Normal retiring age

Cross and others v British Airways Plc [2005] IRLR 423


The EAT held that, in determining what a person's normal retiring age is, it is wrong to ask what a 'reasonable understanding' would be or would have been.


Furthermore, the contractual retiring age is only a starting point when seeking to determine what the normal retiring age is. On the particular facts of this case, there was a contractual retirement age of 60, but a normal retiring age of 55.






Employment status


Melhuish v Redbridge Citizens Advice Bureau [2005] IRLR 419


A Citizens Advice Bureau volunteer was not given an employment contract and had no entitlement to holiday pay, sick pay or notice. There were no disciplinary or grievance procedures applicable, but he attended training courses and received travel expenses. However, when his work came to an end he claimed unfair dismissal.


A tribunal rejected his claim and his appeal was dismissed by the Employment Appeal Tribunal (EAT), which saw no reason to depart from the approach adopted in South East Sheffield Citizens Advice Bureau v Grayson [2004] IRLR 353. There was no mutuality of obligation.


The existence of required standards or guidelines if the applicant did attend as a voluntary worker did not constitute an obligation on him to attend work. In any event, there was no contract of service.


The fact that the volunteer took part in training courses could not 'begin to provide any kind of similar consideration to remuneration... the fundamental of any contract of employment'.






Annual leave and sick pay


Commissioners of the Inland Revenue v Ainsworth and others [2005] IRLR 465


In an important ruling, the Court of Appeal has held that a worker on long-term sick leave is not entitled, under regulation 13 of the Working Time Regulations 1998, to four weeks' annual leave in a year when he has not been able to attend work.


'Leave' connotes a release from what would otherwise be an obligation, and for a worker who is absent for a year or more as a result of serious illness to say that during some arbitrary chosen part of that period he is taking leave, poses the question: leave from what?


The EAT's contrary decision in Kigass Aero Components Ltd v Brown [2002] IRLR 312, was overruled. In Kigass, the EAT emphasised the definition of 'worker' at the expense of focusing on the concept of leave.


The purpose and scope of the Working Time Directive, to which the regulations give effect, is to prescribe minimum health and safety standards for the organisation of working time. No health and safety purpose is served by an employee who is not in any event required to work during the period in question taking leave. As Lord Justice Kay said, this 'simply produces a windfall in most cases and runs the serious risk of... wholly undesirable consequences'.


Furthermore, the tribunal and the EAT in this case had been wrong to hold that a claim to holiday pay under the Working Time Regulations could be pursued as an application in respect of unauthorised deductions from wages under section 23 of the Employment Rights Act 1996. Applications to enforce entitlement to holiday pay under the regulations can only be pursued under regulation 30, which requires a complaint to be presented within three months of the alleged non-payment. The contrary decision of the EAT in List Design Group Ltd v Douglas [2003] IRLR 14, was wrong.






Contract of apprenticeship


Flett v Matheson [2005] IRLR 412


An apprentice entered into a tripartite 'individual learning plan' under the electrical industry's modern apprenticeship training scheme. The parties were the apprentice, the employers and a training provider.


The agreement was that the employer would pay the apprentice, supply the opportunity for work experience and allow him access to training, but that the training provider would carry out the training.


When the apprentice was dismissed, he argued that he had been working under a contract of apprenticeship and that therefore, in accordance with the decision of the Court of Appeal in Dunk v George Waller & Son Ltd [1970] 2 QB 163, he was entitled to damages for breach of contract in respect of the period of his training and any losses sustained as a result of his not being able to be trained. On that basis, he sought more than £50,000.


The EAT upheld a tribunal's decision that he was not employed under a contract of apprenticeship. A modern tripartite apprenticeship arrangement is clearly distinct from the traditional concept of apprenticeship. There is room for Dunk-type damages where there is an obligation on the employer to train, teach and enable qualifications, and on the employee to attend, receive training and work for the same period, with or without a deed of indenture - but that was not the case here. However, the tribunal had been wrong to hold that the apprentice was also not employed under a contract of employment.


The EAT recommended that, in future, training contracts or modern apprenticeship contracts should spell out what obligation there is on a training provider to use reasonable or best endeavours to find an alternative apprenticeship, and what obligation there is on an employer in relation to giving an apprentice a reasonable period to find another employer, with the assistance of the training provider and/or any industrial board, in order to continue the training elsewhere.






Disciplinary procedures


Skiggs v South West Trains Ltd [2005] IRLR 459


The EAT upheld a tribunal's decision that an investigative interview regarding a grievance made by another employee against the claimant was not a disciplinary hearing at which the claimant had a right to be accompanied - even though the matters to be discussed could lead to some later disciplinary process against him.


Whether a discussion or a meeting between management and worker takes on the character of a disciplinary hearing in terms of section 13(4) of the Employment Rights Act depends on the nature of the meeting itself and not on the label either or both parties had attached to it, or to its possible consequences.


An interview that starts out as a preliminary factual enquiry may be transformed at some point into a disciplinary hearing. Whether that point of transformation has been reached is a question of fact and degree in each case.






Compensation


Melia v Magna Kansei Ltd [2005] IRLR 449


An unfairly and constructively dismissed whistle-blower was awarded a compensatory award, including certain sums to which the tribunal applied a deduction at the normal rate of 2.5% per annum for accelerated payment.


He argued that, in relation to the delayed payment of other elements of his award, the tribunal should have applied a premium of 2.5% per annum. The EAT agreed.


Although in an unfair dismissal case (unlike a discrimination case) a tribunal has no general power to award interest on compensation, it is appropriate, especially where a discount is made for accelerated payment, to have a premium for decelerated payment at the same rate.


However, the claimant failed in his appeal for increased compensation for injury to his feelings for being subjected to a detriment by his employers for making a protected disclosure.


The tribunal assessed that injury up to the point that the employers' conduct became so serious that it amounted to a repudiatory breach of contract which he later accepted by resigning and claiming constructive dismissal, rather than right up to the time that he actually resigned. The EAT upheld the tribunal's approach.




Skiggs v South West Trains Ltd [2005] IRLR 459


A tribunal declined to make an award of compensation to a claimant in respect of his employer's unreasonable infringement to his right for time off for the purpose of carrying out his union duties. There was no evidence that he suffered any financial loss or injury to feelings. The EAT allowed an appeal.


A tribunal can properly consider whether it is just and equitable to make some reasonable and proportionate award by way of reparation to a union official for the wrong done to him by the employer in preventing or impeding his proper union activities, without infringing the principle that the purpose must be to compensate the individual, not to punish the employer.






Protective awards


Smith and another v Cherry Lewis Ltd (in receivership) [2005] IRLR 86


A tribunal chairman held that, although employers failed to provide required information and consult about proposed redundancies, in breach of their statutory duties, a protective award should not be made. This was because, in view of the employers' insolvency, such an award would be ineffective as a sanction. The EAT allowed an appeal and made an order for a protective award for the maximum period of 90 days.


When deciding whether to exercise its discretion to make such an award, a tribunal should focus on the seriousness of the employers' default in failing to comply with the statutory regime, not on their ability to pay. The Court of Appeal made it clear in Susie Radin Ltd v GMB [2004] IRLR 400, that the sanction is meant to be punitive and to have a deterrent effect. The chairman had considered sanction in a retributive rather than a punitive or a dissuasive sense.


The EAT recognised that corporate insolvency will arise in a high percentage of cases involving collective redundancies, where the legislation aims to protect employees by requiring employers to inform and consult about their proposals. The threat of the sanction provided by the protective award would remove that protection from a substantial number of workers if the chairman's approach was correct.




By Martin Edwards, Mace & Jones, Liverpool