Employment Review

Published: 20 March, 2009

The speed of change in Employment Law is bewildering for many employers. Just when you think you are on top of things, the goalposts move. And when margins are slim, mistakes are not affordable. In case you do not have an HR department but rather rely on a good PA to cover this important area, Michael Morse considers key developments in the course of 2008 that she or he needs to be aware of.

Gay Banter

It is clearer than ever that banter is both unacceptable and risky. The law already protects against harassment ‘on the grounds of sexual orientation'. But what if everyone knows the victim is not in fact gay?

In the case of English v Thomas Sanderson [2008] the tormentors knew Mr English was not gay. There was no question of a mistake. They just thought it was clever to tease him about boarding schools and Brighton. The Court of Appeal held that the true orientation didn't matter. Harassment arose from the orientation attributed to the victim and was therefore unlawful discrimination.

The decision is a warning shot to anyone out there who believes in the ‘It's only a bit of fun' defence. Employers should warn staff against this kind of teasing banter.

Disability Discrimination

It will now be harder for a disabled person to shown that detrimental treatment was discriminatory where the issue is absence from work. The House of Lords has clarified that dismissal is unlikely to be discriminatory if the employer can show that, faced with the same level of absence; they would also have dismissed a non-disabled person. This may seem obvious but in fact is a change in the law.

Another decision however extends employees' rights. In Coleman v Attridge [2008] the European Court of Justice agreed with Mrs Coleman that she could claim discrimination at work on grounds of ‘failure to make reasonable adjustments', despite the fact that she is not herself disabled. Instead she cares for a disabled son.

The upshot of these cases is that employers are more at risk from ‘reasonable adjustment' situations than from dismissals for long term absence.

Redundancy

The focus in 2008 was on consultation requirements where a significant number of redundancies are planned.

The employer in UK Coal Mining v NUM [2008] decided to close a pit. They then began a consultation period and proposed to make over 20 staff redundant. The union challenged the initial reason for the closure. The company said they had no duty to consult on business decisions but only on the implications of those decisions, for example on potential redundancies.

This defence was rejected. The ruling has wide significance for all collective redundancy consultation. Employee representatives' input (eg as to relocation) is now required much earlier, before a final business decision is made, which in turn could lead to redundancies.

In another expansion of consultation requirements, voluntary redundancies must now be added to compulsory ones in order to assess whether minimum consultation periods are triggered.

LIFO & Redundancy Selection

For some time it has been unclear whether an employer can use length of service (Last In First Out or ‘LIFO') as a criterion for redundancy selection. Does it infringe Age Discrimination laws in that older staff get an advantage?

In Rolls Royce v Unite [2008] the High Court said LIFO can still be used, provided it is only one element among the overall selection criteria. It is also more likely to be upheld if it is set out in a union negotiated agreement. Selection based on LIFO alone will still be thrown out as unlawful.

Holiday Entitlement & Sick Leave

From 1 April 2009 the minimum entitlement increases to 5.6 weeks. This equates to 28 days for a full time worker. But please note that it can include bank holidays.

A thorny issue has been whether someone on long term sick leave continues to accrue holidays while off. The matter has been all the way to the ECJ. Surprise, surprise - the ECJ in Stringer v HM Revenue [2008] has held: