Tuesday 21 October 2008
Employment Team@12CP
I am also publishing my thoughts alongwith other lawyers on another blog run by our Employment Team it is at http://12cpemploymentteam.blogspot.com/.
You don't always get what you want.......
I recently had a difficulty with the part-time worker regulations (PTW). There is a tension between the PTW and the fixed terms worker regulations (FTW) created when the PTWR were amended to allow direct comparison between workers on fixed term part time contracts and those on permanent full time contracts.
In my particular case the Tribunal were happy to find that the fixed term contract had been lawfully terminated but would not allow the termination of the fixed term contract to be used to justify less favourable treatment based on the workers part time status. Now I can understand that certain factual situations will mean that justification on the basis of being engaged on a fixed term contract won't work. Nevertheless it came as quite a shock to have the Tribunal find against my client and say that in no circumstances could the fact of someone’s fixed term status be relied on as justification. This is despite there being clear government guidance to the contrary.
Update (29/10/08)
The appeal on this one has been lodged with the Court of Appeal and the client is presently considering its options.
So with a sense of pique and with the client needing to clarify the matter we went off to the Employment Appeal Tribunal. It was Monday, the sun was shining and the Judge was making all the right noises and appeared to understand the importance of the point. I should have realised when the Appeal Tribunal had been out for over 30 minutes that things were not looking good.
Sure enough back come the Appeal Tribunal who then launch into a judgment that asks more questions than it answers. Yes we think the original Tribunal was wrong but no we don't see how this would have changed the decision and we are not setting down any guidance on this matter. Appeal dismissed!
So what do I now advise client's who have employed people on fixed term part-time contracts? It is back to the usual, 'this matter is not free from doubt and is likely to be determined on the facts of each case'. The type of advice a client does not want to hear and certainly not the advice that I thought I would be giving after the appeal!
In my particular case the Tribunal were happy to find that the fixed term contract had been lawfully terminated but would not allow the termination of the fixed term contract to be used to justify less favourable treatment based on the workers part time status. Now I can understand that certain factual situations will mean that justification on the basis of being engaged on a fixed term contract won't work. Nevertheless it came as quite a shock to have the Tribunal find against my client and say that in no circumstances could the fact of someone’s fixed term status be relied on as justification. This is despite there being clear government guidance to the contrary.
Update (29/10/08)
The appeal on this one has been lodged with the Court of Appeal and the client is presently considering its options.
So with a sense of pique and with the client needing to clarify the matter we went off to the Employment Appeal Tribunal. It was Monday, the sun was shining and the Judge was making all the right noises and appeared to understand the importance of the point. I should have realised when the Appeal Tribunal had been out for over 30 minutes that things were not looking good.
Sure enough back come the Appeal Tribunal who then launch into a judgment that asks more questions than it answers. Yes we think the original Tribunal was wrong but no we don't see how this would have changed the decision and we are not setting down any guidance on this matter. Appeal dismissed!
So what do I now advise client's who have employed people on fixed term part-time contracts? It is back to the usual, 'this matter is not free from doubt and is likely to be determined on the facts of each case'. The type of advice a client does not want to hear and certainly not the advice that I thought I would be giving after the appeal!
Foreign Planes
I have always struggled with the concept of forum or in lay man’s terms where do I sue? I had believed that Serco Limited v Lawson [2006] UKHL 3 had settled the matter at least for pilots based in this country.
Then I came across a novel attempt by an employer to get around the age discrimination legislation and my sense of doubt returned. In short in order to claim unfair dismissal under the retirement provisions of the Employment Rights Act 1996 you have to be protected by the Age Discrimination Regulations (ADR). If you are excluded by the regulations then you do not get any protection in respect retirement.
Under Reg 10 there is what appears to be an exclusion at Reg 10(3) which on the face of it prevents those employed on a foreign registered aircraft from claiming protection under the ADR. Taken to its logical conclusion it would appear all an aircraft operator has to do is to register the aircraft abroad and hey presto no protection.
In fact this is a bogus argument and I had no need to panic. If you read the whole of Reg 10 it soon becomes clear that far from restricting an employee’s rights Reg 10(3) broadens the scope of the ADR to cover those persons employed on British aircraft irrespective of whether the employee qualifies under any other part of the ADR.
So in short pilots who operate foreign registered aircraft but who carry out some of their work in this country will be able to claim protection under the ADR and so the right not to be unfairly retired.
Update (24/10/08)
The ET in Watford have just handed down a decision holding that Reg 10(3) does in fact exclude employees working on foreign aircraft but who work for at least part of their time in Britain. This matter needs urgent judicial examination in a higher Court as this ruling effectively prevents acts of discrimination carried out within the UK from being considered by an employment tribunal. Watch this space!
Then I came across a novel attempt by an employer to get around the age discrimination legislation and my sense of doubt returned. In short in order to claim unfair dismissal under the retirement provisions of the Employment Rights Act 1996 you have to be protected by the Age Discrimination Regulations (ADR). If you are excluded by the regulations then you do not get any protection in respect retirement.
Under Reg 10 there is what appears to be an exclusion at Reg 10(3) which on the face of it prevents those employed on a foreign registered aircraft from claiming protection under the ADR. Taken to its logical conclusion it would appear all an aircraft operator has to do is to register the aircraft abroad and hey presto no protection.
In fact this is a bogus argument and I had no need to panic. If you read the whole of Reg 10 it soon becomes clear that far from restricting an employee’s rights Reg 10(3) broadens the scope of the ADR to cover those persons employed on British aircraft irrespective of whether the employee qualifies under any other part of the ADR.
So in short pilots who operate foreign registered aircraft but who carry out some of their work in this country will be able to claim protection under the ADR and so the right not to be unfairly retired.
Update (24/10/08)
The ET in Watford have just handed down a decision holding that Reg 10(3) does in fact exclude employees working on foreign aircraft but who work for at least part of their time in Britain. This matter needs urgent judicial examination in a higher Court as this ruling effectively prevents acts of discrimination carried out within the UK from being considered by an employment tribunal. Watch this space!
Tuesday 14 October 2008
My First Blog
It seems to me that even barristers need to bring themselves into the 21st century and today is the day that I make the leap. These are my ramblings on recent employment law issues that I think are important to ordinary people not just lawyers.
One step forwards two steps back.................
I lately found myself questioning where we are going when it comes to disability discrimination. It is now clear that Archibald v Fife Council was probably the high point for the disabled Claimant and since then the law has been in retreat. Two cases this year London Borough of Lewisham v Malcolm & Others and Richmond Adult Community College v McDougall have made it much more difficult for the disabled Claimant to win.
What does this mean for disabled employees and job applicants? I think we will see a reduction in disability claims based on stress/depression and a very substantial fall off in reason relating to disability claims.
Is this a bad thing? In the long run I hope not because the law will be changed and perhaps improved upon to give more comprehensive rights to the disabled. In the meantime there will be many people missing out who previously would have succeed in their claims under the Disability Discrimination Act 1995.
One step forwards two steps back.................
I lately found myself questioning where we are going when it comes to disability discrimination. It is now clear that Archibald v Fife Council was probably the high point for the disabled Claimant and since then the law has been in retreat. Two cases this year London Borough of Lewisham v Malcolm & Others and Richmond Adult Community College v McDougall have made it much more difficult for the disabled Claimant to win.
What does this mean for disabled employees and job applicants? I think we will see a reduction in disability claims based on stress/depression and a very substantial fall off in reason relating to disability claims.
Is this a bad thing? In the long run I hope not because the law will be changed and perhaps improved upon to give more comprehensive rights to the disabled. In the meantime there will be many people missing out who previously would have succeed in their claims under the Disability Discrimination Act 1995.
Subscribe to:
Posts (Atom)
