March 6 2006 Employment Law Enews

Welcome to the latest edition of employment law enews.

Part-time firefighters fight back!

On the 1 March 2006 the House of Lords overturned the decision of the Court of Appeal (CA) in the case of Murray & Ors v Kent Medway Towers and Fire Authority (2004) IRLR 697.

The case concerned a group of part-time firefighters who brought a claim under the Part-Time Workers (Prevention of Less Favorable Treatment) Regulations 2000 ("the Regulations"). The part-time firefighters claimed that they were discriminated against in comparison to their full-time counterparts, with regard to access to the pension scheme, lower additional duties payments and less favorable sick pay arrangements. In order to succeed in their claim, the part-time employees had to establish that under the Regulations:

• They were employed under the same type of contract as the full-time firefighters;
• They had been engaged in work of the same or broadly similar nature as the full-time firefighters;
• It would have been unreasonable for the employer to have treated them differently from the full-time firefighters.

The House of Lords agreed with the CA that the two sets of employees were employed under the same type of contract of employment. The Court's view was that employers should not be allowed to avoid being caught by the Regulations, simply by setting different terms for their part time workers.

However the House of Lords disagreed with the earlier decisions of the EAT and CA in this case that due to the "measurable additional job functions" between the part-time and full - time employees, they were not engaged in work of the same or broadly similar nature. The House of Lords held that the correct approach is to focus upon the similarities in the work rather than the differences in the work. On this basis the House of Lords held the work was of the same or broadly similar nature. They overturned the decision of the CA and held that the part-time firefighters had been treated less favorably than their full time comparators.

Son (Daughter) of TUPE!

At last the long awaited (and much delayed) Transfer of Undertaking (Protection of Employment) Regulations 2006 (the Regulations) have arrived. These update the 1981 TUPE Regulations.

The main and significant new implications which employers must note are as follows:

1. There is a new concept of "service provision changes". This makes it much clearer that companies contracting in or out the provision of services (other than on a one off basis) are covered by the Regulations.
2. The Transferor is obliged to provide employee liability information to the Transferee. This must include such information as the identity of the transferring employees, their terms of employment, court or tribunal proceedings brought by employees in the two years prior to transfer and any such claims the Transferor reasonably believes may be brought. A failure to provide this information incurs a liability for the Transferor of £500 per transferring employee.
3. Compensation for a failure to inform and consult about the transfer with affected employees may be awarded on a joint or severable liability between the Transferor and the Transferee.

The Regulations will be effective from 6 April 2006.

Employer's liability - The scope is widened

It has long been established that an employer can be held vicariously liable for the acts committed by its employees during the course of their employment. This is the case whether or not the employee committed the act with the employer's knowledge or approval.

An interesting issue has arisen in recent years where an employer has provided an employee to another 'employer' (the hirer) on a temporary basis. If the employee then commits a wrongful act while under the supervision of the hirer, does the liability for the act rest with the permanent employer or the hirer?

The case of Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd & Ors (2005) EWCA Civ 1151("the Viasystems case") was authority for the proposition that vicarious liability for the acts committed by an employee can be shared between the permanent employer and the hirer. This decision was significant as it established that the hirer could be held vicariously liable even though they were not an employer in the strict employment law sense of the word.

The Court of Appeal recently addressed the issue again in the case of Hawley v Luminar Leisure plc & Ors v CA (2006) EWCA Civ 18. The case concerned a company who employ security staff and hire them out. A doorman was hired out to a nightclub and was involved in an incident whilst at work, which resulted in him punching one of the nightclub's customers, causing him to suffer severe brain damage. The customer brought proceedings against both the doorman's employer and the nightclub.

The Court of Appeal upheld the decision of the High Court and found that the nightclub was the "temporary deemed employer" of the doorman for the purposes of vicarious liability. Despite the fact that the security company paid the doorman and had a contract with the nightclub which expressly stated that the company was the doorman's employer, the nightclub exercised overall control of the doorman and his activities. The Court considered the Viasystems case and whether it would be appropriate in this case to also share the liability between the permanent employer and the hirer. However, it was held that this case differed as in the Viasystems case both companies were obliged to control the activities of the employee. The nightclub was, therefore, solely liable for the acts of the doorman.

The Hawley case sends out an important message to businesses who hire staff from other companies: They could be liable for the acts committed by a hired contractor if they exercise enough control over him/her and his/her activities (e.g. what he/she does and the way he/she does it).

If you hire staff from other companies, we recommend that you make it clear in the contract with their employer who will be responsible for the hired staff's negligence.

Practical Implications of the new Age Discrimination Regulations Workshop

The Employment Equality (Age) Regulations 2006 ("the Regulations") come into force on 1 October 2006 and will have wide ranging implications for all employers. We are offering a two hour workshop focusing on the impact of the Regulations. The workshop is aimed at HR Managers and those with responsibility for personnel issues in the workplace. We aim to make the session as interactive and practical as possible with group exercises and case study scenarios.

The Regulations are designed to protect both the old and the young from discrimination in the workplace, whether direct or indirect. The Regulations will have a significant impact and all employers should ensure they are fully up to speed with the implications. In particular the workshop will focus on the Regulations' impact on:

Recruitment;
Working practices; and
Dismissal.

Taking place at our London office, the workshops have an 8.45am for 9.00am start and should finish no later than 11.30am. The cost of the workshop is £40.00 plus VAT. Due to the nature of the workshop, places are limited and will be allocated on a purely first come first served basis. To reserve your place please call 0870 60 90 200 or book online Tuesday 28 March or Wednesday 5 April

This article copyright © 2006 Steeles Law llp. All rights reserved.