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birketts ilpEmployment Law Updates
If you would like to discuss anything you have read here, or wish to discuss another matter of Employment Law then please contact Jeanette Wheeler - Head of Employment Team, Norwich. 
Tel: 01603 756427 |
Issue 98 - January 2008 Before turning to the year ahead in future Employment Law Updates, let us guide you through the last of the noteworthy cases to come out of 2007. Anti-social hours bonuses – discriminatory? The case of Chief Constable of West Midlands Police v Blackburn and Manley considered the impact of the Equal Pay Act on the payment of bonuses to reward night working and is a useful reminder of the issues to consider when introducing bonuses of this nature. All employees at West Midlands Police (WMP) are expected to work nights as part of a three-shift system unless excused for childcare or medical reasons. To reward night-time working, WMP offered employees an anti-social hours bonus. Some of the female Claimants were unable to work nights due to childcare responsibilities and brought claims under the Equal Pay Act. They succeeded at the Employment Tribunal which held that although WMP had a legitimate aim in seeking to reward night-time working, the method by which they tried to do so could not be objectively justified. Instead, they stated that their aim could be achieved by paying the Claimants the bonus as if they had carried out nighttime working. This was a rather odd decision of the Tribunal given that paying everyone the same bonus would not achieve their aim of rewarding night-time working. This decision was overturned on appeal. The EAT held that nothing in the Equal Pay Act requires employers to deem women to have done something which they have not (i.e. night-time working in this case) since the Equal Pay Act does not require women to be compensated for the financial disadvantages suffered by those with childcare responsibilities. The EAT held that the aim of the scheme was to specifically reward those officers working nights and that aim could not be achieved if officers who had not worked nights were paid the same amount. As WMP had a legitimate aim of rewarding night workers and the means by which they did so was proportionate, WMP was able to justify its scheme and the Claimants’ claims were unsuccessful. This case highlights the importance of considering at the outset whether a bonus scheme has a detrimental impact upon women with childcare responsibilities and if so, establishing the organisation’s aim in introducing such a scheme followed by careful consideration as to whether there are less discriminatory ways of achieving that aim. Mud slinging and constructive dismissals! Some more good news for employers comes in the shape of RDF Media Group plc and another v Clements. Mr Clements was a shareholder and key employee of IWC Media, which was bought by the Respondent, RDF Media. On the acquisition of IWC, Mr Clements entered into a Service Agreement with IWC containing a clause restricting him from competing with IWC for six months after his employment had ended. Mr Clements later resigned and indicated that he intended to take up employment with a direct competitor of RDF, known as SMG. RDF placed him on garden leave. Four days after his resignation, SMG placed a story in the press concerning Mr Clements’ departure from RDF and the fact that it had poached him from RDF. The story contained a number of factual errors. RDF also spoke to the press the same day stating that Mr Clements had reneged on his contract and that he was thought to be still subject to a non-compete clause. Another article was published four days later in which the MD stated “If you take the money then you do the bloody job. It’s just very dishonourable”. Following this, Mr Clements wrote to RDF claiming that the press releases were not only defamatory but also in breach of the implied term of trust and confidence bringing his employment to an end. RDF brought a claim seeking an injunction to uphold the non-competition obligation and Mr Clements brought a counter-claim of constructive dismissal. The Court held that the comments made by RDF in the first press release were not sufficient to amount to a breach of trust and confidence and were made only to correct the inaccuracies of SMG’s previous press release. The Court held however that the comments of the MD to the press in the later press release were an attack on Mr Clements’ character and whether true or not, were beyond what was reasonable or proper in the circumstances and were calculated or likely to destroy the relationship of trust and confidence between Mr Clements and RDF. Interestingly though, the Court found that Mr Clements had himself earlier committed a breach of the implied term of trust and confidence when he had disclosed confidential information about projects he was currently working on to SMG and agreed with SMG that he would try and take some of those projects with him if he joined SMG. The Court therefore held that as Mr Clements had himself acted in breach of contract he could not later rely on RDF’s breach to resign and claim constructive unfair dismissal. Whilst the outcome is generally positive for employers, this case demonstrates the importance of controlling what statements are made to the press or other third parties when a key employee leaves the business in difficult circumstances. Had Mr Clements not acted in breach himself, the employer in this case would not have been able to uphold the restrictive covenants which were key for them. Unpaid overtime for part-time workers The European Court of Justice (ECJ) in Voss v Land Berlin recently held that a rule requiring employees to work more than five hours’ overtime a month in order to qualify for overtime pay was detrimental to parttimers and may be contrary to European law on equal pay (Article 141 of the EC Treaty). The Claimant in this case, a teacher in Germany, was employed for 23 hours a week compared to a fulltimer of 26.5 hours per week. German law provided that overtime may be required and would be unpaid for both part-timers and full-timers unless the employee (either full-timer or part-timer) worked over 5 hours in any month. The Claimant brought a claim in the national courts that was referred to the ECJ. She argued that she should be paid for overtime worked up to the standard full-time hours of 26.5 per week and that failure to do so was contrary to equal pay law. The ECJ agreed with the Claimant and held that the German rules on overtime give rise to a difference in treatment between full-timers and part-timers which is to the detriment of the part-timers because a parttime teacher who works 23 hours per week and 3.5 hours overtime gets paid less than a full-timer for exactly the same hours. It held that where this affects a considerably higher proportion of women than men (which is often the case), it would be contrary to equal pay law unless objectively justified. This case has significant implications for any employers that require part-timers to perform unpaid overtime and suggests that in the absence of justification, an employer should pay the part-timer in full until they have done sufficient overtime to equate to the normal full-time hours. All employers are therefore advised to review their policies on unpaid overtime and part-timers. This case does not deal with the rights of workers under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 as this was a case brought solely under equal pay law but arguably, it is possible that an employee could try arguing that unpaid overtime for hours below that of a full-timer is now unlawful under the Part-Time Worker Regulations, regardless of their gender. It is still thought to be good law that part-time employees can be paid their normal hourly rate for overtime worked under the hours of a full-time worker and only once they exceed a fulltimers hours, must they be paid the same enhanced overtime rate paid to full-timers. For example, if you pay a full-timer double their hourly rate for overtime and your full-time workers work 35 hours a week, only once a part-time worker has exceeded 35 hours a week must they be paid double-time and until such point, they can be paid for overtime at their normal hourly rate. Quickfire!
Early Bird Sessions – January 2008 Our next round of Early Bird sessions are being held on Friday 18th January and Friday 25th January in Norwich, and Tuesday 22nd January and Thursday 24th January in Ipswich. The topic will be: “Grievances from Hell and Disciplinary Dismissals” This topic will be dealt with in two sessions. Part One focuses on grievances and Part Two will focus on dismissals and will be looked at in our Early Bird sessions in May 2008. If you are interested in attending one of our sessions, please call Victoria Cole on 01603 756438 to book your place!
Birketts LLP are proud sponsors of the EDP’s Norfolk Recruitment Awards 2007 – for more details see here.Members of Birketts’ Employment Team also lecture on the UEA Employment Masters Course. The content of this document is for general information only. As always, specific professional advice should be taken on each individual matter © Birketts LLP 2008. Solicitors regulated by the Solicitors Regulation Authority. Birketts LLP is constituted as a limited liability partnership in accordance with the Limited Liability Partnerships Act 2000. |
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