The first high-profile employment case to involve allegations of unfair treatment on the grounds of sexual orientation opened on 6th March in London.

Peter Lewis, former global head of equity trading at HSBC, brought his claim to the tribunal after he was dismissed from the bank last year.

Mr Lewis, who is gay, alleges that his sexuality was the reason for his dismissal; HSBC claims that Mr Lewis was sacked for gross misconduct following a complaint from another member of staff, who claimed to have been sexually harassed.

In a statement, the bank said: “HSBC investigated that complaint and as a result of that investigation instituted disciplinary proceedings. At every stage of the investigation and the disciplinary process, the employee was given the opportunity to put his side of the story. After examining all the evidence, the complaint was upheld and, as a result, the employee was dismissed.”

Employment lawyers say that other sexual orientation claims brought in the City since new laws came into force in December 2003 have settled out of court; Mr Lewis’ case is the first high profile claim to reach a full hearing.

Joanna Blackburn, employment partner at Miscon de Reya, commented: “It’s an unusual case, not what one might have expected. But it’s the first case that will highlight the law and act as a reminder to employers that the legislation is there and has teeth.”

Financial Times, March 6, 2006

The new points-based system to manage the recruitment of migrant workers is still short on important detail, according to the Chartered Institute of Personnel and Development (CIPD).

The new system, announced by the Government on March 7, was welcomed by the CIPD as a “major step towards meeting the needs of UK employers”.

But it says that in the absence of key details about the plan, the “jury” is still out on how effective the system will be
in practice.

John Philpott, chief economist at the CIPD, said that the system strikes the right balance between the needs of employers and the interests of the wider economy and society. However he said that the proposals were still in “embryonic form” and that it was too soon to judge the effectiveness of the system.

Mr Philpott highlighted the Home Office’s admission that it is not yet in a position to supply accurate data on costs and benefits, a position that will do little to assuage the fears of employers who feel the system could prove to be a bureaucratic barrier to the recruitment of migrant workers from outside the EU.

Mr Philpott also cautioned that the Government would have to demonstrate that the proposed independent Skills Advisory Body will, in practice, be able to make realistic assessments at any particular time of the UK’s need for skilled and less skilled workers. He said the Body will play a crucial part in ensuring managed migration works effectively.

CIPD, March 7, 2006

A landmark equal pay case goes before the European Court of Justice (ECJ) today when a health and safety inspector will argue that seniority-based pay systems have a detrimental impact on women.

Bernadette Cadman claims that she was paid £5,000 to £7,000 a year less than the average salary of male colleagues on an equal grade. Her lawyers contend that it was unlawful for men in a similar post to be paid more, simply on the basis of length of service.

She won the right to take an equal pay claim to the European Court of Justice in October 2004, with the Court of Appeal making a reference for a preliminary ruling, by order dated January 11, 2005.

The European Court of Justice, in case no C-17/05 Cadman, will consider the following questions:

• Where the use by an employer of the criterion of length of service as a detriment of pay has a disparate impact, as between relevant male and female employees, does EC Treaty Art.141 require the employer to provide special justification? If the answer depends on the circumstances, what are those circumstances?
• Would the answer to the preceding question be different if the employer applies the criterion of length of service on an individual basis to employees so that an assessment is made as to the extent to which greater length of service justifies a greater level of pay?
• Is there a relevant distinction in the length of service criteria as applied to full-time workers and part-time workers.

Details about the case are available from http://curia.eu.int/en/actu/activites/index.htm

European Court of Justice, March 8, 2006

The rights of temporary workers have been boosted by a test case ruling that upheld the notion of an “implied” employment relationship between a contract worker and telecommunications firm Cable and Wireless.

Lawyers say that the judgment could have widespread implications, with contract workers possibly being given some of the same rights as permanent staff.

Bridget Wood of law firm Tarlo Lyons said: “This case has potentially far-reaching implications for end-users and staffing companies who use and supply limited company contractors.”

However, she added that the circumstances of the case would be replicated every time contractors were used.

The Court of Appeal judges ruled that Patrick Muscat had been an employee of Cable and Wireless, despite the fact that his services had been supplied through a separate limited company, and he paid his own tax and national insurance contributions.

Mr Muscat lodged a claim for unfair dismissal that was contested by Cable and Wireless on the grounds that he was not an employee. An employment tribunal ruled in favour of Mr Muscat; Cable and Wireless appealed but the original ruling was deemed to be correct.

Financial Times, March 2006

A car paint shop worker who established a handyman service while on sick leave for stress has won £65,000 in compensation for unfair dismissal.

An employment tribunal in Newcastle upon Tyne made the award because company rules did not explicitly forbid staff from taking temporary paid work while on sick leave.

Brian Murphy, a team leader at Nissan in Sunderland for 16 years, was filmed by a private detective laying a lawn and mending a fence after an advert for his services was mistakenly displayed on Nissan’s website.

Guardian, March 3, 2006

The Department of Trade and Industry is considering including pensions in statutory collective bargaining – the range of issues over which employers must negotiate with unions; currently, only pay, hours and holidays are covered by collective bargaining.

Initially, only new union recognition agreements would include pensions, although unions have the right to push for “top-up” arrangements for existing collective bargaining deals.

David Yeandle, deputy director of employment policy at manufacturers’ organisation EEF, wrote to employment minister Gerry Sutcliffe opposing the plans. He said: “Our members are strongly opposed to the idea of including pensions on the statutory collective bargaining agenda. Not only do they believe that the number of private sector organisations that negotiate about occupational pension arrangements with trade unions on a voluntary basis is relatively small, but they consider that this proposed change would create a number of serious practical problems.”

However, unions are, unsurprisingly, pressing for the changes. Tony Woodley, general secretary of the T & G union, said: “We see time and time again examples where workers have major changes made to their pensions yet their union has no rights to negotiate on their behalf.

“Employers cannot continue to make unilateral changes, especially given the pensions robbery that has occurred, without reference to scheme members. As workers are being asked to contribute more to their pensions, they need confidence in the security of the scheme and that must mean their union being able to negotiate on their pension.”

The Times, March 6, 2006

Internet use policies are not being sufficiently publicised or enforced by UK firms, according to a survey by network security provider SmoothWall.

The survey found that employees are still downloading music, films and internet telephony software onto office PCs.

Although 70 per cent of firms said that an internet policy was crucial, 38 per cent of employees were unaware of what policy they were bound by.

Over 60 per cent of those surveyed said that they used personal email accounts such as Hotmail at work; 41 per cent used instant messaging applications; and 23 per cent admitted to using VoIP provider Skype software.

31 per cent admitted to occasionally downloading music or videos over the internet while at work; 8 per cent did so regularly.

“Companies are obviously still not enforcing internet usage policies,” said George Lungley, managing director of SmoothWall. “We recommend locking down corporate networks to all but essential business applications and strictly controlling access to non-work-related websites during working hours.”

Ben Doherty, an employment law specialist with law firm Pinsent Masons, warned employers of the risks of not enforcing internet use policies.

“As well as the adverse consequences highlighted in the survey, employers should be aware that in the most extreme of examples, failing to enforce an internet use policy can leave the employer liable for compensation for claims brought under the Sex Discrimination Act 1975,” said Mr Doherty.

“Employers have been held liable for compensation when they failed to prevent their employees from viewing and downloading pornographic materials whilst at work. Having an internet use policy is one of the ways in which employers try to defend such claims.”

Out-Law, March 1, 2006

An employment tribunal has found that a national law firm constructively dismissed an employment solicitor.

Julie Miller aspired to be an associate at Bond Pierce, but found that her superiors were hostile towards her in an appraisal meeting following her return from extended maternity leave in October 2004, an experience she described as “humiliating, degrading and disrespectful”.

The tribunal found that the meeting had undermined the mutual trust between employer and employee; however, it dismissed Ms Miller’s claims of victimisation and discrimination on the basis of part-time status and gender.

Bond Pierce has yet to decide whether to appeal the ruling. A spokeswoman for the firm said: “That the relationship between ourselves and Ms Miller broke down is unfortunate, but this was neither planned nor intended, as the judgment makes clear.”

Law Society Gazette, February 2006

New proposals on paternity leave and pay have been published by the Department of Trade and Industry (DTI).

The DTI consultation document sets out proposals to offer fathers the opportunity to choose to take up to 26 weeks’ additional paternity leave to care for children under the age of one. This additional leave could only be taken if the mother has chosen to return to work and both parents would not be entitled to take leave at the same time.

Views are being sought, in particular on the following points:

• eligibility criteria for leave and pay including length of service with an employer;
• the earliest point when additional paternity leave and pay could be taken;
• rights to return and terms and conditions whilst on additional paternity leave;
• details of how the scheme will operate in practice and administration of the scheme, including a suggested eight week notice period.

Trade and Industry Secretary Alan Johnson said: “Increasingly fathers want to play a more active role in bringing up their children and many mothers want to return to work. We want to ensure that parents have choice in who looks after their children and can decide how to best balance working with family responsibilities. This is why the Government introduced a new right of up to six months paternity leave if the mother returns to work.”

The consultation document can be found at www.dti.gov.uk/er/workandfamilies.htm

DTI press release, March 8, 2006

Part-time workers may be able to claim the same employment rights as their full-time colleagues following a landmark legal ruling.

The House of Lords’ decision to allow 15,000 retained firefighters the same sick pay and pension rights as full-time workers is expected to have a knock-on effect both for employers and employees.

The union had argued that it was illegal to deny retained firefighters the same pension and sick pay rights to full-time firemen and women. The union’s case was turned down at an employment tribunal, an employment appeals tribunal and in the court of appeal but was accepted by the law lords yesterday.

The law lords – by a majority of three to two – have set a precedent for employment tribunals to base future judgments for claims by workers on pension rights and sick pay on the similarities rather than contractual differences between full and part-time employees.

However, the success of the retained fire fighters’ claim is still subject to:

• an employment tribunal (or another court) finding that their work is the same or broadly similar work as the work of full-time fire fighters;
• the employer failing to objectively justify the less favourable treatment of the retained fire fighters.

BBC, March 1, 2006

The Confederation of British Industry (CBI) has welcomed the Government’s “common sense” decision to retain higher redundancy payments for older workers.

The Government’s decision followed a review of redundancy pay in line with the EU Employment Directive, which bans age discrimination.

The CBI said that the decision was good news for workers and employers. Susan Anderson, director for human resources policy, said: “We welcome this common sense decision. Equalising redundancy pay for all employees would have either disadvantaged older workers or added a major new cost for already struggling firms.

”The majority of firms provide redundancy schemes which pay more to older staff. Retaining the present system is the best outcome for these workers, who find it most difficult to get a job following redundancy.”

CBI press release, March 2, 2006