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February 2009 Updates

Step 1 letter - statutory disciplinary and dismissal procedures

The Employment Appeal Tribunal held in Zimmer v Brezan that a step 1 letter under the statutory disciplinary and dismissal procedures must state that the employer is contemplating dismissal where this is the case. If it doesn't but subsequently dismisses, the resulting dismissal will be automatically unfair.

Religious discrimination - spreading the word

The Employment Appeal Tribunal held in Chondol v Liverpool City Council that dismissing someone on the grounds of inappropriate proselytisation (i.e. "spreading the word") did not amount to unlawful discrimination on the grounds of religion or belief. In this particular case, the Claimant (a carer working for the council) asked a service user if he believed in God and went to church. The Employment Appeal Tribunal accepted that there was a distinction between dismissal for possession of religious belief, which would be unlawful, and dismissal for the inappropriate foisting of those beliefs on others, which can be lawful.

The Working Time Directive opt-out

The European Commission delivered an opinion on the Working Time Directive in which it:

Rejected the European Parliament's proposal (made in December 2008) to go ahead and abolish the opt-out from the 48-hour working week altogether. Although it expressed support for the eventual phasing out of the opt-out, it accepted that present economic conditions do not allow this.

Rejected a proposal to restrict a worker's ability to opt-out to a maximum of six months.

Recommended that workers should not be able to opt-out whilst on their probationary periods.

Recommended that the opt-out must be used with appropriate safeguards and only after other forms of flexibility have been examined.

Accepted the European Parliament's proposal that there should be no upper limit on working hours for those who do opt out.

Agreed with the European Parliament that the inactive part of on-call time should not be capable of counting towards minimum rest periods. It should be regarded as working time (although it would not have to be counted in an hour-for-hour way when calculating working time).

Agreed with the European Parliament that workers should be informed "well in advance of any changes to working hours" although only in respect of substantial changes.

The opinion is important because it is intended to help the European Parliament and Council reach agreement (in due course) on what the final position under European law will be going forwards. As it does not recommend the complete abolition of the opt-out, it has been welcomed by employers. However, it still allows for greater restriction on the opt-out than is currently the case.

TUPE and obligations on the transferee in respect of
post-transfer pay negotiations

The Employment Appeal Tribunal confirmed in Alemo-Herron v Parkwood Leisure that a TUPE transferee is bound to pay any increases which the TUPE transferor or a union negotiates under a collective agreement after the TUPE transfer has taken place. This case is, however, likely to be appealed.


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SRA number 404293