The EAT has handed down its decision in Hope v SITA (UK) Ltd.
Mrs Hope was promoted to the position of Group Purchasing Manager, which a man had previously done, but not paid as much.
The tribunal found that this was 'like work', but also found that Mrs Hope in fact did more work than her predecessor because he had had a deputy to shoulder some of the workload (i.e. her), but she did not have a deputy and so was doing more work.
The EAT rejected the argument that there cannot be 'like work' when a woman is found, as a fact, to be doing more work than her male comparator (para. 13). HHJ Wakefield held:"On any purposive construction of the Act, the fact that a promoted woman undertakes more duties than her male predecessor cannot result in a conclusion that the two are not undertaking like work in order to justify her being paid less."
Sita UK Ltd v Hope EAT 2005
Thursday, 30 June 2005
Minimum Wage
The statutory instrument containing this year's increase to the minimum wage has been laid before parliament (see bulletin dated 25th February 2005 when the increases were announced).
The changes, which take effect on 1st October 2005, are:
The changes, which take effect on 1st October 2005, are:
- for adult workers, from £4.85 to £5.05ph
- for younger workers (18-21), from £4.10 to £4.25
- the accommodation allowance increases from £3.75 to £3.90 per day/
Wednesday, 22 June 2005
New ACAS Guides
Acas has, today, updated three of its guides, namely:
- Booklet on Recruitment and Induction
- Q&A on Discipline, Dismissal and Grievances
- Advice Leaflet on Flexible Working
Basic Award Set-off for Redundancy
In what was described by HHJ McMullen QC as "an arcane corner of the law relating to compensation for unfair dismissal", the EAT has held that a payment made by an employer, which purports to be a redundancy payment, cannot be set-off against the basic award in an unfair dismissal claim.
In Bowyer v Siemens Communications, Mrs Bowyer was dismissed on grounds, purportedly, of redundancy. The tribunal found that the dismissal was procedurally and substantively unfair and - significantly - that the real reason for dismissal was not dismissal.
Her financial losses were over £200,000, and were capped at the (then) compensatory award limit of £53,500.
She had been paid, at the time of the dismissal, £6,240 by way of a statutory redundancy payment. The tribunal refused to award a basic award (of £6,240) on the basis of s122(4) of the Employment Rights Act 1996, which states that the basic award should be reduced by the amount of any payment made to the employee on the ground that the dismissal was by reason of redundancy.
The EAT overturned the tribunal's decision, following an older Court of Appeal authority which held that, for s122(4) to be engaged, the dismissal had to actually be on grounds of redundancy. A payment expressed to be in respect of redundancy would not be set-off against the basic award, if the true reason for dismissal was not redundancy.
Normally this will make no difference, since the 'redundancy' payment would be set-off against the compensatory award. But where the compensatory award exceeds the cap, as in this case, it results in the employee receiving a full basic award on top of the 'redundancy' payment she has already had.
Bowyer v Siemens plc, EAT 2005
In Bowyer v Siemens Communications, Mrs Bowyer was dismissed on grounds, purportedly, of redundancy. The tribunal found that the dismissal was procedurally and substantively unfair and - significantly - that the real reason for dismissal was not dismissal.
Her financial losses were over £200,000, and were capped at the (then) compensatory award limit of £53,500.
She had been paid, at the time of the dismissal, £6,240 by way of a statutory redundancy payment. The tribunal refused to award a basic award (of £6,240) on the basis of s122(4) of the Employment Rights Act 1996, which states that the basic award should be reduced by the amount of any payment made to the employee on the ground that the dismissal was by reason of redundancy.
The EAT overturned the tribunal's decision, following an older Court of Appeal authority which held that, for s122(4) to be engaged, the dismissal had to actually be on grounds of redundancy. A payment expressed to be in respect of redundancy would not be set-off against the basic award, if the true reason for dismissal was not redundancy.
Normally this will make no difference, since the 'redundancy' payment would be set-off against the compensatory award. But where the compensatory award exceeds the cap, as in this case, it results in the employee receiving a full basic award on top of the 'redundancy' payment she has already had.
Bowyer v Siemens plc, EAT 2005
Monday, 20 June 2005
Discrimination - Joint and Several Liability
The EAT has handed down judgment on whether general 'mental handicap', or generalised learning disorders, can amount to a disability.
It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.
However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.
This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).
Dunham v Ashford Windows EAT 2005
[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]
It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.
However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.
This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).
Dunham v Ashford Windows EAT 2005
[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]
Disability Discrimination - Mental Impairment
The EAT has handed down judgment on whether general 'mental handicap', or generalised learning disorders, can amount to a disability.
It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.
However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.
This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).
Dunham v Ashford Windows EAT 2005
[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]
It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.
However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.
This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).
Dunham v Ashford Windows EAT 2005
[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]
State Immunity
An interesting decision on the procedure for claiming / challenging state immunity, arising largely from the unusual facts of the case.
Mr Aziz was employed for many years as an accounts assistant at the London embassy of the Republic of Yemen. He claimed unfair dismissal. Solicitors acting for Yemen lodged an ET3, without taking any state immunity point.
On the morning of the hearing, Counsel for Yemen raised the immunity defence. The tribunal rejected this defence, holding that by lodging an ET3, Yemen had waived reliance on state immunity (under s2(5)of the State Immunity Act 1978).
The Employment Appeal Tribunal admitted two witness statements from the Yemeni Ambassador. He said that he was unaware of the right to claim state immunity and had not authorised any waiver. He said that the Embassy had not authorised instruction of solicitors and that the solicitors had entered the ET3 without authority. The EAT accepted this at face value, allowed the appeal and held that Yemen was entitled to claim state immunity.
The Court of Appeal has overturned the EAT's ruling. In a somewhat laconic judgment, the Court of Appeal said that the EAT should critically evaluate claims of this nature (rather than take the Embassy's evidence at face value) and, if a fact-finding mission is needed, remit the case back to a tribunal.
Pill LJ, relying on such factors as the Ambassador had, himself, visited the solicitors' offices (and had denied that an individual at the embassy was a member of the diplomatic staff, despite that individual having been certified as member of diplomatic staff to the Foreign & Commonwealth Office), held that issues of fact as to the accuracy of the Ambassador's evidence arose. Accordingly, the Court of Appeal remitted the case to a (different) tribunal to conduct a fact-finding exercise into whether Yemen had waived state immunity.
Aziz v Republic of Yemen
Mr Aziz was employed for many years as an accounts assistant at the London embassy of the Republic of Yemen. He claimed unfair dismissal. Solicitors acting for Yemen lodged an ET3, without taking any state immunity point.
On the morning of the hearing, Counsel for Yemen raised the immunity defence. The tribunal rejected this defence, holding that by lodging an ET3, Yemen had waived reliance on state immunity (under s2(5)of the State Immunity Act 1978).
The Employment Appeal Tribunal admitted two witness statements from the Yemeni Ambassador. He said that he was unaware of the right to claim state immunity and had not authorised any waiver. He said that the Embassy had not authorised instruction of solicitors and that the solicitors had entered the ET3 without authority. The EAT accepted this at face value, allowed the appeal and held that Yemen was entitled to claim state immunity.
The Court of Appeal has overturned the EAT's ruling. In a somewhat laconic judgment, the Court of Appeal said that the EAT should critically evaluate claims of this nature (rather than take the Embassy's evidence at face value) and, if a fact-finding mission is needed, remit the case back to a tribunal.
Pill LJ, relying on such factors as the Ambassador had, himself, visited the solicitors' offices (and had denied that an individual at the embassy was a member of the diplomatic staff, despite that individual having been certified as member of diplomatic staff to the Foreign & Commonwealth Office), held that issues of fact as to the accuracy of the Ambassador's evidence arose. Accordingly, the Court of Appeal remitted the case to a (different) tribunal to conduct a fact-finding exercise into whether Yemen had waived state immunity.
Aziz v Republic of Yemen
Monday, 6 June 2005
Rolled up Holiday Pay
UPDATE
As most people will know, the 'rolled-up holiday pay' issue was referred to the ECJ last year (see bulletin 17/3/04).
The conjoined cases of MJ Clarke v Frank Staddon and Caulfield Barnes v Marshalls Clay Products have now been listed for hearing before the ECJ on 15th September 2005.
Allowing time for the Advocate-General's opinion and the judgment of the full court (which normally takes 6-9 months after hearing argument), we should have a decision in Spring/Summer 2006.
[Thanks to Tony Mizler of A.E. Mizler & Co., for telling me about the listing date.]
As most people will know, the 'rolled-up holiday pay' issue was referred to the ECJ last year (see bulletin 17/3/04).
The conjoined cases of MJ Clarke v Frank Staddon and Caulfield Barnes v Marshalls Clay Products have now been listed for hearing before the ECJ on 15th September 2005.
Allowing time for the Advocate-General's opinion and the judgment of the full court (which normally takes 6-9 months after hearing argument), we should have a decision in Spring/Summer 2006.
[Thanks to Tony Mizler of A.E. Mizler & Co., for telling me about the listing date.]
Redundancy Dismissals - Suitable Alternative Employment
The EAT has held, in Fisher v Hoopoe Finance Ltd., that where there are one or more possibilities of suitable alternative employment available to an employee who is to be made redundant, then the employer should normally inform the employee of the financial prospects of those positions to enable the employee to make an informed choice. A failure to provide such information (unless impractical, for example if the salary has not been set) is likely to make any dismissal unfair and, presumably, likely to render it reasonable for the employee to refuse the offer.
That appeares relatively uncontroversial. Of greater interest, is an indication by the EAT (HHJ Birtles presiding) that a failure by an employee to indicate an interest in a particular position and/or to request further information (including financial information) is a factor which the Employment Tribunal may wish to take into account in reducing the basic and compensatory awards on grounds of contributory fault.
Fisher v Hoopoe Finance Ltd EAT 2005 . (see para. 17)
That appeares relatively uncontroversial. Of greater interest, is an indication by the EAT (HHJ Birtles presiding) that a failure by an employee to indicate an interest in a particular position and/or to request further information (including financial information) is a factor which the Employment Tribunal may wish to take into account in reducing the basic and compensatory awards on grounds of contributory fault.
Fisher v Hoopoe Finance Ltd EAT 2005 . (see para. 17)
ACAS Leaflet on employing older workers
Acas has today issued a new advisory leaflet, 'Employing Older Workers'. It gives advice on what to consider when recruiting, planning for the future and managing older workers. As with all Acas guides, it is practical and succinct, with none of the political hyperbole seen in similar guides produced by other organisations.
Acas Leaflet on Employing Older Workers
Acas Leaflet on Employing Older Workers
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