In Employment Law terms, May seems to have been a relatively quiet month. There is still of course a lot of discussion ongoing following the For Women Scotland decision, and the Employment Rights Bill (ERB) continues to make its steady way through Parliament.
Otherwise, it seems that everyone has been too busy enjoying the unseasonably warm weather! For this month’s newsletter, we therefore have a brief update on the ERB and the Equality and Human Rights Commission’s (EHRC) consultation following For Women Scotland, and a couple of interesting cases to report on…
EHRC Consultation
Following the decision in For Women, the Equality and Human Rights Commission issued an interim update on what this decision meant. This guidance was quite roundly criticised, and the EHRC has now issued a consultation on its Code of Practice for services, public functions and associations. As yet, there is no consultation on the Code of Practice on Employment. However the EHRC website does say that the Gender Reassignment Discrimination guidance is under review.
We will of course keep you informed as things progress, but in the meantime, this remains an area fraught with difficulties and we would recommend taking advice on any issues which you may be facing concerning gender reassignment.
Employment Rights Bill – where are we now?
The Employment Rights Bill is currently in the committee stage in the House of Lords, with three more sittings diarised for 3, 5 and 10 June. Following completion of the Committee stage, a report will be produced before a third reading takes place in the House of Lords. We are still therefore some way off from a final form of the Bill, and we will keep you updated as this progresses.
For more information about the Employment Rights Bill, see previous newsletter.
Part Time Workers – Augustine v Data Cars Ltd
In this recent case, the Court of Appeal has held that there was no less favourable treatment of a part time worker, because the worker’s part-time status was not the only reason for the alleged ‘unfavourable’ treatment.
The Claimant was a taxi driver, and was charged the same flat-rate ‘circuit’ fee (£148 per week) to access the Respondent’s booking system as full-time drivers. This meant that he was effectively earning a lower hourly rate than his full-time counterparts, once the fee was taken into account. The Claimant alleged that this amounted to less favourable treatment of part time workers.
The Court of Appeal considered that it should follow a previous decision of the Court of Session (in Scotland) which meant that the ‘sole’ reason for treatment complained of must have been the part-time status of the worker in order for the claim to succeed. If there was another reason for the treatment, then the claim must fail. However, the Court of Appeal did express concerns that the decision in the earlier case was wrong and therefore made clear that the Claimant should begiven permission to appeal to the Supreme Court.
For the time being, it remains that the part-time status must be the sole reason for the treatment complained of, but we will keep you informed of any developments in this area.
TUPE and Vicarious liability – ABC v Huntercombe (No 12) Ltd and others
As employers will likely be aware, the Transfer of Undertakings (Protection of Employment) Regulations 2006 operates to transfer all ‘rights and liabilities’ arising out of an employee’s contract of employment to the new employer on a transfer of an undertaking, or a service provision change. The question arose in this case as to whether that included vicarious liability owed to a third party, as a result of a transferring employee’s actions.
The Claimant in this case had brought a claim seeking damages for injuries suffered whilst she was an in-patient at a hospital owned and operated by the First Respondent. Her case was that the First Respondent was vicariously liable for the acts of two of its employees. However, following a TUPE transfer, those two employees had transferred to the Second Respondent. The Court therefore was required to determine whether liability for the employees’ acts transferred with the employees to the Second Respondent, or remained with the First Respondent.
The Court found that the previous case of Doane v Wimbledon Football Club was wrongly decided, and that liability remained with the First Respondent and did not transfer to the Second Respondent as a result of the TUPE transfer. The Claim was therefore rightly against the First Respondent as the employer at the time of the acts complained of.
This case provides helpful clarification for employers and will no doubt be welcome news for any employer taking on employees under a TUPE transfer.
Contact details
Gemma.Sherbourne@tyrlaw.co.uk +44 (0)7535 652758 +44 (0)113 521 7556
