The
earlier case of Lawson v Serco grappled
with the complex area of the jurisdiction of a
tribunal to hear an unfair dismissal claim. It
established that whether someone was employed in
Great Britain (and was therefore entitled to claim
unfair dismissal) would ordinarily be a question
of whether the employee was working in Great
Britain at the time of dismissal. For peripatetic
employees (those who work in a number of places),
the key is where they were based at the relevant
time.
The
flight attendant was considered to be a
peripatetic employee and the tribunal's decision
that it did not have jurisdiction to hear her
claim was upheld by the EAT. The EAT confirmed
that the tribunal was right to resist any
temptation to apply the "but for" test and
consider where she would have been based but for
her illness. At the time of her dismissal, the
flight attendant's transfer to London had not
taken effect, she had no contact with London and
her continuing ill health absence was managed from
Chicago. She was therefore not based in London and
was not entitled to claim unfair dismissal.
Is it a redundancy?
The
EAT has confirmed that where an employer
terminates the contracts of its employees and
subsequently offers them new contracts on
different terms, the dismissals are not redundancy
dismissals.
In
Martland and others v Co-operative Insurance
Society Ltd, changes were made to employees'
terms and conditions, as the employer was
suffering severe financial difficulties. Although
the employer sought to achieve the variation by
agreement with the recognised union, this failed.
The contracts of the employees were therefore
terminated and new contracts were offered on
different terms. Whilst some accepted the new
contracts and remained, others did not, claiming
they had been dismissed by reason of
redundancy.
Under
the Employment Rights Act 1996 (ERA), a redundancy
essentially takes place where the dismissal is
attributable wholly or mainly to the fact that the
employer has ceased or intends to cease to carry
on business for the purposes of which the employee
is employed either generally or at the employee's
workplace, or the requirements of the business for
employees to do work of a particular kind have
ceased or diminished (or are expected to do so)
either generally or at the employee's workplace.
In
this case, the tribunal noted that the real issue
was whether the new terms and conditions
effectively required the employees to carry out
work of a particular kind which was different to
the work they had performed under their existing
contracts. If this was the case, the dismissals
were by reason of redundancy.
The
tribunal concluded that the changes to the way in
which the work was performed did not constitute a
change in the kind of work within the meaning of
ERA. The essence of the employees' jobs was
selling and the changes in the method of
performance did not justify the inference that
there was a different kind of job being performed.
This decision was upheld by the EAT as it was a
decision which the tribunal was entitled to
reach.
Baldness not a
disability
Baldness
has surprisingly hit the headlines a number of
times this week, following the reports of a
tribunal's decision that baldness is not an
impairment for the purposes of the Disability
Discrimination Act 1995 (DDA).
In
this case, a teacher issued a tribunal claim on
the basis that he had suffered harassment from his
pupils because of his baldness and that his
baldness had a substantial and long-term adverse
effect on his ability to do his job. According to
the BBC, however, the tribunal judge commented
that "if baldness was to be regarded as an
impairment then perhaps a physical feature such as
a big nose, big ears or being smaller than average
height might of themselves be regarded as an
impairment under the DDA. That, to me, cannot be
right looking to the DDA, the guidance and
relevant case law."
ACAS advice - spotting
depression in the workplace
Identifying
and addressing depression in the workplace is an
ongoing challenge for employers. To coincide with
Depression Awareness Week next week, Acas has
outlined their advice on how to spot
and deal with mental health problems at work. The
key steps identified by Acas include the
following:
- Keep your eyes open - look out for early
signs (e.g. uncharacteristic day-to-day
behaviour such as not being able to cope with
their work, seeming distracted, a sudden loss in
motivation or absenteeism) which may be a
potential warning that someone may be suffering
from the early stages of depression
- Don't make assumptions - a change in
behaviour does not necessarily mean that there
is a problem. Try to establish whether
inconsistent behaviour is just a blip or a sign
of a more serious problem.
- Get to the root of the problem - approaching
a colleague who you feel may be suffering from a
mental health issue is not easy. Try and arrange
a moment to catch someone privately and
informally.
- How can you help? - act accordingly when you
establish what the cause of the problem is. If
it is work related then you have the
responsibility and control to help remedy it. If
they have not already found support, point them
in the right direction towards help from their
GP or a counsellor.
EHRC calls on Government
to ratify UN Disability Convention without
delay
The
Equality and Human Rights Commission (EHRC) has
called on the Government to ratify the United
Nations Convention on the Rights of Persons with
Disabilities following the announcement by the UN
that the Convention will come into force on 3 May
2008 (after the 20th country ratified it last
week).
The
Disability Commissioner Baroness Jane Campbell
said 'Twenty countries around the world have now
ratified the Convention so bringing it into force,
but Britain has yet to do so. Britain
deserves to be seen as a beacon around the world
for disability rights. In delaying
ratification further, Britain will lose this
status. The Commission calls on the
Government to ratify the Convention, without
reservation, by the end of 2008."
Proposal for small
business exemption
John
Hutton, Business Secretary, is proposing that
companies employing fewer than 20 people should be
exempt from future European Union regulation, in a
drive to cut the burden on business of legislation
agreed in Brussels.
Mr.
Hutton will ask for the exemption to be written
into the European Small Business Act, which is
currently being drafted, and aims to lift the
weight of regulation on small companies. He will
also propose that Europe echo the UK's approach of
introducing key legislation on one or two days a
year only, to enable companies to plan ahead and
save money.
Highest annual rise in
employment in over a decade...
New
figures issued by the Office for National
Statistics show the largest annual increase in
employment since 1997. The figures also show that
the number of people in employment is the highest
on record at 29.5 million.
There
also appears to be a rise in the number of older
workers, which represents almost half of the
annual increase in employment, with 7.89 million
people over 50 now continuing to work. The number
of vacancies is also reported to be at a record
high, rising 12,000 on the quarter to 687,600,
while the number of redundancies is stated to be
down 17,000 to a record low of 106,000.
The
figures cover December to February 2008. It
therefore remains to be seen whether these figures
remain consistent during the rest of this
year.
...but skills gap still
exists
The
CBI has recently published the results of a new
annual audit of the nation's skills in the
CBI/Edexcel Education & Skills Survey 2008,
revealing that over half of employers (53%) lack
confidence in their ability to find enough people
with the right skills for their business. The
basic skills - the ability to read, write and do
simple arithmetic - are still a major cause of
concern for businesses.
Two-fifths
of employers had serious concerns about employees'
basic literacy and numeracy skills. While most
employers (63%) described staff in high skilled
roles as 'good', fewer did so for those in
intermediate level jobs (43%) and even fewer for
lower skilled staff (35%). IT skills are also seen
as weak, with over half of employers (56%)
concerned about the ability of existing employees
to use computers.
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