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November 2008 Updates

Breach of condition imposed by working visa not sufficient to render whole employment contract illegal

The Employment Appeal Tribunal (EAT) has held in the case of Blue Chip Trading Ltd v Helbawi that a breach of conditions imposed by a student working visa was not sufficient to render the whole employment contract illegal (which in turn would have had the effect of defeating a claim under the National Minimum Wage Act 1998). In this case, the individual (deliberately) worked longer hours than was permitted by his visa during term-time. Nevertheless, the EAT held that part of the contract was legal and this could be severed from the illegal part. The individual's claim was therefore allowed in respect of his right to be paid the national minimum wage during those weeks where he was not working in excess of the number of hours permitted by his visa.

Consultation on disability discrimination law amendment

The Government is currently seeking views on how the forthcoming Equality Bill should address disability discrimination in the light of the House of Lords' decision in Mayor and Burgesses of the London Borough of Lewisham v Malcolm. The Equality Bill seeks to simplify and harmonise the different pieces of discrimination legislation. The House of Lords in the Malcolm case concluded that the well-established 'comparator' test for Disability Discrimination Act ("DDA") purposes (laid down by the Court of Appeal back in 1999 in Clark v TDG Ltd t/a Novacold Ltd) is incorrect. The majority in the Lords held that the correct analysis was to compare the way the disabled person has been treated with the way that a non-disabled person in the same situation would have been treated. The Government is considering whether the disability discrimination provisions to be included in the Equality Bill should adopt a different approach. In particular, it is proposing to apply the well-established concept of indirect discrimination to disability in employment in the Equality Bill, rather than continue to use the existing provisions in the DDA on disability-related discrimination.

Consultation on tips and the minimum wage legislation

Currently, where tips and gratuities are given directly to workers by customers and are retained by the workers without any other party being involved, they cannot count towards national minimum wage payments. However, where service charges, tips, gratuities and cover charges are paid by the employer to the worker via the payroll, then the tip can count towards national minimum wage pay. The Government is proposing to amend the legislation so that tips can never count towards payment of the national minimum wage.

Guidance on conduct which may justify age discrimination

The Employment Appeal Tribunal has given some guidance in the case of Live Nations (Venues) UK Ltd v Hussain as to conduct which may justify a finding of age discrimination. For example, an employer that genuinely believes employee 'A' is guilty of age discrimination against employee 'B' and dismisses employee 'A' for that reason cannot be said to be discriminating against employee 'A' on the grounds of their age. Furthermore, an unjustified or unreasoned belief that an employee has ageist tendencies may render a dismissal unfair, but it does not justify an inference that the reason for the dismissal is the employee's age.


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SRA number 404293