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engineer and, from 2011, a second line maintenance (SLM) engineer. SLM engineers were better trained than FLM engineers so were better paid. By mid-2012, worsening back problems meant the claimant was no longer fit for jobs involving heavy lifting or working in confined spaces; he had a disability under equality laws. In the summer of 2012, the respondent created a new support role of ‘key runner’. After discussions about reasonable adjustments with his line manager, the claimant undertook this role but kept his original SLM engineer salary. By May 2013 the respondent was considering discontinuing the key running role and the claimant was told on the 24 May 2013 that the role was not permanent and he was asked to look at alternative vacancies. The claimant asked, and was told, that if there were none suitable he would be dismissed on medical grounds. The claimant consulted with solicitors who argued the respondent was changing terms and conditions. The respondent decided to make the role permanent and confirmed it was available for the claimant but at the rate of a FLM engineer; a reduction in basic salary of around 10%. The claimant was not willing to accept this reduction and, as there was no other suitable vacancy, he was dismissed on 8 October 2013. The respondents remained willing to offer the claimant the key running role but only at the rate of pay for the role. The claimant contended that the change of job role to key runner with the SLM rate of pay was a permanent variation to his contract. On this point the ET found that the employers were seeking to make reasonable adjustments to reduce the disadvantage from the employee’s disability which could, in their view, be effective without the consent of the employee so differed from a contract variation. As there was no evidence of agreement between the parties of a permanent change to his role by continuing in the key running role at his previous pay rate, there was no contractual variation. The EAT found that the ET had made an error of law here. It was clear that reasonable adjustments which are incompatible with the contract of employment can’t be imposed without the employee’s agreement. Similarly, they
his contract was governed by the laws of England and Wales, he was paid in sterling, was entitled to the civil service pension and was subject to the Official Secrets Act. From 8 August 2012, the claimant became a teaching centre manager in Bangladesh for a period of three years. A letter setting out further provisions detailed his salary and mobility allowances and also noted a notional deduction for UK tax. The claimant was successful in this role but resigned and then brought claims of constructive unfair dismissal, automatic unfair dismissal and detriment by reason of making a public interest disclosure. Previous expatriate cases have established that it is unusual for an employee who works abroad and is based abroad to come within Great Britain’s (GB’s) employment laws unless there is an especially strong connection with GB and British employment law. In these cases, factors must be identified which are sufficiently powerful to displace the jurisdiction of the place of work. The ET judged that, as the claimant was based wholly abroad, he was subject to the rule that Parliament must have intended the foreign jurisdiction to apply. The control of English laws over the contract was not a compelling factor and the fact that the training centres were fully integrated in to the local community meant that this rule was not displaced and there was no jurisdiction to hear the claims. On appeal, the EAT reviewed each factor in turn. Of those pointing to a closer connection with GB and British employment law, they found it was important that he was a UK citizen recruited in the UK to work for a UK organisation under a contract that applied English law. Similarly, the entitlement to a civil service pension, an entitlement granted by an UK Act of Parliament, created another strong link. The fact that his salary was subject to a notional deduction for UK income tax to maintain consistency with UK workers was an exceptional provision for expatriate employees. These factors together created an exceptional degree of connection with GB which, although there was an important connection with Bangladesh while the claimant was employed there, established territorial jurisdiction so the claimant was entitled to bring his claims to the ET. n
found a clear variation of the contract in 2012. When examining the reasonable adjustments claim, the EAT found that the ET had correctly identified a provision, criterion or practice of “the requirement to be fit to do the SLM work” and that the claimant was at a substantial disadvantage because he was unable to carry out these duties so wasn’t contractually entitled to this rate of pay. The issue in contention was whether it was a reasonable adjustment to protect the claimant’s pay at his previous rate. The EAT reiterated that the duty to make reasonable adjustments can lead to disabled employees being treated more favourably than others are. The duty does not exclude any requirement for an employer to protect their employee’s pay so it will depend on whether this is reasonable to do. The objective of the duty is to keep employees in work and, whilst it won’t be an everyday conclusion that employers are required to make up pay long-term, this may be a reasonable adjustment for an employee as a package of reasonable adjustments. The financial considerations will have to be weighed in balance by the employer. Jeffery v The British Council The EAT has again considered expatriates when determining if the ET has jurisdiction to hear claims of an employee based in Bangladesh. The respondent runs teaching centres in many parts of the world, providing English courses to students of all age. The claimant, a United Kingdom (UK) citizen, was employed in 1994 and worked a variety of roles in various teaching centres located abroad. He had a one-year career break and two short assignments in the UK but was an enthusiastic expatriate. The claimant’s employment was governed by an offer letter dated 6 September 2005 where he was employed on an “indefinite contract basis”. The letter expressly stated exceptional degree of connection with GB... ...factors together created an
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Issue 25 | November 2016
| Professional in Payroll, Pensions and Reward |
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