May 14 2007 Employment Law Enews

Welcome to the latest edition of steeles employment law e-newsletter.

Equal pay and victimisation

Claimants (and potential claimants) alleging any form of discrimination, including equal pay claims, are given additional protection against victimisation. Victimisation occurs when an employer treats an individual less favourably purely because he or she has brought (or is suspected of bringing) proceedings or is (or is suspected of) intending to do so.

In the case of St Helen's Borough Council v Derbyshire and others, the House of Lords has upheld a claim of victimisation brought by a group of employees who were pursuing claims for equal pay against the Council. Female catering staff employed by the Council were claiming pay equal to that of male road sweepers. The majority of the claims were settled but a group of the women proceeded with their claims and eventually succeeded at the Employment Tribunal.

Prior to the Tribunal hearing, the Council sent a letter to the claimants and another to all catering staff indicating that if the Council lost the case, the provision of school meals may have to be discontinued and job losses would result. The letters led to strained relationships between the claimants and their colleagues, and so the claimants brought further proceedings alleging that the sending of the letters amounted to an act of victimisation on the part of the Council.

The Council argued that the letters (which were described by the tribunal as "careful and rational") had been written in the normal course of litigation and were simply stating the potentially harmful consequences of pursuing the claims. The Tribunal disagreed, finding that the intention of the letters was to intimidate the employees into abandoning their claims. The Council had gone beyond what was reasonable in protecting its interests and this amounted to victimisation. Following appeals to both the EAT and the Court of Appeal, the House of Lords has now upheld the Tribunal's decision.

This case will have wider implications for all cases of discrimination and employers should think twice before writing to, or communicating with, employees who are involved in or have threatened discrimination proceedings. Employers are entitled to take steps to protect their interests in litigation, such as attempting to negotiate settlements, but where the individual is legally represented it is generally safer to communicate via their representative rather than directly with the individual.

Extending probationary periods

Employers will often include a probationary period in the contracts of all new employees, and this will usually provide for a shorter notice period to apply during that period and also for the period to be extended where there are any doubts over an individual's performance. A recent case has confirmed that if an employer wants to exercise its option of extending the probationary period, it should actively take steps to do so and to inform the individual that the period is being extended before expiry of the original period.

Ms Przybylska commenced her employment with MT Ltd on 3 October 2005. Her contract stated that there was to be a probationary period of three months during which either party could terminate on one week's notice; thereafter three months' notice was required. The contract also gave MT Ltd the express right to extend the probationary period (and one week's notice) "where circumstances may not have allowed an objective assessment of your [Ms Przybylska's] performance to be made".

The probationary period ended on 2 January 2006 (a bank holiday). Ms Przybylska returned to work on 4 January 2006 but the company had not taken steps to extend her probationary period. A meeting was set up on 19 January 2006 to carry out Ms Przybylska's probationary review. After a further meeting on 31 January 2006 she was told her employment was to be terminated with one week's notice. Ms Przybylska argued that, as her probationary period had ended, she was entitled to three months' notice.

The Employment Tribunal ruled that there was an implied term in Ms Przybylska's contract that her probationary period would be extended until the employer indicated that it was over. As the probationary review was not carried out until 19 January, it was reasonable to assume that the probationary period (and the one week notice period) was still in effect. The Tribunal therefore determined that Ms Przybylska was only entitled to one week's notice.

The EAT overturned this decision on the basis that there was no need for such an implied term as there was an express term in the contract allowing MT Ltd to extend the probationary period if it so wished. As MT Ltd had neither dismissed Ms Przybylska nor exercised its right to extend the probationary period during the initial period, it had lost the right to terminate the contract on one week's notice. Ms Przybylska was therefore entitled to three months' notice.

This case serves as an important reminder to employers of the need to carefully monitor the performance of employees during their probationary period and to take prompt steps to address any concerns. Provided the contract allows for the period to be extended, this should be done in advance of the initial period ending. To avoid any oversights the safest course of action might be to provide in the contract that the probationary period continues until the employer confirms in writing that it has been successfully completed.

Age discrimination during recruitment

In the recent case of Cunningham v BMS Sales Limited, the Director of the Equality Tribunal in the Republic of Ireland decided that Mr Cunningham had been directly discriminated against on the grounds of age, contrary to Irish equality legislation.

In late 2004 Mr Cunningham, a salesman, attended an interview with BMS, a recruitment agency. On arrival at BMS' offices Mr Cunningham was asked to complete a registration form that requested information including his age, date of birth, number of children and living arrangements. Mr Cunningham completed the form but did not give his date of birth and provided an incorrect age, as he thought the questions were "irrelevant and invasive". Mr Cunningham was questioned about this omission at his interview and again during a telephone conversation a few days later, during which he alleged he was told that in the absence of this information his application would not be progressed.

BMS claimed that in failing to indicate his date of birth and correct age, it considered Mr Cunningham to have been "evasive and uncooperative" and so it did not progress his application. Had Mr Cunningham not acted in this way and deliberately provided incorrect information, BMS claimed they would have been happy to represent Mr Cunningham.

The Equality Officer decided that in refusing to represent Mr Cunningham, BMS had directly discriminated against Mr Cunningham on the ground of age and ordered BMS to pay Mr Cunningham 5,000 euros compensation (£3,392 approx). The fact that BMS had sought Mr Cunningham's date of birth and age and then subsequently pursued him for this information was apparently sufficient to establish a case of direct discrimination on the ground of age. It is also notable that the Equality Officer considered and declared BMS' Equal Opportunities policy inadequate, as it referred only to UK legislation and not the Irish legislation. BMS was, therefore, ordered to draft a policy specific to the jurisdiction.

Whilst the legislation prohibiting age discrimination in Ireland is not identical to that applying in the UK, it contains similar provisions and employers would be advised to ensure that recruitment decisions are not made on the basis of an applicant's age (or the failure to provide this information) without proper justification.

This article copyright © 2007 Steeles Law llp. All rights reserved.