Kuratorium fur Dialyse und Nierentransplantation v Lewark [1996] IRLR 637

Paid time off for part-time workers attending full-time trade union courses and activities have again come under the legal spotlight. It was thought to be established - Botel [1992] IRLR 423 ECJ - that paying a part-time worker only for her part-time hours when she attended a course that extended beyond those hours, and where her full-time counter parts received their full pay, could amount to a breach of Article 119 of the Treaty of Rome.

Working on the principle that if you don't like the first answer try repeating the question, the German Government brought the seemingly identical case of Lewark to the European Court of Justice. In Lewark the ECJ confirmed the Botel judgment ruling that compensation for loss of earnings for attending a training course on staff council functions is pay under Article 119.

A law which states that full- and part-time workers attending a training course are compensated up to the limit of their respective normal working hours causes indirect discrimination against women, contrary both to Article 119 and the Equal Pay Directive. It can only be justified if the law in question reflects a legitimate aim of Government social policy, is appropriate to achieve that aim, and is necessary in order to do so.

...except when the EAT says they don't

Manor Bakeries Ltd v Nazir [1996] IRLR 604

Just when we thought the issue was settled our own Employment Appeal Tribunal reached a different conclusion on the question of paid time off for attending union conferences. Mrs Nazir sought compensation of four days' full pay for attending the Bakers Food and Allied Workers Union annual conference, not just her part-time pay. Male full-time worker delegates received full pay for the period.

The EAT held that since attending a union conference is not work, the money received from the employer is not pay, and so does not fall within the protection of Article 119. The delegate was paid for time off in accordance with a collective agreement rather than a contract of employment.

The EAT distinguished between a union conference where, it claimed, pleasure and work may coincide, and trade union training courses. The training courses, such as in Botel, are a type of work and German Staff Committees promote social dialogue in which the employer has an interest.

Nazir appears a strange judgment given the wide definition of pay within the meaning of Article 119. The definition of pay includes any financial benefit received by the worker, either directly or indirectly, in respect of his employment from his employer and irrespective of whether it is received under a contract of employment, a legislative provision or on a voluntary basis.

Common sense suggests this should include payment received under a collective agreement regarding paid time off for trade union activities. The purpose or desirability of an employer giving paid time off to attend a union's annual conference would be relevant to the issue of objective justification, but not to the meaning of pay.

Years of full-time work don't count for redundancy

Barry v Midland Bank Plc, Times Law Report, 25 October 1996, EAT

A Woman bank clerk has failed in an equal pay claim over the calculation of contractual redundancy pay. Ms Barry worked full-time for eleven years at Midland Bank Plc before returning to work part-time after the birth of her child. She took voluntary redundancy two years later and her severance pay was calculated on the basis of her having worked part-time for all her 13 years' service.

The Equal Opportunities Commission previously failed in the Court of Appeal in a similar challenge to the calculation of Statutory Redundancy Pay (R v Secretary of State For Employment Ex Parte EOC [1992] ICR 341). The Employment Appeal Tribunal in Barry followed the Court of Appeal findings in the EOC case.

The EAT held that, despite the fact that more women than men were affected by changing from full-time to part-time employment, there was no breach of Article 119 of the Treaty of Rome. The EAT found that the Midland Bank redundancy scheme did not treat women less favourably than men and it was not applied to Ms Barry in a discriminatory way.

The EAT went onto find that, if there was a variation between Ms Barry's contract and that of a male comparator, the difference was due to a material factor not based on sex - namely administrative convenience plus the intention to cushion employees against the loss of their work, particularly older, long serving employees.

Good news for RSI sufferers

Pickford v ICI CA 18 July 1996

A secretary who suffered from writer's cramp has won a claim for damages in one of the few pieces of good news for Repetitive Strain Injury sufferers. The case is significant because of the Court of Appeal's comments on rest breaks and on the balance between risk of injury and the cost of safety measures.

Ms Pickford lost her case in the High Court but appealed. In a majority decision, the appeal court found in her favour. The court had strong words to say on safety instructions and costs of providing information.

The court held that "those who are liable to do a great deal of typing on a VDU should be told that they must take breaks and rest pauses...it is advisable to explain why this is necessary, especially if the employee asks or there is any risk that the instructions will not be obeyed".

The court also rejected the argument that the cost of giving such advice and instructions was excessive compared to the risk of injury. The court held that "even to be disabled for a few months is not something that can be ignored".

Racial remarks - no joke!

Burton and Rhule v De Vere Hotels, EAT [1996] IRLR 596

The Employment Appeal Tribunal has set out a new test for employers' liability for acts of racial harassment by a third party who is not a fellow employee or agent. Although decided in the context of employer liability for third parties, the new "control test" has far wider implications as a separate route to establish employer liability. It can also be used by employees to negotiate anti harassment measures.

In this important case the EAT found that "an employer subjects an employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances in which he can control whether it happens or not". In Burton and Rhule two of the hotel's black employees were racially abused and harassed at a Round Table dinner by the guest speaker Bernard Manning and several other guests.

At the Industrial Tribunal they claimed direct race discrimination against their employers. They argued that their employers could and should have prevented the harassment by vetting Manning's material.

The IT found that the employees had been racially harassed but had not been "subjected to" that harassment by their employers. The IT held that the employers had not knowingly allowed the harassment to happen, nor could they have foreseen that Manning would behave as he did. This approach was rejected at the appeal. The EAT suggested that an IT should use its industrial experience in deciding whether a particular act was sufficiently under the control of the employer so that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it.

It is likely that in applying this new test ITs will pay greater attention to the preventative measures recommended by the European Union's Code of Practice on Sexual Harassment and the Commission for Racial Equality's guidance on racial harassment.

The EAT refused to endorse the negligence test of foreseeability to establish employer liability in this area. Knowledge or foreseeability may be relevant to the control test but is not essential to establish liability. The EAT said it was "undesirable that concepts of negligence should be imported into the statutory torts" of discrimination.