We’re barely into 2020 and we seem to be on something of a roll with stories about sex discrimination. Yesterday, I discussed the issue of equal pay.
Only this morning I was flicking through the newspaper and came across another story, this time, concerning pregnancy discrimination.
Helen Larkin was dismissed from her post with the Liz Earle Beauty Company on the grounds of her pregnancy. Her employer was restructuring the company and refused to consider Ms Larkin for two alternative posts within the organisation. This refusal to consider suitable, alternative employment appeared to be motivated by the fact that Ms Larkin would shortly be going off on her period of maternity leave.
This treatment amounted to unlawful direct discrimination in terms of Sections 13 and 18 of the Equality Act 2010. Her dismissal would also be automatically unfair in terms of the Employment Rights Act 1996.
Consequently, Ms Larkin was awarded over £17,000 in compensation. This sum, of course, reflects an element to injury to feelings (the so called Vento Bands or Guidelines).
A study carried out jointly by the UK Government Department (Business, Innovation and Skills) and the Equality and Human Rights Commission previously discovered that some 54,000 women per year in this country were forced out of their employment for reasons related to pregnancy and/or maternity.
A link to a summary of the research on the website of the Equality and Human Rights Commission can be found below:
Again, as I noted in yesterday’s Blog (New Year, same old story …), we have had anti-discrimination laws in the UK for nearly 45 years and yet we still regularly hear stories about pregnancy and maternity discrimination.
Readers might be interested to learn about the work of a pressure group (Pregnant then screwed) whichcampaigns to end the ‘motherhood penalty’:
Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.
We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports ).
It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.
Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.
The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.
Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.
So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).
In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.
Perhaps Amazon needs to go back to the drawing board …
A link to an article on the BBC News App can be found below:
… well now Jordi Casamitjana can believe officially. He has just won part of his Employment Tribunal case (Casamitjana v League Against Cruel Sports) which confirms that ethical veganism is a protected philosophical belief in terms of Sections 4 and 10 of the Equality Act 2010.
Please note, however, that the Employment Tribunal is yet to determine whether Mr Casamitjana was dismissed because of these protected beliefs – that is another matter.
The full Employment Tribunal judgement doesn’t appear to be available yet, but I hope to post a link to this very soon.
In the meantime, please find a link below to the BBC News App which is covering the decision:
It has just been announced that the well known UK construction company Balfour Beatty has just had a contract terminated by one of its clients.
The client in question is MI6 or the UK Special Intelligence Service, the equivalent of the CIA and the employer of Britain’s best known (but fictional) spy – James Bond. The Service is based at Vauxhall Cross on the River Thames.
Termination of contract can be a pretty dry area, but mix it in with the world of secret intelligence services and you have a story that will be of interest to a potentially large audience.
The company’s shareholders will almost certainly care about this and a large part of the public will be keenly interested to know the facts behind this development.
What went wrong?
Balfour Beatty had been contracted to refurbish the HQ of MI6. In order to carry out the job, the company had in its possession floor plans of the building. Somehow these plans went missing – although they were later recovered – but too late the damage had been done.
Mindful of the mind boggling ramifications of this huge security breach, the UK Foreign Office, which has overall responsibility for the work of MI6, promptly removed Balfour Beatty from further involvement in the middle of the refurbishment project.
A link to the story as reported in The Financial Times can be found below:
I would assume that the Foreign Office is on pretty safe legal ground when it made the decision to terminate Balfour Beatty’s contract. The loss of highly confidential documents by the company could represent nothing less than a material breach of contract. This arises in situations where one of the parties acts in such a way that it completely undermines the contract. The breach, in other words, is so serious because it goes to the very roots of the contract.
The victim of the breach can then potentially use the remedy of rescission i.e. terminate the agreement. The remedy of damages is also available to the victim.
Rescission is actually a much more common remedy than you otherwise might think. In terms of both the Sale of Goods Act 1979 and the Consumer Rights Act 2015, a buyer may choose to terminate a contract of sale in situations where the trader supplies goods that fail to comply with, for example, the implied duty of satisfactory quality.
In employment contracts, an employer is entitled to dismiss an employee in circumstances where the individual commits an act of gross misconduct (theft, violence, gross negligence or failure to follow lawful orders). The Employment Rights Act 1996 recognises that there will be situations where the employer is entitled to terminate the contract of employment and there will be nothing unfair or wrongful about the dismissal (presuming, of course, that proper disciplinary procedures have been followed).
In the well known Scottish employment law decision of Macariv Celtic Football & Athletic Club  IRLR 787 SC, a football manager had his contract terminated quite legally by his employer owing to the fact that he had repeatedly failed to follow lawful and reasonable orders. This failure by the employee to honour the terms of his contract was nothing less than a material breach of the agreement.
Conversely, an employee may choose to regard the employment contract as terminated in situations where the employer has breached the implied duty of trust and good faith. This could occur where the employee was subjected to bullying and harassment by colleagues and the employer (being aware of this) does nothing meaningful or concrete to deal with this. In the face of the employer’s indifference (or collusion), the employee could regard him/herself as constructively dismissed.
Particularly serious for the employer could be situations where the bullying or harassment are motivated by hostility towards an individual’s protected characteristic in terms of the Equality Act 2010 e.g. age, disability, gender reassignment, race, religion or belief, sex, sexual orientation.
Back to Balfour Beatty: it looks as the company has no one to blame for this mess, but themselves. MI6 or the Foreign Office obviously felt that the loss of sensitive (Top Secret?) documents was such a serious development that there was no choice to terminate the contract with immediate effect.
In a number of previous blogs (Stormy Weather, I’m at the end of my tether! Locking Horns; and Frustration of Contract?), I discussed the issue of termination of contract when unforeseen factors outwith the control of the parties intervene.
It might be the destruction of the subject matter of the contract; death of one of the parties in an agreement involving the provision of personal services; or even particularly bad weather or unforeseen events.
Potentially, these factors may frustrate the contract in the sense that it can no longer be carried out or performed in the manner which the parties originally intended. In such cases of genuine frustration, the contract or agreement is terminated and the parties are discharged from their obligations.
There have been some famous cases over the years with frustration of contract at their heart:
Taylor v Caldwell  EWHC QB J1; 122 ER 309;3 B. & S. 826
Krell v Henry  2 KB 740
Herne Bay Steam Boat v Hutton  2 KB 683
Vitol S.A. v Esso Australia Ltd. (The Wise)  1 Lloyd’s Rep. 451
A contract is not frustrated if it becomes more expensive or difficult to perform or if the alleged frustrating event could have been foreseen (and presumably dealt with) (see Davis Contractors Ltd v Fareham Urban District Council  AC 696 and Tsakiroglou & Co Ltd v Noblee Thorl GmbH  AC 93).
The Emiliano Sala Affair
This leads me back to a story which I have been following with interest over the last few months: the tragic death of the Argentinian footballer, Emiliano Sala in a plane crash over the English Channel in January 2019.
It will be recalled that Sala’s former Football Club, the French side FC Nantes had just agreed to him transferring to the English Premier League side, Cardiff City FC. The transfer fee was £15 million, but shortly after the accident, Cardiff City claimed that the transfer had not gone through and it had no obligation to pay the first part of this figure. In other words, Sala was never an employee of Cardiff City according to this argument because the paperwork had not been finalised.
In normal circumstances, where a contract involves the provision of personal services (and a contract of employment certainly fits into this category), the death of a new or prospective employee would tend to terminate the agreement. Death is pretty much the ultimate frustrating factor – especially in cases involving unforeseen deaths.
The world of top flight football, however, would seem to be different and does not seem to be bound by the considerations that govern us mere mortals.
FIFA, the governing body, has now spoken and determined that Cardiff City will have to pay the first part of the transfer fee (£5 million in case you’re asking) to FC Nantes. Failure to do so may result in FIFA sanctions being imposed on Cardiff (a signing ban).
Please find a link below to the FIFA press release:
Ultimately, whatever way this tragic story ends, I can’t help but wonder whether FC Nantes or Cardiff FC had the foresight to insure Sala’s life in the event of untimely and unforeseen death. Sadly, the fact that a young man with a promising future died in a horrible accident seems to have got lost along the way while Nantes and Cardiff polish up their legal arguments.
This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.
The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.
Asda has stated that if employees don’t agree to the new contracts of employment by 2 November 2019, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company Asda is arguing.
What’s the legal position?
Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.
The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.
Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).
The statutory periods are detailed below:
One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks
It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.
Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.
Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.
What if some people still refuse to sign the new contracts after their statutory period of notice has expired?
There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.
Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).
No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.
A link to the story on the Sky News website can be found below:
It has since been reported in the Daily Mirror newspaper that one of Asda’s longer serving employees who was sacked for refusing to accept the new contract is intending to lodge an Employment Tribunal claim.
What has European Union law done for workers in the UK?
This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.
The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.
The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.
It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.
The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.
There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.
The basic rights and protections that the Regulations provide are:
a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
a right for night workers to receive free health assessments (Regulation 7)
a right to 11 hours rest a day (Regulation 10)
a right to a day off each week (Regulation 11)
a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
a right to 5.6 weeks (or 28 days) paid leave per year
Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.
It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.
If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.
Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.
What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.
No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.
Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.
One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.
A link to the story about working conditions in China can be found below: