The recent case of British Airways (“BA”) v Pinaud serves as a reminder that discrimination of part-time workers is unlawful under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”) but that employers might avoid pay-outs if such treatment can be objectively justified.
The case involved a BA crew member who, upon returning from maternity leave, became a part-time worker. Like other part-time workers, she was contracted to work 14 days on, 14 days off. The airline’s full-time staff were scheduled to work 6 days on, 3 days off. These work patterns meant that the full-time staff were required to be available for 243 days of the year, whereas those working part-time were required to be available for 130 days. Therefore, the requirement of availability for part-time employees amounted to 53.5% of that of BA’s full-time workers. However, those part-time workers were only paid 50% of full-time salary.
In a decision described by the barristers who acted for the successful Claimant, Mr Efobi, as “a radical reconsideration of the burden of proof”, last month the Employment Appeal Tribunal handed down judgment on how to correctly interpret the burden of proof provision concerning cases of direct discrimination under the Equality Act 2010 (“EqA”).
In 2016, in the case of Barbulescu v Romania, the European Court of Human Rights ruled that an employer was lawful in monitoring an employee’s messenger account. The ruling reinforced the UK Government’s current policy, which says that employers can monitor emails, or look at which websites workers visit, as long as they explain this clearly in the staff handbook or contract.
In this case, the employee had used a Yahoo messenger account to communicate with his brother and his partner. The news was welcomed by employers across the UK, and seemed to align with the expectation that an employee should devote their full time and attention to their job when at work.
However, the decision was then appealed to the Grand Chamber, which is the final tier. This summer, in an 11 to 6 judgment, the Chamber overturned the ECHR decision and gave judgment in favour of Bogdan Barbulescu, and the right to respect for privacy under Article 8 of the European Convention on Human Rights. Mr Barbulescu was therefore entitled to compensation for the breach of his human rights.
In the matter of AAZ v BBZ  EWHC 3234 (Fam), Mr Justice Haddon-Cave very aptly and bluntly described the trust in this matter at para 72 of his judgement: "Thus, the way in which the Trust is intended to operate is remarkable in its simplicity: i.e. by H, qua Principal Beneficiary, asking himself, qua sole director of C Ltd, for a distribution and then H, qua Protector, asking himself whether or not such a distribution should be met. The Trustees can ignore the needs of the other beneficiaries and benefit H by transferring the whole or any part of the capital to him. The Trustees (in essence H) owe no duty of care and are free from the self-dealing rule: he can pay money to himself whenever he wishes. The Trust document is not a sham in the sense of pretending to be something that it is not. It is a remarkably candid and pellucid document which makes no pretence to be anything other than what it is, namely what is colloquially called a 'Dear me' trust for H for his lifetime."
Under the requirements of the new Royal Charter and in a bid to make the BBC more transparent, a salary report from the BBC Remuneration Committee has been published this week. The report discloses the pay of all senior executives of the BBC who are paid more than £150,000. It is the first time that this information has been made public.
Matthew Taylor’s Review of Modern Working Practices, or colloquially ‘Good Work’, was finally published this week. As part of a collaboration with Greg Marsh, Diane Nicol and Paul Broadbent, Taylor sought to consider three challenges: Firstly, tackling exploitation at work; secondly, to increase clarity in the law and inform individuals of their rights and how to exercise these; and finally, to align incentives driving the nature of the UK labour market with a modern industrial strategy and broader national objectives.
The former wife of an oil and gas trader has been awarded £453 million in financial remedy proceedings against her former husband. It is thought to be one of the largest divorce awards in the UK.
The husband is 61 and the wife is 44. They married in Moscow in July 1993 and moved to London in the same year. In 2012, the husband sold shares in a Russian company for US$1.375 billion. The wife had been a 'hands on' mother and housewife throughout the marriage.
In addition to a lump sum payment of £350 million (and the assets she already had of £10,165,162), the wife also sought a further £93,060,990 comprising the following:
(1) The chattels valued at £2,479,125;
(2) An Aston Martin valued at £350,000;
(3) A modern art collection valued on a sale basis at US$112m.
The Judge found the total value of the wife’s claim to be £453,576,152, and considered an award of that sum to be justified in all the circumstances.
Appeal upheld in Dr Day -v- Health Education England
The highly anticipated Court of Appeal Judgment in Dr Day -v- Health Education England has today been handed down.
The judgment has upheld an appeal by Dr Chris Day (a junior doctor who was employed by an NHS Trust) regarding the decision that he could not bring a whistleblowing claim against his national training body, Health Education England (“HEE”).
The judgment has helped to clarify the positon for junior doctors across the country (there are approximately 54,000 junior doctors in England) and workers who are supplied to work for other organisations, who blow the whistle.
Prior to joining Curzon Green Solicitors our Lauren McLaughlin was part of the legal team representing the Appellant, Dr Day.
In January 2014, Dr Day blew the whistle to Lewisham and Greenwich NHS Trust, his employer at the time, regarding patient safety concerns. He made disclosures about the Intensive Care Unit at Queen Elizabeth Hospital being understaffed. He repeated his disclosures to HEE, the training body with whom he had entered into a training agreement.
After blowing the whistle, Dr Day alleges that he was unfairly dismissed by the Trust and that HEE subjected him to detriments, refusing to place him at a new NHS Trust unless he accepted certain conditions. HEE then removed Dr Day’s National Training Number which is essentially the trainee doctor’s passport allowing him or her to complete the training programme and become a consultant doctor. Dr Day claims that he lost his career path to consultancy.
Dr Day brought whistleblowing claims in the Employment Tribunal against both the Trust and HEE.
“Workers” are protected by law from unfair treatment. The law extends the definition of “worker” to cover those who are supplied by one organisation to work for another.
At a Preliminary Hearing in 2015, it was decided that Dr Day was not HEE’s worker and as such, he did not have whistleblowing rights as against HEE. The Tribunal found that HEE did not substantially determine the terms under which Dr Day worked. This was despite that HEE places junior doctors at particular trusts and contributes to their salaries, among other things.
Court of Appeal decision
The first issue for the Court of Appeal was whether Dr Day can be a worker of HEE, even though he had an employment contract with the Trust. The Court of Appeal decided he could, overturning the EAT’s decision. This has helpfully clarified the position for agency workers and other workers in triangular relationships.
The second issue is whether HEE “substantially determined” the junior doctor’s terms. The Court of Appeal upheld Dr Day’s appeal on this point and remitted it back to the Tribunal to decide. The Tribunal’s decision could prove to be a landmark victory for junior doctors who blow the whistle to their training bodies. We will therefore be following the case, and the Tribunal’s decision, closely.
If you have been dismissed, suspended or treated unfairly after having blown the whistle or if you wish to discuss how to implement effective and fair whistleblowing policies and investigations at your organisation, please get in touch with our Employment Team.
National housebuilder Taylor Wimpey has apologised to home buyers this week after growing criticism of its policy, between 2007 and 2011, of selling new build houses as leasehold properties. This meant that the builder owns, or may have sold on, the land the houses stand on, and charges annual ground rent at a rate that frequently doubles every ten years. The first of these hikes in ground rent is therefore kicking in this year.