The controversy that is zero-hours contracts rumbles on. Despite some calls for banning them, the government has issued its latest indication of support for these arrangements which it says have a place in the labour market.
It seems that zero-hours contracts (under which employees’ hours are not guaranteed) are here to stay – for now at least. But the Business Secretary, Vince Cable, has announced that exclusivity clauses in these contracts which prevent employees from looking for work elsewhere will be outlawed. This is intended to clamp down on “less scrupulous” employers who have abused the system.
The problem is that it is a toothless ban. An employee who complains about an exclusivity clause can be sacked with no recourse. Before the ban, if there was an exclusivity clause, an employee who worked for another employer was in breach of contract and need not be offered more work by the old employer. After the ban, if there is an exclusivity clause, an employee who works for another employer is not in breach of contract any more (because the clause will be deemed void), and still need not be offered more work by the old employer – because it is still a zero-hours contract.
Zero hour contracts remain a hotly debated issue, at least in political circles. Some people think the balance of power remains too much in employers’ favour and that employees working under zero-hours contracts are unfairly abused by a proportion of employers. At the same time, however, it is recognised that these contracts are delivering work which might not otherwise be offered. Many employers will tell you that their workers like the flexibility that zero-hours contracts afford them.
We have probably not heard the last of this issue, but for the time being it is another case of a lot of hot air being vented, and little actually changing.
Hainsworth v Ministry of Defence
It is unlawful to discriminate against a person because of their association with someone who has a protected characteristic (gender, religion or race, for example). But where disability is concerned, is an employer under a duty to make reasonable adjustments in respect of that associated person? The Court of Appeal has said no.
Ms Hainsworth was a member of the British armed forces, based in Germany. She was not disabled, but her 17 year-old daughter had Down’s Syndrome. Ms Hainsworth wanted to transfer to the UK so that her daughter could access specialist education and training facilities. The Ministry of Justice refused the request. Ms Hainsworth claimed that that refusal was a breach of her employer’s duty to make reasonable adjustments under the Equality Act and, so, amounted to disability discrimination.
The Court of Appeal held that the duty to make reasonable adjustments only applies to help disabled employees or disabled prospective employees. It cannot be extended to cover people associated with them – carers, for example.
Remember though that associative disability discrimination is still a live issue when it comes to direct discrimination and harassment. Also, in some circumstances, it might be unreasonable (and thus potentially a constructive dismissal) to refuse to modify working arrangements for staff who care for disabled relatives even where there is no legal duty to do so.
A reminder that all employees with six months’ service now have the right to request flexible working under new rules which came into force on 30 June, with a great deal of talk in the media of this heralding a new age of flexible working.
The reality is rather different, since the right is to make a request, not to be able to insist on flexible working arrangements. Requests can be refused on a wide variety of grounds, including the cost to the business or the inability to cover work. So, whilst it is prudent to take all requests seriously, and to deal with them reasonably, it is again unlikely that the change in the law will make much difference to your business. Acas has some relevant guidance on this.
It is likely that your flexible working policy will need updating to take account of the new law, and we are as ever, happy to help you with this.
Bollacke v Klass & Kock
Another case that will likely give ammunition to those who take the view that EU law is banana-bend-measuring lunacy.
Under EU law, all workers are entitled to take at least four weeks’ annual leave. However, employers must usually pay workers in lieu of accrued but untaken holiday when the worker leaves.
Bollacke v Klass & Kock tested the extent of the employer’s obligation to pay. Mr Bollacke died whilst employed. He had accrued 140.5 days’ untaken annual leave – a high figure because of long-term sick leave – and the question for the Court of Justice of the European Union (CJEU) was whether he (or, more accurately, his widow) retained the right to be paid for this accrued leave. The employer argued that payment in lieu is not due when the employment relationship has ended because the employee has died.
The CJEU did not agree. The right to annual leave is an essential principle of EU social law, it said. There is nothing in law to say that the right to pay extinguished on death.
The Court’s reasoning included that where employment ends because of a worker’s death, payment in lieu of holiday is “essential to ensure the effectiveness of the entitlement to paid annual leave”. It is not immediately obvious how a paying worker’s estate after his or her death helps ensure that they take paid holiday while alive, however.
Chindove v Morrisons Supermarkets
Where an employer is in breach of contract it is important that the employee acts quickly in response. If they do not then the employee could be said to have accepted the breach, making any subsequent argument that they resigned in response to a fundamental breach of contract (the essence of a constructive dismissal) difficult to run.
But the Employment Appeal Tribunal (EAT) has made it clear that the fate of a claim does not just depend on when the employee resigned. It is also a lot – in fact, more – to do with their conduct in the period leading up to their resignation. In other words, has the employee shown that they intend to resign, whether they have yet or not?
In the Morrisons case, the employee did not resign until six weeks after the employer’s breach of contract. The EAT held that the time period should not be looked at in isolation. Rather, how did the employee behave during that time?
Context is crucial here. Social and financial factors are taken into account. The decision to leave behind the security of employment will be a more difficult one for some people to make than for others. In this case, the employee was on sick leave for those six weeks, which was found to be relevant. It made it a very different scenario to one in which an employee remains at work, carrying out their duties – something which could be inconsistent with a decision to resign.
So even where an employee does not resign immediately after alleging breach of contract, be aware that a constructive dismissal claim could still be lurking.
Prepare for a deluge of outraged coverage and weight-related puns when the Court of Justice of the European Union (CJEU) gives its anticipated ruling on whether obesity should be protected by European discrimination law. Current equality laws do not directly protect people who are discriminated against because of their size or weight, but this could change if the CJEU decides in favour of a Danish childminder who says he was sacked for being obese.
The CJEU is currently (ahem) sizing up the case of Mr Kaltoft, who is said to weigh 160kg (about 25 stone). He claims that his employer discriminated against him when it dismissed him on the basis that he was so overweight that he was unable to perform his job, and that obesity itself should be a protected characteristic under equality law.
The Advocate-General, who provides a preliminary – but not binding – opinion in cases going to the CJEU, has said that extreme, morbid obesity might mean than someone is disabled – but there will usually be something else as well, such as issues with mobility or emotional problems which have an impact on someone’s ability to participate normally in the workplace.
This case has already become something of a favourite in the media, as it ticks a number of silly-reason boxes: interfering European lawyers telling plucky British businesses what to do; horror stories about having to buy bigger office chairs, build lifts for plus plus-sized colleagues and give overweight employees duties that don’t include walking; and of course indulging in one of the few areas of prejudice where it is still deemed acceptable to make fun publicly of a disadvantaged group.
As so often, this is almost certainly a legal storm in a tea cup. Remember that this case is only about very, very overweight people. Someone who is morbidly obese is very likely to have other less stigmatised health issues and so is likely to be disabled – and so be entitled to “reasonable adjustments” to their working conditions in any event. Whether these nuances will be reported is another thing altogether of course…..
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