It's a trap!

Employment Law Newsletter - June 2014


In this issue ...

  Something must be done, mustn't it?   Are you ready?  
  Death and holidays   How long is a piece of string? At last, a partial answer  
  Adjustments and associative discrimination   Common sense takes the heat out  

Something must be done, mustn't it?

Finally, the talk about regulating 'zero-hours contracts' (ZHCs) has produced something. Clause 139 of the Small Business, Enterprise and Employment Bill will make exclusivity clauses (where the individual must not work for anyone else) in such arrangements unenforceable. But does anyone really know what proportion of ZHCs feature these clauses and, where they do, whether the restriction is observed by the individual or whether the individual is even aware of the constraint he or she is meant to be under (after all, another stated concern in the debate over ZHCs was that there was insufficient 'transparency' on content).

The next point is that the unenforceability of an exclusivity clause will only be meaningful if an individual has a remedy available should they suffer some detriment for working elsewhere. There is provision in the Bill for the Secretary of State to make Regulations, but, of course, the devil will be in the detail.

In any event, we are not sure that the Bill's definition of a ZHC will prove to be watertight. It is:

'[Any] worker's contract under which
(a) the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker; and
(b) there is no certainty that any such work or services will be made available to the worker.'

Although this drafting avoids the obvious trap of defining a ZHC by simple reference to a number (0), we think the similarly obvious difficulty might still arise. The words we have underlined in the definition can readily be taken to mean that the entire work arrangement under the contract has to be of the 'non-guaranteed' type – so, if a contract guarantees, say, just one hour per week, it will not be a ZHC.

Ultimately, there must be doubt whether this proposed regime will really get to the root of the stated problem with ZHCs – uncertainty on income and consequent economic vulnerability, with possible resort to state benefits et cetera.

Perhaps almost zero will happen on ZHCs. Carry on as you are! If you were, that is.


Death and holidays

Hopefully not natural partners, but the two subjects have crossed in Bollacke v Klaas & Kock. The Court of Justice of the European Union ruled that a worker's entitlement to accrued paid annual leave survives his or her death. This is not some novel interpretation of what might be available in the afterlife, rather a simple decision that national laws must not 'extinguish' a dead worker's accrued leave without ensuring that employers make a payment in lieu of accrued leave to the estate.


Adjustments and associative discrimination

Associative discrimination – whereby a person can allege that they have been unfavourably treated because of their association with another possessing a protected characteristic – first surfaced in relation to disability discrimination law (Coleman v Attridge Law). It is now accommodated in the wording of the Equality Act 2010 and extends to most protected characteristics (the only one specifically excluded is marriage/civil partnership).

However, there are limits to its application. In Hainsworth v Ministry of Defence, the Court of Appeal (CA) has held that it cannot be applied to the employer's duty to make reasonable adjustments. Hainsworth was a civilian employee of the armed forces. She requested a transfer to the UK from her base in Germany in order that her daughter with Down's syndrome could have specialist education and training. Her employer refused, but the CA rejected her claim that this was a failure to make reasonable adjustments. It said that the duty to make adjustments only applied to disabled employees or prospective employees and any attempt to extend it would be doomed to failure.


Are you ready?

The new regime for requesting flexible working has started. The key innovations are that anyone with 26 weeks' service can make a request (for whatever reason) and a new, simpler process for considering requests applies (in essence, the employer must deal with the matter within three months and must act reasonably in doing so). The matters to be covered by the employee's request, the reasons for an employer's refusal and the grounds upon which the employee can challenge a refusal in the tribunal all remain the same.

It remains to be seen whether the expanded entitlement and simplified process will prompt an avalanche of requests. However, even if there is a sudden, concentrated glut or an increased flow over a slightly longer period, managers should remember that they are not required to grant all requests in order to be even handed. As the law itself explicitly recognises (in the listed reasons for refusal), there is a business to be run and the interests of that business and those of other employees have to be balanced.


How long is a piece of string? At last, a partial answer

'Constructive' dismissal is defined as being where an employee resigns, with or without notice, in response to a fundamental breach of the contract by the employer that entitles the employee to resign without notice. Two recent cases have dealt with some aspects of this concept.

In Chindove v Morrisons, the Employment Appeal Tribunal (EAT) was faced with a resignation that occurred some six weeks after the employer's conduct. The question was whether the employee had 'waived the breach' and 'affirmed the contract' simply because of the period of time between breach and resignation. The EAT said not and ruled that, of itself, the passage of time does not affect an employee's ability to rely on the employer's breach. The key to the waiver/affirmation question lies in looking at the employee's conduct during the period in question. Here, the employee had been off sick for much of the six weeks, so there was nothing to indicate waiver/affirmation.

In Cockram v Air Products, the EAT was dealing with a situation where the employee responded quite quickly to the employer's breach, giving notice of resignation rather than walking straight out of the door. So far, so good. It all looks pretty much within scope of the definition. But, fatally, Cockram had given more notice than he was required to give under the terms of his contract (seven months rather than three). So, said the EAT, he had affirmed the contract and his constructive dismissal claim must fail. Strictly, this affirmation should not arise from the passage of time before his initial reaction (Cockram gave notice quite quickly and the statutory words contemplate the giving of notice). Rather it should stem from the fact that his apparent willingness to remain in employment for such a long period suggested that, when he gave notice, he had also already come to the conclusion that he was able to sustain a working relationship. So, even if the employer's conduct might have been viewed as a fundamental breach, it lost that effect here. Of course, the Cockram decision leaves things in some doubt – for example, if there was a three-month notice period, would giving just one day more than that be fatal?


Common sense takes the heat out

At the risk of condemning the rest of the summer to be a cold, windy washout, it may be worth reminding ourselves of what the law says about maximum temperatures at work. The Workplace (Health, Safety and Welfare) Regulations 1992 set minimum temperatures – 16°C for most workers and 13°C for those whose jobs involve strenuous physical effort – but no maximum.

However, the Health and Safety Executive says the acceptable range for most people is between 13°C and 30°C, depending on what people are doing and the conditions in the workplace, for example the amount of ventilation. Employers have a duty to ensure that temperatures are 'reasonable' so common sense should be your guide, rather than strict adherence to any figures quoted in the regulations.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Jo Hale on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.