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News

Britain's Got Talent – but does the Employment Tribunal have jurisdiction?
In an unusual story, an unsuccessful contestant on Britain's got talent has raised a claim with the employment tribunal under the Disability Discrimination Act 1995 (DDA).

Ms Emma Amelia Pearl Czikai alleges that the judges should have considered her medical condition (cervical spine neuritis), which affects her ability to hear her own voice in noisy environments such as the arena in which she auditioned.  She states that the judges did not take into account her concerns that the backing track was too loud and that she was not used to the microphone provided after they cut short her performance of "You Raise Me Up."

Comment
Whilst Ms Czikai's condition may well qualify as a disability under the DDA, she may have difficulty in showing that she was employed or indeed engaged as a worker by Britain's Got Talent.  She alleges that the show can be classed as her employer (or prospective employer) because the auditions were a process of elimination in which candidates competed for short-term employment contracts for a tour.

Particular care should obviously be taken with any particularly "innovative" recruitment policies such as talent competitions!

BA approaches former staff to cover strikes by cabin crew
In a stunning and perhaps cheeky manoeuvre British Airways ("BA") has begun approaching staff made redundant last year in an attempt to entice them back on temporary contracts in the event of strikes by cabin crew.

In findings uncovered by The Times and Unite it is alleged that former staff have been offered six-month contracts worth about £1,000 a month, plus a £2.40-an-hour flying allowance.  Former staff would need to retrain, but such courses would not take longer than one week to complete and these are scheduled to begin on 22 February, which is conveniently the very same day that the ballot for industrial action will close.

BA is also planning to rush through the training of 216 strike breaking cabin crew with the support of the Civil Aviation Authority. 

Comment
If staff do again vote in favour of (this time perhaps successful) strike action then BA could face strikes over the busy Easter period.  A BA spokesman confirmed former staff were being offered the chance to return in the event of industrial action, adding: "Many of the cabin crew who worked for us during 2009 on temporary contracts have made contact with us since Unite announced its second ballot.  We're pleased to be able to offer a number of them short-term contracts to help us keep our customers flying as much as we possibly can should a strike go ahead".

Recent Cases

Transferred employees and new collective agreements
Parkwood Leisure Limited v Alemo-Herron and others
Last year we reported on the decision of the EAT that a transferee was bound by pay increases under a collective agreement which was agreed after the transfer had taken place and which the transferee was not party to.  The Court of Appeal has now overturned that decision.

Alemo-Herron and other employees (A) were originally employed by London Borough Council of Lewisham.  They TUPE transferred to CCL Limited (CCL) in 2002 and then in 2004 to Parkwood Leisure Limited (P). 

A's contract of employment provided that their terms and conditions of employment would "be in accordance with collective agreements negotiated from time to time by the National Joint Council for Local Government".  There was a collective agreement in force at the time of the transfer to CCL and this was honoured by P, without it explicitly accepting that it had any obligation.  A new collective agreement was put in place following the 2004 transfer and P was not party to it.  A argued that P was obliged to pay them at the increased rate established by the new collective agreement.

In overturning the decision of the EAT, the Court of Appeal said that it had to follow the decision of the European Court of Justice in Werhof v Freeway Traffic Systems Gmbh & Co KG in favour of existing domestic case law.  UK case law favoured a "dynamic" approach, which meant that employees were entitled to a pay rise set by a post-transfer collective agreement, even if the employer was not a party to the agreement.  However, in Werhof the ECJ held that employees' rights under the Acquired Rights Directive were "static" and that a transferee could only be bound by terms which were in force at the date of the transfer.  The Court of Appeal noted that it was open to the UK to provide employees with greater protection but it could not see any sign that TUPE did give enhanced protection in this regard.

Comment
This case was argued in terms of TUPE 1981 but the same would apply to a case brought under TUPE 2006.  The decision will come as a relief to employers taking on employees whose terms and conditions are subject to collective agreements.  However, employers must continue to honour collective agreements in force at the date of the transfer which provide for future pay rises, and this case could still be appealed further.

Entitlement to legal representation at a disciplinary hearing
R (on the application of G) v X School & others
The Court of Appeal has ruled that Article 6 of the European Convention on Human Rights (the "ECHR") requires that an employee must be given the opportunity to be legally represented at a disciplinary/appeal hearing, when that hearing is determinative of his civil right to practise a profession.

You may remember the details of this case from earlier bulletins but we will recap them briefly here.

G was a teaching assistant working at X school.  There was an allegation that he had sexual contact with a 15 year old boy.  The school governors conducted an investigation and a disciplinary hearing.  At that hearing, the governors refused to allow G to be accompanied by anyone other than a trade union representative or a colleague.  G was dismissed and reported to the Independent Safeguarding Authority (ISA) to be considered for inclusion in a list of teachers banned from the profession.

G sought a judicial review subsequent to his dismissal based on the fact that the governors had refused to allow him legal representation at the disciplinary or appeal hearings.  He argued that these decisions violated his rights under Article 6 of the ECHR – the right to a fair hearing.

The Court of Appeal has decided that where the right to practise a profession will hang upon the outcome of a disciplinary or appeal hearing, the individual must be allowed to be legally represented.

Comment
To avoid challenges of this sort, employers should offer legal representation at disciplinary hearings to those whose future employability in that particular job/ profession is at stake.  While a cook in a school dismissed for sexual misconduct is likely to be barred from working with children, they will still be able to work as a cook outside the education sector.  However, the same is not true of a teaching assistant in a school or a healthcare assistant in the NHS.