business law ( PDFDrive )

Part 4 Business resources

The Court of Appeal did not accept this. Mr Mara’s tractors maintaining lifts or installing central heating.
company had, as its undertaking, the provision of clean- The actual employer owes the duties of an employer to
ing services. It appeared from the facts that the way it these people also, and must, for example, set up a safe
chose to carry out that undertaking, in this case, was to system of working. However, the occupier of the pre-
do the cleaning and also leave machines and other mises owes the duties we have been looking at in regard
equipment on the store’s premises with permission for to injuries received from defects in the premises or
employees of the store to use them and with the know- plant or a substance on them. Obviously, the occupier
ledge that they would in fact use them. The unsafe cable can assume that the employees of contractors will take
formed part of the equipment. The failure to remove or proper steps, as trained people, to avoid the risks which
replace the cable was a clear breach by Mr Mara’s com- are usually associated with the job.
pany of its duty both to its own employees and also to
the employees of the store. Duties in regard to harmful emissions
in the atmosphere
Comment. The case shows the wide ambit of the rel-
evant law. The liability of a director for offences by the The Health and Safety at Work etc. Act 1974 allows the
company is set out in the 1974 Act which provides that Secretary of State for Business, Enterprise & Regulatory
where an offence is committed by a body corporate then Reform to control by regulations the emission into the
its officers, e.g. directors and secretary, are also liable atmosphere from premises of noxious or offensive sub-
if the offence was committed with their consent or con- stances and for making harmless and inoffensive such
nivance. There is also a civil claim for damages for this substances as may be emitted. The provisions are con-
kind of breach. The above case was concerned solely cerned only with air pollution. Other forms of pollution,
with the criminal offence. such as the discharge of effluent into rivers, are not
controlled by them.
It should also be noted that the courts are allowed to
impose fines of up to £20,000 for breaches of the rel- The main regulations made so far under this head are
evant legislation. Furthermore, the Company Directors entitled the Control of Substances Hazardous to Health
Disqualification Act 1986 applies if there is a prosecu- Regulations 2002 (SI 2002/2677).
tion of a director on indictment in the Crown Court (see
Chapter 6 ). A director who is convicted of an indict- General duties of those who make,
able offence may be disqualified by the court, and this import or supply articles of equipment
was done in R v Chapman (1992) at Lewes Crown Court or substances, or who erect or install
where a director was convicted of an indictable offence equipment
under Health and Safety legislation arising out of the
running of a dangerous quarry. He was fined £5,000 and This part of the 1974 Act creates the following duties:
disqualified from being a company director for two years
(the maximum period is 15 years). 1 To ensure, so far as is reasonably practicable, that the
article, e.g. a machine, is so designed and constructed as
Duties of employers and the self- to be safe and without risks to health when properly
employed to non-employees – premises used or, in the case of a substance, e.g. cyanide, is safe
and without risk to health when properly used.
Certain duties are imposed upon employers and the self-
employed in regard to people who are not employees 2 To carry out or arrange for the carrying out of such
but who come on to their business (not domestic) pre- testing and examination as may be necessary for the
mises. The duty is to make sure, so far as is reasonably performance of the duty laid down in 1 above.
practicable, that the premises and the means of getting
in and out of them, and any plant or substance on the 3 To take such steps as may be necessary to make sure
premises, are safe and without risk to health. These that there is available as regards the use of the article
duties also apply to a landlord who is letting business or substance at work adequate information about the
premises. Failure to comply with these duties may lead use for which it is designed or made and has been tested,
to prosecution. and about any conditions necessary to make sure that
when the article or substance is put to that use it will be
Once again, a wide variety of people is covered, such safe and without risk to health.
as window-cleaners and painters, the employees of con-

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All forms of supply are included and this part of the 2 As regards any duty or requirement put upon his
1974 Act covers the supplying by way of sale, leasing, employer or any other person by the relevant Acts of
hire or hire-purchase. Parliament, to co-operate with him so far as is necessary
to enable that duty or requirement to be carried out or
As regards the installation and erection of equipment, complied with. Therefore, if the employer is required to
the 1974 Act provides that it is the duty of any person provide his workers with goggles, the workers have a
who erects or installs any article for use at work in any duty to wear them.
premises where the article is to be used by people at
work to make sure, as far as is reasonably practicable, Furthermore, the 1974 Act provides that no person
that nothing about the way in which it is erected or shall intentionally or recklessly interfere with or misuse
installed makes it unsafe or a risk to health when prop- anything provided in the interests of health, safety or
erly used. welfare, e.g. remove a safety guard from a machine. To do
so is an offence for which the employee can be prosecuted.
Under amendments made by the Consumer Protec-
tion Act 1987 the above general duties are extended to These are useful sections which could enable an em-
those who supply any article of fairground equipment. ployer to enforce his safety policies. Some workers are
reluctant to use safety equipment, such as machine guards,
Research, examination and testing because they feel it slows them down or prevents the
most efficient operation of the machine in terms of its
This part of the 1974 Act makes it the duty of any production. If the employee’s wages depend, because
person who undertakes the design or manufacture of an of the system of payment, upon his production, then it
article for use at work or the manufacture of a substance is even more difficult to gain his acceptance of safety
for use at work to carry out or arrange for the carrying out devices which might affect production.
of any necessary research with a view to the discovery,
and, so far as is reasonably practicable, the elimination In this connection it should be noted that an em-
or minimisation of any risks to health or safety to which ployee’s consent to a dangerous practice, or his willing
the design, article or substance may give rise. participation in it, is no defence for an employer who is
prosecuted under the Act.
There is no need to repeat any testing, examination
or research which has been done by someone else if it is Duty not to charge employees for
reasonable to rely on the results of another’s testing, ex- things done or provided by the
amination or research. For example, those who lease goods employer by law
are not required to go again through the manufacturer’s
testing, examination and research programmes. The 1974 Act states that no employer shall levy or per-
mit to be levied on any employee of his any charge in
If you design, manufacture, import or supply an article respect of anything done or provided by the employer
to someone else’s specification or request, the Act says as a result of the provisions of an Act of Parliament
that if you have a written undertaking as part of the or statutory instrument. This would apply, for example,
documentation of the contract from that person to take to personal protective clothing which an employer
specified steps sufficient to ensure, so far as is reasonably was required to provide by law. For example, in work-
practicable, that the article will be safe and without risk places where there is a noise hazard from a woodwork-
to health when properly used, then the written under- ing machine, ear protectors must be provided and the
taking will relieve the designer, manufacturer, importer employee must not be charged for them. The employee,
or supplier of liability to such an extent as is reasonable in turn, must treat them properly and not misuse them.
having regard to the terms of the undertaking.

General duties of employees at work The statutory duties and civil liability

It is the duty of every employee while at work: As we have already noted, civil liability has been ex-
tended to cover breaches of health and safety legislation
1 To take reasonable care for the health and safety of (see further, p 508 ).
himself and of other persons who may be affected by his
acts or omissions at work. However, the ordinary action for negligence at com-
mon law remains available. If there is an action by an

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employee at common law, say for injuries received at who, as it were, suffered in silence would apparently be
work by what he alleges to be the employer’s negligence, at risk of losing a claim.
the employee can plead that the employer has been con-
victed under the Act and where this is so the employee’s The House of Lords took a different view in Barber v
claim is near certain to succeed but will not inevitably Somerset County Council (2004), stating that employers
do so. Therefore, where the employer has infringed the must be pro-active in the matter of workplace stress.
Act and this has caused injury to the employee, the Act Their Lordships placed the onus on the employer to
is a relevant part of establishing the employee’s case for develop a knowledge of occupational stress and keep up
damages at civil law. to date with effective precautions that can be taken to
alleviate it. This ruling, which represents the current law,
Offences and civil claims for accidents at work are is of course much more favourable to an employee’s claim.
more likely to arise in a factory than in an office. How-
ever, the following are examples of accidents which can Stress claims acquired a new jurisdiction in Majrowski
occur and medical conditions which can arise in an office v Guy’s and St Thomas’s NHS Trust (2005), where a
environment: successful claim for damages was brought by the claimant
under the Protection from Harassment Act 1997. The
■ injury in a fire caused by a discarded cigarette or by an stress was caused to the claimant by, among other things,
overloaded or defective electrical system; the setting of unreasonable job targets and bullying by
hospital managers. Interestingly enough, the employer
■ a fall or other injury caused by a defect in the pre- was held vicariously liable, there being no proceedings
mises, such as a dangerous and badly lit staircase; against the manager. Claims under the 1997 Act can be
brought for up to six years (not three as in common law
■ an electric shock caused by badly fitted or defective claims) and there is no requirement of foreseeability
electrical equipment; of damage by the employer. The Act does not apply to a
situation of harassment on one occasion.
■ injury caused by a defect in or careless use of equip-
ment, such as a guillotine or stapler; Civil claims – strict liability

■ a medical condition caused by defective or ill-designed Some areas of health and safety legislation have always
chairs supplied to employees, particularly secretaries; allowed civil actions to be framed around breach of
statutory duty and in some cases liability is strict, which
■ eye strain and other conditions caused by exposure to means that an employer can be liable even in the absence
VDU screens. of negligence on his or her part. An example of such leg-
islation relates to the provision of equipment to employ-
Many of the claims brought broadly under the final ees as the following case shows.
two points above have been in regard to what is called
repetitive strain injury. Stark v Post Office (2000)

It is also necessary to note the case of Walker v The Court of Appeal ruled that where the employer’s
Northumberland County Council (1994) where damages, equipment caused personal injury to an employee a
eventually settled out of court at £175,000, were awarded claim by that employee for damages against the employer
to Mr Walker when he suffered psychiatric damage because can succeed even though the employer has not been
he was overworked by his employer. The employer was negligent in terms, for example, of its maintenance. Mr
in breach of its duty to provide a safe system of work for Stark was a postman. The Post Office provided him
the employee and was therefore liable in negligence for with a bicycle. During the course of his employment he
not doing so. was riding the bicycle when the front wheel locked,
sending him over the handlebars and causing him seri-
Claims under the above headings could now also be ous injuries. It was accepted that the bicycle had been
framed as breaches of statutory duty, which are normally maintained and that the defendants were not negligent.
easier to prove than common law negligence. Even so, the court found that the employer was liable to
Mr Stark since there is strict liability under health and
Claims for workplace stress have become quite com- safety legislation.
mon since the Walker case. A major development favour-
able to the employer occurred in the House of Lords
ruling in Hatton v Sutherland (2002), the most import-
ant aspect being that an employer is normally entitled
to assume that the employee can stand the normal pres-
sures of the particular job unless he or she knows of some
particular vulnerability or problem. So an employee

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Comment. Despite the fact that the Post Office had a under the Health and Safety at Work etc. Act 1974. The
safe system of maintenance and repair, the claimant code will have special force in that failure to follow it,
succeeded. A reasonable system for maintenance may though not in itself an offence, could lead to a successful
no longer be an adequate defence. Employers faced claim for damages under health and safety provisions
with health and safety incidents should take note of the by an employee who having suffered injury put it in
implications of this ruling. evidence. The code is likely to lead to a total ban in
smaller companies that find that they cannot afford the
Smoking in the workplace – generally alternative measures in the code, such as segregated
smoking rooms.
It is also arguable that at common law an employer is at
fault in requiring employees to work in an atmosphere Work breaks for smokers
containing heavy concentrations of cigarette or cigar
smoke, although it may be possible to call medical evid- It can be a source of resentment between employees where
ence to challenge the existence or degree of the risks smokers are given breaks for smoking in segregated
involved in ‘passive smoking’. In fact, in Bland v Stock- areas if similar breaks are not given to non-smoking
port Metropolitan Borough Council (1993), a woman employees. Employers should have an up-to-date policy
who had been exposed to passive smoking from 1979 to on smoking and refreshment breaks that is properly
1990 when her employer implemented a no-smoking communicated to all employees and ensures that all
policy, received £15,000 damages for injury to her health, employees are aware of permitted breaks and reasonable
including, in particular, chronic bronchitis and sinusitis. amount of time away from their workstation to which
There is, of course, a statutory duty now the new regu- they are entitled. Employers do not have to agree to
lations apply. Certainly there is no implied contractual additional breaks for smokers and if this gives rise to a
right to smoke at work and if an employee leaves because grievance it would not create a case for an employment
he or she is not allowed to smoke, there is no construct- tribunal. The issue of discrimination would not arise in
ive dismissal (see Dryden v Greater Glasgow Health the UK because nicotine addiction is specifically excluded
Board (1992)); and it may well be that a dismissal for from the Disability Discrimination Act 1995.
infringement of a no-smoking rule properly commun-
icated and agreed with staff would not be unfair. Smoking in the workplace – legislative duties

More recently the Employment Appeal Tribunal has Relevant legislation includes the following:
decided that the secretary in a solicitor’s office who left
because of discomfort caused at the workplace by col- ■ The Health and Safety at Work etc. Act 1974. Exposure
leagues who smoked was constructively dismissed (see to environmental tobacco smoke (ETS) is a health
Waltons and Morse v Dorrington (1997)). In previous hazard and, by exposing non-smokers to ETS, the
passive smoking cases the complainant has suffered employer could be in breach of the Act.
physical injury. However, in this case, the EAT, after
ruling that it is an implied term in all employment con- ■ Management of Health and Safety at Work Regulations
tracts that the employer will provide and continue to 1999 (as amended). These impose specific requirements
monitor, as far as is reasonably practicable, a working to make risk assessments in regard to health, safety
environment which is reasonably suitable for employees and welfare at work of all employees. Given the evid-
to carry out their duties, then went on to comment that ence of the risks involved in exposure to ETS, this
the right of an employee not to be required to sit in a should be included as a risk and appropriate measures
smoky atmosphere affects the welfare of employees at work, taken to deal with the risk.
even though employees who complain cannot necessar-
ily prove that there has been any health and safety risk to ■ Workplace (Health, Safety and Welfare) Regulations 1992.
them. It would appear that discomfort is enough. Under these regulations where rest areas are provided
arrangements must be made to ensure that non-
Smoking in the workplace – a code of practice smokers can use them without the discomfort of ETS.

Following consultation, the Health and Safety Com- ■ Employment Rights Act 1996. This provides for a gen-
mission has issued a code of practice on passive smoking eral duty on the employer to protect employees from
risks. Non-smokers who are subjected to ETS where
the employer will not do anything about it could resign
and claim constructive dismissal.

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A workplace smoking ban our of a fellow worker was automatically unfair within
s 100(1)(d). The subsection had a wide scope and was
The government has issued and consulted on the Smoke- without limitation and could cover any danger howso-
free (Premises and Enforcement) Regulations 2006 (SI ever arising.
2006/3368). These ban smoking in enclosed public places,
including most workplaces, on 1 July in England. The The Health and Safety Commission and
Welsh ban came into force on 2 April 2007. The regula- the Health and Safety Executive
tions give definitions of ‘enclosed’ and ‘substantially
enclosed’ premises, together with requirements for dis- The 1974 Act establishes the above bodies and describes
playing no-smoking signs in smoke-free premises and their powers. Briefly, the Commission is concerned to
duties to prevent smoking in smoke-free vehicles, enforce- make codes of practice, assist and encourage research
ment by local authorities and the form of penalty notices and the availability of information and training, to recom-
for offences. mend to government areas in which new regulations are
required and what they should be and, as we shall see
As regards penalties, employees caught smoking in below, to conduct inquiries.
regulated areas after the regulations are in force will face
a fixed penalty of £50. Those who pay within 15 days will The Executive is required, through its inspectors, to
have the fine reduced to £30, but those who fail to pay enforce the provisions of the Act throughout the coun-
could face a fine of up to £200 and a criminal record. try by covering all industries.
Company cars must also be non-smoking if they are
likely to be used by more than one person, unless the car Investigations and inquiries
is a convertible and the roof is open.
If there is, for example, a serious accident on a particu-
Drink and drugs in the workplace lar employer’s premises, then this part of the Act may be
brought into effect. It provides that whenever there has
As a result of the duties of care placed upon them by been any accident, occurrence, situation, or other mat-
statute and common law, employers must take reason- ter of any sort which the Commission thinks it necessary
able steps to ensure that their workers are not under the or expedient to investigate, which includes the situation
influence of drink or drugs where it would create a risk where new regulations might be required, the Commis-
to the health and safety of others if the workers’ per- sion may:
formance was impaired in this way. Employees who are
under the influence of drink or drugs – or who fail to 1 direct the Executive to investigate and report; or
report fellow workers who are – may also be in breach of 2 authorise another person, e.g. someone with particu-
their own common law or statutory duties of care.
lar expertise, to investigate and report; or
Except for these rather general duties, there is little 3 direct an inquiry to be held if the Secretary of State
specific regulation in regard to drink and drugs in the
workplace, though there is some regulation in regard to agrees.
railways.
There is a provision that normally the inquiry is to
Abusive fellow workers – a health and be held in public and regulations made dealing with
safety risk the conduct of inquiries include provisions giving the
person conducting the inquiry powers of entry and
The decision of the EAT in Harvest Press Ltd v inspection of premises, the power to summon witnesses
McCaffrey (1999) provides an unexpected application to give evidence or produce documents, and the power
of s 100(1)(d) of the Employment Rights Act 1996. to take evidence on oath and require the making of
This states that it is automatically unfair to dismiss an declarations as to the truth of statements made.
employee who has left his work because circumstances
of danger of a serious nature appear imminent, which The Act also provides that the Commission may
one normally associates with a health and safety risk. publish the report of the inquiry or part of it as it thinks
The EAT upheld an employment tribunal’s decision fit.
that the dismissal of McCaffrey after he left his work in
the middle of a shift because of the abusive behavi- The investigations and inquiries referred to above are,
of course, a form of enforcement but in the main en-
forcement is through the powers conferred on the Com-
mission and the Inspectorate.

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The Commission carried on or are about to be carried on involve a risk of
serious personal injury, the inspector may serve a prohibi-
The Commission has the following general duties: tion notice on the person who controls the activities.
The notice must give the inspector’s reasons for think-
1 to assist and encourage health and safety measures; ing that the activity is unsafe. When the notice has been
2 to make arrangements for the carrying out of research, served, the activity must cease immediately. It should be
noted that improvement and prohibition orders may be
the publication of the results of research, and the pro- issued in respect of offences under the provisions of the
vision of training and information in connection with various health and safety regulations already considered.
these purposes, and to encourage provision of train- They have, for example, been served in regard to service
ing and research in the publication of information by lifts (sometimes called dumb waiters) in restaurants,
others; which can be overworked and not properly maintained;
3 to make arrangements for an information and advis- they have also been served in respect of dangerous stair-
ory service; cases leading to kitchens in a restaurant, resulting in the
4 to submit recommendations for new regulations; restaurant being closed until the staircase has been put
5 to direct the holding of investigations and inquiries. into good order.

The Inspectorate and its major powers Under the provisions of the Environmental and Safety
Information Act 1988 the Health and Safety Executive
In order that there should be compliance with health is required to keep a register of improvement and pro-
and safety legislation, health and safety inspectors are hibition notices which is available for inspection by the
given wide-ranging powers, for example to: public. Such notices are not required to be registered
where they would reveal a trade secret such as a secret
■ enter premises; manufacturing process.
■ examine and investigate, take measurements, samples
3 Appeal against improvement or prohibition notice.
and photographs and make recordings; There are rights of appeal against improvement and
■ require any person whom they reasonably believe to prohibition notices. The appeal is to an employment
tribunal. An improvement notice is suspended until the
be able to give information to answer questions and appeal is heard or withdrawn and things can go on as
sign a declaration of the truth of those answers; before. A prohibition notice is not automatically sus-
■ require the production of, inspect and take copies of pended but may be if the person making the appeal asks
books or documents or entries in them; for suspension and the tribunal so directs. Suspension is
■ serve upon any person who is in control of particular from the date of the tribunal’s direction.
activities an Improvement or Prohibition Notice (see
below). There is a right of appeal from the tribunal to the
Divisional Court of the Queen’s Bench, both against the
1 Improvement notices. The Act provides that if an making of either notice or against a refusal to suspend a
inspector is of the opinion that a person is contravening prohibition notice.
one or more of the statutory provisions relating to
health and safety or has done so in the past and the 4 Power to deal with cause of imminent danger.
circumstances suggest he is likely to do so again, he may Under the 1974 Act an inspector has power to enter
serve an improvement notice on him requiring the per- premises and remove from them any article which he
son concerned to put matters right within the period has reasonable cause to believe is a cause of imminent
stated in the notice. danger or serious personal injury and cause it to be
made harmless, whether by destruction or in some other
In general terms, these notices have been served in way. This part of the 1974 Act requires the inspector to
connection with, e.g., stairways and lifts but in an inter- make a report giving his reasons for taking the article
esting development such a notice has been served in and to give a copy to a responsible person at the pre-
regard to employee stress by reason of long working mises from which the article was removed and to the
hours and bullying at a Dorset hospital. This shows the owner if the two are not the same, as where the owner
increasing concern of the HSE in regard to workplace has let his premises for industrial use.
stress and the health risks (see also p 507).

2 Prohibition notices. The Act also provides that if
an inspector is of the opinion that activities as they are

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5 Actions against inspectors – indemnity. It is possible Corporate killing
to bring at common law an action for damages against
an inspector who negligently issues an improvement, or It has proved difficult successfully to prosecute com-
more particularly, a prohibition, notice which causes loss panies and their officers for manslaughter, even though
to the person against whom it is issued. If the inspector it has been clear that there have been management
loses his case then the Executive is given power under the failures in safety matters resulting in a death or deaths.
1974 Act to indemnify him (i.e. make good) any dam- The problem under the present law is that prosecutions
ages, costs or expenses which he incurs. for corporate manslaughter can be brought only where
a company through the controlling mind of one of its
6 Obtaining of information. The Act carries provisions agents carries out an act that fulfils the requirements of
under which the Commission or the Executive can the crime of manslaughter. It is necessary to identify the
obtain information which is needed for the discharge of agent in order to carry the crime back to the company,
their duties by the serving of a notice requiring the per- and in all of the major disasters brought about by a fail-
son concerned to supply that information within a ure of a company-supplied service – as in a ferry or train
specified time. disaster – the effective acts of carelessness are diffused
throughout the company’s structure.
Offences due to the fault of
another person In A-G’s Reference (No 2 of 1999) (2000) the Court of
Appeal affirmed the principle, in regard to a finding of
The Act provides that if an offence under the Act was the corporate manslaughter by gross negligence, that a cor-
fault of some other person that other person is guilty of poration cannot be convicted unless there is evidence
the offence and may be charged and convicted of it that establishes the guilt of an identified human indi-
whether or not proceedings are taken against anyone vidual for the same crime.
else who is responsible.
One of the few convictions is to be found in R v OLL
The effect of this provision is that, for example, an (1994), a prosecution heard at Winchester Crown Court
executive of a company or other business organisation in 1994, where the managing director of an activity
may be prosecuted rather than the company or other centre was sentenced to three years’ imprisonment for
organisation where the Act was infringed because the manslaughter following the deaths of four teenagers in
executive himself was at fault. However, before blame the Lyme Bay canoe disaster. Here there was no difficulty
can be passed on in this way the company or other in establishing the controlling mind because the com-
organisation should have a very good system to ensure, pany was a ‘one-man band’.
for example, safety, which the executive did not in prac-
tice operate. Corporate Manslaughter and Corporate
Homicide Act 2007
Offences by bodies corporate
This Act came into force on 6 April 2008. It introduces
This part of the Act also imposes potential liability upon a new offence where there has been a gross organisa-
the executive of a company but not because the person tional failing in the management of health and safety,
concerned was directly involved in a failure, for ex- which has had fatal consequences.
ample, to operate a safety system, under the above pro-
vision, but where the offence was committed with his The Act sets out a new offence for convicting an
consent, connivance or neglect. organisation where a gross failure in the way activities
were managed or organised results in a person’s death.
In effect, the section will enable members of boards, This will apply to a wide range of organisations across
managers and company secretaries to be prosecuted where the public and private sectors. In England and Wales
nothing has been done by management to prevent the and Northern Ireland, the new offence will be called
commission of an offence under the Act or where with corporate manslaughter. It will be called corporate hom-
knowledge of its commission management has consented icide in Scotland.
to, for example, a dangerous practice being carried on,
or has connived at its being carried on, as where a blind Previously, a company could only have been convicted
eye has been turned on the wrongful activity. of corporate manslaughter if there was enough evidence
to find a single senior person guilty. This approach did
not reflect the reality of modern corporate life. Under this
new approach, courts will look at management systems

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and practices across the organisation, providing a more the business has a first aider, that person should have
effective means for prosecuting the worst corporate fail- passed an approved course and be retested every three
ures to manage health and safety properly. Companies years. If there is no trained first aider, the regulations
found guilty of corporate manslaughter will be subject require that a person should be assigned to that func-
to an unlimited fine. The court will also be able to impose tion, the main duties of which are to take control if an
a remedial order to take specified steps to remedy the accident occurs, to call an ambulance if required and to
breach within a specified period. maintain the first aid box.

Codes of practice Amendments made to the 1981 regulations by the
Health and Safety (Miscellaneous Amendments) Regula-
Reference has already been made to certain ACAS codes tions 2002 (SI 2002/2174) require that a first-aid room
of practice issued under what is now the ERA. However, must be easily accessible and sign-posted.
codes of practice may also be issued in the field of health
and safety by the Health and Safety Commission and, in Reporting accidents
particular, the Commission has issued a code and guid-
ance notes relating to safety committees and the main The Reporting of Injuries, Diseases and Dangerous
regulations already considered. Occurrences Regulations 1995 (SI 1995/3163) require
the reporting of accidents at work to the local environ-
Employment protection in health and mental officer or the HSE. Failure to make a report is a
safety cases: consultation criminal offence.

Designated or acknowledged health and safety repres- For notification to the HSE a central reporting system
entatives must not be subjected to detriments, e.g. loss for the whole of the UK is in operation. Users have a
of overtime, for carrying out health and safety activities choice of contact by telephone or e-mail or via a website
in the workplace. Dismissal or selection for redundancy or by completing the appropriate form and sending it by
for these reasons can lead to a complaint to a tribunal. fax or post to the centre in Wales.
These provisions apply to ordinary employees, regard-
less of service, who leave or refuse to return to the work- Fire precautions
place because of a health hazard reasonably thought to
exist. Specific and detailed legal requirements relating to fire
safety at work are laid down in the Fire Precautions Act
Regulations also make clear that employers must con- 1971 (as amended) and regulations made under it. In
sult with trade union representatives about the making particular, regulations made under the 1971 Act make
and maintenance of health and safety arrangements and compulsory the inspection and issue of a fire certificate
about developing measures to ensure employees’ health in respect of most workplaces where more than 20 people
and safety. Consultation is with worker representatives are employed or more than ten persons are employed
where there is no recognised trade union. at any one time elsewhere than on the ground floor.
Applications for a fire certificate must be made to the
Other statutory provisions local fire authority. The detailed requirements are beyond
the scope of a book of this nature and will not be con-
Apart from the Health and Safety at Work etc. Act 1974 sidered further. However, new rules contained in regula-
and the General Regulations relating to health and safety, tions designed to comply with the EC Directives are
three other areas are important in the general adminis- relevant. The provisions appear below.
tration of business. They are set out below.
The Regulatory Reform (Fire Safety) Order 2005
First aid (SI 2005/1541)
The regulations are currently in force and apply to
The Health and Safety (First Aid) Regulations 1981 (SI premises which are used as a workplace by at least one
1981/917) state that employers must determine what person, as well as premises visited regularly by the public
provision for first aid is required. A properly equipped where people who are self-employed work. The major
first aid box must be provided in an appropriate place. If requirements are:

■ Employers must carry out an assessment of the fire
risk using technical guidance from fire authorities.

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■ There must be emergency plans prepared for all pur- ■ The normal hours of night workers should not exceed
poses and these must be kept up to date. eight hours for each 24 hours.

■ There must be appropriate fire escapes which are well The Court of Appeal has ruled that periods of down-
maintained. time during which the worker is still at the disposal of
the employer do not count as rest breaks. A worker must
■ Premises must have fire-fighting equipment as well as be free to use the time as he or she pleases. (See Gallagher
fire warning and detection systems. Written records v Alpha Catering Services Ltd (2005), where the workers
must be kept for any maintenance work carried out drove food out to aircraft. Periods of downtime between
on these systems. aircraft landing were not rest breaks.)

■ All staff and self-employed persons must be given It should also be noted that although employers must
instructions and training in fire precautions. Written ensure that their workers can take leave, they are not
records must be kept of any instruction and training forced to see that they actually do. However, a ruling by
given. the European Court of Justice in European Commission
v United Kingdom (2006) is to the effect that UK regula-
The regulations are enforced by fire authorities, and tions are defective in not enforcing rest breaks. The UK
such authorities can serve enforcement notices if safety government is currently considering what steps to take,
is at risk. Failure to comply with an enforcement notice since the UK Working Time Regulations are out of line
is a criminal offence which may lead to a fine and/or with the EU Working Time Directive in this respect.
imprisonment of relevant management. Furthermore,
an intentional or reckless breach of the provisions set Who is a worker?
out in the regulations is also an offence.
Generally speaking, a worker is a person employed under
A significant feature of the 2005 regulations is to allow a contract of service, but the majority of agency workers
employees to claim damages from their employer if they will be included as will trainees who are engaged on
suffer illness or injury as a result of breach of the regula- work experience. The regulations also apply in part to
tions. Previous regulations contained a civil liability domestic employees: though the working time limits
exclusion. do not apply, they are entitled to the rest breaks, rest
periods and paid annual leave. Those who are genuinely
The Working Time Regulations (WTR) self-employed are not covered.

The Working Time Regulations (SI 1998/1833) came into What is working time?
force on 1 October 1998. They enact the European Work-
ing Time Directive (93/104). From that date there are Working time is defined by the Working Time Regula-
detailed rules which govern hours of work and entitle- tions (WTR) as when a worker is working at his employer’s
ment to paid holidays, as set out in general terms below: disposal and carrying out his duty or activities. Training
time is included but, according to BERR Guidance, time
■ A maximum 48-hour working week, averaged over 17 when a worker is ‘on call’ but is otherwise free to pursue
weeks or 26 weeks in some cases (see p 515 ). his own activities or is sleeping would not be working
time. On-call time where the worker is restricted to the
■ At least four weeks of paid annual leave. workplace is working time. Lunch breaks spent at leisure
■ A daily rest period of at least 11 consecutive hours in would not be working time, but working lunches and
working breakfasts would be. Travelling to and from a
24 hours. place of work is unlikely to be working time. The regula-
■ A weekly rest period of at least 24 hours in each tions usefully allow workers or their representatives and
employers to make agreements to add to the definition
seven-day period. This may be averaged over a two- of working time.
week period, i.e. a worker is entitled to 48 hours’ rest
in 14 days or to two periods of 24 hours’ rest in 14 days. Must a worker actually work?
The days off for weekly rest are in addition to paid
annual leave. In Kigass Aero Components v Brown (2002) the Employ-
■ An in-work rest break of 20 minutes for those work- ment Appeal Tribunal ruled that an employee who had
ing more than six hours a day. This should not be taken been off work for a considerable time with a longstanding
at either the start or the end of a working day and
should not overlap with a worker’s daily rest period.
Rest breaks are not in addition to lunch breaks.

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back injury was entitled, under the 1998 regulations, to could present a number of employers with major prob-
be paid the statutory holiday pay due to him, although lems, particularly in terms of staff in key areas. They
his entitlement had accumulated while he was not work- could face the prospect of a number of workers being
ing. It appeared from this decision that so long as workers able to refuse to do any more work until their hours
are on the payroll, they can build up holiday-pay entitle- came down to the required level.
ment, even though they are not actually at work.
Paid annual leave
In Inland Revenue Commissioners v Ainsworth (2005)
the Court of Appeal ruled that Kigass was wrongly decided. The entitlement is to four weeks of paid leave. This is
A worker on long-term sick leave was not entitled under not additional to contractual entitlements so that taking
the WTR to four weeks’ annual leave in a year when he contractual paid leave in a particular leave year counts
had not been able to work so that a claim for holiday pay against the worker’s entitlement under the regulations.
must also fail. Kigass was overruled. In the absence of any agreement, the employer can require
a worker to take all or any of the leave at specified times,
The 48-hour week subject to giving the worker notice of at least twice the
period of the leave to be taken. The worker is also
The law does not say that employees cannot work more required to give notice to the employer of the wish to
than 48 hours in any one week. The 48-hour limit is take leave. The notice period must again be at least twice
averaged over a ‘reference period’ which will generally the period of leave to be taken.
be a 17-week rolling period, in the absence of any other
agreement. This gives a certain amount of flexibility for The four weeks (or 20 days) of leave accrue during the
businesses to cope with surges in demand, so long as the first leave year. After six months of the leave year, there-
average over the whole reference period is not exceeded. fore, an employee is entitled to ten working days’ paid
leave. There is no harm in allowing employees to take
The reference period may be increased to 26 weeks if leave in excess of the accrued entitlement, but, unless
the worker is a special case, as in hospital work, or where there is a provision in the contract of employment, an
there is a foreseeable surge of activity as in agriculture, employer cannot recover holiday pay where the relevant
tourism and postal services. The reference period can leave has been taken in advance of accrued entitlement
be increased to 52 weeks by a workforce agreement (see and the worker resigns before he or she has accrued the
below) or by individual agreement with the employer necessary leave to cover what has been taken.
(see below).
Hill v Chapell (2003)
A High Court judge has ruled that all contracts of
employment should be read as providing that an em- Miss Hill gave in her resignation after taking 15 days’
ployee should not work more than an average of 48 holiday in six months of the leave year. The employer
hours in any week during the 17-week working time ref- contended that he could recover a sum equivalent to five
erence period, unless the relevant employee has opted days of overpaid holiday. However, the EAT refused the
out in writing. The judge also ruled that if the average claim. The Working Time Regulations do not allow credit
hours are equalled or exceeded during the reference to the employer for any leave taken and paid for in excess
period, an employee may refuse to work at all during the of the accrued entitlement in the absence of a contract
remainder of the period until the working hours come that provides to the contrary. There was no agreement
down to the required level. (See Barber v RJB Mining covering Miss Hill’s employment.
(UK) Ltd (1999).)
Comment.
Mr Justice Gage gave his ruling in a case brought by (i) This is an aspect of the WTR that should be con-
five members of the pit deputies’ union NACODS against sidered by employers when making employment con-
RJB Mining, their employer. They had all been required tracts. It is often convenient to allow leave to be taken in
to carry on working, although they had all worked in advance of entitlement and where there is no resigna-
excess of 816 hours in the 17-week reference period. The tion there will not be a problem. However, contractual
judge also granted them an injunction (breach of which arrangements should cover the possibility of resignation
by the employer could lead to sanctions of contempt of and allow the employer to recover the excess.
court) to the effect that they could refuse to work any
more during a 17-week reference period where the 48-hour
average had been equalled or exceeded. The decision

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(ii) It should also be noted that if a worker’s employment ■ the rolled-up holiday pay must be incorporated clearly
ends, he/she has a right to be paid for leave accrued into the contract of employment and expressly agreed
but not taken. This applies even where an employee is with the worker;
fairly dismissed (see Witley and District Men’s Club v
Mackay) (2001) where the dismissal was for dishonesty! ■ the percentage or amount of holiday pay must be
clearly identified in the contract and preferably also
(iii) Leave does not accrue on a pro rata basis after the on the payslip;
first year and all this means is that the worker is not
obliged to wait until holiday has accrued before being ■ it must be a true addition to the contractual rate of
allowed to take it. Nevertheless, problems such as those pay;
seen in the Hill case will still arise because entitlement
may have been exceeded on leaving. Contractual arrange- ■ records of holiday must be kept and reasonably practic-
ments for recovery of the excess payment by the employer able steps must be taken to require workers to take their
are the answer to this problem, as they are in the first holidays before the expiry of the relevant holiday year.
year of employment.
The above arrangements gave the employer consider-
The leave entitlement under the regulations is not in able calculation advantages in a shift operation.
addition to bank holidays because there is no statutory
right to take them. There are eight annual bank and However, in a number of conjoined appeals from the
public holidays in most parts of the UK and currently Court of Appeal on the subject of rolled-up holiday pay
employers are allowed to include these in the four weeks’ the ECJ ruled that for the future it was unlawful. Where
annual entitlement. The government has increased the before the ruling an employer has operated a system of
statutory paid holiday entitlement from 4 weeks to rolled-up pay and the payments have been made in a
5.6 weeks. This gives 28 days’ leave for those working the transparent and comprehensible manner these payments
standard five-day week. From 1 October 2007 there was can be set off against any future annual leave payments
an increase to 4.8 weeks (24 days for the standard five- made at the time of taking leave. An employer must not,
day week) with the full entitlement of 28 days coming however, proceed with further rolled-up pay payments.
into force by 1 April 2009. There would still be no right (See Robinson-Steele v RD Retail Services Ltd; Clarke v
actually to take holiday on a bank or public holiday. Frank Staddon Ltd; Caulfield v Hanson Clay Products
Ltd (2006). By the time of the ECJ ruling Hanson had
acquired Marshalls Clay.)

BERR has also issued a statement to the effect that
rolled-up pay is unlawful and must be discontinued.

Paying a rolled-up rate Length of night work

It will be appreciated that calculating the various paid Night work is presumed to be work between 11 pm and
leave entitlements of a workforce is a time-consuming 6 am, unless otherwise defined by agreement.
job for the employer and some have resorted to paying a
rolled-up rate including a proportion of holiday pay Excluded sectors
with the weekly or monthly basic pay. The Court of
Appeal ruled in Blackburn v Gridquest (t/a Select Employ- The regulations, other than those parts which apply to
ment) (2002) that rolled-up pay will not be effective young workers (see below), do not currently apply to
unless the employee concerned agrees to it and that workers who are employed in the following sectors:
in the payment holiday pay is stripped out so that the
employee can see what is holiday pay and what is basic ■ air transport;
pay. Failure to do this has resulted, as it did in the ■ rail;
Gridquest case, in the employer being successfully sued ■ road transport;
for failing to pay for annual leave, with the result that ■ sea transport;
the employer paid twice! ■ inland waterway and lake transport;
■ sea fishing;
After the expenditure of much time and money in ■ other work at sea, e.g. offshore work in the oil and gas
litigation the Court of Appeal gave definitive guidelines
on rolled-up pay in Marshalls Clay Products Ltd v Caulfield industry.
(2003). The guidelines were:
The original regulations do not apply to the activities
of doctors in training.

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The Working Time (Amendment) Regulations 2003 Derogations
(SI 2003/1684) deal with the above-mentioned excluded
categories and amend the main regulations as they are Employees whose working time is not measured or pre-
applied to the relevant categories. The main provisions determined were exempt from the provisions relating to
of the regulations are as follows: the 48-hour week, daily and weekly rest periods, rest
breaks and limits on night work but not the holiday pro-
■ In the case of workers in the armed forces or emer- visions. Examples given in the WTR included ‘managing
gency services, where their activities conflict with the executives or other persons with autonomous decision
1998 regulations, crew members on board civil air- making powers, family workers and ministers of religion’.
craft and doctors in training, the following provisions
are disapplied: The above derogations were removed by the Working
– weekly working time and night work limits, the Time (Amendment) Regulations 2006 (SI 2006/99), effect-
daily, weekly and in-work rest periods, the entitle- ive from 6 April 2006. It appears that some organisations
ment to paid annual leave, the right to a health had used the derogations to pressurise junior workers to
assessment if a night worker and pattern of work work in some cases limitless unpaid overtime. Deroga-
protection for certain categories of worker. A 48- tions allowing this are now removed.
hour time limit for doctors in training will be phased
in over a period ending on 31 July 2009. Collective and workforce agreements

■ Regulation 8 inserts a 52-week reference period for The regulations allow employers to modify or exclude
workers employed in offshore work. the rules relating to night work, daily and weekly rest
periods and rest breaks and extend the reference period
■ The 1998 regulations are disapplied in their entirety in relation to the 48-hour week – but not the 48-hour
in the case of seafarers, workers on board sea-going week itself – by way of agreement as follows:
fishing vessels and workers on certain ships and hov-
ercraft on inland waterways. ■ A collective agreement between an independent trade
union and the employer (or an employers’ association).
It will be noted that the 1998 regulations have been
made to apply to certain of the above-mentioned categ- ■ A workforce agreement with representatives of the
ories of workers but with considerable derogation. relevant workforce or if there are 20 workers or fewer
the agreement may be with a majority of the workforce
Road Transport (Working Time) which obviates the need to elect worker representatives.
Regulations 2005 As regards worker representatives, these may be rep-
resentatives elected for other purposes, e.g. health and
These regulations (SI 2005/639) came into force on 4 safety consultation.
April 2005 in order to implement the Road Transport
(Working Time) Directive into UK law. They give work- ■ Individuals may also choose to agree with their em-
ing time protection for all mobile workers (in general ployer to work in excess of the 48-hour weekly time
drivers and crew travelling in vehicles that are subject limit. This is all that an individual agreement can cover.
to tachograph requirements) such as goods vehicles over
3.5 tonnes, coaches and inter-urban bus services. The ■ In addition, a workforce agreement may apply to the
regulations cover mobile workers in the haulage indus- whole of the workforce or to a group of workers
try and those who work for companies with their own within it.
transport section and agency drivers. They do not apply
to self-employed drivers working for a number of clients. These agreements can only last for a maximum of five
years.
The detail of the regulations is beyond the scope of
this introductory text. Records: weekly working time

Police An employer must keep adequate records to show that
he has complied with the weekly working time limit.
The main regulations are applied to the police by reason The records must be kept for two years. It is up to the
of the Working Time Regulations 1998 (Amendment) employer to determine what records must be kept. Pay
Order 2005 (SI 2005/2241), effective from 1 September records may adequately demonstrate a worker’s working
2005. hours.

Similar provisions apply in regard to records showing
that the limits on night work are being complied with.

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Records need not be kept in regard to rest periods and more than 40 hours per week. In addition, working time
in-work rest breaks nor in regard to paid annual leave. is limited to eight hours in any one day. Night working
is prohibited between 10 pm and 6 am or 11 pm and
Compensatory rest 7 am. There are some exceptions, such as hospitals and
hotel catering work (but not in restaurants or bars).
Employers who make use of the derogations or who
enter into collective or workforce agreements must pro- Young workers in the seafaring and seafishing industries
vide an equivalent period of rest or, if this is not possible, and the armed forces are excluded from the provisions.
give appropriate health and safety protection. Thus the
regulations allow, through agreement, flexibility in the The regulations are entitled Working Time (Amend-
way its rights are delivered, but they do not allow those ment) Regulations 2002 (SI 2002/3128).
rights to be totally avoided.
Other young workers rules
Health and safety assessments
The Children (Protection at Work) (No 2) Regulations
An employer must offer a free health assessment to any 2000 (SI 2000/2548), reg 2 limits the number of hours a
worker who is to become a night worker. Employers must child of school age can work – in any week during which
also give night workers the opportunity to have further he or she is required to attend school – to 12. This could
assessments at regular intervals. lead to problems in small businesses, such as newsagents.

Young (or adolescent) workers Enforcement and remedies

The regulations also apply rights to persons over the The weekly working time limit, the night work limit and
minimum school-leaving age but under 18. These are set health assessments for night workers are enforced by the
out below: Health and Safety Executive or local authority environ-
mental health officers. The usual criminal penalties for
■ weekly working hours: adult and young workers are breach of the health and safety law apply. In addition,
treated the same; workers who are not allowed to exercise their rights under
the regulations or who are dismissed or subjected to a
■ night work limit: adult and young workers are treated detriment – whether a pay cut, demotion or disciplinary
the same; action – for doing so will be entitled to present a com-
plaint to an employment tribunal. In view of the aboli-
■ health assessments for night workers: adolescent work- tion on the ceiling of awards for unfair dismissal, in
ers are entitled to a health and capacity assessment these cases employment tribunal claims could be much
if they work during the period 10 pm to 6 am. Such more expensive than health and safety fines.
an assessment for an adolescent worker differs in
that it considers issues like physique, maturity and Discrimination
experience and takes into account the competence to
undertake the night work that has been assigned; Those involved

■ daily rest: for young workers this is 12 hours’ consec- In the material which follows we shall refer only to ‘dis-
utive rest between each working day; crimination’. The reader can take it that this word will
refer to discrimination in all the areas covered by dis-
■ weekly rest: for young workers the general require- crimination law. There will be sometimes a special men-
ment is two days off per week; tion of disability discrimination because here there are
special features, such as the types of disability covered
■ in-work rest breaks: for young workers the general and the need so far as disabled people are concerned for
provision is 30 minutes if the working day is longer the employer to make adjustments to enable a disabled
than 41/2 hours; person to do the job at least as far as is practicable. There
are no such adjustment provisions in the other areas of
■ paid annual leave: adult and young workers are discrimination law.
treated the same.

Young Workers Directive

The above-mentioned provisions of the WTR were made
under a UK opt-out from the Young Workers Directive
(94/33/EC). Government regulations have now amended
the WTR 1998. Young workers (those over the minimum
school leaving age but under 18) are not allowed to work

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The areas of discrimination covered by UK discrim- Discrimination by employment agencies themselves is
ination law are set out below: also covered.

■ Sex discrimination and marital discrimination, which As regards the terms of the contract of employment,
is discrimination mostly against women, though men it is unlawful to discriminate against an employee on the
are covered by the law, and discrimination against a grounds listed above in terms of the employment which
person because the person is married. is given to him or the terms of access to opportunities
for promotion, transfer or training, or to any other benefit,
■ Race discrimination, which is discrimination on the facilities, or services, or subjecting him to any other detri-
grounds of race, colour, nationality or ethnic or national ment. Thus, it is unlawful to discriminate in regard to
origins. matters such as privileged loans, and mortgages by banks
and building societies, and discounts on holidays given
■ Sexual orientation, which is discrimination on the to employees of travel firms.
grounds that a person is gay, heterosexual or bisexual.
A person who takes on workers supplied by a third
■ Religion or belief, which is discrimination on grounds party, rather than employing them himself or herself, is
involving religion, religious belief or similar philo- obliged by the Acts not to discriminate in the treatment
sophical belief. Atheism may fall within the defini- of them or in the work they are allowed to do. This means
tion but political beliefs will not. In deciding whether that temporary staff supplied by an agency are covered
discrimination law should be applied, tribunals will by the anti-discrimination provisions.
most likely look at factors such as collective worship,
a clear belief system and/or a profound belief affect- Exceptions
ing a person’s way of life or view of the world.
There are some circumstances in which it is lawful to
■ Transsexuality, being discrimination against persons discriminate and these will now be considered.
who have gender dysphoria and wish to live and work
in their adopted sex. 1 Genuine occupational qualification or requirement.
So far as sex discrimination is concerned, an employer
■ Disability, being discrimination against a person on may confine a job to a man where male sex is a ‘genuine
the grounds of his or her disability. occupational qualification’ (GOQ) for a particular job.
This could arise, for example, for reasons of physiology
■ Age discrimination, which is discrimination on the as in modelling male clothes, or authenticity in enter-
ground of being too old or too young for a particular tainment, as where a part calls for an actor and not an
appointment and, in the case of age, too old to go on actress. Sometimes a man will be required for reasons of
working. decency or privacy, such as an attendant in a men’s lavat-
ory. Sometimes, too, where the job involves work out-
Although we consider here discrimination in employ- side the United Kingdom in a country whose laws and
ment, these discrimination laws apply also to engagement customs would make it difficult for a woman to carry out
in a partnership business or profession. the job, being a male may be a GOQ. As regards marital
status, it may be reasonable to discriminate in favour of
In recruitment and selection of a man or a woman where the job is one of two held by a
employees married couple, as where a woman is a housekeeper liv-
ing in with her husband who is employed as a gardener.
Offers of employment
There are, of course, some situations where female sex
It is unlawful for a person in relation to an employment would be a GOQ for a certain type of job, as the follow-
by him at a place in England, Wales or Scotland and ing case illustrates.
on British ships, aircraft and hovercraft to discriminate
against men or women on the above stated grounds: Sisley v Britannia Security Systems (1983)

■ in the arrangements made for the purpose of deciding The defendants employed women to work in a security
who should be offered the job; or control station. The claimant, a man, applied for a vacant
job but was refused employment. It appeared that the
■ in the terms on which the job is offered; or
■ by refusing or deliberately omitting to offer the job.

‘Arrangements’ is a wide expression covering a range
of recruitment techniques, e.g. asking an employment
agency to send only white applicants, or male applicants.

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women worked 12-hour shifts with rest periods and that undertaken without inconvenience if the post-holder was
beds were provided for their use during such breaks. a man.
The women undressed to their underwear during these
rest breaks. The claimant complained that by advertis- A major point of interest in the case relates to the con-
ing for women the defendants were contravening the tention that a GOQ could not be applied because the
Sex Discrimination Act 1975. The defendants pleaded relevant aspects of the job, i.e. those involving decency
genuine occupational qualification, i.e. that women were or privacy such as showing new members around saunas
required because the removal of the uniform during rest and changing rooms, could have been carried out by
periods was incidental to the employment. female staff. This argument failed because the business
was recruiting for start-up staff at the particular branch
The Employment Appeal Tribunal accepted that and at the time of refusal of the post there were no
defence. The defence of preservation of decency was, in female staff actually in employment there. Section 7(4) of
the circumstances, a good one. It was reasonably incid- the SDA 1975 states that the GOQ defence does not
ental to the women’s work that they should remove their apply where the employer ‘already has’ (male) (female)
clothing during rest periods. employees capable of carrying out the GOQ duties.
There would appear to be a gap in discrimination law in
Comment. However, s 27(4) of the 1975 Act imposes a the sense that if the branch had been in operation the
duty on employers to take reasonable steps to avoid GOQ reference may not have applied, leaving the male
relying on the GOQ exceptions. Thus, in Etam plc v applicant discriminated against.
Rowan (1989) Steven Rowan applied for a vacancy as a
sales assistant in Etam’s shop in Glasgow which sold As regards race, it is lawful to discriminate where there
only women’s and girls’ clothing. He was not considered is a GOQ for the job as, for example, in the employment
for the post because of his sex and complained to an of a West Indian social worker or probation officer to
employment tribunal. There was later an appeal by the deal with problems relating to young West Indians. Other
employer to the Employment Appeal Tribunal (EAT). The instances are dramatic performances or other entertain-
EAT affirmed the employment tribunal’s award of £500 ment, artists or photographic models and employment
to Mr Rowan. He had been discriminated against on the in places serving food or drink to be purchased and
grounds of sex. The EAT found that he would have been consumed on the premises by the public. Thus, being
able quite adequately to carry out the bulk of the job of Chinese is a GOQ for employment in a Chinese restaur-
sales assistant. Such parts as he could not carry out, ant, but not necessarily in a ‘take-away’.
such as attendance on women in fitting rooms for the
purpose of measuring or otherwise assisting them, could The law sometimes refers to genuine occupational
easily have been done by other female sales assistants requirement (GOR) as it does in religion or belief and
without causing any difficulty or inconvenience to the sexual orientation. As regards religion or belief, there may
employer. It is also worth noting that in Wylie v Dee & Co be a GOR where the employer has an ethos based upon
(Menswear) Ltd (1978) a woman was refused employ- a particular religion or belief, such as a denominational
ment in a men’s tailoring establishment in which the school. If the employer can show that a particular reli-
rest of the staff were men because it was considered gion or belief is a requirement of the job, then a GOR
inappropriate for her to measure the inside legs of male may be applied to exclude applicants of other faiths or
customers. An employment tribunal decided that she had none.
been discriminated against because those measurements
could have been carried out by other male employees. As regards sexual orientation, it may be lawful to treat
a gay person differently where the work is in an area
A further illustrative example from case law is provided such as the Middle East where homosexuality is illegal
by Lasertop Ltd v Webster (1997) which also reveals and may lead to proceedings against gay men, lesbian
a gap in discrimination law. In that case a man’s com- women and bisexuals. The law also allows difference in
plaint of sex discrimination, made when he applied for treatment where the work is for the purposes of organ-
an appointment as a sales staff/trainee manager at a ised religion.
women’s health club and was told that only female staff
would be employed, failed. The employer was entitled to The age discrimination regulations allow for excep-
rely on the defence that being a woman was a ‘GOQ’ for tions based on a genuine occupational requirement. The
the post in order to preserve decency and/or privacy. nature of the contract or the context in which it is car-
The EAT ruled that it could not be said that the holding ried out are relevant. Thus it would not be unlawful to
of the post, with duties that would involve showing
prospective members around the premises, could be

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refuse an applicant aged 80 employment in a pantomine covered where, according to the House of Lords in
as Peter Pan! Lawson v Serco Ltd (2006), the employee is recruited to
work abroad but in what amounts to an extra-territorial
2 Other major exceptions. These are as follows: enclave in a foreign country, as in Mr Lawson’s case. He
was working for a private firm at an RAF base on Ascen-
(a) Private households. Race discrimination is not unlaw- sion Island.
ful where the employment is in a private household.
Sex and marital discrimination is now unlawful even (c) Special cases. The anti-discriminatory rules apply to
in private households (Sex Discrimination Act 1986). Crown appointments. However, certain public sector jobs
However, the 1986 Act provides that sex discrimination are not entirely covered by the discrimination provi-
may take place where the job is likely to involve the sions, e.g. there may be discrimination as regards height
holder of it doing his work or living in a private house in the police and prison services. The armed forces are
and needs to be held by a man because objection might given protection except where sex discrimination is neces-
reasonably be taken to allowing the degree of physical sary to ensure ‘combat effectiveness’. The legal barriers
or social contact with a person living in the house or to men becoming midwives have been removed.
acquiring the knowledge of intimate details of such a
person’s life. Other special cases are set out in s 5 of the Employ-
ment Act 1989 under which the appointment of head
(b) Work outside Great Britain. Discrimination legisla- teachers in schools and colleges may be restricted to
tion does not apply where the employment is wholly members of a religious order where such a restriction is
outside Great Britain. However, it does apply to work on contained in the trust deed or other relevant instrument.
a British ship, aircraft or hovercraft unless the employ- Furthermore, a university professorship may be restricted
ment is wholly outside Great Britain. to a man if there is a statutory requirement that the
holder of the post should also be a canon. In practice
As regards employment outside Great Britain, it this will apply only to certain professorships of Divinity.
should be borne in mind that under Art 39 of the Treaty Finally, academic appointments in university colleges
of Rome, which is directly applicable, there must be no may be restricted to women where this was required
discrimination on grounds of nationality against work- when the 1989 Act came into force. In practice the pro-
ers from the EU member states so that discrimination vision applies to two colleges at Oxford – Somerville and
legislation must be applied to protect them. Thus, in St Hilda’s – and to two at Cambridge – Lucy Cavendish
Bossa v Nordstress (1998) a person of Italian nationality and Newnham. The Secretary of State has power to
living in Great Britain was not interviewed for aircraft remove these exemptions by statutory instrument.
cabin crew to be based in Italy. The EAT decided that his
claim for racial discrimination must be heard. The deci- (d) Positive discrimination is allowed in regard to any
sion means, in effect, that the employment outside Great payments made or special conditions allowed in the
Britain exclusion does not apply where the employment training of single (or lone) parents. Thus payment of child
is in another European Union member state. care costs for single parents in the context of special
training and employment and enterprise schemes does
The previous rule that the UK discrimination provi- not amount to unlawful discrimination against married
sions did not apply where the job was ‘wholly or mainly’ people under the 1975 Act.
outside Great Britain was changed by the Equal Oppor-
tunities (Employment Legislation) (Territorial Limits) Other exceptions also known as ‘positive action’ are
Regulations 1999 (SI 1999/3136), so that the employ- designed to help women (and, less likely, men) compete
ment must now be wholly outside Great Britain. This on equal terms in the labour market. Thus an employer
strengthens workers’ rights. can run single sex training courses so as to equip women
(or men) with skills for specific jobs in which they are
It is important to note that the 1999 regulations (often under-represented. Selection must nevertheless always
referred to as the Posted Workers Regulations) apply be made on merit. Similar arrangements may be made
UK discrimination and employment protection law for under-represented racial groups.
only to those who are basically employed in the UK but
are posted abroad. Those who are employed abroad, as Types of discrimination
distinct from employed here but posted abroad and
working wholly abroad, may in rare circumstances be There are two forms of discrimination as follows:

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1 Direct discrimination, which occurs where an em- although a further advertisement had appeared for the
ployer or prospective employer treats a person less fav- job on that day. An employment tribunal decided that the
ourably than another on the stated grounds, as where an evidence established that Mr Johnson had been dis-
employer refuses, on discriminatory grounds, to grant criminated against on the grounds of race.
a suitably qualified person an interview for a job. In
addition, the segregation of workers once in employ- Bloomberg Financial Markets v
ment on discriminatory grounds is also unlawful direct Cumandala (2000)
discrimination.
C applied for a post in Madrid but the company did
Examples are provided by the following cases. not offer him the job because he wanted to return to
London every weekend to see his wife. C was black and
Coleman v Skyrail Oceanic Ltd (1981) of Angolan nationality. He claimed marital and race
discrimination. The EAT ruled that there was no marital
The claimant, Coleman, who was a female booking clerk discrimination. The employer simply felt that C could not
for Skyrail, a travel agency, was dismissed after she give the necessary commitment to the job given the
married an employee of a rival agency. Skyrail feared weekly commuting. The employer would have taken the
that there might be leaks of information about charter same view if, for example, C had been a keen football
flights and had assumed that her dismissal was not fan and had wished to commute every weekend in the
unreasonable since the husband was the breadwinner. season to see his favourite team. However, in appointing
The Employment Appeal Tribunal decided that the dis- a white person, the view had been expressed that he
missal was reasonable on the basis that the husband would ‘fit in better’. The EAT ruled that there had, in con-
was the breadwinner. However, there was an appeal to sequence, been unlawful race discrimination in that
the Court of Appeal which decided that those provisions aspect of the employment.
of the Sex Discrimination Act which dealt with direct dis-
crimination and dismissal on grounds of sex had been Comment. Shorter-distance commuting may result in a
infringed. The assumptions that husbands were bread- successful claim for marital discrimination in the case
winners and wives were not were based on sex and were where an applicant wants to see his family at weekends.
discriminatory. The claimant’s injury to her feelings was
compensated by an award of £100 damages. The following fact situations are offered as further
examples of direct discrimination.
Comment. The claimant was also held to be unfairly
dismissed having received no warning that she would be Examples
dismissed on marriage. The additional and discriminat-
ory reason regarding the breadwinner cost the employer ■ A black clerk applies to a bank for a job. He is the only
a further £100. suitably qualified applicant. If he had been white, the
interviewer would have appointed him. In the event,
Johnson v Timber Tailors (Midlands) no appointment is made and it is decided to readvert-
(1978) ise. The bank has directly discriminated against the
black applicant. There can be a finding of direct dis-
When the claimant, a black Jamaican, applied for a job crimination against an employer even if he has no
with the defendants as a wood machinist the defendants’ hostile motive.
works manager told him that he would be contacted in a
couple of days to let him know whether or not he had ■ A firm wishes to appoint a woman to a post as senior
been successful. Mr Johnson was not contacted and, manager. She will be dealing mainly with one particu-
after a number of unsuccessful attempts to get in touch lar client who says he would prefer not to work with a
with the works manager, was told that the vacancy had woman. The firm therefore appoints a man instead.
been filled. Another advertisement for wood machinists This is direct discrimination.
appeared in the paper on the same night as Mr Johnson
was told that the vacancy had been filled. Nevertheless, ■ A company wishes to recruit a black woman as
Mr Johnson applied again for the job and was told that supervisor of a typing pool but there is a change of
the vacancy was filled. About a week later he applied mind when some of the white employees object. This
again and was again told that the job had been filled is direct racial discrimination.

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2 Indirect discrimination, as where an employer has Comment. The other side of the coin is illustrated by
applied requirements or conditions to a job but the abil- Panesar v Nestlé Co Ltd (1980) where an orthodox Sikh,
ity of some persons to comply because of sex, disability, who naturally wore a beard which was required by his
marital status or race is considerably smaller and cannot religion, applied for a job in the defendants’ chocolate
be justified. factory. He was refused employment because the de-
fendants applied a strict rule under which no beards
Examples are provided by the following cases. or excessively long hair were allowed on the grounds
of hygiene. The claimant made a complaint of indirect
Price v The Civil Service Commission discrimination but the defendants said that the rule was
(1977) justified. The Court of Appeal decided that as the defend-
ants had supported their rule with scientific evidence
The Civil Service required candidates for the position of there was in fact no discrimination.
executive officer to be aged between 171/2 and 28 years.
Belinda Price complained that this age bar constituted A further example is offered. A company has a strict
indirect sex discrimination against women because women office rule under which women may not wear trousers in
between those ages were more likely than men to be the office. A Muslim woman applies for a job with the
temporarily out of the labour market having children or company but is unable to comply with this rule because
caring for children at home. The Employment Appeal religion and custom require that she must cover her legs.
Tribunal decided that the age bar was indirect discrim- The proportion of the members of her racial or religious
ination against women. The court held that the words group who can comply with the requirement is consid-
‘can comply’ in the legislation must not be construed erably smaller than the proportion of other persons who
narrowly. It could be said that any female applicant could can apply. There is therefore indirect discrimination,
comply with the condition in the sense that she was not either on the grounds of race or religion or belief. Nearly
obliged to marry or have children, or to look after them – all the ‘dress’ cases which were formerly brought under
indeed, she might find someone else to look after them race discrimination could now be brought under the
or, as a last resort, put them into care. If the legislation religion or belief regulations. However, a pure race dis-
was construed in that way it was no doubt right to say crimination might occur where the employer placed an
that any female applicant could comply with the con- unnecessarily high standard of English on a job which
dition. However, in the view of the court, to construe the excluded many recent immigrants of a different race.
legislation in that way appeared to be wholly out of sym-
pathy with the spirit and intention of the Act. A person Transsexuals
should not be deemed to be able to do something merely
because it was theoretically possible; it was necessary EU law does cover and prohibits discrimination that
to decide whether it was possible for a person to do so results from an employee’s gender reassignment. The
in practice as distinct from theory. authority is the ruling of the ECJ in P v S and Cornwall
County Council (1996) where the court decided in favour
Bohon-Mitchell v Council of Legal of a transsexual who was dismissed after a sex change. The
Education (1978) decision put the UK government under some pressure
to clarify the law and the Sex Discrimination (Gender
The claimant, an overseas student, complained of dis- Reassignment) Regulations 1999 (SI 1999/1102) were
crimination in regard to a requirement of the defendants introduced to cover discrimination on grounds of gender
that a student would have to undergo a 21-month course, reassignment in employment and vocational training.
as opposed to a diploma of one year, to complete the
academic stage of training for the Bar where he did not In this connection, mention should be made of the
have a UK or Irish Republic university degree. This rule Gender Recognition Act 2004. Under the Act transsex-
was regarded by an industrial tribunal to be discriminat- uals who want to register under their new status will be
ory because the proportion of persons not from the UK able to apply for registration. It is not necessary for them
or Irish Republic who could comply was considerably to have had surgery but they will have to have lived for
smaller than persons from the UK or Irish Republic who at least two years in the new gender and intend to con-
could and the rule was not justifiable on other grounds. tinue to live in it. They will also have to meet medical
The claimant satisfied the tribunal that there had been
indirect discrimination.

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criteria, so gender dysphoria must be diagnosed. They inspection to any person on payment of a fee and copies
will then be allowed to apply for a replacement birth may also be obtained.
certificate and allowed to marry in the adopted sex.
Transsexuals will retain the rights and obligations incurred Under s 6 of the Sex Discrimination Act 1986 terms of
under their former gender, i.e. as mother or father. The contracts, collective agreements and organisational rules
granting of a replacement birth certificate will impact on which are discriminatory on the grounds of sex, e.g. not
company pension scheme requirements. The fact that employing women with children, or bonus schemes
no surgery is required means that the law will apply to which exclude part-timers, most of whom are women,
self-defined transsexuals subject to satisfying the gender are void. However, there was no mechanism for indi-
dysphoria requirement. viduals to get a legal ruling on these provisions. As a result
of an amendment to s 6 by what is now the ERA, job
Workers with HIV, AIDS or MS seekers, employees and prospective members of trade or
professional organisations can now ask a tribunal to give
There is legislation prohibiting discrimination against a declaration that a term is void. The tribunal cannot
employees with HIV or AIDS (Disability Discrimination amend the term. The parties must decide what should
Act 2005). Workers with a progressive condition, such fill the gap.
as HIV or AIDS, are deemed disabled from the moment
of diagnosis. Multiple sclerosis is also included. The Equality Act provides for the establishment of
a Commission for Equality and Human Rights. The
Remedies Commission will take over the responsibilities of the three
former equality commissions: Commission for Racial
Allegations of discrimination may be the subject of a Equality, the Disability Rights Commission and the Equal
complaint to an employment tribunal which may, among Opportunities Commission. The new Commission became
other things, award monetary compensation. Also, as we operative in 2007. A key aim of the commission is to end
have seen, the Commission may apply to the courts for discrimination and harassment of people because of
judicial review, as in R v Secretary of State for Employ- their disability, age, religion or belief, race, gender, or
ment, ex parte Equal Opportunities Commission (1994) sexual orientation.
where the application, if successful, would help in work-
ing towards the elimination of discrimination. It is worth noting here the Equality Act 2006. The Act
provides for the establishment of a Commission for
The Equal Opportunities Commission was respons- Equality and Human Rights. The Commission will take
ible for keeping under review the working of discrim- over the responsibilities of the Commission for Racial
ination legislation. The Commission for Racial Equality Equality, the Disability Rights Commission and the Equal
had a similar function in terms of racial discrimination Opportunities Commission. The new Commission will
and had the authority to carry out formal investiga- become operative in 2007. A phased entry is proposed
tions into firms where discrimination was alleged. Both for the existing Commissions, with all of them being
Commissions have been incorporated into the new single incorporated by 2008/09.
watchdog, the Commission for Equality and Human
Rights. So far as individuals affected are concerned, the most
usual remedy for a successful complaint of discrimina-
The employer may appeal to an employment tribunal tion is an order for payment of compensation to the
within six weeks of service of the notice. If there is no victim. The tribunal can also make a recommendation
appeal, or the employment tribunal confirms the notice, as regards action the employer can take to remedy the
then the employer must comply with it; if he does not situation, which can lead to a further award of compensa-
the relevant Commission may ask the county court for tion if there is a failure to comply. Recommendations
an injunction which, if granted, will make an employer are, in practice, rarely made. Money compensation can
who ignores it in contempt of court and he may be fined include compensation for injured feelings and aggravated
and/or imprisoned for that offence. damages, and there is no overall limit.

The Commissions are also required to enter non- The complainant must make an application to a tri-
discrimination notices which have become final in a bunal within three months after the act complained of.
Register. Copies of the Register are kept in Manches- The tribunal has power to extend this period on the
ter (Equal Opportunities Commission) and in London ground that it is just and equitable. Extensions are not often
(Commission for Racial Equality), and are available for granted but a spectacular example occurred in Afolabi v

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Southwark London Borough Council (2003). The com- this, if not complied with, may lead to proceedings being
plainant brought a claim for racial discrimination. He taken by the Commission in an employment tribunal.
was an accountant and claimed his pay grading was lower If the employment tribunal accepts the contention of
than comparable white workers in similar employment. discrimination and yet the advertiser does not comply
As part of the procedure he had access for the first time but continues to advertise in a discriminatory way, the
to his personnel file. This showed that he had been Commission may take proceedings in the county court
turned down for promotion nine years earlier, though for, among other things, an injunction. If this is not
he was the best candidate. The Court of Appeal extended complied with, the advertiser is in contempt of court
the time limit to allow him to bring a claim in regard to and may be punished by a fine or imprisonment unless
the promotion discrimination. he complies.

Relationship between the Sex Discrimination In addition, it is a criminal offence to place a discrim-
Act and the Equal Pay Act inatory advertisement and those who do so may be tried
by magistrates and are subject to a fine. The person who
The two Acts do not overlap. Complaints of discrimina- publishes the advertisement, e.g. a newspaper proprietor,
tion in regard to pay and other non-monetary matters also commits a criminal offence. However, he may not
governed by the contract of employment, such as hours know precisely that the advertisement is discriminatory.
of work, are dealt with under the Equal Pay Act and For example, without a knowledge of the advertiser’s busi-
complaints of discrimination in regard, for example, to ness, he cannot really know whether there is a GOQ or
access to jobs are dealt with under the Sex Discrimina- not. Accordingly, he is given a defence to any criminal
tion Act. A complaint to an employment tribunal need charge if he can show that in publishing the advertisement:
not be based from the beginning on one Act or the other.
A tribunal is empowered to make a decision under (a) he relied on a statement by the person placing it
whichever Act turns out to be relevant when all the facts to the effect that it was not unlawful and on the face
are before it. of it might come within one of the exceptional
cases; and
Discriminatory advertisements for employees
(b) it was reasonable for him to rely on that statement.
Discrimination legislation makes it unlawful to place
advertisements for employees which are discriminatory By reason of a section inserted in the Disability
unless they relate to a recognised exceptional case, as Discrimination Act 1995 by the Disability Discrimina-
where, for example, there is a GOQ. Thus job descrip- tion Act 1995 (Amendment) Regulations 2003 (SI 2003/
tions such as ‘waiter’, ‘salesgirl’, ‘stewardess’ or ‘girl 1673), it has, since 1 October 2004, been unlawful to
friday’ have largely disappeared from our newspapers publish or cause to be published a disability discrim-
and one now finds the descriptions ‘waiter/waitress’ or inatory advertisement inviting applications for a job
the expression ‘male/female’ as indicating that both sexes or for training or other relevant employment benefit.
are eligible for employment. However, one still sees The changes to be effected by the new Act are needed
advertisements which are clearly intended to attract because the above provisions did not prohibit third par-
female applicants which, nevertheless, remain within the ties such as newspapers from publishing discriminatory
law, e.g. ‘publishing director requires sophisticated advertisements on behalf of the persons placing them.
PA/secretary with style and charm who can remain cool The Act fills that gap and prohibits third-party publishers
under pressure’. from publishing such advertisements. Third parties have
a defence if they rely upon a statement by the person
Before legislation relating to discrimination came into placing the advertisement that it is not unlawful and
force, advertisements in the UK were discriminatory mainly it was reasonable to rely on that statement. It becomes
as regards sex, but obviously an advertisement which an offence for the person placing the advertisement to
said ‘Chinese only’ would be unlawful unless there was a knowingly or recklessly make a false statement as to the
GOQ as, for example, there would be where the advert- lawfulness of a relevant advertisement.
isement was for a waiter in a Chinese restaurant.
Age discrimination
As regards sanctions, the placing of discriminat-
ory advertisements may lead to the issue of a non- The Employment Equality (Age) Regulations 2006 (SI
discrimination notice by the appropriate Commission; 2006/1031) came into force from 1 October 2006.

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The regulations generally on age may still be lawful, though some lawyers are ques-
The regulations follow the existing discrimination regula- tioning this and there may well be tribunal cases.
tions on sex, race, religion or belief and sexual orientation:
Default retirement at age 65
■ Direct and indirect discrimination on grounds of age It will not amount to age discrimination if employers
are unlawful and so is victimisation and harassment. retire employees at or above age 65, where it is a genuine
retirement. Employers will be able to continue the employ-
■ There is an exception where there is a genuine occupa- ment of people beyond the default age. A retirement age
tional requirement where ‘possessing a characteristic below 65 will in general be unlawful. A lower age will
related to age is concerned’ provided it is proportionate still be possible but only if the employer can satisfy the
to apply that requirement in a particular case. objective justification test.

■ Positive action is allowed to encourage ‘persons of a In this connection the ruling of the EAT in Royal and
particular age’ to take advantage of employment oppor- Sun Alliance Group plc v Payne (2005) is instructive,
tunities where this ‘prevents or compensates for dis- although obviously not a case brought under the age
advantages linked to age suffered by persons of that regulations. Mr Payne’s contract provided for him to
age who do that work’. retire at 65. The employer changed the retirement age
unilaterally and without Mr Payne’s consent to 62 and
■ Claims may be brought before an employment tribunal then terminated Mr Payne’s contract at that age. Mr
and potential claimants may serve a questionnaire to Payne claimed successfully wrongful and unfair dismissal
obtain information from a potential respondent. The by reason of the termination of his contract at 62. The
county court will take claims in non-employment EAT agreed with the tribunal ruling, in an area where
areas, e.g. discrimination in further or higher educa- there had previously been no clear authority, that the
tion and trade union membership. normal retirement age cannot be earlier than the con-
tractual retirement age. Mr Payne’s claim was not pre-
■ Post-termination discrimination is made unlawful. vented by s 109(1)(a) of the ERA 1996 (no claim by those
■ Employees are obviously covered but also included who have reached retirement age).

are the self-employed, partners in a partnership, con- Comment. The case has become of importance now
tract workers, office holders, members of trade organ- the age regulations are in force because a retirement age
isations and those in vocational training. below 65 will be forbidden unless the employer can
justify it on objective grounds. The Payne case shows
Specific exceptions what will happen to employers who do retire workers at
Regulation 3 provides that discriminatory treatment may a lower age and who cannot justify this.
be justified if it is a proportionate means of achieving a
legitimate aim. This applies to direct and indirect dis- Fair dismissal only on planned retirement date
crimination. Examples given are: The former upper limit for bringing unfair dismissal
claims (i.e. 65) is removed. However, reg 29 states that it
■ the setting of age requirements to ensure the protec- will not be unlawful to dismiss an employee who is over
tion of or to promote the vocational integration of 65 where the dismissal is retirement. For a dismissal on
people in a particular age group; the planned retirement date to be fair regardless of the
employee’s age, an employer who intends to dismiss for
■ the fixing of a minimum age to qualify for certain retirement must meet the following criteria:
advantages linked to employment or an occupation
so as to recruit or retain older people; ■ The employer must give the employee not more than
one year’s and not less than six months’ notice of the
■ the fixing of a maximum age for recruitment or intention to retire him or her; and comply with a new
promotion which is based upon the training require- duty under Sch 7 to the age regulations to notify the
ments of the post in question or the need for a rea- employee that he or she has a right to make a request
sonable period in post before retirement. not to retire on the intended date.

Regulation 26 gives a further exception where employers ■ If the employee makes a request, no more than six
must comply with other legislation, e.g. the law that months and no less than three months before
prohibits under-18s from being employed in bars where
alcoholic drinks are sold.

The provisions relating to the national minimum
wage are unaffected and the different hourly rates based

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retirement date, to continue working the employer Comment. The exception covers only benefits based on
must consider it and meet with the employee within length of service and not pay or other differentials on
a reasonable time to discuss the request. If the em- the ground of age. Neither does it extend to experience-
ployer refuses the request the employee has a right of based criteria which may indirectly discriminate and
appeal and another meeting must be held before the which employers will have to justify objectively.
retirement dismissal takes effect.
■ Where the employer fails to follow the above proced- The Employment Equality (Age) Regulations 2006
ures the employee may claim compensation of up to (Amendment) Regulations 2008 (SI 2008/573) came into
eight weeks’ pay calculated under the usual ERA 1996 force on 6 April 2008. Complainants, who now bring a
formula, currently capped at £330 a week. claim of discrimination under the regulations, will be
■ The employee must specify whether the request is entitled to the extra time allowed by the Employment
to stay on indefinitely, for a stated period or until a Act 2002 (Dispute Resolution) Regulations 2004 to lodge
stated date. The request to stay on must be in writing a questionnaire.
and an employee can only make one request.
■ At the meeting to consider the request the employee Other employee rights
has a right to be accompanied by a fellow worker but ■ There will be no upper age limit for claiming redun-
not a union representative. If the fellow worker is not
available the employee can postpone the meeting to a dancy payments. The formula will be recalculated but
date convenient to the parties and within seven days the 20-year maximum service taken into account will
of the date set by the employer. remain.
■ The employer is under no obligation to give a reason ■ Age discrimination in recruitment will be permitted
for rejecting a request to stay on. It is advisable, how- where candidates have reached 65.
ever, to give reasons since failure to do so may lead ■ As regards pensions there are special rules in Sch 2 to
to challenges under other discrimination laws, e.g. the age regulations: e.g. it will not be unlawful to fix
disability. an age for admission to a pension scheme or for benefits
or to have different contribution requirements.
Service-related pay and benefits ■ Wherever the dismissal is for a reason other than
Older employees are more likely to qualify for these retirement, the statutory dismissal and grievance pro-
benefits (e.g. extra holiday entitlement) which might be cedures will apply.
regarded as discrimination against those of a younger
age. To cover this, the age regulations include specific Finally, BERR envisages a future where there will be no
exemptions and one general provision as follows: default retirement age because of trends in life expect-
ancy and will review the matter again in 2011.
■ nothing will prevent an employer from using length
of service up to a maximum of five years as a criterion The Disability Discrimination Act 1995
for awarding benefits, those with under five years’
service being denied them; The recruitment implications of this Act are set out below.

■ the benefits must, however, be awarded to all employees Applicants for employment
who meet the length of service requirement and whose It is unlawful under s 4 of the Act to discriminate against
circumstances are not otherwise materially different; a disabled person:

■ there is a general exception for all other service- ■ in the arrangements, including the advertisements,
related benefits provided that the employer reason- made for deciding who should be offered employment
ably believes that awarding benefits in this way fulfils and its terms;
a business need;
■ by refusing to offer or deliberately not offering
■ where an employer is following statutory benefits based employment.
on age this is lawful or where he or she is following
more generous benefits in the statutory situation based In other words, in deciding whom to interview, whom
on length of service this will be lawful. This will apply to offer employment to and the offer’s terms, s 5 carries
in particular to statutory redundancy payments or more an employer’s defence which allows discrimination if,
generous contractual redundancy arrangements. but only if, the reason for it is both material to the
circumstances of the case and substantial. Thus, less
favourable treatment may be justified if the employer

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believes on reasonable grounds that the nature of the lowing a transfer of undertakings. Non EEA (European
disability substantially affects the disabled person’s abil- Economic Area) students must get permission from the
ity to perform the required task(s). local Jobcentre for a specific job, and as regards uni-
versity students permission may be obtained from the
It is also against the law for trade associations, trade Department for Education and Employment.
unions and professional bodies to treat a disabled person
less favourably than someone else. The UK Border and Immigration Agency, set up in
April 2008, is responsible for issuing the Code of Practice
The Act will receive further consideration later in this for all Employers on the Avoidance of Race Discrimination
chapter, but it will suffice to say here that employers are in Recruitment Practice While Seeking to Prevent Illegal
required to make adjustments in the working conditions Working. It can be accessed through the Home Office
and workplace to accommodate disabled persons but website: http://www.bia.homeoffice.gov.uk/employers/
cost may be taken into account in deciding what is rea- preventingillegalworking/
sonable (s 6).

Exceptions Illegal working: regulations
The employment part of the Act did not apply to
employers who employ fewer than 15 people but they The Immigration (Restrictions on Employment) Order
were encouraged to follow good practice guidelines. 2004 (SI 2004/755) is now in force. It contains new meas-
This exemption was removed from 1 October 2004 by ures of importance to employers. These are designed to
the Disability Discrimination Act 1995 (Amendment) tackle illegal working.
Regulations 2003. The Act does not apply to operational
staff employed in the armed forces, the police or prison Under the Asylum and Immigration Act 1996 (above)
services, the fire services or to anyone employed on it is an offence, punishable by a fine of up to £5,000 per
board ships, hovercraft or aeroplanes. Complaints must employee, to employ someone who does not have per-
be made to an employment tribunal within three months mission to live and work in the UK. Under s 8 of the
of the act complained of. Remedies are considered later 1996 Act, the employer has a defence if the employee
in this chapter. was, before the employment began, required to produce
certain documents. This order makes changes to s 8. The
The Asylum and Immigration Act 1996: main points for employers are:
illegal working
■ The employee must now produce either a ‘secure’
This Act is relevant in terms of recruitment. It con- document or a combination of other specified docu-
tains provisions designed to prevent illegal working by ments. ‘Secure’ documents include a UK passport or
immigrants, overstayers and those breaching their im- a national ID card issued by one of the current EU
migration conditions. Under regulations made by the member states, or Iceland, or Norway, or a document
Secretary of State employers must take steps to check confirming that the holder has indefinite leave to
the existence (but not the authenticity) of documents remain in the UK.
such as birth certificates or certificates of registration or
naturalisation to prevent illegal working. If such checks ■ If the above conditions cannot be met, the employee
have been carried out and illegal employment takes place must produce a combination of documents such as
nevertheless the employer is not liable. Failure to check an official document showing his or her National
responsibility can result in a fine on the employer of Insurance number together with a birth certificate.
up to a maximum of £5,000. In the case of a corporate
employer, directors and other officers and management ■ The employer is required to take copies of the relev-
of the company may be similarly prosecuted if they have ant parts of the documents and must be satisfied
connived at the offence or it has been committed as a that any photo or date of birth is consistent with the
result of their neglect. There is no need to check existing appearance of the employee. Where names given on
employees. The Act does not apply to employees under the documents differ, a further document must be
the age of 16 or to self-employed or agency workers. produced to explain the difference.
Furthermore, employers are not required to check the
status of employees who come to the organisation fol- In addition, the Home Office has announced that
nationals from the EU states that joined on 1 May 2004
will be allowed to work in the UK only if they register
with the Home Office.

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Immigration, Asylum and Nationality – a custodial sentence up to six months – seven years;
Act 2006 – a custodial sentence between six months and 30

This Act received Royal Assent on 30 March 2006. It months – ten years.
includes new measures to prevent illegal working. Under
s 8 of the Asylum and Immigration Act 1996 (see above) Other sentences, e.g. four years for robbery, are never
it is currently a criminal offence punishable with a fine subject to rehabilitation. Employers have to register with
of up to £5,000 to employ a person who does not have the CRB at a current cost of £300 and disclosure is at the
permission to live and work in the UK. This Act repeals rate currently of £31 per request. As regards standard
s 8 and introduces a new scheme of civil penalties disclosures and enhanced disclosures, these will be sent
including fines of up to £2,000 per illegal employee and to the registered organisation and the applicant for a
a possible two-year custodial sentence and unlimited post who should be, in proper practice, an applicant
fine for those found knowingly to have used or exploited who has been offered the post subject to the request. The
illegal workers. The employer may be excused from pay- potential employer pays the fee and advertisements
ing a penalty if it complies with the requirements of an should state that successful candidates will be asked to
order to be made by the Home Secretary. The onus is on apply for a disclosure.
the employer to satisfy the Home Secretary that it can
establish an excuse for non-payment. So far as the basic disclosure is concerned, this is sent
only to the applicant for the post and it is a matter for
The Home Secretary is given power by the Act to him or her on receipt whether to show it to the potential
issue a code of practice for employers on how to avoid employer, though there can be withdrawal of the offer in
unlawful racial discrimination when applying these such a case. Employers must abide by a code of practice
provisions. drawn up by the CRB and must also have a policy in
place over the recruitment of ex-offenders.
Other matters relevant to recruitment
Disclosure that is not within the terms of the code
Criminal records could result in the employer falling foul of the Data Pro-
The government has set up the Criminal Records Bureau tection Act 1998 and/or the Human Rights Act 1998.
(CRB) under the provisions of Part V (ss 112–127) of
the Police Act 1997. It is put forward as a one-stop-shop Further information is available at: http://www.
for those going through recruitment and selection pro- crb.gov.uk and from the CRB Information Line 0870
cesses to access a variety of information sources to ascer- 9090 811.
tain criminal records.
Basic disclosure postponed
The Bureau is based in Liverpool and there are differ- A press release of 27 February 2003 is to the effect that,
ent levels of information that can be requested from the following a thorough review of the CRB by an independ-
CRB as follows: ent review team, the introduction of the above basic
level of checks is being postponed until demand has
■ Standard disclosure and enhanced disclosure. These are been fully met for the two higher levels of standard and
intended for those seeking to obtain posts involv- enhanced disclosure. These higher level checks have
ing regular contacts with children and/or vulnerable been available since March 2002. Basic disclosure is still
adults. not available.

■ Basic disclosure. This will show current convictions Medical examinations
only that are not spent by the passage of time under It was held in Baker v Kaye (1997) that a doctor retained
the Rehabilitation of Offenders Act 1974. The relev- by an employer to carry out pre-employment medical
ant times are as follows: assessments on prospective employees owed a duty of
– an absolute discharge – six months; care to those examined to take reasonable care in carry-
– a conditional discharge – one year or for the period ing out his examination and assessment of suitability for
of the order if longer; employment. If he fails to do so he may be sued by the
– an attendance centre order – one year after the prospective employee who is not, for medical reasons,
order expires; offered the job.
– a fine or community sentence – five years;
The above decision was reversed by the Court of
Appeal in the next case.

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Kapfunde v Abbey National plc (1998) i.e. in recruitment and selection. Here we are concerned
with discrimination during the course of employment.
K applied for a job with the defendants. She filled in a
medical questionnaire which was considered by a doc- As we have seen, discrimination on the grounds of
tor. He did not see K but concluded from the question- sex, race, disability, sexual orientation, religion or belief,
naire that she would have a higher than usual level of transsexuality, and age are unlawful. As regards employees,
absence. She did not get the job. It was held that Abbey it is unlawful to discriminate as regards opportunities
National was not liable, even if the doctor’s assessment for promotion, training or transfer to other positions or
could have been proved to have been negligent, be- in the provision of benefits, facilities or services or by
cause Abbey National did not employ him. As regards selection for redundancy or dismissal.
a claim against the doctor personally, it was held that,
contrary to Baker, there was no special relationship The following kinds of discrimination apply:
leading to a duty of care. Commenting on Baker, the Court
of Appeal said there was no duty of care in that case ■ direct discrimination;
either even though the doctor did actually see the claimant ■ indirect discrimination;
in that case before making an assessment. ■ victimisation; and
■ harassment.
Additionally, it was held by the Court of Appeal in
Kapadia v Lambeth London Borough Council (2000) Direct and indirect discrimination bear the same defini-
that an employee cannot legally prevent disclosure of tions in the employment context as they do in recruit-
medical records to the employer as part of expert evid- ment. Victimisation and harassment are normally found,
ence at a tribunal. The claim was for disability discrim- if at all, once employment has commenced and require
ination and the employee had consented to a medical treatment in this section of the text.
examination by the employer’s medical expert.
In direct and indirect discrimination a genuine occu-
Protection of children pational qualification or requirement if acceptable to the
The Protection of Children Act 1999 makes changes to tribunal can be a defence for the employer. In the case
the law with the object of creating a framework for iden- of disability discrimination, however, the employer is
tifying people who are unsuitable for work with children required, where possible, to make reasonable adjust-
and to compel, or in some cases to allow, employers to ments to overcome individual difficulties with the job.
access a single point for checking the names of people
they propose to employ in a post involving the care of Some general illustrative case law
children. This will involve permitting checks against
criminal records and two lists of people considered The concept of discrimination is wider than the rela-
unsuitable for work with children. The Department of tionship of employer and employee under a contract of
Health and the Department for Work and Pensions will service or apprenticeship. It includes employment ‘under
maintain the lists to be made via the Criminal Records a contract personally to execute any work or labour’
Bureau, which has come into operation under Part V of and no period of service is required before a claim can
the Police Act 1997. be brought. Rights are also given to partners in all
partnerships.
Other relevant provisions appear in Part II of the
Criminal Justice and Court Services Act 2000 where a An example of the broad nature of discrimination law
court has made a ‘disqualification order’ against a person is provided by Harrods Ltd v Remick; Harrods Ltd v
convicted of an offence against a child. Those who know- Seely; Elmi v Harrods (1996). In that case the three com-
ingly employ such persons in work with children com- plainants were dismissed by their employers from ‘shops
mit a criminal offence. within a shop’ at Harrods because Harrods said they
were in breach of the Harrods’ dress code: for example,
Discrimination once in employment in Mrs Seely’s case the wearing of a nose stud. Although
their contract of employment was not with Harrods,
We have already considered the law relating to discrim- that store was liable for sex discrimination when their
ination in the formation of the contract of employment, employers dismissed them because Harrods threatened
to withdraw the ‘shop within a shop’ concession. They
were ‘doing work for Harrods’ and were ultimately under
Harrods’ control, in view of the power to withdraw the
concession.

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The matter of the liability of the employer for the dis- were used to prevent the conduct. That was not the case
criminatory acts of third parties who are not employees in Jones. All reasonable steps to prevent the abuse were
arose in Burton v De Vere Hotels Ltd (1997). not used.

The EAT ruled that an employer could be regarded as Victimisation in employment
having subjected employees to harassment, in this case
racial harassment, by allowing a third party to inflict Under discrimination legislation it is unlawful to treat a
racial abuse on them in circumstances in which he could person less favourably than another because that person
have prevented the harassment or reduced the amount asserts rights under anti-discriminatory legislation or is
of it. The complainants were two black women who or has helped another to do so. Damages can be awarded
were employed as waitresses at a Round Table function where victimisation has occurred. An example is to be
at a hotel in Derby and were subjected to racially offens- found in Cornelius v Manpower Services Commission
ive remarks by Mr Bernard Manning, a guest speaker, (1986) where the Commission refused to consider C for
for example, about the sexual organs of black men and a permanent post for which she had applied because one
their sexual abilities. The employer did not withdraw of the references which she supplied indicated that she
them from the room at once as he should have done and was involved in an unresolved sexual harassment case.
was liable.
Harassment: generally
The House of Lords discredited this ruling in
MacDonald v AG for Scotland and Pearce v Governing Most complaints of harassment have involved sexual
Body of Mayfield School (2003). In MacDonald and harassment though Jones v Tower Boot Co Ltd (1997) pro-
Pearce the claims were brought for discrimination vides a particularly bad situation of racial harassment.
against homosexual people but it is the last part of their
Lordships’ ruling in those cases that has most signific- There is now a separate head of liability for harass-
ance. Although the matter did not arise directly and the ment in regard to race, disability, sexual orientation,
decision is not technically binding, the House of Lords religion or belief, and age. It is no longer an aspect of
stated that an employer would no longer be liable for detriment as it has been for many years. The definition,
failing to protect his or her employees from the acts of which results from the new regulations in these areas,
third parties, such as Mr Manning, for whose acts the described earlier in this chapter, is defined as follows.
employer is not vicariously liable, unless that failure is
in itself less favourable treatment on discriminatory Harassment occurs where on grounds of sex, race or ethnic
grounds. It appeared that the manager would not have or national origins or sexual orientation or religion or
withdrawn white waitresses from a situation involving belief or age or for a reason which relates to a disabled
sex discrimination. In fact, he said in evidence that the person’s disability – A engages in unwanted conduct which
matter of withdrawing the waitresses never occurred to has the purpose or effect of (a) violating B’s dignity;
him. So the employer is liable only for his own discrimina- or (b) creating an intimidating, hostile, degrading,
tion in this situation as where he or she leaves employees humiliating or offensive environment for B. The con-
in a discriminatory situation because he or she in effect duct is deemed to have the required effect if having
wishes to see them embarrassed or does not care whether regard to all the circumstances including in particular
they are. the perception of B it should reasonably be considered
as having that effect (author’s emphasis).
An employer is liable for the acts of his employees ‘in
the course of employment’. Employers have tried to Obviously, tribunals will be concerned to interpret
defend themselves by saying that their employees were this definition but it is likely that many of the cases on
not employed to discriminate but in Jones v Tower Boot ‘detriment’ will fit the new definition.
Co Ltd (1997) the Court of Appeal rejected this defence
saying a purposive interpretation must be put on ‘in Sexual harassment: a separate definition
course of employment’ for discrimination purposes. The
case involved the harassment of a 16-year-old black youth So far as sexual harassment is concerned, the Sex Dis-
who was called ‘Baboon’, ‘Chimp’ and ‘Monkey’ and crimination Act 1975 (Amendment) Regulations 2003
was branded with a hot screwdriver. An employer has a define harassment as where:
defence where he or she can show that best endeavours
■ unwanted conduct related to the sex of a person
occurs with the purpose or effect of violating the dig-
nity of that person; and

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■ any form of unwanted, non-verbal or physical con- criminatory harassment and bullying at work. It is also
duct of a sexual nature occurs with the purpose or possible to bring civil proceedings against offenders
effect of violating the dignity of a person, in particu- under the Act. (See Majrowski v Guy’s and St Thomas’s
lar, when creating an intimidatory, hostile, degrading, NHS Trust (2005)).
humiliating or offensive environment.
The ramifications of sexual orientation and
Harassment and case law religion or belief regulations

There are numerous cases of mainly sexual harassment. There is as yet no body of case law on the regulations
Most of these provide different fact situations of such in the above areas and so some guidance is given as set
harassment and cannot, because of their number, be out below.
reproduced here. However, a leading case containing
guidance from the EAT that can be applied in other An ACAS code of practice
cases even under the new definition of harassment is
Driskel v Peninsular Business Services Ltd (2000). Mrs ACAS has issued a code of practice to assist employers in
Driskel was an adviceline consultant with Peninsular. complying with the regulations on sexual orientation and
She claimed that she had been sexually harassed by the religion or belief. It can be accessed at: www.acas.org.uk.
head of her department. She alleged that she had been
subject to sexual banter and comments and that at an Sexual orientation
interview for promotion he had suggested that she wear The following matters arise.
a short skirt and a see-through blouse showing plenty of
cleavage. This advice was not accepted. She then refused 1 In recruitment. When advertising, employers should
to return to work unless the head of department was avoid unnecessary job criteria that could prevent persons
moved elsewhere. She was then dismissed and made a applying because of their sexual orientation. During the
claim to an employment tribunal. Her claim was re- interviewing process the employer should avoid ques-
jected because the incidents looked at in isolation were tions regarding marital status and children.
not enough. She appealed and the EAT substituted a
finding of sexual harassment and in doing so stated: 2 Vetting. It may be that the employer has, because of
the nature of the work, e.g. work with children, followed
■ the tribunal should have looked at the total or overall the vetting process through the Criminal Records
effect of the acts complained of; Bureau, and where this shows relevant offences, then
exclusion of a particular candidate would not be unlaw-
■ a woman’s failure to complain at times throughout the ful. Furthermore, sexual offences do not become spent
conduct should not necessarily be taken as significant; under the Rehabilitation of Offenders Act 1974 and
should be disclosed. However, where a criminal record
■ sexual ‘banter’ between heterosexual men cannot be bears no relationship to the job and does not affect skills
equated with, so as to excuse, similar comments towards or competence, exclusion may be unlawful.
a woman.
3 Genuine occupational requirement. As we have
Harassment: other legislation seen, it may sometimes be lawful to treat a gay person
differently as where the work is in an area such as the
When harassment is intended and studied the Criminal Middle East where homosexuality is illegal and may lead
Justice and Public Order Act 1994 creates a criminal to proceedings against gay men, lesbian women and
offence of intentional harassment. It appears as s 4A bisexuals. The regulations also allow difference in treat-
inserted into the Public Order Act 1986. The penalty on ment where the work is for the purposes of organised
conviction by magistrates is imprisonment for up to six religion.
months and/or a fine of up to £5,000.
4 Fitting in. Employers should not engage in stereotyp-
It is clear from the wording of s 4A that harassment in ing and make assumptions as to whether a person would
the workplace is covered. This means that employees fit into the organisation.
who are harassed at work are able to report the matter to
the police. 5 Harassment. Taunting by workers about the actual
or perceived sexual orientation of a fellow worker or
The Protection from Harassment Act 1997 is also those associated with him or her are illegal. Staff should
relevant. The Act is very wide ranging and covers dis-

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be informed that the organisation will not allow such 5 Dietary requirements. Employers must be sensitive
behaviour. to any special dietary requirements of staff who have
religious or belief convictions in terms of food. Staff
In all cases employers should look at and revise as canteens and corporate events should be monitored.
necessary their equal opportunities policy. Where food is brought to the workplace, separate stor-
age and heating facilities may have to be considered.
Comment. In Reaney v Hereford Diocesan Board of
Finance (2007), Reaney, a gay man, applied for a job as 6 Prayer, meditation and rest periods. Subject to it
a diocesan youth officer. The issue of homosexuality was causing problems for other workers, employers should
discussed during his interview. In the light of the Church’s agree to a request to make available a quiet place for the
position on this issue, he was asked whether he intended above. It may be necessary to consider storage of cerem-
to remain celibate for the duration of the post. He onial equipment. Permitted rest periods under working
declared that this was his intention. The applicant was time provisions may be required by some staff to fit a
the preferred candidate for the job. However, the Bishop religious obligation to pray at certain times of the day.
was not prepared to accept this assurance and he was
not appointed. The employment tribunal decided that 7 Changing facilities and showers. Some staff may
while the genuine occupational requirement was relev- because of religion or belief feel unable to undress with
ant to the case, the Bishop’s decision to reject Reaney’s others present. A private area may be a requirement for
assurance was unreasonable and therefore it found that this and showering purposes. To insist on same-sex chang-
Reaney had been the victim of discrimination. ing and shower facilities may be indirect discrimination.

Religion or belief 8 Staff discussion. There is no harm in sensible dis-
The following matters arise. cussion about religion or belief but offensive behaviour
should be prevented. Staff should be told that there must
1 In recruitment. Advice should be given to applicants be no harassment for which they and the employer could
as to the requirements of the job so that they can ascer- be liable.
tain whether there could be a clash with their religion or
belief, e.g. late Friday night working could conflict with Comment. The recent case of Lillian Ladele v Islington
those of Muslim or Jewish faith. Borough Council (2008) illustrates the difficulty of resolv-
ing conflicting rights in the context of claims of dis-
When interviewing, employers should avoid ques- crimination. Ladele, a registrar of births, marriages and
tions relating to an applicant’s religion or belief. deaths, was required to provide registration services for
civil partnerships, which had recently been introduced.
2 Genuine occupational requirement. As we have seen, The Council argued that it had a legal duty to offer such
the employer may have an ethos based upon a particular a service to same-sex couples. Ladele did not wish to
religion or belief such as a denominational school. If the be involved in the provision of this particular service
employer can show that a particular religion or belief is because it conflicted with her Christian faith. The Council
a requirement of the job then a GOR may be applied. claimed that her position discriminated against gay people,
while she counterclaimed that she was the victim of
3 Dress requirements. These must be justified by health religious discrimination. Ladele instituted legal proceed-
and safety or sound business reasons. Flexibility is the ings. The employment tribunal upheld her claim. The
key in other situations where staff can dress according to Council has expressed an intention to appeal against this
their religion or beliefs and still meet the requirements decision.
of the organisation. Thus the wearing of neck beads
should be allowed unless there is a health or safety Age discrimination
requirement.
Matters arising appear at p 525 .
4 Holiday leave. Certain workers may wish to take
accrued annual leave at specific times to celebrate festi- Enforcement
vals, spiritual observance or bereavement. This should
be allowed subject to genuine business requirements. As regards enforcement, if an unlawful act of discrimina-
Enforced holiday periods, e.g. Christmas closure for all tion is committed by an employee such as a personnel
staff, may have to be evaluated to avoid allegations of officer, the employer is held responsible for the act along
indirect discrimination.

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with the employee unless the employer can show that he leagues. The employment tribunal stated that the treat-
took all reasonable steps to prevent the employee from ment involved a callous disregard or concern for the
discriminating. If he can do this, only the employee is welfare of Ms Gilbank and her unborn child. They made
responsible. an award of £25,020 to Ms Gilbank and directed that
Ms Miles should be jointly and severally liable with
Individual employees who believe that they have been Hollywood for the damages. Ms Miles’s appeal to the
discriminated against may make a complaint to an EAT was dismissed.
employment tribunal within three months of the act
complained of. It is then the duty of a conciliation officer Comment. The form of the award means that Ms Miles
to see whether the complaint can be settled without could be required to pay the whole of the damages with
going to a tribunal. If, however, the tribunal hears the a contribution against Hollywood or Hollywood could
complaint, it may make an order declaring the rights be required to pay the damages with a contribution
of the employer and the employee in regard to the com- against Ms Miles. In addition, there is a joint liability.
plaint, the intention being that both parties will abide by The decision is a warning order to employees who engage
the order for the future. in discriminatory acts. It all depends upon the means of
the parties, of course, but many senior employees would
The tribunal may also give the employee monetary have sufficient saleable assets to pay the kind of sum at
compensation, and there is no limit on the award, and issue in this case and be left to seek a contribution of such
may additionally recommend that the employer take, amount as the court may decide from the employer.
within a specified period, action appearing to the tribunal
to be practicable for the purpose of obviating or reduc- Appeal note. Maxine Miles made an appeal to the Court
ing discrimination. of Appeal but it was dismissed. The EAT and the em-
ployment tribunal had on the facts found come to the
Discrimination: employee jointly and right conclusions.
severally liable
Burden of proof
As already noted, an unlawful act (other than a criminal
offence) under any of the relevant discrimination legis- By the insertion of a new s 63A into the Sex Dis-
lation committed by an employee in the course of crimination Act 1975 a ‘shifting’ burden of proof is
employment is treated as having also been done by the introduced into sex discrimination claims. By reason of
employer and judgment against the employer is the one separate regulations, the same burden of proof has been
which is normally paid by the employer. The employer applied to race, religion or belief, and sexual orientation
has a defence if all reasonably practicable steps were claims. In essence, the new section states that where an
taken to prevent the employee from doing the discrim- applicant has proved facts from which a tribunal could
inatory act. The Employment Appeal Tribunal has, how- conclude that the employer had committed an unlawful
ever, decided that a manager who consciously fostered act of discrimination the tribunal must uphold the com-
and encouraged a discriminatory culture at work by beha- plaint unless the employer proves that he or she did
viour and example against a pregnant employee was jointly not commit the relevant act. Therefore, while there is a
and severally liable together with the employer for burden of proof on the employee to begin with, it can
damages of £25,050. These were awarded to Ms Janine shift to the employer in the circumstances outlined by
Gilbank for discrimination she had suffered while work- the section.
ing for the employer, Quality Hairdressing Ltd, trading as
Hollywood. The appeal was against the decision to award The matter was raised in the following case.
joint and several liability (see Miles v Gilbank (2005)).
Barton v Investec Henderson Crosswaite
Ms Gilbank had worked for Hollywood as senior hair Securities Ltd (2003)
designer and trainee manager when she became preg-
nant. Once she informed Ms Miles, her line manager, of B had worked as a media analyst for the defendants for
that fact, the atmosphere at work changed from being over ten years. She brought proceedings alleging sex
happy and friendly to a situation where Ms Gilbank was discrimination and for equal pay. She claimed that over
subjected to a catalogue of behaviour that was vicious a period of four years she had received less basic pay
and inhuman and involved a sustained campaign of and fewer share options and bonuses than her two male
bullying and discrimination by Ms Miles and her col-

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comparators. The case reached the Employment Appeal the employment field. Important aspects such as the
Tribunal and the tribunal laid down some guidelines on new definition of harassment are brought in via the
the operation of s 63A as follows: regulations.

■ First, B carried the burden of proving facts from which What is disability?
a tribunal could conclude in the absence of an ade-
quate explanation that the employer had committed Section 1 defines a disabled person as a person who has
an act of sex discrimination. a physical or mental impairment which has a substan-
Did B do this? Yes, because she proved the dis- tial and long-term adverse effect on his or her ability
parity between the relevant incomes. She also showed to carry out normal day-to-day activities. Schedule 1
that the system of pay reviews in the City of London expands on this and states among other things that
was not transparent and that seemingly there were ‘mental impairment’ includes an impairment resulting
no proper annual reviews and appraisals. She also from or consisting of a mental illness only if the illness is
proved that the employer had consistently avoided well recognised clinically. It also states that impairments
providing information in the questionnaire process. which would have an effect on a person’s ability but for
medical treatment or some form of aid are included.
■ Second, once the above stage is reached, the bur- Section 3 allows the Secretary of State to issue Guidance
den shifts to the employer, as it did in this case. The and there are various rule-making powers to carry the
employer was unable to show a material difference definition further.
situation nor had the employer any objective reason
for allowing the disparity in pay, share options and The Disability Discrimination Act 2005 removes the
bonuses. B’s appeal was allowed. need for mental illness to be clinically well recognised
and adds to the definition of disability an illness such as
Retirement provision cancer, HIV infection and multiple sclerosis as within
the definition from the point of diagnosis.
Lastly, the Sex Discrimination Act 1986 deals with dis-
crimination in retirement age and provides that organ- A variety of conditions can be brought under the
isations with a compulsory retirement age will have to general definition of physical and mental impairment.
make sure it is the same for men and women. A woman In O’Neill v Symm & Co Ltd (1998) the EAT accepted
who is forced to retire earlier than her male colleagues that chronic fatigue syndrome (ME) fell within the defini-
will be entitled to claim unfair dismissal. tion. The EAT has also accepted that employees who
were suffering from depression were disabled persons
None of the above rulings and provisions has at pre- under the Act (see Kapadia v Lambeth London Borough
sent any effect on the state retirement pension under Council (2000)). It is clear from the above decisions
which women retire at 60 and men at 65. The Pensions that employers should be especially cautious before they
Act 1995 contains provisions to give a common retiring dismiss employees on the grounds of ill-health since
age of 65 for both men and women to be phased in from the condition may be regarded as a ‘disability’ for the
2010 to 2020. purposes of the 1995 Act. Medical reports should be
obtained and the employer should consult with the
Disability discrimination employee to see whether any adjustments can be made
in the work situation such as a transfer to a new post or
The Disability Discrimination Act 1995 applies. The by providing additional training or making modifica-
main twin aims of the Act are to render unlawful dis- tions in the workplace or equipment. It is the need
crimination when already in employment and when to take these steps that distinguishes dismissal for an
applying for a job and to provide a right of access to ser- unsatisfactory sickness record (which may be fair) from
vices, goods and facilities for the disabled. This section is a disability dismissal leading to a claim for uncapped
concerned only with the employment aspects. damages. In this connection, the Court of Appeal has
rejected the idea that in a disability dismissal there can
Also applicable are the Disability Discrimination be a comparison between the treatment of a disabled
Act 1995 (Amendment) Regulations 2003, which amend person and a person suffering from long-term sickness
the 1995 Act insofar as it concerns discrimination in (see Clark v TDG Ltd (t/a Novacold) (1999)).

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Impairment of long-term effect for equality of treatment in situations of employment
and occupation. The complainant argued that the Direct-
Schedule 1 applies and states that impairment is of long- ive extended protection from discrimination to indi-
term effect if it has lasted for 12 months, or is likely so to viduals who are not themselves disabled but are the
last, or is likely to last for life. A severe disfigurement victims of discrimination by association. Accordingly,
is included. The effect on normal day-to-day activities the Disability Discrimination Act should be interpreted
is dealt with by a list in para 4 of Sch 1 which includes in conformity with the Directive.
mobility, manual dexterity, physical co-ordination and
lack of ability to lift or speak, see, hear, remember, con- The employment tribunal referred the question of the
centrate, learn or understand or to perceive the risk proper construction of the Directive to the European
of physical danger. Also included are those who have Court of Justice. The question was addressed by an
a progressive condition such as HIV from the time of Opinion by the Advocate-General in January 2008. The
diagnosis. Persons who were on the register of disabled Opinion stated that:
persons kept under s 6 of the Disabled Persons (Employ-
ment) Act 1944 when the relevant provisions came into It is not necessary for someone who is the object of dis-
force are deemed disabled. crimination to have been mistreated on account of ‘her
disability’. It is enough if she was mistreated on account
The Act also covers in s 2 ‘a person who has had a of ‘disability’. Thus, one can be a victim of unlawful
disability’, even though he or she may no longer be dis- discrimination on the ground of disability under the
abled. This applies in regard to employment, services Directive without being disabled oneself . . . Therefore,
and discrimination in regard to premises and follows a if Ms Coleman can prove that she was treated less
government pledge that those with a history of disability favourably because of her son’s disability she should be
should be covered. able to rely on the Directive.

Employees who are within the definition This is a potentially ground-breaking interpretation
of the Directive, which would require the Disability
Under s 4 it is unlawful for an employer to discriminate Discrimination Act to be revised in order to reflect this
against a disabled employee: interpretation. It should be noted that the Advocate-
General’s Opinion is not binding. Nevertheless, it may
■ in the terms of employment and the opportunities influence the ECJ’s decision, when it considers the case.
for promotion, transfer, training or other benefits or If the Court endorses this interpretation it will have pro-
by refusing the same; found consequences for the scope of disability discrim-
ination in the UK.
■ by dismissal or any other disadvantage.
As regards insurance benefits, where an employer
Section 17 makes clear that trustees and managers of makes arrangements for employees with an insurance
occupational pension schemes are under a general duty company for matters such as private health insurance,
not to discriminate against the disabled. This rule will be the insurance company will under s 18 act unlawfully if
implied into the rules of occupational pension schemes. it treats a disabled person in a way which would be an
However, it is envisaged that pension benefits of dis- act of discrimination if done by the insurance company
abled people might justifiably be less than those who are to a member of the public generally. This covers refusal
not disabled. to insure and the levying of higher premiums unless
justified, as it may be if there are reasonable grounds for
An important case that questions the existing scope supposing that the disabled person represents a higher
of disability discrimination is Coleman v Attridge Law than normal risk.
(2008). Sharon Coleman, the primary carer for her dis-
abled son, claimed that she had been treated less favour- Employer’s defence
ably than other employees with children as a result of
her association with a disabled person. In particular, Section 5, which deals with the meaning of discrimina-
she alleged that the employer refused to allow her the tion, allows employer discrimination if, but only if, the
same flexible working arrangements that were granted reason is both material to the circumstances of the case
to employers with non-disabled children. She instituted and substantial. Thus, less favourable treatment may be
a claim for constructive dismissal. Coleman sought to rely justified if the employer believes on reasonable grounds
on the Disability Discrimination Act and EC Directive
2000/78. The Directive established a general framework

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Chapter 16 Employing labour

that the nature of the disability substantially affects the Comment. The result of this case in terms of employers
disabled person’s ability to perform the required task. is that where an employee has been absent for sickness
for a reasonable amount of time and it appears that this
Reasonableness is of course related to practicability in will continue, it is prudent for the employer to start ask-
terms of how useful the adjustments will be and the cost ing more questions about the reasons for that absence.
and the ability of the organisation to meet them. The Failure to do so could result in a disability claim where
value of the employee, which includes training, skill and there is no cap on compensation by reason of the em-
service, is also a relevant factor. Thus a high-cost adjust- ployer’s own inaction or lack of knowledge.
ment might be required as reasonable for a long-serving
managing director but not for a temporary cleaner. Duty to make adjustments

In this regard, an employment tribunal accepted the Section 6 includes 12 examples of steps, e.g. altering work-
defence of justification in Kelly v Hampshire Constabulary ing hours, acquiring or modifying equipment, arranging
(1997). The claimant suffered from cerebral palsy and so for training and providing supervision, an employer may
needed help in various ways including eating and using have to take so as to comply with a new duty to make
the toilet. The employers offered him employment on reasonable adjustments to working arrangements or the
the basis that they would try to make the necessary physical features of premises where these constitute a
arrangements to accommodate him. The employers disadvantage to disabled persons. However, s 6 specifies
were later able to satisfy a tribunal that, although they that regard shall be had to the extent to which it is prac-
had made every effort to do this, it was impossible for tical for the employer to take the steps involved, the
them to accommodate him and because of this they financial and other costs to be incurred and the extent of
were held not to have discriminated when the employ- any disruption to the employer’s activities and his finan-
ment did not continue. cial and other resources. Section 16 contains provisions
relating to adjustments in leasehold premises. The ten-
It is, or course, important that the employer be aware ant employer must seek the consent of the landlord. The
of the disability. See O’Neill v Symm & Co Ltd (1998), latter must not withhold consent unreasonably.
where the employers were not liable for the dismissal of
an accounts clerk suffering from ME because they had It is important to understand that the employer is
not been aware of the nature of her illness and so could only required to make adjustments if possible in terms
not have treated her less favourably than an employee of the job that the disabled person is employed to do.
who did not have this disability. The dismissal was for The duty does not extend to offering different types
the amount of sick leave taken and non-production of a of employment contracts within the organisation and
doctor’s certificate, which the contract of employment without competition from other applicants. Thus, in
required. In addition, the employers had not infringed Archibald v Fife Council (2004) Ms Archibald was a
the requirement of the Act to take all reasonable steps to road sweeper. She had an accident and became unable to
find out about the disability since in the circumstances walk. The employer allowed her to apply for other posts
of the case there was nothing to put the employers on within the organisation which were sedentary but it
inquiry. Where, however, the employer is aware of facts allowed others to apply and Ms Archibald was unsuc-
which put him on inquiry, the matter may be different. cessful. She was later dismissed on the ground of incap-
acity and claimed discriminatory dismissal. She lost
H J Heinz v Kenrick (2000) her claim before an employment tribunal and the EAT.
The Scottish Court of Session also refused an appeal.
K was dismissed after a long period of sickness absence. It was, of course, impossible to adjust and modify Ms
His employers knew of his symptoms and that ME was Archibald’s contract as a road sweeper because it is an
a disability within the scope of the DDA 1995. They did irreducible minimum requirement that a road sweeper
not know, however, the exact nature of the reason under Ms Archibald’s type of contract should be able
behind his absence when they dismissed him. The EAT to walk. Given that no adjustment can be made, the
did not follow its earlier decision in O’Neill and in fact employer has no further duty to provide alternative
doubted it. The employers’ lack of precise knowledge as employment said the court.
to absence was no defence and K’s dismissal was unlaw-
ful as a dismissal based on disability discrimination.

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Appeal note. The House of Lords reversed the above of his disability. This caused MHC to do the same. The
decision and ruled that where an employee has become EAT had to interpret s 12 and decided that, although T
disabled and is in danger of losing the employment was not employed by Abbey Life, his remedy was against
because of inability to perform the manual tasks required Abbey Life. Otherwise MHC, if the principal, could justify
but is capable of doing other jobs within the organisa- its actions by reference to the rejection by Abbey Life.
tion the employer is under a duty under the DDA 1995,
s 6 to take reasonable steps to prevent that disadvantage. Comment.
These may, depending on the circumstances, extend to (i) The case widens the scope of s 12 by allowing it to
arranging a transfer to a sedentary post at a higher grade accommodate a series of contracts, the end user being
without requiring the worker to compete with other the principal for the purposes of s 12.
applicants. The case was remitted to the employment
tribunal for reconsideration. (ii) In any case, the discrimination regulations applying
to disability, sex, race, sexual orientation, and religion or
Exemption for small businesses belief now protect contract workers.

Section 7(1) provides that nothing in Part II of the Act Victimisation
(Employment) shall apply to an employer who has fewer
than 15 employees. This exemption was removed by It also amounts to discrimination under the Act if some-
the Disability Regulations 2003. one is treated less favourably because they have brought,
or given, evidence in claims under the Act, or merely
DDA 1995 requires the taking into account of em- made allegations that the Act has been infringed.
ployees of associated companies, such as wholly owned
subsidiaries (see Hardie v CD Northern (2000)). Constructive dismissal

Validity of agreements In Catherall v Michelin Tyre (2003) the EAT disagreed
with earlier rulings of the EAT and stated that dismissal
Section 9 provides that any term in a contract of em- under the DDA 1995 included constructive dismissal.
ployment or other agreement is void if, e.g. it requires The Disability Regulations 2003 support this statement
a person to do anything which would contravene Part by introducing a provision into the 1995 Act that dis-
II or prevent a complaint to an employment tribunal missal includes the termination of a person’s employ-
unless in the latter case the exclusion is in writing and ment by the giving of notice in circumstances such that
follows independent legal advice or the matter has been he or she is entitled to terminate it without notice by
settled by reference to a conciliation officer. reason of the employer’s conduct (see reg 5, inserting s
4(5)(b)). This regulation operates from 1 October 2004.
Discrimination by other persons

An important provision is contained in s 12 which pro- Enforcement
vides protection for disabled contract workers who work
for an employment business. The hirer must not discrim- Under s 8, employment complaints are to be presented
inate against them. Here the following case is instructive. to an employment tribunal. Regulations allow a re-
stricted reporting order where ‘evidence of a personal
MHC Consulting Services Ltd v Tansell nature’ is likely to be heard.
(1999)
The claim must be brought within three months of
T was employed by I Ltd which was a service company the act complained of and the tribunal may take any of
of which he was the sole shareholder. I Ltd offered T’s the following steps as it considers just and equitable:
computer services to third parties and I Ltd contracted
with MHC, which in turn contracted with Abbey Life, the ■ make a declaration of the rights of the complainant as
end user. T was, therefore, subject to the control of Abbey a basis for these to be adopted by the employer;
Life. T brought a disability discrimination claim against
Abbey Life because it had rejected his services because ■ order monetary compensation with no limit;
■ recommend steps to be taken by the employer within

a specified period to obviate or reduce the adverse
effects of which the employee complains.

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The services of ACAS can also be invoked with a view (EOC), the Commission for Racial Equality (CRE) and
to settlement without a tribunal hearing. the Disability Rights Commission (DRC).

There is no cap upon the compensation which may be The EHRC will:
awarded for disability discrimination. In Kirk v British
Sugar plc (1998) a partially sighted employee who was ■ analyse, define and target key equality and human
able to prove that his defective eyesight was the domin- rights challenges;
ant factor in his selection for redundancy was awarded
£100,000. The scores he achieved in his assessment were ■ change policy and organisational practice to provide
influenced by his disability and were not an objective better public services alongside an efficient and
assessment based upon his past work performance. The dynamic economy;
tribunal accepted that a partially sighted person would
have greater difficulties in obtaining employment and ■ engage, involve and empower the public, especially
based the award on the finding that he would not get people from disadvantaged communities and areas
alternative employment for the rest of his working life of and give individuals the chance to participate fully in
15 years, less 20 per cent to take account of the risk that our local and national democracy, as well as in local
had he stayed on his eyesight might have deteriorated to communities;
the point where he could not continue.
■ anticipate social change, develop new narratives, and
Employers should note that the number of cases reach new audiences in ways that strengthen equality
involving disability discrimination is increasing. In this and human rights.
area, as in so much of modern labour law, employers
need to be aware of their duties and to be pro-active in Guidance
respect of them.
The government has issued guidance for employers on
In regard to compensation, it is important to note that how to avoid discrimination against disabled people: see
the EAT has set aside an employment tribunal award of Disability Discrimination Act 1995 – What Employers
£1,500 compensation for injured feelings under the DDA Need to Know. A code of practice entitled ‘The Code of
1995. It said that the tribunal, in error, had taken the Practice for the elimination of discrimination in the
employer’s size and resources into account (see Evans v field of employment against disabled persons or persons
Oaklands Nursing Home Group Ltd (2000)). The EAT who have a disability’ can be purchased from the Sta-
directed that there should be a fresh hearing with a clean tionery Office.
sheet.
Policy statement
The EAT made a consistent ruling in a sex discrim-
ination case (Ministry of Defence v Cannock (1994)), On the basis of the guidance, it is useful for employers to
stating that an award for injury to feelings is based solely draw up a policy statement for staff regarding disability
on principles of compensation which the claimant makes discrimination and how it should be dealt with.
for it and must prove.
Unfair dismissal and disability
Questionnaires discrimination

Disabled persons who think they have been subject to The following table illustrates the contrast.
discrimination can serve questionnaires on the employer
in the same way as for sex and race claims. Unfair dismissal Disability discrimination

The Equality and Human Rights Service One year’s No minimum service
Commission (EHRC) Incapability service before necessary
Compensation eligibility to claim
The Equality Act 2006 established the Equality and Human A valid reason Where incapability relates
Rights Commission. The EHRC combines the respons- for dismissal to disability, a claim for
ibility and powers of the three previously quality com- disability discrimination
missions, namely The Equal Opportunities Commission Cap of £63,000 may be made
No cap on compensation

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Termination of the contract regardless of service or hours worked. There are excep-
of employment tions in the case, for example, of maternity dismissals,
health and safety dismissals and dismissals for assert-
Unfair dismissal – generally ing statutory rights, e.g. asking for written particulars.
These dismissals are automatically unfair and are not
Before a person can ask an employment tribunal to con- service-based.
sider a claim that another has unfairly dismissed him
or her it is once again essential to establish that the rela- Persons who ordinarily worked outside Great Britain
tionship of employer and employee exists between them. were formerly excluded. However, s 32(3) of the Employ-
In this connection the ERA provides that an employee ment Relations Act 1999 repealed the relevant provision
is a person who works under a contract of service or of the Employment Rights Act 1996, but unfortunately
apprenticeship, written or oral, express or implied. put nothing in its place. The position now is that if the
worker’s contract is for work in the UK but the worker
An example of a case where a person failed in an is posted abroad, UK remedies apply, but where the con-
unfair dismissal claim because he was unable to show tract is for work abroad, UK remedies may not apply.
that he was an employee is given below. However, in Lawson v Serco (2006) the House of Lords
ruled that the claimant, who was employed to work on
Massey v Crown Life Insurance Co (1978) Ascension Island as distinct from being posted there,
could pursue a claim for unfair dismissal under UK
Mr Massey was employed by Crown Life as the manager employment law. Mr Lawson was a civilian working at a
of their Ilford branch from 1971 to 1973, the company UK airforce base which was described by the House of
paying him wages and deducting tax. In 1973, on the Lords as sufficient of a UK enclave to allow the claim.
advice of his accountant, Mr Massey registered a busi-
ness name of J R Massey and Associates and with that Certain other categories are excluded by the ERA, e.g.
new name entered into an agreement with Crown Life members of the police force and those taking unofficial
under which he carried out the same duties as before industrial action. The Employment Relations Act 1999
but as a self-employed person. The Inland Revenue provides that a worker who is dismissed by reason of
were content that he should change to be taxed under taking official and legal industrial action will be able to
Schedule D as a self-employed person. His employment claim unfair dismissal, provided that the dismissal takes
was terminated and he claimed to have been unfairly place within the first 12 weeks of the action beginning
dismissed. The Court of Appeal decided that being self- with the day on which the employee took part in indus-
employed he could not be unfairly dismissed. trial action. Thus, in a long period of official industrial
action, these rules of dismissal protection would not apply.
Unfair dismissal – excluded categories
Members of the armed forces are now covered by the
Employees above retiring age were excluded but are no unfair dismissal provisions of the ERA, provided that
longer by reason of the Employment Equality (Age) they have first availed themselves of services redress pro-
Regulations 2006. Examples of excluded categories cedures (ERA 1996, s 192).
include: dismissal in circumstances in which the em-
ployee failed to make use of the statutory grievance pro- It should also be noted that s 9 of the Employment
cedure; and dismissals where the employee has entered Tribunals Act 1996 contains provisions to test the
into a valid compromise agreement. strength of the case of each party before a full hearing
proceeds. Pre-hearing reviews are introduced at which
As regards the period of employment, the general the chairman of the tribunal may sit alone without the
unfair dismissal provisions do not apply to the dismissal two lay assessors. The chairman may, at his discretion
of an employee from any employment if the employee, and following an application by one of the parties, or
whether full-time or part-time, has not completed one of his own motion, require a deposit of up to £500 from
year’s continuous employment ending with the effective the other party as a condition of proceeding further if
date of termination of employment unless the dismissal it is considered that his or her case has no reasonable
is automatically unfair. Such dismissals are actionable prospect of success, or that to pursue it would be frivol-
ous, vexatious or otherwise unreasonable. Chairmen of
employment tribunals have been referred to as ‘judges’
since 1 December 2007.

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Dear Date

I am writing to tell you that ................ [insert organisation name] is considering dismissing OR taking
disciplinary action [insert proposed action] against you.

This action is being considered with regard to the following circumstances:

You are invited to attend a disciplinary meeting in ................ at ................ am/pm which is to be held in
........ where this will be discussed.

You are entitled, if you wish, to be accompanied by another work colleague or your trade union
representative.

Yours sincerely

Signed Manager

Figure 16.3 Letter to be sent by the employer, setting out the reasons for the proposed dismissal or
action short of dismissal and arranging the meeting (for statutory procedure)

Source: http://www.acas.org.uk/index.aspx?articleid=920

There are other points worth noting following the Actual dismissal
attempts to reduce the number of applications to tri-
bunals set out in the Employment Act 2002. Section 22 This does not normally give rise to problems since most
contains a provision allowing awards of costs and ex- employees recognise the words of an actual dismissal,
penses against representatives such as lawyers instead whether given orally or in writing.
of the parties. This is designed to deal with vexatious
claims or inappropriate behaviour. It could mean that a A letter setting up a disciplinary meeting appears
representative could not recover his fees from his client in Fig 16.3 and a typical letter of dismissal is set out in
and may have to pay the other party’s costs. The expres- Fig 16.4.
sion ‘representatives’ does not include those who do not
charge for their services. The section also provides that Constructive dismissal
if a party has acted unreasonably, the tribunal may order
that party to make a payment to the other in regard to This occurs where it is the employee who leaves the
the time that other has spent in preparing his case (usu- job but is compelled to do so by the conduct of the
ally this will be the employer in respect of time spent on employer. In general terms, the employer’s conduct must
the defence). Under s 24 tribunals have a power to post- be a fundamental breach so that it can be regarded as
pone the fixing of a time and place for a hearing in order a repudiation of the contract. Thus, if a male employer
for the proceedings to be settled through conciliation by were to sexually harass a female employee, then this
the Advisory, Conciliation and Arbitration Service: the would be a fundamental breach entitling her to leave
power of ACAS to conciliate returns after the period for and sue for her loss on the basis of constructive
conciliation set by a tribunal during which time ACAS dismissal.
has a duty to conciliate.
It would also occur if the employer unilaterally changed
Dismissal – meaning of the terms and conditions of the employment contract as
by unilaterally reducing wages under the contract (see
An employee cannot claim unfair dismissal unless there Rigby v Ferodo (1987)). Furthermore, the EAT decided
has first been a dismissal recognised by law. We may in Whitbread plc (t/a Thresher) v Gullyes (1994) that an
consider the matter under the following headings. employee who resigned from a management position
because her employer did not give her proper support –
because, among other things, the most experienced staff
were transferred out of her branch without consultation
– was constructively dismissed.

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Dear Date

On ................ you were informed that ................ [insert organisation name] was considering dismissing OR
taking disciplinary action [insert proposed action] against you.

This was discussed in a meeting on ................ At this meeting, it was decided that: [delete as applicable]

Your conduct/performance/etc was still unsatisfactory and that you be dismissed.

Your conduct/performance/etc was still unsatisfactory and that the following disciplinary action would be
taken against you ................

No further action would be taken against you.

The reasons for your dismissal are:

I am therefore writing to you to confirm the decision that you be dismissed and that your last day of service
with the Company will be ................

The reasons for your dismissal are:

I am therefore writing to you to confirm the decision that disciplinary action will be taken against you. The
action will be ................ The reasons for this disciplinary action are:

You have the right of appeal against this decision. Please [write] to ........ within ........ days of receiving this
disciplinary decision.

Yours sincerely

Signed Manager

Figure 16.4 Letter to be sent by the employer after the disciplinary meeting arranged in letter
(for statutory procedure)

Source: http://www.acas.org.uk/index.aspx?articleid=920

Fixed-term contracts It should be remembered that the question of whether
a dismissal is fair or not is a matter of fact for the particu-
When a fixed-term contract expires and is not renewed, lar tribunal hearing the case, and one cannot predict
there is a dismissal. Under the provisions of the Employ- with absolute accuracy what a particular tribunal will do
ment Relations Act 1999, the ERA 1996 is amended so on the facts of a particular case. Basically, when all is said
that an employee can no longer waive his or her right and done, the ultimate question for a tribunal is – ‘was
to claim unfair dismissal where a contract for one year the dismissal fair and reasonable’ in fact?
or more is not renewed. It used to be possible to forgo
the right to claim a redundancy payment at the end of a A problem that has arisen in this connection is
fixed-term contract that was of at least two years’ dura- whether the tribunal in looking at reasonable employer
tion. This is no longer possible by reason of the Fixed-term responses can decide the issue on the basis of what it
Employees (Prevention of Less Favourable Treatment) thinks is reasonable or unreasonable or whether the
Regulations 2002 (SI 2002/2034). tribunal must decide the matter by considering the
range of reasonable responses employers might make.
Dismissal – grounds for The matter was resolved by the Court of Appeal in
Post Office v Foley; HSBC Bank v Madden (2001) where
If an employer is going to escape liability for unfair dis- the court ruled that tribunals were not to approach the
missal, he or she must show that they acted reasonably matter of reasonableness or unreasonableness of a dis-
and, indeed, the ERA 1996, s 92 requires the employer missal by reference to their own judgment of what
to give their reasons for dismissal to the employee in would have been done if they had been the employer.
writing. Thus, a tribunal should conclude that a dismissal is fair

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if it is within the range of reasonable responses an As regards qualifications, this could occur where a
employer might make, even though the tribunal would new employee does not have the qualifications claimed
not have regarded the response of a particular employer or fails to get a qualification which was a condition
as reasonable. It should be noted that the test refers to of employment, as in the case of legal and accounting
‘reasonable’ responses so that a perverse or objectively trainees who fail to complete their examinations. It should
unreasonable response would not be acceptable. also be noted that the Court of Appeal decided in
Nottinghamshire County Council v P (1992) that even
Section 98 of the ERA 1996 includes in the test of though an employee had to be dismissed from an em-
reasonableness required in determining whether a dis- ployment for which he had become unsuitable, it could
missal was fair, the ‘size and administrative resources of still be unfair dismissal if the employer failed to make
the employer’s undertaking’. This was included as a result a reasonable investigation of possible alternative em-
of fear that the unfair dismissal laws were placing undue ployment. P was an assistant groundsman at a girls’
burdens on small employers and causing them not to school and had pleaded guilty to a charge of indecent
engage new workers. Earlier legislation also removed the assault on his daughter. Obviously, he could not be allowed
burden of proof from the employer in showing reason- to continue to work at the school, but the council should
ableness so that there is now no ‘presumption of guilt’ have considered alternative employment within the author-
on the employer and the tribunal is left to decide ity. Failure to do so could amount to unfair dismissal.
whether or not the employer acted reasonably. The case was sent back to an employment tribunal to see
what efforts the council had made if any.
Reasons justifying dismissal
2 Misconduct. This is always a difficult matter to deal
These are as follows. with and much will depend upon the circumstances of
the case. However, incompetence and neglect are rel-
1 Lack of capability or qualifications: unsuitability. evant, as are disobedience and misconduct, e.g. by
This would usually arise at the beginning of employ- assaulting fellow employees. Immorality and habitual
ment where it becomes clear at an early stage that the drunkenness could also be brought under this heading
employee cannot do the job in terms of lack of skill or and so, it seems, can dress where this can be shown to
mental or physical health. It may be imagined that claims affect adversely the way in which the contract of service
for unfair dismissal would not often arise in this area: is performed.
generally incompetence would be discovered and a dis-
missal made before the employee concerned had completed The following case provides an illustration.
the necessary one year’s service to be entitled to claim.
However, there are examples, as seen below. It should be Boychuk v H J Symons (Holdings) Ltd
remembered that the longer a person is in employment (1977)
the more difficult it is to establish lack of capability.
Miss B was employed by S Ltd as an accounts clerk,
By way of illustration, we can consider the case of but her duties involved contact with the public from time
Alidair v Taylor (1977). The pilot of an aircraft had to time. Miss B insisted on wearing badges which pro-
made a faulty landing which damaged the aircraft. There claimed the fact that she was a lesbian and from May
was a board of inquiry which found that the faulty land- 1976 she wore one or other of the following: (a) a lesbian
ing was due to a lack of flying knowledge on the part of symbol consisting of two circles with crosses (indicating
the pilot, who was dismissed from his employment. It women) joined together; (b) badges with the legends:
was decided that the employee had not been unfairly ‘Gays against fascism’ and ‘Gay power’; (c) a badge with
dismissed, the tribunal taking the view that where, as in the legend: ‘Gay switchboard’ with a telephone number
this case, one failure to reach a high degree of skill could on it and the words: ‘Information service for homosexual
have serious consequences, an instant dismissal could be men and women’; (d) a badge with the word ‘Dyke’, indic-
justified. ating to the initiated that she was a lesbian.

However, it was decided in British Sulphur v Lawrie These were eventually superseded by a white badge
(1987) that the dismissal of an employee who was alleged with the words ‘Lesbians ignite’ written in large letters on
to be unwilling or incompetent to do a particular job it. Nothing much had happened in regard to the wearing
could still be unfair if the employee was not provided of the earlier badges, but when she began wearing the
with adequate training. ‘Lesbians ignite’ badge, there were discussions about it

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between her and her employer. She was told that she Health Board (1992) that employees have no implied
must remove it – which she was not willing to do – and contractual right to smoke at work. If, as in Ms Dryden’s
that if she did not she would be dismissed. She would case, the employee leaves because he or she is not
not remove the badge and was dismissed on 16 August allowed to smoke, there is no constructive dismissal.
1976 and then made a claim for compensation for unfair The employer in this case had offered counselling but
dismissal. without success.

No complaint was made regarding the manner of her Crime inside employment will normally justify a dis-
dismissal in terms, e.g., of proper warning. The straight missal on the ground of misconduct. For example, the
question was whether her employers were entitled to EAT has decided that an employee was dismissed fairly
dismiss her because she insisted on wearing the badge. on the ground of theft from the employer, even though
An employment tribunal had decided that in all the cir- the employer could not specifically prove loss of stock
cumstances the dismissal was fair because it was within but had only a reasonable belief in the employee’s guilt.
an employer’s discretion to instruct an employee not to No specific stock loss could be proved but the employee
wear a particular badge or symbol which could cause had been seen by a security guard loading boxes into his
offence to customers and fellow employees. Miss B car at night at the employer’s warehouse (see Francis v
appealed to the Employment Appeal Tribunal which dis- Boots the Chemist Ltd (1998)).
missed her appeal and said that her dismissal was fair.
The court said that there was no question of Miss B Dismissal on the ground of theft may also be fair even
having been dismissed because she was a lesbian or though what is stolen is of little value. Thus, in Tesco
because of anything to do with her private life or private Stores Ltd v Khalid (2001) the employee was dismissed
behaviour. Such a case would be entirely different and for misappropriation of cigarettes from a petrol station
raise different questions. This was only a case where she where he worked. His dismissal was held to be fair even
had been dismissed because of her conduct at work. though the cigarettes were from damaged stock due for
That, the court said, must be clearly understood. return to the manufacturer. Dismissal was within the
range of reasonable responses of an employer.
Comment.
(i) The decision does not mean that an employer by a Crime outside of employment raises more difficult issues
foolish or unreasonable judgment of what could be and generally speaking the employer will have to show
expected to be offensive could impose some unreason- damage to his organisation. Thus, in Post Office v Liddiard
able restriction on an employee. However, the decision (2001) a Post Office employee was involved in football
does mean that a reasonable employer, who is, after all, violence in France. His dismissal for this reason was held
ultimately responsible for the interests of the business, is to be unfair. It might be different, of course, where an ac-
allowed to decide what, upon reflection or mature con- countant has been convicted of dishonesty as treasurer
sideration, could be offensive to customers and fellow of a local charity for which he/she works part time and vol-
employees, and he need not wait to see whether the untarily, or where a teacher has been convicted of offences
business would in fact be damaged before he takes involving violence in his/her non-work environment.
steps in the matter.
An employee’s use of drugs or alcohol outside the
(ii) In Kowalski v The Berkeley Hotel (1985) the EAT workplace is unlikely to amount to a fair reason for dis-
decided that the dismissal of a pastrycook for fighting at missal, nor will the mere fact that an employee did not
work was fair though it was the first time he had done reveal that he or she used drugs or alcohol when inter-
it. Also, on the issue of conduct, the EAT decided in viewed for a post. However, use of drugs or excessive
Marshall v Industrial Systems and Control Ltd (1992) drinking may constitute a fair reason for dismissal where
that a company acted reasonably in dismissing its man- the employer believes on reasonable grounds that it
aging director after discovering that along with another makes the employee unsuitable for the position held. An
manager he was planning to set up a business compet- employer who wishes to dismiss employees for drink or
ing with the company and to take on the business of its drug misconduct should have a drink and drugs policy
best customer and that active steps had been taken to and make it part of the employee’s contract.
achieve this. It should be noted that an employee does
not breach the duty of loyalty merely by forming an 3 Redundancy. Genuine redundancy is a defence. Where
intention to compete at some future date (Laughton v a person is redundant, his employer cannot be expected
Bapp Industrial Supplies Ltd (1986)). As regards smok-
ing at work, it was decided in Dryden v Greater Glasgow

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to continue the employment, although there are safe- 6 Some other substantial reason. An employer may on
guards in the matter of unfair selection for redundancy. a wide variety of grounds which are not specified by leg-
Examples are selection because of pregnancy or trade islation satisfy an employment tribunal that a dismissal
union membership or activities or for asserting statutory was fair and reasonable.
rights or on health and safety matters as by selection of
health and safety representatives. Crime and suspicion of crime may be brought under
this heading, as well as misconduct, though if dismissal
4 Dismissals which are union-related. These are is based on suspicion of crime, the suspicion must be
known as the ‘section 152 reasons’. They are set out in the reasonable and in all cases the employee must be told
Trade Union and Labour Relations (Consolidation) Act that dismissal is contemplated and in the light of this
1992, s 152. An employee will be regarded as automat- information be allowed to give explanations and make
ically unfairly dismissed so that no particular period representations against dismissal.
of service or hours worked is required if the principal
reason for the dismissal was that he was, or proposed to Where an employee has been charged with theft from
become, a member of a trade union which was independ- the employer and is awaiting trial, the best course of
ent of the employer; that he had taken part or proposed action is to suspend rather than dismiss him, pending
to take part in the activities of such a union at an appro- the verdict. Investigations which the employer must
priate time, i.e. outside working hours or within work- make, as part of establishing a fair dismissal, could be
ing hours with the consent of the employer; that he was regarded as an interference with the course of justice. It
not a member of any trade union or of a particular one is best, therefore, not to make them, but to suspend the
or had refused or proposed to refuse to become or remain employee. The case of Wadley v Eager Electrical (1986)
a member. Under the relevant provisions of the Trade should be noted. In that case husband and wife worked
Union and Labour Relations (Consolidation) Act 1992 for the same company. The wife was convicted for steal-
all closed-shop dismissals are now automatically unfair. ing £2,000 from the company while employed as a shop
assistant. The husband was a service engineer with the
Dismissal will also be automatically unfair if the em- company. Husband and wife were dismissed and it was
ployee is selected for redundancy on any of the above held that the husband’s dismissal was unfair. He was a
‘trade union’ grounds. Furthermore, the Court of good employee of 17 years’ standing and no misconduct
Appeal decided in Fitzpatrick v British Railways Board had been made out against him.
(1992) that a dismissal for trade union activities in a pre-
vious employment was automatically unfair. The matter of fair or unfair dismissal depends also
upon the terms of the contract. If the difficulty is that
It is also worth noting at this point that under s 146 of a particular employee is refusing to do work which
the Trade Union and Labour Relations (Consolidation) involves him, say, spending nights away from home,
Act 1992 an employee has a right not to have action taken then his dismissal is likely to be regarded as fair if there
against him short of dismissal, such as victimisation in is an express term in his contract requiring this. Of course,
terms of not being offered overtime, where this is related the nature of the job may require it, as in the case of a
to union membership or activities. There is, however, long-distance lorry driver where such a term would be
a provision in the 1992 Act under which protection implied, if not expressed.
against victimisation continues but does not prevent
an employer, acting reasonably, from implementing a Employees who are in breach of contract are likely
decision to negotiate personally with his employees and to be regarded as fairly dismissed. However, this is not
not through a union and to offer inducements such as an invariable rule. Thus a long-distance lorry driver
increased pay to those who sign personal contracts, while who refused to take on a particular trip because his wife
denying these benefits to those who do not sign. was ill and he had to look after the children would be
unfairly dismissed (if dismissal took place) even though
5 Statutory restriction placed on employer or employee. he was, strictly speaking, in breach of his contract.
If, for example, the employer’s business was found to be
dangerous and was closed down under Act of Parliament Dismissal could also be for a substantial reason where
or ministerial order, the employees would not be unfairly a breakdown of relationships either within the office or
dismissed. Furthermore, a lorry driver who was banned with a customer have made an employee’s position unten-
from driving for 12 months could be dismissed fairly. able. The following example illustrates the possibilities.

In a small office there are two order clerks working
closely together. They are very good friends. One of

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them sets up home with the other’s wife. They are no The court decided that she had not been unfairly dis-
longer on speaking terms and cannot work together. missed even though there was no proper consultation.
The employer has no other office to which one of them
could be transferred. 2 Where conduct is the main reason the employer must
show, on a balance of probabilities, that at the time of
There may be no alternative to dismissal. If no solu- the dismissal he believed the employee was guilty of mis-
tion can be found in discussion with the workers, one conduct and that in all the circumstances of the case it
should be dismissed on the basis of length of service and was reasonable for him to do so.
other factors that would be relevant if one of them was
being selected for redundancy. 3 During the disciplinary hearings and the appeal pro-
cess, the employer must have been fair to the employee.
In Cobley v Forward Technology Industries plc (2003) In particular, the employee must have been heard and
the Court of Appeal ruled that the chief executive of a allowed to put his case properly or, if he was not at a
public listed company was not unfairly dismissed when certain stage of the procedures, this must have been
the shareholders removed him from his office as a direc- corrected before dismissal.
tor by a resolution in general meeting. This effected his
dismissal as CEO because his contract said that he could Under reforms made to disciplinary hearings by the
not continue as CEO unless he was also a director of the Employment Relations Act 1999, an employee has a
company. His dismissal was, ruled the court, for ‘some right to be accompanied at such hearings by a trade
other substantial reason’ under the Employment Rights union representative or a fellow employee. This applies
Act 1996 and that made the dismissal fair. The removal even if an employer does not recognise trade unions. As
followed a successful hostile takeover of the company a result, hearings are likely to become more adversarial
and the case shows that business reorganisations such as and formal, and so lengthier. Legal advice should per-
this can be brought under the heading of ‘some other haps now be sought by employers in the hearings, bear-
substantial reason’. The new owners clearly cannot be ing in mind that a combined basic and compensatory
expected to retain the former board members. award could exceed £63,000.

Grievance and disciplinary procedures Employee’s contributory fault

1 The Employment Act 2002 in s 29 and Sch 2 provides This can reduce the compensation payable to the
statutory dismissal, disciplinary procedures and griev- employee by such percentage as the tribunal thinks fit.
ance procedures. These have already been considered. Suppose an employee is often late for work and one
Section 30 makes it an implied term of every contract morning his employer, who can stand it no more, sacks
of employment that the statutory procedures are to him. The dismissal is likely to be unfair in view of the
apply and employers and employees cannot contract lack of warning but a tribunal would very probably reduce
out of them. Provided these procedures are followed the worker’s compensation to take account of the facts.
in a reasonable manner, their fairness will not normally
be questioned by the courts, and the major case on the Principles of natural justice also apply; it is necessary
requirement for fair procedures – the House of Lords’ to let the worker state his case before a decision to dis-
ruling in Polkey v A E Dayton Services Ltd (1987) – will miss is taken. Furthermore, reasonable enquiry must be
have no application. made to find out the truth of the matter before reaching
a decision. Failure to do this will tend to make the dis-
However, it may not always be necessary to consult, as missal unfair.
where the employer has reasonably taken the view, hav-
ing thought about it, that the exceptional circumstances Unacceptable reasons for dismissal
of a particular case make it, for example, undesirable.
Thus in Eclipse Blinds v Wright (1992) Mrs Wright was These are as follows.
dismissed because of poor health. The employer had re-
ceived a medical report with her consent. It revealed that 1 Dismissal in connection with trade unions. This has
she was much more seriously ill than she had thought already been considered.
and, rather than upset her in a consultation process, the
personnel officer wrote her a letter in sympathetic terms 2 Unfair selection for redundancy. An employee dis-
ending her employment on the grounds of incapability. missed for redundancy may complain that he has been
unfairly dismissed if he is of the opinion that he has been
unfairly selected for redundancy, as where the employer

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has selected him because he is a member of a trade union unfair dismissal. If the tribunal awards compensation,
or takes part in trade union activities, or where the it can order that a person joined as a party to the pro-
employer has disregarded redundancy selection arrange- ceedings should pay such amount of it as is just and
ments based, for example, on ‘last in, first out’. Ideally, equitable, and if necessary this can be a complete indem-
all employers should have proper redundancy agree- nity so that the employer will recover all the damages
ments on the lines set out in the Department of Work awarded against him from the union.
and Pensions booklet, Dealing with Redundancies.
6 Transfer of business. The Transfer of Undertakings
However, even though there is in existence an agreed (Protection of Employment) Regulations 2006 apply.
redundancy procedure, the employer may defend himself Under the regulations if a business or part of it is trans-
by showing a ‘special reason’ for departing from that ferred and an employee is dismissed because of this, the
procedure, e.g. because the person selected for redund- dismissal will be treated as automatically unfair. However,
ancy lacks the skill and versatility of a junior employee the person concerned is not entitled to the extra compensa-
who is retained. tion given to other cases of automatically unfair dismissal.

There is, since the decision of the Employment Appeal If the old employer dismissed before transfer, or the
Tribunal in Williams v Compair Maxam (1982), an over- new employer dismissed after the transfer, either will
all standard of fairness also in redundancy arrangements. have a defence if he can prove that the dismissal was for
The standards laid down in the case require the giving ‘economic, technical or organisational’ reasons requir-
of maximum notice; consultation with unions, if any; ing a change in the workforce and that the dismissal was
the taking of the views of more than one person as to reasonable in all the circumstances of the case.
who should be dismissed; a requirement to follow any
laid down procedure, e.g. last in, first out; and finally, an The following case is relevant.
effort to find the employees concerned alternative employ-
ment within the organisation. However, the EAT stated Meikle v McPhail (Charleston Arms)
in Meikle v McPhail (Charleston Arms) (1983) that these (1983)
guidelines would be applied less rigidly to the smaller
business. The statutory provisions relating to consulta- After contracting to take over a public house and its em-
tion on redundancy are considered later in this chapter. ployees, the new management decided that economies
were essential and dismissed the barmaid. She com-
3 Industrial action. The position in this context has plained to an employment tribunal on the grounds of
already been considered. unfair dismissal. Her case was based upon the fact that
the 1981 regulations stated that a dismissal was to be
4 Dismissals in connection with pregnancy and child- treated as unfair if the transfer of a business or a reason
birth and parental and adoption and paternity leave. connected with it was the reason or principal reason
The relevant law has already been considered. for the dismissal. The pub’s new management defended
the claim under another provision in the 1981 regulations
5 Pressure on employer to dismiss unfairly. It is no which stated that a dismissal following a transfer of busi-
defence for an employer to say that pressure was put ness was not to be regarded as automatically unfair
upon him to dismiss an employee unfairly. So, if other where there was, as in this case, an economic reason for
workers put pressure on an employer to dismiss a non- making changes in the workforce. If there was such a
union member so as, for example, to obtain a closed reason, unfairness must be established on grounds other
shop, the employer will have no defence to a claim for than the mere transfer of the business.
compensation for the dismissal if he gives in to that
pressure. If an employer alleges that he was pressurised The EAT decided that the reason for dismissal was an
into dismissing an employee and that pressure was economic one under the regulations and that the man-
brought on him by a trade union or other person by the agement had acted reasonably in the circumstances so
calling, organising, procuring or financing of industrial that the barmaid’s claim failed.
action, including a strike, or by the threat of such things,
and the reason for the pressure was that the employee Comment. It should be noted that in Gateway Hotels
was not a member of the trade union, then the employer Ltd v Stewart (1988) the EAT decided that on a transfer
can join the trade union or other person as a party to the of business dismissal of employees of the business
proceedings if he is sued by the dismissed worker for transferred prior to the transfer at the insistence of the
purchaser of the business is not an ‘economic’ reason
within the regulations so that the dismissals are unfair.

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7 Health and safety dismissals and detriments. Desig- ■ asserting a statutory employment right under the ERA
nated or acknowledged health and safety representatives 1996, s 104;
must not be subjected to detriments, for example loss of
overtime, for carrying out health and safety activities in ■ in health and safety cases involving union safety
the workplace. Dismissal for these reasons is automatic- representatives and now including being an employee
ally unfair, which means that there is no service require- safety representative or putting up for election to be
ment. These provisions also apply to ordinary employees, one;
regardless of service, who leave or refuse to return to the
workplace because of a health hazard reasonably thought ■ performing the duties of a member-nominated trustee
to exist. The same is true under the Health and Safety under the Pensions Act 1995;
(Consultation with Employees) Regulations 1996 (SI 1996/
1513) where the dismissal is of a worker safety repres- ■ being an employee representative in redundancy con-
entative elected to take part in the health and safety con- sultation or putting up for election to be one (ERA
sultation process where there is no recognised union. 1996, s 103);

8 Dismissal for asserting statutory right. This protects ■ refusing (in certain circumstances) to do shop or bet-
employees regardless of service against dismissal for ting work on a Sunday;
trying to enforce employment rights under the EPA that
can be brought before a tribunal. Dismissal will be unfair ■ exercising rights under the Working Time Regula-
even if the worker does not in fact have the right pro- tions including rights as an employee representative
vided he has acted in good faith. in connection with the workforce agreements (s 101A,
ERA 1996, as inserted by the regulations);
9 Dismissal for performing the duties of a member-
nominated trustee of an occupational pension scheme. ■ asserting rights under the National Minimum Wage
Act 1998 (s 104A, ERA 1996, as inserted by the NMWA
10 Dismissal for performing the duties of an employee 1998);
representative in redundancy consultation or putting
up for election to be one. ■ asserting rights to time off for study and training under
s 63A of the ERA 1996, as inserted by the Teaching
Automatically unfair dismissals and Higher Education Act 1998;

■ dismissals of employees because they exercised or tried
to exercise the right to be accompanied at a disciplin-
ary and grievance hearing or because they accompanied
a fellow worker at such a hearing;

■ whistleblowing – protection of whistleblowers is pro-
vided by the Public Interest Disclosure Act 1998.

Having noted some of these in various parts of the text, Unfair dismissal and frustration
it may be useful to bring them together in a list, remem- of contract
bering that dismissals of this kind do not require any
particular period of service with the employer. In cases appearing before employment tribunals, there
is a certain interplay between the common law rules of
The reasons which make a dismissal automatically frustration of contract (see Chapter 7) and the statutory
unfair can briefly be listed as follows: provisions relating to unfair dismissal. At common law,
a contract of service is frustrated by incapacity, e.g. sick-
■ trade union membership or activities; ness, if that incapacity makes the contract substantially
■ not belonging to a trade union or particular union; impossible of performance at a particularly vital time,
■ pregnancy and dismissals in connection with parental or by a term of imprisonment. If a contract has been
so frustrated, then a complaint of unfair dismissal is
and adoption and paternity leave; not available because the contract has been discharged
■ selection for redundancy on any of the above grounds; on other grounds, i.e. by frustration. Thus termination
■ the transfer of the undertaking or a reason connected of a contract of service by frustration prevents a claim
for unfair dismissal.
with it (unless there is an ETO: economic, technical
or organisational reason) (it should, however, be noted It is, of course, necessary now in terms of sickness/
at this point that the one-year qualifying period does incapacity for the employer to be alert to the rules about
not apply where the complaint is based on dismissal disability discrimination, particularly where an adjust-
for one of the automatically unfair reasons, though if
the dismissal related to the transfer of an undertaking
the one-year qualifying period does apply);

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ment to working conditions might enable an employee bers of a profession or professional body (ss 9 and 10).
or recruit to do the job satisfactorily. This will allow trade unions, advice agencies and others
– in addition to lawyers – to give relevant advice.
Remedies for unfair dismissal
Other provisions of Part II allow ACAS-appointed
These are as follows. conciliation officers to conciliate in claims relating to
statutory redundancy payments where before they had
Conciliation no duty to conciliate, as they have in almost all other
individual employment rights disputes (s 11).
An employment tribunal will not hear a complaint until
a conciliation officer has had a chance to see whether he There are also provisions that clarify, streamline
can help, provided that he or she has been requested so and make more flexible current legislation under which
to do by a party to the potential complaint. A copy of employers and employer-recognised trade unions can,
the complaint made to the employment tribunal will by making a dismissal procedures agreement, opt out of
in such a situation be sent to a conciliation officer of the the statutory rules on unfair dismissals (s 12).
Advisory, Conciliation and Arbitration Service (ACAS)
and, if he is unable to settle the complaint, nothing Other remedies
said by the employer or employee during the process
of conciliation will be admissible in evidence before the An employee who has been dismissed may:
tribunal.
■ seek reinstatement or re-engagement; or
The reference of cases to a conciliation officer has led ■ claim compensation.
to the settlement of some one-third of them before the
tribunal hearing but the parties do not have to become The power to order reinstatement or re-engagement
involved in this procedure. is discretionary and in practice is rarely exercised.
However, reinstatement means taken back by the em-
ACAS arbitration and compromise ployer on exactly the same terms and seniority as before;
agreements re-engagement is being taken back but on different
terms.
The following provisions of the Employment Rights
(Dispute Resolution) Act 1998 should be noted. Calculation of compensation

Part II of the Act contains provisions to allow parties Before proceeding further with a study of the calcula-
to opt for their dispute to be resolved by independent tions, it should be noted that the basic award is based on
binding arbitration and gives ACAS powers to pay for gross pay, but the compensatory award is based on net
and provide an arbitration service for claims of unfair pay, as the sample calculations show. It should also be
dismissal and unlawful discrimination. noted that the cap of £63,000 on unfair dismissal com-
pensatory awards is removed for staff who are unfairly
Part II also contains provisions making changes to dismissed for blowing the whistle on illegal practices or
the law relating to compromise agreements. Currently, over health and safety matters and who are protected
the parties to an individual employment rights dispute against such dismissal by the Public Interest Disclosure
may conclude that dispute by reaching, for example, Act 1998. There is, therefore, no ceiling on such awards.
a financial settlement. For such an agreement to be It was feared that some senior executives might have
binding, the parties must have settled after an ACAS- been deterred from whistleblowing about, e.g. legal
appointed conciliation officer has taken action, or, irregularities in their companies’ operation since they
alternatively, the terms of the settlement must be con- would have the most salary to lose.
tained in a private compromise agreement. Formerly,
a compromise agreement that had not involved ACAS The compensation for unfair dismissal is in four parts
had to be made in circumstances where the employee as follows.
had received independent legal advice from a qualified
lawyer. 1 The basic award (maximum: £9,900 for those with
20 years’ service or more). This award is computed as
The 1998 Act changes this to advice from any inde- a redundancy payment (see p 553 before reading on).
pendent adviser, provided that advice is covered by an Contributory fault of the employee is taken into
insurance policy or an indemnity provision for mem- account.

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Example Loss of statutory rights:
a nominal figure of
Fred, a 35-year-old van driver employed for ten years Less: 25% £100
earning £400 per week (take home £350) is unfairly dis- £25 75
missed. He did his best to get a comparable job but did 3,225
not in fact obtain one until two weeks after the tribunal
hearing. Fred had a history of lateness for work and his Fred’s total award is therefore: £
contributory fault is assessed at 25 per cent. Basic 2,475
Compensatory 3,225
Fred’s basic award: Fred is in the category over 22 5,700
years of age but under 41 years of age for redundancy
which allows one week’s pay for every year of service up If Fred has lost anything else, such as the use of the firm’s
to a maximum of £330 per week van at weekends and/or pension rights, these would be
added to the compensatory award subject to 25 per cent
£ discount for contributory fault.
3,300
10 × £330 Those on higher salaries may very will reach the max-
Less: 25% 825 imum of £63,000, but this will be likely only in cases of
2,475 = basic award higher-ranking executives.

If Fred’s dismissal had been automatically unfair, for ex- 3 Additional award: This is available in addition to the
ample for union membership, the minimum award would above where an employer fails to comply with an order for
be £4,400. This may be reduced for contributory fault. reinstatement or re-engagement unless it was not practic-
able for him to do so. The amount of the additional
2 Compensatory award (maximum: £63,000). This award is an amount of not less than 26 weeks’ nor more
consists of: than 52 weeks’ pay, subject to a weekly maximum of £330,
in other words £8,580 minimum and £17,160 maximum.
■ estimated loss of wages, net of tax and other deduc-
tions to the date of the hearing less any money earned Any unemployment or supplementary benefits received
between the date of dismissal and the hearing; by the employee are deducted from any award made by
a tribunal. However, the employer must pay the amount(s)
■ estimated future losses; in question direct to the DSS.
■ loss of any benefits such as pension rights and expenses;
■ loss of statutory rights. It is rare to get an award under As regards ex gratia payments, the general principle is
that if the employer has made an ex gratia payment to
this heading but it can be given for loss of minimum the complainant in connection with the dismissal, credit
notice entitlement. For example, Fred has been con- will be given for this payment in fixing the amount of
tinuously employed for ten years. He was entitled to compensation if and only if the dismissal is in the context
ten weeks’ notice, which he did not get. He now has a of being unfairly chosen for redundancy. This results from
new job but it will take him time to build up that entitle- the provisions of s 122 of the ERA 1996, as interpreted
ment again. A tribunal can award something for this. in Boorman v Allmakes Ltd (1995). If the dismissal is not
Once again, contributory fault is taken into account. in that context the employee keeps the ex gratia payment
in addition to any compensation.

Fred’s compensatory award 4 Time limits. A claim for compensation against an
employer for unfair dismissal must reach the tribunal
Note. For the avoidance of doubt, the compensatory within three months of the date of termination of employ-
award is based on actual net earnings with no cap. ment. A worker can claim while working out his notice,
but no award can be made until employment ends.
The loss up to the hearing 10 × £350 £
Loss up to time of getting new job 2 × £350 3,500 A tribunal can hear a claim after three months if the
employee can prove that:
Less: 25% 700
4,200 ■ it was not reasonably practicable for him to claim
1,050 within three months;
3,150
■ he did so as soon as he could in the circumstances.

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Unfair dismissal: damages for injury Redundancy
to feelings
The ERA 1996 gives an employee a right to compensa-
For many years the position regarding injury to feelings tion by way of a redundancy payment if he is dismissed
damages in unfair dismissal cases was clear. The judg- because of a redundancy.
ment of the President of what was then the Industrial
Relations Court in Norton Tool Co v Tewson (1973) Meaning of redundancy
applied and was to the effect that no such damages were
available. Loss in unfair dismissal claims was restricted Under the ERA 1996 redundancy is presumed to occur
to direct economic loss. where the services of employees are dispensed with because
the employer ceases or intends to cease carrying on busi-
However, in Johnson v Unisys Ltd (2001) Lord Hoff- ness, or to carry on business at the place where the
mann in remarks not essential to his judgment, i.e. obiter, employee was employed, or does not require so many
took the view that there was no reason why damages for employees to do work of a certain kind. Employees who
injured feelings should not be awarded. have been laid off or kept on short time without pay
for four consecutive weeks (or for six weeks in a period
Since then some tribunals have gone along with Lord of 13 weeks) are entitled to end their employment and
Hoffmann’s remarks and made awards for injured feel- to seek a redundancy payment if there is no reasonable
ings while others have refused to do so and have stood prospect that normal working will be resumed.
by the decision in Norton Tool.
Bumped redundancies
An appeal in Dunnachie reached the Court of Appeal
(see Dunnachie v Kingston-Upon-Hull City Council After a number of conflicting judicial decisions on this
(2004)). The Court of Appeal ruled: (1) that Norton issue the matter has been largely resolved by the ruling
Tool was wrongly decided and should no longer be of the House of Lords in Murray v Foyle Meats Ltd
followed; (2) that s 123 of the ERA 1996, which deals (1999). The ruling affirms that ‘bumped’ redundancies
with the compensatory award in unfair dismissal cases, are acceptable. The problem occurs where an employee
was wide enough to cover non-economic loss, but (3) is made redundant while carrying out job A because
that tribunals should only compensate for ‘a real injury’ of a diminution of work in job A, even though he can
to self-respect. However, an award of £10,000 to Mr under his contract be employed on other work and has
Dunnachie was within a reasonable band in what was a from time to time been so employed. Nevertheless, if
case involving extreme workplace bullying, that was not there is a diminution in work leading to a diminution
redressed by management. in the requirement for employees generally, the em-
ployer has a choice and can apply, e.g. a first-in first-
The Court of Appeal then invited an appeal to the out principle of redundancy and regard as redundant
House of Lords. Their Lordships ruled that an employee those doing job A or someone else within the group
claiming unfair dismissal cannot recover compensation for which work has diminished, regardless of what their
for non-economic loss. Such a claim is not within s 123 contract says or what they are doing or able to do. The
of the ERA 1996 (see Dunnachie v Kingston-Upon-Hull contract and function tests are inappropriate, said the
City Council (2004)). House of Lords. The Lord Chancellor said that for
employees to be regarded as redundant two things had
Discriminatory dismissal to be shown:

In addition to legislation relating to unfair dismissal gener- ■ that there is a state of affairs in the employer’s business
ally, discrimination legislation deals with complaints to which meets the statutory definition of redundancy,
employment tribunals for dismissal on the grounds of e.g. less work; and
discrimination. The nature and scope of these provisions
have already been considered and it is only necessary to ■ that the employee’s dismissal is wholly or mainly
add here that there are provisions in the ERA 1996 which attributable to that state of affairs.
prevent double compensation being paid, once under
discrimination legislation, and once under the general
unfair dismissal provisions of the ERA.

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Thus employer A makes widgets. There is a loss of look back at the circumstances in the Boychuk and
orders and a diminution in the requirements of produc- Kowalski cases, we can note that, although these cases
tion. Therefore, anyone dismissed by reason of the general were brought for unfair dismissal, they would also have
reduction in orders is to be regarded as redundant. The been situations in which the employees concerned would
contract and function tests need not be applied if the have lost the right to a redundancy payment because it
dismissal is attributable to the loss of orders. would be held that the dismissal was not for redundancy.
In such cases, therefore, the only issue will be the possib-
In addition, a redundancy may be ‘bumped’. Thus, if ility of unfair dismissal.
Jones is to be dismissed because the employer no longer
needs anyone to do his job, the employer may, instead 4 An employee who accepts an offer of suitable altern-
of dismissing Jones, give him Green’s job and dismiss ative employment with his employer is not entitled
Green, e.g. on a first-in last-out basis. Under Murray, to a redundancy payment. Where a new offer is made,
Green may well be found to have been dismissed on the there is a trial period of four weeks following the making
ground of redundancy (rather than unfair dismissal) of the offer, during which the employer or the employee
although he has been ‘bumped’ out of his job by Jones. may end the contract while retaining all rights and liab-
ilities under redundancy legislation.
It should be noted, however, that although the House
of Lords put it in terms that Green’s dismissal was An employee who unreasonably refuses an offer of
attributable to redundancy, it does seem that his dis- alternative employment is not entitled to a redundancy
missal arises not so much out of the redundancy situa- payment, as illustrated in the following case.
tion but rather out of the way it was managed. The
employer saves money by not being sued for unfair dis- Fuller v Stephanie Bowman (1977)
missal where compensation can be higher.

Eligibility F was employed as a secretary at SB’s premises which
were situated in Mayfair. These premises attracted a
In general terms, all those employed under a contract very high rent and rates so SB moved its offices to Soho.
of service as employees are entitled to redundancy pay, These premises were situated over a sex shop and F
including a person employed by his/her spouse. Further- refused the offer of renewed employment at the same
more, a volunteer for redundancy is not debarred from salary and she later brought a claim before an employ-
claiming. The right to a redundancy payment is no longer ment tribunal for a redundancy payment. The tribunal
lost at age 65, by reason of the Age Regulations. However, decided that the question of unreasonableness was a
certain persons are excluded by statute or circumstances. matter of fact for the tribunal and F’s refusal to work over
The main categories are listed below: the sex shop was unreasonable so that she was not enti-
tled to a redundancy payment.
1 A domestic servant in a private household who
is a close relative of the employer. The definition of Comment.
‘close relative’ for this purpose is father, mother, grand- (i) It should be noted that in North East Coast Ship
father, grandmother, stepfather, stepmother, son, daugh- Repairers v Secretary of State for Employment (1978)
ter, grandson, granddaughter, stepson, stepdaughter, the Employment Appeal Tribunal decided that an appren-
brother, sister, half-brother, or half-sister. tice who, having completed the period of his apprentice-
ship, finds that the firm cannot provide him with work,
2 An employee who has not completed at least two is not entitled to redundancy payment. This case has
years of continuous service. Alternate week working relevance for trainees and others completing contracts
does not break continuity (Colley v Corkindale t/a Corker’s in order to obtain relevant practical experience.
Lounge Bar (1996)). These provisions remain unchanged
under amendments made by the Unfair Dismissal and (ii) In Elliot v Richard Stump Ltd (1987) the EAT decided
Statement of Reasons for Dismissal (Variation of Qualify- that a redundant employee who is offered alternative
ing Period) Order 1999 (SI 1999/1436), which apply only employment by an employer who refuses to accept a trial
to claims for unfair dismissal. period is unfairly dismissed. In Cambridge and District
Co-operative Society Ltd v Ruse (1993) the EAT held that
3 An employee who is dismissed for misconduct will it was reasonable for an employee to refuse alternative
lose the right to a redundancy payment. Thus, if we work if the new job involved what he reasonably believed

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to be a loss of status. In that case the manager of a Co-op Chapter 16 Employing labour
mobile butcher’s shop was offered a post in the butch-
ers’ section of a Co-op supermarket, which he refused to As regards time limits, the employee must make a
accept because he was under another manager, which written claim to the employer or to an employment
he felt, quite reasonably, involved a loss of status. He tribunal within six months from the end of the employ-
was successful in his claim for a redundancy payment. ment. If the employee does not do this, an employment
tribunal may extend the time for a further six months,
(iii) In Fisher v Hoopoe Finance Ltd (2005) the EAT making 12 months in all, but not longer, from the actual
ruled that offers of alternative employment are ineffect- date of termination of the employment, provided that it
ive unless information is given regarding wages or salary can be shown that it is just and equitable having regard
of the post(s) involved. Mr Fisher was employed by to the reasons put forward by the employee for late
Hoopoe as a new business manager. He was later made application and to all relevant circumstances.
redundant and as a consequence brought a claim for
unfair dismissal on the basis that Hoopoe had failed to Amount of redundancy payment
take sufficient and appropriate steps to bring the pos-
sibility of suitable alternative employment to his notice. It is necessary to ascertain the amount of a week’s pay.
He also alleged that Hoopoe had promised him a new This amount is whichever is the smaller of the following
role or to retain his existing role. amounts:

The tribunal dismissed his claim and he appealed to ■ the employee’s weekly wage; or
the EAT, which ruled that: ■ the sum of (currently) £330.

■ As regards the promise to offer a new role or to retain The redundancy payment then consists of the total of
the existing one, the tribunal had accepted the evid- the following amounts:
ence of Hoopoe’s witnesses that the promise was not
made and not raised by Mr Fisher at any stage before ■ half a week’s pay for each complete year during the
his dismissal. The EAT found that there was clear relevant period for which the employee was aged 21
evidence that Mr Fisher had raised the matter of the and under;
promise before his dismissal and that the tribunal’s
reasons for preferring the Hoopoe witnesses’ evidence ■ one week’s pay for each complete year during the
were fallacious and amounted to an error in law. relevant period for which the employee was aged be-
tween 22 and 40;
■ As regards the offer of alternative employment, the
tribunal had misdirected itself in regard to this. Mr ■ one-and-a-half weeks’ pay for each complete year
Fisher was given a list of alternative roles but none of during the relevant period for which the employee
the written correspondence between the parties gave was aged 41 or more.
details as to financial prospects, including the fact
that one of the posts, i.e. field-based sales account Under the age discrimination regulations, the two-
manager, carried a similar annual salary. There was no year qualifying period remains, as does the age-related
evidence as to why this information was not available. multiplier and the maximum of 20 years’ service taken
into account, but there is no lower age of 18 to com-
■ The decision of the tribunal did not give written rea- mence the calculation and the upper age limit of 65 is
sons, so it did not comply with rule 30(6) of Sch 1 to removed. Service under age 18 will now count. The
the Employment Tribunals (Constitution and Rules of former reduction by one-twelfth where the employee is
Procedure) Regulations 2004 (SI 2004/1861) on writ- over 64 is also removed.
ten reasons for a judgment and relevant case law. The
tribunal’s decision consequently amounted to an error Example
in law.
A man of 52 who is made redundant having been con-
Mr Fisher’s appeal was allowed and his claim was remit- tinuously employed for 18 years and earning £280 per
ted back for hearing by a freshly constituted tribunal. week as gross salary at the time of his redundancy would
This ruling is a reminder to employers to give as much be entitled to a redundancy payment as follows:
information as they can about suitable alternative em-
ployment, including, preferably, written notification as to 34 to 41 years = 7 years at one = 7 weeks
remuneration. Basically, sufficient information must be week’s pay
given to allow the employee to decide whether to accept
or reject the new employment.

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Part 4 Business resources

41 to 52 years = 11 years at = 161/2 weeks Selecting, say, a white, single, young woman or a West
one-and-a-half weeks’ pay 231/2 weeks Indian single man to go, rather than a married white
man with two children and a mortgage might appear to
It follows, therefore, that the redundancy payment would be humane. However, unless the decision is made on the
be 231/2 weeks × £330 = £7,755 basis of competence, experience, reliability, and so on,
the dismissal is likely to be unfair and also a breach of
Consider also the case of an employee aged 62 dis- discrimination legislation.
missed on the ground of redundancy: he had been con-
tinuously employed for 30 years; his gross weekly wage Consultation over collective
was more than £330. His redundancy payment will be redundancies
based on his last 20 years of service and he will be en-
titled to the current maximum of £9,900 (20 × 11/2 × £330 The Collective Redundancies and Transfer of Undertak-
= £9,900). ings (Protection of Employment) (Amendment) Regula-
tions 1995 (SI 1995/2587) and 1999 (SI 1999/1925) apply.
Complaints by employees in respect of the right to a The regulations substantially amend s 188 of the Trade
redundancy payment or questions as to its amount may, Union and Labour Relations (Consolidation) Act 1992
as we have seen, be made to an employment tribunal, (TULR(C)A 1992) as follows:
which will make a declaration as to the employee’s rights
which form the basis on which payment can be recov- ■ The obligation to consult about redundancies now
ered from the employer. arises where the employer is proposing to dismiss as
redundant 20 or more employees at one establishment
Procedure for handling redundancies within a period of 90 days or less. This change has
removed the need to consult from some 96 per cent
Any agreed formula must be followed, for example last of UK businesses.
in, first out. Selection procedures may also be based on
poor work performance or attendance record and there ■ Where consultation is required, the employer must
is no requirement on the employer to find out reasons consult all those who are ‘appropriate representatives’.
for this (Dooley v Leyland Vehicles Ltd (1986)). If there
is no agreed procedure, the employer must decide after ■ Appropriate representatives of employees are:
considering the pros and cons in each case. It should – employee representatives elected by them; or
be noted that the dismissal may well be unfair if some – if an independent trade union is recognised by the
reasonable system of selection is not followed. In this employer, representatives of the union.
connection the EAT decided in Rogers v Vosper Thorn-
eycroft (UK) Ltd (1988) that ‘last in, first out’ is a rel- Where the employees elect representatives and belong
evant system, but merely asking for volunteers is not. to a recognised union, the employer has a choice of
There must be some criteria, though calling for volunt- whether to consult the union representatives or the
eers is acceptable as a preliminary step in the matter elected representatives. It should be noted that the regu-
of eventual selection. The decision was affirmed by the lations extend the requirement to consult to non-union
Court of Appeal. workplaces. They further provide that:

Everyone should as far as possible be allowed to ■ Employee representatives may be elected by the em-
express their views, for example through elected repres- ployees for the specific purpose of consultation or
entatives, if any. Every attempt should be made to reloc- may be members of an existing works council or joint
ate a redundant worker. Failure to do so can result in a consultative committee. In all cases the employee rep-
finding of unfair dismissal – unless, of course, there was resentatives must be employed by the employer and
no chance of finding suitable alternative work. Fairness in not be outsiders. No method of election is stipulated
the search for alternative work involves looking at other in the regulations which means that ad hoc proced-
companies within a group (EAT decision in Euroguard ures as and when a redundancy situation is to arise
Ltd v Rycroft (1993)). are acceptable.

■ Consultation must begin ‘in good time’ as distinct from
the ‘earliest opportunity’ as was formerly required and,
in any case.

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Chapter 16 Employing labour

■ Where the employer is proposing to dismiss 100 or follows: (a) the reason for the redundancy proposals;
more employees at one establishment within 90 days (b) the numbers and description of employees to be
or less, consultation must begin 90 days before the dismissed; (c) the method of selection for redundancy;
first dismissals take effect. In cases involving less than (d) the procedure and timing of dismissals; and (e) the
100 but at least 20 employees, consultation must begin method of calculating any non-statutory redundancy
30 days before that date. payments, i.e. payments extra to the basic requirement.
Consultation must also include a consideration of ways
■ Appropriate representatives must be given access to to avoid the redundancies and/or to reduce the number
employees who are to be or may be made redundant to be dismissed and to mitigate the consequences of the
and facilities, e.g. a telephone and office, must be made dismissals which do take place.
available to them.
If a company is in the hands of an insolvency practi-
The employer’s other obligation is to notify BERR of tioner that practitioner must also follow the above pro-
proposed redundancies. The obligation is to give written cedures, though there may be special circumstances, such
notice to BERR: as the immediate collapse of the company, which make
this impossible.
■ at least 90 days before any notice dismissal has been
issued in the case of 100 or more redundancies; General standards of fairness for redundancy were laid
down by the EAT in Williams v Compair Maxam (1982).
■ at least 30 days before any notice dismissal has been These were the giving of maximum notice; consultation
issued in the case of 20 or more redundancies. with unions, if any; the taking of the views of more than
one person as to who should be dismissed; the require-
BERR has issued new regulations on notifying collective ment to follow any laid down procedure, e.g. last in, first
redundancies. The Collective Redundancies (Amend- out; and, finally, an effort to find the employees con-
ment) Regulations 2006 (SI 2006/2387) amend s 193 of cerned alternative employment within the organisation.
the TULR(C)A 1992 to make it clear that employers It should be noted that in Meikle v McPhail (Charleston
must notify the Secretary of State at least 30 or 90 days Arms) (1983) the EAT stated that these guidelines would
(depending on the number of redundancies) before any be applied less rigidly to the smaller business.
notice of dismissal has been issued rather than before the
first of the redundancies takes place. The employees thus As we have seen, when a worker is to be made re-
get the full consultation period plus pay for the notice dundant, the ACAS code of practice and the decision in
period plus any redundancy package. Williams v Compair Maxam (1982) (above) both stress
the importance of consultation. An employer who does
The employer must give a copy of the notice to the not act properly will no longer be able to say that, since
relevant appropriate representatives. subsequent events justified redundancy as where the
firm was insolvent, there was no point in consultation.
If there are special circumstances which make it not An employer who fails to consult may face the more
reasonably practicable for the employer to comply with costly claim of unfair dismissal rather than redundancy.
the requirements, he must do everything that is reason- However, the law does not lay down that there must
ably practicable. If the special circumstances prevent the always be consultation, as the Eclipse Blinds case shows,
full required notice being given, the employer must give but in most cases the law will require it.
as much notice as possible. Failure to comply with the
above BERR requirements means that the employer can Individual consultation may be required where the
be prosecuted and fined. numbers are less than 20 and even where the numbers
have been more, there has been consultation with rep-
Complaints about failure to consult can be made to an resentatives (Mugford v Midland Bank plc (1997)). The
employment tribunal by any employee who has been or case states that a tribunal will at least listen to an allega-
might be dismissed as redundant or by a recognised trade tion of unfairness by an individual even where the usual
union or by any employee representative. The tribunal methods of consultation have been carried out.
may make a protective award requiring the employer to
pay remuneration for up to 90 days where 90 days’ min- It should also be noted:
imum notice should have been given, or up to 30 days in
any other case in which consultation was required. ■ that consultation must cover employees who have
volunteered for redundancy; and
Consultation was firmed up by legislation in 1993
which inserted new provisions into the TULR(C)A 1992,
under which consultation must cover specific areas as

555