Sheriff Leslie has issued his Determination in the Fatal Accident Inquiry into the death of Alison Fry. Peter Watson of Levy & McRae represented the interests of Ms. Fry’s employers, the Scottish Environment Protection Agency. The sheriff’s Determination contained solely findings in fact and did not seek to criticise any party to the Inquiry. Sheriff Leslie found difficulty in any ‘contention that the death of Ms Alison Fry was anything other than a tragic accident’. Levy and McRae’s sincere condolences are extended to the friends and family of Ms. Fry.

Determination Document (pdf download)

Anne Bennie, who has been with the firm since 1992, has decided to retire with effect end July 2008.

With the arrival of Ryan, Anne wishes to spend more time at home with her new baby and enjoy motherhood.

She goes from the firm with our best wishes. The firm is very grateful to her for all the years of service as Trainee, Assistant Solicitor, Associate and then Partner. We wish her, Andrew her husband and, of course, Ryan all of the best for the future.

Peter Watson, Senior Partner at L&M, has been asked to Chair a panel of distinguished guests at the Edinburgh International Festival on 23 August 2008. This Festival Insight Event will explore how the arts can engage with certain questions about war crimes. Ruhe explores the Dutch mercenaries who joined the Secret Service during World War II.

Mr Watson, given his extensive knowledge and involvement in the landmark case of Antony Gecas v Scottish Television, will guide the panel through sensible and interesting discussion.

Ruhe can be seen in the Main Hall of the Hub, Castlehill on Friday 22 August at 8 pm with the panel event taking place on Saturday 23 August at 2.30 pm in the Main Hall of the Hub. The panel members are Istvan Pogany, a writer and the director Dirk Roofthooft of Ruhe from Muziektheater Transparent.

The firm are delighted to welcome the arrival of Stephanie Herd to the litigation team. Stephanie joins from Dundas & Wilson where she worked following qualification in 2007. Stephanie shall be an important member of the litigation team carrying out appearance work and assisting in the preparation of Court of Session and Sheriff Court actions.

Not content with the new laws brought in at the end of February to prosecute employers who employ illegal workers the Home Office has announced a new initiative designed to crack down on the hiring of people without the right to work in the UK.

The names of businesses who break the rules and employ illegal workers will be named and shamed on the Home Office’s UK Border Agency’s website.

It is a well known fact that the time limit for an unfair dismissal claim is three months from the Effective Date of Termination (EDT).

The Tribunal does have a discretion to extend the time limit in cases where it was not reasonably practicable to present a complaint within the usual three month period.

In London Borough of Islington v Brown the EAT upheld an employer’s appeal against a decision that the Claimant could bring her claim almost 18 months late because she was suffering from depression and because she thought her union had done it.

Case law is clear that a failure by a union or solicitor acting on behalf of a Claimant is to be attributed to the Claimant herself. There was no adequate reason for the union’s failure to present the complaint on time. Two union officials each thought the other had done it. Accordingly the EAT held her complaint was out of time, whether the Claimant has a cause of action against her union in negligence is another matter.

Kimberley Group Housing Ltd v Hambley & others Angel Services (UK) Ltd v Hambley & others.

Leena Homes had a contract with the Home Office under which it provided accommodation and related services for asylum seekers pending their applications to remain in the UK. In 2006, it lost the contract. It was instead awarded to Kimberley Group Housing (Kimberley) and Angel Services (Angel). Kimberly and Angel did not accept that the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) applied and, as a result, the employees of Leena Homes who had been engaged in the relevant services lost their jobs. Six of these employees brought a claim before the employment tribunal.

The tribunal found that, for the purposes of TUPE, there had been a relevant transfer in the form of a service provision change. Activities had ceased to be carried out by Leena Homes on behalf of the Home Office and were carried out instead by Kimberley and Angel.

The tribunal then had to consider to whom the employees’ contracts of employment (and liabilities under those contracts) had transferred.

The tribunal decided that “although the people and their contracts cannot be ‘split’ the liabilities under those contracts can”. This led the tribunal to apportion liability between Kimberley and Angel according to the percentage of services each had taken on from Leena Homes. Kimberley and Angel appealed.

The Employment Appeal Tribunal (EAT) agreed that there was a service provision change. However, it said that employee liabilities cannot be divided between two transferees on a percentage basis. Further, there can be no separation of the contract of employment from the liabilities under it otherwise an employee could potentially become the servant of two masters.

The EAT said that the apportionment of liabilities in a service provision change should be treated in the same way as a traditional transfer, ie, a transfer of an economic entity which retains its identity.

Here there was established case law which provided that a tribunal should establish which company had, following the transfer, taken over the activities to which the employees were assigned.

On the facts of this case, the EAT found that Kimberley had taken on the vast majority of the activities to which the employees were assigned. The employees had, therefore, transferred to Kimberley and it was responsible for all liabilities under their contracts of employment.

There has been little case law on the new service provision change provisions, introduced by TUPE in 2006. This is the first time the EAT has had to consider the issue and it has provided useful, if unsurprising, guidance on how a tribunal should determine who is liable for the employees when a service which was originally provided by one contractor is instead provided by two or more new contractors.

The EAT has confirmed that the approach in the case of a service provision change should be no different to the approach already established for traditional transfers. This means that tribunals must determine as a matter of fact whether the employee is assigned to activities involved in the service provision change. If so, the employee will transfer to the new service provider taking on those particular activities. This means that if the activities are being split, so that none of the new service providers are taking over a clear majority of an employee’s activity, the employee would not transfer and would remain with the old contractor. That old contractor would then need to manage any redundancy or redeployment.

The EAT has considered reasonable adjustments under the Disability Discrimination Act 1995 in The Chief Constable of Lincolnshire Police v Mr Weaver.

The EAT held:

• In assessing the question of reasonable adjustments, the Tribunal should take into account both the effect the adjustment would have on other non-disabled employees and other disabled employees. This was a factor that was taken to consideration in O’Hanlon v Inland Revenue which held that paying disabled employees full pay while off sick was not a reasonable adjustment.

• The fact that the Employer had adopted deliberately a Provision Criteria or Practice which operated to the disadvantage of disabled people was irrelevant to the question of whether a reasonable adjustment could be made. This must be correct, as there would be no need to consider reasonable adjustments if there was not a Provision, Criterion or Practice (PCP) that put disabled people to a substantial disadvantage, as without such a PCP, there is nothing for which adjustments need to be made!

A question that is regularly asked is can an employer not pay an employee if that employee is in breach of contract. The question normally arises when the employment relationship ends.

The position is clear. Unless the employer has signed authority from the employee to authorise the deduction then no deduction is allowed.

The following case illustrates the point. An employment agency worker agreed with an employment agency to work for a client for a fixed term from January to May.

The worker only completed two days of the assignment and then left. The agency did not pay the worker on the basis that the client had not paid them and they believed the worker was in breach, having left 2 days into employment.

The EAT held that the failure to pay the wages amounted to an unlawful deduction as there was no lawful basis to withhold the sum due.

Recently, bus driver Marie Parker, 53, was refused an interview with Translink because her body mass index (BMI) was too high.

Parker has 20 years’ experience as a bus driver but because her BMI was 34.1 and Translink in Belfast accepts recruits only with a BMI of less than 33, she was turned down.

There is no escaping the fact that obesity is an increasing problem in the UK, but where do employers draw the line between what is discrimination and what is a health and safety consideration when considering overweight employees as potential candidates?

Q. Are there any circumstances where employers can legally discriminate against an employee or potential candidate on the grounds of obesity?

A. Yes, and I suspect it happens frequently.

There is nothing to stop employers discriminating against candidates on obesity grounds. However, they need to ensure the discrimination is not on unlawful grounds, such as disability or sex discrimination or for aesthetic rather than health reasons.

Employers are not prevented from discriminating on obesity grounds alone. Crucially though, a person’s obesity may be linked to a condition that is a disability for the purposes of the Disability Discrimination Act 1995 (DDA), such as depression.

More controversially, it may even be that the effect of obesity on an individual would, in itself, satisfy the definition of disability under the DDA, although this is an issue that has yet to be tested and would depend on the facts as found.

It may still be possible to discriminate against that person, but such discrimination would have to satisfy the provisions of the DDA and consideration would also have to have been given to the possibility of  making reasonable adjustments.

Q. Can employers approach an employee who has gained a lot of weight if the aim is to help them lose it?

A. This is more difficult. An employer in these circumstances has to decide that the issue is such that it needs to be raised. If it is, then it needs to be raised sensitively and proportionately. Otherwise the employer risks not only damaging the employment relationship but also a constructive dismissal claim and possibly a discrimination claim.

Q. Are we obliged to provide specialist office equipment for overweight employees, such as larger chairs or work stations?

A. Only if the condition of being overweight amounts to, or is a symptom of, a disability under the DDA. If it does then, as an employer, you have a duty to make reasonable adjustments to reduce the impact of the disability.

Q. Can employers justify moving an overweight employee into a different role if there is a health and safety issue? For example, if a fire­fighter has problems climbing the ladder.

A. Yes, subject to the duty to make reasonable adjustments and the need to deal with the issue in a proportionate way and with appropriate sympathy to ensure trust and confidence is not damaged.

Q. How wise would it be for employers to state in advertising that a particular job is not suitable for an overweight, unfit person?

A. Legally, care needs to be taken under the DDA. Also, such advertising may attract bad publicity – as in the Translink case – and narrow the field of applicants, so denying the employer the opportunity of recruiting the most suitable person.

Short-listing criteria need to concentrate on essential skills/requirements for the post. The list of jobs needing someone who is not overweight would be a very short one indeed.

Changes to the Sex Discrimination Act will affect pension contributions during maternity leave.

Changes to the Sex Discrimination Act 1975 (SDA), which came into effect on 6 April 2008, requires employers to continue paying pension benefits for employees who are absent on unpaid maternity leave. However, government guidance maintains that pension contributions do not need to be continued during unpaid leave unless the contract of employment provides otherwise, so the legal position is not clear.

All pregnant employees, regardless of length of service, are entitled to take 12 months’ maternity leave, broken down into 26 weeks’ Ordinary Maternity Leave (OML), with an additional 26 weeks’ Maternity Leave. Employees who have been continuously employed for 26 weeks, receive up to 39 weeks’ statutory maternity pay (SMP) by the 15th week before the week in which their baby is due.

Before the 6 April 2008, employers were only required to continue pension accrual and contributions during OML and any period of paid maternity leave. For employees in receipt of SMP, when their entitlement to pay ended after 39 weeks’ absence, employers were not required to maintain pension benefits for the last 13 weeks of unpaid leave.

However, the recent changes to the SDA have extended the protection offered to women whose babies are due to be born on or after 5 October 2008, and employers will be required to continue with pension contributions for the entire 12-month period of absence.

The government maintains that the amendments made to the SDA do not affect pension rights and were introduced in the light of a High Court decision that did not even involve pensions (Equal Opportunities Commission v Secretary of State for Trade and Industry [2007]). However, while this may have been the intention, the effect is somewhat different, and there have been calls on the government to clarify the position.

In a defined benefit (or final salary) pension scheme, the entire 12 months of maternity leave will be treated as pensionable service. This means that in the unlikely event of an employee retiring while on maternity leave – for example, on ill-health grounds – the figure used to calculate her pensionable salary is the salary she would have received had she been in work. Death benefits would use the same figure.

However, there will be an immediate cost implication for employers who offer defined contribution schemes, including group personal pension plans. In those schemes, pension contributions will have to be continued as though the employee were still in work throughout the entire 12 months of maternity leave.

This is the case irrespective of whether the employee returns to work at the end of her maternity leave or receives SMP or any other contractual remuneration during her absence.

In view of the literal interpretation of the legislation as currently drafted, it would be risky for employers to rely on the government’s non-legally binding guidance.

So unless further legislation is implemented before 5 October, it will, from that date, be unlawful for employers to stop pension benefits throughout unpaid maternity leave.

Amend scheme rules and employment policies and procedures to make it clear that pension benefits continue for the entire 52 weeks of maternity leave.

Wait to see if further legislation or case-law clarifies the position – although employers taking this route could face claims of sex discrimination.

For women whose babies are due to be born on or after 5 October 2008, employers will be required to maintain pension benefits for the 12 months of maternity leave.

This will have an immediate cost implication for employers offering defined contribution schemes including group personal pension plans.

Employers should review their maternity policies and pension scheme rules with their advisers.

The Court of Appeal, on a permission application, has upheld an EAT decision that a complaint of unfair dismissal presented 88 seconds late was out of time and so there was no jurisdiction to hear the claim.

The judgment of Beasley v The National Grid [2008] EWCA Civ 742 recognises that the legislation imposes a harsh regime but states that “so do most time bars, which exist for the very good policy reason, that parties should know where they stand within a limited time of any dispute arising”.

So the lesson is – don’t leave it ’til the last minute!

Both the Trade Union and Labour Relations (Consolidation) Act 1992 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 contain provisions requiring employers to consult collectively about redundancies and measures envisaged as a consequence of the transfer respectively.
The penalty for failing to comply with such a requirement is up to 13 weeks’ pay for each employee within the description of employees in respect of which the protective award is made (the description of employees could be all employees being made redundant or all employees of a particular grade or classification – this will vary on a case by case basis).
The 13 weeks’ pay is subject to the same statutory cap as is used for redundancy pay. This means that the maximum protective award is currently £330 x 13 = £4,290.00 X number of employees who fall within the description in respect of which the award was made.
This could clearly be considerably less than uncapped pay x 13 weeks, particularly for high earners and therefore is a useful fact to know when assessing potential liability in a mass redundancy/mass TUPE exercise.

Equality minister Harriet Harman has set out her plans for the equality bill.

In summary, the plans are designed to stamp out the pay divide and will be brought about in three ways:

• In the use of the proposed Equality Bill.

• By using secondary legislation.

• By action in by the newly formed Equality and Human Rights Commission.

It would take another 80 years, Harman says, to equalise pay so they are going to make it compulsory for companies to report on equality issues by gender pay for their employees to see in the same way that hospitals and schools publish league tables on waiting lists and exam results.

The plan is to bring equality in five ways. Firstly by using the public procurement process. Presumably this will mean it will be harder for companies to secure public sector contracts unless they are seen to be good role models.

Secondly, they will outlaw clauses in the employment contracts which prohibit employees from talking to one another about their pay. Some employers use these clauses not to allow a gender divide but to stop those in similar positions finding out each others salary to get into a bidding war.

The third measure is to give the Employment Tribunal extended powers to make recommendations, not just in relation to the successful complainant but to all affected employees. Whether this will extend their powers in the same way as protective awards remains to be seen.

Next the Equalities and Human Rights Commission is to use its statutory powers of investigation. Harman says that they will start with the financial sector in a bid to outlaw sexism in the city.

It therefore appears that we have some important changes to employment legislation on the horizon so watch this space.