Upcoming breakfast seminars

Our Autumn seminar series is fast approaching and our Employment, Pensions and Incentives Update seminars will be running in Glasgow, Edinburgh and London during October.  Looking at the most important recent and forthcoming developments in employment, pensions and employee incentives, with practical updates and analysis from members of our highly regarded teams in these fields, this event will be essential for anyone responsible for HR, pension scheme planning and administration, and the design and implementation of employee incentive schemes. 

For further information on dates, venues and booking, please see our Events Page. 

Also, if you missed out on our Agency Workers Seminars back in May, then you have one more chance!  Following the huge success of this highly topical seminar in the Central Belt and London, we are now running this seminar in Aberdeen on 23 September.  The Agency Workers Regulations are expected to come into force in October 2011 and organisations that use agency workers or hire them out should start to plan now for their implementation.  Places are limited, so book now  to secure your spot!
 
 

19 August 2010

Retirement age to go

The Government has announced that the default retirement age of 65 will be scrapped from October 2011.  As a result, employers will be compelled to make strategic decisions about their workforce and to address the change in the law in a number of areas.  Consultation on effecting the change is due to finish in October 2010 and may give rise to transitional arrangements.  The current law will apply to retirements which occur before 1 October 2011 and for which notice is given before 6 April 2011. 

Click here for further information about what this means for employers.
 

19 August 2010

Court of Appeal provides guidance for employers on justifying compulsory retirement

Shortly before the Government's announcement on the default retirement age (DRA), the Court of Appeal delivered its first substantive judgment on objectively justifying compulsory retirement in the case of Seldon v Clarkson, Wright and Jakes. 

Mr Seldon was a partner in a law firm and was compulsorily retired at age 65. He brought an Employment Tribunal claim alleging that he had been directly discriminated against on the grounds of his age.  Mr Seldon was not an employee and was not covered by the default retirement age in the Employment Equality (Age) Regulations 2006.  Therefore, the firm had to objectively justify their decision to retire him by demonstrating that the retirement rule was a proportionate means of achieving a legitimate aim. 

The Court of Appeal has upheld the Tribunal's ruling that in this case compulsory retirement at age 65 was a proportionate means of achieving the legitimate aims of:

• ensuring associates were offered the opportunity of partnership after a reasonable period;

• facilitating workforce planning across the firm by setting realistic long term expectations as to when vacancies would arise; and

• promoting a supportive workplace culture by limiting expulsion of partners through performance management. 

Impact on employers

The decision provides useful guidance for employers who will have to objectively justify compulsory retirement from next year.  Although the arguments considered reflected the context of a small law firm, it is likely that the underlying principles will be relevant to many workplaces.  The Court's endorsement of the compulsory retirement policy is therefore encouraging for those employers keen to retain a compulsory retirement rule even after the DRA is abolished.

• Employers do not have to show a "legitimate social policy objective"

The European legislation provides that age discrimination may be objectively justified in pursuit of legitimate aims, including legitimate employment policy, labour market and vocational training objectives.  Mr Seldon argued that private employers must show such legitimate "social policy" aims to meet the test of justification and that, as the firm's aims of succession planning and associate retention applied only to itself, these did not amount to social policy reasons.  This was rejected by the Court, which confirmed that the "social policy objective" is not a test that private employers have to meet.

• Agreement between parties of equal bargaining power is a legitimate factor

The firm's partners had all agreed to the clause in the partnership agreement governing compulsory retirement and the majority considered it to be in their collective interest.  In determining whether compulsory retirement is objectively justified, the court said it is legitimate to take into consideration the fact an agreement has been reached between parties of equal bargaining power. 

• Limited exceptions do not undermine a compulsory retirement rule

 The fact that the compulsory retirement clause in the partnership agreement contained a limited exception allowing some partners to be kept on beyond age 65 did not mean that the rule was unclear or undermined the firm's recruitment and promotion aims.

• Once a retirement rule is justified, its application to a particular employee will rarely require further specific justification

Mr Seldon argued that, even if the firm's retirement policy could be objectively justified, the firm had not shown that enforcing the rule was justified in his particular case.  This was also rejected: once the rule has been objectively justified, its enforcement against a particular individual will need little further justification, as that enforcement will be viewed as part and parcel of the proportionate means of achieving the legitimate aim.

• Objective justification of chosen policy is key, not consideration of possible alternatives

Mr Seldon argued that a cut-off age of 66 would have been less discriminatory.  The Court pointed out that the selection of a particular retirement age would always be more discriminatory to individuals of that particular age.  The essential question is whether an organisation can objectively justify compulsory retirement at the particular retirement age it has chosen. 

19 August 2010

Legal loophole to avoid backdated holiday pay claims?

An Employment Tribunal has considered whether or not a claim for pay in lieu of untaken holiday extending back over a number of leave years can be defeated by making a payment restricted to the employee's entitlement in the latest holiday year.

Last year the House of Lords decision in HM Revenue & Customs v Stringer paved the way for workers to claim pay in respect of unpaid holiday which had not been taken owing to sickness absence.  This could potentially be recovered going back a number of years by way of an unauthorised deductions from wages claim where:-

• there has been a series of failures to pay in lieu of the statutory minimum holiday entitlement under the Working Time Regulations over a number of years ("deductions"); and

• the Tribunal claim is brought within three months of the last "deduction". 

In Khan v Martin McColl, Mr Khan's employment transferred under the TUPE Regulations to Martin McColl in 2007.  At the point of transfer he had accrued two weeks' untaken holiday entitlement.  However, shortly after transferring, Mr Khan went off on long-term sick leave and was absent until his employment came to an end in 2009.

On the termination of his employment, he was only paid the holiday entitlement that had accrued since the start of the 2009 holiday year. Mr Khan therefore sought to recover the 2 weeks' leave he had accrued at the point of his transfer to Martin McColl in 2007, as well as a further 4 weeks' leave which had accrued in the course of 2008 by bringing a deduction from wages claim.

The time limit for claims involving a series of deductions is three months from the date of the last deduction. Martin McColl argued that because the holiday that accrued in the 2009 leave year had been paid, the most recent "deduction" (namely, the failure to pay the 2008 entitlement) had occurred well over three months before the claim was brought. Accordingly Mr Khan's claim was out of time.  The Employment Tribunal agreed with this argument  

Impact on employers

• As an Employment Tribunal decision, this case is not binding on other Tribunals and it therefore will not inevitably follow that employers will be able to defeat similar claims in the future by paying out only the latest year's entitlement.

• At present no appeal has been lodged with the EAT, but we will update you in our ebulletin should there be further developments.

• In any event, this decision will have persuasive value in other similar Tribunal cases and so it offers employers a potential loophole to avoid significant liability where they have employees on their books who have been absent over a number of holiday years and have not received holiday pay.

19 August 2010

Cap on enhanced redundancy payments not age discrimination

The EAT has decided in Kraft Foods UK Ltd v Hastie that an upper ceiling on a contractual redundancy payment, which disproportionately affected older workers, did not constitute age discrimination.

Kraft's contractual redundancy scheme entitled employees to 3.5 weeks' actual pay for each year of service, subject to a cap that the redundancy pay could not exceed the salary which they would have earned had they remained in employment until age 65.

The entitlement of Mr Hastie, aged 62, was capped at £76,560.  Without the cap, his entitlement would have been approximately £90,000.

Mr Hastie argued at an Employment Tribunal that the cap amounted to indirect discrimination on the grounds of age, as it would only bite against older workers.  Kraft acknowledged that the cap would disproportionately affect employees nearing retirement but argued that it was necessary to prevent employees in this age category receiving a windfall.

The EAT held that the aim of preventing employees receiving a sunbstantial windfall was a legitimate one.  The purpose of a redundancy payment, it said, is widely understood to be compensation for the loss of expectation of continued employment.  Without the cap in place, the compensation payable could exceed what is necessary to achieve that objective in the case of employees close to retirement.  The cap was justified.

Impact on employers

• This decision follows similar cases and reinforces the comfort for employers that the use of a cap in contractual redundancy schemes, which is commonplace, may be justifiable.

• However, employers whose cap is assessed by reference to a normal retirement age should review their approach following the announcement that the default retirement age will be scrapped from next October – see earlier items in this ebulletin.

• The EAT commented that the cap applied in this case was arguably a more proportionate means than the application of a taper – the other approach commonly used to limit payments in redundancy schemes.  Although this observation is probably not binding, employers who use a taper in redundancy schemes should review its purpose and effect: if it is designed to prevent an undue windfall and achieves this aim proportionately it this still have sufficient justification.

In the current climate many employers may be reviewing their redundancy schemes or establishing schemes in anticipation of coming job cuts.  There is the potential for any scheme rules which are not tightly modelled on the statutory redundancy payment scheme to be discriminatory on the grounds of age and to therefore require objective justification.  Employers who have considered and carefully articulated the aims of the scheme, including any cap or taper, will be better placed if they are put to the test of justifying their policies. 
 

19 August 2010

Employer's unambiguous words of dismissal can rarely be retracted

The EAT has held, in the case of Willoughby v CF Capital plc, that an employer's unambiguous words of dismissal could not be retracted, even where the letter of dismissal had been issued as a result of a misunderstanding.

Mrs Willoughby was informed on 1 December 2009 that CFC was experiencing difficulties, and that one way to avoid redundancies was for staff to become engaged as self-employed contractors.  She expressed an interest in such a move, if the terms were acceptable to her, and requested further details of the terms from CFC. 

On 23 December, she received a letter from CFC referring to the meeting on 1 December and their "mutual agreement" that she become self-employed.  The letter confirmed the termination of her employment on 31 December and enclosed a copy of the self-employed agency agreement that would commence on 1 January.

After taking legal advice, Mrs Willoughby told CFC that she did not accept the agreement. CFC then closed for the Christmas break and it was not until 5 January that her manager contacted her to reassure her that there had been a misunderstanding and that, if she did not wish to move to self-employment, she could continue as an employee.  However, Mrs Willoughby maintained she had been dismissed and brought claims for unfair dismissal and breach of contract.

Her claims were upheld by the EAT which said that clear, unambiguous words of dismissal were to be taken at face value and she was entitled to assume that the decision to dismiss her was a conscious, rational decision.  While a "special circumstances" defence can sometimes operate to deprive clear words of dismissal of effect, this will only be in circumstances where the person did not intend to resign or dismiss, for example, when words are spoken in the heat of the moment and are quickly retracted.  Such a defence was not available when a conscious, rational decision to dismiss was taken but was later found to be a mistake.  While CFC had tried to retract the dismissal, the EAT felt that this was not done quickly enough – the intervention of the Christmas holiday period was no excuse.

Impact on employers

• This is a tricky case for employers and demonstrates the potentially serious consequences of a simple misunderstanding. 

• It highlights the importance of being completely clear at all times in dealings with employees and confirming, in writing, the outcomes of meetings and discussions.  The Tribunal said that the misunderstanding in this case could have been avoided had the employer sent the employee a note of the meeting on 1 December.

• Despite Mrs Willoughby's success, her refusal to restore the employment relationship may be taken into account by the Tribunal when assessing her compensation and her attempts to mitigate her loss.

19 August 2010

Compensation awarded for career-long loss in discriminatory dismissal

In Wardle v Credit Agricole Corporate and Investment Bank the EAT has confirmed that awards for discriminatory dismissals can include compensation for career-long loss.  This is a timely reminder to employers that the approach to calculating awards where discrimination is established is different to that in unfair dismissal claims where there is no discriminatory aspect.

Mr Wardle worked for Credit Agricole in its London office. In 2008 he applied for promotion but CA promoted a French employee instead.  He lodged a claim of race discrimination, in response to which the bank summarily dismissed him, prompting a further claim arising from his dismissal.  At the tribunal, Mr Wardle's claim of race discrimination was upheld and his dismissal was found to be both unfair and an act of victimisation.  In addition, the Tribunal held that the bank had failed to follow the statutory dismissal procedures (which applied at the time of his dismissal).

The Tribunal assessed compensation initially at £180,000.  It then applied the maximum statutory uplift of 50% for the bank's failure to comply with the statutory procedures, bringing the total compensation awarded to £270,000.  Both Mr Wardle and the bank appealed against the level of the award.

In assessing loss, the tribunal had included an element of loss arising for the period up to 2024, at which point Mr Wardle would be 60 years old.  This was the latest date that the tribunal considered Mr Wardle would work for the bank, if he did not leave sooner. 

On appeal, the bank claimed that the tribunal should not have awarded any element for career long losses, or that it should have applied a greater reduction to reflect the percentage chances that Mr Wardle would have left their employment in due course.  The EAT, however, confirmed that compensation for career-long loss was appropriate and upheld the level of reduction which the tribunal had ultimately applied.  It also ruled, however, that the 50% uplift which gave rise to an increase of £90,000, was disproportionate to the bank's breach. The uplift was therefore reduced to 10%.

Impact on employers

• Unlike compensation for most unfair dismissals, compensation for discriminatory dismissals is uncapped. 

• Additionally, there is a different test for the calculation of the compensation. The aim is to put the employee into the position they would have been in had no discrimination taken place.  That is not necessarily the same as asking what would happen to the particular employment relationship had there been no discrimination.  An employee's prospects of finding a job when they are forced onto the labour market by a dismissal may be reduced because it is easier to find a job when in employment and because they may be stigmatised in the market for having brought legal proceedings.  This has to be appropriately reflected in the award of compensation.

• Although the statutory dismissal procedures have now been abolished, tribunals are still entitled to make uplifts in compensation of up to 25% where the ACAS Code has not been followed.  This can give rise to sizeable penalties (ultimately £18,000 in this case). 
   

19 August 2010

News round up

In this round up of recent news, we report on claims that the removal of travel perks by BA amounts to race discrimination; the delay in the implementation of the Bribery Act; planned caps on civil service redundancy payments; planned restrictions on bankers' bonuses; a forthcoming review of the Agency Workers Regulations; and the 2009/10 Employment Tribunal statistics.

BA flight attendants claim race discrimination on removal of travel perks

We recently considered the lawfulness of BA's threat to withdraw discounted travel perks from its striking employees. The saga continues, with recent reports that a group of 75 flight attendants based in Scotland, Ireland and mainland Europe are suing the airline for race discrimination.  They claim that the removal of the perks discriminates indirectly against them, as they use the scheme to commute to and from Heathrow airport.  The loss of the perk (which equates to a 90% discount on full fare) has had a severe financial impact.

BA has said that it totally rejects the claims of discrimination and will defend any claim vigorously.

Government announces implementation of Bribery Act in April 2011

The Government has delayed the implementation of the Act until April 2011 in order to allow a short consultation exercise, commencing in September, on the guidance about what "adequate procedures" organisations are required to put in place to prevent bribery.  The final guidance is due to be published early next year.

Anti-corruption campaigners have criticised the delay, warning that the consultation may start attempts to water down the Act.

Businesses now have some additional time to prepare for the Act, but will need to be ready when it comes into effect.  Shepherd and Wedderburn is running seminars on the Bribery Act in conjunction with senior members of the Criminal Bar.  These will examine the substance of the Act, practical compliance and risk-management measures.  If you would like to attend, please click here.

Civil service redundancy payments to be capped

The Government has "reluctantly" announced that it will legislate as soon as possible to cap redundancy pay for civil servants, bringing packages into line with best practice in the private sector.  Compulsory redundancy payments will be capped at 12 months' pay and voluntary redundancy payments will be capped at 15 months' pay.  There will be an additional cap on the amount any individual can receive.  Accrued pension rights will be be unaffected.

The plans will save hundreds of millions of pounds as redundancies hit the public sector.  However, it will severely affect long-serving employees, some of whom would currently be entitled to a severence package of over six years' pay.  Although the plans to cap compulsory redundancy payments are not negotiable, the Government is seeking to agree arrangements for voluntary redundancies and protection for lower paid staff with its union partners.  Unsurprisingly, the unions are resistant to the proposals and PCS has already warned of possible industrial action.

EU restrictions on bankers' bonuses lead to FSA consultation on changes to its Remuneration Code

The European Parliament has announced its approval of "some of the strictest rules in the world" capping bankers' bonuses.  The aim of the rules is to "transform the bonus culture and end incentives for excessive risk taking".  The rules come into effect on 1 January 2011 and include:-

• upfront cash bonuses to be capped at 30% of the total bonus (20% for particularly large bonuses);

• 40 to 60% of any bonus to be deferred for at least three years (and to be recovered from the employee if investments do not perform as expected);

• at least 50% of the total bonus to be paid as "contingent capital" (i.e. funds that are called upon first if the bank is in difficulty) and shares;

• bonuses to be capped as a proportion of salary – each bank will have to establish limits on the basis of EU-wide guidelines in order to help to bring down the overall disproportionate role played by bonuses in the financial sector;

• bonus-like pensions will be covered, with exceptional pension payments being held back in instruments such as contingent capital that link their final value to the overall strength of the bank;

• special rules will apply to banks bailed out by member states.

There is a concern that these rules will place EU banks at a competitive disadvantage on the international arena, as it does not appear that the US banks will be subject to equivalent legislation.  The Council of the European Union has yet to rubber stamp the rules.

FSA consults on changes to its Remuneration Code

The FSA has recently announced plans to update its Remuneration Code to reflect new EU restrictions.  This will include widening the application of the Code (which currently applies to the largest banks, building societies and broker dealers) to cover over 2,500 organisations, including all banks and building societies, asset managers, hedge fund managers, UCITS investment firms, as well as some firms that engage in corporate finance, venture capital, the provision of financial advice and stockbrokers.  The FSA has stated that it does not intend the final rules to be "super-equivalent" to the EU rules, unless required to do so by UK legislation.  The FSA is consulting on these changes, including the question of to which staff the Code will apply, until 8 Octobter 2010.  It intends to issue a policy statement in November 2010, with rules effective from 1 January 2011.

The timetable is tight and the FSA is urging all firms within its scope to start preparing for the changes as early as possible.  We will keep you updated of developments.

Agency Workers Regulations to be reviewed

The Government has confirmed that the Agency Workers Regulations 2010, due to come into force on 1 October 2011, are currently under review.  Minister, Edward Davey, stated: "the Government are aware of the different points of view expressed by the business community about certain aspects of the agency workers regulations and is currently considering the way forward".

Tribunal statistics show large increase in claims for 2009/10

The Tribunals Service recently published its Annual Statistics for the period to 31 March 2010.  There was a 56% increase on the previous year in the number of claims accepted, with the volume of claims now at a record high.  The rise is principally due to multiple claims, which rose by nearly 90% on 2008/09, and to the current economic climate.  Claims relating to redundancy pay rose by 76%.

The Tribunal Service is buckling under its hefty caseload, with 400,000 cases outstanding at the end of 2009/10.

19 August 2010

Case round up

In this round up of recent cases we look at decisions concerning: the importance of context in interpreting collectively agreed terms on pay; when employment is taken to have ended for legal purposes; an award of costs/expenses against an employee; stigma damages in unfair dismissal cases; and case and ETO reasons and transfer of collectively agreed terms under TUPE.

High Court applies common sense approach to interpretation of employment contract

In Vickers v London Fire and Emergency Planning Authority, the High Court ruled on the correct interpretation of a collective agreement on pay (the "Grey Book").  Under the Grey Book, fire fighters are entitled to a higher rate of pay on the achievement of nine competencies, one of which was the ability to drive.  Mr Vickers had achieved eight out of the nine but had not yet learned to drive.  In those circumstances, the Grey Book stipulated that the higher pay rate would only apply if there were "genuine reasons" for his inability to drive.

Mr Vickers had twice failed his driving test before finally passing in December 2008.  He argued, however, that he was entitled to the higher rate prior to that date on the basis that he had a genuine reason for being unable to drive, namely his lack of driving license.

Mr Vickers' argument failed. The High Court found that the "genuine reason" exception was to be interpreted as limited to reasons beyond the control of the fire fighter. It declined to adopt an unduly literal interpretation of the contract that ignored the specific context.  The Court pointed out that the Claimant's preferred interpretation was not one the parties would have contemplated and not one that a reasonable commercial person would adopt.

Establishing the effective date of termination (EDT)

Many employers may have faced the situation where notice is given but the employee leaves before the notice period expires.  Usually, however, it will be agreed between the employer and employee when the employment actually comes to an end.  When this is not articulated, or communications are ambiguous, it can be trickier to identify the Effective Date of Termination (EDT).

The EAT in Wedgewood v Minstergate Hull Ltd has provided some useful guidance on this issue. In this case, the employee was given notice of redundancy to expire on 1 December 2008.  Having received a request to leave earlier than that, the employer replied on 26 November 2008 as follows:-

"you can be released today and will still be paid up to and including your notice period of Monday 1 December 2008."

It became important to establish the precise EDT because the employee brought an unfair dismissal claim which was lodged on 28 February 2009.  The Tribunal held that the letter of 26 November had brought forward the EDT to the date of that letter, with the result that the claim was lodged late.  The EAT disagreed, however.  Although the EDT can be changed by express agreement in certain circumstances, it was not altered here merely because the employee was not required to work his full notice period.  The letter still referred to the notice period of 1 December 2008, which remained the termination date.

This case highlights the need for clear and unambiguous communications on the question of when employment is being terminated.  This question will have considerable practical significance not only for the purposes of calculating legal time limits, but also for the calculation of any entitlements to pay, benefits and potentially, where applicable, statutory redundancy payments.

Tribunal can award costs/expenses against a claimant even where dismissal declared unfair

In Nicolson Highlandwear Ltd v Nicolson, Mr Nicolson was successful to the extent that the dismissal was unfair due to technical breaches of the (now defunct) statutory dismissal procedure. 

However, the Employment Tribunal found that he had contributed significantly to his own dismissal on account of various acts of financial misconduct.  He was awarded zero compensation.  The Tribunal also found that Mr Nicolson had lied when giving his evidence.

The employer sought an order for costs/expenses but the Tribunal refused to make an award against Mr Nicolson.  On appeal, however, the EAT overruled the Tribunal. Having concluded that Mr Nicolson had lied, it was perverse to refuse to award of expenses against him.  The EAT also stressed that the fact a party succeeds in a claim does not automatically mean that expenses cannot be awarded against him or her.

Stigma damages

The EAT decision in Brown v Careham Hall confirms that stigma damages will only be awarded where the employee's difficulties in finding new work are attributable to the dismissal.  The statutory test is that:

• the award should be just and equitable having regard to the loss sustained by the employee; 

• BUT the losses must be in consequence of the dismissal AND attributable to action taken by the employer.

Ms Brown was a care worker and was unfairly dismissed by Careham Hall following allegations of mistreatment of a care home resident.  She was then given an unfavourable reference by a member of staff at the care home.  Ms Brown also failed to disclose to her new employer the disciplinary proceedings instigated by Careham Hall, resulting in her new employer dismissing her for gross misconduct.

The EAT upheld the Tribunal's ruling that the unfavourable reference and report to POVA (Protection of Vulnerable Adults) did not flow naturally from the dismissal and was not therefore a consequence of it.  The reference and POVA report would have been made even if Careham Hall had not dismissed Mrs Brown. Stigma damages were therefore not recoverable.

Collective Enhanced Redundancy Scheme didn't transfer under TUPE

The EAT has held in Worrall v Wilmott Dixon Partnership that enhanced redundancy terms set out in a handbook were not incorporated into individual contracts of employment and therefore were not preserved following a TUPE transfer.

It held that in order for a term of a collective agreement to be incorporated into a contract of employment, that term must be brought to the employees' notice or agreed.  It is not sufficient for the term merely to be in readily available document such as a handbook.

This is of significant practical importance for unionised employers.  If they want to argue that collectively agreed terms have contractual force, they must ensure that specific individual communications are issued to the affected employees, giving notice of the term.  It is not uncommon for employers merely to update a handbook or HR intranet pages to reflect the outcomes of collective negotiations without issuing communications specific notices to the workforce.  On the other hand, if the employer would prefer not to be contractually bound by collective principles, they may consider deliberately omitting to send the requisite notices.  However, it is anticipated, on the back of this ruling, that union pressure on employers to ensure individual staff communications are duly circulated will increase.

TUPE and ETO reasons

Dismissals connected to a TUPE transfer will be automatically unfair unless they are for an economic, technical or organisational reason entailing changes in the workforce (an "ETO" reason).

Traditionally, the phrase "entailing changes in the workforce" has been narrowly construed by the courts and interpreted to require a change in the numbers of the workforce or profiles of the staff.  This has limited the scope of the defence, and, in turn, the scope for employers to implement changes or dismissals after they have inherited employees under TUPE. 

In Nationwide Building Society v Benn, the EAT has helpfully clarified that the reference to "the workforce" does not necessarily mean the entire workforce.  In this case, the organisational change (a change in responsibilities due to the transferee employer having a different product range) affected a particular sub-group of transferring employees.  A number of employees resigned post-transfer and claimed constructive unfair dismissal in response to downgraded responsibilities and less favourable bonus arrangements.  An ETO defence was not, therefore excluded simply because the whole workforce was not affected by the employer's organisational reasons for the changes.  This decision will be welcomed by employers, clarifying, as it does, that the ambit of the ETO defence is not quite as restricted as might once have been thought. 
 

19 August 2010