Monday, January 17, 2011

Age Discrimination and Unfair Dismissal - The Default Retirement Age is on its Last Legs

The Government has confirmed that it intends to press ahead with plans to abolish the default retirement age of 65, following the conclusion of a consultation process.

New Regulations will be published shortly, to take effect from 6th April 2011.

The last date upon which someone will be able to be compulsorily retired at 65 without there being any potential liability for age discrimination or unfair dismissal will be 30th September 2011.

Given the statutory requirement to give 6 months' notice, to enable the employee to exercise their right to ask to continue working beyond 65, this means that written notice would have to be given by 30th March 2011. This is subject to a "short notice" provision which will allow in certain circumstances notice to be given during the period 31st March 2011 to 5th April 2011 inclusive. An employee subject to short notice may be able to claim compensation up to a maximum of 8 weeks' pay.

Interestingly, the notice given to anyone who has already been given more than 6 months notice of retirement will be invalid.

It will still be potentially possible to fairly dismiss someone and/or dismiss them without liability for age discrimination if the employer can show that a particular retirement age is objectively justified - as is already the position in relation to Partnerships, where there has never been a default retirement age. The Court of Appeal has already said forced retirement at 65 can be justified in that context. Expect to see cases "fleshing out" the circumstances in which a default age is justified.

If people's performance dips as they get older this will have to be dealt with by way of performance management in the same way that would apply to any other employee.

At the same time as the default retirement age is abolished the statutory notice procedure (including the requirement for a meeting to consider any request to continue working beyond 65 and providing a right of appeal) will also go.

ACAS has issued some helpful guidance on this, including a downloadable guide which includes a very useful flowchart.

The Regulations will include a provision allowing employers to terminate access to certain benefits, for example health care at 65.

It is important that employers look at the implications of the change for them now bearing in mind action may need to be taken before 30th March, and that the draft legislation will no doubt not appear much before implementation on 6th April.

Friday, January 14, 2011

CRB Checks - No Duty of Care on Police

The Court of Appeal has held that the Police do not owe a duty of care when providing information to the Criminal Records Bureau (CRB) for the purposes of an Enhanced Criminal Records Certificate (ECRC.)

People working in certain professions, for example in teaching, require "clean" ECRCs. These provide for information about matters other than convictions (such as allegations which do not result in a charge) being recorded.

Mr Desmond is a teacher. He applied for an ECRC in connection with an application for work. The Certificate produced by the CRB referred to him having been arrested for indecent assualt in terms which indicated that he had not been charged due to insufficient evidence.

Mr Desmond had indeed been arrested but it had in fact been positively established that he was not guilty of the offence. At an earlier stage of the evening he had asked the victim for directions, but later on she had been attacked by someone completely different. The terms in which the officer reviewing the file for CRB purposes had asked for authority of his senior officer to disclose the information suggested that the two incidents had followed one after the other and involved the same man.

Mr Desmond experienced difficulty in getting work until the situation was resolved and a clear ECRC issued. He sued for damages for the loss suffered - as he was acting for himself he threw in every possible cause of action. The High Court struck out some of these including most importantly his claim for negligence.

The case went to the Court of Appeal where the central issue was whether he was owed a duty of care when the Police provided the information to the CRB. The Court of Appeal confirmed that he was not and that the negligence claim had rightly been struck out.

As the Hill case relating to the mother of one of the victims of the Yorkshire Ripper (in Court again himself recently) established in the 1980s the Police do not owe a duty of care to the public as a whole in the performance of their duties although they can of course owe duties of care to individuals in specific circumstances - if a policeman negligently runs you over in his Police car he is liable to you.

The Court felt that it had to be careful not to inhibit the Police in making difficult operational judgements. This was especially so when there was a positive duty on the Police to provide (or decide not to provide) information to the CRB.

This does seem somewhat hard on someone in Mr Desmond's situation where it appears strongly arguable that if a duty of care applied the information was provided negligently. It would have been possible for there to have been a duty of care whilst still allowing the Police to avoid liability by having a standard of care which gave them a degree of latitude and only penalised them for gross errors.

This is not the end of the matter even if Mr Desmond does not appeal to the Supreme Court. He is continuing to pursue claims under Article 8 of the Human Rights Act and for breach of the Data Protection Act.

The case is reported at

Tuesday, January 11, 2011

Age Discrimination - Auntie Beeb comes a cropper in the Employment Tribunal

An Employment Tribunal has found that the BBC discriminated against presenter Miriam O'Reilly on grounds of her age when she was dropped from a revamped "Countryfile" format.

She was also found to have been victimised but a sex discrimination claim failed.

Three female presenters, ranging in age from 42 to 58 (O'Reilly's age) were dropped when the show moved to a prime time slot on a Sunday evening. Interestingly 68 year old John Craven retained his job. The new presenters were a 30 year old man and a 38 year old woman.

O'Reilly claimed that she was dropped because of her age and sex. The "Beeb" denied this and said that it was because she was not recognisable to an evening prime time audience.

The amount of damages has yet to be decided but could be substantial. There is no limit on the awards in discrimination cases and damages can include an award for hurt feelings.

There has been an ongoing debate in broadcasting as to the tendency of women over a certain age to disappear from the schedules, for example Arlene Philips being replaced by a younger model on "Strictly Come Dancing." This case shows that it can be an expensive decision for programme makers.

Where facts are proved from which discrimination could be inferred in the absence of a contrary explanation, the onus is on the employer to prove that age (or sex, race, etc) played no part whatever in the decision - and this can prove very difficult. It is essential that any decision that might have a discriminatory impact is well thought out and backed up by a paper trail showing the true motivation.

The BBC have accepted the decision but it would be interesting to see the details of the Tribunal's reasoning. The fact that the replacement female was not that much younger than one of those who was dropped and that an older man kept his job suggests that age in itself may not have been an issue. If it was the combination of the Claimant's age and sex that counted against her then it seems odd that the sex discrimination claim failed. In addition the case was decided before the Equality Act 2010 introduced the concept of multiple discrimination (i.e. discriminating someone because they are both older and a woman) came into existence.

The case is reported (by the Respondent) at

Friday, January 07, 2011

Geolocation - The Boss Wants to Know Where You Are

For quite some time employers have been keeping tabs on the whereabouts of their employees by the use of trackers on vehicles, ringing to check where they are or just asking them where they have been.

The practice of checking up on people is now likely to increase exponentially due to the proliferation of geolocation services connected with social networking.

Twitter obviously allows people to tweet about their location - and that of other people that they have seen. Facebook now also has a similar facility.

Mobile phones come with inbuilt GPS which will allow for monitoring of the whereabouts of the user.

The "next big thing" is geolocation games.

"Foursquare" is a game where you "check in" to locations in a series of competitive events. For example you might get rewards for "checking in" to a bar in the company of 3 members of the opposite sex, or for "checking in" to the same bar more times than anyone else.

"Gowalla" is a game where you get "stamps" (a little like the "trophies" you get on a PS3 for completing certain tasks) for visiting particular locations - e.g a little chopsticks icon if you visit a sushi bar.

Employers monitoring the whereabouts of employees could have very important employment law implications. This could happen on different levels:-

a) The employee is not where he should be during working hours - if someone tweets that he is en route to an away game when he is supposed to be on a sales trip. This could lead to disciplinary action.

b) The employee might be doing something inconsistent with being off sick from work - if someone reports on Facebook that he is at the ten-pin bowling alley when he is allegedly laid up with a bad back. Once again this could lead to disciplinary action.

c) The employee might be at a location which gives the employer cause for concern. If someone checks into the same bar every night is that an indication that they have a drink problem?

d) The employee might be doing something which the employer might think brings them into disrepute - e.g. a local vicar tweeting that he is in a lapdancing club.

Does this raise issues over privacy?

It will come down to a great extent to whether the employee has a legitimate expectation of privacy.

If the employee is using equipment provided by work and it has been made clear to him that the use of this will be monitored then anything which is recorded on or using the equipment is unlikely to be private, and can be used as a basis for disciplinary action.

Similarly if the employee is putting things into the public domain (e.g. readily available "tweets" or Facebook posts) then he is broadcasting them to the world at large and the employer is likely to be entitled to take them into account.

If the information has a more limited distribution then this make it more difficult - for example if someone only allows certain Friends to read their Facebook posts- but if information comes to the employer's attention that suggests that the employee is up to no good in work time then they are going to be entitled to rely upon that information as a basis for disciplining the employee.

The most difficult area is going to be in relation to monitoring of what people do in their own time. Unless the employer's systems are involved it is unlikely that an employer would be entitled to monitor what someone was doing unless it called into question their ability to do their job or brought the employer into disrepute.

Any information that gives the employer cause for concern needs to be the start of the process not the end.

If you think the employee is bunking off then you need to carry out a full investigation. Was it their "tweet"? Is someone pretending to be them? Is their location genuinely being inconsistent with them being unable to attend work?

If there is evidence someone might have a drink problem, is that actually manifesting itself in any problems at work? Perhaps the bar is simply where their Chess club meets. If they have got a problem then this should usually be handled sympathetically and as a medical problem in the first instance.

In relation to people's private activities it will be important not to discriminate. For example if someone broadcasts that they are visiting a gay club and is disciplined for this but a heterosexual who visited a night club and posted it on Facebook would not be disciplined this is likely to be unlawful discrimination on grounds of sexual orientation - for which the damages can be unlimited.

The best advice is as always that employers should have clear policies, that a provided in writing to all staff, as to what will and will not be monitored, and what is and is not acceptable, and stick to them.

Wednesday, January 05, 2011

Working Time and Smart Phones - Yet Another Danger Area

A police Sergeant in Chicago is claiming overtime payments for the amount of time that he is having to spend on his smartphone out of hours reviewing work-related emails. This is a class action on behalf of himself and all of his colleagues who are required to review and respond to such emails despite being technically "off duty."

Technology like PDAs and tablets has had the effect of blurring the distinction between being at work and being at play. Instant communication methods lead to an expectation of an instant reply and can interfere with the work/life balance.

As well as claims for contractual overtime, a similar scenario in the UK could give rise to claims under the Working Time Regulations (for exceeding the 48 hour maximum working week unless there is a signed waiver, or for failure to allow uninterrupted rest breaks) and in respect of the National Minimum Wage (if extra hours mean that the hourly rate falls below that permitted.) There could also be scope for workplace stress or constructive dismissal claims if someone alleges their health is damaged by an excessive workload.

Under the Working Time Regulations the 48 hour week does not apply if the employee is able to control how many hours they work. That would apply to someone who chooses to check their emails out of hours. It may be more difficult to show that this applies to someone who is told that they have to do so.

To try and avoid legal complications:-

1. Make sure that the employee's contract is clear as to when overtime is and is not payable.

2. If possible get a waiver under the Working Time Regulations signed but also make clear in the contract that the employee controls the amount of work they do outside of normal hours.

3. Have a clear policy as to whether employees are expected to check emails outside of their normal working hours. Does everyone need smartphones? If they do, do they need to be able to access them outside of work hours or can you disable this access?

4. Keep an eye on the amount of time being worked looking at emails outside of work to ensure that the National Minimum Wage legislation is not being infringed (and also to ensure that the work/life balance is as it should be.) Enforce any limits.

Recruitment, Credit Histories and Discrimination

Like Google searches and checks on social networking sites there appears to be a increasing tendency on the part of employers to ask for credit checks on potential employees.

This will certainly become the norm for conveyancing Solicitors in the near future given the requirement under the Law Society Conveyancing Quality Scheme for all relevant staff to be credit checked.

But could there, as with the other types of check mentioned at the top of this article, be a hidden danger of liability for damages?

In the USA a company is being taken to Court by the American equivalent of our Equality and Human Rights Commission on the basis that it is alleged that the practice of credit checking candidates for jobs discriminates disproportionately against black applicants.

It will be interesting to see how that case develops, but there is potential for something similar to happen in England and Wales.

A requirement for a clear credit check would be a "provision, criteria or practice" and therefore if this was shown to impact disproportionately on people with a "protected characteristic" it could leave the employer open to claims for damages for indirect discrimination.

For example it may be the case that as men are the main bread winner (still) in many families that some women will not have a credit history, and could be disadvantaged by this. Or what about someone who got into credit difficulties whilst they were pregnant, or off work sick as a result of a disability?

Liability for indirect discrimination can be avoided if the practice is a "proportionate means of meeting a legitimate aim." The legitimate aim would presumably be to ensure a trustworthy workforce. That might justify a credit check on someone handling cash in a casino, or working as a security guard transferring cash to a bank - an employer might legitimately be concerned that temptation may prove to be too much if the employee is on the verge of bankruptcy. It is unlikely to be proportionate to require credit checks for, say, a baker or a hairdresser.

Your Employee is a Thief - But You Have To Pay!

The Court of Appeal has confirmed that a Judge was right to hold a company liable for the theft by their employee of silver bars from a container that he was supposed to be fumigating.

The employee worked out that if the container was not gassed he would be able to get back in later and steal the silver bars. One way or another the fumigation did not take place and the employee stole 15 bars several hours later.

The owners of the silver bars sued the fumigation company. They alleged that they were liable for the actions of their employee.

The fumigation company denied liability on the basis that the thief had not been acting in the course of his employment but that the job had simply given him the opportunity to steal.

The legal test is whether the act was "so closely connected with the employment that it would be fair and just to impose liability." The Judge at first instance found that it was and the Court of Appeal agreed. The task assigned to the company involved them taking care of the silver bars. They had (in all innocence) provided the thief with the uniform and equipment that meant that his presence in the container would not arouse suspicion. In those circumstances it was fair to hold them liable for his actions.

This will not always be the case - there have been cases involving Police Officers in the Carribean using firearms on members of the public in respect of personal vendettas that have gone either way. One of the Judges in the Court of Appeal also raised the hypothetical case of an office cleaner using the telephone to make surreptitious long-distance calls and said that this might be a difficult case to call.

Other than the practical steps of doing your best to make sure you vet your employees for trustworthiness when you appoint them (and there is no suggestion this particular employer failed to do so) and not leaving them alone (not always possible!) the lesson for employers is to ensure that you are adequately insured against all risks arising out of your employee's actions whilst at work, even if they appear to be "off on a frolic of their own."

The case is reported at:-

Tuesday, January 04, 2011

Holiday Pay, TUPE, Breach of Contract - the Employment Tribunal Can't Hear You!

The Court of Appeal has held that an Employment Tribunal had no jurisdiction to interpret the written contract terms of some employees of a healthcare company.

The employees in question were entitled to extra days' holiday as a result of their long service. They transferred to Southern Cross Healthcare Limited under TUPE on the same terms and conditions. They were told that their long service days were protected.

When the Government increased the statutory minimum entitlement to holiday the employees argued that as well as the increased holiday that they were now entitled to under the Working Time Regulations they were also entitled to still have their long service days.

Southern Cross did not agree and the employees commenced Tribunal proceedings. The ET1 Claim Forms were submitted with Trade Union assistance and did not make particularly clear the basis upon which the Tribunal had jurisdiction to hear them.

The Tribunal determined that the employees were entitled to the benefit of the long service days on top of their statutory holiday.

Southern Cross appealed to the EAT who analysed the Claims as being under ss.11 and 12 of the Employment Rights Act 1996, which give the Tribunal power to determine what the main terms of employment are where a dispute arises about certain points. The EAT went on to uphold the Tribunal's decision. At a late stage jurisdiction was raised as an issue and the EAT determined that the Tribunal could hear the case.

Southern Cross appealed again, this time to the Court of Appeal. Here, the issue of jurisdiction was centre stage. The Court of Appeal said that as there was no dispute that the employees had been provided with a statement of their terms in relation to their holidays, the Employment Tribunal had no power under ss.11 and 12 to construe those terms.

As the Tribunal could not hear a breach of contract claim (since it only has jurisdiction in that respect in relation to matters arising on or outstanding at termination and the employees were still employed) the parties will need to take their dispute to the County or High Court for a declaration as to the relevant contract terms.

Unless this was a test case and there a vast numbers of other employees affected it does seem to be "overkill" that a matter involving small amounts of holiday pay for a small number of employees should end up in the Court of Appeal.

The lesson for employers is of course as always to make contract terms clear and unambiguous.

Interestingly (for me, maybe not for a lay person) the Court of Appeal's Judgment begins with a brief potted history of how the Employment Tribunal's jurisdiction has expanded from humble beginnings.

The case is reported at