hoops employers and partnerships will have to jump through to justify a mandatory retirement age.  

Employers will also be interested to see the outcome of two other age discrimination cases which should provide guidance on the extent to which cost considerations can provide objective justification for discriminatory behaviour. The EAT in Woodcock v Cumbria Primary Care Trust heard a claim by a redundant chief executive whose redundancy was rushed through without proper consultation so that his notice period expired before he qualified for very expensive enhanced pension payments. This would have provided him with an unintended windfall. The Court of Appeal will decide whether the EAT’s decision that this was justified was correct – its decision is expected in the first quarter of 2012.

In HM Land Registry v Benson, certain older workers were not accepted for voluntary redundancy because the employer had a limited budget, and their redundancies would have been too expensive. Applications from employees between the age of 50 and 55 were rejected as a result. The employment tribunal decided that this was unjustified indirect age discrimination  - the EAT hearing has taken place and judgment is awaited.

Disability discrimination

Fielding v Derbyshire County Council is being heard on 16 February 2012. This is an appeal against the employment tribunal’s decision that an employee who was clinically depressed was not disabled for the purpose of discrimination legislation as their medication and treatment resulted in there being no ongoing symptoms. Under the Equality Act 2010 an individual who is taking medication to help them get on with day-to-day activities is still treated as having a disability if it can be shown that they could well be affected in a significant way if they stop taking the medication. Will the EAT agree with the employment tribunal that an employee undertaking continuing treatment which meant there was no ongoing symptoms of depression is not disabled, or will it as expected reverse the decision?

Transfer of undertakings

Here’s a case for TUPE aficionados. A reference has been lodged in the ECJ in Parkwood Leisure Ltd v Alemo-Herron and others. This explores whether, if an employee’s contract provides that pay is set by collective agreements that are negotiated from time to time, a buyer of a business takes the contract subject to the collective agreement as it is at the date the business is bought, or whether a more dynamic concept applies resulting in the buyer being bound by any later changes that are negotiated post-transfer. If the buyer has no chance of influencing post-transfer negotiations, that seems harsh. It is hoped that the static interpretation will prevail.

Holidays

The past year has highlighted a common problem faced by employers: must they allow a sick worker to carry over their holiday entitlement to the next year? ECJ decisions have answered in the affirmative.

NHS Leeds v Larner is due to be heard by the Court of Appeal in March 2012 and is the employer's appeal against the EAT's decision that a worker, who had been on sick leave for an entire leave year and had not taken any holiday during that period, was entitled to a payment in respect of that year's unused statutory holiday entitlement on the termination of her employment.

On a similar note, Fieldsend v Liverpool Primary Care Trust, which was heard back in November 2011, is the employee’s appeal against the decision that a sick worker could carry over both her statutory and contractual holiday entitlements, untaken due to her illness, to the following leave year.

Will these cases be part of the fightback?

Vicarious liability

The Court of Appeal has reserved judgment in Wallbank v Wallbank Fox Designs Ltd on the issue of whether the employer was vicariously liable for an assault that took place in the workplace. An employee, angry at being told off, attacked the managing director. The High Court decided the employer was not vicariously liable. This case should provide insight into how far the Court of Appeal wants to go in holding that an employer is vicariously liable for an employee’s actions. It would be strange if the appeal did not succeed.