News Archive for July, 2012

Religion and Broken Families

Religion has been the cause of countless disputes over the centuries, but surprisingly few disputes regarding religion have reached the family courts.

Recently, the High Court heard a case in which the father of a child disputed the right of the child’s mother to ‘allow orencourage’ the child to share her beliefs as a Jehovah’s Witness.

Whilst everyone has the right to follow their religious beliefs, where those of estranged parents conflict, there must be a means of ensuring that the conflict is resolved in a way that serves the best interests of the child.

The ruling set out the principles the courts should apply in such cases. These are:

Parental responsibility is joint and equal. Therefore, a child should normally have the right to learn about and experience the religious beliefs of both parents.  Neither parent has the right to dictate the religious upbringing of the child; and

Where the practice of the religion of one parent conflicts with the lifestyle of the other and this may impact on the child’s welfare, the court has the right to restrict the child’s involvement in the religious practices of either parent. Such restrictions must be justified and proportionate.

In all instances, it is the welfare of the child which is the paramount consideration of the court.  The judge’s order followed these principles. In particular, it constrained the mother’s right to limit medical treatment received by the child to procedures allowed by her religion.

Posted by Peter Nicholas on Thursday, July 26, 2012 at 11:08 AM

TUPE – What is an ‘Organised Grouping of Employees’?

Aservice provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) takes place when, immediately before the change, there is an ‘organised grouping’ of employees that has as its principal purpose the carrying out of the relevantactivities on behalf of the client – TUPE Regulation 3(3)(a)(i).

In Eddie Stobart Ltd. v Moreman and others, Eddie Stobart Ltd. argued that it was sufficient to show that there was a group of employees who did, as a matter of fact, mostly work on tasks for the client that had transferred for there to be a relevant transfer of a service provision under TUPE.

The Employment Appeal Tribunal disagreed, however. An organised grouping will only exist where the employees in question are organised by reference to the provision of services to the relevant client and does not apply where, as was the case here, a group of employees found themselves working on tasks for that client because of shift patterns and working practices, but without any deliberate planning or intent.

Furthermore, when a transfer takes place, it is important for employees to know, as far as possible, where they stand. If a putative ‘grouping’ does not reflect any existing organisational unit, there are likely to be practical difficulties identifying which employees belong to it.

This decision suggests that if you anticipate employees working on a particular contract transferring with the contract in the event that it transfers elsewhere, it is advisable that they are seen as a designated team.

Posted by Peter Nicholas on Thursday, July 26, 2012 at 11:02 AM

Continuity of Service – Justification for Denying Workers Their Rest Breaks

Under the Working Time Regulations 1998 (WTR), which implement the EC Working Time Directive into UK law, in certain circumstances an employer  can deny workers their right to daily and weekly rest breaks and rest periods where their activities involve the need for continuity of service or production.

Work at docks or airports is given as a specific example of work for which exemptions (or derogations) from the normal rules might apply under Regulation 21 of the WTR. Associated British Ports v Bridgeman is a test case on how this works in practice.  It involves the hours that pilots can be expected to work on the River Humber.

Demand for their services fluctuates, with a particularly busy period of four or five days every couple of weeks, coinciding with the spring tides. Associated British Ports (ABP) cope with this by requiring pilots to work more shifts with shorter rest breaks during busy periods and fewer shifts with longer breaks when there is less demand.  Acts of pilotage typically last for anything from a couple of hours up to 11 or 12 hours.

Mr Bridgeman claimed that ABP was in breach of Regulation 10 of the WTR because it had failed to provide him with a daily rest period of not less than 11 consecutive hours in each 24-hour period, and in breach of Regulation 12 of the WTR because it had failed to provide an uninterrupted break of not less than 20 minutes where his working time was more than six hours.

The Employment Tribunal (ET) found that the work of pilots is a case where there is a need for continuity of service once each distinct act of pilotage has commenced. As one job could require the pilot to remain at work for up to 11 or 12 hours, ABP was within its rights to deny pilots their entitlement to rest breaks under Regulation 12 of the WTR.

However, the ET held that there was no exemption from the requirement that ABP provide a rest period under Regulation 10 as continuity of service was broken once the ship had docked or reached the open sea.  Since that could be achieved within 11 or 12 hours of work, ABP was capable of complying with the provisions as regards daily rest.

ABP appealed against the ET’s decision with regard to Regulation 10 on the ground that once it had found that the exemption in Regulation 21 with regard to the need for continuity of service was engaged in relation to each distinct act of pilotage, there was no justification for the ET proceeding to examine whether or not the requirement had been established with regard to Regulations 10 and 12 separately.

The Employment Appeal Tribunal formed the provisional view that objective reasons for not providing workers with rest periods under individual Regulations of the WTR do have to be considered separately, but referred the matter to the European Court of Justice for a preliminary ruling.

Posted by Peter Nicholas on Thursday, July 26, 2012 at 10:28 AM

Flood Insurance – Consider Your Position

The 2009 agreement between the Government and the Association of British Insurers, which ensures that all properties are insurable against the risk of damage caused by flooding, ends in June 2013.


The inability to insure against the risk of flood will pose significant problems for property owners and occupiers, and may make securing mortgage funding for such properties difficult or impossible. 

Owners and occupiers of properties in flood risk areas should consider the potential implications of the expiry of the agreement to ensure they not faced with a nasty surprise.

Posted by Peter Nicholas on Tuesday, July 17, 2012 at 03:51 PM

Fatherhood and Child Contact

The Court of Appeal recently ruled in a case which asked whether fatherhood is sufficient to warrant contact with a child and decided that the answer is ‘no’.

The case was unusual. It involved a married couple who wanted to have a child but were unable to because the husband had previously had a vasectomy. They enlisted the ‘help’ of the husband’s best friend, who had intercourse on several occasions with the wife.

This developed into a full-blown relationship and eventually resulted in her becoming pregnant and having a child, which was registered as the child of the married couple.

The wife’s relationship with the friend had ended, but he decided to apply for parental responsibility and contact with the child. The couple opposed the
application.

After he obtained a rectification of the child’s birth certificate to show him as the father, the court made a contact order in favour of the friend.

The husband and wife appealed against the order. At issue was the need to maintain the stability of the family relationship and the risk posed to this by regular contact with the friend.

The Court of Appeal allowed the appeal and denied the natural father a contact order. The Court paid particular attention to the possible damage that contact might do over time to the relationship between the couple and the child.

‘Informal’ surrogacy arrangements often end in protracted litigation.

If you are considering such an arrangement, we can advise you regarding the legal issues involved.

Posted by Peter Nicholas on Tuesday, July 17, 2012 at 03:12 PM

Discrimination and Harassment Claim – Context is Everything

Words that relate to a protected characteristic of an individual are not necessarily inherently discriminatory. Nor does the fact that a claimant’s sex is a part of the circumstances in which treatment complained of occurred necessarily mean that it formed part of the reason for that treatment.  In such cases, the Employment Tribunal (ET) must take into account the context in which the conduct complained of occurred.

This was illustrated by the decision of the Employment Appeal Tribunal (EAT) in Warby v Wunda Group plc.

Sarah Warby and her employer were involved in a disagreement over the details of the salary package negotiated between them. A meeting took place between Mrs Warby, who was pregnant, and a manager at the company, Mr Pugh, both of whom thought the other was lying.

Mr Pugh brought up the subject of Mrs Warby’s pregnancy and, based on information she had posted on Facebook, asked her why she had lied about this and about having suffered an earlier miscarriage.

Mrs Warby claimed that she was a victim of direct discrimination and harassment contrary to the Sex Discrimination Act 1975 because Mr Pugh’s conduct was inherently discriminatory. However, the ET dismissed her claims, concluding that, in the context in which they were spoken, Mr Pugh’s words related to the fact that he thought Mrs Warby had lied about her pregnancy.

He had drawn attention to these earlier examples of her not telling the truth in order to reinforce his position on the wages issue.

The EAT agreed. The ET was entitled to take the view that remark, however unpleasant and however unacceptable, must be viewed in the particular context in which it was made and not simply as a remark standing on its own. In this case, the context was the dispute about lying.

Posted by Peter Nicholas on Tuesday, July 17, 2012 at 02:15 PM

Age Discrimination – Mandatory Retirement

Whilst the default retirement age of 65 has now been abolished and the Equality Act 2010 has replaced the Employment Equality (Age) Regulations 2006, the decision of the Supreme Court in a case brought under the Regulations (Seldon v Clarkson, Wright & Jakes) has provided useful guidance on the circumstances in which a mandatory retirement age will be justified.

The Regulations allowed that compulsory retirement at age 65 was not discriminatory provided certain procedures were followed.  The exemption did not apply to partners in a partnership, however.

In order to justify the inclusion of a mandatory retirement age in its partnership agreement and defeat a claim of age discrimination, a firm had to be able to demonstrate that this was a proportionate means of achieving a legitimate aim.

Leslie Seldon, the former senior partner of a firm of solicitors, claimed that a provision contained in the partnership agreement (and agreed by all partners) requiring partners to resign at age 65 constituted direct discrimination under the Regulations.

The Supreme Court held that the test for justifying discrimination on the ground of age is narrower for direct discrimination than for indirect
discrimination.

To defeat a claim of direct discrimination, the employer must show that the treatment stems from an aim that can be objectively and reasonably justified as pursuing a legitimate social policy derived fromthe EC Equal Treatment Directive, such as those related to employment policy, the labour market or vocational training.


Such aims are of a public interest nature as distinct from those which relate to the individual needs of a particular business, such as cost reduction and improving competitiveness.

The European Courts have identified two different kinds of legitimate objective, which can be summed up as inter-generational fairness and dignity – e.g. preserving the dignity and avoiding humiliation of older workers who are underperforming.

The focus must then turn to whether the identified aim is legitimate in the particular circumstances of the case and is actually being pursued.

Finally, the means of achieving that aim must be both appropriate and necessary.  The means must be carefully scrutinised in the context of the particular business in order to see whether they do meet the objective and there are not other, less discriminatory means that would achieve the same result.  In this case, the Supreme Court dismissed Mr Seldon’s appeal.

Whilst his retirement at age 65 was, on the face of it, direct discrimination, the firm’action was capable of justification. The  Employment Tribunal (ET) had identified three aims of having in place a mandatory retirement age for all partners – staff retention, workforce planning and limiting the need to expel partners by way of performance management – and these objectives met the test of being based on legitimate social policy aims.

The case was remitted back to the ET, however, to consider whether the choice of 65 as the specific age at which partners were required to retire was a proportionate means of achieving the aims in this case.

We can advise you on any retirement issue.

Posted by Peter Nicholas on Monday, July 16, 2012 at 03:04 PM

Unsuccessful Job Applicants – Access to Recruitment Information

Does an unsuccessful job applicant who can show that he or she meets the requirementsfor a post advertised by an employer have the right under the applicable EC Equal Treatment Directives to information on whether another applicant was appointed and the criteria used in deciding to recruit them?

This was the question referred to the European Court of Justice (ECJ) by the German Labour Court in Meister v Speech Design Carrier Systems GmbH. Secondly, if the answer to this question is ‘yes’, if the employer fails to disclose the requested information, does this give rise to a presumption that the discrimination alleged by the unsuccessful applicant exists?

Ms Meister, a Russian national with a degree in systems engineering from a Russian university, replied to a newspaper advertisement for a job as an ‘experienced software developer’ with Speech Design Carrier Systems GmbH but her application was rejected without her being invited for interview.

Shortly afterwards, a similar advertisement appeared on the Internet and Ms Meister reapplied. Once again, Speech Design rejected her application, without inviting her to an interview and without telling her on what ground her application was unsuccessful.

Speech Design made no claim that her level of expertise was insufficient for the post.


Ms Meister claimed that she had suffered less favourable treatment than another person in a comparable situation on the grounds of her sex, age and ethnic origin.

She sought the production of the file for the person who was recruited to the post, which would enable her to prove that she was the better-qualified candidate.


The ECJ ruled that the Directives must be interpreted as not entitling an unsuccessful applicant who claims plausibly that he or she meets the requirements listed in a job advertisement to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process.

However, the burden of proof in such cases is a matter for application by the national courts. Where a claimant establishes facts from which it may be presumed that there has been direct or indirect discrimination, the burden of proof then shifts to the employer (or prospective employer) to prove that there has been no breach of the principle of equal treatment.

In this context, it is for the national court to ensure that the employer’s refusal to disclose information does not compromise the achievement of the objectives of the relevant Directives.

It cannot be ruled out that the employer’s refusal to grant access to any of the recruitment information may be one of the factors to take into account in the context of establishing a prima facie case for less favourable treatment.


A recruitment process that discriminates – directly or indirectly – against people on the ground of a ‘protected characteristic’ can be a recipe for trouble.

The best course of action is to make sure your recruitment policies are fully compliant with equal treatment legislation and can be demonstrated to be so if challenged.

Contact us for advice on any discrimination matter.

Posted by Peter Nicholas on Monday, July 16, 2012 at 02:44 PM

Unsuccessful Job Applicants – Access to Recruitment Information

Does an unsuccessful job applicant who can show that he or she meets the requirementsfor a post advertised by an employer have the right under the applicable EC Equal Treatment Directives to information on whether another applicant was appointed and the criteria used in deciding to recruit them?

This was the question referred to the European Court of Justice (ECJ) by the German Labour Court in Meister v Speech Design Carrier Systems GmbH. Secondly, if the answer to this question is ‘yes’, if the employer fails to disclose the requested information, does this give rise to a presumption that the discrimination alleged by the unsuccessful applicant exists?

Ms Meister, a Russian national with a degree in systems engineering from a Russian university, replied to a newspaper advertisement for a job as an ‘experienced software developer’ with Speech Design Carrier Systems GmbH but her application was rejected without her being invited for interview.

Shortly afterwards, a similar advertisement appeared on the Internet and Ms Meister reapplied. Once again, Speech Design rejected her application, without inviting her to an interview and without telling her on what ground her application was unsuccessful.

Speech Design made no claim that her level of expertise was insufficient for the post.


Ms Meister claimed that she had suffered less favourable treatment than another person in a comparable situation on the grounds of her sex, age and ethnic origin.

She sought the production of the file for the person who was recruited to the post, which would enable her to prove that she was the better-qualified candidate.


The ECJ ruled that the Directives must be interpreted as not entitling an unsuccessful applicant who claims plausibly that he or she meets the requirements listed in a job advertisement to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process.

However, the burden of proof in such cases is a matter for application by the national courts. Where a claimant establishes facts from which it may be presumed that there has been direct or indirect discrimination, the burden of proof then shifts to the employer (or prospective employer) to prove that there has been no breach of the principle of equal treatment.

In this context, it is for the national court to ensure that the employer’s refusal to disclose information does not compromise the achievement of the objectives of the relevant Directives.

It cannot be ruled out that the employer’s refusal to grant access to any of the recruitment information may be one of the factors to take into account in the context of establishing a prima facie case for less favourable treatment.


A recruitment process that discriminates – directly or indirectly – against people on the ground of a ‘protected characteristic’ can be a recipe for trouble.

The best course of action is to make sure your recruitment policies are fully compliant with equal treatment legislation and can be demonstrated to be so if challenged.

Contact us for advice on any discrimination matter.

Posted by Peter Nicholas on Monday, July 16, 2012 at 02:44 PM

Unsuccessful Job Applicants – Access to Recruitment Information

Does an unsuccessful job applicant who can show that he or she meets the requirementsfor a post advertised by an employer have the right under the applicable EC Equal Treatment Directives to information on whether another applicant was appointed and the criteria used in deciding to recruit them?

This was the question referred to the European Court of Justice (ECJ) by the German Labour Court in Meister v Speech Design Carrier Systems GmbH. Secondly, if the answer to this question is ‘yes’, if the employer fails to disclose the requested information, does this give rise to a presumption that the discrimination alleged by the unsuccessful applicant exists?

Ms Meister, a Russian national with a degree in systems engineering from a Russian university, replied to a newspaper advertisement for a job as an ‘experienced software developer’ with Speech Design Carrier Systems GmbH but her application was rejected without her being invited for interview.

Shortly afterwards, a similar advertisement appeared on the Internet and Ms Meister reapplied. Once again, Speech Design rejected her application, without inviting her to an interview and without telling her on what ground her application was unsuccessful.

Speech Design made no claim that her level of expertise was insufficient for the post.


Ms Meister claimed that she had suffered less favourable treatment than another person in a comparable situation on the grounds of her sex, age and ethnic origin.

She sought the production of the file for the person who was recruited to the post, which would enable her to prove that she was the better-qualified candidate.


The ECJ ruled that the Directives must be interpreted as not entitling an unsuccessful applicant who claims plausibly that he or she meets the requirements listed in a job advertisement to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process.

However, the burden of proof in such cases is a matter for application by the national courts. Where a claimant establishes facts from which it may be presumed that there has been direct or indirect discrimination, the burden of proof then shifts to the employer (or prospective employer) to prove that there has been no breach of the principle of equal treatment.

In this context, it is for the national court to ensure that the employer’s refusal to disclose information does not compromise the achievement of the objectives of the relevant Directives.

It cannot be ruled out that the employer’s refusal to grant access to any of the recruitment information may be one of the factors to take into account in the context of establishing a prima facie case for less favourable treatment.


A recruitment process that discriminates – directly or indirectly – against people on the ground of a ‘protected characteristic’ can be a recipe for trouble.

The best course of action is to make sure your recruitment policies are fully compliant with equal treatment legislation and can be demonstrated to be so if challenged.

Contact us for advice on any discrimination matter.

Posted by Peter Nicholas on Monday, July 16, 2012 at 02:44 PM

Unsuccessful Job Applicants – Access to Recruitment Information

Does an unsuccessful job applicant who can show that he or she meets the requirementsfor a post advertised by an employer have the right under the applicable EC Equal Treatment Directives to information on whether another applicant was appointed and the criteria used in deciding to recruit them?

This was the question referred to the European Court of Justice (ECJ) by the German Labour Court in Meister v Speech Design Carrier Systems GmbH. Secondly, if the answer to this question is ‘yes’, if the employer fails to disclose the requested information, does this give rise to a presumption that the discrimination alleged by the unsuccessful applicant exists?

Ms Meister, a Russian national with a degree in systems engineering from a Russian university, replied to a newspaper advertisement for a job as an ‘experienced software developer’ with Speech Design Carrier Systems GmbH but her application was rejected without her being invited for interview.

Shortly afterwards, a similar advertisement appeared on the Internet and Ms Meister reapplied. Once again, Speech Design rejected her application, without inviting her to an interview and without telling her on what ground her application was unsuccessful.

Speech Design made no claim that her level of expertise was insufficient for the post.


Ms Meister claimed that she had suffered less favourable treatment than another person in a comparable situation on the grounds of her sex, age and ethnic origin.

She sought the production of the file for the person who was recruited to the post, which would enable her to prove that she was the better-qualified candidate.


The ECJ ruled that the Directives must be interpreted as not entitling an unsuccessful applicant who claims plausibly that he or she meets the requirements listed in a job advertisement to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process.

However, the burden of proof in such cases is a matter for application by the national courts. Where a claimant establishes facts from which it may be presumed that there has been direct or indirect discrimination, the burden of proof then shifts to the employer (or prospective employer) to prove that there has been no breach of the principle of equal treatment.

In this context, it is for the national court to ensure that the employer’s refusal to disclose information does not compromise the achievement of the objectives of the relevant Directives.

It cannot be ruled out that the employer’s refusal to grant access to any of the recruitment information may be one of the factors to take into account in the context of establishing a prima facie case for less favourable treatment.


A recruitment process that discriminates – directly or indirectly – against people on the ground of a ‘protected characteristic’ can be a recipe for trouble.

The best course of action is to make sure your recruitment policies are fully compliant with equal treatment legislation and can be demonstrated to be so if challenged.

Contact us for advice on any discrimination matter.

Posted by Peter Nicholas on Monday, July 16, 2012 at 02:44 PM