In that case...

Pay, conditions, hiring, firing – employment law regulates all aspects of our working experience. Here is a selection of recent cases that illustrate some key principles

by Tim Woodward

27 July 2007

Part-time working and bank holidays

The issue of whether part-time workers, who do not work on Mondays, are entitled to any additional holiday as a result of not gaining the advantage of some paid bank holidays, has caused a great deal of concern for employers. This was considered in McMenemy v Capita Business Services Limited.

McMenemy worked Wednesday to Friday and had no time off in lieu for public holidays. Thus he claimed he was less favourably treated than a comparable full-time worker.

The Employment Appeals Tribunal and the Court of Session rejected the claim and held that, although he had been less favourably treated, the reason was not solely because McMenemy works part-time. The problem was the pattern of working (ie, not on Mondays) and it was the same for a full-time or part-time employee.

Capita operated seven days a week and the expectation was that full-time workers would be treated like McMenemy. The decision still leaves uncertainty for employers operating five days a week, where there may be no full-time workers who do not work Mondays. However, the argument can still be run that any alleged less favourable treatment is not as a result of being part-time, but, as a result of the pattern of work.

Disability discrimination – duty to adjust

Employers have a duty to make reasonable adjustments where a disabled employee is at a disadvantage as a result of the physical work environment or a provision, criteria or practice adopted by the employer.

It has not been clear whether there is a duty to obtain a current medical report or to consult with the employee in deciding on what adjustments could be made. This was considered in Spence v Intype Libra Limited.

Following long-term sickness absence, Spence could not return to work and he was dismissed. He argued that Intype should have obtained a current medical report before dismissing him and claimed this was a breach of duty. It was, said the tribunal, good practice to carry out an assessment or consultation, however, a failure to do so did not breach this duty. It was relevant that failure to consult could result in liability for unfair dismissal even if there is no liability for disability discrimination. The case is being appealed.

Dismissals before Tupe

A common problem in a Tupe transfer is whether pre-transfer dismissals can be fair as a result of the economic, technical or organisational (ETO) situation at the transferee employer; in short, the transferor making dismissals before the transfer, based on the anticipated position post-transfer. This was considered in Hynd v Armstrong and Others.

When law firm Morison Bishop was to be demerged, Hynd was due to transfer to Bishops, one of the new firms. But as Bishops had no requirement for Hyde’s corporate law specialism he was made redundant by Morison Bishop.

He claimed unfair dismissal following the Tupe transfer. The issue was whether it was appropriate for Morison Bishop to dismiss Hynd, not because of the situation it found itself in, but rather the assumed situation that would face after the transfer to Bishops. Could Morison Bishop rely on the ETO reason that was expected to exist at Bishops?

The court held that Morison Bishop should only consider its own situation and not the position after the transfer. Because the dismissal was made in connection with the transfer and was not justified by any ETO reason it was automatically unfair. Employers are often pressured to carry out dismissals at the request of the transferee, because the transferee may be overstaffed following transfer and wants to avoid making redundancy payments. Hynd shows that the risks of dismissal before transfer are best dealt with by indemnities in the agreement.

Illegal working

In early 2008 new rules are being introduced to prevent immigrants working illegally including: tougher checks on migrants before travelling to the UK; compulsory ID cards for foreign nationals; sponsorship of migrant workers by employers; penalties for illegally employing migrant workers; tougher enforcement. It is proposed that those knowingly employing migrants illegally could be liable to two years’ imprisonment or an unlimited fine. Employers that are negligent in carrying out checks could be liable to a fine of up to £10,000.

National minimum wage

The Department for Business, Enterprise and Regulatory Reform (the new name for the former DTI) is consulting on the enforcement of the NMW. It proposes to strengthen the current enforcement regime and change the calculation of payment in arrears.

A worker who has not received the NMW will receive the difference between the pay they actually received and the NMW rate at that time. An employer can avoid any penalty by making a payment of arrears during the investigation or on receipt of an enforcement notice.

Tim Woodward is a partner at Bevan Brittan