Employment Relations Act 2004

Further provisions of the Employment Relations Act 2004 come into force today (31st December). These provisions allow trade unions to expel members who have extreme political views which conflict with the rules or objectives of the union.

Also coming into force today are changes giving tribunals greater discretion for setting compensation where an exlcusion or expulsion is unlawful.

Employment Relations Act 2004

EAT Conciliation Protocol

The EAT Conciliation Protocol has now been placed on the EAT website (see bulletin 10/12/04, below). At the time of writing, the 2004 Practice Direction, which came into force last week, is still awaited.

EAT Conciliation Protocol

---------------------------------------------------

BULLETIN 10 / 12 / 04

New EAT Practice Direction
-----------------------------

Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).

It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.

The main changes include:

- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;

- clarification of time limits for lodging an appeal;

- refining the 'sift' procedure;

- a new section dealing with wasted cost applications against legal representatives.

The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.

Acas to be involved in EAT appeals
---------------------------------------

Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.

In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.

This is to run as a four month pilot project from 1st January 2005.

Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.

Consulation on Definition of Disability

The Disability Discrimination Bill is currently undergoing its second reading in the House of Lords (see bulletin 6/12/04).

Whilst the Bill is mainly concerned with matters relating to issues outside the employment relationship, it involves an extension to the definition of disability to automatically cover some people with cancer, HIV and multiple sclerosis from the point of diagnosis, irrespective of whether they can establish the necessary adverse effect on their ability to carry out day-to-day activities.

The DWP has today issued a consultation paper on, amongst other things, excluding certain cancers from the scope of the extended definition. The document proposes excluding the most common cancers which are not considered to require substantial treatment and it identifies a list of the cancers to be excluded (e.g. basal cell carcinomas and Bowen's Disease);

Consultation Document (57 pages - takes a while to download)

Rolled Up Holiday Pay 3

This old chestnut is back. In a series of conjoined appeals, under the lead case Smith v Morrisroes & Sons, the Employment Appeal Tribunal has clarified earlier guidance on rolled-up holiday pay.

The law is currently set out in the Court of Appeal's decision in Caulfields v Marshalls Clay Products (see bulletins of 4/8/03 and 6/5/04). In this new case, the Employment Appeal Tribunal recognises that the 'rolled-up' holiday pay aspect need not necessarily be set out in the written contract, as terms (such as terms rolling up holiday pay) can also be incorporated through collective agreements or, importantly, through custom and practice (see para. 11).

The amended guidelines are set out in paragraph 5 of the decision.

Note that the entire issue of whether rolled-up holiday pay is permissible under the Working Time Directive is currently the subject of a reference to the ECJ in Robinson-Steele v RF Retail Services Ltd (see bulletin 17/3/04).

Smith v AJ Morrisroes & Sons

Information - Commissioners Code of Practice

The Information Commissioner has just published part 4 of the Employer's Code of Practice on Data Protection.

Part 4 deals with keeping records on workers' health. It is the final part, and follows on from:

- Part 1: Recruitment and Selection
- Part 2: Employment Records
- Part 3: Monitoring at Work

The Information Commissioner has issued the main guidance (33 pages), supplementary guidance (27 pages) and Guidance for Small Businesses (6 pages).

Information Commissioner's Codes of Practice on Employment

Clementi Report issued

Nothing to do with employment law as such, but of great importance to lawyers generally...

Sir David Clementi has just published his report. It is extremely long. The key recommendations, which he urges the government to legislate upon, are:

• allowing multi-disciplinary partnerships (solicitors, barristers, accountants, management etc. all as partners)
• allowing commercial ownership of legal practices (TescoLaw). Sir David Clementi comments that "Unlike most high street solicitors, companies such as [the RAC] have nationally known brand names to protect, which may be a powerful incentive to operate in a proper manner" (Chapter F, para 22)
• a single independent body to handle all complaints, whether about barristers, solicitors or other legal service providers
• a new regulatory framework (which on the 'Model B+' basis, i.e. setting up an Oversight Regulator, the Legal Services Board, and separating regulatory from representative functions within the front-line legal bodies)
  

The Clementi Report

Age Discrimination - Retirement Proposals Published

The DTI has published its post- age discrimination retirement plans.

Main proposals:

- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)

- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.

- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)

- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".

Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.

Full Text of the Statement to Parliament

Age Discrimination - Retirement Proposals Published

The DTI has published its post- age discrimination retirement plans.

Main proposals:

- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)

- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.

- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)

- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".

Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.

Full Text of the Statement to Parliament

Pensions Report

The Employer TaskForce on Pensions, chaired by Sir Peter Davis, has just published its report and recommendations into the pension industry.

Note that this report was commissioned by the Department for Work and Pensions. It is a DIFFERENT report from the Pension Commission's report published a couple of months ago (see bulletin 12/10/04), in respect of which recommendations are awaited next year, and is far less controversial.

The report makes a number of recommendations to employers, employees, unions, the financial services industry and the Government.

For employers:
- To recognise they have a responsibility to help fund the pensions of their employees
- To aim to achieve over time combined contribution levels of around 10-15%, with employers ideally providing 2/3 of this
- To recognise the importance of maintaining fairness in the shift from Defined Benefit to Defined Contribution (or other) schemes

For the Government:
- To provide a stable, long term framework for UK pensions with clear guidance on who should be saving, and achieve a broad policy consensus on the way ahead
- To provide stability for medium and large employers by maintaining current levels of financial support for pensions
- To tackle the challenge of pension provision among smaller businesses by introducing a new targeted financial incentive to encourage employer contributions.

For employees:
- To take responsibility for their own pension provision and contribute to their pension schemes
- To recognise employer support for pensions as a key benefit

For unions:
- To promote awareness of the need to save for retirement among their members
- Encourage their members to join good occupational pension schemes and to make contributions

For the financial services industry:
- To work with Government to review the annuities market
- To provide better service especially to smaller businesses

The report is not yet on the internet, but should be available shortly on the Pension TaskForce's website.

Website of the Employer's TaskForce on Pensions

New EAT Practice Direction

Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).

It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.

The main changes include:

- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;

- clarification of time limits for lodging an appeal;

- refining the 'sift' procedure;

- a new section dealing with wasted cost applications against legal representatives.

The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.

Acas to be involved in EAT appeals

Acas to be involved in EAT appeals Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.

In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.

This is to run as a four month pilot project from 1st January 2005.

Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.

Definition of Disability

The Disability Discrimination Bill has been laid before the House of Lords.

Amongst other things of no interest to employment lawyers, it amends the Disability Discrimination Act 1995 to change the meaning of 'disability' as follows:

- abolishes the need for a mental impairment to be 'clinically well-recognised'

- deems cancer, HIV and multiple sclerosis to be disabilities, irrespective of whether there are any symptoms (subject to further exempting Regulations, not yet published).

Disability Discrimination Bill

[Thanks to Simon Jeffreys of CMS Cameron McKenna for passing me this information]

ACAS E-Learning Guides

Acas has launched two new E-Learning Guides, to add to its existing guides on Discipline & Grievance, Informing & Consulting, and Absence

Guide 4 is on contracts and written statements. It includes a useful section on how to vary terms and conditions of employment - something frequently overlooked or got wrong.

Guide 5 is on redundancy. It covers definitions of redundancy, collective and individual consultation, statutory and voluntary information, selection procedures and obligations to employees facing redundancy.

You need to register with Acas (free) to access the E-Learning Guides.

Acas E-Learning Guides

Redundancy: Failure to Consult

The Employment Appeal Tribunal has considered the position as to protective awards subsequent to the Court of Appeal's judgment in Susie Radin v GMB earlier this year. In Susie Radin, the Court of Appeal held that protective awards were punitive (rather than compensatory) in nature, and the starting point for a total failure to consult would normally be the maximum award of 90 days' pay.

In Smith v Cherry Lewis, the Respondent employer was insolvent. The receiver dismissed all 45 employees on grounds of redundancy without any consultation.

The tribunal chairman held it would not be just and equitable to give any protective award since, under the Susie Radin principles, an award would have no punitive effect on the employer since it was insolvent and the DTI fund would pay any awards.

The EAT reversed this. It held that in assessing the protective award, the tribunal should look at the employer's fault at the time of the failure to consult, not at the time of the Claim Form being lodged or tribunal case being heard. That the employer was insolvent, or that the DTI would pay any award, were irrelevant factors and should not have been taken into account.

Cox J. stated that the 'punitive' purpose to the protective award is not retributive in nature, but dissuasive (so as to discourage employers from ignoring the consultation rules). She substituted the maximum award of 90 days' pay for the Appellants.

Smith v Cherry Lewis

Annual Increase in Tribunal Limits

The annual increase in limits on various tribunal awards has just been announced. The increases take effect on 1st February 2005.

The main increases are:

- limit on a week's pay: from £270 to £280

- maximum compensatory award: from £55,000 to £56,800

The full list of increases can be found in the statutory instrument, below.

The Employment Rights (Increase in Limits) Order 2004

[Thanks to Ed McFarlane of Qdos Consulting Limited for giving me the above information]

ET1 and ET3 forms available for download

Hard (and online) copies of the new ET1 and ET3 forms are now available. These forms will be mandatory from 1st April 2005.

They replace the 'interim' forms which have been available since October.

These new ET1 and ET3 forms have been available for electronic submission for a few weeks on the ETS website, but neither downloadable nor hard copies have been available.

Now they are! The ET1 is 9 pages long; the ET3 a meagre 5 pages.

[Thanks to Andrew Cohen of W Davies & Son for telling me about this]

Download forms from ETS website

Combined Equality and Human Rights Commission

The DTI has, this morning, announced changes to its plans for a single Combined Equality and Human Rights Commission ('CEHR'), which is intended to incorporate / replace bodies such as the EOC, CRE and DRC from 2008/09.

These changes are being made in response to widespread consultation which took place over the summer.

The main changes include that the CEHR will:

• have freedom to set its own priorities over which equality cases it supports: there will be no statutory criteria;
• be able to bring certain proceedings in its own name (without reference to the Secretary of State)
• be able to conduct inquiries into named bodies or sectors;
• publish a regular 'state of the nation' report.
  

DTI Press Release 18/11/04 @ 11.45am

5th edition of Ogden Tables published

The Government's Actuarial Department has, last week, published the 5th edition of the Ogden tables.

The tables are widely used in personal injury cases. The EAT recently reminded us that they are generally inappropriate in employment tribunals (see bulletin 9/11/04), although I have never really understood the difference in principle between calculating long-term PI damages - where these tables are always used - and long-term employment damages.

However, the EAT acknowledges the use of the Ogden tables when calculating pension losses.

The discount rate was set by the Lord Chanceller in July 2001 as 2.5% (under the Damages Act 1996, which gives power to prescribe the discount rate in personal injury cases). This rate is also usually adopted in employment tribunals, although the Damages Act 1996 does not actually oblige tribunal's to adopt the Lord Chancellor's prescribed rate.

View the Ogden tables 5th edtn. (656k, Adobe Acrobat needed)

[Thanks to Horwath Clark Whitehill, forensic accounts, for notifying me of the new edition of the Ogden tables]

Visit Horwath Clark Whitehill website

ACAS E-Learning Guide - Absence at Work

Acas has published the third in its series of E-learning guides. The new guide, Managing Absence, follows on from their earlier E-learning guides on Information and Consulting, and Discipline and Grievance.

The guides are in a series of small 'units', such as 'What is absence and what is the cost?', 'How do you handle long-term absence' and 'How do you handle short-term absence'. Some of the units have a short quiz at the end.

These guides are a good first-reference point for employers, HR professionals and advisors, but are probably a little basic for specialist employment lawyers.

You need to register with the Acas website to access the guides. Registration is free.

Acas E-Learning Guides

Long Term loss of Earnings

The Employment Appeal Tribunal has produced another decision, following on the footsteps of Dunnachie (no. 3) last year, warning tribunals against using the Ogden tables when calculating future losses.

Burton P. repeats his warning about using a 'broad-brush' Ogden table approach to future losses, particularly where the Claimant "is as young as 31 or 32" (para. 17.1).

He also made it clear that his warning against an Ogden table based approach applies to discrimination cases as well as unfair dismissal cases (Dunnachie being an unfair dismissal case).

This is another useful decision for Respondents who are resisting substantial long-term loss of earnings claims.

Birmingham City Council v Jaddoo

Intention to Vary Contract

The EAT has upheld an employment tribunal's decision that a conversation between the Claimant and his manager at the office Christmas dance did not amount to an enforceable promise to increase pay.

At the end of the company's annual dinner-dance, the manager promised the employee a substantial pay rise over the followign two years.

Two years later, although he did receive a substantial pay rise, it was not quite as large as the one he had been promised two years before. He resigned and claimed constructive dismissal.

The EAT held that the original promise was not contractually enforceable, as there was no intention to create legal relations. The tribunal had been right to take into account that the conversation took place during a social event when spouses attended, and was made during the "convival spirit of the evening".

Accordingly the Claimant failed in his constructive dismissal claim.

This case is worth reading - particularly the rather amusing opening paragraph.

Judge v Crown Leisure Ltd.

Insistence on 48-hour Maximum Week

The Employment Appeal Tribunal, in quite a short judgment, has decided an important point which has vexed practitioners since the Working Time Regulations were introduced in 1998.

Under the WTR, an employee has a right to work a maximum 48-hour week (averaged over a relatively lengthy period of time). He can opt-out of the right if he wishes, but cannot be subjected to a detriment if he refuses to opt out.

Employers and solicitors have been concerned that employees can insist on the same salary being paid for a 48-hour week, that they were previously paid for working 60- or 70- hours a week - since to reduce salary because the employee has exercised his right not to work more than 48-hours might be regarded as a detriment.

The EAT (Burton P. presiding) has taken the common sense approach that a reduction in salary, if an employee withdraws his opt-out from the 48 hour maximum week, is NOT a detriment - but just a "consequence" of the employee's actions. Whilst not a direct point for decision in the case, presumably any reduction in salary would have to be on a pro rata basis.

The core of the decision is in paragraphs 4 and 14.

This decision avoids the device adopted by some employers, which was to argue that the contract of employment was frustrated (because, when the employment started and the salary was negotiated, the parties did not contemplate a 48-hour maximum working week) and new employment has been offered on new terms.

Clamp v Aerial Systems

Costs - Ability to Pay

This is the first decided case that I am aware of dealing with a party's ability to pay costs.

Since 1st October 2004, tribunals (and the EAT) have been entitled to take into account the paying party's ability to pay when deciding what sum to award in costs. This reversed the pre-existing position, as stated by the Court of Appeal in Kovac v Queen Mary & Westfield College.

In a decision published today, Burton P. had to decide the issues of costs in the EAT. He states (at para. 38) that the following two factors are relevant when taking into account a Claimant's ability to pay costs:

- that the Claimant has recovered a sum of money as part of the proceedings (in this case, a basic award of £2,520); and,

- that any legal fees the Claimant is ordered to pay is likely to be met by the trade union which was funding his employment tribunal claim.

Also of interest is that the EAT made it very clear that the costs of adjournments should always, if possible, be decided at the time of the decision to adjourn and shoud not be reserved (para. 63) - although a caveat should be added that it may not always be possible to know what additional costs are incurred (particularly if Counsel will be acting on a refresher basis at the resumed hearing, and that fee still has to be negotiated).

Walker v Heathrow Refuelling Services Co Ltd

ACAS publishes new booklet on Stress at Work

Acas has, this morning, published a new booklet on Stress at Work.

As always, it is a model of good practice, very readable and has useful worked examples.

I suspect it will be used in civil PI claims as evidence of the standard of reasonable care, as well as in tribunals as evidence of what may constitute a reasonable adjustment in DDA cases.

http://www.acas.org.uk/publications/b18.html

New EAT Decisions

Porn and Pensions

Two new EAT cases today: one on porn, one on pensions. No prizes for guessing which will have the highest click-through rate!

Daniel Barnett

Office Porn

The EAT has held that it amounts to sex discrimination for men to download porn in the office, if there is a woman in the room, unless the woman has participated in, or enjoyed, the downloading.

It overturned a tribunal decision that there was no discrimination on grounds of sex because the woman employee had not complained at the time.

Applying the Barton v Investec Guidelines, the EAT held that downloading porn in a place where it could be seen by a woman gave rise to a prima facie case of less favourable treatment (by affecting the woman's dignity and creating an intimidating atmosphere). This shifts the burden of proof onto the employer to establish a non-discriminatory reason, such as the woman was party to, or enjoyed, what was going on.

On the facts of the case, the employer had been debarred from defending, so the shifting of the burden of proof meant that the EAT substituted a finding of sex discrimination.

Moonsar v Fiveways Express


Calculating Pensions Losses

Last year, a committee of employment tribunal chairmen developed the 3rd edition of the Employment Tribunal: Compensation for Loss of Pension Rights booklet (see bulletin 21/11/03).

This booklet replaced the much-criticised 2nd edition, published in 1992.

The Employment Appeal Tribunal has held that it is an error of law for a tribunal to adopt the pension loss calculations set out in the Guidelines if the parties have their own credible evidence relating to pension losses. The Guidelines, say the EAT, are a fall-back position only if the parties do not have their own evidence, or if their own evidence is not credible.

Port of Tilbury v Birch

Is 'length of service' automatic justification for different pay for men and women?

The Court of Appeal has, today, published its judgment in Cadman v HSE (judgment was officially handed down last week, on Friday, 15th October).

Ms Cadman received less pay than men in the same grade as her at the Health & Safety Executive. But they had been employed for longer, which was the reason they were paid more.

It was common ground that in this country (and across the EC), the length of service of female workers, taken as a whole, is less than that of male workers.

The employment tribunal, relying on the ECJ case of Danfoss, held that the use of length of service as a criterion in a pay system does not require specific justification.

The Court of Appeal analysed subsequent decisions of the ECJ in detail. It noted that there have been indications in subsequent decisions which would seem to require justification for a 'length of service' criterion.

Although Danfoss has never been expressly departed from, the Court of Appeal noted that the ECJ has a tendency to just ignore previous decisions it dislikes rather than expressly overrule or depart from them. Indeed, in all the years of the ECJ's existence, there is only one recorded instance of the ECJ expresly overruling its own previous decision!

Thus the fact that some subsequent cases had cast doubt meant that the Danfoss decision had to be viewed with caution.

The Court of Appeal accordingly remitted the issue to the ECJ, for the ECJ to decide whether the use of 'length of service' as a factor in a pay system requires objective justification.

Cadman v HSE

ACAS E-Learning Information and Consultation

ACAS has just published its Electronic Learning (E-Learning) Guide on the new Information and Consultation laws. As readers will know, they start to come into force (for large businesses) in April 2005.

This is the second E-Learning Guide ACAS has produced (the first was on discipline and grievance procedures).

They can be accessed for free on ACAS's website, although visitors need to register first.

http://www.acas.org.uk/elearning/

New EAT Procedural Rules

The government has published its response to the recent Public Consultation on proposed amendments to the EAT Rules of Procedure. As a result, the final amendments have been laid before parliament and come into force tomorrow (1st October).

The changes are as follows:

- introduction of the overriding objecting into the EAT procedural rules;

- it will become mandatory for the Appellant to lodge the Claim Form and Response Form at the same time as lodging the Notice of Appeal and ET decision

- the time period for lodging an appeal will remain at 42 days after written reasons (or notification of the decision, if written reasons are not requested) are sent out. The government has withdrawn its proposal to start the 42-day time period running from the date of verbal reasons, if a verbal decision is given at the tribunal hearing;

- procedures for 'weeding out' meritless appeals are being tightened up, but the proposal for a 'permission to appeal' system is not being implemented;

- provision will be made for temporary restricted reporting orders;

- costs rules in the EAT will be brought into line with the new costs rules in employment tribunals, including provision for wasted costs orders against representatives and preparation time orders in favour of unrepresented litigants.

The Employment Appeal Tribunal (Amendment) Rules 2004


Government response to consultation paper (much easier to read!)

And yet more happening on 1st October - a whole day's notice from the DTI!

The DTI has just announced that it will be bringing some of the newly passed Employment Relations Act 2004 (which received Royal Assent on 16th September 2004) into force tomorrow. The sections coming into force are:

- extending the role of a representative at a disciplinary / grievande hearing (s37 of the new Act, replacing s10 of the Employment Relations Act 1999);

- extending the EAT's jurisdiction to cover appeals from claims brought for breach of the right to allow a representative at disciplinary or grievance hearings (through a drafting omission, technically the EAT has never had jurisdiction to hear such appeals, meaning that cases on the point are ultra vires) (s38 of the new Act)

- introducing a right for workers not to be offered an inducement not to join a trade union, and extending protection against suffering a detriment on trade union grounds (ss29-32 of the new Act).

Employment Relations Act 2004

New EAT Decisions

Relaxed Approach to Unfair Dismissal Time Limits

The EAT has upheld a tribunal's decision that it was not reasonably practicable for an employee to present her claim within three months when she had been advised, by a CAB, to exhaust her employer's internal appeals procedure first.

The EAT held that 'reasonable practicability' is a question of fact, and that there was no rule of law stating that incorrect or incomplete advice from an advisor meant that it was reasonably practicable to present a claim in time.

The focus, according to the EAT (following the Court of Appeal's decision in London International College v Sen) is to concentrate on the state of mind of the employee, and the extent to which she understood her position (para. 21). If she did not understand a claim must be presented within three months, it is not reasonably practicable to do so.

This case is only likely to be relevant to dismissals which were contemplated before 1st October 2004, as the new statutory dismissal procedures provide for an automatic extension of time if the employee reasonably believes the employer's dismissal procedures to be continuing on the date the three-month time limit expires.

Marks and Spencer plc v Williams-Ryan CA 2005

Costs: Giving Reasons for the Assessment

An example of a case where the tribunal decided to award costs. It assessed costs of £750 to be payable by the employee when the Respondent (a firm of solicitors) had claimed £28,000 in costs.

The tribunal expressed the assessment of £750 to be an amount 'taken in the round', but gave no other explanation.

The EAT, whilst acknowledging existing authority stating that reasons for costs awards need only be 'brief', considered the reasoning given to be grossly inadequate and remitted the case for a further explanation of the reasons (with a fairly strong hint that the tribunal might like to review the costs award of its own volition)

Bryant Hamilton & Co v Weir

Pregnancy Dismissal requires knowledge of pregnancy

The EAT has confirmed that an employer must know (or believe) that an employee is pregnant for a dismissal to be automatically unfair on grounds of pregnancy.

In so holding, the EAT has upheld its earlier decision in Del Monte Foods v Mundon, and not adopted the criticisms of that decision by another division of the EAT in Heinz v Kenrick.

Ramdoolar v ByCity Ltd, EAT 2004

ACAS Flowcharts on Disciplinary and Grievance

ACAS has, this afternoon, published some really useful flowcharts on operating the statutory dismissal and grievance procedures.

They are ideal for small employers, or as an 'aide memoire' for lawyers.

You need Adobe Acrobat to view the flowcharts.

ACAS Flowcharts

Statutory Dismissal and Grievance Procedures

From 1st October, mandatory dismissal procedures exist which, if not followed by employers, give employees the right to claim automatic unfair dismissal (subject to one year qualification period), plus an increase in compensation.

In addition, a mandatory grievance procedure debars employees from bringing most types of tribunal claims unless they have first lodged a written grievance with the employer and waited 28 days.

Analysis and Commentary on new rules

New Tribunal Rules of Procedure

What's the next number in the series? 20, 23, ...

Yes - it's 61. The number of rules in the new Rules of Procedure, replacing the existing 23 which, in turn, replaced a previous 20.

The new rules are pretty straightforward once you sit down and read them (and DO sit down and read them). The main changes are:

• Originating Application and Notice of Appearance now called Claim Form and Response Form
• 28 (not 21) days for the Respondent to file Notice of Appearance; but time runs from date the Response Form is sent out (rather than received);
• early sifting, and default judgment procedure where claim uncontested. Default judgment can be entered for a money sum, where it can be assessed from the contents of the Claim Form, not just for liability with award to be assessed;
• restriction in ACAS's power/duty to conciliate to 13 weeks from start of claim (in most cases), or 7 weeks in some cases (eg unlawful deduction from wages, statutory redundancy pay) - and no hearing can take place during this 'conciliation' period;
• substantial, and complex, changes to costs rules, including costs awards for preparation time for (subject to caveats) unrepresented parties, and a power to make wasted costs orders against representatives;
• if a decision is given verbally at the tribunal, written reasons will not be produced unless requested. The distinction between 'summary' and 'full' written reasons is abolished;
• the Register will no longer contain names and addresses of the parties (sometimes used by employers for 'blacklisting' purposes, and often used by representatives engaging in 'ambulance chasing'). Now it will just contain the decision and any written reasons.

Also, from April 2005, the DTI will introduce redesigned, mandatory Claim and Response Forms.

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

Disability Discrimination

Many changes - the main ones being:

• the small employer exemption is removed - employers with less than 15 employees have to comply with the Act;
• the justification defence is abolished for failures to make reasonable adjustments: if a reasonable adjustment is not made, the employer is liable;
• new definitions of 'discrimination' - direct discrimination (less favourable treatment on grounds of disability - which CANNOT be justified) and disability-related discrimination (less favourable treatment for a reason relating to disability, which CAN be justified).
• a formal definition of 'harassment';
• DDA protection extended to partners (and prospective partners) of firms, to barristers and to pupil barristers;
• DDA protection extends to police.
  

Disability Discrimination Act (Amendment) Regulations 2003

Equal Pay

Two minor changes, namely:

• allowing a tribunal to decide whether work is of 'equal value' without first obtaining a report from an independent expert. Previously, the tribunal had to obtain a report unless satisfied there was no reasonable prospect of an equal value claim succeeding.
• creating a strong presumption that, where a job evaluation study has allocated different values to the man and woman's jobs, then the man cannot be a valid comparator.

Equal Pay Act 1970 (Amendment) Regulations 2004

National Minimum Wage

Okay, it's boring. But it is important. The main (adult) rate for workers over 22 increases to £4.85ph. The 'development rate' (for workers aged 18-21 inclusive) increases to £4.10ph.

And there is a new rate for 16 and 17 year old (above compulsory school leaving age) of £3.00ph. This new rate does not apply to 16 and 17 year old apprentices.

DTI Minimum Wage website

ACAS Code on Disciplinary and Grievance Procedures out

The new version of the ACAS Code on Disciplinary and Grievance Procedures has been formally published by The Stationery Office today.

It has been updated to incorporate the statutory dismissal and grievance procedures which, with the ACAS Code, come into force on 1st October 2004.

ACAS Code on Disciplinary and Grievance Procedures (Adobe Acrobat required)

Order for Medical Records - not breach of Human Rights

A nice, discrete human rights point which engages an important aspect of tribunal procedure has been decided by in the EAT (HHJ Ansell) in Hanlon v Kirklees Council.

It is well-known that courts and tribunals cannot order disclosure of a Claimant's / Applicant's medical records, since that would breach the Access to Medical Reports Act 1988.

Thus tribunals routinely order Applicants to consent to disclosure of medical records under the Act, failing which they will stay (or strike out) a claim.

Mr Hanlon refused his consent, arguing it was a breach of his right to respect for privacy under the European Convention of Human Rights.

The EAT, upholding the tribunal's decision to strike out his case, held that the right to respect for privacy must be balanced against a protection for the rights of others - and in litigation, the rights of the other party to have a fair trial must always be important.

Accordingly striking out a case because an Applicant refuses to consent to disclosure of medical records does not offend the right to respect for privacy under the ECHR.

Hanlon v Kirklees Council

Race Equality Guidance

The Commission for Racial Equality, in collaboration with the Home Office, has this morning issued a step-by-step 'Race Equality Impact Assessment' guidance.

Primarily designed for policy makers in the public sector, all employers will find compliance with this guidance a very useful step in establishing the statutory defence against vicarious liability for employees' acts (s32 of the Race Relations Act 1976 - that the employer has taken reasonable steps to prevent discrimination)

Race Equality Impact Assessment Guide

Rutherford v DTI: Court of Appeal confirms that Upper Qualifying Age does not contravene EU law

(Thanks to Paul Troop of Tooks Chambers, junior Counsel for Mr Rutherford, for telling me this decision was out)

At 10.00am the Court of Appeal handed down its judgment in Rutherford v DTI (no. 2) (previously known as Rutherford v Harvest Town Circle). The "ambitious aim of the two test actions is to secure judicial application of long standing statutory limitations on the jurisdiction of the employment tribunal." (judgment, para. 1)

Mr Rutherford, who was 67 when dismissed, claimed the upper qualifying age in ss109 and 156 of the Employment Rights Act (providing that employees cannot claim unfair dismissal or redundancy payments if over normal retirement age - in his case, 65) contravened EU law as it had an adverse effect on more men than women.

The employment tribunal found in his favour. The EAT allowed the employer's case and remitted the point for re-hearing. The tribunal again found in his favour, deciding that the relevant 'pool' of comparators was people in the workforce who could realistically claim to be affected by the upper qualifying age. It assessed this as people aged over 55, ie within 10 years of retirement, and found that far more men than women fell into this group - thus the upper qualifying age had an adverse impact on men. It held that the DTI failed to justify the upper qualifying age on objective grounds, thus the upper qualifying age was unlawful and must be disapplied.

The EAT overturned that decision, holding the upper qualifying age was lawful. The Court of Appeal has, today, agreed.

Mummery LJ, giving the leading judgment, held that the employment tribunal had failed to give effect to the House of Lords' judgment in R v Secretary of State ex p. Seymour-Smith, which provided that the ENTIRE workforce must be used as a pool when determining whether a national provision had an adverse impact on one gender compared with the other.

When using the statistics for the entire workforce, the difference between the proportion of men affected by the upper qualifying age, and the proportion of women, was negligible.

Accordingly, the employment tribunal was wrong to disapply the upper qualifying ages, and the UK limitations on unfair dismissal stand.

As a separate point, the DTI has recently announced that publication of the draft Regulations on Age Discrimination have been delayed until next year, to allow time for additional consultation on whether to maintain mandatory retirement ages.

Rutherford v Harvest Town Circle

Parental Leave must be taken in blocks of a week

By a majority, the EAT has decided that parental leave can only be taken in blocks of one week, under the Maternity and Parental Leave etc. Regulations 1999.

The employee purported to take one day's parental leave. The employment tribunal held this to be lawful, in satisfaction of his entitlement to one week of his thirteen weeks' parental leave. The EAT (by a majority) overruled this, holding that for absence to attract the protection of the parental leave legislation, it MUST be taken in blocks of a week.

The EAT has given permission to appeal to the Court of Appeal.

[Thanks to Maxine Pieri of Kennedys, solicitors for the successful employer, for telling me about this case]

South Central Trains v Rodway

Statutory Right to Time Off

The Applicant took time off work, on medical advice, for grief following a bereavement. She was dismissed.

As she lacked a year's continuity of employment, she brought a claim alleging dismissal for exercising her statutory right to time off "to take action...in consequence of the death of a dependant" under s57A(1) of the Employment Rights Act.

The EAT held that sickness absence caused by grief is not time off to take action in consequence of the death of a dependant; that phrase only extends to matters such as time off to make funeral arrangements, registering the death and applying for probate.

Since the absence did not fall within s57A, the employee failed in her unfair dismissal claim.

Forster v Cartwright Black

Information and Consultation

ACAS has just published its Good Practice Advice on the forthcoming information and consultation rules.

The Good Practice Advice has been produced in collaboration with the CBI, the TUC and the DTI. It takes the form of a brief overview, plus a series of modules dealing with specific issues such as 'Information', 'Employee representation', and so on.

It is only available as a series of pages on ACAS's website; hopefully, it will be made available as a self-contained document to download soon.

Fresh or Unfresh? Remissions from the EAT

The Employment Appeal Tribunal (Burton P.) has provided, for the first time, guidelines on whether a case should be remitted to the same or a different tribunal, following a successful appeal. The factors, contained in para. 46 of the judgment in Sinclair Roche & Temperley v Heard & Fellows, are:

• proportionality: ordering a fresh hearing always adds considerably to the cost;
• passage of time: the EAT should not send a matter back to the same tribunal if there is a real risk they will have forgotten about the case;
• bias or partiality: if there is a question (note: the word 'question' is not defined) of bias, or the risk of prejudgment, the matter should not be sent back to the same tribunal;
• totally flawed decision: it is not appropriate to remit to the same tribunal if the first decision is completely flawed, or there has been a complete mishandling of it;
• second bite: the EAT should guard against the risk of a tribunal wanting to reach the same result, if only on the basis of the natural wish to say 'I told you so'; but balance this against,
• tribunal professionalism: in the absence of clear indications to the contrary, the EAT should assume that the tribunal below is capable of a professional approach in dealing with the matter on remission. ETs are only too familiar with legal approaches changing, and applying a different legal test one week to that which they applied a year or a week before.
  

In conclusion, Buton P. stated:

"It follows, that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision...) then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."

He also described remission to the same tribunal as appropriate where "there is unfinished business to be done." (para. 47.2)

Vexatious Litigants

The EAT has barred Mr D'Souza (as in D'Souza v Lambeth) from bringing proceedings in the employment tribunal without obtaining prior leave from the EAT.

Mr D'Souza initially brought seven cases against the London Borough of Lambeth between 1987 and 1989. One of his claims reached the House of Lords in June 2003, in which (in a series of conjoined appeals) the House of Lords held that it is possible for post-termination discrimination to fall within the discrimination statutes (but, on the facts, rejecting Mr D'Souza's appeal).

He then brought a second series of cases - this time eight cases - between 1997 and 2004. The Attorney General argued that this second series of cases rendered Mr D'Souza a vexatious litigant.

In a detailed judgment, the EAT has agreed, and has made a 'restriction of proceedings' order against him. The case affirms and follows the previous 'vexatious litigant' cases of Attorney-General v Wheen [2000] IRLR 461 and Attorney-General v Barker [2001] FLR 759. Like all these cases, it makes sad reading and emphasises the need for multiple, habitual and persistent claims arising out of the same of similar facts and causes of action.

Kamlesh Bahl v Law Society

According to a report in The Lawyer online, the Court of Appeal has just upheld the EAT's decision that the Law Society did not discriminate against Kamlesh Bahl.

I have not seen the transcript, but will make the link available when it comes out.

Whistleblowing

[Thanks to Colin Bourne of York Chambers, Counsel for the Respondent, for telling me this decision was being handed down today]

The Court of Appeal has, this morning, handed down its decision in Street v Derbyshire Unemployed Workers' Centre.

Affirming the EAT's decision, the Court of Appeal said that the requirement that a protected disclosure be made in 'good faith' meant that the predominant motive of the person disclosing information must be "to remedy the wrong that has occurred" (para. 71). The Court recognised that whistleblowers often have mixed motives, and it is only when the "dominant or predominant motive for making [the disclosure] was for some ulterior motive" (para. 56) that the disclosure ceases to be in good faith.

Disability Discrimination - Applicants forPupillage

The Court of Appeal has handed down its decision in 1 Pump Court Chambers v Horton, upholding (by a majority) the decision of the EAT.

Mr Horton had been offered a pupillage at a set of barristers' chambers but, because of ill-health (which qualified as a disability), asked for his pupillage to be deferred for a year. The Chambers decided not to grant him a deferral, and the employment tribunal found this decision prevented him from taking a pupillage with the Chambers.

The issue for the Court of Appeal was whether an applicant for pupillage was an applicant for "membership of [a trade organisation]" within the meaning of s13 of the Disability Discrimination Act 1995. It was common ground that a set of Chambers was a 'trade organisation' for this purpose: hence, the issue was whether an application for pupillage was an application for membership of Chambers.

The majority of the Court of Appeal (Peter Gibson and Jonathan Parker LJJ) held that pupils are not members of Chambers within the meaning of s13, and therefore an application for pupillage was not an application for membership. Accordingly Mr Horton was not entitled to the protection of the Disability Discrimination Act 1995.

Giving a dissenting judgment, Laddie J. stated that pupils make use of Chambers' facilities (such as telephones, post, computer and library facilities), have briefs provided by the clerks during the second-six months, are insured under their pupilmasters insurance policies and may have to pay a contribution to Chambers expenses on monies received for briefs. This was enough to make a pupil a member of Chambers for the purpose of s13 of the DDA, even if the pupil was not a 'full' member and did not have 'equal status' with tenants.

Permission has been granted to appeal to the House of Lords.

Disability Discrimination

In the rush of excitement over the last bulletin, I said the draft Bill introduced a questionnaire procedure under the DDA 1995. This is for claims under Part III of the Act: there is, of course, already a questionnaire procedure for claims under Part II (employment).

Of greater importance is the fact that I have had the grand total of five responses to my question asking for the connection between firefighters, police officers and barristers. They are:

• "You don't want to meet any of them"
• "ers" (I had to think about that one for a moment)
• "they are all (allegedly) looking to beat something: flames; prisoners; opponents"
• "they all wear funny costumes" (err.... yes)
• "firefighters attend to the work of the arsonist, barristers represent the arsonist and prison officers look after the arsonist after the barrister has failed in his attempts to keep his client from being convicted" (oh, please!)
  

And the prize goes to... Roger James of Taylor Vintners for "they are all (allegedly) looking to beat something: flames; prisoners; opponents". A complimentary copy of the Law Society Handbook on Employment Law is winging its way to you in the DX - how lucky are you?

Disability Discrimination 2

And there's more... (and then I stop - I promise!)

Andrew Smith, the Works and Pensions Secretary, has announced that the government will be accepting a number of recommended changes to the draft Disability Discrimination Bill which is expected to come into force in 2006.

The majority of the changes (and, indeed, the Bill itself) are concerned with the extension of disability discrimination protection outside the employment field, for example in areas such as transport and housing.

The areas which will affect employment practitioners include:

• bringing a larger number of people with mental illnesses within the definition of 'disability', by removing the requirement that their condition be clinically well-recognised.
• bringing within the scope of the DDA more people diagnosed with progressive conditions such as HIV, MS and cancer
• introducing a 'questionnaire' procedure

Whilst on the subject, don't forget that from 1st October 2004 the 'small-employer' exemption in the DDA vanishes. So does the exemption for firefighters, prison officers and barristers (a prize to anyone who can tell me what firefighters, prison officers and barristers have in common!)

House of Lords - Eastwood v Magnox

A busy day for employment lawyers. As well as handing down judgment in Dunnachie, the House of Lords has handed down its judgment in the conjoined appeals of Eastwood & Williams v Magnox and McCabe v Cornwall County Council.

This is not an easy decision to summarise. The two cases concern the overlap between common law claims for damages for breach of trust and confidence, and the statutory unfair dismissal regime. In Johnson v Unisys, the House of Lords held that employees could not bring a common law claim for damages arising out of an allegation that the dismissal was, itself, a breach of trust and confidence - thereby circumventing the statutory cap for compensation for unfair dismissal.

The House of Lords has confirmed that principle is correct. Lord Nicholls (with whom Lords Hoffman, Rodger and Brown agreed), stated that a distinction must be drawn between:

(a) cases where the employer has breached the term of trust and confidence prior to the dismissal - for which an (unlimited) common law claim can be brought; and

(b) cases where the decision to dismiss, itself, is a breach of trust of confidence - which falls within the statutory unfair dismissal regime, is subject to a cap on compensation, and which cap (imposed by parliament) cannot be circumvented by bringing a breach of contract claim in the civil courts.

Lord Nicholls recognised the practical difficulties which arise. He said "In the ordinary course...an employer's failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Them the resultant claim for loss falls squarely within the Johnson exclusion zone." (para. 28)

However, he went on to point out two exceptions where problems will arise. First, financial losses flowing from suspension without pay. Second, financial losses (as in these two appeals) flowing from psychiatric illness caused by pre-dismissal unfair treatment. He said "In such cases, the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal." (para. 29)

He went on to give examples of the artificiality of the distinction (para. 31) but said it was nevertheless a distinction which had to be observed. He pointed out that "An employer may be better off dismissing an employee than suspending him" (para. 32) and called for "urgent attention by the government and the legislature" (para. 33)

Lord Steyn agreed with the result, but went further. In a fascinating critique, he thoroughly deconstructs and (almost) ridicules the reasoning of the majority of the House of Lords in Johnson v Unisys (recognising, at para. 36, that he had given the sole dissenting judgment in Johnson). He also gave a clear hint that he thought the statutory cap on compensation for unfair dismissal should be abolished (para. 51).

The end result of the appeal is that both Messrs Eastwood, Williams and McCabe are now permitted to proceed with their cases in the civil courts (the strike-outs of their actions having been overturned).

Eastwood and anor v Magnox Electric plc HL 2004

House of Lords - Dunnachie Decision

The House of Lords has - less than 15 minutes ago - handed down judgment in Dunnachie v Kinston upon Hull City Council, on whether damages for injury to feelings are recoverable in unfair dismissal claims.

Lord Steyn (with whom the other four judges agreed) held that damages for non-economic loss are not recoverable for unfair dismissal, and that s123 of the Employment Rights Act 1996 only allows tribunal to award financial losses.

This overrides the Court of Appeal's decision (see my bulletin 11/2/04) and upholds Burton P.'s decision in the EAT (see my bulletin 22/5/03).

This will end the battle between employee and employer representatives in small value cases who cannot agree whether (in principle) an award for injury to feelings should be made.

Surprisingly, the decision is very short - indeed, much shorter that Burton P.'s analysis in the EAT.. Lord Hoffman, whose comments in Johnson v Unisys gave rise to this whole debate, stays quiet. One suspects the House of Lords are a little embarrassed by the enormous amount of satellite litigation that has been triggered by their decision in Johnson v Unisys.

(Thanks to John Bowers QC, Counsel for the successful Appellant, for telling me the decision was due this morning)

Disability Discrimination - Court of Appeal

The Court of Appeal has, today, handed down its judgment in Nottinghamshire County Council v Meikle, dealing with aspects of the Disability Discrimination Act 1995.

Upholding the EAT's decision (HHJ Ansell), it held:

• that in a constructive dismissal case, the employee's resignation need only be "in part" because of the employer's breach of contract: it need not be the 'effective case' (para. 33). This is not particularly new, although Keene LJ's analysis makes interesting reading (paras. 32-33);
• the word 'dismissal' in s4(2)(d) of the Disability Discrimination Act 1995 covers constructive dismissals. The EAT's decision in Commissioner of Police for the Metropolis v Harley [2001] ICR 927, that a constructive dismissal does not fall within the definition of 'dismissal' under the Act, was wrongly decided (paras. 41-52). As a result, the three month time limit starts running from the date of the resignation, not the date of the repudiatory conduct giving rise to the resignation (para. 53);
• the duty to make reasonable adjustments includes a duty to consider paying employees during sick absence periods (even if they are only contractually entitled to reduced pay or SSP). Section 6(11) of the DDA 1995, which excludes (amongst other things) "schemes or arrangements...in respect of...(c) accident, injury or invalidity" from the duty to make reasonable adjustments applies to insurance schemes, not to sickness provisions in the contract of employment.

Territorial Jurisdiction

Hot on the heels of Burton P.'s judgment on territorial jurisdiction in discrimination claims (see bulletin 29/6/04) come a series of four conjoined appeals before the EAT (HHJ Peter Clark) dealing with territorial jurisdiction in unfair dismissal and breach of contract claims.

The EAT, in SSAFA Forces Help v McClymont (& conjoined appeals), adopted the test laid down by the Court of Appeal in Jackson v Ghost earlier this year - i.e. 'is the employment in Great Britain?'. The difficulty, fairly obviously, involves deciding which side of the line many cases fall on. The EAT said the process was similar to deciding whether someone is an employee or self-employed, i.e. weigh up all the factors and decide which side of the line the case falls on (para. 19).

In the first two cases, which the EAT thought were straightforward, it held:

• employment of UK national by Cyprus company which did not carry on business in the UK. He worked at all relevant times in Nigeria. Held (on concession) this was not employment in Great Britain.
• UK national employed by a charity registered in the UK. She was appointed to a job in Germany and worked wholly in Germany until her resignation. She was paid partly in sterling and partly in German marks, and paid UK national insurance. Held this was not employment in Great Britain.

However, the EAT thought the other two cases were more difficult, and remitted them to the tribunal to reconsider in the light of the guidance in Jackson v Ghost.

As to breach of contract jurisdiction, the EAT considered the occasions when the civil courts had jurisdiction to determine a breach of contract claim (CPR 6) and made various fact-specific findings. They are of interest not so much for legal principle (although the case is a good summary) but for precedent examples when arguing in front of a tribunal.

Information and Consultation Regulations 2004

The DTI has today published:

• its draft Guidance Notes on the forthcoming Information and Consultation of Employees Regulations 2004, together with a consultation paper asking for feedback on the draft Guidance Notes by 22nd October 2004
• the government's response to the consultation on the draft Regulations; and,
• an updated draft of the Regulations (only 41 pages long!

Time Limits for Appeals to the EAT

The Court of Appeal has, today, handed down judgment in Gdynia American Shipping Lines (London) Ltd v Chelminski.

Overruling previous EAT authorities, the Court of Appeal held that the 42 days for lodging an appeal from the tribunal's decision runs from the date that the decision is sent out by the tribunal office. It does not start running (despite s7 of the Interpretation Act 1977 saying that service is effective two days after postage) from the deemed date of service.

The previous cases of Immigration Advisory Service v Oommen and Scotford v SmithKline Beecham are wrongly decided and are overruled.

Part-Time Workers - Retained Firefighters

(Thanks to Nicholas Chronias of Beachcroft Wansbroughs, and John Bowers QC of Littleton Chambers (both of whom represented Kent & Medway Towns Fire Authority) for telling me this decision had been handed down)

The Court of Appeal has upheld the Employment Appeal Tribunal in Matthews v Kent & Medway Fire Authority (better known as the 'retained firefighters' case), although it overturned one of the key findings in the case. Matthews is the leading case under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

For those who may not be familiar with the term, 'retained' firefighter simply means 'part-time' firefighter.

The judgment is short, but forceful. Maurice Kay LJ overturns the Employment Appeal Tribunal's decision that part-time firefighters were employed under different types of contract. He confirmed that full-time firefighters fall within the category of "employees under a contract that is neither for a fixed term not a contract of apprenticeship". He then held that since the categories in regulation 2(3) are stated to be mutually exclusive, it is inappropriate to find that retained fire-fighters fall within the catch-all category "any other description of worker..." since, like full-timers, they work under a contract which is neither for a fixed term not a contract of apprenticeship. Thus full-time and retained firefighters do, contrary to the EAT's view, work under the same type of contract.

However, Maurice Kay LJ upheld the tribunal's (and EAT's) decision that retained firefighters did not perform "the same or broadly similar work" to full-time firefighters. Both groups had, at their core, a duty to fight fires. However, full-time fire-fighters also had other, additional duties, and the Court of Appeal held the tribunal was entitled to find that this meant the two jobs were not truly comparable.

Accordingly the overall decision was upheld in (as Maurice Kay LJ) described it, "a pyrrhic victory" for the firefighters in having part of their appeal allowed, which "may have happier consequences for other part-time workers in other cases."

Disability Discrimination - House of Lords

The House of Lords has, this morning, handed down its opinion in the important case of Archibald v Fife Council.

Mrs Fife was a road sweeper. She became unable to walk after a rare complication of surgery, and could not fulfil her job. It was common ground she was disabled within the meaning of the Disability Discrimination Act 1995. Her employer, Fife Council, interviewed her for a sedentary post but chose to appoint a more qualified individual. It therefore dismissed her.

The House of Lords held:

• there is a positive duty to make reasonable adjustments - unlike sex and race discrimination, an employer is obliged to positively discriminate in favour of disabled people;
• contrary to the EAT and Court of Appeal's view, there was an 'arrangement' which placed Mrs Archibald at a substantial disadvantage; namely, an 'arrangement' that if she was physically unable to work as a road sweeper, she was liable to be dismissed;
• the positive obligation to make reasonable adjustments potentially includes allowing disabled persons to 'trump' applicants for other jobs, even if the disabled employee is not the best candidate, if the disabled employee is suitable to do that work.

Thus the House of Lords remitted the case to the tribunal to decide whether Fife Council failed to make reasonable adjustments and/or treated Mrs Archibald less favourably by requiring her to undergo an interview for the sedentary job rather than offering it to her as of right.

If anyone wants to read the judgment, the most thorough opinion (and easiest to read!) is Baroness Hale's, starting at para. 46.

Discrimination Overseas - Jurisdiction

The EAT has handed down its decision in the important case of Saggar (&ors.) v Ministry of Defence.

Under the sex and race discrimination legislation, an employee can claim discrimination "unless the employee does his work wholly outside Great Britain". This case considers the position of three army officers who were based outside Great Britain and answers three questions.

1. What is the time at which whether the Applicant works outside Great Britain to be judged?
Burton P. held that one looks at the time of the allegations of discrimination. There is no discrimination at an establishment in Great Britain if the person being discriminated against (abroad) is either someone who used to work in Great Britain, but has not done so for many years, or who is employed under a contract which contemplates he might be employed in Great Britain, but in fact he never was (para. 27)

2. What is work?
In one of the cases, the overseas officer attended training courses in Great Britain during the year. If this was 'work', then she did not do her work 'wholly' outside Great Britain, so the tribunal would have had jurisdiction to hear her complaints.

The EAT held that attendance at a training course may be work (and, on the facts in this case, was work) - the important factors being the contractual position, the content of ther work, its duration and regularity (paras. 36-37)

3. Is there a de minimis exception?

Yes. One of the cases involved an army chaplain who attended a funeral in Great Britain (which was held to be 'work'), whilst based in Germany. The EAT held that a de minimis principle applies, and that "it would offend against the de minimis principle to found jurisdiction on a one day visit" (para. 45).

New ACAS Code on Disciplinary and Grievance Procedures

The revised ACAS Code on Practice on Disciplinary and Grievance Procedures in the Workplace was laid before parliament yesterday. Subject to parliamentary approval, it will come into force on 1st October 2004.

There is substantially more information about the new dispute resolution procedures than appeared in the draft Code (which went out to consultation earlier this year). In keeping with ACAS Codes, it is written in user-friendly language and is a very good summary of the law (and good practice) relating to conduct issues in the workplace.

I am offering in-house seminars on the new dispute resolution procedures (in-house, up to three hours). Click the link on the right for more details (including fees).

Bias

An interesting (and unusual) decision on tribunal bias has been put on the EAT website today.

In Breeze Benton solicitors v Weddell, the EAT held that there was an appearance of bias if a chairman, who was alleged to have been critical of a litigant in proceedings a year earlier, sat again in another case involving that litigant.

The tribunal chairman had, it was said by Breeze Benton, criticised the firm (and awarded costs against it) fifteen months earlier when one of the two partners appeared in person to defend an unlawful deductions claim. The chairman did not accept the firm's recollection was accurate (although from the EAT's description, the firm's conduct undoubtedly warranted criticism). The firm did not appeal at the time against the costs order, but complained in an incorrectly addressed letter to the Lord Chancellor's department which they did not chase up.

Fifteen months later, the same firm was again before the tribunal for a 10-day hearing. It was allocated to the same chairman who, before the parties came into the room, anticipated the point and raised it with the regional chairman, who said it was not possible to reallocate the case to another chairman without adjourning it for some months. The Respondent then formally applied for the chairman to recuse himself on grounds of apparent bias. The tribunal unanimously refused, partly on the basis that the two wing members could outvote the chairman if necessary, and partly on other grounds.

The EAT, on existing authority, held that it is no answer to a recusal application to say that the Chairman is only one of three members with an equal vote, given the important position of the legally qualified and presiding member of a tribunal of three members (para. 44(3)).

But of significance, the EAT also held that "the very fact that [the Respondent] had complained [to the Lord Chancellor's Department] about the Chairman's conduct made it inappropriate that the Chairman should sit..." (para. 47). This approach must be questioned. If correct, it means that the vexatious litigant (and, indeed, unions and large companies who regularly appear in cases in the same region) can 'cherry-pick' their chairmen by complaining about those whom they do not like appearing in front of. This approach is dangerous as it can be easily abused: if a chairman decides (say) three consecutive cases against a local large employer, will the mere fact that that employer then complains (whether on good grounds or not) mean that the chairman has to recuse himself from hearing future cases? Surely not.

ACAS Booklet on Redundancy

ACAS has updated its booklet on redundancy.

In line with all the ACAS booklets, it is becoming more practical and user-friendly. This one contains really useful information, particularly the 'walkthrough' of how to conduct a redundancy exercise in appendices 1 and 2.

The only adverse comment is that the booklet mentions in passing, but does not explain in any detail, the mandatory dismissal procedures which come into force from 1st October 2004. These will apply to all dismissals of less than 20 staff within a 90 day period.

Effect of Human Rights Act on unfair dismissal claim against private-sector employer

The Court of Appeal has, this morning, handed down a rather academic decision dealing with the vexed question of whether tribunals must take account of the Human Rights Act 1998 (in this case, the right to respect for privacy) when deciding unfair dismissal claims brought against private sector employers. The case, X v Y, is well known because of the rather unusual facts. The EAT's decision is reported at [2003] IRLR 561.

Facts

Mr X worked with vulnerable children. On a Saturday in January 2001, he drove to a transport cafe, entered the toilet, met a man he did not know, and "they began to engage in sexual activity". A passing policeman arrested them.

Mr X accepted a caution, and his name was placed on the Sex Offenders register. His employers, who worked closely with the Probation Service, discovered this. After full hearings, they dismissed him on the grounds of (a) having committed a criminal offence; and (b) thereafter not having disclosed it. The tribunal found the dismissal was fair.

The Issue

The issue for the Court of Appeal was whether a tribunal is bound to have regard to the right to respect for privacy in private life, accorded by article 8 of the ECHR, when deciding whether a dismissal is fair or unfair.

The tricky point was that the employer was a private-sector employer, and the Human Rights Act only provides that public bodies must comply with the ECHR. Thus, the issue because, should the tribunal (as a public body) apply the ECHR in private-sector cases?

The EAT's Decision

The EAT (HHJ Peter Clark presiding) held that article 8 was not engaged, therefore the main issue did not need to be determined. He considered that an act of 'cottaging', committed in a public place and which attracted a criminal caution was a public matter not a private matter.

The Court of Appeal's Decision

The majority of the Court of Appeal (Mummery and Dyson LJJ) agreed with HHJ Peter Clark, holding that article 8 was not engaged on the facts of this case. In a compelling minority judgment, Buxton LJ doubted this (thinking that acts in a secluded room in private could properly be categorised as private in nature), but thought that the acceptance of the caution by Mr X subsequently removed the private aspect of it.

Mummery LJ went on to consider the alternative point: what should a tribunal do when faced with an argument that a private-sector employer must respect an individual's right to privacy. Buxton LJ agreed with this part of the judgment, but Dyson LJ did not comment on it.

Mummery LJ stated that there should be no difference in approach, whether the employer is private- or public-sector. He described the effect of the ECHR as "oblique", rather than horizontal (para. 59). He then set out eleven factors to be considered by tribunals when deciding the impact of ECHR rights on the fairness of a dismissal. However, he did not actually give an answer - instead he restated basic principles and said it was for employment tribunals to decide! So matters are no clearer.

Costs

The Court of Appeal has upheld, in principle, the ET and EAT's decision in McPherson v BNP Paribas, although it has varied the amount of costs payable by Mr McPherson.

Mr McPherson withdrew his ET claim about two weeks before the hearing. He cited ill-health, although there were doubts about the extent of the ill-health. He had failed to comply with a number of tribunal orders in the run-up to the hearing. The tribunal, and the EAT, held that the late withdrawal was (against the background of breach of tribunal orders) unreasonable conduct. He was ordered to pay all of BNP Paribas's costs. See my bulletin of 27/8/03 for a summary of the EAT's decision.

The Court of Appeal (Mummery LJ) held that:

"it would be legally erroneous if, acting on a misconceived analogy with the CPR, tribunals took the line that it was unreasonable conduct for employment tribunal claimants to withdraw claims and that they should accordingly be made liable to pay all the costs of the proceedings. It would be unfortunate if claimants were deterred from dropping claims by the prospect of an order for costs on withdrawal, which might well not be made against them if they fought on to a full hearing and failed. As Miss McCafferty, appearing for Mr McPherson, pointed out, withdrawal could lead to a saving of costs. Also, as Thorpe LJ observed during argument, notice of withdrawal might in some cases be the dawn of sanity and the tribunal should not adopt a practice on costs, which would deter applicants from making sensible litigation decisions.

"On the other side, I agree with Mr Tatton-Brown, appearing for BNP Paribas, that tribunals should not follow a practice on costs, which might encourage speculative claims, by allowing applicants to start cases and to pursue them down to the last week or two before the hearing in the hope of receiving an offer to settle, and then, failing an offer, dropping the case without any risk of a costs sanction.

"The solution lies in the proper construction and sensible application of rule 14. The crucial question is whether, in all the circumstances of the case, the claimant withdrawing the claim has conducted the proceedings unreasonably. It is not whether the withdrawal of the claim is in itself unreasonable..."

On the facts, the Court of Appeal agreed that Mr McPherson had acted unreasonably, but allowed his appeal to the extent that is substituted a smaller period of time in connection with which costs would be payable (effectively excluding the first months of the litigation, when Mr McPherson had not been conducting the litigation unreasonably).

Failure to Attend at Tribunal

The Employment Appeal Tribunal has, in Cooke v Glenrose Fish Co Ltd, performed a U-turn on the approach for tribunals to take when a party fails to attend.

The previous position, set out by the EAT in London Borough of Southwark v Bartholomew [2004] ICR 358, was that it was incumbent on a tribunal to telephone the litigant to establish whether they were on their way, and the reason for non-attendance.

Burton P., has now held there is no such duty (although a tribunal should consider doing so). Since there is no obligation on a party to attend a hearing, it is perfectly legitimate to hear the case in a party's absence without further enquiry. However, if the non-attending party then applies for a review, a review should ordinarily be allowed if a good reason for the non-attendance is put forward.

Importantly, Burton P. makes it clear that (unlike for extensions of time), it is not good enough for a tribunal to refuse a review on the grounds that a litigant may have a strong claim against his solicitor. The aggravation, uncertainty and cost of satellite litigation militates against encouraging litigants to sue their solicitors for negligence. Provided the attending party can be compensated in costs, there would normally be no good reason not to allow a review and order a retrial.

Statutory Dispute Resolution - DTI Guidance

The DTI's Guidance Notes to the forthcoming mandatory disciplinary and grievance procedures (coming into force 1st October 2004) have just been placed on the DTI website.

Overall, it is a well drafted and thought out document, which goes some way towards explaining the horrendously complex (and in places, incomprehensible) regulations.

I will be updating my Dispute Resolution Analysis Notes to incorporate the guidance. In the meantime, here are a few key points:

• the Guidance Notes make it clear the dismissal procedures do apply for dismissals on grounds of redundancy and, as importantly, retirement
• they make it clear that the mandatory DDPs are an addition to ordinary concepts of fairness under s98(4) of the ERA 1996
• it has useful sections on overlapping procedures and on extensions of time for presenting claims.

New Equality Commission - DTI White Paper

The DTI has, today, issued a White Paper seeking views on the new integrated equality commission, to be known as the Commission for Equality and Human Rights (CEHR).

The new commission will combine the functions of the EOC, CRE and DRC (whoops - redundancy time) in challenging discrimination, as well as promoting human rights issues. In addition to taking over the functions of those three organisations, it will be responsible for tackling discrimination on grounds of age, sexual orientation, religion and belief.

The White Paper sets out proposals for the structure and mandate of the new organisation. The deadline for responses is 6th August 2004.

Transexual Discrimination

The House of Lords has handed down its decision in A v Chief Constable of West Yorkshire Police.

In 1998, the Chief Constable of West Yorkshire rejected Ms A's application to become a constable in the West Yorkshire Police on the ground that, as a male-to-female trenssaxual, she could not perform the full searching duties required of a police constable. The issue was whether he thereby discriminated against her unlawfully in breach of the Sex Discrimination Act 1975

The Chief Constable admitted that the refusal was prima facie discriminatory, but defended the claim on the basis that being able to search is a genuine occupational qualification.

The House of Lords held that gender was not a genuine occupational qualification. Men could perform searching duties, and so could women. To put it another way, it was not a genuine occupational qualification that somebody needed to be either a man or a woman to undertake searching duties - both male and female officers undertook searching duties. The genuine occupational requirement defence was not drafted to cover gender reassignment, and this case did not fall within the exception.

Note that this is an enormous oversimplification of a very complex judgment Moreover, the case is now largely of historic interest only, due to the subsequent implementation of the Sex Discrimination (Gender Reassignment) Regulations 1999.

Rolled up Holiday Pay

The Court of Appeal has, for the first time, considered the thorny issue of 'rolled-up' holiday pay.

In an astonishingly robust and clear judgment, Laws LJ held in the conjoined appeals of Clarke v Staddon and Caulfield v Marshalls Clay Products (see my bulletin of 4/8/03 for the EAT decision) that 'rolled-up' holiday pay complies with the EU Working Time Directive. He examined the policy behind the Directive and relied heavily on the fact that the Directive does not state that the payment has to be received at the time the holiday is taken.

He then asked the question: does rolling-up holiday pay undermine or negate the relevant article of the EU Working Time Directive, and held that it did not. He also held that since the Working Time Regulations 1998 were enacted to implement the Directive, if they said anything different, they were ultra vires. However, he went to hold that the WTR 1998 did allow for rolled-up holiday pay.

But he said it was unsatisfactory that there were two inconsistent decisions; one from the English Court of Appeal and the other from the Scottish Court of Session (in MPB Structures v Munro - see my bulletin of 8/4/03). As a result, he thought that the issue should be referred to the European Court of Justice, and adjourned the hearing to enable Counsel to suggest a draft form of reference. He made it clear that the reference would (if possible) be joined with the reference from the Leeds employment tribunal on the same point (see my bulletin 17/3/04).

Also of significance: he held (in a passage I have some reservations over) that the EAT sitting in England is not bound by the decisions of the Scottish Court of Session. This must be doubtful because the EAT - whether sitting in England or Scotland - is one statutory body. It cannot be right that the same court may, or may not, be bound by decisions of higher courts depending on where the Applicant lives.

New Draft CRE Code of Practice

The CRE is consulting on a revised statutory Code of Practice on Racial Equality in Employment. It is now twenty years since the current statutory code of practice came into force. Since then, there have been a number of important amendments to the Race Relations Act 1976, as well as new EU legislation governing racial equality in the workplace.

To reflect these changes, revisions have been made to the new code, including:

• greater accessibility, in terms of language and style;
• an accurate reflection of current legislation and the modern world of work;
• more real-life employment tribunal case studies; and
• detailed guidance on topics such as positive action, ethnic monitoring and racial equality policies.

The code aims to give practical guidance to employers, recruitment agencies, trades unions and individual employees on how to meet their obligations under the Race Relations Act. It will have statutory status; this means that any of its provisions can be referred to in an employment tribunal.

The consultation paper is available on the CRE website. Consultation closes on Friday, 6th August 2004.

ACAS Guides

ACAS has updated its booklets on Absence and Labour Turnover, and on the new Employment Equality Legislation.

Note: I could not open the two bottom links directly. If you experience similar problems, go to http://www.acas.org.uk/about_acas/whatsnew.html and save the guides to your hard disk, then open them from there.

Employment Status

The Employment Appeal Tribunal has handed down its decision in Staffordshire Sentinel Newspapers Ltd v Potter (HHJ Peter Clark, argument 18th March 2004).

It confirms that an "irreducible minimum" for there being a contract of employment is personal service. Following Express & Echo Publications v Tanton [1999] ICR 693, CA, the EAT held that a provision in Mr Potter's contract that he be entitled to substitute "a suitable person" to perform his duties, whenever he wanted, was fatal to him accruing status as an employee.

Note that other cases have held that such a provisions is not necessarily conclusive. Thus in MacFarlane v Glasgow City Council [2001] IRLR 7, it was held that a gym instructor whose contract provided he could select a substitute from a list pre-approved by the gym did not cease to be an employee because of that provision. A similar result was reached in Byrne Brothers (Formwork) Ltd v Baird [2002] IRLR 96.

The position therefore appears to depend on the extent of the substitution clause. If the worker has an unfettered discretion to appoint a substitute, he cannot be an employee. If he has a heavily fettered discretion, or requires the employer's approval, the substitution clause will not prevent him from accruing employee status.

Continuity of Employment

The Court of Appeal has handed down its decision in Bower v Stevens (& ors.), a curious case about continuity of employment in solicitors' firms.

Mrs Stevens was employed by Hughes Hooker, a solicitors' firm which "attracted a degree of notoriety", where the controlling partner was "a man well practised in flaunting the norms of professional behaviour and personal integrity in the pursuit of financial gain."

Mr Bower (who was not involved in any wrongdoing) was a salaried partner in the firm. The controlling partner did not pay Mr Bower's wages etc. for some time. By the end of 2000, there were just the two partners left who resolved to dissolve the firm on 31st March 20001. In early March, the controlling partner was struck off the roll of solicitors. By operation of law, this meant that Mr Bower became sole principal with just three weeks to go before the firm closed.

Some of the employees brought a claim against the two partners for unauthorised deductions, wrongful dismissal, unfair dismissal and redundancy payments. The controlling partner took no part (he was in and out of bankruptcy). Mr Bower argued (before the EAT and Court of Appeal) that the change in partnership from two to one partners meant that continuity of employment was broken.

Under s218(5) of the Employment Rights Act 1996, continuity of employment is deemed to be preserved when there is a change of partners. The Court of Appeal held, resolving inconsistent EAT authorities, that this includes the situation where two partners become one - which must achieve the purpose of the section - even though it did not rest easily with the natural wording of s218(5) which required a need for partners (plural) after the change to trigger the deemed continuity of employment.

Thus the employees had continuity of employment to claim unfair dismissal, redundancy payments and the longer notice periods.

New EAT Decisions

Haberdashers' Monmouth School v Turner
(Burton P., 8th March 2004)

An unusual case concerning constructive dismissal. Ms Turner had been a teacher for 22 years, on (as everyone believed) a self-employed contract. The school wanted to formalise her position and offered her employment. The contract did not recognise her 22 years' previous service and, after taking legal advice, Ms Turner refused to sign the contract on the basis she had been working under an implied contract of employment for 22 years, and her continuity of employment should be recognised. She resigned, claiming constructive dismissal. The tribunal found (i) she had been an employee for 22 years; and (ii) accordingly the school's refusal to recognise this was a repudiatory breach of contract.

The EAT held that the tribunal's approach was wrong. The correct approach, following classic contract law cases, was to ask whether the school had shown an intention not to be bound by the terms of the contract (which is necessary for a repudiatory breach). Importantly, the fact a party to the contract may make a genuine and honest mistake as to the legal interpretation does not mean it no longer intends to be bound; to the contrary, it may well intend to be bound by the contract but has just made a mistake over what the contract requires. Accordingly the case was remitted.

Sexual Orientation Attack

The much reported attack on the sexual orientation discrimination legislation, brought by Amicius and other unions, was rejected by the High Court yesterday.

Amiucus (and six other major unions) argued that various exemptions in the Employment Equality (Sexual Orientation) Equality Regulations 2002 were incompatible with the obligations imposed on the UK by the EU Equal Treatment Framework Directive 2000 and also conflicted with provisions of the European Convention on Human Rights.

In an extremely long and thorough judgment (apparently the judge had to deal with over 200 pages of skeleton argument and 14 bundles of authorities), Richards J. rejected the unions' arguments and held that the exceptions to the general prohibition on discrimination were lawful. The issues raised are quite fascinating, even extending to an invitation (which the judge refused!) to decide whether extracts from the Bible prohibit homosexuality (paras. 36-38).

The exceptions challenged were (in summary):

* reg 7(2): where being of a particular sexual orientation was a genuine and determining occupational requirement

* reg 7(3): where the employment is for the purpose of an organised religion, and either religious doctrine prohibits a particular sexual orientation, or appointment of the individual would offend the strongly held religious convictions of a significant number of the religion's followers

* reg 20(3): admitting students into religious training, where the religion meets the conditions of reg 7(3)

* reg 25: nothing in the Regulations shall render unlawful anything which prevents or restricts access to a benefit by reference to marital status

I recommend that anyone dealing with the sexual orientation legislation read this decision: it involves detailed consideration of the policy behind the legislation and extensive construction of the various exceptions.

Scott v Inland Revenue

The Court of Appeal has handed down judgment in Scott v Inland Revenue. The case straddles the border on whether it warrants a bulletin, but I have done so as it contains a small number of useful 'soundbites' on diverse points that advocates might want to quote in tribunals.

* disclosure: there is an ongoing duty of disclosure in tribunals (when standard disclosure is ordered). Thus the Inland Revenue ought to have disclosed to the Applicant that it changed its normal retirement date from 60 to 65 after he was dismissed, but before the remedies hearing (paras. 20-21);

* aggravated damages: aggravated damages are separate from awards for injury to feelings, and the two should not be amalgamated (paras. 34-35)

* costs: the fact that an Applicant drops some of his claims (he dropped the named individual Respondents) and failed on one other (an "inconsequential head of claim had failed") is not relevant to the decision whether to award costs. At most, it is relevant to the issue of how much should be awarded (para. 47)