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The Active Business Series 12 2011
plummerparsons ab12

HR SUMMER
UPDATES
KEY CHANGES say there weren’t enough jobs for older people to be in work and 14
per cent claimed older people should retire to make way for younger
Working Time Regulation to be Revised workers. One fifth believe the over 60s are slower and are less productive
than their junior colleagues with one in 20 claiming they should be paid
The Working Time Regulations (WTR) are to be amended to update them
less because they work at a slower pace.
in light of case law (such as Pereda and Stringer) which has established
that workers unable to take their annual leave because of sickness etc. in QUICK LOOK AT RECENT CASE LAW
the current year must be able to carry it forward into the following leave
year. Publishing company forced to pay uncontracted intern:

Flexible Working for all by 2013? The use of interns has become increasing common and therefore this
case is particularly noteworthy. In a groundbreaking case, a publishing
The right to request flexible working looks as if it will be extended to company has been ordered to pay an intern £1,000 in damages after an
all employees, possibly as soon as late 2013, according to proposals employment tribunal ruled that she was classed as a worker under the
contained in Consultation on Modern Workplaces. The Government law, despite having no written contract.
proposes various changes to make the scheme’s administration more
flexible and less onerous for employers. Former intern Keri Hudson, 21, who had worked for two months at the
My Village web site last year, was awarded £913.22 in national minimum
DEBUNKING MYTHS: OLDER WORKERS ARE MORE PRODUCTIVE wage back pay and £111.76 in holiday pay from TPG Web Publishing Ltd.
NOT LESS The tribunal heard that Hudson worked for the company on a daily basis
from 10am until 6pm and was personally responsible for and in charge
Findings from the study ‘Productivity and Age” has shown that older
of a team of writers. She was also responsible for training and delegating
workers are often more productive, even with physically demanding jobs
tasks, collecting briefs, scheduling articles and even hiring new interns.
than younger workers.
Hudson said that, when the site was taken over by TPG, she was asked
To be productive in manufacturing workers need more physical strength,
to stay on and work for the new firm and was assured her pay would
dexterity and agility (which tend to decline with age) than experience
be fixed. After five more weeks of doing so, however, she was informed
and ability to work in a team (which tends to increase with age). But in
that she would not now be receiving payment for the work she had
the service sector, experience and the ability to work in a team are key, so
carried out. As a result, she resigned and took out a grievance against the
the growth in productivity with age may be even greater.
company.
In many countries, including the UK, employers often cite lower
The National Union of Journalists, which took her case on under the
productivity among older workers as a reason to force early retirement.
auspices of its ‘cashback for interns’ campaign, said that the company told
But the research shows that if this were true, ageing populations in
her that “she was not eligible for any pay because they considered her an
many developed countries would be having a negative effect on overall
intern”.
productivity as the proportion of older workers increases.
The tribunal disagreed, however. It ruled that Hudson was classed as a
This study was published in the same week as more research revealed
worker under the law even though she had no written contract. As a
ageism to be endemic in the workplace. Findings from home and care
result, she was entitled to be paid at least the National Minimum Wage
provider, Anchor, show that two fifths of young people aged 18-24 years
and holiday pay.
The NUJ’s general secretary Jeremy Dear said: “Today’s judgement sends
a clear warning to all employers to pay their interns, abide by the law or
face the consequences. It is unacceptable that full-time staff are being
sacked, while unpaid interns are being exploited. This is the first case of
its kind – if employers continue to break the law it will not be the last.”
Kurumuth v NHS Trust North Middlesex University Hospital - Fair
dismissal of employee with unresolved immigration status:
This was an appeal by the claimant against dismissal of unfair dismissal
and breach of contract claims where the claimant’s immigration status
was in doubt. Appeal allowed on the breach of contract claim but other
appeal dismissed.
The claimant was a health care worker, originally from Mauritius. In
1997 she was refused leave to remain in the UK but was allowed to
Plummer Parsons | 01323 431 200 stay pending an appeal. That appeal was not determined by the time
eastbourne@plummer-parsons.co.uk | www.plummer-parsons.co.uk
18 Hyde Gardens Eastbourne East Sussex BN21 4PT

The Active Business Series 2011

The Active Business Series 12 2011

of her appointment in 2003 but the respondent later requested further The employee appealed the decision relating to her victimisation claim
information and was dissatisfied with the claimant’s response and and unfair dismissal claim. On appeal, the EAT upheld the Tribunal’s
instigated a disciplinary procedure. She was dismissed as there was no decision, finding that the circumstances surrounding the manner
evidence that she had the right to work. In subsequent ET proceedings in which the complaint was made meant that it was “properly and
the dismissal was found to be automatically unfair but no compensation genuinely separable” from the fact that Ms Martin’s allegations related
was awarded as she would have been dismissed in any event. to discrimination. The particular features of her complaint which led to
the decision to dismiss included the falseness and seriousness of the
In this appeal, the claimant’s principal argument was that the Tribunal
allegations, the number and frequency of the allegations, Ms Martin’s
ought to have decided her immigration status. The EAT rejected that
refusal to accept that the allegations were false, the risk of repetition and
submission as, although the ET had misdirected itself on the issue of
further disruptive and unmanageable conduct as a result of her mental
the burden of proof, they must take “a non-pernickety and non-fussy
illness and the cost and time in having to deal with her complaints.
approach” and the ET’s analysis was consistent with the reasonableness
Therefore, her claims of victimisation and unfair dismissal were dismissed.
approach. They also confirmed that there was no error of law in the ET’s
approach in reducing the compensation to zero. TOP TIPS ON HOW TO BE PREPARED FOR AND MANAGE AN
Martin v Devonshires Solicitors - Dismissal of employee who raised EMPLOYMENT TRIBUNAL
‘false’ grievances was fair:
1. When dealing with employees ensure a paper trail of the
Ms Martin began employment with Devonshires Solicitors in 2006. She actions you are taking exist even when you don’t believe there
raised a grievance in 2008 alleging that various partners at Devonshires is a major problem i.e. document meetings, confirm in writing,
were aware of her previous sex discrimination claim against her etc.
former employer and that she had been subjected to harassment and
2. With disciplinary issues ensure that a full investigation is
victimisation as a result. Devonshires dismissed the grievance and its
conducted, the hearing is fair and dismissal is only a last resort
appeal, concluding that it had been made in bad faith, with malevolent when you are sure of your facts; give the right to appeal.
intent and with no basis in fact.
Soon after she raised her grievance, Ms Martin went on sick leave for 3. Make sure that you have a clear written disciplinary procedure
which is available to all employees.
stress, during which period she raised seven similar further grievances.
Devonshires obtained two medical reports, one from a consultant 4. If you receive an ET1 from for a Tribunal case don’t delay in
psychiatrist and another from an occupational health consultant. These submitting your (ET3) response.
divulged that Ms Martin had a history of mental illness and suffered from
a persistent depressive disorder, experiencing paranoid hallucinations 5. Ensure you meet all the tribunal office requirements and
during psychotic spells. deadlines without fail.

Having notified Ms Martin that her employment may be terminated due 6. Act professionally throughout in all communications whether
to the breakdown of mutual trust and confidence, Devonshires wrote written or verbal using external support where necessary.
to Ms Martin dismissing her with immediate effect. The grounds for her
dismissal included the possibility of further relapse, Ms Martin’s lack of SURVEY INFORMATION
awareness of her condition, the time and money spent on handling the
Company cars remain popular but costly benefit
grievances and the stress that she would suffer on facing the colleagues
against which she had made the allegations on her return to work. Company cars remain a popular benefit, with almost three-quarters of
the 450 employers surveyed by XpertHR offering employees either a
Ms Martin brought claims in the Tribunal against Devonshires for sex
company car or a car allowance.
discrimination, disability discrimination, victimisation and unfair dismissal,
all of which were dismissed. The Tribunal held that Devonshires would According to the company cars survey 2011: cars are a popular but costly
have treated other employees who made similar false allegations in benefit. Around seven in 10 organisations provide cars on the basis of job
the same manner, regardless of their disability, and accordingly there need, while around six in 10 offer cars as a perk to senior employees.
was no direct discrimination. The Tribunal also stated that there was no
requirement for Devonshires to continue to employ Ms Martin, despite
their duty to make reasonable adjustments in light of her disability, and
the victimisation claim was dismissed.

The Active Business Series 2011

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