We hope that you find the information useful and of interest.

Council of the City of Sunderland and Brennan and Others

Females employees (caterers, cleaners, carers, school support staff and leisure centre attendants) of the Council of the City of Sunderland (“the Council”) issued equal pay claims and sought to compare themselves asdoing work rated as equivalent and/or of equal value to male council workers (gardeners, road sweeper, refuse collectors and drivers).

The male workers were historically paid a productivity bonus that the female workers were not entitled to.

Traditionally, there were 3 categories of local authority workers, all whom worked
under different terms and conditions. In the 1990s negotiations for a single status system began, and eventually an implementation deadline of 1 April 2007 was set, although many local authorities failed to meet the deadline.

Once single status was achieved, the productivity bonuses were withdrawn, but the beneficiaries of the same were offered pay protection.

In Sunderland, female Council workers issued Equal Pay proceedings in 2004 on the
grounds that the bonuses were no longer linked to productivity which in turn meant the males were being paid more for the same/similar work.

Both the Tribunal, and following an appeal,the EAT agreed with the claimants and upheld the Equal Pay claims.

The Court of Appeal has this month also upheld the claims.

The Council again tried to argue that the reason for the difference in pay was historical – i.e. the withdrawn bonuses were linked to productivity. They maintained that productivity remained relevant at the time the bonuses were withdrawn.

The Court of Appeal noted that as far back as 2005 some senior Council officers voiced concerns in meetings that the bonuses could be discriminatory – a clear indicator that the bonuses were no longer linked to productivity.

The Court of Appeal agreed with the Tribunal’s finding that this was the major downfall to the Council’s attempts to establish a “genuine material factor” defence – although productivity was a significant reason why the bonuses were originally introduced, by the late 1990s that was no longer their purpose, and they had in fact turned into basic pay.

The Council’s appeal therefore failed.

The Court’s finding that it is irrelevant what the position was some 40 years ago is helpful to employees who are aware of a difference in pay with colleagues of a different sex due to historical reasons. If these reasons are no longer relevant, they may well be open to challenge.

Homer v Chief Constable of West Yorkshire Police

By way of a brief refresher in this long running case: the Claimant had worked as a legal adviser for the Police National Legal Database (PNLD) since 1995. In 2005, the PNLD implemented a new, graded career structure.This set nine criteria for entry to the top grade,one of which was a requirement that the employee hold a law degree. The Claimant applied to be regraded at the top grade but his application was refused as he did not hold a law degree.

He brought a claim of indirect age discrimination, arguing that, at the age of 61,he was prevented from completing the degree before he was due to retire.

The Claimant was successful at ET, but the EAT upheld the employer’s appeal and held that those aged 60-65 did not suffer any particular disadvantage as all those without a degree were treated in the same way and it was not suggested that it was any more difficult for those in the Claimant’s age group to attain a degree. It found, perhaps unusually, that any disadvantage that the Claimant’s age group suffered would be an expected consequence of age, rather than age discrimination, in that those closer to retirement have less time to benefit from the higher pay that a degree would bring. The Court of Appeal agreed and rejected a further appeal, holding that any particular disadvantage suffered by the Claimant resulted not from age discrimination but from his imminent retirement.

The Claimant appealed to the Supreme Court, which allowed the appeal. The Court rejected the employer’s argument that the Claimant was placed at the same disadvantage imposed on anyone due shortly to leave the workplace, for some other reason. They held the reason for the Claimant leaving the workplace was clearly related to age and it was not right to compare that disadvantage with the disadvantage suffered by someone leaving the work force for a non-age-related reason (who might in fact have some choice aboutleaving). The Claimant in this case had no choice but to leave under the default retirement provisions.

The case has been remitted to the Tribunalto explore the PNLD’s legitimate aim of recruiting staff of the highest calibre and whether using a law degree was an appropriate criterion to apply to existing staff seeking a promotion.

We think this makes sense. It always seemed artificial to us to argue that a factor related to retirement was not a factor related to age. Younger people are not faced with age-based retirement.

TUPE – Substantial Change in Working Conditions

Abellio London Limited v Centrewest London Buses Limited concerned a number of bus drivers assigned to a specific bus route and based at the employer’s Westbourne Park Depot.

The bus route was transferred to another company, Abellio, who intended to operate the bus route from its depot in Battersea, nearly six miles away across London. The bus drivers were unhappy with the new location as it would involve additional travelling to work of between one and two hours per day.

They resigned. The EAT upheld the ET’s findings that there had been a substantial change to the employees’ working conditions to their material detriment by way of Regulation 4(9) of TUPE, entitling each employee to treat the Contract of Employment as having been terminated by the employer on resignation. In law they had been dismissed bythe employer. Due to the fact that the dismissals were by reason of the transfer they were automatically unfair.

This is a helpful reminder that Regulation 4(9) can give an employee the right to resign but be treated as dismissed when an employer proposes or implements a substantial change in working conditions to the material
detriment (something more than trivial or insubstantial) of the employee by reason of a TUPE transfer. The question as to whether or not it is a material detriment is to be looked at from the perspective of the employee not the
employer.

TUPE – Service Provision Change

Johnson Controls Limited v Campbell and UK Atomic Energy Authority is another case in which the EAT confirms TUPE does not always apply to a service provision change; the client, UK AET, decided to cease using a centralised taxi booking service operated by one person employed by Johnson Controls Limited and to bring it ‘in house’, fragmenting the duties across a number of secretaries employed by UK AET. The EAT upheld the ET’s decision, finding that because the activities carried out before the potential transfer were significantly different to those carried out afterwards (as the centralised service no longer existed) TUPE did not apply.

Cost Savings and Discrimination

The Court of Appeal’s decision has now been reached in the Woodcock v Cumbria PCT case, which concerned a Trust’s Chief Executive whose role had been identified as redundant. He had been involved in redundancy consultation when his employer issued him with notice of dismissal specifically in order to ensure his notice would expire before he
turned 50, at which point he would have become entitled to a very large financial enhancement. This was identified as ‘corner cutting’ but the Court of Appeal accepted that given the fact he was already fully aware of his
redundancy the ‘corner cutting’ did not affect the likelihood of redundancy, only his entitlement to the enhancement on turning 50. It held that this was age discrimination but could be justified on the grounds that
dismissing a redundant employee and saving a significant cost was a ‘legitimate aim’ and
given the fact that Mr Woodcock was already well aware his role was redundant it was a proportionate means of achieving that legitimate aim.

These are difficult cases. The European courts have indicated that cost on its own
can’t justify discrimination (otherwise employers would be able to argue – it’s cheaper to discriminate, that’s why we do it).

More recently the EAT has been hinting that cost alone might in fact be a sufficient justification, depending on all the facts.Here, the Court of Appeal seem to have fudged the issue and we believe this means that it may be more likely that an employer will be able to justify its actions where costssavings are part of broader objective. Here the employer was looking to save costs, but that was not “cost alone” because it was part of a redundancy process. But won’t it follow that in most cases the cost saving will be part of some bigger picture. Ideally this is a case the Supreme Court should consider.

April 2012 Changes

From 6th April 2012 a number of changes come
into effect:-

♦ The 1 year qualifying period for ‘normal’ Unfair Dismissal protection increases to 2 years (it also applies to the right to request written reasons for dismissal) meaning that anyone starting a new job on or after 6th April 2012 will now take two years to gain Unfair Dismissal rights.

♦ Employment Tribunals are to have increased powers in terms of the level of costs they can award against a party,increasing from £10,000 to £20,000.

♦ Judges will begin sitting alone in Unfair Dismissal cases at ET, losing the long- standing benefit of the‘industrial jury’ of lay members except in what are likely to be only exceptional circumstances. A recent survey showed that the majority of ET Judges believe that lay members contribute to the fairness of ET Hearings.
After decades of the ‘industrial jury’being key to Unfair Dismissal cases that jury will now be lost and most of the cases will be heard by a Judge alone.

♦ It is anticipated that ET’s will begin to treat all Witness Statements as ‘read’ rather than requiring a witness to read aloud the Statement within an ET Hearing.

♦ It is anticipated that witness expenses will be withdrawn. This will, of course, hit Claimants harder than employers as most employers’ witnesses are managers and, of course, remain employed by the employer who will nearly always be meeting their travel and attendance costs.

♦ Please also note that from 15th February 2012 the maximum deposit order which can be ordered by an ET (where a case has been identified at a Pre-Hearing Review (PHR) as having less than 50% prospects of success) increased from
£500 to £1,000.

David Cameron 10.11.2011: “One business man said he did not have the time or the
money to go through the hassle of removing people in the UK – so he hires in the
US’. Another said “I don’t care if the UK’s processes are more flexible than most
European countries. That’s like saying we’re better than Italy at cricket. The real
competition is the US and Asia. That is why I want to deregulate and cut back on
bureaucracy”.

Vince Cable 23.11.2011: “What we are doing here is hacking through the excessive
red tape and regulation that prevents too many businesses from creating new jobs in
the first place” with “ambitious plans to deregulate and modernise employment
relations”. Yet within the same speech he accepted that “the UK has one of the most
effective and likely regulated labour markets among developed economies”.

Liam Fox 22.02.2012: “To restore competitiveness we must begin by deregulating
the labour market. Political objections must be overridden. It is too difficult to hire
and fire and too expensive to take on new employees. It is intellectually
unsustainable to believe that workplace rights should remain untouchable while
output and employment are clearly cyclical”.

2 The Facts

Whilst the Government is pushing for deregulation of employment rights as a means
to improve the economy, the economic data do not seem to support their political
argument.

According to the World Bank’s ‘Doing Business’ rankings, the UK ranks 7th in the
world for business ‘ease of operating’ out of 183 countries, behind only, in order,
Singapore, Hong Kong, New Zealand, the US, Denmark and Norway.

Additionally, the OECD’s ‘employment protection index’ measures the procedures
and costs involved in dismissing and hiring workers and employees. On this index,
which covers the 21 largest economies, the UK ranks 3rd in terms of the lowest
levels of employment protection behind only Canada, which comes 2nd, and the US
which comes 1st. Therefore, the OECD believes that the UK currently is the 3rd
least regulated and cheapest labour market.

In terms of unemployment levels, 2 of the most regulated and costly labour markets,
Germany and the Netherlands, currently have much higher levels of employment
protection than the UK but have seen a much smaller rise in unemployment.

Another argument used by the Government refers to the rising number of
Employment Tribunal (ET) cases. Whilst that was certainly true at the height of the
recession in 2009/2010, the number of ET cases has fallen significantly with the
latest quarterly ET statistics (covering the period from July to September 2011)
showing a fall of 30% in new claims overall and a specific fall of 41% in new ‘multiple
claims’ (such as equal pay).

So, the facts appear to suggest that there is no economic benefit to deregulating
employment rights and that ET claims are falling sharply.

3 First Wave of Employment Changes

From 15th February 2012 the maximum deposit order which can be ordered by an ET
(where a case has been identified at a Pre-Hearing Review (PHR) as having less
than 50% prospects of success) increased from £500 to £1,000.

From 6th April 2012 the 1 year qualifying period for ‘normal’ Unfair Dismissal
protection increases to 2 years (also applies to the right to request written reasons for
dismissal) meaning that anyone starting a new job on or after 6th April 2012 will now
take two years to gain Unfair Dismissal rights.

The ET is to have an increased power to make costs orders against a party, with the
level increasing from £10,000 to £20,000 from 6th April 2012.

It is anticipated that from 6th April 2012 ETs will treat all witness statements as ‘read’
rather than requiring a witness to read aloud the statement within an ET Hearing.
Our view is this may not harm witnesses who have the benefit of legal representation
(where they have had legal assistance in the drafting of the statement) but for
individuals who represent themselves, their witness statement may not be sufficiently
detailed – and by not allowing them to read their statement aloud (and clarify it) this
may mean that the individual misses putting forward relevant matters to the ET.

From 6th April 2012 Judges will begin sitting alone in Unfair Dismissal cases, losing
the longstanding benefit of the ‘industrial jury’ of lay members except in what are
likely to be only exceptional cases. A recent survey showed that the majority of ET
Judges believed that lay members contributed significantly to the fairness of ET
Hearings. After decades of the ‘industrial jury’ being key in Unfair Dismissal cases
that jury will now be lost and most of those cases will be heard by a Judge alone.

From 6th April 2012 it is anticipated that witness expenses will be withdrawn. This
will, of course, hit Claimants harder than Respondents as most Respondents’
witnesses are managers and, of course, remain employed by the Respondent who in
reality will always be meeting their travel and attendance costs

4 Second Wave of Changes (proposals only at this stage)

It is anticipated that ACAS early conciliation will be compulsory for all parties.

Employment Appeal Tribunal (EAT) Judges are expected to hear cases alone as a
default option, again without lay members.

The possible creation of an Independent Assessment Service (IAS) to assess sick
employees once an employee has been signed off for 4 weeks, taking the decision out of the hands of the employee’s General Practitioner and passing it to
independent medical advisors.

Introduction of ‘protected conversations’ allowing the employee and employer to
discuss things frankly without those discussions being brought to the attention of an
ET unless they are discriminatory.

‘Simplification’ of the Agency Workers Regulations 2011, aiming to make it easier for
businesses to use agency workers.

‘Simplification’ of collective redundancy legislation with the possibility of a reduction
in the compulsory period of consultation of 90 days (for 100 or more proposed
dismissals) to as little as 45 or even 30 days.

‘Simplification’ of TUPE with a likely reduction in post-transfer protection to
employees’ terms and conditions of employment as well as the removal of the
alleged ‘gold plating’ of TUPE, for example, removing service provision changes
(SPC) meaning that TUPE transfers are less likely to occur where the transfer
concerns the awarding or loss of a service contract.

Introduction of ‘no fault’ dismissals for micro-firms, those with 10 employees or less.

Revised ET procedure, currently being reviewed by the EAT President.

The, as yet, undetailed ‘streamlining’ of Unfair Dismissal law designed to make it
easier for employers to dismiss employees.

The introduction of ET powers to levy financial penalties (payable to the State) on
employers who breach employment rights where their behaviour has ‘aggravating
features’ with a penalty of between £100 to £5,000 (reduced by 50% if paid within 21
days).

‘Simplification’ of the content of Compromise Agreements, also to be renamed
Settlement Agreements.

Introduction of a rapid resolution scheme for wages claims without going to an ET.

Giving ETs the power to order equal pay audits where an employer has been found
to have acted in a discriminatory fashion.

Introduction of ‘portable’ Criminal Reference Bureau (CRB) checks.

ET fees, which we believe the Government, will definitely introduce as the
Government has made it clear that the recent consultation was only about the way in
which they would be introduced (not whether or not they should be). Currently, there
are 2 proposals for fee charging, one for separate issue fees and hearing fees, and
the other for a global single fee. Subject to which proposal is adopted, the currently
proposed fees vary between £200 to £400 for a straightforward wages claim, £500 to
£1,200 for an Unfair Dismissal claim and £600 to £1,750 for a discrimination or equal
pay claim. Where there are ‘multiple’ claims the fee is multiplied meaning that some
‘multiple’ claims could incur fees of several thousands of pounds. Commentators have identified that the current proposals will have significantly disproportionate
impact on the lowest paid workers, disabled people, black and minority ethnic people
and women who are pregnant and/or on maternity leave.

Click here for details on the campaign

Procedure – Unfair Dismissal Changes
The Government has published a draft statutory instrument to increase the qualifying period for unfair dismissal to 2 years. Also increased to 2 years is the qualifying period to be eligible for written reasons for dismissal.
The changes take effect from 6th April 2012 but note that the 2 year qualifying period only applies where employment begins on or after 6th April 2012. So, existing employees or employees commencing work on or before 5th April this year will still qualify for unfair dismissal protection in 12 months. The great majority of those well
informed about employment law tend to the view that the changes will do very little to reduce the number of ET claims – which are in any event significantly down on last year. Almost certainly what we will see instead is a proliferation of problematic discrimination and whistle-blowing claims in an effort to sidestep the new qualifying rules.

Redundancy and Age Discrimination
In HM Land Registry v Benson the EAT has upheld an employer’s decision to select for voluntary redundancy on the basis of “least cost”. The effect of the employer’s decision was indirectly to discriminate against employees aged 50 to 54, who would have been entitled to early retirement on an unreduced pension. The ET originally upheld the claims, butthe EAT allowed the employer’s appeal. It was legitimate, said the EAT, to aim to meet a fixed budget for voluntary redundancy. The extra cost of including the disadvantaged age group would have been nearly £20m. HMLR might have been able to afford the extra payment but it was not necessary for the employer to show that they would have been insolvent by spending the extra money. HMLR’s balancing act was proportionate. We see again here that the EAT seems gradually to be moving away from the proposition that you cannot justify discrimination just because it’s cheaper to discriminate. We have a number of Authorities now to suggest that cost alone might be justification for discrimination.

Deposit Orders
In Simpson v Chief Constable Strathclyde Police the ET ordered a student to pay a Deposit of £380.00. It will be recalled that Deposit Orders are made where the Employment Judge thinks that the case has limited prospects
of success. Unless the Claimant pays the Deposit, the case cannot proceed. If the Claimant loses, the Deposit is lost too. Simpson appealed to EAT on the basis that the Employment Judge ought not to have included, when assessing ability to pay, a student loan (£494.00 per month) since it was the Government’s intention
that those loan payments should be used for maintenance – to use them to pay a Deposit would be a “misuse” of it.
The EAT disagreed. There was no reason to ring fence the student loan. This case also gives occasion for us toremind ourselves that from 15th February 2012 the Employment Tribunals Act 1996 has been amended to increase the
maximum deposit from £500.00 to £1,000.00 – in practice that will not take effect until procedural regulations are
amended, but the times are most certainly a’changing and not in a way likely to benefit employees.

Annual leave accrued whilst on long term sick

In KHS AG v Schulte the European Court ofJustice has held that the Working Time Directive does not require unlimited accumulation of annual leave accrued during sick leave.

It is established law from the case of Stringer v HMRC that workers on long term sick continue to accrue annual leave. However, the subsequent legal authorities did not suggest that the accumulation of leave could be limited.

The case of KHS AG gave consideration as to whether German national law, which
provides that workers lose their right to holiday (or pay in lieu) at the end of a “carryover” period of 15 months, was compatible with Article 7 of the Working Time Directive.

Mr Shulte was employed by KHS until he was signed off on long term sick in 2002 following a heart attack. He remained signed off work until his employment was terminated in 2008. He was entitled to 30 days’ annual leave per year, and any leave which could not be taken during the leave year could be carried over to the next year but had to be taken within 3 months. However, there was a provision which stated that where the leave could not be taken due to sickness, the carryover period was extended by a further 12 months, so the worker had 15 months from the end of the relevant leave year in which to take the leave.

Mr Schulte brought a claim for pay in lieu of holiday accrued during his absence. KHS argued that annual leave for 2006 and earlier was lost due to the expiry of the 15 month carryover period. Accordingly the Court made a reference to the ECJ asking for guidance as to whether the 15 month carryover rule was contrary to the Working Time Directive.

The ECJ noted that the Working TimeDirective does not preclude national rules which provide for the loss of untaken leave at the end of a leave year or carryover period. However, they further stated that this is subject to a proviso that the law must ensure that the worker has actually had the opportunity of taking that leave, and any worker who is on sick leave during the leave year and/or any carryover period, does not have that opportunity.

But a right to unlimited accumulation of annual leave, said ECJ, would no longer reflect the purposes of paid annual leave, which is to provide a worker with a period of rest from his or her usual work as well as a period of relaxation and leisure.

The ECJ ruled that any carryover period must be substantially longer than the reference period for the holiday year in respect of which it is granted, i.e. must be longer than the annual leave period of 12 months. Any carryover period must also ensure that a worker can have rest periods that may be staggered, planned in advance and available in the longer term. It must also protect employers from the accumulation of very long period of absence which could cause operational difficulties.

In this particular case, the ECJ held that a 15 month carryover period was longer than the leave year and accordingly was not contrary to the Directive.

The Working Time Regulations 1998 remain inconsistent with the Working Time Directive and the legal position that has been established by the European cases. Tribunals will now be faced with an additional question of whether to apply a 15 month carryover period, or some longer or shorter period.

TUPE – Further guidance in service provision change situations

The Employment Appeal Tribunal has given guidance as to the principles that should be applied when considering service provision changes in the case of Enterprise Management Services Limited v Connect Up Limited.

This case related to a change ofcontractor when IT services were put out to tender. Accordingly the Tribunal was concerned with considering activities which cease to be carried out by a contractor on a client’s behalf and are carried on instead by a subsequentcontractor.

The EAT stated that the first task for the Employment Tribunal is to identify the relevant activities carried out by the original contractor.

The next question to be considered is whether the activities carried on by the subsequent contractor are fundamentally or essentially the same as those carried on by the original contractor. It was noted that minor differences may be properly disregarded and it is essentially a question of fact and degree for the Employment
Tribunal.
It was noted that in some cases, where services have been divided up amongst a number of different contractors (i.e. the services have been fragmented), it is not possible to show that the activities are the
same, so that there cannot be a service provision change.

The Tribunal then stated that even where the activities remain essentially the same before and after the transfer date, a service provision change will only take place if:
There is an organised grouping of employees in Great Britain which has, as its principal purpose, the carrying out of the activities concerned on behalf of the client;
The client intends that the Transferee, post service provision change, will not carry out the activities in connection with a “single event of short term duration”; and
The activities are not wholly or mainly in relation to the supply of goods for the client’s use.

Finally, the Tribunal must decide whether each Claimant was assigned to the organised grouping of employees. This guidance should accordingly be useful in determining whether a service provision change has occurred.

TUPE – Unfair Dismissal

The Court of Appeal has confirmed in the case of Spaceright Europe Limited v Baillavoine that a transfer does not need to be in contemplation at the time that a dismissal is effected in order for the dismissal to be potentially automatically unfair.

A claim was brought for automatically unfair dismissal for a reason connected
with a relevant transfer. The Claimant was employed by Ultralon Holdings Limited. On 23 May 2008 Ultralon Holdings went into administration and on the same day the administrators dismissed the Claimant along with 43 other employees. On 25 June 2008 the administrators sold the business and the assets of Ultralon to Spaceright.

Regulation 7 of TUPE provides that where either before or after a relevant
transfer, any employee of either the Transferor or the Transferee is dismissed
and the principal reason for the dismissal is the transfer itself (or a reason
connected with a transfer that is not an economic, technical or organisational
reason entailing changes in the workforce), that dismissal will be
automatically unfair. The Tribunal upheld the claim for automatically unfair
dismissal and Spaceright appealed, with the case eventually proceeding to the
Court of Appeal.

The Court of Appeal held that Regulation 7 does not require a particular
transfer to be in existence or contemplation at the time of dismissal. If
there has been no dismissal or no transfer, then there cannot be a potential
automatically unfair dismissal.

However, if there has been a dismissal and a relevant transfer, the Court of
Appeal held that the Tribunal is required to determine the reason for the dismissal
and whether the reason was connected with the transfer. If so they have to then
consider whether there is an economic, technical or organisational reason
entailing changes in the workforce.

In this case there was evidence available that the purpose of changing the
workforce and making the redundancies was to make the Company a more attractive proposition to any prospective buyers, and it was held that this could not be an ETO reason.
Accordingly, the employer’s appeal
failed.

We hope that you find the information useful and of interest.

Redundancy Procedures – Entitlement to see interview notes
In Camelot Group Plc v Hogg the EAT had to consider a Tribunal’s finding that a redundancy dismissal was unfair. The Tribunal relied on the fact that the employer had failed to supply the interview notes the Claimant had requested, until after the decision to dismiss was taken.

The Employment Tribunal relied on the case of John Brown Engineering Limited v Brown – authority for the proposition that an employee should be given a reasonable opportunity to challenge the assessment of the employer under a redundancy matrix.

The EAT overturned the Tribunal’s decision.
EAT said that Brown was notauthority for the proposition that every request for interview notes (or other documents) must be complied with prior to the decision being taken to dismiss. Certainly it was good practice for the employer to do so, but a failure was not fatal to the employer’s defence.

The key here was this: the employee had failed when requesting the notes to make any specific allegation or to challenge in any particular respect the assessment that had been made by the employer. She made a general challenge.

Significantly perhaps, she also failed, having received the notes, to make any point about them or to raise any complaint of any sort with the employer about them. On that basis the EAT thought that a Polkey reduction of 100% would have been fair in any event.

The moral of the story for employees and their representatives is clear: if you intend to mount a challenge to the employer’s assessment, you should do so in detail and giving specific examples of why you think the employer’s assessment is inaccurate. A properly detailed challenge will make it very difficult indeed for an employer to resist disclosing the interview notes/other records.

A vague non-specific “I’m not happy about it” challenge will likely see the employer proceed to dismiss with impunity.

The latest on holidays and the meaning of “annual leave”
In Russell v Transocean International Resources Limited the Supreme Court has handed down its decision in relation to the claims by off-shore oil workers that they were not receiving their annual leave entitlement.

The workers argued that since they worked 2 weeks off-shore then took 2 weeks at home, the employer was obliged to let them take annual leave during the time they were actually working i.e. during the off-shore periods. Perhaps unsurprisingly, the Supreme Court unanimously dismissed the workers’ appeal. The Court said that there was no special quality about the on-shore periods that meant that they were not suitable times during which annual leave might be taken.

The case is fairly specific to certain working groups, but of more general interest are the comments made by Lord Hope to the effect that annual leave entitlement periods should be measured in periods of a week.

The off-shore workers argued that in effect their on-shore periods were the equivalent of a 5 day week worker’s weekends. Would an employer be able to insist that a 5 day worker should take some or all of his annual leave on Saturdays?

Lord Hope’s remarks suggest that a worker is able to opt to take annual leave in periods expressed in days – but an employer can only insist on periods of a week at a time being taken. Intriguingly his Lordship went on to say that he was not expressing a final opinion about the matter.

The Supreme Court refused to refer the construction of the words “annual leave” to the European Court, and it remains to be seen whether the off-shore workers will seek to pursue their challenge by others means.

In the meantime there is at least ammunition in this Judgment to enable a worker to say that a 5 day week worker cannot be required to take their holidays at weekends.

Equal Pay – incremental pay structures
In NOMS v Bowling the EAT has held that incremental pay scales can justify pay differentials between men and women.

Here the Claimant was a woman who identified a male comparator whose performance was identical to her own but whose pay was higher.

EAT accepted the employer’s argument that the comparator had originally begun employment at a higher incremental point, because of his then greater experience – that had nothing to do with sex, and accounted in each subsequent year for the differential (one assumes, until both reached the top of the scale).

There are a number of cases now reported where the higher Courts seem to show an increasing willingness to accept the arguments made by employers in relation to the historical reasons for pay imbalance – provided, of course, that those historical reasons are not themselves tainted by sex discrimination.
.

The Association of Professional Ambulance Personnel (APAP) announces the outcome of their ballot as to strike action on the 30th November 2011.

Of those members balloted 31.2. % returned their ballot papers and 53.5% voted NO, the union will not therefore be calling on its members to strike on the 30th.

We must emphasise to all our members who might be required to work on the 30th to attend work and to undertake their usual work in the normal way and not become involved in any actions taken by any other union or its members. If you do you may be making yourself liable for punitive action by your employers. If you have any queries whatsoever then please do not hesitate to call, in the first place, Head Office on 01526 354999 or email info@apap.org.uk

In view of the low turnout and the closeness of the vote should the Employers/Government not resume sensible negotiations with us we will consider taking a second ballot.

Jonathan Fox
General Secretary (Acting)