Tag Archives: Miller Samuel

Indirect associative discrimination: a new dawn for anti-discrimination protections?

The European Court of Justice (“ECJ”) last month held that an individual may successfully claim indirect discrimination, even where that individual does not have the protected characteristic being relied upon and is not part of the particular disadvantaged group. While not an employment law case, the implications of this ruling will impact the employment and HR sphere.

The previous position

The concept of associative discrimination is not new. In Coleman v Attridge Law, the carer of a disabled child suffered discrimination by her employer when she sought to take additional time off work to care for her son, following a request to work from home. While not herself disabled, the ECJ held that if the employer’s detrimental treatment towards the claimant was because of the fact her son was disabled, she should be protected under anti-discrimination legislation. The effect of this decision was to provide protection against direct discrimination by association.

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Sexual Orientation: Ensuring Equality in the Workplace

Same-sex couples are able to get married or register a civil partnership in England, Scotland and Wales, which gives them many of the same rights as heterosexual couples. Now that the US has also recognised same-sex marriage as legal in Obergefell v Hodges, the issue of sexual orientation is likely to move into the spotlight of ensuring equality under employment law.

Recognising what protections UK employment law offers gay and lesbian people, and what conduct may be identified as discriminatory can be good practice for all employers as they look to promote an equal and productive work environment.

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All “Duncan” and Dusted with carry-over entitlements? Not quite, but hopefully getting there.

The Employment Appeal Tribunal (“EAT”) has now provided further clarification on holiday carry-over entitlements where an employee is absent due to illness. While it is now settled that annual leave continues to accrue during sick leave and that a worker cannot be compelled (although may choose voluntarily) to take holidays during sick leave, the resultant implications of that legal position were more problematic. What length of time does a worker have to take those holidays upon returning to work? Does the carry-over allowance apply only to those physically unable to take holidays during their sick leave? If so, does the onus fall on the worker to demonstrate this? Would employers have to make medical decisions as to whether an illness is sufficiently limiting to qualify? Some of these questions have been addressed (for now at least) by the EAT in Plumb v Duncan Print Group Ltd.

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Long Leases (Scotland) Act 2012

The Long Leases (Scotland) Act 2012 will convert ultra-long leases will into ownership on the appointed day. This follows the principal applied to feus by the Abolition of Feudal Tenure etc (Scotland) Act 2000 which converted the right of the feuar into real ownership. The SLC argued in their Report on the Conversion of Long Leases that as ultra-long leases are essentially “pseudo-feus” it seems obvious to apply the principles of the 2000 Act to long leases. This means that if you are a tenant with an ultra-long lease, then as of the appointed day you will become the owner of the property.

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The Queen’s Speech and employment law

Last month, the Queen delivered her first Queen’s Speech prepared by a Conservative-majority government since 1996. Unsurprisingly, in the 19 years which have elapsed since John Major’s last year in Number 10, the governmental agenda has radically changed. Yet the Conservatives’ perennial inability to unite on the question of Europe is one factor which remains. From an employment law perspective, the consequences of the Conservatives’ internal rift in this respect may be significant. While a the proposed  abolition of the Human Rights Act was removed from the Queen’s Speech at the last minute, a number of prominent agenda points which did still feature will undoubtedly have employment law implications.

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Voluntary overtime may require to be accounted for in holiday pay

On Tuesday of this week, the Court of Appeal in Northern Ireland issued its decision in the case of Patterson v. Castlereagh Borough Council, this being the next stop on the now epic journey which the tribunals and courts have taken in trying to determine what should and what should not be accounted for in an employee’s entitlement to holiday pay.

It may be an apt time of year for this decision given the number of people who will now be going on a summer holiday, but the finding of the court may mean that employers will have immediate worries, rather than being able to leave them behind for a week or two.

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Recovery of Documents Prior to Substantive Court Action

A court case will invariably come down to a question of fact, or a question of law – or, if you are particularly unlucky, a mixture of both.  Questions of law can be decided by way of legal debates, with solicitors or advocates arguing over the particular word choice of a judge who has long since passed away.

Questions of fact, whilst less glamorous, can be equally important.  For instance, imagine that you have hit a pothole in the road, which has badly damaged your car.  You hear from a friend at the local council that the council was well aware of the severity and location of the pothole, and had records of other drivers hitting the same pothole some months ago.  Your friend says that the council simply forgot to fix it.

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Get paid by your employer for travelling around?

Get paid by your employer for travelling around? Could soon be a reality for some workers following a recent opinion of the Advocate General of the ECJ.

The Advocate General (Yves Bot) has this week drafted an opinion that travelling workers without a regular fixed place of work should have their travel time to and from their first and last assignments treated as “working time”. While the opinion of the Advocate General is not a binding legal decision and accordingly should be treated with due caution, in practice such opinions are highly persuasive and often followed by the European Court of Justice (ECJ).

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Employers Warned Over Staff Potentially Recording Conversations

Employers have been warned by legal experts that staff could be recording what they say or recording private conversations to obtain incriminating information or take legal action against them.

An article in the Financial Times cites high-profile cases such as the FIFA arrests as a prime example of tapped equipment to record. Such equipment is used in sexual harassment cases and other employment tribunals in order to challenge an employer.

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The Statutory Right to Claim Interest and Compensation on the Late Payments of Commercial Debts

The late payment of commercial debts can have a detrimental impact on any size of business, but perhaps more so for a smaller business where cash flow is more likely to be reliant on the timeous payment of invoices.

The enactment of the Late Payment of Commercial Debts (Interest) Act 1998 makes provision for creditors to be compensated where instances of late payment of debts arise.  The introduction of the Late Payment of Commercial Debts Regulations 2013 further amended the provisions of the Late Payment of Commercial (Interest) Act 1998 extending the scope of the Act. It added an implied term to qualifying contracts whereby providing a statutory right to claim interest and compensation arising from the late payment of commercial debts. It is important to be aware of the terms of the relevant legislation as they essentially act as a deterrent to the late payment of commercial debts.

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