Seminars

The first of our sessions in 2010 – an Employment Law Update - are running on 26 and 28 January in Edinburgh and Glasgow respectively. Please click here for more details and to register.

Equality Focus

In the run-up to implementation of the Equality Bill, we are planning a series of short equality briefings for the New Year. To receive these, please register here. 

Dismissed 42 year old banker successful in age discrimination claim
Beck v Canadian Imperial Bank of Commerce
Mr Beck (B) was employed by Canadian Imperial Bank of Commerce (CIBC) as head of its derivatives marketing team.  He was made redundant, along with a number of members of his team in May 2008  and brought claims alleging age and race discrimination.  Specifically, he complained that, as a German, he was treated less favourably than CIBC's Canadian employees.

The Tribunal held that the redundancy process was a "sham".  Evidence showed that CIBC had already drafted a plan to rebuild the business with new recruits and had already consulted with head hunters.  More importantly, an internal memo revealed that part of the rebuilding plan was to find a new head for the team with a "younger, entrepreneurial profile".  On the basis of this evidence, the Tribunal therefore ruled that B had been directly discriminated against on grounds of his age.  Compensation is to be determined at a later date.

The Tribunal dismissed B's race claim for race discrimination as there was no evidence that CIBC favoured Canadian employees.

Comment

• Although most age discrimination claims relate to younger employees or those approaching retirement age, this case reminds us that protection from age discrimination is available to employees of all ages.
• Employers should ensure that any redundancy related dismissals are actually due to a genuine redundancy.  Employers must be able to provide evidence of the business closure, workplace closure or the decreased requirements of the business for the work carried out by the relevant employees.
• Employers should also exercise caution when creating new internal documents as part of a redundancy process.  These documents may be disclosable to the Tribunal.
• This is also a useful reminder to employers as to the types of wording which Tribunals may deem to be evidence of age discrimination.  This is particularly relevant in recruitment.  Employers should avoid reference to terms which may imply that a younger person is preferred such as "young", "dynamic", "youthful enthusiasm" etc.

News

Snow Fun at Work
With the newspapers full of snowy scenes across the UK and many schools, roads and airports closed, lots of people will be weighing up the pros and cons of battling into work against a day under the duvet with a mug of hot chocolate.  What are employers' and employees' rights and obligations when faced with severe weather?

• If an employee stays at home because of the snow, are they entitled to be paid?

An employee is entitled to be paid for the work they do. Generally speaking, if an employee does not come into work and carry out the work s/he is obliged to do, then the employer has no obligation to pay the employee – unless the employer has authorised the absence and confirmed that it will be paid.  However, care will have to be taken to ensure that no unlawful deductions from wages are made – the contract should be checked to ensure this.

Some employers (predominantly those in the public sector) have inclement weather policies. These should be consulted by both employees and employers so everyone is clear about the guidance given in the policy and the steps that should be taken by employees and employers. 

• What if an employee can't come to work because their child's school is closed and they have no one else to look after their child?

Employees have a statutory right to unpaid time off to deal with emergencies regarding their dependants, which includes children.  Although, the right only applies in emergency situations, this is likely to apply where a school closure is announced in the morning or during the working day and the employee has no one else available to look after the child. 

It's important for employers to take a consistent approach in this situation.  There is no obligation to pay employees for time taken as dependant care leave unless the contract of employment or a policy provides otherwise.  Some employers may allow the employee to take the day as a holiday rather than unpaid leave and others may pay for up to a certain number of dependant care days in any year.

• Can employees be required to work from home if they can't get to work due to snow?

This would seem to be a sensible solution to ensure business continuity and service levels where the job can feasibly be done from home.  Employees could work from home if they have the necessary facilities and can reasonably do their job from home.  Similarly, if the employee wants to work from home and can do so it would be unreasonable for an employer to refuse this request in the event of severe weather making it difficult or impossible for the employee to get into the office. 

• What if an employer thinks employees are taking advantage of the situation?

A consistent approach and proper investigation is advisable.  An employer needs to be able to demonstrate that conditions were such that the employee could safely have made the journey to work.  If, for example, other employees live in the same area and managed to get to work then the employer may wish to investigate with an employee who didn't their reasons for this and proceed to disciplinary action if they felt the employee didn't have good reason. 

Statutory payments to rise while compensation limits fall in 2010
The Secretary of State for Work and Pensions announced the proposed rates of various statutory payments for 2010.  The proposals include a rise in statutory adoption, maternity and paternity pay and maternity allowance from £123.06 to £124.88.  Statutory sick pay is due to remain at £79.15.  It is expected that these changes will come into effect in April 2010. 

The Government has also published the Employment Rights (Revision of Limits) Order 2009 which revises downward a number of compensation limits.  From 1 February 2010, for example, the maximum compensatory award for unfair dismissal will fall from £66,200 to £65,300.  The reduction in the various compensation limits reflects the decrease of 1.4 per cent in the Retail Prices Index from September 2008 to September 2009.

It is however important to note that the limit on the maximum amount of a week's pay for the purposes of calculating redundancy pay or the basic award for unfair dismissal will remain at £380 until February 2011.

Recent Cases

IVF = "pregnant" = protected?
Sahota v Home Office
Ms Sahota (S) brought sex discrimination and harassment claims in relation to treatment she received from her employer while she was undergoing IVF treatment.  The Tribunal found that the acts complained of did not amount to a detriment or harassment even if they arose from the IVF treatment or from circumstances connected to the treatment and were not discrimination on the ground of her sex or pregnancy.  S's claims of discrimination were therefore dismissed. 

The EAT considered whether IVF treatment should be treated as equivalent to pregnancy for the purposes of the Sex Discrimination Act i.e. that a comparator need not be identified.  For various reasons the appeal failed and the EAT stated that:  "The woman undergoing IVF treatment is to be regarded as pregnant for the period following the implantation of the fertilised ova until the end of the protected period "

Prior to implantation, less favourable treatment of a woman on the ground that she is receiving IVF treatment may constitute sex discrimination during the limited, closely defined, period.  That period is "the advanced stage between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus".  The EAT did not accept that there should be a wider period of protection.

Pregnancy achieved by IVF is no different in law to pregnancy achieved by "other means".  However, one of the questions considered in this case was whether this protection applied to those undergoing IVF and not yet pregnant (and so not protected) either because treatment has begun but no implantation has taken place or the implantation has failed.  If the protection is extended to those undergoing IVF then would it have to be extended to those trying to naturally conceive?  Surely not, as that could result in permanent protection for some! 

Comment
Employers will breathe a collective sigh of relief given this decision – for pregnancy protection to apply, the woman must actually be pregnant.