The Court of Appeal has (by a majority) overturned the EAT's decision in St Helens MBC v Derbyshire.
Issue
Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.
Facts
510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.
About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.
The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.
The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.
The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.
They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.
In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.
St Helens MBC v Derbyshire
Saturday, 30 July 2005
Remember the Sabbath Day(...Six days shalt thou labour, and do all thy work)
The Court of Appeal has (by a majority) overturned the EAT's decision in St Helens MBC v Derbyshire.
Issue
Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.
Facts
510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.
About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.
The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.
The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.
The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.
They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.
In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.
St Helens MBC v Derbyshire
Issue
Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.
Facts
510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.
About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.
The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.
The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.
The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.
They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.
In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.
St Helens MBC v Derbyshire
Wednesday, 27 July 2005
Intervention in Solicitors' Firms - TUPE?
Note- I have entered this case in emplaw under redundancy/meaning of but the internet is not working so have not been able to put in the reference.
The Court of Appeal has today handed down a conceptually complex judgment concerning the effect of the Law Society's intervention in a firm of solicitors on the contracts of employment of those employed by the firm.
It held that where the firm is that of a sole practitioner, the act of intervention by the Law Society does not operate to terminate the employment contracts of staff. Nor does the suspension of the principal's Practising Certificate. Therefore the staff will be transferred under TUPE if the practice is sold as a going concern.
However, where there is a partnership (i.e. not a sole practitioner), the question of whether intervention dissolves the partnership depends on the facts of each case. Intervention will normally dissolve the partnership, as it becomes unlawful for the firm to continue in practice. Thus:
Rose v Dodd
The Court of Appeal has today handed down a conceptually complex judgment concerning the effect of the Law Society's intervention in a firm of solicitors on the contracts of employment of those employed by the firm.
It held that where the firm is that of a sole practitioner, the act of intervention by the Law Society does not operate to terminate the employment contracts of staff. Nor does the suspension of the principal's Practising Certificate. Therefore the staff will be transferred under TUPE if the practice is sold as a going concern.
However, where there is a partnership (i.e. not a sole practitioner), the question of whether intervention dissolves the partnership depends on the facts of each case. Intervention will normally dissolve the partnership, as it becomes unlawful for the firm to continue in practice. Thus:
- if, following dissolution, it becomes impossible or unlawful for the employee to do any of the work he is employed to do, the contract of employment is frustrated and comes to an end. Accordingly, if the practice is later sold, the employee will not transfer under TUPE;
- if, following dissolution, the parties try to keep the contract alive and to continue it while steps are taken to challenge the intervention or transfer the practice as a going concern, there is no reason for the contracts of employment to terminate automatically. In that situation, if the practice is transferred, TUPE will apply.
Rose v Dodd
Monday, 25 July 2005
...Six days shalt thou labour, and do all thy work
In a fascinating case, the Court of Appeal has considered (in three separate reasoned judgments) the issue of whether and when the dismissal of an employee who refuses to work on the Sabbath is unfair.
The case concerned the impact of article 9 of the ECHR (freedom to manifest religion) on UK unfair dismissal law. The unfair dismissal claim was brought by a Christian employee who refused to accept shift-changes requiring Sunday working, and was dismissed as a result.
Mummery LJ, following a line of European Commission authorities ending with Stedman v UK, held that article 9 is not engaged because an employee is always free to resign from a job and not work on Sundays. He made it fairly clear he disagreed with those authorities, but considered himself bound by them.
Rix LJ, in a thoughtful and compelling judgment, held that the line of cases did not hold that Article 9 was not invoked if an employee had the option to resign. However, on the facts, the employer had tried to accommodate the employee when changing his hours to include Sunday working, and although Article 9 was engaged, it was not breached
. Neuberger LJ, dealing principally with English (rather than Convention) law, held that it is always open to a tribunal to find a dismissal unfair if an employer fails to strike a reasonable balance between the needs of the business and the employee's religious beliefs. He considered that Article 9 of the ECHR added little to the existing balancing act necessary for unfair dismissal decisions.
This decision is important as, despite the result, it makes it very clear that employers must try to minimise the impact of changes to working hours on employees who hold strong religious beliefs (eg by offering alternative jobs)
Copsey v WWB Devon Clays Ltd
The case concerned the impact of article 9 of the ECHR (freedom to manifest religion) on UK unfair dismissal law. The unfair dismissal claim was brought by a Christian employee who refused to accept shift-changes requiring Sunday working, and was dismissed as a result.
Mummery LJ, following a line of European Commission authorities ending with Stedman v UK, held that article 9 is not engaged because an employee is always free to resign from a job and not work on Sundays. He made it fairly clear he disagreed with those authorities, but considered himself bound by them.
Rix LJ, in a thoughtful and compelling judgment, held that the line of cases did not hold that Article 9 was not invoked if an employee had the option to resign. However, on the facts, the employer had tried to accommodate the employee when changing his hours to include Sunday working, and although Article 9 was engaged, it was not breached
. Neuberger LJ, dealing principally with English (rather than Convention) law, held that it is always open to a tribunal to find a dismissal unfair if an employer fails to strike a reasonable balance between the needs of the business and the employee's religious beliefs. He considered that Article 9 of the ECHR added little to the existing balancing act necessary for unfair dismissal decisions.
This decision is important as, despite the result, it makes it very clear that employers must try to minimise the impact of changes to working hours on employees who hold strong religious beliefs (eg by offering alternative jobs)
Copsey v WWB Devon Clays Ltd
Thursday, 14 July 2005
Age Discrimination
The DTI has, at 10.30am, published the draft Regulations on age discrimination.
The new Regulations:
DTI Age Discrimination Webpage
The new Regulations:
- ban age discrimination in terms of recruitment, promotion and training;
- ban all retirement ages below 65 - except where objectively justified;
- require employers to inform employees in writing, and at least 6 months in advance, of their intended retirement date. This will allow people to plan for their retirement;
- remove the current upper qualifying age for unfair dismissal and redundancy rights;
- impose a duty for employers to consider an employee's request to continue working beyond retirement; and
- impose a requirement for employers to give written notification to employees at least 6 months in advance of their intended retirement date. This will allow people to plan for their retirement.
DTI Age Discrimination Webpage
Admissibility of Claim Forms
The DTI has, at 10.30am, published the draft Regulations on age discrimination.
The new Regulations:
DTI Age Discrimination Webpage
The new Regulations:
- ban age discrimination in terms of recruitment, promotion and training;
- ban all retirement ages below 65 - except where objectively justified;
- require employers to inform employees in writing, and at least 6 months in advance, of their intended retirement date. This will allow people to plan for their retirement;
- remove the current upper qualifying age for unfair dismissal and redundancy rights;
- impose a duty for employers to consider an employee's request to continue working beyond retirement; and
- impose a requirement for employers to give written notification to employees at least 6 months in advance of their intended retirement date. This will allow people to plan for their retirement.
DTI Age Discrimination Webpage
Wednesday, 13 July 2005
Age Discrimination - personal organiser
I've been sent a copy of a 'Be Ready' Personnel Organiser, produced by the Age Partnership Group. It's a filofax full of useful information on age discrimination for employers, plus a CD-ROM with training courses on age discrimination awareness.
It's a really good free guide. It will be more useful for HR professionals and employers than for lawyers, but solicitors might want to pass details about it onto clients as a marketing exercise.
You can get copies (as many as you want) by sending a blank Email to apg@isky.co.uk (you will automatically be Emailed back a link to a website request form). You can also phone 0845 715 2000, but you may have problems getting through if a lot of people receive this bulletin and dial the number simultaneously.
Note the Age Partnership Group is fairly overwhelmed with demand (it took about six weeks for me to get my copy), so don't expect anything too quickly.
And just for information, the Age Discrimination Regulations are due to be published in draft form by the end of this month, and will be put out for a three month consultation period.
It's a really good free guide. It will be more useful for HR professionals and employers than for lawyers, but solicitors might want to pass details about it onto clients as a marketing exercise.
You can get copies (as many as you want) by sending a blank Email to apg@isky.co.uk (you will automatically be Emailed back a link to a website request form). You can also phone 0845 715 2000, but you may have problems getting through if a lot of people receive this bulletin and dial the number simultaneously.
Note the Age Partnership Group is fairly overwhelmed with demand (it took about six weeks for me to get my copy), so don't expect anything too quickly.
And just for information, the Age Discrimination Regulations are due to be published in draft form by the end of this month, and will be put out for a three month consultation period.
DTI Stress Guide
The DTI, working with the HSE, CBI, TUC, Local Government Employers and the Forum of Private Business, has produced a leaflet for employers and employees on work-related stress.
It says very little - in fact, it could hardly say less - but it comes in at an impressive eight pages of nicely designed graphics and logos.
It's a large file (Adobe Acrobat needed), so if a large number of people click on the link simultaneously when this bulletin arrives, you may not get through and will need to try again later.
Click here to open the Guide (.pdf file)
It says very little - in fact, it could hardly say less - but it comes in at an impressive eight pages of nicely designed graphics and logos.
It's a large file (Adobe Acrobat needed), so if a large number of people click on the link simultaneously when this bulletin arrives, you may not get through and will need to try again later.
Click here to open the Guide (.pdf file)
Tuesday, 12 July 2005
ETS Annual Report
The Employment Tribunals Service (ETS) today published its Annual Report and Accounts for 2004-05 (1st April 2004 to 31st March 2005).
Key findings include:
It is unclear how the new statutory dismissal and grievance procedures, and the new procedural rules, have impacted on the number of claims being admitted, as the new rules came into force half-way through the year to which these figures relate. The opening summary states that they have "increased pre-hearing activity for both administrators and judiciary"
Click here for the Annual Report
Key findings include:
- 86,181 claims registered, compared with 115,042 the previous year. This decrease of 25% is mainly due to fewer multiple cases;
- 1,038 cost orders made, with 283 in favour of the claimant, and 755 in favour of the respondent. This is similar to the 976 costs awards the previous year. The median cost award was £1,000;
- average compensation remains low. The median award for unfair dismissal, including the basic award, was £3,476. The median for discrimination (depending on the type of discrimination) was between £6,200 and £7,500;
- the cost of running the employment tribunal service last year was £69,770,000. This is equivalent to £809 for each application lodged.
It is unclear how the new statutory dismissal and grievance procedures, and the new procedural rules, have impacted on the number of claims being admitted, as the new rules came into force half-way through the year to which these figures relate. The opening summary states that they have "increased pre-hearing activity for both administrators and judiciary"
Click here for the Annual Report
Monday, 11 July 2005
ACAS: Public Sector Change Management
Acas has today launched a range of tailor-made training and workshops to help public sector organisations manage change.
This is accompanied by two publications - 'Working with you to manage change in the NHS' and 'Working with you to manage change in local government' - which include case studies.
More information
This is accompanied by two publications - 'Working with you to manage change in the NHS' and 'Working with you to manage change in local government' - which include case studies.
More information
Saturday, 9 July 2005
Service at Tribunals by Email
Where a Claim Form is sent to the tribunal by Email, a Claimant is entitled to assume it will be delivered at the tribunal within about an hour (unless there is an indication that it has not been received, such as a message bounce-back).
Accordingly the Consignia v Sealy 'escape route' is open to a Claimant who sends his Claim Form by Email on the last day for service of the ET1 (as long as s/he allows an hour before midnight, when time expires). The tribunal should then consider if the Claimant has acted reasonably promptly in re-sending the form once s/he realises it has not been received.
In this case, the Claimant Emailed her Claim Form at 4.05pm on Friday (the last day). It was not received at all. She phoned to check it had arrived the following Wednesday or Thursday, and when she discovered it had not arrived, she delivered another Claim Form.
The EAT (Burton P. presiding) upheld the tribunal's decision that it was not reasonably practicable for her to have presented the Claim Form in time, relying as she did on the ordinary course of Email, and she had presented the Claim Form within a reasonable period after expiry of the three-month period.
Initial Electronic Security Systems v Avdic
Accordingly the Consignia v Sealy 'escape route' is open to a Claimant who sends his Claim Form by Email on the last day for service of the ET1 (as long as s/he allows an hour before midnight, when time expires). The tribunal should then consider if the Claimant has acted reasonably promptly in re-sending the form once s/he realises it has not been received.
In this case, the Claimant Emailed her Claim Form at 4.05pm on Friday (the last day). It was not received at all. She phoned to check it had arrived the following Wednesday or Thursday, and when she discovered it had not arrived, she delivered another Claim Form.
The EAT (Burton P. presiding) upheld the tribunal's decision that it was not reasonably practicable for her to have presented the Claim Form in time, relying as she did on the ordinary course of Email, and she had presented the Claim Form within a reasonable period after expiry of the three-month period.
Initial Electronic Security Systems v Avdic
Thursday, 7 July 2005
Justification of Indirect Discrimination: range of reasonable responses test does not apply
The Court of Appeal has, this morning, held that the range of reasonable responses test does not apply when tribunals decide whether an otherwise indrectly discriminatory 'provision, criterion or practice' is objectively justified.
In Hardys & Hansons v Lax, Pill LJ held that the Sex Discrimination Act 1975 demands that:
"The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances." (para. 32).
Thomas LJ added that where the employer is relying on the economic needs of the business, it would be expected to adduce sufficient evidence of that business need to enable the tribunal to "set out at least a basic economic analysis of the business and its needs... the analysis must be through and critical and show a proper understanding of the business of the enterprise." (para. 55)
Hardys & Hansons v Lax
In Hardys & Hansons v Lax, Pill LJ held that the Sex Discrimination Act 1975 demands that:
"The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances." (para. 32).
Thomas LJ added that where the employer is relying on the economic needs of the business, it would be expected to adduce sufficient evidence of that business need to enable the tribunal to "set out at least a basic economic analysis of the business and its needs... the analysis must be through and critical and show a proper understanding of the business of the enterprise." (para. 55)
Hardys & Hansons v Lax
Tuesday, 5 July 2005
Commission Advances for Employees not void under Consumer Credit Act
The Court of Appeal has held that monies paid to employees by way of 'advances' on commission are not 'credit' within the meaning of the Consumer Credit Act 1974. Accordingly the repayment clauses are enforceable even if they do not comply with the technical requirements of the Act (and, of course, they never will).
In McMillan Williams v Range, the employers were a three-partner firm of solicitors based in Surrey and South London. They employed an assistant solicitor on a 'commission' basis, to receive one-third of her billings. For the first two years, they paid her £22,000 on account, intending an up or down adjustment to be made after two years. Her billings were not anything like sufficient to cover her salary (i.e. £66,000) and, after she resigned, they sued her for return of £17,000 overpaid commission. She counterclaimed for misrepresentation, alleging the firm had misled her over the amount of work available.
The Court of Appeal, dealing with this as a preliminary issue, held that the arrangement was not one for 'credit' - thus Ms Range could not defeat the claim by pointing the fact that her contract did not comply with the provisions of the Consumer Credit Act 1974.
This very sad case is worth reading - particularly paragraphs 29 and 30 - where the Court of Appeal criticises both sides in extremely robust terms for running up £50,000 of costs on just the preliminary issue, and for "posturing and jockeying for position" throughout "tedious correspondence". The Court makes it very clear that they expect cases of this nature to be dealt with, if at all possible, by mediation.
McMillan Williams v Range
Daniel Barnett
5th July 2004
In McMillan Williams v Range, the employers were a three-partner firm of solicitors based in Surrey and South London. They employed an assistant solicitor on a 'commission' basis, to receive one-third of her billings. For the first two years, they paid her £22,000 on account, intending an up or down adjustment to be made after two years. Her billings were not anything like sufficient to cover her salary (i.e. £66,000) and, after she resigned, they sued her for return of £17,000 overpaid commission. She counterclaimed for misrepresentation, alleging the firm had misled her over the amount of work available.
The Court of Appeal, dealing with this as a preliminary issue, held that the arrangement was not one for 'credit' - thus Ms Range could not defeat the claim by pointing the fact that her contract did not comply with the provisions of the Consumer Credit Act 1974.
This very sad case is worth reading - particularly paragraphs 29 and 30 - where the Court of Appeal criticises both sides in extremely robust terms for running up £50,000 of costs on just the preliminary issue, and for "posturing and jockeying for position" throughout "tedious correspondence". The Court makes it very clear that they expect cases of this nature to be dealt with, if at all possible, by mediation.
McMillan Williams v Range
Daniel Barnett
5th July 2004
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