Of course, the slow machinations of the European justice system means I now post on [...]]]> At the end of last month, judgment was handed down in the Heyday litigation – a long running campaign by Age Concern to have the laws allowing compulsory retirement at 65 struck from the statute book as incompatible with European law.

Of course, the slow machinations of the European justice system means I now post on this subject on an annual basis only. In 2006 the proceedings were started in the English High Court, in 2007 the reference was made to the ECJ, and all related tribunal claims stayed, in 2008 the Advocate General announced his opinion, in March 2009 the ECJ promulgated its decision, referring the question of whether or not our regulations were lawful back to the English court.

See my post on the AG’s opinion for the legal background, but the most important question the High Court had to decide was whether the UK’s default retirement age of 65 (after which you can dismiss a person without them having any recourse to age discrimination remedies) was lawful. The message back from the ECJ had been that it could be, if sufficiently justified by “legitimate employment policy, labour market and vocational training objectives”.

The very brief answer is that yes, it was, but would not be so now. This means that the default retirement age (DRA) stands in respect of any claims brought over it to date, including many that still stayed in the employment tribunals.

Mr Justice Blake indicated however  that if the government hadn’t promised to review the level of the the DRA in early 2010 he would have ruled the provision unlawful, and that when that review is conducted a level of 65 would be unlikely to be justified. His judgment can be found here: Age UK, R (on the application of) v Attorney General [2009] EWHC 2336

The government’s announcement came only three days before the present case was heard.

Of course it’s impossible to know what transitional arrangements will apply to amendment of the DRA, but no doubt many employers will be receiving advice at present that they ought to hurry up with dismissing any unwanted 65+ employees that they might have. They key point will be whether, for the new DRA to apply, the date of the dismissal must fall before or after the legislative change, or the notifying of the Intended Retirement Date under the procedure.  If the former, then employers may have already missed the boat for giving the required six months notice, if the latter then we can expect a culling of 65 – 70 year old employees in the months ahead.

“I wouldn’t [...]]]> Stagecoach buses are now fitted with seats that aren’t rated to carry drivers over 20 stone, so the company has told those who weigh too much that they’ll be reassigned until they tip the scales the right way. Sky News carries the story, together with commentary from a detractor who entirely misses the point:

“I wouldn’t put that on anyone. Sometimes it’s not down to lack of exercise. It could be a medical condition, like a thyroid problem. We put our drivers through rigorous and regular medical checks – this is enough.”

If Stagecoach ultimately dismissed a driver who wouldn’t or couldn’t shift the weight, would it be fair? The example is a useful one to describe the steps that employers should take when faced with employees with health problems that affect their ability to work.

Incapability is a potentially fair reason for dismissal under the Employment Rights Act 1996, and should be assessed by reference to “skill, aptitude, health or any other physical or mental quality”. Body weight is squarely placed in this category. But it isn’t as simple as “too fat, you’re fired”. In order for the employer to satisfy the statutory requirement that it has “acted reasonably in all the circumstances (taking into consideration the size and administrative resources of [its] undertaking) in treating that reason as a sufficient reason for dismissal.” For ill health, and weight in particular, any employer should be able to show that he has:

• Obtained medical evidence – weights of 20 stone plus ought to be the subject of medical treatment. Opinion should be sought from the employee’s GP as to what medical support could be given, and the timescales for improvement.
• Consulted with the employee, who should know the nature of the problem, help identify any steps the employee or employer can take to resolve the problem, and what timescales are to be kept to;
• Maintained any employee progress with guidance and warnings on non-compliance;
• when, and if, the situation seems to be moving towards dismissal follow the Acas disciplinary Code of Practice.

The letter sent to Stagecoach employees are therefore the first stage in this process – setting out to employees the problem. But it should also analyse the solutions short of dismissal, and begin a consultation process to save their jobs.

Some employees’ weight may relate to disability, and more creative employees might even try to suggest that obesity itself, even without any underlying condition, qualifies them for protection under the Disability Discrimination Act – an argument which could conceivably suceed. Nonetheless, a process described as above would, if done well, consider reasonable adjustments and alternative deployment in any event.

Reg 4(9): Subject to regulation 9, where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or [...]]]> A recent EAT decision makes it worth revisiting the meaning of regulation 4(9) in the Transfer of Undertaking (Protection of Employment) Regulations 2006:

Reg 4(9): Subject to regulation 9, where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.

This is usually seen as easier for an employee to show than constructive dismissal, which of course was a remedy available to employees under the pre-2006 regulations if it could be shown that the new employer was failing, or would fail, to keep to an essential term of the contract of employment.  Within 4(9) however, it is simply enough to show that working conditions would change substantially such as to cause material detriment. This need not involve any contractual breach at all. Naturally there is a great deal of overlap.

In Tapere v South London & Maudsley NHS Trust [2009] UKEAT the employee’s employment was transferred from one NHS Trust to another. The transferee made it clear that following the transfer it would wish her to move from her old offices in Camberwell to the Bethlem Hospital in Beckenham. She wasn’t happy:

[The Claimant] was reluctant to move to work at the Bethlem in Beckenham as she believed that it would increase the journey time. She is a single mother and has to collect her child from school and be available till 8 a.m. when her child would be collected for school by taxi. She gave evidence that if she travelled via her old route of the A13 the journey time to Beckenham would be significantly longer – an additional 10 miles.

The transferee sought to instigate this change under a mobility clause. She resigned and claimed both constructive dismissal, on the basis that the mobility clause did not actually permit the change in location, and reg. 4(9), in that the change was a substantial change in working practices to her material detriment.

The Employment Tribunal found against her on both counts. I shan’t go into the discussion of the mobility clause here, of which there is much, but it is worth a read. Of interest however is the construction of “substantial change” and “material detriment”. The Tribunal had given rather scarce consideration to the terms, but had stated that it had looked at the matter objectively.

The EAT ruled that that the correct interpretation of detriment was that found in the discrimination caselaw. The EAT noted Shamoon v Royal Ulster Constabulary [2003] IRLR 285, in which Lord Scott followed the key decision of Chief Constable of the West Yorkshire Police v Khan [2001] IRLR 830. Lord Scott, at para 105:

‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment’, must be applied by considering the issue from the point of view of the victim. If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant, desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference, constituted ‘detriment’. He was being deprived of something that he reasonably wanted to have. And while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute ‘detriment’, a justified and reasonable sense of grievance about the decision may well do so.

So the correct approach is to consider whether the Claimant holds the view that he has been subjected to a detriment, then consider if he holds that view reasonable. The test is thus subjective, as one looks at the employee in particular. The consequences of this case is that the bar for reg. 4(9) dismissal remains low. I will review the law on mobility clauses in a later post.

This case demonstrates well the ‘purposive’ approach taken in construing regulations designed to implement European law. First, “working conditions” in TUPE does not mean “the conditions under which one works” but is to be interpreted far more widely. Second, the word material in this case does not connote physical materiality, it simply reinforces that the detriment must not be trivial or fanciful, which is of course usually dealt with by the word ’substantial’.

Finally it should be noted that the successful Appellent was represented by James Medhurst, who blogs about the case himself and has been kind enough to comment on this blog on occasion.

Irene Kudziela, branch manager of Manpower’s Pottsville office, allegedly told Blatt that a letter from her surgeon documenting her gender-reassignment [...]]]> A Philadelphia trans woman was told more-or-less just that, being asked to provide a surgeon’s report and, most shockingly, photographs of her genitals before being allowed to use the women’s toilets. The Philiadelphia Gay News reports:

Irene Kudziela, branch manager of Manpower’s Pottsville office, allegedly told Blatt that a letter from her surgeon documenting her gender-reassignment surgery – along with a photograph of her genital area – would be necessary before she could return to Sapa.

Blatt, 28, said she found the request “repugnant” and “disgusting,” and declined to comply. She viewed the request as a form of sexual harassment, she added.

“I was shocked and disgusted,” Blatt said. “It felt like I was being reduced to a mere sex object. I was trying to work there in a dignified and private manner, but my dignity and privacy were constantly being violated.”

In addition to sexual harrassment, Blatt is bringing her case under disability discrimination laws: it would seem that Philly doesn’t provide protection based on gender reassignment. In the UK there is already specific protection against this sort of treatment under statute, and section 7 of the Equality Act, when enacted, will provide that:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing
physiological or other attributes of sex.

I needn’t add any more.

H/T to the Joe. My. God. Blog. Discussion as to whether or not she’s owed her s.86 minimum notice is welcome below!

The tribunal has found in her favour today, finding harrassment and failure to make reasonable adjustments. See the full circumstances of the caseat [...]]]> Riam Dean’s disability discrimination claim against Abercrombie & Fitch alleged that she had been pulled from the shop floor back to the stockroom: her prosthetic arm didn’t accord with the company’s “look” policy.

The tribunal has found in her favour today, finding harrassment and failure to make reasonable adjustments. See the full circumstances of the caseat the link above. Miss Dean was awarded £7,800 for injury to feelings, £1,077.37 for loss of earnings, and £137.75 for (presumably) an unfair dismissal basic award.

Decisions such as this are almost run of the mill for A&F. The company has hit the headlines in the US for banishing a Dallas employee to the stockroom for scoring a zero in the the company’s “hierarchy of hotness”, and in 2004 it settled a class action lawsuit from ethnic minorities accusing it of discrimination in employment and in its marketing materials. The New York Times reported:

Eduardo Gonzalez, the lead plaintiff and a senior chemistry major at Stanford University, said that when he applied to an Abercrombie store in Santa Clara, Calif., managers urged him to apply for the overnight stocking crew. Noting that his application was rejected, he said that when a store manager interviewed him and 13 other applicants at once, the manager overwhelmingly favored the two white applicants.

…

In an unusual step, the settlement calls for Abercrombie to increase diversity not just in hiring and promotions, but also in its advertisements and catalogs, which have long featured models who were overwhelmingly white and who seemed to have stepped off the football field or out of fraternities or sororities. Plaintiffs’ lawyers said they insisted that the company agree to add more diversity to its marketing materials so as not to discourage minorities from applying for jobs.

Wondering about that today I visited Abercombie.com, and looked at the Picture Gallery. All ten models are white. The same goes for the images on the ‘Mens’, ‘Womens’ and ‘Jeans’. In fact, to find a single ethnic minority you have to head over to their Kids website, where both teenage models featured are of Asian origin. Given that the shots on the main site are all half-naked, and all sexually suggestive, and the teens are (understandably) head/shoulders fully clothed shots, you can’t help wonder at Abercrombie’s boldness at segregating their minorities into the ‘cute’ rather than ’sexy’ categories. For more invective about this vile organisation see Charon QC’s post back in June. All one can really do is hope that this whole experience has served Riam Dean well in her quest to become a lawyer.

And just for fun, check out the Top 11 diversity photoshop disasters.