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This month’s biggest employment law news stories have to be the Supreme Court’s two decisions on age discrimination in Seldon v Clarkson Wright & Jakes and Homer v West Yorks Police.  Both decisions give useful guidance about how cases on age discrimination will be considered from now on – but both leave questions to be considered further.

The second age discrimination case of the month, Homer v West Yorks Police, concerned a senior police officer who became a legal adviser at the Police National Legal Database after retiring from the police aged 51.  At the time he joined, there was no requirement for advisers to have a law degree, but the PNLD later introduced a new grading structure, which required a degree for promotion to the top grade, with the intention of improving recruitment and retention. At this point, at the age of 62, Mr Homer was allocated to the second highest grade.  He made a complaint of indirect discrimination because he would be unable to complete a law degree before his planned retirement age of 65, and so could not get promotion.  He failed in both the EAT and in the Court of Appeal, because it was considered that the reason for the discrimination was not his age, but his impending retirement.

Do rejected applicants have the right to disclosure of documents relating to the successful candidate if they consider they have suffered unlawful discrimination in the recruitment process?  No, said the ECJ in Meister v Speech Design Carrier Systems GmbH which was a claim by an applicant for a job as an experienced software developer, who made a complaint that she had been discriminated against on the ground of her sex, age, and ethnic origin when she was not short-listed for interview.

It does not seem so long ago that the concept of an automatic transfer of employees under TUPE evoked exclamations of incredulity and disbelief amongst non-lawyers (and some lawyers). 

Now we have all got used to the idea, Gabriel v (1) Peninsula Business Services Ltd (2) Taxwise Services Ltd reminds us that unless TUPE  applies, employees cannot be transferred without their consent.  To paraphrase Lord Atkin in the case establishing this principle,  it is the right of a citizen to “choose for himself whom he would serve”, and this right of choice constitutes the main difference between a servant and a serf.

Brennan & Others v (1) Sunderland City Council (2) GMB (3) Unison s a case arising from somewhat unusual circumstances, but the decision is one of relevance in many more situations.  It is part of the long-running Equal Pay saga arising from changes in NHS terms and conditions.  Briefly, claimants alleging that the preservation of certain bonuses for male staff in a collective agreement perpetuated unequal pay.  As well as making equal pay claims against their employers, some claimants also named their trade unions as respondents to the claims, because they were parties to a discriminatory collective agreement.  This decision of the EAT deals with whether employment tribunals have jurisdiction to apportion liability between the respondents to a discrimination claim.

The provision of the Equality Act 2010 reversing the burden of proof in discrimination claims (section 136) means that if a claimant can show facts which could amount to discrimination, then a tribunal must find for him or her, unless the employer can show that there was another explanation for those facts. 

Horwood v Lincoln County Council is a useful reminder that although the parties to a contract can, between them, agree to change the end date of a contract, bringing it forward and/or putting it back, that cannot displace the effective date of termination as defined in the Employment Rights Act 1996 sec 97, which is crucial for calculating time limits for bringing employment claims. 

Two cases this month look at the question of costs orders.  Rogers v Dorothy Barley School  was an unsuccessful breach of contract claim brought by a school caretaker.  Representing himself, he alleged that the school were in breach of contract when he received a water bill, in error, in respect of the house he occupied at the school.  Although he did not have to pay the bill, he felt that it was a breach of contract that he had received it at all.  He was unsuccessful on the grounds that the tribunal had no jurisdiction to hear the claim, because it can only deal with breach of contact claims where the contract has ended.

The EAT has considered the employment status of a lap dancer, Nadine Quashie, who worked at a Stringfellows club.  She had made a claim for unfair dismissal, which had been rejected by the Employment Tribunal on the ground that she was not an employee and, therefore, not entitled to claim.  Overturning this decision, the EAT looked at the three essential elements of an employment contract – the obligation to carry out work personally, the element of control over work by the employer and mutuality of obligation, and found all of these were present. 

1.         INTRODUCTION

This note has been prepared as a general guidance note only and specific legal advice should be sought for each matter as individual circumstances vary. It is only a brief note and is not intended to be comprehensive. Employers always need to consider employees contractual and their other statutory rights as well.   It is also directed towards dismissals for conduct or capability reasons.