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Archive for June, 2016

Tuesday 14 June 2016

Employment Law Bulletin June 2016


Greetings from the last employment update before the referendum on EU membership. The employment law world may be a very different place on June 24, or it may not, depending on which way the vote goes. If we do vote to leave, then there will be interesting times ahead from an employment law perspective, given how much of our legislation is derived from the EU. Whether this would mean immediately abandoning wholesale great swathes of EU-based law (TUPE? Discrimination legislation? Working Time Regulations?) is doubtful, to say the least, but there would surely be an uncertain time ahead given the opportunities for legislating outside the strictures of the EU and the fact that governments of all hues seem to find it hard to resist changing employment law, given half a chance. We will leave it to you to decide whether this would be a good thing for anyone other than employment lawyers…

Disability and Reasonable Adjustments

The duty to make reasonable adjustments in respect of a disabled employee arises when the employer applies a ‘provision criterion or practice’ (or “PCP”) which puts the employee at a disadvantage when compared with employees who are not disabled. The duty is then to take such steps as it is reasonable to take in order to remove the disadvantage or to prevent it from arising. But how formal does a PCP need to be to qualify for these purposes?

Safeguarding and Discrimination

For those employers in the health, care and education sectors nothing is more important than their duty to safeguard the welfare of children and vulnerable adults. But a highly cautious approach to such issues can bring them into conflict with employment law. In Pendleton v Derbyshire County Council, a teacher with long and unblemished service was dismissed after her husband (who was a headteacher) was convicted of offences involving indecent images of children and taking photographs of children in the changing rooms. The teacher felt that her Christian beliefs required her to remain with her husband provided he had genuinely repented his conduct. However, the school took the view that in refusing to leave her husband, the teacher had undermined trust and confidence and acted contrary to the ethos of the school.

Foreign-Based Workers

The claimants in Hottak v FCO were Afghan nationals employed as civilian interpreters working for the British Armed Services at a British compound in Afghanistan. They claimed that they had been subjected to race discrimination because the benefits they were offered – particularly with regard to their potential resettlement in the UK when their work ended – were less favourable than those offered to their equivalents recruited in Iraq. The key question was whether – as Afghan nationals, recruited and working in Afghanistan – they had any right to the protection of the Equality Act.

and Finally…

While much of our employment law has a European dimension, it is worth noting that different member states have very different systems of industrial relations. For example, the French Government is currently introducing a law which will give individual companies more freedom to reach individual deals with unions without being bound by sector-wide collective agreements and will allow large companies to make redundancies if they can show three successive quarters of falling revenues. Even with these reforms, of course, the French labour market will remain subject to a level of regulation that is simply inconceivable in the UK.

Nevertheless the French unions are not taking the changes lying down. Strikes are taking place on the railways and are likely to spread to the Paris Metro and civil aviation. Oil refineries have been closed down and there is the risk of a nationwide fuel shortage. There is talk of a possible threat to the smooth running of EURO 2016.

We should remember France the next time we read scare stories about union hardliners in the UK. The Trade Union Act (which has now received Royal Assent) was strongly opposed by the trade union movement – although their opposition did little to dent the progress of the Bill and made very few headlines. In France – when a trade union opposes a change in employment law – the whole continent gets to hear of it.

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