Issue 100 - March 2008
Airbusted!
In Airbus UK Limited v Webb [2008] EWCA Civ 49
the Court of Appeal ruled that an employer can take
into consideration conduct for which a warning was
given but has subsequently expired. Note however,
that an employer cannot rely on conduct that resulted
in an expired warning as the principal reason for
dismissal.
In 2004, Mr Webb, employed as an aircraft fitter by
Airbus UK Ltd, was given a final written warning as
he had been caught washing his car during work
time. The warning was expressed to expire after
twelve months. Three months after the warning
expired, Mr Webb was then discovered watching
television with some colleagues during working
hours. All the employees were found guilty of
misconduct but whereas his colleagues with clean
disciplinary records were given warnings, Mr Webb
was dismissed. The Tribunal inferred from this that
the employer must have taken into account Mr
Webb’s previous warning.
The Court of Appeal had to decide whether the
dismissal was within a reasonable range of
responses. It held that whilst the warning may have
expired, no absolute time limit could be placed on
when the misconduct itself could be taken into
account. When deciding whether Mr Webb should
be dismissed for the second instance of misconduct,
the employer was entitled to consider the previous
incident. This was a reasonable response and the
dismissal was fair.
Employers taking into account expired warnings
should remember that the latest offence must be
sufficiently serious to justify dismissal in itself. It
remains the case that where an expired warning is a
principal reason for a dismissal it is highly likely to be
found to be unfair. Employers also need to be
cautious about referring back to very old warnings; in
this case the expired warning was only three months
old.
Agency relationships: can an agency worker be employed by an end user?
In the case of James v London Borough of
Greenwich [2008] EWCA Civ 35 the Court of Appeal
gave further consideration to the issue of whether an
agency worker can be an employee of the end user
of his or her labour. The Court of Appeal stated that
Tribunals need to consider whether it is necessary to
imply a contract between the end user and c laimant
on the facts of each case.
In the instant case it held that this was not necessary
as the relationships between the parties could be
clearly understood by looking at the express
contracts between them. It found that the Claimant
was not an employee of the end user.
Ms James was directly employed by Greenwich
Council until 1997 when she left. Shortly afterwards
she joined an employment agency (agency A) and
was sent to work for the Council again. In 2003 she
switched to another agency (agency B) as she stood
to earn a better rate of pay. She was still sent to
work at the Council. Ms James had an agreement
with agency B and in turn agency B had a contract to
supply the Council with staff.
Agency B sent a replacement to work at the Council
whilst Ms James was unwell in 2004. When she was
fit to work again she was told that she was no longer
needed there. Ms James claimed unfair dismissal
against the Council. She was unsuccessful because
the contractual documentation suggested she did not
have a contract with the Council and she was treated
and acted as an agency worker.
This should give end users reassurance that where
there are express agreements between the parties,
and the arrangement is not a sham, it is unlikely that
an agency worker will be held to be their employee.
There is a Private Members Bill seeking to regulate
the use of agency workers going through Parliament
at present so there could be further big changes in
this area in the future.
Quickfire
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The case of McCoy v McGregor and Sons Limited
and others 00237/07IT is a reminder that
employers should make sure that the language
they use when advertising for jobs and when
interviewing will not expose them to claims under
age discrimination law. The employer advertised
for a sales rep with "youthful enthusiasm". The
claimant applied and when he attended an
interview he was asked questions that linked his
enthusiasm to his age. When the 58 year old
claimant was not given the post, but two less
experienced candidates 15 years his junior were
employed, he was able to bring a successful age
discrimination claim.
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The provisions of the Immigration Asylum and
Nationality Act 2006 came into force on the 29th
February 2008. Employers who hire illegal
workers now face civil penalties of up to £10,000
per employee. Committing a new criminal offence
of knowingly employing someone who is subject
to immigration control could result in a jail term of
up to two years and/or an unlimited fine. We shall
be issuing a special briefing offering guidance on
how to deal with these changes shortly.
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In English v Thomas Sanderson Blinds Ltd
UKEAT/0556/07 Mr English was teased by his
work colleagues for being gay on the basis that he
lived in Brighton and went to public school. Mr
English claimed that he had been harassed on the
basis of his sexual orientation and sought redress
under the Employment Equality (Sexual
Orientation) Regulations 2003. The EAT held that
Mr English was not discriminated against on the
grounds of his sexual orientation because his
colleagues knew that he was not really gay.
However, Mr Thomas was given leave to appeal
to the Court of Appeal.
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The ECJ has held that the dismissal of a woman,
if related to her IVF treatment, can amount to
discrimination on the ground of sex contrary to the
EC Equal Treatment Directive (No.76/207). This
is relevant to the interpretation of the Sex
Discrimination Act 1975 Act. Employers should
ensure that their policies and actions do not
discriminate against female employees as a
consequence of their IVF treatment in order to
minimise the risk of a sex discrimination claim.
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A Berwickshire landowner had £7,919 deducted
from his single farm payment for failing to protect
wildlife. This was as a result of the gamekeeper
he employed being found guilty of eight offences.
The gamekeeper admitted using live pigeon
decoys and poisoning bait.
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Statutory sick, maternity, paternity and adoption
pay will increase on the 6th April 2008. SSP will
increase from £72.55 to £75.40 whilst SMP, SPP
and SAP will rise from £112.75 to £117.18.
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The EAT has upheld a re-engagement order
made by the Tribunal in the unfair dismissal case
of Home Office v Khan and another
UKEAT/0257/07. The effect of re-engagement is
that the employee will receive full compensation
for his losses since his dismissal; they will not be
reduced to reflect a failure to mitigate.
Note: re-engagement is to a different job with the
employer from the one the employee was
originally employed in; reinstatement is going
back to the original job.
Upcoming Events
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Birketts LLP will be hosting two Mock Tribunals in
conjunction with 12 King’s Bench Walk Barristers,
the University of Essex and the University of East
Anglia. The first Mock Tribunal will be held at the
UEA in Norwich on the Thursday 15th May 2008,
with the second to be held in Colchester (date to
be confirmed).
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Birketts LLP is jointly hosting the “War for Talent”
seminars with Cooper Lomaz, Larking Gowen and
Pathfinder. These seminars are focused on
giving you practical advice for finding and
retaining top talent within your business from the
point of view of solicitors, recruitment consultants
and accountants.
The dates for these seminars are:
Norwich – Thursday 17th April
Ipswich – Thursday 24th April
Kings Lynn – Tuesday 20th May
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Our Incentives and Rewards Team will be holding
a seminar on how to attract and retain key talent
by using share scheme incentives. This seminar
will be held in Ipswich on Thursday 17th April.
If you wish to attend any of these events please
contact Victoria Cole on 01603 756438.
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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