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.