March 25 Employment Law Enews

Welcome to the latest edition of Steeles Employment Enews.

CHANGING TERMS AND CONDITIONS

In the recent case of Robinson v Tescom Corporation, the EAT considered whether the employer was fair in dismissing an employee who had agreed "under protest" to work under new terms of employment but who then insisted on working under his original terms.

Facts:

Mr Robinson worked as a sales manager for Tescom. Following a restructuring programme at the company, it was proposed that Mr Robinson's sales area should be extended. He objected to this change but indicated that he would work under the new terms of employment "under protest". He subsequently, however, refused to comply with the new terms and conditions and following a disciplinary hearing he was dismissed for gross misconduct.

An employment tribunal dismissed Mr Robinson's claim for unfair dismissal and breach of contract, on the basis that having agreed to work under the new terms, his failure to do so amounted to "gross insubordination". The company's decision to dismiss him for failure to follow a reasonable management instruction was within the band of reasonable responses. Mr Robinson appealed to the EAT.

Held:

The appeal was dismissed. The EAT decided that as Mr Robinson had agreed to work under the new terms, albeit under protest, his contract of employment continued and he had the option of either bringing a claim for breach of contract or resigning and claiming constructive unfair dismissal. It was reasonable for the company to set a date for Mr Robinson to comply with the new job description, and Mr Robinson was not entitled to refuse.

Comment:

It appears in this case that the employee was confused about what tactics to adopt when faced with the prospect of new terms and conditions to which he objected. An employee can opt to work under the new terms under protest, and subsequently bring a claim for breach of contract or constructive unfair dismissal. Alternatively, the employee can refuse to work under the new terms, in which case the employer has to decide whether to permit the employee to work under their old terms or dismiss them. By indicating that he was working under the new terms under protest, but then refusing to comply with the new terms, the company in this case was justified in dismissing him for failing to follow a reasonable management instruction.

AGE DISCRIMINATION: DISMISSED FOR BEING TOO YOUNG

In Wilkinson v Springwell Engineering Limited, the Employment Tribunal (ET) considered whether the decision to dismiss a teenage employee was on the grounds of her age as opposed to her capability and therefore whether the employer was in breach of the Employment Equality (Age) Regulations 2006.

Facts:

Miss Wilkinson was employed as an office administrator by Springwell Engineering Company Limited ("Springwell"). During her probationary period, it came to light that Miss Wilkinson was not performing sufficiently and she was consequently informed that her performance must improve over the following few months. In the meantime, another office administrator, Mrs Spence (who was older than Miss Wilkinson) was asked to assist with her work load.

Miss Wilkinson's employment was terminated after only two months and she alleged that she was informed by her line manager that this because she was too young for the job; she was 18 years old at the date of her dismissal. Miss Wilkinson subsequently brought a claim for discrimination on the grounds of her age.

Held:

The ET ruled in favour of Miss Wilkinson stating that there was no evidence to prove that she lacked in capability, as was claimed by Springwell, and finding that she was dismissed by reason of her age. The ET stated that Springwell had relied on a "stereotypical" assumption that capability equals experience and experience equals older age. This was supported by the fact that Springwell had enlisted the assistance of Mrs Spence. Miss Wilkinson was awarded over 16,000 pounds in total, including future loss of earnings for six months and 5,000 pounds for injury to feelings. The Tribunal uplifted the award by 50% due to the employer's failure to follow the statutory dismissal and disciplinary procedures.

Comment

There is a general assumption that age discrimination laws are only in place to protect older employees. This case reminds us that all employees are entitled to be treated fairly at work in relation to their age, whether they are close to retirement or just commencing their working life. Given the short length of the employee's employment in this case, the award of compensation was relatively high. This demonstrates the importance of following fair procedures when dismissing employees, even when they have less than one year's service.

DISCRIMINATION: PART TIME WORKERS

The Employment Appeal Tribunal (EAT) recently considered whether an employee's part time status must be the sole reason for less favourable treatment against them by their employer, if they are to make a successful claim for discrimination on this basis.

Facts:

The claim was brought by a group of part time university lecturers, employed on contracts which provided that their hours could be varied annually but subject to a provision that they would be guaranteed a minimum of one-third of the hours they had worked the previous year. Their employer, Manchester Adult Education Services, began experiencing funding difficulties so, in an attempt to save costs, decided to allocate work to teaching staff on a "best fit" basis. This resulted in work being allocated in priority to employees with a contractual right to be provided work. Consequently, many part time workers had their hours significantly reduced.

Previous case law had established that for a claim for discrimination by reason of an employee's part time status to succeed, the employee must prove that this was the sole reason for their discriminatory treatment. The lecturers' claim was therefore unsuccessful as the tribunal found that their less favourable treatment was also based on the provision in their contracts that they were only entitled to work a minimum number of hours. The lecturers appealed against this decision.

Held:

The EAT upheld the appeal and disapproved the "sole reason" test. In the EAT's view, provided the part timer is treated less favourably than a comparable full timer and being part time is one of the reasons for this treatment, that will be enough for the Part Time Workers Regulations to be triggered. The key factor is that discrimination towards a part time worker must be because they were a part time worker and not for some independent reason.

Comment

This case brings discrimination towards part time workers in line with other areas of discrimination where the discriminatory factor need not be the sole, or even the main, reason in influencing the employer. This will potentially make it easier for part time workers to bring claims in the future.

NEW NATIONAL MINIMUM WAGE RATES

The Government has announced the new rates for the National Minimum Wage, to apply from 1 October 2008.

The adult rate will increase from 5.52 pounds to 5.73 pounds.

The rate for 18-21 year olds will increase from 4.60 pounds to 4.77 pounds.

The rate for 16 and 17 year olds will increase from 3.40 pounds to 3.53 pounds.

The Government estimates that almost one million employees will benefit from this increase, the majority (two thirds) of which are women.

As part of the new Employment Bill, it is proposed to strengthen the enforcement of the National Minimum Wage and introduce tougher penalties, including unlimited fines, for employers who fail to pay at the correct rates. The Bill is currently progressing through Parliament but we have no fixed date for its likely enactment.

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