Holiday Pay when Sick

Employers commonly ask whether it is mandatory to pay holiday pay under the WTR 1998 to an employee who is on long-term sick (and either receiving just SSP or nothing at all).

An robust answer has now been provided, albeit at 1st-instance only (Birmingham ET, Brown v Kigass Aero Components Ltd). According to the tribunal, the WTR impose an obligation to pay 4-weeks holiday pay (or, as it was then, 3 weeks) irrespective of whether the employee is working or not. Thus an employer who does not pay a normal salary to a long-term sick employee must still pay the 4-week statutory holiday entitlement.

The tribunal placed weight on the practical problems flowing from a finding in favour of the employer. Should an employee who has been absent from work for one month suffer a reduction in holiday entitlement of one-twelfth? On the basis this ran against the natural wording of the Regulations (as was conceded by the employer), the tribunal saw no difference in principle between a one-month absence and a 12-month (or longer) period of absence.

New EAT to sit in Cardiff

The Employment Appeal Tribunal is to open a division sitting in Wales. It will open in Cardiff on 28th March 2000. The presiding judge (who will speak Welsh!) will be announced shortly.

Harris v Lewisham & Guy's Mental Health Trust

The Court of Appeal handed down its decision on Friday 23rd March in Harris (personal representative of Andrews) v Lewisham & Guy's Mental Health Trust.

A copy of the decision is attached (HTML format).

Issue
Do claims under the RRA 1976 survive the death of the applicant, or does the cause of action die with the applicant?

Ratio
Claims under the RRA 1976 survive the death of the applicant. The EAT's decision, dismissing the claim, was reversed.

Obiter
The position under the SDA 1975 and DDA 1995 is analogous, i.e. claims survive the death of applicants.

Heil v Rankin

No increase in damages for injury to feelings

The 5-man Court of Appeal (presided over by Woolf MR) handed down its decision this morning in Heil v Rankin (+ associated appeals).

There is to be no increase in general damages (contrary to the recent recommendations of the Law Commission) in claims where general damages are up to £10,000. Claims where general damages exceed £10,000 will be increased by a series of tapered increases, up to a maxmimum of one-third for claims of the utmost severity (i.e. paraplegics etc.)

There was a widespread anticipation that all general damage claims over £3,000 would be increased by up to 100%. However, the Court of Appeal has rejected the Law Commission's recommendations.

This has an impact on claims under the discrimination statutes for damages for injury to feelings, which (probably) would have risen in line with similar claims for psychiatric injury in the county courts. No increase in 'customary' figures can now be expected.

The transcript can be downloaded from http://www.courtservice.gov.uk/civil_personal.htm

EOC Guides on gender differences in the workplace

The EOC yesterday published three guides, which can be downloaded from http://www.eoc.org.uk/html/women___men_in_britain.html, on the following topics:

Pay and Income (pdf 224Kb) examines levels and sources of male and female income and explores different aspects of the gender pay gap, including pay in occupations and industries.

At the Millennium (pdf 263Kb) examines the position of women and men at the beginning and end of the 20th Century for such topics as population and health, education, employment and political life, and explores some of the trends over time.

The Labour Market (pdf 174Kb) explores overall trends in employment, patterns of employment in occupations and industries and flexible employment.

More EAT Decisions

For information purposes: the Employment Law (UK) mail list reached its 1000th subscriber earlier this week!

The following decisions have been placed on the EAT website today. The transcripts can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsf


Constantine v McGregor Cory Ltd. [Lindsay J., 3.2.2000]: When assessing compensation following a procedurally unfair redundancy dismissal, the correct approach is for a tribunal to assess the loss of the chance of the employee being offered suitable alternative employment, NOT to decide the question on the balance of probability. Thus if there is a 40% chance that, had a fair procedure been followed, the employee would have obtained alternative employment, the tribunal should award 40% of the financial losses flowing, and NOT dismiss the claim for compensation on the grounds that there was less than a 50:50 chance of re-engagement.


Lawes v London Electricity Board [HHJ Pugsley, 25.2.2000]: Another decision on the undesirability of appealing on grounds that the employment tribunal failed to give adequate reasons. The judgment includes the telling phrase: "The members in this case wish to make clear their concern at the increasing propensity for advocates to seek to re-argue on appeal a case which they lost on the facts before the original Tribunal."


Tesco Stores v Wilson [HHJ Peter Clark, 12.1.2000]: An important decision under the RRA 1976. Mr Wilson, a black rastafarian contract cleaner for Tesco, was stopped in his car by a security guard, who said to him "the thing with you lot is that you think you can get away with anything." Two points:

• the EAT confirmed the above wording, i.e. 'you lot', was capable of being construed as a comment based on Mr Wilson's race (note: neither the EAT nor the employment tribunal considered whether 'you lot' could have been construed as referring to rastafarians rather than black people - it having been held that the RRA does not apply to rastafarians in Crown Suppliers v Dawkins [1993] ICR 517); and,

• on a cross-appeal against an award for injury to feelings of £5,500, the EAT said it was high-time that formal guidelines were produced for injury to feeling awards, as one has with PI injuries. It lacked the information to produce such guidelines in the instant case, but was not willing to say that £5,500 was too high.

Range of reasonable responses

Yet a further twist in the tale of Haddon v Van den Burgh Foods...

Van den Burgh Foods received permission to appeal from the Court of Appeal. Rumour has it (my source has asked to remain unidentified!) that Mummery LJ said, during the leave hearing, that he thought Morison J. came to the right decision in Haddon, but that it was in the public interest for the Court of Appeal to confirm the EAT's decision.

However, following the grant of permission to appeal, Van den Burgh Foods decided not to pursue the appeal. They are now out of time for lodging the Notice of Appeal.

Thus the current position is that the 'range of reasonable responses' test remains good law (viz. Midland Bank v Maddon), until somebody takes the Haddon point to the Court of Appeal.

Recent EAT decisions...

The following decisions have been placed on the EAT website recently. The transcripts can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsf

Readers will already have received details of last week's decision in Midland Bank v Madden (reversing Haddon v van den Burgh Foods).


Driskel v Peninsula Business Services [17.12.99, Holland J.]: Mrs Driskel complained of sexual harassment against her employer, Peninsula Business Services. The employment tribunal identified 58 discrete incidents, none of which it found to be major or discriminatory. The EAT emphasised the importance of looking at the case as a whole, and not splitting the case into a series of individual incidents. It substituted a finding of sexual discrimination. This decision is well-worth reading, containing detailed guidance of the proper approach in harassment claims (indeed, it may become the 'new' case to quote in preference to King v Great Britain China Centre).


Heinz v Kenrick [3.12.99, Lindsay J.]: A dismissal found to be discriminatory under the DDA 1995 is not 'automatically' unfair - tribunals must still consider the test set out in ERA 1996, s98. More importantly, this case contains an excellent analysis of many authorities to date on disability discrimination. Again, this is another case worth reading.


Amec Processes v Gratton [19.1.2000, Lord Johnston]: A redundancy dismissal was held to be unfair because the employers did not consider alternative employment and did not allow a right of appeal. The employment tribunal made no deduction to reflect the percentage chance that dismissal would have been inevitable, making a finding of fact that the employee would not have been dismissed due to the size of the employer's organisation. The EAT held this was an error of law. When deciding that an employee would probably not have been dismissed if the procedure had been fair, it is incumbent on a tribunal to identify the job that the employee would have been offered.


Embleton v Rapid Fire Services [10.1.2000, Lord Couldsfield]: It was not an error of law for the employment tribunal to award loss of earnings in an unfair dismissal claim to the date of the hearing but not beyond. The tribunal was entitled to take the view that the Applicant should have found a job by the date of the hearing when the evidence demonstrated that although he had made plenty of applications for employment, they were all for high-powered jobs which his previous qualifications and experience did not render him fit for.


Jones v Dunlop [17.1.2000, Lord Johnston]: The issue was whether the unfair dismissal claim was presented prematurely, i.e. before the dismissal. The employee had stopped paying wages for some time prior to 28 May 1998, the date the IT1 was presented: however, there had been no formal dismissal. The employment tribunal held that presentation of the IT1 amounted to an implied resignation, thus the tribunal had jurisdiction to hear the unfair dismissal claim. The EAT reversed this, relying on a letter dated 20th July 1998 (7 weeks after the IT1 was presented) from the employee's trade union representative, written in terms suggesting the employment was still continuing. Since this express assertion was inconsistent with an implied resignation by the Applicant on 28th May, the resignation could not be implied and the claim had been presented prematurely.


Law Hospital NHS Trust v Rush [21.1.2000, Lord Johnston]: Confirming decision of EAT in Goodwin v The Patent Office [1999] IRLR 4, namely that in deciding whether an employee is 'disabled' within the meaning of the DDA 1995, the correct test is whether the employee can carry out her normal day-to-day activities and NOT whether she could carry out her job properly (which she may be able to do only with difficulty or with the benefit of medication).


Russell v Levi Strauss [18.1.2000, Lord Johnston]: A tribunal invited written representations from both parties due to a lack of time after hearing evidence. Neither party dealt with a compensatory award in the written submissions. The tribunal awarded a basic award only, of £900, on the basis they had no evidence on which to assess a compensatory award. The employer argued before the EAT that the employee had not taken the opportunity to argue for a compensatory award, and thus waived her entitlement to it. The EAT held that there was a difference between waiving a point, and omitting to take it in written submissions. It remitted the issue of a compensatory award back to the tribunal to hear evidence and submissions.


Brown v First Edinburgh Ltd. [15.2.2000, Lord Johnston]: An employment tribunal contained the following reasons for its decision:

"Having considered the matters and, largely for the reasons submitted on behalf of the respondents we found that there had been no unfairness and no basis for the other complaints made by the applicant. Accordingly, we dismissed the application."

The EAT held that was inadequate and failed to fulfill the tribunal's obligation to set out reasons for its decision. The case was remitted to a fresh tribunal.

EAT changes its mind

The Employment Appeal Tribunal has departed from its previous decision in Haddon v Van Den Burgh Foods - the case that purported to abolish the range of reasonable responses test.

In Midland Bank v Madden [EAT, 7th March 2000, Lindsay J. (president)], the EAT overturned its decision in Haddon in the course of a lengthy and detailed analysis of section 94 of the Employment Rights Act 1996. Unfortunately, the decision raises as many issues as it clarifies.

The EAT endorsed the traditional British Home Stores v Burchell test for deciding whether an employer had shown the reason for dismissal - i.e. that the employer believed the reason to be the true reason and had sufficient objective evidence to demonstrate reasonable grounds for that belief.

In a confusing part of the decision, Lindsay J. states that an employment tribunal is free to substitute its own views for those of the employer when considering each of the 3 limbs of the Burchell test (i.e. (1) did the employer believe the reason to be the true reason for dismissal; (2) did the employer have reasonable grounds; and, (3) had the employer carried out a full investigation). Thus an employment tribunal is free to say that it does not think the employer had carried out a full investigation, or that the employer had reasonable grounds for its belief.

If the employer passes the Burchell 3-stage test, the EAT states that the tribunal cannot then substitute its views for those of the employer as to the reason shown by the employer for the dismissal. One may say this follows as a matter of logic.

Lindsay J. goes on to say that the tribunal is free to substitute its own views for those of the employer as to the reasonableness of a dismissal as a response to the reason shown for it.

MOST IMPORTANTLY, Lindsay J. made it clear that no court below the Court of Appeal can discard the band of reasonable responses test as a determinative test - and the EAT in Haddon was wrong to do so. The range of reasonable responses test is now reinstated.

By way of comment, Lindsay J. pointed out that although it is conceptually difficult to distinguish the 'range of reasonable responses' test from a 'perversity' test, "whatever the position in logic, one has to accept that this is not algebra and that words can have been intended to have an effect short of that which the strict reading of them could lead to. Here the precedents plainly show that the band test has always been intended not to lead to one of perversity. We are not free, as we see it, to discard the band but until the Court of Appeal deals with the problem the least violence to precedent will be caused, and the circle most nearly squared, if the band continues to be used as a test but not as, of itself, invariably determinative."

So - the range of reasonable responses test is reinstated, but it is not 'invariably determinative'. This raises the issue of when the 'range of reasonable responses' test is not determinative and, when it is not determinative, what is the true test?

Haddon is awaiting the grant of permission to appeal. It is not known whether Madden will be appealed.

If any subscribers come across any decisions (1st instance or appellate) where detailed consideration is given to the conflicting decisions in Haddon and Madden, I would be grateful for copies (and will distribute them - with acknowledgments if requested - via these bulletins).

Chair of Central Arbitration Committee announced

CONTENTS
1. Central Arbitration Committee
2. EC Directive Prohibiting Discrimination


1. Central Arbitration Committee
The Chairman of the Central Arbitration Committee, which is to arbitrate in trade union disputes under the Employment Relations Act 1999, is to be Burton J. (ex- Michael Burton QC of Littleton Chambers, well known for his work in the commercial and employment fields).




2. EC Directive Prohibiting Discrimination
Readers will recall the bulletin on 26/11/99 warning of the imminent EC Directive to combat discrimination under Article 13 of the EC Treaty (introduced by the Treaty of Amsterdam).

The directive is shortly to be issued. It is believed to prohibit all discrimination in employment, outlawing direct and indirect discrimination on grounds of racial and ethnic original, religion or belief, disability, age and sexual orientation (I have highlighted the grounds not currently recognised under UK law).

The CBI has, earlier this week, attacked these proposals on the basis they will place an intolerable burden on UK businesses.

More details as they are made available...