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Employment Update 24 June 2011

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United Kingdom

Read the 'Employment Law Update' newsletter, 24 June 2011, on ffw.com

Welcome to our fortnightly round-up of what's happening in employment law.

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Collective redundancy

Where an employer breaches its collective consultation obligations and an individual employee brings a claim for a protective award, any award made by an Employment Tribunal does not extend to other employees who have been similarly affected. The Employment Appeal Tribunal (EAT) has confirmed that only trade unions and elected representatives can bring representative claims for a protective award. This is a useful decision for employers, clarifying the scope of representative claims for protective awards and the extent of employers' potential liability.

In Independent Insurance Co Ltd (in provisional liquidation) v Aspinall and another, the employer went into provisional liquidation. Of 1,550 employees, 971 were made redundant almost immediately. 351 of those worked in the Cheadle office, which included the claimants in this case. The employer failed to comply with its obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to consult either trade union or employee representatives or to arrange for necessary elections. The claimants issued proceedings claiming a protective award. There was no reference in the original claim that an award was also sought in respect of employees in a similar situation.

An Employment Tribunal upheld their claims, making a protective award for the period of 90 days' pay. However, the Employment Tribunal also ordered that the protective award should be paid to all employees employed at the Cheadle office. The employer appealed, arguing that there was a distinction between the position of trade union and elected representatives on the one hand and individual applicants on the other.

The EAT upheld the appeal. It noted that TULRCA confers representative rights. Where there is no recognised trade union or elected representative, the employer's obligation is to consult with each individual employee. The EAT stated there is nothing to suggest that an individual employee could be considered to represent all other employees in similar circumstances unless he has been elected.  The relevant provisions of TULRCA give representative rights to trade unions and elected representatives only and only they may apply to enforce those rights.

The EAT also noted that it would be an amazing sea change in the legislation if a right of an individual gave that individual greater representative status than the trade union or the elected representative, so he could effectively make a claim for all persons affected by the redundancy in a wider pool than the constituency represented by the trade union or the elected representatives and that this had been achieved by Parliament without any debate. It would also be impossible for an employer to defend proceedings as it might find itself potentially liable to pay an award to all persons affected and it would be impossible for the employer to consider what defences it might have in relation to different individual employees or groups of employees.  The EAT stated that it would be a wholly unprecedented widening of the scope of representative actions without there being any safeguards. 

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Prohibiting cornrow hairstyle - race discrimination

In a case which has attracted much attention, the High Court has confirmed that a school's uniform policy which prohibited boys from wearing their hair in cornrows constituted race discrimination.

In G v Head Teacher and Governors of St Gregory's Catholic Science College, the claimant was of African-Caribbean ethnicity. He had not cut his hair since birth and had kept it in cornrows, in accordance with his family tradition. He was not permitted to attend school as long as he kept his cornrows, as they were prohibited by his school. Girls were permitted cornrows as they were regarded by the school as conventional in girls but not in boys.

The school's uniform policy did not specifically refer to cornrows at the outset, but the cornrow ban was stated at a reception meeting for new pupils. As the claimant and his mother were late arrivals, they did not hear the announcement nor had they been told earlier any more than the policy. The first they knew of the ban was the refusal to allow the claimant to attend school unless the cornrows were removed. Although there were discussions about the possibility of the claimant cutting his hair or removing the cornrows, they had not achieved any positive result. The claimant was therefore unable to take up his place at the school.

The rationale behind the school's uniform policy included a concern to keep gang mentality out of the school and to avoid the ethnic tensions and violence which accompany it. The aim was to make the school a place where the pupils are safe and valued equally. The school also believed that distinctive haircuts could be badges of ethnic or gang identity and can help foster disunity rather than unity. The school ban on shaven heads was also given as an example of a conscious determination to avoid white boys adopting any form of "skin head" styles with negative connotations. The school stated that it adopted a zero tolerance approach to all male hairstyles other than those permitted by their policy and if it were to make an exception for one particular hairstyle, it would no longer justify its zero tolerance approach.

The court stated that, based on the evidence provided, there were those of African-Caribbean ethnicity who, for reasons based on their culture and ethnicity, regard the cutting of their hair to be wrong and so need it to be kept in cornrows. A group therefore existed who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows. The claimant had also suffered a traumatic experience in being turned away on his first day and had suffered a particular disadvantage due to the prohibition on cornrows. The school argued that English law does not recognise that voluntarily adopted socio-cultural practices associated with a particular race can amount to race discrimination. The court rejected this argument as it sought to distinguish cultural and family and social conditions from ethnicity but they are often part of what brings a person of a particular ethnicity within the meaning of the legislation. Having found that the school's policy constituted indirect race discrimination, the court also considered that, although the aim of the policy was legitimate, the indirect discrimination which the prohibition on cornrows produced was not justified.

The court, however, rejected the claimant's arguments that there was also sex discrimination, on the basis of earlier case law which established that a uniform policy is not discriminatory if it applies a conventional standard of appearance for both men and women. The school's policy required both sexes to have conventional haircuts. Cornrows for African-Caribbean girls were recognised as acceptable because they were a satisfactory means of keeping long hair neat and under control. In this respect, therefore, the policy did not constitute unlawful sex discrimination. 

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Collective agreements - reference to ECJ

Where there has been a TUPE transfer of employees, should the transferee be bound by a term of an employee's contract which provides that terms and conditions of employment will be in accordance with collective agreements negotiated from time to time? In Parkwood Leisure Ltd v Alemo-Herron and others, the Supreme Court has now referred this question to the European Court of Justice (ECJ).

In brief, the key issue for the ECJ to consider is whether TUPE should be given a "static" interpretation, i.e. the transferee is only bound by a collective agreement that applies at the date of the transfer, or a "dynamic" interpretation, which gives transferring employees the right to benefit from future pay rises or other changes negotiated and agreed after the transfer.

Now that the Supreme Court has referred the matter to the ECJ, it is likely to be some time before this issue, which has particular significance for public sector outsourcings, is resolved, leaving employers in an uncertain position.

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UK Government lobbying on the Pregnant Workers Directive

In October 2010, the European Parliament voted to amend the Pregnant Workers Directive and extend the minimum period for maternity leave from 18 weeks to 20 weeks, entitling the employee on leave to her full salary for this period. The UK Government, amongst others, has opposed this proposal, on the basis that it will result in considerable costs to Member States when they can least afford it.

It has now been reported that EU ministers have decided by a majority to shelve the proposals to extend minimum maternity leave to 20 weeks on full pay. Edward Davey, Employment Relations Minister, said: "This is a good result. The fact that so many other Member States have echoed our worries sends a clear message that this one-size-fits-all measure is not in the best interests for Europe and certainly not in the best interests for the UK."

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ACAS Code - research

Acas has published a research paper, evaluating the Acas Code of Practice on Disciplinary and Grievance Procedures, introduced in April 2009.

Some of the findings relate to whether the Code tips the balance in favour of employers or employees. For some employers, the Code had succeeded in increasing flexibility without compromising the rights of employees. However, there was a concern among employee representatives that some employers had interpreted the lack of legally required processes as an opportunity to ‘weaken’ the employee position. The findings also noted that the Code has gone some way to redressing the perceived imbalance of fairness to employers and has increased awareness and use of earlier resolution. However the findings raise questions about whether the Code is enough to drive a cultural shift toward early resolution and increase the notion that recourse to formal procedures and dismissal are a last resort.

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Private Members' Bill - capping tribunal awards

The House of Commons has considered a Private Members' Bill, the Tribunals (Maximum Compensation Awards) Bill 2010-11, which is intended to cap all awards for unfair dismissal, wrongful dismissal and employment-related discrimination at £50,000.

The Minister for Immigration, Damian Green, referred to the Government's consultation on proposals to improve the way in which workplace disputes are resolved, which seeks views on changing the formula for calculating employment tribunal awards, including the current limit on compensation for unfair dismissal. He also referred to a public consultation on discrimination awards later in the year. The brief debate was adjourned until 9 September. 

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Criminal Records Bureau - new guidance

New guidance is now available to assist applicants and countersignatories to complete the CRB application form. This practical guidance replaces the supplement ‘Tips for completing the new application form’ and is intended to reduce the most common errors.

The new applicant guidance provides rules for applicants from how to record current and previous names and address history through to returning the completed form. The countersignatory guidance supports this guidance, providing some general rules about checking an applicant’s identity, the level of check to apply for and checking the form. 

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