The European Commission has approved under EU State aid rules the establishment of an occupational pension scheme, branded ‘NEST’, in the UK to ensure that all employees have access to an affordable pension vehicle.

The scheme, part of a wider pensions’ reform in the UK, is meant for low to moderate income earners that the existing market does not serve.

The Commission found the measure to be compatible with EU State aid rules, because the National Employment Savings Trust (NEST) carries out a service of general economic interest (SGEI) and receives no over-compensation for doing so.

Competition Commissioner Joaquín Almunia said: “The new occupational pension scheme will enhance the UK pension system, thereby making sure people, and their employers, provide adequately for old age, without unduly distorting competition in the marketplace.”

Under UK pension reforms, from 2012, employers will be under a duty to automatically enroll all eligible workers into a qualifying pension vehicle and pay a minimum employer contribution of 3%.

The scheme was notified to the Commission because of a loan granted by the Government to fill the funding gap faced during the early years of the operations of NEST.

Croner News, 08 July 2010

Claims to employment tribunals rose by 56% during the period 1 April 2009 to 31 March 2010, according to new statistics from the Tribunals Service published last week.

The number of claims was 236,100 in 2009–10, with the increase being seen partly as a result of the changing economic climate but largely put down to the rise in multiple claims. These increased by nearly 90% in 2008–09.

Multiple cases are where two or more people bring cases, usually against a single employer but not necessarily so, for instance in TUPE cases, and always arising out of the same or very similar circumstances.

For example, 95,200 claims related to the Working Time Directive but this number is largely accounted for by the 10,600 airline cases that are resubmitted every three months.

There was also an increase of 14% in single claims over the year and overall accepted claims are now at their highest levels.

There were 126,300 claims associated with unfair dismissal, breach of contract and redundancy, which is 17% higher than for 2008–09 and likely, the Service said, to be a result of the economic recession.

Time being taken to deal with claims is also increasing, as the Service has failed to meet a number of it’s targets in this regard.

Croner News, 08 July 2010

A Stockport firefighter has won £80,000 in damages after an employment tribunal found he was unfairly dismissed over a row about reclining chairs.

Christopher Bennett, who has arthritis, was sacked for gross misconduct for sending an email to colleagues asking whether the chairs caused back pain.

The tribunal found his right to freedom of expression under the Human Rights Act had been breached.

The fire service said it was “disappointed” by the ruling.

Mr Bennett, who was sacked in 2008 after 25 years of service, was among a number of firefighters who found the new £400 chairs uncomfortable, the tribunal heard.

“This by it’s very nature is robbing us of our professional pride, not to mention human dignity”

In 2007 three firefighters were disciplined after they refused to sleep on the reclining chairs.

Three hundred of the £400 chairs were brought in to replace beds in Greater Manchester’s 41 fire stations in 2006.

The firefighter said the new reclining chairs were causing him severe back pain and asked if he could instead use a bed or his own mattress to sleep on overnight.

However, the tribunal heard his request was denied with Chris Mycock, the station manager at Stockport fire station, telling him that the chairs had been “ergonomically” designed to suit the firefighters’ needs and that they should not “sleep” on their night shifts but should only “rest”.

He was then told if he was not happy with the chairs he could use the “upholstered bench-type chairs” in the snooker room with blankets and pillows.

In the end, Mr Bennett resorted to sending an email to watch managers across the county asking if they or their colleagues were suffering with the chairs.

He stated in the email: “From day one we have moaned and complained but silently… The majority of firefighters have asked in private to not use the… chairs.

“We are instead forced to rest on the concrete floor or outbuildings or blow up mats. This by it’s very nature is robbing us of our professional pride, not to mention human dignity.”

The fire service found this to be a case of gross misconduct.

However, the tribunal ruled that Mr Bennett’s email was of political and public interest in that firefighters should be alert and fit to fight fires and rescue people.

If said Mr Bennett was seeking in his own way to protect public safety.

A spokesperson for Greater Manchester Fire and Rescue Service said: “We demand the highest standards of behaviour from our entire staff.

“Mr Bennett’s actions fell far below those standards when he ignored the email policy and advice from both his line manager and his union representative.

“We also believe that by soliciting support against the service Mr Bennett irreparably broke an employer’s trust, hence our decision not to reinstate him.”

BBC News, 20 July 2010

http://www.bbc.co.uk/news/uk-england-manchester-10701633

A former police officer who claimed she was victimised after being diagnosed with a voice condition has lost her claim for disability discrimination.

Catherine Gilbert was diagnosed with spasmodic dysphonia, which makes it difficult for the sufferer to speak.

The 36-year-old, from Sittingbourne, tried to sue Kent Police, claiming they failed to make reasonable adjustments to accommodate her condition.

But a tribunal panel at Ashford unanimously dismissed her claims.

In a reserved judgment, the panel ruled that Ms Gilbert was “not disabled for the purposes of the Disability Discrimination Act“.

Ms Gilbert said she began having problems with the way she was treated in April 2008 when she was working for the Medway division.

She told the tribunal she felt “resented” by her colleagues as she was the only woman in her team and was given no training in the role.

Ms Gilbert, whose condition makes her voice shake and she sometimes stutters over words, said she applied to train to become a dog handler, but claimed she was “bullied out”.

Kent Police Assistant Chief Constable Allyn Thomas said he was sorry Ms Gilbert was unable to pursue her career.

He added: “It is important that officers who are selected for a role are able to meet the necessary standards.”

Ms Gilbert was unavailable for comment.

BBC News, 20 July 2010

http://www.bbc.co.uk/news/uk-england-kent-10701239

Matrix Chambers has been instructed by both co-respondents in a £2.5m employment tribunal claim brought by a Britain’s Got Talent contestant against Simon Cowell and the show’s production company, FremantleMedia.

Thomas Linden QC is representing Cowell, Co-Presenter Amanda Holden and his entertainment company Syco in the disability discrimination claim brought by would-be pop star Emma Amelia Pearl Czikai. Linden was instructed by DLA Piper employment partner Alan Chalmers.

Christopher Brown of Matrix is representing Fremantle after being directly instructed by the company.

Czikai is representing herself. She is claiming £300,000 for injury to her feelings, a further £1.25m for loss of earnings and additional compensation totaling £1m.

At a pre-tribunal review, Czikai claimed that any money awarded would be donated to charity.

The claimant brought the proceedings following her appearance on the show last May. She complained to broadcasting watchdog Ofcom, but the complaint was rejected in January.

She claims the programme did not make arrangements for the fact that she suffered from fibromyalgia, resulting in a poor performance and subsequent “humiliation” by the judges.

The pre-tribunal review concluded yesterday, with the judge due to decide whether the case can be brought before a full tribunal in the future.

Gavriel Hollander, 23 July 2010

http://www.thelawyer.com/matrix-shows-off-talent-in-tv-dispute/1005125.article

In Kraft Foods UK Ltd v Hastie the EAT confirmed that applying a cap to payments under a redundancy scheme to ensure that employees close to pension age do not receive a windfall can be justified as a proportionate means of achieving a legitimate aim.

Kraft operated a voluntary redundancy scheme to which it applied a cap to ensure that redundancy payments would not exceed the amount that the employee would have earned (at their current rate of pay) had they remained in employment until normal retirement age (65). In practice, this meant that Mr Hastie, a long-serving employee close to retirement would receive a redundancy payment that was reduced by £13,600 by application of the cap.

It was agreed that the cap was a provision, criterion or practice (PCP) which disproportionately applied to employees nearing 65 and that unless justified it would constitute unlawful age discrimination. Kraft argued that the cap prevented employees receiving a windfall (i.e. redundancy payment together with ability to draw a pension) and that the scheme was designed to compensate employees for loss of earnings they would have received had they remained in employment. As employees lost the legal right to continue employment at 65, it was justifiable to impose a cap to ensure that the payment did not exceed the sum that the employee would have earned until this time.

Allowing an appeal from the tribunal finding, the EAT found that the object of the scheme was to compensate employees for loss of earnings they could legitimately expect to have received had their employment continued. It was legitimate for the scheme to incorporate a cap with the aim of preventing excess compensation and the cap used in this scheme was a proportionate means of achieving that aim.

In reaching it’s conclusion, the EAT relied on the obiter observations of Patrick Elias in the EAT in Loxley v BAE Systems Land Systems (Munitions and Ordnance) Ltd UKEAT/0156/08. Loxley concerned a redundancy scheme which calculated payments based on age and length of service, but which applied a taper downwards once an employee was nearing retirement age. Whilst the case was remitted to fresh tribunal, the EAT did state obiter that such tapering provisions, which were designed to prevent a windfall, are likely to be justifiable.

Where does this leave us?

We now have EAT authority that the use of a cap or tapering provisions in redundancy schemes, where the aim of the cap or tapering provision is to prevent the employee receiving a windfall, may be justified. However, these cases have, of course, been decided on the basis of a default retirement age (DRA) of 65. If the DRA is removed (and the government has pledged do so) it seems unlikely that the same analysis can stand. Employees will have a legal right to continue working beyond 65 and so the argument used in these cases (that the schemes should compensate for loss of earnings that would have been received whilst the employees remained in employment and not beyond) could presumably no longer be effective in supporting a cap or tapering provisions.

www.agediscrimination.info, 06 July 2010

http://www.agediscrimination.info/cases/Pages/ItemPage.aspx?Item=219

This is an important decision as a restatement of the Defence of Qualified Privilege by Court of Appeal following decisions in Reynolds v Times Newspapers Ltd and Jameel v Wall Street Journal Europe Sprl.
(more…)

The case of Aitken v Commissioner of Police of the Metropolis is authority for the proposition that treatment on the basis of a mistaken perception that an employee who is suffering from a particular disability does not fall within the definition of direct disability or disability-related discrimination.

In this case a police officer (who suffered from OCD) contended that, following the ECJ’s reasoning in Attridge Law LLP v Coleman, S3 Disability Discrimination Act should be interpreted so as to include discrimination on the grounds of perceived disability.

The EAT disagreed.

Slade J held:

• The case was not one in which the Respondent acted on the basis of an assumption that the claimant had a dangerous mental illness; rather the Respondent acted on the basis of how the Claimant presented himself.
• In any event the words of section s3 DDA ['...the disabled person's disability '] are distinguishable from those used in other discrimination statutes which do not relate the relevant characteristic to the complainant.
• DDA requires an actual disability albeit, since Coleman, the actual disability of a person related to the complainant.

Daniel Barnet,  23 June 2010

www.daniel barnett.co.uk

At least 5.1m Brits fail to read their employment contracts properly, putting them at risk of unfair treatment by their boss, according to new research from the experts at Which? Legal Service.

In a survey of over 4,000 members of the British public, the consumer champion found that 26 per cent of workers only skim read their employment contracts, while six per cent admitted to not having read them at all.

Only three in ten employees received their contract before starting their job, and nine per cent didn’t get a contract until they’d been in the post for six months or more.

Overall, at least two million workers in Britain do not have an employment contract.

Which? Legal Service has the following top tips for people receiving new employment contracts:

1. Read your contract! – First and foremost, thoroughly read your contract to avoid any disputes with your employer at a later date
2. Check the handbook – If your contract refers to a handbook, make sure you read this too, as it’s terms will also be binding
3. Ask questions – Employment contracts are open for negotiation, so don’t be afraid to ask questions about anything in the contract that you don’t understand, or that is different to what was agreed at your interview
4. Sign the document – Many people mistakenly think that by not signing the contract, they are not bound by it, but by working at the company you are deemed as accepting it’s terms
5. Keep it somewhere safe – You may need to refer to the terms of the contract in the future, so put it somewhere for safe-keeping

Which? Chief Executive Peter Vicary-Smith says: “Our research shows that many people fail to take the time to read their employment contracts properly, which means they have no idea what they’ve signed up to and could be in for a shock in the future.

“Always read your contract before signing it and check that the terms - such as salary, holiday entitlement, notice period and redundancy procedure - are in line with what your employer agreed at your interview. Dotting the ‘i’s and crossing the ‘t’s could pay dividends in the long-term.”

Which?, 10 June 2010

www.whichlegalservice.co.uk

A bald man whose application to join the police was rejected because he did not have enough hair for a drugs test has successfully appealed the decision.

It is understood he was at an advanced stage of the Police Service of Northern Ireland’s recruitment process when problems arose over the testing.

Because of his baldness, he could not give them hairs of up to 3cm in length.

He was also unable to provide about 200 body hairs as an alternative.

PSNI lawyers told the High Court in Belfast he would be reinstated in the recruitment process. Policies will also be changed to ensure other sources of DNA analysis are included.

The man, who has not been named for security reasons, launched judicial review proceedings following his unsuccessful attempt to become a trainee officer.

In his legal challenge, the would-be policeman claimed the decision was irrational and discriminatory.

As the case opened at the High Court on Wednesday, lawyers for the PSNI accepted he would have to be offered an alternative way of being tested.

The judge was told he would now be reinstated, and practices would be checked to ensure the same situation did not occur again.

BBC News, Wednesday, 23 June 2010

BBC News Website

There is mounting concern about stress during the recession.

It could be more difficult in future to bring a disability discrimination claim on mental health grounds, following an Employment Tribunal decision.

The tribunal suggested that a claimant could be required to provide evidence from a consultant psychiatrist to prove a diagnosis of stress or depression.

Previously, the threshold of proof had been lowered to make claiming easier.

The tribunal concerned a woman who said a job offer at a law firm was withdrawn after she disclosed her depression.

Having been offered the post of support lawyer at the company, the appellant, known only as ‘J’, then disclosed her history of depression to the firm’s human resources department.

She says the job was then withdrawn.

J said: “It was quite a shock to me when they withdrew the job offer.

“I know that some people have negative attitudes to mental health conditions, but I didn’t think in this day and age it could be expressed so boldly.”

To bring a claim for disability discrimination a claimant has to prove their disability.

This is straightforward with many physical disabilities, but far more difficult with mental health, where under the Disability Discrimination Act 1995, the claimant must prove “a mental impairment, which has a long term adverse affect on his/her ability to carry out normal day to day activities”.

Until 2005, that meant proving the condition was a “clinically well-recognised” one such as bi-polar disorder, and that often required a consultant psychiatrist’s report.

Following a campaign by mental health charities, that test was reduced so that claims, based on less clearly recognised and undiagnosed conditions such as depression and anxiety, could be brought with GP’s notes as proof.

Tuesday’s tribunal decision raises the threshold once again and makes those claims far more difficult.

J’s solicitor Kiran Daurka said: “Today’s decision provides little legal clarity. It has added an additional hurdle for those bringing disability discrimination claims on grounds of mental health.”

Recent research from the mental health charity Mind revealed that 22% of people develop depression in the course of their careers. It is those people who could be affected by this decision.

Legal Affairs Analyst Clive Coleman, Tuesday, 15 June 2010

BBC News Website

Two female Skills Development Scotland (SDS) employees have won their equal pay employment tribunal case.

Mairi Buchanan and Pat Holland, both employed at Skills Development Scotland as customer services managers, have been paid approximately £10,000 a year less than their male counterparts for eight years.

Kaliani Lyle, Scotland Commissioner for the Equality & Human Rights Commission, which supported the case, said: “We’ve just marked 40 years since the implementation of the Equal Pay Act but clearly, and despite legislation aimed at tackling our persistent pay gap, people are still being treated unfairly at work because of their gender.

“We hope that by supporting this case we are able to highlight to employers that this is unacceptable.”

Mairi Buchanan and Pat Holland have worked for Careers Scotland since 2002 when they were TUPE transferred to Scottish Enterprise and, after interview, appointed to new posts along with their male colleague.

Their colleague had transferred with a higher starting salary and this, along with ongoing pay rises resulted in him being paid £10,000 more than Ms Buchanan and Ms Holland for work of equal value.

The pay gap continued when they were TUPE transferred a second time into Skills Development Scotland.

The tribunal found that, while Scottish Enterprise was obliged under TUPE to honour early pay increases for the male employee, they were not similarly obliged to continue to increase his salary, and by doing so, were increasing the pay gap between himself and Ms’ Buchanan and Holland.

They also found discrepancies in performance related pay bonuses.

The tribunal stated that Ms Buchanan and Ms Holland’s contracts should now include equality clauses, and they are entitled to pay and benefits equal to that of their male colleague. An award has still to be decided.

Ms Lyle added: “The commission believes that employers must develop ways to measure and report on their gender pay gap, by adopting transparent pay policies and more flexible approaches to work.

“The commission will provide whatever assistance it can to help businesses measure and address pay gaps.

“However, we have made it clear that when the voluntary approach fails, we will use our enforcement powers to address any persistent and significant problems.”

Scottish Legal News, 15 June 2010

www.equalityhumanrights.com

The employment tribunal ruled Mr Innes had been unfairly dismissed.

An accountant who was fired for his “excessive” internet use by a major energy company has been awarded almost £40,000 compensation.

David Innes, 42, lost his job with Scottish and Southern Energy after bosses concluded he spent a “ridiculous amount of time” surfing the web.

He was told his internet use breached of company policy after being accused of clocking up 27,500 website hits.

However an employment tribunal in Glasgow ruled his dismissal was unfair.

David Pratt, Scottish and Southern Energy’s operations and performance manager, claimed Mr Innes must have known that “sitting at his desk doing nothing whilst going on the internet and sending emails was wrong”.

His dismissal in February last year was triggered by this and a “failure to perform his duties”, according to the company.

I got what I was looking for and a fair recompense. Money is important but clearing my name is important – David Innes.

But tribunal chairman Ian McFatridge said Mr Pratt, who made the decision to fire Mr Innes, had “no idea” how to properly interpret the internet usage report.

“He made no attempt to obtain advice from the respondent’s IT department,” he said.

“His view was essentially that he was faced with this enormous report and this therefore showed an extraordinary amount of internet usage.”

Mr McFatridge said Mr Innes, from Perth, had a history of mental health problems and was struggling with his work for more than a year following the death of his father.

“There was clearly a degree of exasperation with the claimant amongst the managers,” he added.

The tribunal concluded Mr Innes could have taken greater steps to seek appropriate medical help and take sickness or bereavement leave, but unanimously agreed his dismissal was unfair.

Mr Innes, who had almost a decade’s service with the energy supplier, was awarded £38,068 in compensation.

Father-of-three Mr Innes said: “I got what I was looking for and a fair recompense. Money is important but clearing my name is important. I feel my employer was trying to find something to push through a disciplinary process.

“Obviously I think I could have been re-instated.”

A spokesman for Scottish and Southern Energy said it was considering an appeal against the decision.

He added: “We’re disappointed with the decision, however we’ve got 40 days to consider what our next form of action will be.”

BBC News, Monday, 14 June 2010

BBC News Website