What have we been up to this month?
It was lovely to see so many clients and contacts attend our re-brand launch event at our offices on 15 October. Everyone who attended seemed to enjoy themselves and were very positive about our premises and the new look (well they were to our face anyway!).
We’ve also had an excellent response to our first Buckles HR Breakfast Club event, which will take place on Tuesday 19 November. This event is now oversubscribed but do not fear if you did not manage or were unable to come along this time, as we will be running the HR Breakfast Club on a regular basis with a different topic in each session – watch this space for details of the next one.
Finally, is it clear that the issue of auto-enrolment pensions is now starting to move to the forefront of our clients’ plans, with staging dates looming and the first cases coming through of heavy fines being imposed by the Pensions Regulator against companies that do not have this in hand.
Any new cases to be aware of this month?
Pension and Age Discrimination
- The European Court of Justice has ruled that the payment of different rates of employer contributions to an occupational defined contributions pension scheme according to the employee’s age can be justified provided that the difference in treatment that arises as a result is appropriate and necessary to achieve a legitimate aim. This is a matter for the National Court to establish.
- Ruling on a referral from the Danish Court, the ECJ said that the reasons for paying age-related contributions cited by the Danish government, which included helping older workers build up retirement savings more quickly, were legitimate and could amount to the necessary justification. But the Court also ruled that a separate exemption in the EU Framework Directive that permitted the use of age criteria in actuarial calculations did not apply to the practice of paying age-related contributions. (HK Danmark v Experian A/S C-476/11).
Non-solicitation covenants:
- The Court of Appeal has dismissed the appeal of a former employee and director who had been ordered to pay at least £50,000 following a breach of his post-termination restrictive covenants. His contract of employment contained a restriction against the solicitation of any customers of his former employer for a period of six months following the termination. The Mercantile Court had held that the restriction was reasonable, and that the director had breached his fiduciary duty to the company. It ordered him to pay at least £50,000 in damages.
- The employee appealed, arguing that the restriction was unreasonable on the grounds that it applied to all customers he dealt with during his employment. The Court of Appeal held that the restriction was unreasonable, despite its breadth, as the restriction only applied for six months after termination. (Coppage and another v Safetynet Security Ltd [2013] EWCA Civ 1176.)
- It is well established that decisions on the validity of restrictive covenants are highly sensitive to their facts. It is, however, still surprising how much emphasis the Court placed on a post-termination duration of six months as being so short to almost render it fair automatically, given the number of cases in which covenants of the same duration have not been upheld. The fact that this was truly a non-solicitation restriction rather than a non-competition restriction undoubtedly weighed in its favour.
Reasonable adjustments:
- The Employment Appeal Tribunal has upheld a tribunal’s decision that an employer, in not paying for an employee with work-related stress and depression to have private psychiatric counselling and cognitive behavioural therapy, breached its duty to make reasonable adjustments under the Equality Act 2010.
- The adjustments, which were recommended by a consultant psychiatrist, were sufficiently “job-related” to fall within the scheme of the legislation. They would have involved payment for a specific form to support to help the employee return to work and cope with her work-related difficulties. In reaching its decision, the EAT emphasised that this was not a case about employers generally being obliged to pay for private medical treatment. (Croft Vets Ltd and others v Butcher UKEAT/0430/12.)
