Our aim is to keep you up to date with key developments in employment law so that you can manage your business better. Please note that the Newsletter is for information only. It is not intended as legal advice and must not be read as such.
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Feature article - the Agency Workers Regulations 2010
These Regulations come into force on 1 October 2011. If you are an employer who uses temps you should be concerned about these and take appropriate action.
Here are some of the key things you need to know:
Once a temp has been working for you for 12 weeks (you start counting these weeks from 1 October), they are entitled to the same "basic terms and conditions" as a comparable permanent employee
The basic terms and conditions are pay, rest periods and breaks and holidays. So if the comparator gets 30 days holiday a year, the temp will be entitled to that too. You do not have to equalise other terms and conditions such as occupational sick pay or bonus payments which are not performance-related
A clear break of 6 weeks between assignments stops the 12 week clock running - but there are many situations where the assignment is deemed to continue during the break. For instance when the temp is sick or on maternity leave
There are comprehensive anti-avoidance provisions which make it pretty well impossible to devise schemes to avoid the Regulations from biting. Employers who deliberately try to do so can be fined up to £5k by an employment tribunal
After 12 weeks, the temp is entitled to paid time off for ante-natal appointments
Temps are entitled to collective rights such as access to the staff canteen, the on-sight nursery and transport arrangements from Day 1 of their assignment.
Article 1 - how much latitude does an employer have when selecting for a new post as part of a reorganisation involving redundancies?
Quite a lot according to Morgan v Welsh Rugby Union [2011] IRLR 376 EAT.
The WRU had two coach positions: that of national elite coach development manager and community rugby post education manager. LM was employed in the former. His job was to develop coaches who could coach at the premier level of rugby. JS held the latter post. His job was to develop coaches at lower levels of rugby. The WRU decided to replace both posts with a single new senior post of national coach development manager responsible for developing and delivering coaching services.
Under the job description for the new post, which was said to be subject to change pending review by the post holder and their line manager, the role holder had to be qualified to at least WRU level 4 or equivalent and to have an established reputation of developing elite coaches and within the field of coach education. JS did not meet the job description. He had WRU level 3 and no experience of training elite coaches although he had been assistant coach to the national team. LM did meet the job description. He had WRU level 5 and the experience required.
Both men were interviewed. The interview committee consisted of senior officials but there was no coach. JS and LM were told that the selection process would comprise a presentation of 10-15 minutes and standard questions. LM adhered strictly to the presentation timings and was asked the standard questions. However, JS's presentation went on for much longer. His presentation set out a vision and plan for the new role and he was not asked the standard questions.
The committee gave the candidates overall scores only. LM's was 77.25% and JS's was 83.25%. JS was appointed and LM was made redundant. He claimed his dismissal was unfair.
The tribunal by a majority dismissed his claim. The tribunal criticised the WRU for not adhering to its job description and for not following the interview format but concluded that the selection process as a whole was fair.
The Employment Appeal Tribunal (EAT) dismissed LM's appeal. Redundancy selection in this situation was akin to recruitment. Had the recruitment been external, the employer would not be bound by the job description and the same principles should apply to internal selection. Subject to the employer not acting capriciously or out of favouritism or on personal grounds the employer was entitled to appoint the person it considered best able to do the new role. The tribunal had reviewed the evidence carefully and was entitled to conclude that LM's dismissal for redundancy was fair.
Article 2 - when selecting for redundancy from a pool, the employer must stick to the agreed or notified selection criteria
Not doing so can make a dismissal unfair, as happened in Watkins v Crouch t/a Temple Bird Solicitors [2011] IRLR 382 EAT.
TBS decided to make 4 employees redundant: 2 administrative support staff, one trainee solicitor and one fee earner in the conveyancing department. The selection criteria made known to the staff were: fee-earning ability, client-facing skills, knowledge of the firm's administrative procedures, availability for suitable work following and re-organisation and adaptability.
AW (the claimant) was employed as a conveyancing secretary and was placed in the administrative support staff pool. This comprised 8 employees, one of whom was Miss W. She was the firm's receptionist, had 6 years service and a detailed knowledge of the firm's procedures and processes, clients and business contacts.
AW was selected for redundancy having scored 10 out of a possible 25 marks. She subsequently discovered that Miss W's score was lower and brought an unfair dismissal claim.
TBS said that it had made it clear to the employees from the beginning that their scores against the 5 criteria were not decisive. The firm would also be taking into account factors such as the requirements of the business, the skills of the employees and the resources needed by the firm. The tribunal dismissed AW's claim accepting the firm's contention that Miss W was too knowledgeable an employee to lose and holding that the agreed criteria were fairly and objectively applied.
The EAT allowed AW's appeal. The tribunal had not dealt with her case which was that matters other than the agreed criteria and its scores were taken into account; or that the firm had changed its selection criteria without informing the employees; or that they had not made the additional criteria clear to employee from the start or whether the additional factors were sufficiently objective to take into account. The overall requirements of the business was unlikely to be sufficiently objective for use as a criterion for redundancy selection. It did no more than state the obvious in that the objective of any redundancy exercise must be to retain those employees best suited to further the future needs of the business. In any event if this was a factor to be taken into account all the employees should have been scored against it. The tribunal's decision was flawed and could not stand. The case was remitted to a fresh tribunal for rehearing.
Article 3 - can opposition to fox hunting be a belief protected by the Religion or Belief Regulations?
Yes said the employment tribunal in Hashman v Milton Park (Dorset) Ltd t/a Orchard Park Southampton ET 31.1.11 ET Case No.3105555/09; 2011 IDS Brief 923.
The Religion or Belief Regulations (now the Equality Act 2010) protect not just religious beliefs but also philosophical beliefs. So what philosophical beliefs qualify for protection? Some criteria were laid down by the Employment Appeal Tribunal in Grainger v Nicolson [2010] IRLR 4 but these need to be tested by the employment tribunals and courts. As the Hashman case shows a philosophical belief does not need to be similar to a religious belief to qualify for protection.
H was an anti-hunting activist and had dedicated the past 30 years of his life to protecting animals. He attended his first animal rights demonstration when he was 13 and had been a vegan since the age of 23. He now confined himself to passive monitoring of hunts although in the past he had been involved in campaigns against blood sports and had a number of minor convictions.
He took a job working for OP as a sub-contract gardener without realising that the majority of its shareholders were hunts people. When he found out he decided to stay in the job as he liked the work. It conformed to his beliefs and he needed to earn a living. When OP told H they no longer needed him because the vegetable garden was no longer profitable, H claimed that the real reason was because of his belief in the sanctity of life. This was a philosophical belief protected by the Regulations. The tribunal decided as a preliminary issue that H's belief in the sanctity of life including the life of animals was a belief protected by the Regulations.
The employment judge made it clear that his decision was based on the facts and did not necessarily apply to protecting the beliefs of others opposed to fox hunting.
Article 4 - so can a belief in public sector broadcasting
This was the decision of the employment tribunal in Maistry v BBC ET Case 1313142/10. M was dismissed from the BBC after 6 years service. He brought claims for unfair dismissal and discrimination under the Religion or Belief Regulations. The latter claim was based on his philosophical belief in public sector broadcasting.
The tribunal decided that public sector broadcasting did qualify for protection as a philosophical belief under the Regulations. This was because it had the higher purpose of providing a public space for cultural dialogue, education and debate available to everyone. This was supported by academic research and philosophical writings.
Moral of this case - a protected philosophical belief can be wider than you think. So don't write off what at first may appear to be a ridiculous claim.
Article 5 - turning the 48 hour week on its head?
Under the Working Time Regulations, subject to exceptions including the opt out, employees are not allowed to work more than 48 hours a week averaged over 17 weeks.
In Arriva London South Ltd v Nicolaou 2011 IDS Brief 922 EAT, the employee claimed that refusing to allow him to do overtime because he had not opted out of the 48 hour week was subjecting him to a detriment for not doing this.
N had been a bus driver employed by ALS since 1998. ALS introduced a new policy in 2008 stating that overtime in the form of rest day working would not be given to employees who had not opted out of the 48 hour week. N did not sign an opt out and worked the occasional rest day. In 2009 the policy was enforced and N claimed that the refusal to allow him overtime was subjecting him to a detriment because he had refused to sign an opt-out.
The tribunal agreed with him. However, the Employment Appeal Tribunal (EAT) allowed ALS's appeal. They agreed with the tribunal that the reason for the refusal of overtime was caused by N's refusal to sign an opt-out. However, they disagreed with the tribunal's view that the reason for the policy was not relevant. The tribunal should have considered the reasonableness of the steps ALS had taken to avoid breaching the 48 hour week. The case was remitted to the same tribunal for them to do this.