New Year, New Problems

New year, new problems..

2010 saw key developments in case law which Ozlem Kulle and Helen Besch outline in their articles. This article highlights key cases that are likely to be decided in 2011.


Age discrimination

The ECJ is considering in the German case of Fuchs v Land Hessen whether keeping costs down can be a relevant factor when deciding whether a compulsory retirement age is objectively justified. The ECJ will consider the question "does an interest in saving budgetary resources and labour costs ... represent a legitimate aim within the meaning of Article 6(1)" of the Equal Treatment Framework Directive?

This question of using costs as a justification was recently reviewed by the EAT in the case of  Woodcock v Cumbria Primary Care Trust. The ECJ decision will be interesting for employers, particularly in light of the abolition of the default retirement age in October 2011, after which any retirement age will have to be objectively justified.

Discipline and grievances

The Supreme Court is to hear an appeal on 11 April 2011 against the Court of Appeal’s decision in R (on the application of G) v X School and others where it was held that a teaching assistant was entitled to legal representation during disciplinary proceedings after allegedly kissing a 15 year old male student, as the proceedings would have a “substantial influence or effect” on the teaching assistant’s right to practice his profession.

Another case attempting to push the boundaries on whether there is a right to legal representation in disciplinary proceedings is Hameed v Central Manchester University Hospitals NHS Foundation Trust which is due to float in the Court of Appeal on 21 or 22 February 2011. In this case an ophthalmologist has appealed the High Court decision that Article 6 of the ECHR (the right to a fair trial) did not apply to disciplinary proceedings against her as the circumstances of the case were not such that she would be barred from future employment.

It is to be hoped that these two cases will provide some guidance for employers as to the circumstances where legal representation must be allowed.

Holidays and long-term sick leave

The EJC, in the case of KHS AG v Schulte, will consider the question of whether statutory minimum paid annual leave expires at the end of the leave year, or whether it continues as an accruing right from one year to the next. Depending on the outcome, this could prove a useful decision to employers who are having to deal with the financial repercussions of recent ECJ pronouncements over the holiday rights of employees on long-term sick leave.

Sex discrimination

Last year the law firm Eversheds was ordered to pay £123,300 to an associate who successfully argued that he was unfairly dismissed and suffered sex discrimination by being treated less favourably than an associate who was on maternity leave ¬during the firm’s redundancy process. The firm gave the female associate preferential treatment in its marking of one of the redundancy selection criteria (when it gave her the maximum mark). Eversheds appealed and the case was heard in the EAT on 1 December 2010. The decision is awaited. The outcome of Eversheds LLP v de Belin may provide employers with some guidance on the way in which criteria should be marked where one of the employees is on maternity leave.

Team moves

Tullett Prebon plc and others v BGC Brokers LP and others saw nine brokers resign from Tullet to avoid meeting their contractual obligations and the brokers claiming constructive dismissal. The High Court rejected their argument and came down on the side of the employer, stressing that the courts will analyse claims such as these with heavy scepticism. The case highlights that there is a high legal risk for employees engaging in team moves and there are many obligations, express and implied, which can easily be breached. Judgment in the Court of Appeal was reserved on 15 December 2010 on the question of whether the group of brokers who resigned to join BGC were constructively dismissed. More helpful pointers for predatory employers can be expected.

Transfer of undertakings and administration

Judgment in the case of Olds v Late Editions, heard in the EAT along with three other cases, was reserved on 19 October 2010. This comes in the wake of the decision in Oakland v Wellswood which held that TUPE might not apply to transfer employees on a pre-pack administration where there was no prospect of rescue. The Court of Appeal in Oakland expressed concerns that the ET had taken the wrong approach and the EAT will hopefully provide clarification on whether and in what circumstances pre-packs are able to escape TUPE. This could have serious consequences for those buying businesses from administrators.

Transfer of undertakings and collective agreements

The case of Parkwood Leisure Ltd v Alemo-Herron and others is to be heard on 13 April 2011 in the Supreme Court. 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 collective agreement as it is at the date the business is bought, or whether a more dynamic concept applies and the buyer is bound by any later changes that are negotiated post transfer. It is hoped that the static interpretation will prevail.

Transfer of undertakings and equal pay claims

There has been no date set as yet for the EAT to hear the case of Buchanan and another v Skills Development Scotland Co Ltd, however this is an important case to look out for. Under TUPE, new employers take on transferring employees on their existing terms and conditions of employment, and any changes to their terms and conditions as a result of the transfer will usually be void. However the Equal Pay Act implies a clause into a female employee’s employment contract which replaces any less favourable terms with the more favourable terms of a male employee’s contract. The exception to this is where a difference in contractual terms is due to a genuine material factor other than the gender of the individual. The ET in Buchanan held that an employer cannot rely on TUPE as a genuine material factor defence to an equal pay claim forever. Although some ring-fencing of otherwise discriminatory terms is permitted, an employer must take steps to harmonise terms and certainly should not continue those terms beyond their end date under the contract of employment (which in this case the employer did by continuing to increase the pay of male employees beyond the date their contracts required this to be done).

Whistleblowing

The case of Korashi v Abertawe Bro Morgannwg University NHS Trust involves a doctor who told police that a surgeon at the hospital where he worked had caused the deaths of four patients and that the same surgeon had operated on over one hundred other patients when he was not qualified to do so and did not have valid consents. The ET decided that some of the allegations had not been made in good faith. As a result, there was no protected disclosure and the whistleblowing claim failed. The case is to be heard in the EAT on 24 January 2011 and should determine whether it is necessary for the whistleblower to reasonably believe that all the allegations disclosed are true, or whether it is sufficient that the whistleblower believes that only some of the allegations are true, in order for there to be a protected disclosure.