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Warning letter about consequences of equal pay claim amounts to victimisation

The House of Lords has confirmed that letters sent by an employer to its staff warning of adverse consequences if the staff continued to pursue their equal pay claims did amount to victimisation under the Sex Discrimination Act 1975.

In St Helens Borough Council v Derbyshire and others, a number of female school catering staff employed by the council brought complaints against it under the Equal Pay Act 1970. Whilst many of the cases were settled, a small number of women proceeded with their claims. Shortly before the tribunal hearing, the council sent two letters. The first was sent to all staff, stating that the council could not bear the financial consequences of losing the equal pay claims and, if it did lose, it would be forced to consider scaling back the provision of school meals and making job losses. The second letter was sent only to the claimants, and referred to the first letter, urging them to settle. Following receipt of these letters, the claimants brought a second claim, arguing that the letters amounted to victimisation.

Whilst the Court of Appeal had held that the letters were an "honest and reasonable attempt by the council to compromise proceedings", the House of Lords upheld the decision of the original tribunal. The tribunal had recognised that an employer may make reasonable attempts to settle a claim but, in this case, the council's letters did not constitute such an attempt. The object of the letters was to pressurise the women into settling, they were treated less favourably than staff that were not pursuing equal pay claims and the letters amounted to a detriment. The council's letters therefore amounted to victimisation.

This is an important decision. Whilst an employer is entitled to make honest and reasonable attempts to settle a claim during the course of litigation, it should avoid doing anything which could be considered to be unduly pressurising or threatening employees. The 'warning' letters in this case were considered sufficient to constitute victimisation and therefore employers should think extremely carefully before communicating with employees who have been involved in, or have threatened to bring, discrimination proceedings.

Implied terms and probationary periods

The Employment Appeal Tribunal (EAT) has confirmed that an employer who failed to exercise an express contractual right to extend a probationary period within the initial probationary period had lost the right to extend it.

In Przybylska v Modus Telecom Ltd, the employee's employment contract provided for an initial three month probationary period, during which either party could terminate on one week's notice. The employer was entitled to extend the initial three month probationary period and the right to terminate on one week's notice where "circumstances may not have allowed an objective assessment of your performance to be made". Following the successful completion of the initial probationary period, the notice period increased to three months.

The employer did not exercise the right to extend the initial probationary period prior to its expiry. Four weeks' after the expiry of this probationary period, the employee was informed that her employment would be terminated because she had not successfully completed her probationary period. The employee was paid one week's pay in lieu of notice. She argued that she was entitled to three months' pay in lieu of notice, since the initial three month probationary period had expired.

The tribunal disagreed, on the basis that there was an implied term in the contract which entitled the employer to inform the employee within a reasonable period of the expiry of the three month period whether or not she had successfully completed it. The EAT, however, reversed the tribunal's decision, stating that the term implied by the tribunal was inconsistent with the express term of the contract, which entitled the employer to extend the probationary period if an objective assessment of performance had not been possible. The implied term would therefore give the employer an additional right to extend the probationary period. It was not necessary to imply this term to give business efficacy to the contract - the express term was sufficient.

The result in this case is not that surprising and it merely involves the construction of this particular agreement between the employer and the employee. It is, however, a timely reminder for employers to ensure that express terms are in place that clarify in what circumstances a probationary period can be extended, giving the employer an extended right to dismiss on short notice. A more informal approach which does not adhere to the express terms may require an employer to provide the full notice period, rather than the shorter notice period which usually applies during a probationary period.

Employers can designate Saturdays as annual leave

The EAT has confirmed that an employer can require a worker to take his annual leave in single days every other Saturday.

Under the Working Time Regulations 1998, an employer may give notice to a worker that leave must be taken on particular days. In Sumsion v BBC (Scotland), the worker was employed on a six month fixed-term contract which required him to be available for work 6 days a week, including Saturdays. When he asked to be allowed to take the leave due to him in one unbroken block, his request was refused. The BBC had designated every other Saturday as a non-scheduled production day and required him to take his leave on those days. If he worked on days that had been stipulated as leave days, he was given days off in lieu.

The worker argued that, by requiring him to take leave on a day which would not otherwise have been a working day, the BBC had not complied with the Regulations. However, the tribunal found that the BBC was not in breach. The worker's contract required him to work 6 days a week, including Saturday. Had the BBC not stipulated the days of leave that were to be taken, the worker could have requested those days as leave. There was no provision which restricted an employer's right to stipulate when leave must be taken, provided that on those days when the worker was required to take leave, he was otherwise contracted to work for the employer.

In the EAT, the worker subsequently argued that there was a tradition in the UK which did not regard Saturday as a normal working day. Therefore, an employer could not deem Saturday to be a working day (when it never intended to operate on that day) and then require leave to be taken that day. Permitting this to take place would allow employers to exploit a 'loophole', by requiring workers to work on Saturdays simply in order to designate that day as annual leave.

The EAT disagreed, and confirmed that an employer can require a worker to take his annual leave in single days. There was no "magic" about Saturdays that made Saturday working exceptional. There were many areas of work which involved routine Saturday working, where a 6-day working week was the norm. There could not, therefore, be any assumption that an employer who requires leave to be taken on a Saturday is doing it as a sham, or that such leave is not "real" leave.

An employer may therefore require a worker to take leave in single days, and any day on which the worker could (apart from the leave) be required to work under the contract could be designated as a day of leave under the Regulations. The worker in this case had agreed to be available for work on a Saturday and therefore was not entitled to object if the BBC required him to take a day's leave on this day. This case is not necessarily confined to Saturdays, and could be extended to any day when a worker must be available to work but the employer, for whatever reason, does not in practice require its workers to work.

Legislative changes - 30 April 2007

A number of important legislative changes took place on 30 April:

• The definition of "religion or belief" in the Employment Equality (Religion or Belief) Regulations 2003 (which was previously "any religion, religious belief or similar philosophical belief") was amended by removing the word "similar" and clarifying that being of no religion or belief will be covered by the Regulations.
• A duty was imposed on certain listed bodies to put in place a gender equality scheme, under the Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006.
• Discrimination on the grounds of sexual orientation, and religion or belief, became prohibited in the provision of goods, facilities and services in education and the execution of public functions.

Flexible working - definition of relative to be amended

As noted in our earlier updates, on 6 April 2007, the right to request flexible working was extended under the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 to an employee who is, or expects to be, caring for an adult who:

• is married to, or the partner or civil partner of the employee; or
  
  
• is a "relative" of the employee; or
  
  
• falls into neither category but lives at the same address as the employee.

New ACAS guides

ACAS has published a number of updated booklets and guides on the following topics:

• Flexible working and work-life balance
• Producing a company handbook
• Attendance management
• Adoption leave and pay
• Maternity leave and pay
  

Should employers help smokers kick the habit?

Smokers should be offered help by employers to quit smoking, according to the National Institute for Health and Clinical Excellence (NICE).

As workplaces in England prepare for the forthcoming smoking ban which comes into force from 1 July, the guidance from NICE recommends that employers:

• think about allowing employees to attend stop smoking services during working hours without loss of pay (NICE has produced a tool to help employers calculate the cost of this);
  
  
• be responsive to individual needs and preferences and, if there is sufficient demand, ask the local stop smoking service to offer help on their premises; and
  
  
• work with other local businesses to see if there is an opportunity to share smoking cessation support.