Employment eBulletin, September 2010

Age Discrimination and Genuine Occupational Requirement

The European Court of Justice (“ECJ”) holds that a German law setting a maximum recruitment age of 30 for “active” roles in the Frankfurt fire service constituted direct age discrimination, but that it was not unlawful.

Current UK Law may be Incompatible with the Parental Leave Directive

The ECJ holds that employees should have their rights subsisting immediately prior to taking parental leave preserved, if they are dismissed during the parental leave period. In this case the ECJ decided that this meant workers should not receive less pay as a result of taking parental leave than they would have done had they not taken parental leave.

Is 'Reputational Risk' a Sufficient Justification for Dismissal of an Employee Against Whom Nothing has been Proven?

The EAT has upheld, as fair, the dismissal of a civil servant following official police disclosure alleging that he was a threat to children, despite the fact that the allegations were unproven and the employee did not work with children. The EAT accepted that, though the allegations were unproven, the serious reputational risk they posed to the public sector employer if they should later be proved to be true qualified as “some other substantial” (SOSR) reason for dismissal. Provided adequate safeguards were in place and a proper procedure followed, as in this case, a dismissal in such circumstances could be fair.

Bateman and Others v Asda Stores Ltd

EAT decides that Asda was permitted to rely upon a provision in its employee handbook which reserved the right to vary contractual terms in order to introduce a new pay structure, without the need to obtain the express consent of those employees affected by the change.

Court of Appeal Confirms Right to Legal Representation During Disciplinary Process

The Court of Appeal holds that, where the outcome of a disciplinary hearing could have a substantial influence or effect on an individual’s right to practise his profession, Article 6 of the European Convention on Human Rights (“ECHR”) gives that individual a right to a fair hearing which includes the right to legal representation during the disciplinary hearing.

TUPE and Contractual Rights for Employee Pay Rises

The Court of Appeal overturns the EAT’s decision and holds that a clause in transferred employees’ contracts of employment linking pay rises to those agreed by a negotiating council were not binding on the transferee. The Court of Appeal relied upon the European Court of Justice’s decision in Werhof v Freeway Traffic Systems GmbH and Co KG which held that the Acquired Rights Directive from which the TUPE Regulations derive, requires a “static” approach to collective agreements, preserving only those terms agreed at the date of transfer.