Volunteers not covered by discrimination law

If you are a charity or take on unpaid interns then the Supreme Court’s decision that an unpaid volunteer was not covered by discrimination law will offer some comfort.  (X v Mid Sussex Citizens Advice Bureau).

X was a CAB volunteer, who signed a volunteer agreement which stated that it was 'binding in honour only and not a contract of employment or legally binding'. She often failed to turn up and the CAB asked her to leave. She brought a disability discrimination claim. As volunteer, she was outside the scope of the protection under the Disability Discrimination Act and the Equal Treatment Directive. ‘Occupation’ did not cover voluntary activity and only covers employment and self-employment. The decision also covers the Equality Act 2010.

What this decision does not address is when an intern / volunteer argues that they are in reality a worker or employee for the purposes of the National Minimum Wage and employment legislation. See our earlier bulletin at: Unpaid Interns. If your organisation takes on unpaid interns or volunteers, it is worth considering these questions carefully.  

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See this bulletin online.

Facebook Face-Off

Hot on the tails of press reports of threats of legal action by Lord McAlpine against Twitter account users, comes the case of Smith v Trafford Housing Trust in which Mr Smith was demoted for airing his views on gay marriage on Facebook.

The High Court held that his demotion was a breach of contract. The Court took the view that it was clear that his views on gay marriage were nothing to do with the Trust. Equal opportunities employers have to accept that their staff may have widely different religious and political beliefs which not everyone will agree with. Mr Smith's moderate expression of his personal views on his personal Facebook wall at out of working hours were clearly nothing to do with his employment with the Trust. Also, Facebook (unlike perhaps LinkedIn) was not a work-related context.

Compare that to Gosden v Lifeline in 2011 in which Mr Gosden sent an email from his home computer to a former colleague’s home pc which contained racist and sexist material but telling the recipient to pass it on. He got sacked as a result and could not rely on the his right to privacy under the Human Rights Act.

In the present case Mr Smith was awarded a mere £98. When he was demoted, he could have resigned and claimed constructive dismissal, but chose not to. Mr Smith had agreed instead to work in a different capacity for less money under a new contract with the Trust. His losses for ‘wrongful dismissal’ from his job as a manager were limited to financial losses during the contractual notice period, which came to a paltry £98.

In addition to illustrating the perils of using social media, this case also illustrates that even when a Claimant wins, they may still not win very much at all.  See http://www.reculversolicitors.co.uk/1013.htm 

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www.reculversolicitors.co.uk  

: www.kent-employment-solicitors.co.uk

| www.croydon-employment-solicitors.co.uk  

Permanent Health Insurance and Dismissal

A minority of employers offer permanent health insurance (‘PHI’) to cover a proportion of their employee’s salary (normally up to 75%) in the event that they go on long term sick leave. However can the employer then dismiss the employee for a reason connected with the long term sick leave?  

In Lloyd v BCQ Ltd, in the EAT this month, Mr Lloyd was dismissed due to ill health. He claimed that BCQ was in breach of an implied term that it would not dismiss him if he lost his PHI as a result. It was not possible to imply a term that BCQ would not dismiss due to long term sick if he would lose PHI cover a result (as per Aspden v Webb's Poultry and Meat) because Mr Lloyd's contract contained an "entire agreement" clause.

In any case, the EAT said that even if such a term could be implied, it would only apply where the dismissal was "without reasonable and proper cause". There was no reasonable prospect of Mr Lloyd returning to work due to his sickness, so it was reasonable proper to dismiss him.

This case will be a comfort to those few employers who offer PHI as a benefit but who still want flexibility to dismiss where appropriate.

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.

James Carmody

RECULVER SOLICITORS      

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Reculver Solicitors Ltd (Company No. 6910066) | Solicitors: James Carmody*, Carol Aylott, Kate Henry.

Regulated & authorised by the Solicitors Regulation Authority, SRA No. 565284 (*Director)

Unsavoury employees with unsavoury beliefs?

What can you do when you discover that your employee holds unsavoury political opinions? If the employee breaches your equal opportunities policy, you may be able to bring disciplinary action against him. But can you dismiss him anyway?

Discrimination on the basis of religious or philosophical belief breaches the Equality Act 2010. Belief in climate change disaster can be a protected philosophical belief (Grainger plc v Nicholson), though wearing a poppy is not (Lisk v Shield Guardian). In order to qualify as a protected philosophical believe it must be:

·         genuinely held;

·         not be an opinion or viewpoint based on the present state of information available;

·         be related to a weighty and substantial aspect of human life and behaviour;

·         attain a certain level of cogency, seriousness, cohesion and importance;

·         be worthy of respect in a democratic society, and not incompatible with human dignity or in conflict with the fundamental rights of others.

Where does that leave the employee with unsavoury political views? In Redfearn v UK this week, Mr Redfearn was a bus driver dismissed by Serco when he was elected Councillor for the BNP, citing safety concerns about the risk of him attracting attack. He was unable to claim unfair dismissal due to his length of service and his race discrimination claim failed.

The European Court of Human Rights held that the UK does not give adequate protection from dismissal on the grounds of political party membership, that his right to freedom of assembly under Article 11 of the ECHR was infringed and that he should have had protection against dismissal connected to political party membership.

As a result, even unsavoury political views may become protected under the Equality Act 2010. Employees who propound extreme political beliefs may not have protection if they interfere with the fundamental rights of other colleagues, for example. However employers will have to think very carefully when considering dismissal as a result.

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.

James Carmody
RECULVER SOLICITORS      
Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Disability Discrimination: Can a tendency to infections amount to a 'disability'?

It’s not always easy for employers to determine whether an employee’s medical condition amounts to a disability as defined by the Equality Act 2010.

The official definition is a "physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities".  Conditions such as Cancer, HIV infection or Multiple Sclerosis are automatically deemed disabilities.

The Act states that where an impairment is subject to treatment, then you look at the effect of that condition without the treatment; for example someone using a hearing aid or someone with diabetes which is being controlled by medication or diet.

However in Sussex Partnership NHS Foundation Trust v Norris last month, the EAT held that a life-long condition, controlled by medication, making Mr Norris more prone to infections, is not sufficient to satisfy the definition of disability under the Equality Act, even if at least one such infection caused a substantial adverse effect on his ability to carry out normal day-to-day activities.

The guidance on disability is lengthy (see Disability Guidance). The cautious approach for employers confronted with an employee with a suspected disability is to consider reasonable adjustments just in case, and to take legal advice if in any doubt.

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One Big Happy Family?

Occasionally you hear employers describing their staff as one big happy family. That may not be such a good thing if you’re a domestic servant.

In Nambalat v Taher this month, the Court of Appeal held that au pairs and domestic workers are not entitled to the national minimum wage if they live in family home are treated as part of the family, especially regarding the provision of accommodation and meals and the sharing of tasks and leisure activities.

The NMW of £6.08 ph for adults is hardly a fortune and this decision will not help combat the increase in exploitation of domestic workers, who may not be able to afford to leave even if they want to.

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.

http://ymlp.com/zPD6mF

James Carmody

RECULVER SOLICITORS     

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Reculver Solicitors Ltd (Company No. 6910066) | Solicitors: James Carmody*, Carol Aylott, Kate Henry.

Regulated & authorised by the Solicitors Regulation Authority, SRA No. 565284 (*Director)

Boring But Important: Pension Reform

The introduction of auto-enrolment into pension for employees has been widely reported this week, leaving some employers vaguely uneasy about what they have to do and when.

At present if you have five or more staff, you should have a stakeholder pension in place. From October 2012 the largest employers with over 120,000 workers will have to comply with Pension Auto-Enrolment under the Pensions Act 2008. Smaller employers with under 40 employees won’t have to auto-enrol till August 2015. To find out when your business will be affected, click staging date.

All workers aged 22-65 earning more than the income tax personal allowance and who are not already members of a qualifying pension scheme, must be enrolled in an automatic enrolment scheme from the relevant staging date.

Contributions start with a minimum of 2% of qualifying earnings (with at least 1% from the employer), and rise to a total minimum of 8% of qualifying earnings (with at least 3% from the employer) from October 2017.

For many employers that don’t currently provide pension schemes, this will be a big and unwelcome additional cost, and which they may recoup by not making incremental pay increases in those years. However the more people that get adequate pension cover in place, the more that will actually be in a position to retire when they reach the age of 65.   Go to www.tpr.gov.uk/pensions-reform  for more information. Read also our longer article here.

Click here to read about our Employer Protection Scheme & protect your business against Tribunal claims

James Carmody

RECULVER SOLICITORS     

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Reculver Solicitors Ltd (Company No. 6910066) | Solicitors: James Carmody*, Carol Aylott, Kate Henry.

Regulated & authorised by the Solicitors Regulation Authority, SRA No. 565284 (*Director)

Qualifying period for unfair dismissal claims

As you know the government have proposed to increase the qualifying length of employment required  to claim unfair dismissal from one year to two years from the 6th April 2012.


Does that mean that for an employee with (say) 1 year 3 months employment, you can wait to the 6th April and then safely dismiss?  No says the government.


The draft regulations to implement the change state that employees whose period of continuous employment began on or before 5th April 2012 will still be subject to the one year qualifying period. It’s only those employees taken on after the 5th April 2012 who will have to wait for two years to get statutory protection from unfair dismissal.


Beware!  In any case there are still a number of claims that can be brought from day one of employment including unlawful discrimination, dismissal for the assertion of a statutory right, dismissal as a result of whistle-blowing. Even though you may not consider that those claims arise, your employee might. It is still worth following a fair if truncated procedure before dismissing in all cases regardless of the length of service.

                

James Carmody

RECULVER SOLICITORS     

          

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

12-16 Clerkenwell Road, London EC1M 5PQ*

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk

       

Regulated by the Solicitors Regulation Authority: Firm 405070 | Principal: James Carmody | Consultants: Carol Aylott, Kate Henry.