conversion of fixed terms to permanent contracts: what changes in terms are permitted?

Huet v Université de Bretagne occidentale is a case referred to the European Court of Justice (ECJ) from the administrative court in Rennes concerning the French equivalent of the Fixed-term Employees Regulations and makes an important practical point. The background was that Mr Huet had a series of fixed term contracts as a researcher at the université de Bretagne occidentale for a total period of six years. He was then given a permanent contract – but with a different title and slightly reduced pay, although his duties remained the same. He asked for his contract to be amended and brought a legal challenge when his request was refused.
The ECJ decided that there is no rule that fixed term contracts have to be converted into a permanent contract in identical terms once they have been renewed for longer than four years.

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discrimination on the grounds of marriage or civil partnership

Last February, we reported on Dunn v Institute of Cemetery and Crematorium Management, which suggested that it could be unlawful to discriminate because a person is married to a particular person, and not simply on the ground that he or she is married. Hawkins v (1) Atex Group Ltd (2) Age Korsvold (3) Malo de Molina (4) Reardon looks at this issue and makes the point that it is crucial that the relationship is one of marriage (or civil partnership), and not just any close personal relationship. The case arose when a husband, wife, and their daughter were all dismissed on the ground that the husband had disobeyed a company instruction not to employ family members. His wife did not have enough service to make a claim of unfair dismissal, and so brought a claim alleging that the dismissal was discrimination on the ground of marital service. The claim was struck out as having no reasonable prospect of success and the Employment Appeal Tribunal upheld this decision.

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are TUPE provisions limited only to contractual terms?

In Abellio London Ltd (Formerly Travel London Ltd) v Musse & Ors the Employment Appeal Tribunal gives us a useful reminder that the right of employees to resign in response to a detrimental change of terms on a transfer of an undertaking is not restricted to changes in to their contractual terms. When a transfer takes place, and employees are not happy with it, they have two options. They can inform either the transferring employer, or the transferee employer, that they object to becoming employed by the transferee, in which case their employment ends without any dismissal – or any right to make any claim. If, however, the transfer involves a substantial change to their working conditions which is to their detriment, they can resign, and will be treated as dismissed.
Abellio dealt with claims by several London bus drivers on route 414, who were based at a depot in Westbourne Grove. When the route was transferred to Abellio under a service provision change they were expected to transfer to a depot south of the river in Battersea. While there was a mobility clause in the contract, this only mentioned depots run by the transferor, and not Battersea, which was an Abellio depot. Further it added significantly to their daily commute – by between one and two hours a day.

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establishing the pool for redundancy selection

In the February 2012 decision in Capita Hartshead v Byard the Employment Appeal Tribunal (EAT) looked at a selection pool of one and found that a dismissal from such a restricted pool was unfair where an employer had not genuinely applied its mind to the question of what the pool for selection should be.
Hard on the heels of that case came Halpin v Sandpiper Books Ltd, which also looked at a selection pool of one. The employer was a book distributor which wished to expand its business in China. It employed Mr Halpin to work as a sales manager there. It had no other presence in that country. When it decided to close its office in China and use established local agents instead, it decided that there was only one employee at risk of redundancy and dismissed him after a consultation process which failed to identify opportunities to redeploy him. He claimed unfair dismissal, on the basis that restricting the pool to the only employee in China was unreasonable.

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no unfairness in process for selecting candidates for alternative employment

Consideration of alternative employment is a part of a fair redundancy procedure and it is common practice for employees to be asked to attend interviews for alternative jobs, competing against other internal, and sometimes external, applicants.
In Samsung Electronics (UK) Ltd v Monte-D’Cruz the Employment Appeal Tribunal (EAT) overturned a finding of unfair dismissal by an employment tribunal, which held that a redundancy was unfair, in part because the criteria used for selecting candidates for an alternative job were subjective and “nebulous”. The competencies against which applicants were assessed were “creativity, challenge, speed, strategic focus, simplicity, self-control/empowerment, customer focus, crisis awareness, continuous innovation and teamwork/leadership”. The tribunal thought it would have been better to select by reference to a person specification, and that past performance was not properly taken into account. 

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establishing the trigger point for employers’ liability insurance

The decision of the Supreme Court in BAI (Run Off) Ltd v Durham & Ors is the most recent chapter in long running litigation on the liability of insurers under policies taken out by employers to cover them for industrial diseases contracted by employees. The litigation arose over the liability of insurers for mesothelioma, an incurable form of cancer caused by exposure to asbestos, which can take up to 40 years to develop after a single exposure. Because of the long time lag, by the time employees become aware that they have suffered the injury, their employer may have been defunct for many years, so they are entirely reliant on insurance cover in any compensation claim. A group of mesothelioma sufferers, and their families, brought proceedings to recover compensation, and the employers’ insurers denied liability.

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how far can cost considerations be a justification for age discrimination?

Woodcock v Cumbria Primary Care Trust is a decision of the Court of Appeal addressing the extent to which the cost factor can justify discrimination on the grounds of age. It dealt with the case of an NHS chief executive, Mr Woodcock, whose post with a PCT "disappeared" during a reorganisation. He was warned of possible redundancy, and spent some time working on other short term projects whilst informal discussions took place about finding him an alternative job. However, formal consultation was not started for several months, nor was he given the year’s notice to which he was contractually entitled. A date for a consultation meeting was finally set in July 2007. However, as Mr Woodcock’s 49th birthday in June 2007 loomed, it dawned on someone at the PCT that if he was not given notice quickly, he would still be employed at the age of 50, at which point he would be entitled to take early retirement, at vast expense to the employer. A decision was taken to give him notice without waiting for consultation to happen, to avoid this cost.

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Paper boys and girls in Crawley served with redundancy notices

In an extraordinary turn of events the regional newpaper conglomerate Northcliffe Media, which publishes 113 newspaper titles, has served redundancy notices on newspaper boys and girls in Crawley. Unsurprisingly the young workers have turned to social media by setting up a Boycott the Crawley News Facebook page. According to a report in the Press Gazette Hannah, the founder of the Facebook page, stated:
They should have looked after the people who had looked after them for over 20 years, the distributors who had done a fantastic job. They should have been given the chance to negotiate costs and lower their fee if necessary.

Only as a last ditch attempt should they have been ruthless. They didn’t contact the advertisers to see if they would increase their payments, they didnt contact the distributor…no effort at all actually. Just push the paper boys and girls and the distribution company aside and go with the cheap foreign labour

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watching weight – and employment status

Employment status often falls to be considered by courts and tribunals, not least because so many important consequences flow from it – employment rights, for example, and tax and NI treatment. Weight Watchers v HMRC is a decision of the Upper Tribunal (Tax and Chancery Chamber) concerning the employment status of Weight Watchers leaders. It examines the key three ”tools for identifying an employment relationship” of mutuality of obligation, control, and that the terms are otherwise consistent with an employment contract, and makes some interesting observations on how these apply in the particular case.
Weight Watchers leaders have contracts with the Weight Watchers organisation (WWUK) which specifically state that leaders are independent contractors. Under these contracts they run meetings, arrange hire of premises by WWUK, recruit clerks and “weighers”, receive a commission based on numbers attending meetings, and are reimbursed some of their expenses.

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disability adjustments for exams

The second of this month's two disability cases, Burke v The College of Law & Anor, was a decision of the Court of Appeal concerning a mature student at the College of Law who had multiple sclerosis. He was seeking to qualify as a solicitor, and over the period of the legal practice course agreed a number of adjustments with the College to mitigate the effect of his disability. As the exams approached, he made requests for further special arrangements. These, including 60% extra time to complete exam papers with opportunities to take breaks, were agreed. However, part way through the exams, Mr Burke asked for yet more adjustments, including being allowed to take the remaining exams at home in Brighton and unsupervised. The College refused this, but did offer to arrange accommodation for him near the college during the exam period.

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