Discrimination: unfavourable treatment


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The Employment Appeal Tribunal (EAT) has provided the first appellate guidance on what constitutes unfavourable” treatment for discrimination arising from disability under the Equality Act 2010.

Mr Williams reduced his hours to accommodate the effects of his disability. By July 2011, his hours had halved, with his salary reduced to reflect this. He accepted ill-health retirement in June 2013, at the age of 38.

Mr Williams complained to the employment tribunal that he was unfavourably treated because of something that had arisen in consequence of his disability, contrary to s.15 of the Equality Act 2010.

An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim.

The EAT upheld the respondent’s appeal pointing out that it was the claimant who had requested a reduction in hours, a request to which his employer willingly acceded. The employer was fulfilling its duty under the Equality Act 2010 to make reasonable adjustments.

The EAT stressed that  “unfavourable” treatment under s.15 of the Equality Act 2010 it does not mean the same as a “detriment” or “less favourable” treatment. Instead, it has a similar meaning to the use of the word in pregnancy discrimination, in the sense of “placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person” because of something that arises in consequence of his or her disability.

The EAT also said that it does not matter whether or not the alleged discriminator thought that what it was doing was justified, nor does it matter that it took every care to avoid making a discriminatory decision. What has to be shown to be justified is the outcome, not the process by which the outcome was achieved.

Citation: [2015] ICR 1197, [2015] UKEAT 0415_14_2107    

Case can be read (FREE) here: http://www.bailii.org/uk/cases/UKEAT/2015/0415_14_2107.html



Parallel facts, different sanctions?


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The Employment Appeal Tribunal (EAT) has found a dismissal was fair even though another employee involved in the misconduct at a work event received a more lenient sanction. Key differences justified the disparity of treatment.

HR practitioners can read the fact of the incident in MBNA Ltd v Jones EAT/0120/15 but what is interesting is that the EAT has reminded us that under existing case law (derived from Hadjioannou  Coral Casinos Ltd  [1981] IRLR 352) warning against adopting a ‘tariff’ approach and stated that it was of the highest importance that flexibility should be retained when an employer had to deal with work place misconduct.

The EAT (in a confirmed judgement Paul –v- East Surrey District Health Authority 1995 IRLR 305) has said there are three possible ways where decisions made by an employer in truly parallel circumstances in relation to a different employee may be relevant:

  1. employees may be led by an employer to believe that certain categories of conduct will be overlooked or will be more mercifully treated in the light of the way that other employees have been dealt with in the past,
  2. the dismissal in the instant case is not for the reason put forward i.e. that the asserted reason is not the real or genuine reason,
  3. ‘evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.’

In the judgement Waterhouse J said ‘It is only in the limited circumstances that we have indicated that the argument [disparity argument] is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument.” So, parallel circumstances will normally lead to the same outcome.

The expectation is highlighted by reference to the 1996 Act (as amended), that is the emphasis is upon the particular circumstances of the individual employee’s case which can be read as  “an employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, …”.


Paul –v- East Surrey District Health Authority 1995 IRLR 305

Hadjioannou  v  Coral Casinos Ltd  [1981] IRLR 352

 MBNA Ltd v Jones EAT/0120/15 [2015] UKEAT 0120_15_0109


Thanks for access to the free database provided by British and Irish Legal Information Institute

Xpert HR for highlighting the case of MBNA v Jones


TUPE (SPC): long-term sick


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An employee on long-term sick leave with little prospect of returning to work did not transfer to a new employer because he was not “assigned” to the team when the team he worked as a part of was transferred to another service provider, the Employment Appeal Tribunal (EAT) has confirmed in BT MANAGED SERVICES LTD v G EDWARDS & ERICSSON LTD.

“Mere administrative connection to that grouping is insufficient to constitute an employee as being assigned to the grouping in the absence of some participation in the grouping’s economic activity.”

At the time of the transfer the employee had not worked for over five years and unsuccessful attempts were made to provide him with alternative, less strenuous, work.  He was regarded from this time as permanently incapacitated. leading to the employment tribunal being told there was “no prospect of his ever returning to work”. However, he had remained nominally an employee of the firms assigned to the same unit, so that he could continue to take advantage of a permanent health insurance (PHI) scheme. When liability under that scheme expired, Edwards continued to receive payments from BTMS which were treated as an expense of his team.

The Employment Appeal Tribunal held that:

  1. The question whether an employee absent from work at the time of a service provision change was assigned to the relevant grouping was a matter of fact to be determined according to the circumstances of each case.
  2. Although absence from work, even lengthy absence, as at the time of the service provision change would not necessarily mean that an employee was no longer assigned to the grouping, an employee who had no connection with the economic activity of the grouping and would never do so in the future could not be regarded as assigned to that grouping.
  3. There is a clear link between the identification of the relevant organised grouping and the question of who is assigned to that grouping.
  4. As the organised grouping subject to the service provision change is defined by Regulation 3(2) by reference to the economic activities its purpose is to pursue, an employee who plays no part in those activities and will never do so is not assigned to that grouping.  Mere administrative connection to that grouping is insufficient to constitute an employee as being assigned to the grouping in the absence of some participation in the grouping’s economic activity.


Employment law expert Ed Goodwyn of Pinsent Masons, said that it was a further “maddening” example of the courts’ and tribunals’ approach which again limited the situation when employees would transfer where there was a service provider change (SPC).

“Since the SPC provisions were introduced in 2006, service providers have bid for contracts on the basis that TUPE would usually apply to anybody working on that contract.”  Clearly this is not the view of the judiciary who are eroding the burden.

Five years is a long time to be off sick and technically the employee is only in receipt of payments because of the PHI.


Appeal No. UKEAT/0241/14/MC

Bonuses impacting unfair dismissal


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Loss of earnings within an award can include any commission, bonus or other benefit that the employee reasonably expected to receive had they remained in the employment (s123(2)(b) ERA 1996). The sums do not need to be contractual, provided that the reasonable expectation can be established. The same approach will apply in discrimination awards.

Where the value of a bonus is sought under the unlawful deduction from wages jurisdiction or for breach of contract, specific considerations apply (see Unlawful deductions from wages).

Gross or net: Such sums should be paid net of tax and NI and grossed up where appropriate.
Adjustments: Any bonus will be included in the compensatory award and adjusted alongside.
Mitigation: The mitigation rules applicable to the compensatory award apply to bonuses.
Tax: The compensatory award, which includes loss of benefits, is taxable and will fall to be grossed up under s401 if the award overall exceeds £30,000 (see also Grossing up).
Recoupment: The recoupment regulations state that ‘any amount ordered to be paid and calculated under s123 [of the ERA 1996] in respect of compensation for loss of wages for a period before the conclusion of the tribunal proceedings’ form part of the prescribed element. It is unclear whether a bonus would be defined as ‘wages’ but it is likely that any bonus payment awarded would be subject to the recoupment regulations.

Statutory authorities: ERA 1996) s123(2)(b)

Case law: York Trailer Co Ltd v Sparkes [1973] IRLR 348

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Childcare benefits: self employed to loose out

Childcare Payments Bill 2014-15

Aims of the Childcare Payments Bill

The proposed Bill introduces a new Tax-free Childcare scheme to support eligible parents with childcare costs. Under the scheme, the Government would provide 20 per cent support on costs up to £10,000 per year for each child via an online account. The Government would top-up any payments made into the account, capped at a maximum Government contribution of £2,000 a year for each child.

The scheme would be available to parents in the UK. To qualify for top-up payments, both parents, or a lone parent:

  • must be over 16 and in paid work (employed or self-employed);
  • must not be receiving support through tax credits, Universal Credit or employer-supported childcare;
  • must not be paying tax at the additional rate (For 2014-15, the additional rate is 45 per cent on income over £150,000).

Money in the account would only be permitted to be spent on ‘qualifying childcare’. In addition, parents would only be able to use the account to pay for childcare that enables them to work.

Qualifying childcare would include registered or approved childcare but not care provided in the course of compulsory education. Provision for what is, or is not, to be regarded as registered or approved childcare may be made by regulations.

A person applying for a Tax-Free Childcare account would be required to make a ‘declaration of eligibility’ stating that they satisfy the eligibility criteria. Eligibility for the scheme would then be set for a quarterly entitlement period.

Eligible parents making payments into their childcare account would have the amounts topped-up by the Government. Where there is more than one qualifying child, separate accounts would be required.

Tax-Free Childcare would not be available to tax credit or Universal Credit claimants. The Bill includes provisions to ensure that those claimants would have their tax credit or Universal Credit award terminated when a valid declaration of eligibility was made for the purpose of the Tax-Free Childcare scheme.

The new scheme would replace the existing Employer-Supported Childcare (ESC) scheme (except in relation to workplace nurseries) which is delivered through a tax and National Insurance exemption, available to parents whose employers offer the scheme.

Accordingly, self-employed parents cannot benefit from the ESC scheme. Once the new Tax-Free Childcare scheme is implemented, the Bill provides powers which would be used to close ESC to new entrants.

The Tax-Free Childcare scheme is likely to be managed on behalf of the Government by Her Majesty’s Revenue and Customs (HMRC) and is expected to be introduced in the autumn of 2015.

Waiter there is gas in my soup

“West Midlands company and its director have been fined after carrying out illegal gas work at restaurants across the Midlands and south of the country, putting business owners and customers’ lives at risk.

Kaysor Ahmed, 42, from Walsall, managing director of Sylhet Welding UK Ltd, previously Sylhet Welding and Engineering, carried out work himself, while not being Gas Safe registered, and employed others who were also not Gas Safe registered, over a sustained period.

An investigation by the Health and Safety Executive (HSE) found a variety of gas work had been carried out by Sylhet, which specialised in the manufacture and supply of industrial catering equipment, such as cooking ranges.

Leicester Magistrates’ Court heard on Friday (27 June) that Mr Ahmed’s company had undertaken gas work at the Rickshaw and Bengal Spice restaurants in Ashby-de-la-Zouch, Leicestershire, on 2 February 2012.

In the south of England, HSE found Mr Ahmed’s companies illegally carried out gas work on numerous restaurants, which HSE investigated.

Kaysor Ahmed of Wednesbury Road, Walsall, pleaded guilty to breaching regulation 3(3) of the Gas Safety (Installation and Use) Regulations 1998 and section 37 of the Health and Safety at Work etc Act 1974, and was fined £6,600 and ordered to pay costs of £2,028. He was also banned from being a company director for two years.

Sylhet Welding UK Ltd of Oxford Street, Bilston, pleaded guilty to breaching regulations 3(2) and 3(3) of the Gas Safety (Installation and Use) Regulations 1998, and was fined £6,600 and ordered to pay costs of £1,118.

HSE inspector Graham Tompkins said: “It is only a matter of luck that no-one has been killed or seriously injured as a result of the illegal gas work carried out by this company.

Comment:  It is never good to see a Director in court but when they put the safety of innocent persons at risk (for commercial gain) I applaud the actions of the HSE.

Other good news about the work of the HSE is that provisional data shows reveals that 133 workers were fatally injured between April 2013 and March 2014, compared with 150 in the previous year.  A small but positive drop.

Making civil litigation less adversarial?


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The Court of Appeal’s ruling today in Denton & Ors v TH White Ltd & Anor should “make civil litigation less adversarial and more co-operative,” the Law Society has predicted.  In my estimation at least those caught up in applications for relief of sanctions will be pleased with the new three stage test.

In a joint judgement  the Master of the Rolls (MR) and Lord Justice Vos said that the guidance given in Mitchell remained “substantially sound”. But “in view of the way in which it has been interpreted”, they restated the approach that should be applied in more detail.

The MR and Lord Justice Vos said judges addressing an application for relief from sanctions should go through three stages.

  1. “The first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1) [of the CPR]. If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages,” they said.
  2. “The second stage is to consider why the default occurred.
  3. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application….’.”

The MR and Lord Justice Vos said they were concerned that some judges were adopting an unreasonable approach to rule 3.9(1). adding “Two of them evidence an unduly draconian approach and the third evidences an unduly relaxed approach to compliance which the Jackson reforms were intended to discourage.”

The Law Society (which intervened in the Denton case)  says the Mitchell ruling had had a “significantly detrimental” effect on the conduct of civil litigation as the judgment’s strict application of case management rules had led to “a raft of satellite litigation” that had “clogged up the courts”.


I still see a potential issue with the term “all” the circumstances but hope that this judgement will speed up the process end of litigation – for those stuck in the civil court mess that is.

CitationDenton & Ors v TH White Ltd & Anor [2014] EWCA Civ 906

Pensions update from CIPD/KPMG

Staying abreast of all these changes and ensuring your pension arrangements remain compliant is challenging. To assist, the CIPD have made available  a comprehensive summary of all of the major changes that are taking place in a downloadable document, provided by KPMG – their online knowledge partner for UK pensions and automatic enrolment.

The document is a combined summary of all of the major developments, divided into two key sections:

  • At a glance – a timeline of the changes, including suggested timing of actions that should be considered
  • If you want the detail – a more in-depth description of each of the changes, including key things for those involved in running pension schemes to think about.


Referees: self employed?

Another football case (Conroy v Scottish Football Association Ltdhas come before the Employment Appeals tribunal, this time a referee who officiated at football matches at the weekend.

Mr Conroy, a referee, brought a claim for unfair dismissal against the Scottish Football Association (SFA).  The Employment Tribunal agreed with the SFA’s argument that Mr Conroy was self-employed (as opposed to an employee), and so could not bring a claim for unfair dismissal.  On appeal, the EAT found that the Employment Tribunal’s decision was correct.  It had carefully considered and weighed up all the relevant factors, some of which were indicative of employment (e.g. Mr Conroy was not entitled to send a substitute in his place and he was covered by the SFA’s private medical insurance), and others which were indicative of self-employment status (e.g. Mr Conroy paid his own taxes, was not subject to disciplinary procedures, and had the right to decline matches).  On balance, the Employment Tribunal found that there were more factors which indicated that Mr Conroy was self-employed, and this was a decision that it was entitled to make.

This case is a useful reminder of the factors that Tribunals take into account when considering someone’s employment status.  It also provides reassurance to companies that one or two ‘anomalies’ will not necessarily prevent an individual being classified in a particular way; it is a balancing act taking all factors into account.

Standard test for contract of service (employed):

1. The servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service for his master

2. He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master

3. The other provisions of the contract are consistent with it being a contract of service

This test relates to a case known to most as Ready Mix in which MacKenna J also placed significant emphasis on the existence of wages/remuneration, the absence of which there would not be consideration, hence a contract would not have been formed. Specifically:

  • There was a mutual intention that L was an independent contractor,
  • Mr L had to wear company uniform,
  • Mr L did not work set hours and had no fixed meal break,
  • Mr L was paid a rate per mile,
  • Mr L had to maintain the lorry at his own expense and pay for its running costs,
  • The lorry was painted in RMC’s colours and use of the lorry was for RMC business only,
  • RMC gave no instructions to Mr L about the method of driving the lorry or what routes to take,
  • Mr L was entitled to employ competent substitute drivers but if RMC were dissatisfied he had to provide another substitute,
  • Mr L was responsible for paying any substitute.

Readers should be vary cautious of thinking therefore that one simply conjurers a check list of arguments supporting that the worker is self employed or at least not employed by the company because in Yuen v. The Royal Hong Kong Golf Club it was accepted that a “Club’s conduct [might] merely showed that it was consistent in denying the caddies the rights to which, as employees, they were entitled. Such self-serving acts cannot alter their legal status.”

A more useful measure is to be found in In Hall (Inspector of Taxes) v Lorimer  where it was determined that

“In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted by viewing it from a distance, and by making an informed considered qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.

The mutuality of expectation becomes a key issue when it becomes more established.  as we see in the case of Nethermere (St Neots) Ltd v Gardiner where it was said that:there is no reason why  “… well founded expectations of continuing home work should not be hardened or refined into enforceable contracts by regular giving and taking of work over periods of a year or more, and why outworkers should not thereby become employees under contracts of service like those doing similar work at the same rate in the factory.”

Nethermere helps in some other regards in that it identifies other factors the Court took into consideration: :

(i) There is no finding (and no evidence) that the factory workers were employed on piece work. The evidence and finding was that Mrs. Taverna was paid according to the number of garments she completed, that she kept time sheets and was paid weekly at the same rate as in the factory. What precisely was the method of payment in the factory was not disclosed by the evidence.
(ii) Although Mrs. Taverna said at one stage in her evidence that the rate was dropped when she was working on pockets, the tribunal made no finding on this part of the evidence. Mr. Weisfeld was not asked about it. Mrs. Taverna is not recorded as saying that it had been imposed upon her. Later she appears to contradict her earlier evidence: she is recorded as saying “rate always the same.”
(iii) The finding is not that once the applicants had accepted the work they had to perform it. The finding was that they were free to decide whether to work and, if they chose to do so, they were free to decide for how many hours they would work, provided that it was made worthwhile for the van driver to call. This is merely an agreement that the applicants would make it commercially worthwhile for the employers to send the van to their houses. It does not indicate that the applicants were bound to do the work. If it be the fact that once they had accepted the work, the applicants had to perform it, that is equally compatible with a contract for services in the sense that a failure to perform the work would constitute a breach of contract. To suggest that such a failure would cause the applicants to be “sacked” (that is to be dismissed from the employers’ service) is to beg the question. It might equally be said that the arrangement would be terminated and that the employers would dispense with the applicants’ services. In fact, the applicants did not work sometimes for lengthy periods but the relationship was not terminated.
(iv) It is true that Mrs. Gardiner stated in evidence that she was asked to go down to the factory to be shown what to do and that if the machine which was provided for her went wrong, she should telephone the factory and the mechanic would come out. But Mr. Weisfeld was not asked about this evidence and there is no finding of fact in relation to it.
(v) Intentionally left blank
(vi) There is no evidence that the applicants had to perform the work, although economic circumstances may have made it desirable for them to do it.

Clear as mud!


Employment status is a matter of fact and degree only truly established in a Tribunal (or court).  However, other consideration to be pondered are more practical.  The Inland Revenue might well have a view that is not conducive to the working arrangements agreed between the workers and the firm – leaving you with a large bill for unpaid NI and Income tax.

Zero hours contracts are becoming increasingly common but the Government have already indicated they are to legislate these out of existence.


Conroy v Scottish Football Association Ltd UKEATS/0024/13,

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497

Hall (Inspector of Taxes) v Lorimer [1994] 1 WLR 209

Yuen v. The Royal Hong Kong Golf Club (Hong Kong) [1997] UKPC 40

Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612

Bad reference: victimisation


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The issue raised at the Court of Appeal in Jessemey v Rowstock Ltd & Anor is whether the Equality Act 2010 (yes I know but relevant today) prohibits acts of victimisation committed against a former employee?

On 5 March 2013 the Employment Appeal Tribunal held that it does not; but in a case decided two months later, Onu  v Akwiwu, held that it does. The decisions are reported at [2013] ICR 807 and [2013] ICR 1039.

The issue is of practical importance because claims by former employees that their employer has acted to their prejudice following the termination of the employment – typically, though by no means only, by giving a bad (or no) reference – are not at all uncommon.

Appeals in both cases were listed before the CA on the same occasion, but there remain a separate substantive judgment in Onu since that case raises other issues in addition.

Another case os relevance is one heard in the European Court of Justice (ECJ),  Coote  v  Granada Hospitality  Ltd where the ECJ decided a reference from the UK based EAT in a case of the alleged victimisation of a former employee who had brought a claim of sex discrimination. Discrimination on grounds of sex was proscribed under the Equal Treatment Directive (76/307/EEC); but the Directive did not refer expressly to victimisation (save in the form of dismissal). The Court held that member states were required to ensure that employees making claims of sex discrimination were protected against being victimised on that account. More pertinently for present purposes, it held that that was the case whether the victimisation occurred during employment or subsequently. At para. 25 of the judgment (p. 113) it said:

“… [I]t is not possible to accept the United Kingdom Government’s argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the Directive if they are taken after the employment relationship has ended.”

When the case returned to the EAT (see [1999] ICR 942) it was held that was possible to construe the phrase “in the case of a woman employed by him” as covering the case of a former employee.

The Facts

The Claimant was employed by the First Respondent,  Rowstock Ltd , which was a small car sales and repair business in Didcot in Oxfordshire; the Second Respondent, Mr Davis, was a director of   Rowstock   and appears in practice to have run the business. In January 2011 the Claimant was dismissed on the ground that he was aged over 65. He brought proceedings for unfair dismissal and age discrimination. He sought the help of an employment agency to find another job. When they approached Mr Davis he gave the Claimant a very poor reference. The Claimant believed that the reason for that reference was that he had brought proceedings, and he presented a further claim alleging victimisation contrary to the [older] Equality Act 2010.

By a decision sent to the parties on 7 December 2011 an Employment Tribunal sitting at Reading, chaired by Employment Judge Hardwick, upheld the claims of unfair dismissal and age discrimination and awarded the Claimant compensation totalling (together with some smaller ancillary awards) £24,682.73. As regards the victimisation claim it found that the reason for the bad reference was that “the Claimant was pursuing Employment Tribunal proceedings”. However, it held that “post-employment victimisation” was not unlawful under the 2010 Act. The EAT, as I have said, reached the same conclusion.

Application of EU law

The 2010 Act is intended to give effect in UK law to the requirements of a number of EU Directives:

(a) Council Directive 2000/43/EC (“the Race Directive”), which is the first EU directive addressing race discrimination;

(b) Council Directive 2000/78/EC (“the Framework Directive”), which is likewise the first directive addressing discrimination on the grounds of religion or belief, disability, age or sexual orientation; and

(c) Directive 2006/54/EC of the European Parliament and the Council (“the Recast Directive” – so called because it consolidates and updates previous directives), which deals with discrimination on grounds of sex.

The issue

Owing to a drafting error the provisions prohibiting victimisation are omitted from UK law and for other reasons are not identically worded in the three Directives, but the three Directives are broadly similar.  Further it is not suggested that any difference between them is material for present purposes. Since the underlying claim in this case was one of age discrimination, the Court of Appeal took article 11 of the Framework Directive as standing for all. It reads:

“Victimisation. Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”

In his Judgement Lord Justcie Kay says “It is clear from the decision of the ECJ in judgements Coote and Rhys-Harperthat that provision must apply equally to acts done after as well as during the currency of the employment relationship: see para. 8 above.”

In Lord Justice Kay’s view post-termination victimisation is proscribed by the 2010 Act.  The other Justices agreed which means that Mr Davis gave the reference that he did because the Claimant was pursuing tribunal proceedings and that the victimisation claim must succeed.  The case was remitted to the Tribunal for the assessment of compensation.

Citation:  Jessemey v Rowstock Ltd & Anor [2014] EWCA Civ 185 (26 February 2014)

Related citations:

Coote  v  Granada Hospitality  Ltd . (C-185/97) [1998] ECR I-5199[1999] ICR 100

Rhys-Harper  v  Relaxion Group plc [2003] ICR 867.

House of Lords in Ghaidan  v  Godin-Mendoza [2004] 2 AC 557

EBR Attridge LLP  v  Coleman [2010] ICR 242

A thank you

I thank The Incorporated Council of Law Reporting for bringing this case to my attention.

Long-term sickness absence


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Long-term sickness absence can have a number of consequences for workers, so it’s important that employees return to work as soon as possible after illness.

The effects of long-term sickness absence

Being off work for long periods can cause negative health effects because of:

  1. being less physically and mentally active;
  2. a lack of structure to days/weeks;
  3. increased financial pressures;
  4. isolation caused by not participating in ‘normal’ activities due to health/financial constraints.

If employees are off sick and/or recovering from an illness or injury, it is important that regular contact is maintained with the workplace throughout their absence (not just when the return to work is imminent) so that they are kept up-to-date with developments in the workplace.

When employees finally return to work after long periods of sickness absence they may struggle with:

  • a loss of confidence in their ability to do their job;
  • permanent health changes, which may make it impossible for them to perform certain elements of their job;
  • feelings of guilt, and isolation from other team members;
  • lack of knowledge about changes in the workplace (e.g. new processes, staff changes, etc.).

GPs are now able to provide advice through the fit note on how employers might manage the return to work. The fit note offers four options for those who may be fit to work. GPs can choose any of the following options (or a combination of options):

  1. Needs altered hours.
  2. Needs amended duties.
  3. Needs workplace adaptations.
  4. Phased returns (usually recommended after long-term absence of over three months).

Altering the hours of work or a phased return to work may mean a reduction in an employee’s income so it is important that employees are aware how their wages will be affected. This usually depends on the contract of employment and whether sick pay has expired. Some individuals will be keen to return to work as normal as soon as possible, with no special considerations, and this should be supported, if practicable and safe (e.g. people wanting to get back to ‘normal’ after chemotherapy).

Occupational health services

Occupational health services aim to protect the health, safety and welfare of people engaged in work by fostering a safe working environment. The type of occupational health support offered will vary depending on the organisation and could include the following:

  • Health surveillance (e.g. hearing and breathing tests).
  • Statutory medicals (e.g. working with asbestos, ionising radiation).
  • Approved medicals (e.g. for divers).
  • Fitness for tasks (e.g. drivers, safety critical workers).
  • Health screening (e.g. for those with back pain).
  • Treatment services (e.g. first aid centres and emergency response).
  • Health promotion (e.g. cholesterol testing, blood pressure monitoring).
  • Absence management services and assessments.
  • Travel clinics for those who need vaccinations to travel abroad.
  • General health assessments for those with health issues affecting work.
  • Training programmes.
  • Disability assessments and advice on reasonable adjustments.
  • Fitness for work assessments.
  • Ergonomic assessments in the workplace.
  • Stress management services.

Employers can access the free Health for Work Advice helpline and knowledge base developed to assist employers  in just a few clicks.  Unlike the NHS Occupational Support Service for employers, this service is (currently) free.

Other sources of online assistance:

  • NHS Health at Work Network:

    A gateway for businesses in the broader community who are seeking occupational health advice and supporthttp://www.nhshealthatwork.co.uk

  • Access to Work:

    Practical advice and support for people whose disabilities are making it difficult for them to workhttps://www.gov.uk/access-to-work

  • Association of Chartered Physiotherapists in Occupational Health and Ergonomics (ACPOHE):

    Association representing physiotherapists who have demonstrated specialist competency in the fields of occupational health or ergonomicshttp://www.acpohe.org.uk/

  • Institution of Occupational Safety and Health (IoSH):

    The biggest health and safety membership organisation in the world and the only Chartered body for health and safety professionalshttp://www.iosh.co.uk/