Over Taylor Biggs

EAT interprets DDA to include 'associative' discrimination  
In EBR Attridge Law LLP and anor v Coleman, the EAT upheld the decision of an employment judge that the Disability Discrimination Act 1995 is capable of being interpreted so as to protect people who suffer discrimination or harassment by reason of the disability of another person.

Six months of maternity leave to be transferable to father The Government has announced a consultation on allowing new mothers to transfer some of their maternity leave entitlement to the father. Under the proposals, mothers with maternity leave outstanding in the second six months of a child's life will be able to transfer up to six months of maternity leave to the father. Up to three months of that leave will paid at the same rate as Statutory Maternity Pay if the leave is taken during the mother's 39-week maternity pay period

Failure to redeploy was age discrimination In London Borough of Tower Hamlets v Wooster, the EAT has upheld the decision that a 49-year-old employee suffered unlawful age discrimination when he was made redundant. There had been ample evidence for the tribunal to conclude that the employer's failure to redeploy the employee was motivated by a desire to avoid his becoming entitled to an early retirement pension.

Workers on sick leave may carry over annual leave into next leave year In Pereda v Madrid Movilidad SA the ECJ has held that the Working Time Directive (No.2003/88) does not preclude national legislation or practices allowing a worker to take annual leave during sick leave. However, where that worker does not wish to do so, annual leave must be granted in a different period, if necessary outside the annual leave period.

Government to tighten up rules on employing skilled foreign workers The Government has accepted all 16 recommendations of the Migration Advisory Committee to make it harder for skilled foreign workers to take jobs in the UK under the points based system. The move is intended to ensure that British workers are not only first in line for these jobs, but also have longer to apply.

From 2010 all jobs will have to be advertised in a job centre for four weeks before employers look for staff from outside Europe. In addition, overseas workers who want to transfer to the UK base of their company will have to have worked for that company for a year, rather than just six months, prior to the move. The minimum salary which allows a worker to qualify as a skilled worker will also rise from GBP17,000 to GBP20,000.

EAT considers online presentation of claim forms In McFadyen and ors v PB Recovery Ltd and ors, the EAT has held that presenting a claim online is effective only for the tribunal to which the claim is directed and does not amount to effective presentation to all UK tribunals generally.

EAT considers mobility clauses and 'material detriment' under TUPE In Tapere v South London and Maudsley Trust, the EAT has clarified the operation of Reg 4(9) of TUPE 2006, which allows a transferred employee to treat him or herself as dismissed if a substantial change to working conditions causes him or her material detriment. The EAT held that 'detriment' for this purpose requires the subjective approach approved under discrimination law. The EAT also considered the construction of mobility clauses after a TUPE transfer.

Motive irrelevant to establishing discrimination when treatment is on the ground of race In Amnesty International v Ahmed, the EAT has upheld a tribunal's decision that A had suffered direct discrimination when she had not been offered a promotion on the basis that her ethnicity made it dangerous and potentially compromised the employer's impartiality. The EAT noted that the employer's motive, however benign, is irrelevant to establishing discrimination where race is the ground of the treatment in question.

Acas annual report shows recession-related increase in unfair dismissal claims  Acas has published its annual report for 2008/09. The report shows a rise in the number of unfair dismissal claims, an increase that Acas attributes to the recession. However, the total number of claims by main ground of complaint received for conciliation from employment tribunals was down from 151,249 last year to 138,535 this year, a fall of 8 per cent.

Belief in climate change can constitute a 'philosophical belief'  
In Grainger plc and ors v Nicholson, the EAT has held that N's asserted belief that carbon emissions must be cut to avoid catastrophic climate change is capable of amounting to a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. In reaching this decision, the EAT also held that, unlike the position pertaining to religious beliefs, N would probably need to be cross-examined on his belief in order to establish it.

EAT holds dismissal for refusal to counsel gay couples not discriminatory  In McFarlane v Relate Avon Ltd the EAT has held that the dismissal of an employee for refusing to work with homosexuals is not direct religious discrimination, as the dismissal was based on the employee's refusal to comply with the employer's equal opportunities policy rather than his Christian beliefs.

Court of Appeal deprecates tribunal's reference to commentary on extension of time In Chief Constable of Lincolnshire Police v Caston the Court of Appeal has stressed that whether it is 'just and equitable' to extend the time limit for lodging a claim is a question of fact and judgement for the tribunal. Commentary suggesting that tribunals should adopt a 'liberal' approach to the discretion to extend time was potentially misleading and in any event should have been irrelevant to the employment judge's decision.

Tribunals have jurisdiction to consider whether compromise agreements are unenforceable due to misrepresentation
In Industrious Ltd v Horizon Recruitment Ltd (in liquidation) and anor the EAT has held that tribunals have jurisdiction to determine whether a compromise agreement is unenforceable because of misrepresentation.

Christian registrar who would not perform civil partnerships did not suffer religious discrimination
In Ladele v London Borough of Islington and anor the Court of Appeal has upheld the EAT's decision that a Christian registrar did not suffer religious discrimination when she was threatened with dismissal for refusing to carry out civil partnership services. The Court on Appeal further held that the Equality Act (Sexual Orientation) Regulations 2007 meant that, having been designated a civil partnership registrar, it was unlawful for L to refuse to perform civil partnerships.

Statutory payments to rise while compensation limits fall in 2010    
The Secretary of State for Work and Pensions has announced the proposed rates of various statutory payments for 2010. The Government has also published the Employment Rights (Revision of Limits) Order 2009, which revises downward, among other things, the maximum compensatory award for unfair dismissal. The reduction reflects the decrease of 1.4 per cent in the Retail Prices Index from September 2008 to September 2009.

In a statement to Parliament, Yvette Cooper, the Secretary of State for Work and Pensions, proposed that the earnings threshold for statutory adoption, maternity, paternity and sick pay would rise from GBP 95.00 to GBP 97.00 per week. Statutory adoption, maternity and paternity pay and Maternity Allowance will all rise from GBP 123.06 to GBP 124.88, but statutory sick pay will remain at GBP 79.15. It is expected that these changes will come into effect in April 2010.

Meanwhile, RPI-linked compensation limits are set to fall. Under the Employment Rights (Revision of Limits) Order 2009 SI 2009/3274:

• the maximum compensatory award for unfair dismissal falls from GBP 66,200 to GBP 65,300

• the minimum amount of compensation where an individual is unlawfully excluded or expelled from a union and not admitted or re-admitted by the date of a tribunal application falls from GBP 7,300 to GBP 7,200

• the maximum guarantee payment payable to an employee in respect of any day under S.31(1) of the Employment Rights Act 1996 falls from GBP 21.50 to GBP 21.20.

The revisions made by the Order take effect when the event giving rise to the entitlement to compensation or other payment occurrs on or after 1 February 2010.

Note that the use of the same RPI formula in relation to the limit on a week's pay used to calculate redundancy payments and the unfair dismissal basic award, among other things, was suspended following a one-off increase in October. The limit on weekly pay for these purposes will remain at GBP 380 until February 2011 at the earliest.