Welcome to our monthly Employment update!
You will see that the format is now divided into three sections: news from the Employment Team; legal update on recent cases and legislation; and a lighter section highlighting a news story or two from the world of employment! I hope that you find the update both informative and enjoyable and I would welcome any feedback that you may have for future editions.
Giles Betts, Partner and Head of Employment Team
Legal Update
Inflating redundancy score of employee on maternity leave constituted sex discrimination against male colleague
In De Belin v Eversheds Legal Services Ltd an employment tribunal held that the employer had discriminated against a male lawyer on grounds of sex when, in a redundancy scoring exercise, it inflated the score of his female colleague to take account of the fact that she was on maternity leave. The dismissal was as a result also unfair. The fact that there were actual ways in which the female lawyer could have been scored against the relevant criterion was probably a decisive feature in this case. Employers should not assume that "giving the benefit of the doubt" to the employee on maternity leave will be the safest option for them. Employers should assess the possible ways in which the unfairness of a maternity absence can be reduced, rather than automatically favouring the female employee above others.
Failing to follow contractual disciplinary proceedings may be very expensive!
In Edwards v Chesterfield Royal Hospital NHS Foundation Trust the Court of Appeal held that an employee could, in principle, recover damages for loss of future employment prospects when, as the result of breach of express contractual terms as to the conduct of disciplinary proceedings, findings of misconduct were made (which would not have been made had the disciplinary procedure been properly observed) resulting in dismissal. It is understood that the employer in this case is seeking leave to appeal to the Supreme Court where clarification may be provided.
Employee working abroad on rotational basis could bring unfair dismissal claim
In Ravat v Halliburton Manufacturing and Services Ltd the Inner House of the Court of Session held by a majority that an employee who lived in Great Britain but worked in Libya on a "one month on, one month off" rotational basis, qualified for unfair dismissal protection under the Employment Rights Act 1996.
12 months restrictive covenant too long
In Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and another [2010] EWHC (Ch) 1178 the High Court held that there was insufficient evidence that a restriction of 12 months, less time spent on garden leave, went no further than was reasonably necessary to protect an employer's legitimate business interests. It therefore refused to grant an injunction to prevent an ex-employee soliciting its customers. AFEX sought injunctive relief against both Mr Abbassi and IFX to prevent solicitation of its customers and potential customers for nine months from Mr Abbassi's last day of employment, taking into account the three months he had spent on garden leave.
Refusing the application, the High Court held that:
- The non-dealing clause gave adequate protection. Mr Abbassi was not particularly senior, he had not played a key part in securing new business for AFEX, and foreign currency exchange customers were not particularly loyal, habitually "shopping around" between competitors for the best deal. Six months was long enough for a new account manager at AFEX to have adequate opportunity to develop a relationship with Mr Abbassi's old customers.
- Had it found the 12-month duration of the non-solicitation clause reasonable, it would not have considered that protection should extend beyond customers to potential customers. Such protection would only be appropriate where a business could show that building up a relationship with its potential customers was a long and difficult process, involving significant investment in time and money.
- A delay of one month between discovering the breach and seeking injunctive relief would not be too long to justify refusing to grant an injunction in a case such as this which substantially turns on the interpretation of documentation, and where neither party can argue the delay was evidence of their agreement or had resulted in prejudice to them.
Equality Act 2010: update on commencement dates
Last week the Government Equalities Office (GEO) removed reference to the commencement date of the majority of the Equality Act 2010 from its website.
The GEO has now updated its site to state that the government "is currently considering how the different provisions will be commenced so that the Act is implemented in an effective and proportionate way. In the meantime, the Government Equalities Office continues to work on the basis of the previously announced timetable, which envisaged commencement of the Act's core provisions in October 2010." Watch this space!!
Vetting and barring scheme on hold
The much-criticised vetting and barring scheme is to be "remodelled", with the government announcing an immediate halt to the requirement for individuals working with children or vulnerable adults to register with the Independent Safeguarding Authority. Voluntary registration for those working in "regulated" activity was due to commence on 26 July 2010 and registration was set to become compulsory from November 2010.
Team News
Thank you to all those who attended our Employment Update breakfast seminar on 24 June at our head office in Peterborough. We covered a range of topics including the Equality Act, fit notes, sickness absence, the right to legal representation at disciplinary hearings and a round-up of recent case law. If you have any particular topics that you would like to see covered in future seminars or workshops then please let us know?
And finally… on a lighter note!!!
Bald man wins police hair drug test appeal
A bald man who applied to join the police but was rejected because he did not have enough hair for a drugs test has successfully appealed against the decision. It is understood he was at an advanced stage of the Police Service of Northern Ireland's recruitment process when problems arose over the testing. Because of his baldness, he could not give them hairs of up to 3cm in length. He was also unable to provide about 200 body hairs as an alternative.
PSNI lawyers told the High Court in Belfast he would be reinstated in the recruitment process. Policies will also be changed to ensure other sources of analysis are included.
The man, who has not been named for security reasons, launched judicial review proceedings following his unsuccessful attempt to become a trainee officer. In his legal challenge, the would-be policeman claimed the decision was irrational and discriminatory.
