English employees were victims of racial discrimination at a Chinese restaurant in Liverpool, an employment tribunal has ruled.

Elements Oriental Buffet Restaurant was found to have been racially biased towards its non-Chinese staff, who missed out on the perks of the job.

The tribunal ruled that five employees, Alex Ryles, Michelle Darsh, Michael Whitfield, Aw Owen and Joao Dos Santos were all treated differently by Chinese managers because of their ethnic origin and ordered the employer to pay £36,268 compensation to the employees.

The tribunal heard that Chinese staff were allowed to eat expensive meals for free and received a bigger share of tips. The working hours of the five staff were reduced when they complained of race discrimination.

Mr Whitfield commented after the hearing: “You never think an English worker would be singled out because of his race in his own country. You do hear about foreigners being treated unfairly and getting justice, so it’s only right to highlight the problem that British people can be racially victimised too.”

Daily Telegraph, April 8, 2008

When 20 or more employees are to be dismissed as redundant at one establishment within a 90 day period the employer must follow special consultation rules (set out in Trade Union and Labour Relations Consolidation Act 1992 s.188). Failure to comply with the rules can lead to a costly ‘protective award’ of up to 90 days pay for each of the individuals concerned.

In a case last year the Leeds employment tribunal found that an employer had breached this rule even though only 17 employees were dismissed as redundant (Optare Group Ltd v TGWU. The trouble was that 3 others had accepted voluntary redundancy. If those 3 were included in the head count for s.188 purposes then the special consultation rules were triggered. The tribunal found against the employer, essentially because the 3 who had accepted voluntary redundancy had only done so because they knew that otherwise they would have been made compulsorily redundant.

The employer lost an appeal to the EAT which agreed with the original tribunal. Under the wording of s.188 the obligation to consult arises where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a 90 day period and in this case there had been such a proposal. The fact that only 17 of the employees were actually dismissed in circumstances where the other 3 accepted voluntary redundancy made no difference. While clearly right in law, this decision may be a little surprising to some who might well wonder what would have happened if instead of allowing the 3 to accept voluntary redundancy the employer had found them other jobs.

www.emplaw.co.uk, April 2008

It is well known that time limits are generally strictly applied in employment law cases. For example unfair dismissal claims must be presented within three months of the dismissal and appeals to the EAT must be filed within 42 days of the day on which the original tribunal’s written reasons were sent to the relevant parties.

Tribunals have discretion to extend time, a discretion which by statute is rather> wider in discrimination cases than in most other cases. Although this should never be relied on, there are some recent indications that there may be some slight loosening of traditional rigidity in applying the rules. In spite of previous decisions suggesting the contrary, both the EAT and the Court of Appeal have recently suggested that the “overriding objective” of seeing that cases are handled justly is relevant when a tribunal is considering whether or not to exercise its discretion to allow a case to proceed if papers have been filed out of the designated time.

In the EAT case, a claimant who spoke no English and had left matters in the hands of his Insurers, had various claims he made to an employment tribunal rejected as they were out of time. The EAT remitted the matter back for reconsideration as the tribunal had not taken the ‘overriding objective’ properly into account when it had refused to exercise its discretion to extend time (Bleuse v MBT Transport, EAT December 21, 2007).

In the Court of Appeal case an employer was late in filing a notice of appeal to the EAT. Basic papers had been filed in time but an essential attachment was filed 33 minutes late. The EAT agreed to accept the appeal and the employee asked the Court of Appeal to overrule this. The Court of Appeal refused. It accepted that time limits should be relaxed only in rare and exceptional cases. However it said that this means it will only be in rare and exceptional cases that it is appropriate to extend time, not that the case itself must be a rare and exceptional one – and in doing so it specifically referred to the ‘overriding objective’ (Jurkowska v Hlmad Ltd, CA March 19, 2008).

However none of this means that time limits should be treated lightly. Thus in October 2007 the EAT upheld an employment tribunal’s refusal to accept a claim which had been submitted via the tribunal’s website at 29:59:59 on the last day of the 3 month time limit. Logs showed that the form was received at 00:00:08, just 9 seconds late. Both employers and employees who get involved in an employment tribunal case, as well as their respective advisers, must pay great attention to time limits.

www.emplaw.co.uk, April 2008

In March last year the High Court ruled that the British Government was “guilty” of a breach of European law in that it had not properly implemented amendments to the EC ‘Equal Treatment’ Sex Discrimination Directive. It is now putting matters right.

The EC made the amendments in question in 2002. They had to be implemented by October 2005. The British Government made new regulations accordingly but these were challenged in the High Court as inadequate, by the Equal Opportunities Commission. The Court ruled that in three respects the 2005 British Regulations had failed to implement the EU requirements. The Government promised to put matters right by October 2007 but failed to do so. Changes to sex discrimination law effective from 6th April, 2008 will now correct the position.

Specifically the High Court found that the Government had failed properly to implement three EU requirements:

• re sexual harassment – association with sex, not causation by it, should define harassment;
• re pregnancy/maternity – no male comparator is needed and British rules were wrong in so far as they suggested to the contrary; and
• in general under EC law there must be no differences between contractual benefits during compulsory, ordinary and additional maternity leave.

New Sex Discrimination Act 1975 (Amendment) Regulations 2008 in force from 6th April, 2008, make changes to sex discrimination law to correct the position.

www.emplaw.co.uk, April 2008

British contractors uniformly reject the employment rights offered under the Agency Workers Directive, according to a survey released by Contractor Calculator, an independent website for UK freelance workers. The survey indicates that:

• nearly 100 per cent of contractors want to remain as contractors, not become employees;
• 91 per cent believe they will earn more as contractors;
• 75 per cent don’t want employee rights.

Contractors responded to the survey question; “What do you prefer being, a contractor or an employee?” almost unanimously, choosing, being contractors as their preference. They also indicated that they made more money as contractors than they would as employees and said that they did not require employee rights.

“It is clear from these results that agency workers as a group in the UK do not desire or require the protection of employers rights,” said Dave Chaplin, Chief Executive of the Contractor Calculator website. “Certainly there are a small number of agency workers at the bottom of the pay scale who experience abuse, and protection should be extended to those workers, but the majority of UK agency workers are well-paid and prefer the flexible lifestyle that contracting affords.”

Mr Chaplin said that the European Commission’s Agency Workers Directive would saddle the UK with “an unworkable cost structure”. He added that the Commission needs to apply the directive flexibly so that more liberal regimes like that of the UK are not penalised.

SourceWire press release, April 10, 2008

The gender pay gap stands at 15 per cent and is still growing despite more than 30 years of equal pay and sex discrimination legislation, according to a Scottish Government report.

Men in full-time employment are paid 15 per cent more than their female counterparts and 34 per cent more than women in part-time work, according to the Gender Equality Scheme’s annual report.

The report also found wide variations in the gap according to sector, ranging from 2 per cent in sales and customer service occupations to 28.1 per cent for managers and senior officials.

The report said: “There has been the odd fluctuation over the years in the general downward trend of the pay gap and this happened again in 2007. The full-time gender pay gap in Scotland increased slightly – the mean from 14 per cent in 2006 to 15 per cent, the median from 10 per cent in 2006 to 12 per cent. However, there were still increases in earnings for both men and women in Scotland.”

The increase in the gap was mainly caused by higher increases for men than women in the managers and senior officials occupational group. Meanwhile, the private sector had higher increases than in the public sector and, given that a significantly lower proportion of women work in the private sector compared to men, this effects the gender pay gap.

The report also found that, in tackling occupational segregation, there has been a “slight increase” in the number of men entering the pre-school and childcare workforce, rising from 2 per cent in 2006 to 3 per cent in 2007.

In 2007, women made up a large majority of the workers in personal services (85 per cent), administrative and secretarial (79 per cent) and sales and customer service (70 per cent). Men represented the large majority of workers in the categories of managers and senior officials (67 per cent); process, plant and machine operatives (86 per cent) and skilled trades (92 per cent).

Women predominate in key public sector work forces such as teaching, the NHS and local government but the report found that they are underrepresented in senior positions.

Nicola Sturgeon, Deputy First Minister and Cabinet Secretary for Health and Wellbeing, said: “Despite over 30 years of anti-discrimination legislation we know that people continue to face discrimination and harassment because of their sex. “There is still much to be done to achieve gender equality in Scotland.”

The Herald, April 1, 2008

A 70 year old fitness instructor who was forced to retire has won her battle to be reinstated.

Following an appeal hearing Worthing Borough Council agreed to renew Celia Powis’s contract to teach pop mobility – intensive workout classes to music, at> Worthing Leisure Centre in West Sussex.

Current legislation permits employers to force people to retire on or after the age of 65, but employees are allowed to argue their case to be retained.

Tim Everett, the council’s Director of Services, said: “As a council we aim to be fair with all our staff. Indeed Celia isn’t our oldest employee. But we do have to refer to the policies in place regarding employing people beyond the normal retirement age at 65.”

A spokeswoman for the council said: “Under the Employment Equality (Age) Regulations 2006, employers are entitled to require their employees to retire at their normal retirement age.

“Under these regulations when an employee is notified of their impending retirement, they are entitled to ask for an extension of their contract which the employer is obliged to consider.”

BBC News, March 18, 2008

Lidl, the German-based supermarket that has been accused of covertly filming employees and gathering information regarding their private lives, has sought to distance its UK operations from the controversy by asserting that cameras are only used in its UK stores “to catch thieves”.

The firm has been forced to publish statements in German newspapers expressing “profound regret” regarding the surveillance policy.

However, a spokeswoman for Lidl UK said this week that the CCTV cameras in place in around 30 per cent of UK Lidl stores had been installed in partnership with local police and in response to the threat of violent incidents. “The cameras are there to protect our staff and customers, to catch thieves and prevent crime,” the spokeswoman said.

“The cameras are a means of visual deterrent that plays an important and fundamental part of providing our staff with a safe working environment.

“In fact, our staff have told us they are happy to have such advanced security measures in place for their own safety.”

Scotsman, April 1, 2008

A British Telecom manager who was dismissed after asking staff to fake calls to hide poor performance has been awarded more than £35,000 compensation by an employment tribunal.

Carol Clegg, 38, was dismissed after 22 years’ service with BT after it was discovered she was aware of a practice involving calls being deliberately made to improve apparent poor performance on a contract for the Ministry of Defence.

A BT investigation had been launched about calls being deliberately generated and it emerged that manager Chris Bean had instructed in 2002 that calls were to be generated to achieve service levels by any means necessary, including auto-dialling. Mrs Clegg, her manager and another manager had all been parties involved in the conference call. If anyone inquired about the calls, the answer to be given was that they were test calls.

When Ms Clegg later became responsible for the contract in the Dumbarton call centre, she told her staff to stop the fake calls; however, she was sacked in September 2006 for gross misconduct.

The tribunal in Glasgow ruled that Ms Clegg’s dismissal was unfair, as other BT managers involved were disciplined but kept their jobs.

However, the tribunal found that she was 50 per cent to blame by her own actions and cut her potential £70,000 award by half.

The Herald, March 26, 2008

The Government has moved to close a loophole which allowed some companies to avoid abiding by national PAYE operating guidelines by making local agreements with their local tax office.

The most common examples of local arrangements are:

• using substitute P46 forms;
• not following the P46 procedures when forms P45 have not been received;
• not providing starter information when relevant income thresholds are reached;
• sending data to the Government on CD-ROMs.

HM Revenue and Customs (HMRC) said that it had been reviewing all local arrangements with a view to terminating them.

From April 6, 2009, companies employing more than 50 people must file their employee starter and leaver information (P45s, P46s and similar pension information) online.

As part of this change HMRC said that, from April 6, 2008, it will be introducing validations to online submissions. These validations reflect those that were introduced to employers’ end-of-year returns in 2005 and are designed to help HMRC process PAYE information more efficiently.

HM Revenue and Customs press release, April 7, 2008

The government has recently been found to be in breach of the anti-age discrimination laws it introduced in October 2006. Following normal practice, the Ministry of Justice required Mr Paul Hampton, a London Recorder (fee paid part-time judge) to retire when he became 65 in March 2007. Although there is a special exemption in the Age Discrimination Regulations allowing employers to require employees to retire at age 65 this did not apply. Mr Hampton was not an employee – he was what is technically called an ‘office holder’ and the special ‘employee’ exemption was therefore irrelevant.

The Ministry of Justice claimed however that instead a general exemption from the Regulations for Actions which are a “proportionate means of achieving a legitimate aim” applied. The Ministry argued that enforced retirement of judges is necessary in order to ensure a reasonable flow of new appointments. A London employment tribunal accepted that this was a “legitimate aim”. However it ruled that requiring Mr Hampton to retire at 65 was not a “proportionate means” of achieving that aim and therefore the Lord Chancellor and the Ministry of Justice were “guilty” of unlawful age discrimination by requiring him to retire at what is nowadays such a young age.

It is worth noting that a few weeks later the Government changed its practice and announced that henceforward Recorders, Deputy District Judges, Deputy High Court Judges, and Deputy Masters and Registrars should retire at their statutory retirement age of 70.

More importantly it is also worth noting that each case turns on its own facts. In another case, at about the same time as the Hampton case, a different employment tribunal, at Ashford in Kent, ruled that use of a clause in the partnership deed of a medium sized firm of solicitors requiring partners to retire at age 65 was justified. Using the clause was a “proportionate means of achieving a legitimate aim”, essentially efficient long term management of the firm. The former senior partner of the firm therefore lost his claim that his enforced retirement at 65 amounted to unlawful age discrimination by his former partners.

www.emplaw.co.uk, April 2008