Employment Law Newsletter – January 2013

Welcome to our first Employment Law Newsletter 2013, keeping you up to date with changes in employment law and informing you of recent case law developments.

For a change, I am pleased to tell you that there has not been a huge amount of case law or new Legislation in the last few months.  It is no doubt the quiet before the storm!  

The Government has however announced plans to tackle long term sickness absence.  It is proposed that employers will have access to an advisory service where sickness absence lasts more than 4 weeks.

The Government has also issued a consultation on reforming legislation regulating employment agencies.  We will keep you up to date on the progress of these in future newsletters.


Fair Reason for Dismissal – Redundancy

The EAT Held in Fish –v- Glen Golf Club that the Club Secretary had been fairly dismissed by reason of redundancy despite long standing concerns about his conduct and capability. 

Mr Fish sought to prove that his dismissal had been by reason of conduct and capability rather than the stated reason of redundancy.  The Respondents were able to show that he was one of 4 employees dismissed on the grounds of redundancy and that they were making serious losses.

The EAT stated that looking at the evidence the principle reason for dismissal was redundancy and any criticism of Mr Fish’s conduct or capability were very much in the background.

Fixed Term Contracts

The Court of Appeal has Held in Hudson –v- Department of Work and Pensions that time worked by Ms Hudson under a training scheme did not count towards the 4 years needed for a fixed term employee to become a permanent employee.  The Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations 2002 stipulate that anyone employed under a succession of fixed term contracts will become a permanent employee after 4 years unless you are able to show that continuation of such fixed term contracts is objectively justified.

There is however an exemption for employees on a training/work experience scheme arranged by the Government or funded by the European Community. 

Having been given a permanent post Ms Hudson argued that being given a proper post on a fixed term contract following 3 years on such a training scheme meant she could now have the status of a permanent employee and as she was no longer working under a training scheme the exclusion did not apply.  However the Court unanimously disagreed with her arguments.

Religious Discrimination

Hot off the press is the case of Nadia Eweida –v- British Airways in which the European Court of Human Rights have ruled that the English Courts breached a British woman’s Freedom of Religion Rights to wear a crucifix in the workplace.  It was described as a visible symbol of her faith.

British Airways’ Uniform Policy requires staff members to conceal religious items that they wear under their clothes.  Miss Eweida lodged a claim for Religious Discrimination.  She did not succeed in the lower Courts.

However the Court of European Human Rights ruled that there had been a failure to strike a fair balance between British Airways’ legitimate wish to project a certain corporate image and this particular employees right to manifest her religion. 

However, this should be contrasted with the case of a nurse whose manager told her that wearing a crucifix outside her uniform was a health and safety risk to patients and she was instructed to remove it.

In that case the Court of European Human Rights found in favour of the employer and stated that Hospital Managers were better placed to make decisions about clinical safety than a Court.

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