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Labour Law Review 2010

by Rebecca Tuck, Betsan Criddle & Claire Bowsher-Murray


Rebecca Tuck is a barrister at Old Square Chambers specialising in employment law. She practices in all aspects of employment law, and her cases in the last year have included injunctions in strike action cases, equal pay litigation and high value discrimination cases. She is a contributor to Harvey on Industrial Relations and Employment Law. Betsan Criddle is a barrister at Old Square Chambers specialising in employment and discrimination law. Her particular areas of expertise are equal pay, where she has represented claimants in numerous mass claims in local government and the NHS, and pregnancy and maternity discrimination. She is co-author of Employment Tribunal Procedures (LAG, 2004) and a contributor on employment tribunal procedure to Employment Precedents and Company Policy Documents (Sweet and Maxwell)�. Claire Bowsher-Murray is a barrister at Old Square Chambers, practising in all areas of employment law. She is a contributor to the forthcoming Equality and Discrimination Law Loose-leaf (OUP 2010).

This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibilty of the Institute is limited to approving the publication as worthy of consideration within the labour movement.

ISBN 978 1 906703 11 0 October 2010 Published by the Institute of Employment Rights 4th Floor, Jack Jones House, 1 Islington, Liverpool L3 8EG office@ier.org.uk Design and layout by Smith+Bell Design (www.smithplusbell.com) Printed by The Russell Press (www.russellpress.com)


Contents GUIDE TO ABBREVIATIONS ........................................................................................................iii INTRODUCTION..............................................................................................................................................1 Industrial Action ................................................................................................................................................2 Trade Union members ............................................................................................................................3 Central Arbitration Committee......................................................................................................3 Negligence and health and safety at work ..................................................................3 Harassment ..................................................................................................................................................3 Negligence ....................................................................................................................................................4 Work at Height ........................................................................................................................................5 Pay and other terms and conditions....................................................................................6 National Minimum Wage ......................................................................................................................8 Employment rights........................................................................................................................................9 Employment Contracts ..............................................................................................................9 Whistleblowing ....................................................................................................................................10 Working Time Regulations ............................................................................................................12 Worker?..........................................................................................................................................................12 Holiday Pay ..............................................................................................................................................13 TUPE ............................................................................................................................................................................14 Unfair Dismissal ............................................................................................................................................16 Remedies (other than discrimination) ............................................................................20 Redundancy ......................................................................................................................................................22 Equality......................................................................................................................................................................23 Equal Pay ..............................................................................................................................................................24 Sex discrimination ....................................................................................................................................28 Pregnancy and maternity rights..............................................................................................30 Race Discrimination ................................................................................................................................30 Disability Discrimination ....................................................................................................................32 Disabled? ....................................................................................................................................................32 ii Labour Law Review 2010


Comparator ..............................................................................................................................................33 Reasonable adjustments......................................................................................................34 Religion or Belief ..........................................................................................................................................35 Sexual Orientation ....................................................................................................................................36 Age Discrimination ....................................................................................................................................36 Human Rights ................................................................................................................................................37 Discrimination remedies....................................................................................................................40 Employment Tribunals..........................................................................................................................42 ENDNOTES ........................................................................................................................................................46

Guide to abbreviations AG CA CAC CPR DDA 1995 DRA EA 2010 EAT ECHR ET HC HL ICE 2004 PCP RRA 1976

Advocate General Court of Appeal Central Arbitration Committee Civil Proceedure Rules Disability Diuscrimination Act 1995 Default Retirement Age Equality Act 2010 Employment Appeal Tribunal European Convention on Human Rights Employment Tribunal High Court House of Lords Information and Consultation of Employees Regulations 2004 Provision, Criteria or Practice Race Relations Act 1976

Labour Law Review 2010 iii


Labour Law Review 2010 Introduction 2009/10 has seen a 56% increase in the number of claims presented to Employment Tribunals (ETs)since 2008/09. This may strike many of you as unsurprising given the economic climate and the disputes in the airline industry which have led to thousands of working time claims being presented every 3 months. Not only have thousands of equal pay complaints continued to progress through the legal system, but we have also had some significant industrial action cases, particularly after strikes by BA staff. It has not therefore been a quiet year to break me into the editing role of this annual review! All those dealing with employment law have also been busy over the last few months preparing for October 2010 which will see many provisions of the Equality Act coming into force, with the stated intention of streamlining and strengthening discrimination law. I follow however in the esteemed footsteps of HHJ Jeremy McMullen QC and Jennifer Eady QC, and hope to be as successful as they were in reporting on the most significant cases of the past twelve months, aiming to provide clear explanations but avoiding oversimplification. I am indebted not only to my co-authors, Betsan Criddle and Claire Bowsher-Murray, but also Victoria Webb, also of Old Square Chambers. Rebecca Tuck Old Square Chambers, September 2010

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Industrial Action The recent series of high profile cases involving injunctions against industrial action will not have escaped readers’ attention. Most such cases turned on the Union’s compliance (or lack of it) with the incredibly complex statutory strike ballot notification requirements. Chief among them was British Airways v Unite the Union,1 in which a small proportion of those balloted were no longer employed by British Airways and were therefore not entitled to vote. It was common ground that, even discounting such votes, there was overwhelming support in the ballot for the proposed strike action. That, said the High Court (HC), was irrelevant. Nor could the Union rely on the “accidental failure” defence, as it knew or ought to have known that it had balloted people who were not entitled to vote. In the earlier case of Metrobus v Unite,2 the Union argued that the notification rules were so onerous that they constituted a disproportionate interference with the right to strike under Article 11 of the European Convention on Human Rights (ECHR). The Court of Appeal (CA) agreed that the rules were “detailed and legalistic” but, rejecting the Article 11 argument, said it was not unreasonable to require the Unions to comply with them. The Article 11 argument also failed in EDF Energy Powerlink Ltd v RMT.3 In that case, the Union failed to refer in the notice to the employer’s own categories of workers, which it could have obtained through its shop stewards. That being the case, the High Court held, the interference with Article 11 rights was not disproportionate. The RMT have now started proceedings on this point in the European Court of Human Rights. A rare finding of compliance with the ballot requirements came in the second case in the past year involving British Airways and Unite: British Airways v Unite the Union (No 2).4 That case considered the obligation on the Union to take “such steps as are reasonably necessary” to notify voters of the ballot outcome. The Union had published all the required information on its website and had sent some of the required information to voters via email and text message. British Airways argued that the fact that the Union had not sent all of the required information by direct means, but had instead relied on voters visiting the Union website, meant that the Union had not taken all reasonably necessary steps. The Court of Appeal disagreed. It said that the test was whether the Union had done “what a reasonable and prudent person would think necessary in the circumstances.” Making the information readily accessible on the website fulfilled that criterion. 2 Labour Law Review 2010


Trade Union members In an appeal to the Employment Appeal Tribunal (EAT) against the decision of a Certification Officer, it was ruled in Scargill v National Union Of Mineworkers5 that the right of members to vote for those seeking to fill certain posts (in this case candidates for the national executive committee) only arose during the election itself. In this case therefore, Mr Scargill’s complaints that members of a branch had been denied the right to vote for the candidate who was to get the nomination to stand for election, failed. The EAT held that the statutory procedures entitling members to vote only kicked in once nominations were complete, even if the pre-nomination stage involved a vote.

Central Arbitration Committee In Darnton v Bournemouth University6 the EAT agreed with the Central Arbitration Committee’s (CAC) conclusion, which we reported last year,7 that consultation following a request for recognition under the Information and Consultation of Employees (ICE) Regulations 2004 should begin “as soon as reasonably practicable.” There was no three month deadline, as the Government guidance to the Regulations had suggested. The employer was not in breach of the Regulations because it had not been reasonably practicable to start consultation until more than three months after the request.

Negligence and health and safety at work Harassment Two years ago, in Conn v Council of the City of Sunderland,8 the Court of Appeal said that the “touchstone” in identifying “harassment” under the Protection from Harassment Act 1997 was whether the conduct would “justify the sanctions of the criminal law.” This year, Veakins v Kier Islington9 appears to recommend a change of emphasis which is favourable to claimants seeking to bring claims for workplace harassment. In that case, the Court of Appeal said that the primary focus was whether the conduct complained of was “oppressive and unacceptable”, albeit it must be borne in mind that the conduct must be of an order which would sustain criminal liability. In Marinello v City of Edinburgh Council,10 the Scottish Court of Session went one step further. The test, it said, was indeed Labour Law Review 2010 3


As the authors of this edition of Labour Law Review note, last year saw a 56% increase in the number of employment tribunal claims. In the current economic and political climate, it is likely that the year ahead will see a further increase as workers and their unions resist employer attempts to reduce labour costs by cutting jobs, pay and pensions. In this hostile environment, keeping informed of major statutory and judicial developments is more important than ever. This year’s Review covers case law on pay and conditions, national minimum wage, unfair dismissal, working time regulations, holiday entitlement, redundancy rights and much more. One of the main statutory changes addressed in the Review is the introduction of the Equality Act 2010, which brings together the many strands of equality law. Regular readers of the Review will be pleased to note that as the Act uses much of the same wording as previous legislation, the case law outlined in earlier Reviews will remain relevant. So, if you haven’t got a full set of Reviews, now’s the time to order back copies!

£6.50 trade unions and students £20 others

Preview: Labour Law Review 2010  

A review of Employment Law in 2010

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