Bird & Bird UK Employment Law Update May 2012



Welcome to the Employment Law Update for the UK.

In this edition we look at recent developments involving age discrimination, TUPE, harassment and automatic unfair dismissal. Please click on the title to view any article.

As always, please do not hesitate to contact any member of the Employment Group if you have any queries on the issues covered in the Update or any other matters.

Age Discrimination
How may a default retirement age still be justified?
From April 2011, the statutory default retirement age of 65 was abolished. As a result, any compulsory retirement now amounts to direct discrimination ('less favourable treatment') unless the treatment can be justified as a 'proportionate means of achieving a legitimate aim'.


Service provision change
The case of Argyll Coastal Services v Stirling was considered by the Employment Appeals Tribunal (EAT). The case involved 11 staff working outside the UK, who were employed by a Guernsey company, and two members of staff who were employed and worked in the UK for a UK company. The service provided collectively by these 13 individuals was taken over by a new service provider. The 13 individuals claimed that they should transfer to the new service provider under TUPE as a result of a service provision change as they were a 'grouping of employees' within the meaning of TUPE. All 13 claimants failed in their claims.


Must be 'related to a protected characteristic'
Discrimination law provides that employers will be vicariously liable for acts of harassment directed towards one employee by another if such acts are done 'in the course of employment'. It does not matter that the employer would not have sanctioned the acts and/or was completely unaware that they had taken place. However, harassment under the Equality Act only applies to acts done 'because of' a 'protected characteristic' e.g. sex, race, age etc.

Automatic Unfair Dismissal

Not for sleeping on the job........
In Ajayi v Aitch Care Homes, the EAT heard a claim from employees who had been dismissed for sleeping while on shift. The claimants had not been provided with rest breaks as required by the Working Time Regulations. The claimants tried to argue that their dismissals were automatically unfair because their conduct amounted to a refusal to comply with a contravention of the Working Time Regulations.
The EAT disagreed. If this was genuinely the claimants' position, they should have communicated it to the employer first.

Contact Us

If you have any queries on the issues covered in the Update or any other matters please do not hesitate to contact a member of the Employment Group.

Ian Hunter [email protected]  
Warren Wayne [email protected]  
Elizabeth Lang [email protected]  
Colin Kendon [email protected]  


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In this Issue

Age Discrimination



Automatic Unfair Dismissal

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