Employment Law E-Bulletin Issue 42


  • CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia – indirect discrimination by association
  • BT Managed Services Ltd v Edwards – Long-term sick employee not 'assigned' for the purposes of TUPE
  • Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Secutiry SL and another – Travel time can count as working time for national minimum wage purposes
  • Working grandparents to be entitled to shared parental leave and pay

CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia – indirect discrimination by association

The case concerned an electricity supplier which placed electricity metres at an inaccessible height in a particular district of a Bulgarian town. The aim was to prevent significant levels of meter tampering and unauthorised connections to its network. The area in question was home to a high number of individuals of Roma origin.

The claimant ran a shop in this district and complained that the metre height prevented her from assessing how much electricity she was using. She brought a successful race discrimination claim, arguing that she had suffered the same disadvantage as her Roma neighbours.

The ECJ ruled that the Race Discrimination Directive extends to persons who, although not a member of the racial or ethnic group concerned, nevertheless suffer “less favourable treatment” (i.e. direct discrimination”) or a “particular disadvantage” (i.e. indirect discrimination) on the ground of that race or ethnic origin.  It observed that the wording of the Directive permitted this wide interpretation.

The Equality Act 2010 requires a claimant to show that they possess the relevant protected characteristic (i.e. race) to bring an indirect discrimination claim. Tribunals are required to interpret UK legislation in line with any underlying EU directive so far as is possible. It is therefore possible that tribunals will start to receive claims arguing that the Equality Act should be interpreted to mean that people who are not part of a disadvantaged group could bring claims on the basis that they are suffering alongside one. For example, a man asking to work part time to balance childcare commitments would ordinarily struggle to show that he belonged to a disadvantaged group as it is generally accepted that women still carry out the majority of childcare. This case suggests that it could be possible for a man to bring a claim for indirect discrimination if a request was refused, arguing that he was a person suffering alongside the disadvantaged female group.  

It will therefore be more important than ever for employers to consider whether the rules and practices they have in place can be objectively justified for real business reasons, as well as the evidence that would be required to establish such a defence.

BT Managed Services Ltd v Edwards – Long-term sick employee not 'assigned' for the purposes of TUPE

The EAT recently held that an employee who is permanently off work sick cannot be assigned to an organised grouping of employees in the event of a TUPE transfer.

The Claimant worked in a particular division of BT Managed Services. He had been absent from work for over five years, and as there was no indication that he would be able to return to work, a decision had been made to keep him on as an employee (although permanently absent) purely so he could continue to receive permanent health insurance.

When the particular division transferred to Ericsson in 2013, Ericsson refused to accept the Claimant as a transferring employee on the grounds that his long term absence prevented him from being “assigned” to the division that was set to transfer.

A tribunal found that Mr Edwards did not transfer as he was not assigned to the grouping of transferred employees. In its judgement, dismissing the appeal, the EAT concluded that the question of whether an individual was “assigned” to a grouping of employees that was subject to a transfer ‘will generally require some level of participation or, in the case of temporary absence, an expectation of future participation in carrying-out the relevant activities on behalf of the client’.

The EAT also contrasted a permanent inability to work with long-term sick or maternity leave, where the absence might be regarded as temporary.

It will therefore be important for employers, who are purchasing new businesses or taking on new contracts, to ask further questions in due diligence exercises if there are employees who are on long term sick.

Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Secutiry SL and anotherTravel time can count as working time

The ECJ has held that the time spent by workers, who did not have a fixed place of work, on travelling every day between the homes of their first and last customers was “working time” for the purposes of the Working Time Directive.

The workers were Spanish technicians who used company vehicles to travel from their homes to the places where they carried out the installation or maintenance of security systems. Having previously been attached to the provincial offices, they were attached to Tyco’s central offices in Madrid, when these provincial offices closed. The technicians would then use the company vehicles to return to their homes at the end of the day. The distances could vary and sometimes they would travel more than 100km. The workers were not paid for the first and last journey of their working day, the journey from and back to their home.

The workers complained to the Spanish court about this and the question as to whether the time spent travelling at the beginning and end of the day by a peripatetic worker constitutes “working time” or a “rest period” was referred to the ECJ.

The ECJ agreed with the Advocate General’s opinion, that the first and last journeys of the day should be classified as working time.

It is, therefore, good practice for employers to maintain and regularly review their records to ensure they are compliant with the minimum wage legislation. Furthermore, this could result in reduced productivity generally or a need for more staff if the working time of existing staff becomes excessive as a result.

Working grandparents to be entitled to shared parental leave and pay

George Osbourne has announced that the government will be extending the right to shared parental leave and pay to grandparents. This will allow parents and grandparents to divide the statutory shared parental pay between them.

This announcement comes against the backdrop of research that shows that some 7 million grandparents provide regular childcare in respect of their childcare.

The government plans to introduce the legislation by 2018.

 


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