Disability Discrimination: Reference to ECJ

The EAT has, today, dismissed an appeal against an employment tribunal's decision to refer a question under the DDA to the ECJ (in the case of Attridge Law v Coleman).

Miss Coleman's 4 year old son is disabled. She resigned after her employer allegedly failed to grant her flexible working opportunities in contrast to mothers of non-disabled children working for the same employer. She claims that she was unlawfully discriminated against by her employer due to her son’s disability.

The ET (upheld by the EAT) has referred the issue to the ECJ of whether the DDA 1995 covers discrimination on grounds of somebody else's disability. The precise questions referred can be seen here.

[Thanks to Martin Crick of the DRC and Paul Michell of Cloisters for telling me about this case]

Paternity Leave

Last month the DTI issued - and, curiously, immediately buried - its response to its consultation on additional paternity leave and pay.

The government has decided to grant employed fathers a new right of up to 26 weeks' Additional Paternity Leave, some of which could be paid, if the mother returns to work. Draft Regulations will be issued, and put out to consultation, next year. Click here to view the full response.

The response paper is hidden deep within the bowels of the DTI website. Unusually, no press release was issued, nor was this announced on the DTI's 'What's New' page. No doubt this was an oversight but - hey - that's open government for you!

[Thanks to Gaby Charing, Policy Adviser (Discrimination & Employment Law) to the Law Society's Law Reform & Legal Policy Team for telling me about this]

When is a disclosure not a disclosure?

In Bolton School v Evans, the Court of Appeal handed down an important decision dealing with the extent of what does (and does not) amount to a 'disclosure' under the Public Interest Disclosure Act 1998.

Michael Evans was an IT teacher at Bolton School. He resigned and claimed constructive dismissal, following the imposition of a formal warning from the School after he disabled some of the service accounts on the Respondent’s computer network from a pupil’s PC in order to demonstrate flaws in the network’s security, having obtained permission to do so in advance.

He claimed he had suffered a detriment as a result of disclosing the Respondent’s breach of its data protection obligations. The Respondent claimed that the Appellant was disciplined for his misconduct in ‘hacking’ into the computer system, and not for any act of disclosure.

Buxton LJ, giving the judgment of the Court, held that in section 43B of the ERA, the word ‘disclosure’ should be given its common meaning, which limits disclosures to the utterance of the words to the employer about the breach of their obligation, and does not extend to any of the surrounding circumstances. The Court rejected the Appellant's arguments that it is necessary to view the circumstances surrounding the utterance as part of an "entire disclosure transaction".

The Appellant is seeking permission to appeal to the House of Lords, which has not yet dealt with a whistleblowing case.

Bolton School v Evans

Young man, theres no need to feel down...

Last week, in YMCA Training v Stewart, the EAT (Underhill J. presiding) handed down an important decision on the statutory dismissal procedures.

Most of the decision is by a majority (one of the wing members dissenting), but it is unlikely that other courts will take a different view. The EAT held:

• an initial investigatory meeting can amount to a Step 1 meeting (paras. 9 and 11)
• the decision to dismiss can legitimately be communicated during the Step 2 meeting (obiter, para. 16), although the interesting question as to position if the decision is already made (i.e. a 'sham' procedure) did not fall to be considered
• by way of assumption (rather than discussion), that the Alexander v Bridgen Enterprises line of authorities are correct in that when considering whether the employer would still have dismissed if it had followed a fair 'procedure', the word 'procedure' should be interpreted widely rather than narrowly.

This is an important case - and one worth reading. Read YMCA v Stewart - but don't click here.

[Thanks to Edward Mallett of Littleton Chambers, who successfully represented the Appellant, for sending me this decision.]

Inconsistent Decisions

The EAT has handed down a useful decision dealing with inconsistent sanctions by employers during the dismissal process.

A firm of solicitors dismissed one of their solicitors, mainly for missing a limitation deadline. At least one other solicitor had not been dismissed for that reason in the past.

Overturning a finding of unfair dismissal, HHJ Richardson held that the authorities, in particular Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, make clear that questions of disparity with earlier treatment must not be allowed to supplant the statutory test under ERA s98(4). As the ET had found that the substantive treatment of the Respondent was fair, the procedures were reasonable and the dismissal was amongst the band of reasonable responses, by finding that the Respondent was unfairly dismissed it had "lost sight of the true question posed by the statute".

Also overturning the ET's findings of discrimination, the EAT stated at paragraph 37 that the key question was whether the decision to dismiss was wholly, or in part, on grounds of race. If the burden of proof transferred, the employer had to show that the decision to dismiss was not taken on racial grounds. If they succeeded in proving that matter, the fact that they might have previously treated another employee of a different race leniently was not to the point.

Levenes Solicitors v Dalley

Update: High Court Challenge to Age Regulations

Heyday's challenge to the age discrimination regulations opened in front of the Divisional Court this morning. Heyday contends that 'forced retirement' at age 65, permissible under the UK Age Regulations, is inconsistent with the EU Equal Treatment Framework Directive,

Perhaps unsurprisingly, the Court has referred the question to the ECJ (the precise questions to be referred are to be drawn up for approval by the Court). So it looks as though we will be waiting for at least a year for an answer...

Confidential Information Injunctions

The Court of Appeal has handed down a decision confirming that a (new) employer who fails to give suitably swift undertakings not to use confidential information which an employee brings over from his (old) employer should pay the costs of any injunction application.

The (old) employer, on discovering that the employee had gone to work for a competitor, asked for undertakings that the (new) employer would not encourage the employee to breach an express term of his contract relating to confidential information. The (new) employer ignored the first letter and, in response to a second letter, simply wrote back and said it was investigating the position (without giving any undertaking). The (old) employer then issued an application for an injunction, following which the (new) employer gave an appropriate undertaking.

The Court of Appeal, overturning the judge, held that the (old) employer should be entitled to the costs of the injunction application in these circumstances. The (old) employer had effectively won the case by obtaining the undertakings. The judge's refusal to award costs was erroneous as a matter of principle.

The case provides comfort to those advising employers of departing employees, demonstrating that they can act swiftly and be confident that they will not be penalised in costs.

[Thanks to Neil Russell of BD Laddie, who acted for the successful Appellant, for telling me about this decision]

Fox Gregory v Spinks

Tribunal Award Limits - Annual Increases

The Employment Rights (Increase of Limits) Order 2006 has been laid before Parliament, containing the increase in limits to tribunal awards which come into force on 1st February 2007.

The key increases are as follows:

* compensatory award for unfair dismissal - £60,600 (from £58,400)

* a week's pay (for basic award, redundancy payments etc.) - £310 (from £290)

The Employment Rights (Increase of Limits) Order 2006

Local Authority Pensions

Michael Duggan from Littleton Chambers has Emailed me to point out another important set of Regulations dealing pensions. As I can't face doing my own summary, I simply reproduce his Email (with his permission)..

From: Michael Duggan
Sent: 17 November 2006 11:18
To: Daniel Barnett
Subject: Pensions and Age Discrimination

Dear Daniel,

Further to you newsletter this morning - there are also little publicised changes to local government pension schemes which will have an important impact on many thousands of people. As you know, one of the attractions of local government is that you get a decent pension and if you leave early, in some circumstances you get added years. The Government was initially doing away with the discretion in this respect but have now put in transitional provisions so that anyone made redundant before 1st April 2007 and who would have qualified under the 2000 regs will now be able to argue that the LA should exercise its discretion in their favour (and there appear to me to be strong arguments that, if they have always awarded added years, custom and practice etc applies).

Councils are still going to be able to make an award of added years by way of augmentation. The new regulations also provide that they need to have a written policy on how they will exercise their discretion. LAs will no doubt argue that, once the transitional provisions disappear after April 2007, it is likely to be discriminatory to award added years.

The upshot is that people who have worked for many years in Local Government are having benefits taken away from them by virtue of regulations which will benefit one group (however defined) on the basis of age but will actively disadvantage the older worker with many years of service.

Further, how does this all fit in with Schedule 5 of the Age Regs which appears to preserve existing rights; See Schedule 5 paragraph 9 -surely one of the most obscurely drafted provisions ever.

Since LAs must now have a written policy there are going to some interesting issues that arise as to how it will interact with the Age Regs. I would be interested in any views about what LAs can now do with regard to added years, what the policy should contain and what is happening 'on the ground'.

If you can bear to look at them the pension Regs are here: THE LOCAL GOVERNMENT (EARLY TERMINATION OF EMPLOYMENT) (DISCRETIONARY COMPENSATION) REGULATIONS 2006 S1 2006/2914

Michael

Unfair Contract terms act and Unreasonable Bonuses

The Court of Appeal has handed down an important decision in Commerzbank AG v Keen. It is important for two reasons.

First, section 3 of the Unfair Contract Terms Act 1977 does not apply to employment contracts. The point arose because the employer, a City bank, relied on a clause providing that the employee had to be in employment as at the date of the bonus to receive any bonus. The employee argued that such a clause amounted to an unreasonable exclusion clause seeking to avoid paying remuneration on a 'value received' basis for work done during the year.

At paragraph 101 of the lead judgment of Mummery LJ it says that as a matter of principle and construction it cannot be argued that under a term for remuneration (in this case a bonus payment), the employee "deals as a consumer" with their employer for the purposes of s3 of UCTA. To extend s3 to payment provisions in respect of personal services rendered by an employee would be inappropriate, artificial and unconvincing. The terms were not the standard terms of the business of banking, rather they were the terms of remuneration of certain employees of the Bank. Mummery LJ described the existing EAT authority on this point, Bridgen v American Express as "not entirely satisfactory" and "not binding on this court."

Secondly, and importantly, Mummery LJ also considered (at paras. 58-60) the hurdles an employee must surmount to show that a bank's discretionary bonus decisions were irrational or perverse. The burden was on the claimant to establish that no rational bank in the City would have paid him a bonus of less than his line manager recommended. He would also be expected to present independent evidence, expert or otherwise, supporting his claim.

Kommerzbank AG v Keen

Age Discrimination: Pensions Exemptions

Calm down everyone. The Employment Equality (Age) (Amendment No.2) Regulations 2006 have been laid before Parliament.

Coming into force in just a fortnight (1st December 2006), the regulations make substantial amendments to Schedule 2 of the main Age Regs. They clarify and extend many of the exemptions relating to trustees and managers of pension schemes.

Sorry - just paused a moment to yawn. Anyway, carrying on, it's always nice to see the government complying with the Cabinet Office's Better Regulation Guidelines (which say that companies should have a minimum of 12 weeks to comply with new regulations). Still, it's not like we haven't known age laws were coming since 2000...

And if anyone is still reading, the CBI have hailed these amendments as a great victory for common sense - see their press release.

The Employment Equality (Age) (Amendment No.2) Regulations 2006

Statutory Grievance Procedures: Time Limits

A great description by a High Court Judge of the 2004 procedures as "rebarbative" (go on, look it up here!).

In this case, the EAT rejected the argument that the three-month extension of time following sending a grievance does not engage if the grievance is sent before the effective date of termination.

Curiously, the argument is technically correct (if you suffer from a virulent strain of pedantry). But the result is absurd, and the EAT had no hesitation in dismissing the appeal. Underhill J. held that the extension of time for presenting a claim arises even when the grievance is lodged before the effective date of termination, and therefore not technically 'within the normal time limit'.

Curiously, the point arose in two cases on which judgment was handed down by the same judge on the same day. The main case is HM Prison Service v Barula, and the reasoning was affirmed then in Lewisham v Colbourne

DDA: Reasonable Adjustments on Redundancy

The Court of Appeal has handed down its decision in NTL Group Ltd v Difolco.

Mrs Difolco, who was partially paralysed and could only work part-time, was made redundant. She was offered the chance to apply for another job as being suitable alternative employment. This other job was advertised on a full-time basis but she was told that (should she be appointed) the employer would consider changing the role to part-time. However, she refused to apply unless the job was changed to part-time before she applied.

She claimed that by failing to convert the job to part-time, the employer had failed to make reasonable adjustments.

The Court of Appeal, disagreeing with the EAT, held that this could not amount to a failure to make reasonable adjustments. Until Mrs Difolco had applied for the job, no duty to make reasonable adjustments arose. As Laws LJ said: "If the mere fact of advertising for a full-time job can constitute an 'arrangement' for the purposes of the DDA then on the face of it it would potentially discrimination against the whole innominate class of possible disabled applicants for the job. That, it may well be thought, would be a reductio ad absurdum." (para. 13)

NTL Group v Difolco

New DTI Guide: Rights and Responsibilities of Employees

It's competition time...

The DTI has published a new 96- page guide for both employers and employees, entitled 'Rights and Responsibilities of Employees'.

It is an extremely impressive summary of employment law: comprehensible, thorough and written in plain English. View it here:
http://www.dti.gov.uk/files/file34565.pdf

So, who can do better? Why not send me your suggestions for 'rights and responsibilities for employees'. Who knows, I might even publish the most amusing...

Flexible Working for Carers

The DTI has, this morning, announced who will qualify as a 'carer' under the new right for carers to request flexible working (coming into force on 6th April 2007 under the Work and Families Act 2006).

The definition of 'carer' will cover any employee who is or expects to be caring for an adult who:

• is married to, or the partner or civil partner of the employee; or
• is a 'near relative' of the employee;
• falls into neither category but lives at the same address as the employee.

The 'near relative' definition includes parents, parent-in-law, adult child, adopted adult child, siblings (including those who are in-laws), uncles, aunts or grandparents and step-relatives. The DTI estimates that this definition will cover about 80% of carers.

View DTI Press Release

[Thanks to Eugenie Verney for telling me about this press release]

Non-compliance with Statutory Dismissal Procedure

The EAT has held that there is no free-standing right to bring a claim before a tribunal for breach of the statutory procedures.

The Claimant lacked the one-year qualifying period for claiming unfair dismissal. Nevertheless, he argued that he could bring a claim for breach of the statutory dismissal procedure, as contained in the Employment Act 2002. HHJ McMullen QC upheld the tribunal's decision to strike out his claim.

This decision is plainly correct and one would have thought relatively uncontroversial. However, the surprising number of times one sees Claimants running this argument in correspondence makes this case a useful piece of ammunition in rebuttal.

Scott-Davies v Redgate Medical Services

Collective Redundancies and Protective Awards

In an important decision, the EAT (Burton J. presiding) has held that employees who are not of a description in respect of which a trade union is recognised by their employer are not entitled to 'cash in' on a protective award obtained by the union.

Recognising that allowing such employees to obtain the benefit of a protective award would be a more elegant (and less litigious) alternative to requiring them to bring their own individual tribunal claims under TULR(C)A s189, Burton J. held that the wording of ss188 and 189 did not allow such employees to rely on the protective award obtained by a recognised trade union.

As this case involved an untested (and important) point, permission has been given to appeal to the Court of Appeal. It is. however, unclear whether any appeal will in fact take place as the amounts of money involved do not appear large and the EAT has strongly encouraged settlement.

TGWU v Brauer Coley (in administration)

New from ACAS - Sexual Orientation

Acas has just launched its eight e-Learning packgake - this one on Sexual Orientation. The course focuses on:

• defining sexual orientation and gender reassignment
• explaining the legal aspects of the sexual orientation Regulations
• explaining how the Regulations affect recruitment and existing employees
• exploring issues around gender identity

... and finishes up with a quiz so you can see how much you have learned. You can also find a sexual orientation audit tool on the Acas website.

Acas E-Learning Guides

Ministers of Religion can claim Unfair Dismissal

The EAT has, today, handed down a decision holding that ministers of religion can claim unfair dismissal.

Ministers of religion have been regarded by the UK courts as appointed to a holy office and not as employees of a church. In December 2005, the House of Lords held that they might qualify as employees for the purpose of discrimination claims, but left the position regarding unfair dismissal open (see bulletin 15/12/05).

The EAT (HHJ Ansell presiding) has now held that the old cases stating that ministers are not employees for the purposes of unfair dismissal claims cannot stand: "if the relationship between church and minister has many of the characteristics of a contract of employment...these cannot be ignored simply because the duties are of a religious or pastoral nature" (para. 27).

New Testament Church of God v Reverend Sylvester Stewart

s98A Partial reversal of Polkey

The EAT has handed down another decision dealing with the controversial interpretation of s98A(2) of the Employment Rights Act 1996.

This provision, often referred to as the partial reversal of Polkey, states that "a failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded...as by itself making [the dismissal unfair] if he shows that he would have decided to dismiss the employee if he had followed the procedure." This defence can only be invoked if the employer has complied with the statutory dismissal procedure.

Earlier this year, two divisions of the EAT handed down two judgments dealing with what was meant by 'a procedure'.

In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that the word 'procedure' applies to any procedural failing, including (say) general breaches of the Acas Code of Practice. By contrast, in Mason v Ward End Primary School, HHJ McMullen adopted a narrower approach, holding that procedural defects which were capable of being ignored by virtue of s98A(2) applied only to formal procedures, such as those incorporated into a contract or handbook.

In a judgment handed down this morning, the EAT in Kelly-Madden v Manor Surgery has "diffidently" preferred the approach in Alexander v Bridgen. Elias P., giving the judgment, explains why he believes parliament intended the partial reversal of Polkey to be wider rather than narrower (paras. 34-49).

The position remains that there is a conflict of authorty on this very important issue. Clarification from the Court of Appeal, please...

Kelly-Madden v Manor Surgery

[Thanks to Rebecca Thomas, Counsel for the employee, who referred me to this decision]

Claim Forms - Missing Information

The EAT has held that the failure by a Claimant to include her address on her Claim Form (as required by the rules) is not necessarily a fatal omission.

Under rules 1 and 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, all Claim Forms must contain certain required information or they will not be accepted. Amongst the required information is "each Claimant's address".

Ms Hamling left the address space blank, but completed box 12 with the details of her solicitors (including their address).

In a wonderful example of judicial sophistry, the EAT held that the phrase "The Secretary shall not accept the claim...if it is clear to him that...the claim does not include all the relevant required information" meant that the Claimant's address had to be relevant to the substance of her claim - and it was not (paras. 36-37). This is nonsense - the word 'relevant' refers back to the list of mandatory items to be included in a claim form (set out in rule 1), and not to a value judgement on the importance or significance of that information.

The EAT went on to hold, following Burton J. in Richardson v U Mole, that the Claimant's address was not a material omission (paras. 38-39). This is a much better reason for its decision!

Ultimately, this again shows the appellate courts' willingness to stretch the wording of the rules so as to prevent technical points depriving a Claimant (or Respondent) of justice.

Hamling v Coxlease School

Statutory Disciplinary / Grievance Procedures

The EAT has handed down a decision (London Borough of Lambeth v Corlett) dealing with two points on the statutory dispute resolution procedures:

Extension of Time
The EAT held that a breach of contract claim dealing with failure to pay notice (following a summary dismissal) fell within the 'dismissal' provisions of the 2004 regs, so as to attract an extension of time for bringing a claim, rather than the 'grievance' section (which does not actually apply to breach of contract claims). The EAT's reasoning is possibly controversial (paras 11 and 12) but the result seems a fair one, to make up for the political decision by the DTI to exclude breach of contract claims from the extention of time rules.

Discrimination: grievances against fellow employees? On 31/8/06 I reported Bissett v Martins, which is authority for the proposition that the statutory grievance procedures do not apply when an employee brings a discrimination claim against a fellow employee, criticising the reasoning of the EAT.

HHJ Peter Clark has now officially cast doubt on the reasoning in Bissett and stated that, whilst he did not need to decide the point, it will fall for decision in the future as to whether Bissett was correctly decided (paras. 25-27).

London Borough of Lambeth v Corlett

Update: High Court Challenge to Age Regulations

As reported in my bulletin of 4/7/06, Heyday (an organisation created by and closely associated with Age Concern) has issued a judicial review application in the High Court challenging the legality of the Employment Equality (Age) Regulations 2006.

In essence, they argue that the Regulations permit forced retirement at age 65, which is inconsistent with the EU Equal Treatment Framework Directive.

At a recent permission application, the Divisional Court has 'rolled-up' the permission and substantive JR applications, to be expedited and heard together on December 6th 2006.

For Heyday's report, see here. And it's worth having a look at their interesting 'Six myths about Forced Retirement', on pages 8 and 9 of this document.

Enhanced Redundancy Payouts

The Court of Appeal has, today, handed down judgment in Keeley v Fosroc International Ltd..

For once, it's easy to summarise. Here goes...

Where a staff handbook contains details of an enhanced redundancy payment, there is a presumption that it has contractual status (rather than 'policy' status) and can be relied upon by an employee to bring a breach of contract claim.

If you're running any cases where this is an issue, paragraph 34 is the one to read.

Keeley v Fosroc International Ltd.

Strike Outs

The EAT has handed down an interesting and practical decision dealing with strike outs.

The employer had been in breach of various tribunal orders. It then turned up to a two-day tribunal hearing, having not peviously served witness statements, clutching a 26-page statement which the Claimant was unable to deal with. The tribunal debarred the employer from defending the liability hearing, on the basis a fair trial was not possible, but allowed it to contest quantum.

The EAT upheld the decision to debar the employer from contesting liability. Importantly (and usefully for defaulting litigants), the EAT pointed out that an adjournment, with the consequent delay, is not usually going to be enough to mean a fair trial is not possible - see para. 17.

However, the two additional factors which meant a fair trial was not possible were:

* the employer had seen the Claimant's statements before drafting its own, giving it an unfair advantage (para. 14); and,

* the Claimant's barrister was acting pro bono, and s/he might not have been available at any adjourned hearing (also para. 14).

Premium Care Homes v Osborne

Equal Pay

The ECJ has, today, handed down its decision in Cadman v Health & Safety Executive (see bulletin 18/10/04 for more information on the reference to the ECJ).

Departing from the Advocate-General's opinion, the ECJ held that it is not necessary for an employer to provide objective justification for pay disparities which arise as the result of 'length of service' criteria. The two key points from the judgment are:

• "since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard"
• "where a job classification system based on an evaluation of the work to be carried out is used in determining pay, there is no need to show that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better."

The case will now (October 2006) go back to the Court of Appeal to decide whether the points raised on behalf of Mrs. Cadman amount to "serious doubts" as to whether it was "appropriate" for the HSE to use of length of service in setting pay levels designed "to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better".

With thanks to www.emplaw.co.uk for allowing me to reproduce their case summary

Cadman v Health & Safety Executive

Its all happening Sunday...

Sunday, 1st October 2006 sees new employment legislation come into force. Here are the highlights...

Age Discrimination
Yup, we must have all missed that one. Full details here.

New rights for mums
Expectant women who are less than three months pregnant as on 1st October get various new rights with effect from 1st April 2007. Key points include six months' ordinary maternity leave, six months' additional maternity leave - irrespective of length of service. Also, employers can make 'reasonable' contact with women on maternity leave, without fear of being sued for constructive dismissal, sex discrimination and everything else under the sun. Likewise, women can do some work whilst on maternity leave without losing their entitlement to SMP. Importantly, those returning early from maternity leave will need to give eight weeks' notice (previously 28 days). Full details here.

Gangmasters
It becomes a criminal offence for gangmasters to operate without a license. Frankly, I wouldn't know what an unlicensed gangmaster looked like if he kicked me in the teeth (which he probably would!).

Minimum Wage
Increases to £5.35 for those aged 22+, £4.45ph for 18-21 year olds, and £3.30ph for 16 and 17 year olds. Oh yes, and 25p ph for lawyers doing criminal legal aid. Details here.

Collective Redundancies
Section 193 of TULR(C)A 1992 is amended to provide that notice of redundancy must be given to the DTI at least 30 days before giving notice to terminate an employee's contract of employment (rather than before the actual dismissal date). Sounds like Junk to me (think about it!).

Age Discrimination - Superb Resources Page

The Age Positive website has put together a fantastic page of links and resources for age discrimination. Links/resources include:

• precedent letters to employees
• an age-bias free application form
• all the official Acas and DTI guidance

View Age Positive Links / Resources Page (you'll need to scroll down to the bottom when you open the page)

Statutory Dismissal Procedure

The EAT has handed down an important decision on the necessary content of a step 1 dismissal letter.

An employee was dismissed for being found in a company van, about to drive, having consumed alcohol. He was in breach of a 'zero tolerance' rule. The step 1 letter simply referred to ""conduct which fails to reasonably ensure Health and Safety of oneself and others."

The EAT held that that the letter was sufficient to comply with step 1 of the statutory dismissal procedure (adopting an analogous position to the grievance letter cases such as Shergold).

Further, if the words of what is put forward as a Step 1 letter are ambiguous or a Tribunal is doubtful as to whether they are sufficient, the Tribunal is entitled to look at the whole context, including whether the employee knew what the allegations against him were, in deciding whether there had been compliance with Step 1. Interestingly, the tribunal left open for another day the question of whether just putting 'misconduct' in the letter would suffice (para. 49).

Draper v Mears Ltd

Amending Claim Forms to add newly accrued claims

The EAT has held that it is permissible to amend a Claim Form, so as to include a claim which did not exist at the time the Claim Form was originally presented.

To put it more technically, an Employment Tribunal has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principle set out in Selkent Bus Company v Moore.

This is an important procedural decision - previously it was standard practice for an employee to have to issue a second Claim Form and apply for the two cases to be heard together.

The EAT's reasoning is at paragraphs 61-63, and is very much a (sensible) policy argument.

The case is also authority for what might seem the uncontroversial proposition that a successful appeal against dismissal, taking place after a fixed term contract would otherwise have expired, does not have the effect of extending the employee's employment beyond the agreed date of expiry of the fixed term contract.

Prakash v Wolverhampton City Council

Grievance Procedures and Limitation

The Employment Appeal Tribunal has held that time limits are not extended under the statutory dispute resolution procedures, where an employee brings a discrimination claim against another employee.

The Claimant brought a race discrimination claim against her employer and the individual she claimed had discriminated against her. The claims were presented over three months, but less than six months, after the discrimination allegedly took place.

As against the employer, the three-month limitation period was undoubtedly extended to six months following her submission of a step 1 grievance letter.

However, the EAT held that there was no extension of time in respect of the claim against the fellow employee, as the statutory grievance procedure did not apply - and therefore the provisions extending the limitation period did not engage. Accordingly the claim was prima facie out of time.

The conclusion is undoubtedly correct. It is quite plain from the wording of the legislation that the statutory dispute resolution framework is not intended to apply to disputes between fellow employees - thus the result of this case is unimpeachable.

However, the EAT's reasoning in reaching that conclusion was (in part) flawed, as the EAT relied on s30 of the Employment Act 2002. This provides that the statutory grievance procedures are deemed to be implied into the contract of employment - and since the Claimant had no contract with her fellow employee, the statutory grievance procedure could not have applied. This reasoning is incorrect as s30 has not been brought into force (the DTI is reviewing this, amongst other matters, later this year).

Bisset v Martins & Castlehill

[Thanks to Sandy Kemp of Simpson & Marwick, who represented the Respondent, for passing me this decision.]

Mutuality of Obligation

The EAT has, in a decision handed down yesterday, neatly circumvented the requirement for mutuality of obligation in an employment contract.

The Claimant, a TV reporter for ABC, was employed under a framework agreement whereby ABC was obliged to offer him at least 100 days' work a year, and he was entitled to either accept or refuse the assignment(s).

The employment tribunal held that there was no mutuality of obligation, since the Claimant was not obliged to accept any work.

The EAT, striving to reach a decision which was plainly fair on the facts (read the judgment!), held that there was an implied obligation for the Claimant to decide whether to accept or refuse assignments in good faith. Thus mutuality could be implied into the arrangements, and the Claimant achieved continuity of employment to bring an unfair dismissal claim.

The judgment also contains some interesting (but largely fact-sensitive) comments on the scope of ERA 1996, s100 (automatically unfair dismissals for health & safety reason).

ABC News International v Gizbert

Judicial Mediation Plot

A new Judicial Mediation Pilot Scheme has been launched.

With the parties' consent, the case will be stayed pending mediation by a full-time tribunal chairman (specially trained for the purpose). The mediation can last for up to two days.

It applies to sex, race and disability discrimination cases, normally where there is an ongoing employment relationship. The trial is running for 6-12 months in Birmingham, London Central and Newcastle (Newcastle will also be mediating equal pay claims).

A guidance note for parties is available, giving further information about the pilot scheme. I've got a rather poor faxed copy of it here, but better copies are probably available somewhere!

[Thanks to Ed McFarlane of RBS Mentor for telling me about this.]

2004 Workplace Employment Relations Survey

The DTI has today published the first findings from the 2004 Workplace Employment Relations Survey. This is the fifth survey in the series - previous surveys were conducted in 1980, 1984, 1990 and 1998.

It provides an up to date account of the state of employment relations in Britain, together with information on changes that have occurred in workplaces since the last survey was conducted.

They survey covers methods of recruitment, workplace consultation, pay and benefits, workplace conflicts (such as disciplinary and grievance procedures), equal opportunities, work-life balance and other fascinating miscellanea. The summary is at page 35.

View report (large .pdf file - takes 30 seconds to download)

Paying Tax Twice

The heading makes this case sound boring, but it is important.

This case is authority for the proposition that HM Revenue and Customs is entitled to charge an employer full tax and NI under the PAYE regulations, where the parties have wrongly viewed the employee as self-employed, without giving credit for the tax and national insurance already paid directly by the 'employee'.

Mr Bone and his employer genuine believed he was self-employed. For some ten years, he sent invoices and was paid gross. He completed annual accounts and paid his own tax.

The Inland Revenue (as it was then called) then decided that he was employee rather than self-employed, an assessment with which the Special Commissioner agreed. Following a failure by the employer to agree back-tax, the Revenue levied a tax determination for the full amount of tax, without giving credit for the tax which the individual had been paying each year.

The Special Commissioner upheld this approach. He suggested that the Revenue negotiate an appropriate settlement to give credit for the tax already paid, but he had no power to order such credit.

The effect of this decision is that the Revenue can recover tax twice in a situation where an individual has been paying tax (wrongly) as a self-employed person. Often the individual will be able to recover his own payments of tax in subsequent years; however (as here), sometimes the payments date back too far and the employee will have lost the right to claim back previous overpayments.

Demibourne Ltd v HM Revenue & Customs

Reasons

Regulars in the EAT will be all too familiar with 'reasons' appeals, where it is argued that a tribunal failed to give a sufficient explanation of why they reached their conclusions - hence making it impossible to see whether they fell into an error of law.

The seminal case on this is English v Emery Reimbold (2002, CA). The Court of Appeal has now heard another case, which it describes as 'following on' from English.

In McLoughlin v Jones, the Court of Appeal had to decide on the impact on the decision if one of several reasons given by a judge turns out to be wrong.

Arden LJ, giving the leading judgment, robustly emphasises the reluctance of an appellate court to interfere with the decision below. Her judgment is lengthy, involving a trawl through findings of fact (in a professional negligence case).

The core paragraphs are paras. 72 and 74. The Court holds that a first instance decision should not be overturned where the "overriding reason for rejecting the claim remains" - notwithstanding the presence of four errors in the court's decision.

Arden LJ continues to say (para. 74), "It is necessary, in my judgment, to look at the imperfections in the judgment as a whole, cumulatively. Even so, they are not in my judgment to shake the foundations on which the judgment was based".

'Shaking the foundations of the judgment' - a pretty high test? Certainly one which, if followed by the EAT, will result in far fewer 'reasons' appeals succeeding (or being allowed through the sift).

McLoughlin v Jones

Age Discrimination Questionnaire Published

The DTI has, this morning, published the official age discrimination questionnaire (.pdf document). It is in similar form to questionnaires under other pieces of discrimination legislation.

The new questionnaire repackages, in a more attractive and user-friendly form, the technical questionnaire set out in Schedules 3 and 4 of the Employment Equality (Age) Regulations 2006.

No duty to pay full pay to disabled employee when off sick

The Employment Appeal tribunal has handed down an important Disability Discrimination Act case, dealing with whether a failure to pay disabled employees full pay when off sick is either a failure to make reasonable adjustments, or disability-related discrimination.

The employer (HM Revenue & Customs) offers six months' full pay to all employees who were absent from work on grounds of health, followed by six-months on half pay. Mrs O'Hanlon, who was clinically depressed, claimed that the failure to pay her during her absence at full pay was either a failure to make reasonable adjustment to compensate for her disability, or unjustified disability-related discrimination.

The EAT held:

• it will be "a very rare case indeed" where the duty to make reasonable adjustments entails paying a disabled absent employee more than a non-disabled absent employee (para. 67), as to do so would mean "the Tribunals would be entering into a form of wage fixing for the disabled sick" (para 68). It would also fall foul of the DDA's policy objective, which is to assist the integration of disabled people into the workplace. If the DDA required employers to provide or enhance long-term sick payments to disabled people, it would actually be providing a disincentive to them returning to work (para. 69)
• a reduction of pay because of sick absence is - where the employee is disabled - disability-related discrimination. The reason for cutting pay is that the employee is absent for 26 weeks, and the underlying reason for her absence was her disability (paras. 83-87)
• however, the disability-related discrimination (not paying full pay) was justified. Once it is established that the duty to make reasonable adjustments does not require an employer to pay full pay to a disabled absent employee, it is very easy to establish that a failure to make such payment is justified.

As readers know, once in a while I recommend reading decisions simply for the clarity of reasoning and the useful overview of the law. This is one of those cases. Read it.

O'Hanlon v HM Revenue & Customs

New Age Positive Guidance Notes

Age Positive, the organisation set up by the Department of Work and Pensions, has issued a series of guidance notes entitled 'The Facts, not the Myths'.

Without wanting to be dismissive of the others, the two which are worth looking at:

• Insurance and age in the workplace - the facts, not the myths; and,
• Age, health and employability - the facts, not the myths"

The full list can be seen on their news page.

Of course, the best guide to age discrimination (at least, in my humble opinion) remains my 170-page analysis notes on age discrimination.

Smoking Ban - Draft Regs

Fancy a cigarette? It'll cost you £50...

The draft Smoke-Free (General Provisions) Regulations have been published for consultation by the Department of Health. The consultation period expires on 9th October 2006.

In a nutshell...

• all work premises are to be 'smoke-free' if enclosed or "substantially enclosed" - defined as meaning premises with a ceiling unless more than 50% of the 'wall' area is open to outside.
• all employers (or, more accuately, occupiers of the premises) must display a prominent 'No Smoking' sign. The sign must be of at least A5 size and contain the 'No Smoking' logo, together with the words "No Smoking. It is against the law to smoke in these premises except in a designated room."
• company cars are deemed to be entirely non-smoking if they might be used by more than one person, unless it is a convertible car and the roof is open
• there is an exemption for bedrooms in residential accommodation
• there is no exemption allowing employers to have designated 'smoking rooms'
• an employer who fails to display a prominent 'No Smoking' sign is subject to a fixed penalty of £200 (discounted to £150 if paid within 15 days). If unpaid (or the fixed penalty notice is challenged), a fine of up to £1,000 (and a criminal record) may be levied
• an employee (or visitor) who is caught smoking is subject to a fixed penalty of £50 (discounted to £30 if paid within 15 days). If unpaid (or the fixed penalty notice is challenged), a fine of up to £200 (and a criminal record) may be levied
• an employer who fails to take reasonable steps to prevent smoking (and displaying the 'No Smoking' sign is not enough) is liable to a fine of up to £2,500. There is no fixed penalty alternative.

View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)

Reinstating Withdrawn Claims

The Court of Appeal has upheld the EAT's judgment in Khan v Heywood & Middleton Primary Care Trust (see bulletin dated 25/1/06). The case deals with the "lamentable" (para.78) drafting of rule 25 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

The case is authority for the proposition that:

• if a Claimant sends a Notice of Withdrawal to the tribunal, the claim is at an end and the tribunal has no power to reinstate the claim at a later date (despite the wording of rule 25(4));
• if the Respondent subsequently applies (successfully) for the withdrawn claim to be formally dismissed, then the Claimant cannot bring a fresh claim based upon the same or similar facts. If the Respondent fails to secure the formal dismissal of the withdrawn claim, the Claimant is free to issue a fresh claim (subject to limitation issues) based upon the same or similar facts.

It's a complicated judgment. Read it here...

Khan v Heywood & Middleton Primary Care Trust

Statutory Grievance / Tribunal Procedure

The EAT has handed down a decision dealing with an interesting little problem arising from the statutory grievance procedures.

The Claimant brought three discrimination claims to which the statutory grievance procedure applied. In respect of claim 1, she had waited the mandatory 28 days after submitting a step 1 grievance letter before presenting her claim. In respect of claims 2 and 3, the employer had completed its internal grievance procedure and she therefore presented her claims before the 28 day window had elapsed.

The tribunal heard all three claims, stating it would reach a decision on its jurisdiction to hear claims 2 and 3 as part of its substantive decision. It told the parties that if it found it lacked jurisdiction, it would simply express preliminary conclusions on claims 2 and 3. The Claimant would then be able to re-present those claims, as she was still within the extended limitation period.

In the event, the tribunal found in her favour but found it lacked jurisdiction. She presented fresh claims. By agreement, the evidence at the first hearing was allowed to stand as evidence at the second hearing. However, the tribunal refused to allow the employer to adduce further evidence at the second hearing, on the basis that the overriding objective meant the employer should not have a second bite at the cherry. Unsurprisingly, it found in favour of the employee.

The EAT (Elias P. presiding) held that the tribunal was wrong to refuse to allow the employer to adduce further evidence. It held (para. 30) that the employer is entitled to adduce evidence before a tribunal which has jurisdiction to hear the claim.

Interestingly, the EAT was critical of the existence of the 28-day period when an employee cannot present a tribunal claim - particularly in circumstances such as this where the parties had been through the internal grievance procedure within that period, where the bar on an employee bringing a claim was said to be "most unsatisfactory" (para. 29).

Exel Management Ltd v Lumb

Working Time / A "Weeks Pay"

The EAT has handed down a decision dealing with the complicated question of what does (and does not) fall within the category where "the employee's remuneration for employment in normal working hours...does vary with the amount of work done in the period". Readers will be aware that, under s221 of the Employment Rights Act 1996, a 'week's pay' is averaged over 12 weeks when the remuneration varies as above but not (normally) otherwise.

A problem has always occurred where workers are paid commission. Does their remuneration vary depending on work done? This is not straightforward, particularly if their working hours and activities do not change, and the question of whether they secured the 'deal' (and hence the commission) is dependent on luck or external factors.

The EAT (Elias P. presiding) held that where pay is related to output, and output is in turn significantly connected with the level of performance, then it can properly be said that pay varies with the work done. Thus in a typical 'productivity' scheme, where remuneration varies depending on output, a week's pay should be calculated by averaging over 12 weeks and not simply pitching remuneration levels at a specific, frozen, single week.

May Gurney Ltd. v Adshead (& 95 others)

ACAS Annual Report

Acas has today published its 106-page annual report 2005/06.

Key statistics include:

• the Acas helpline answered 908,553 calls, compared to 880,787 last year
• Acas intervention has avoided 73% of potential hearing days (86% if including claims which had been intimated but not presented to the tribunal)
• the Acas website received 1.7 million visits. The most frequently viewed pages are A-Z of work and Rights at Work
• it delivered 2,964 good practice training sessions to over 40,000 delegates
• there were 109,712 applications to tribunals compared to 81,833 last year (an increase of 25%). Unfair dismissal continues to be the largest category of complaint with 35,944 applications.
• the number of requests for Acas to intervene in employment disputes and conciliate between the two sides fell slightly from 1,123 last year to 952 this year. The issue of pay continues to be the single biggest category.

Acas Annual Report 2005/06 (.pdf file, 1Mb)

Working while asleep

The EAT has held, in Anderson v Jarvis Hotels, that a hotel night manager was entitled to be paid for work even when fast asleep.

The manager brought a claim for unpaid contractual wages (note: not under the Working Time Regulations) in respect of a nine month period when he was required to sleep at the hotel overnight. His presence was required in case of emergency (such as fire or flood), and in the nine months, he had only ever been required to work on one occasion (to deal with rowdy guests). On one other occasion he had left the hotel for half an hour, between 3.30am and 4am, and had received a verbal warning as a result.

The hotel argued that 'on call' time, where the risk of actually being required to do something was insignificant, should not be regarded as working time for the purpose of being paid under the contract of employment.

The EAT disagreed, overturning the employment tribunal. It held that time during which the manager was contractually obliged to be present at the hotel was plainly working time, and he was entitled to be paid in respect of it.

Anderson v Jarvis Hotels

Strike Outs

Yet another EAT judgment overturning a chairman's decision to strike out a claim ...

This case is authority for the proposition that a chairman is under an obligation to consider an adjournment (as an alternative to strike-out), even if the parties do not raise the possibility of an adjournment themselves.

All six Claimants were in breach of an order to exchange witness statements two weeks before the hearing (the strike-out application was heard one week before the hearing). Further, three of the six Claimants had failed to comply with an order that they provide a Schedule of Loss (the other three had provided a Schedule, but done so later than the date specified in the Order).

The chairman held that it was not possible to hold a fair trial the following week and struck out the claims. Neither side had raised the possibility of an adjournment.

The EAT (Cox J.) held that it was incumbent on the chairman to consider an adjournment, and to canvass the possibility of adjourning with the parties. It was an error of law to consider only "a fixed moment of fairness" (para. 23). She allowed the appeal and reinstated the claims.

Ridsill v Smith & Nephew Medical

Vicarious Liability: Protection from Harassment

Last week the House of Lords handed down its decision in Majrowski v Guy's & St Thomas' NHS Trust (see bulletin 16/3/05 for the Court of Appeal's decision).

The House of Lords upheld the Court of Appeal's decision, stating:

• an employer's vicarious liability arises under statute unless the statutory provision excludes such liability. In other words, vicarious liability is not limited only to common-law wrongs of employees, but extends to their breaches of statutory duty
• although the construction is finely balanced, parliament did not intend the Protection from Harassment Act 1997 to be an exception to that rule.

Thus employees (and ex-employees) can now bring claims against employers for damages if they are subjected to a course of conduct (meaning at least two incidents) amounting to harassment.

The advantages to an employee (and, concomitantly, disadvantages to an employer of bringing a harassment claim against the employer in the civil courts are:

• deeper pockets - the damages award can probably be met, unlike if the remedy exists only against the individual
• more grounds on which to establish harassment - not just sex, race, sexual orientation, age etc..
• the statutory defence (i.e. that the employer took all reasonable steps to avoid the harassment) is not available to employers. Lord Nicholls described this as "a discordant and unsatisfactory overlap" between the different pieces of legislation (para. 39)
• a six year, rather than a three or six month (depending on whether statutory grievance procedure applies) time limit applies
• unlike in the employment tribunals, costs are normally recoverable
• subject to means (and finding a lawyer who will take on the case!), legal aid is available

Majrowski v Guy's & St Thomas' NHS Trust

Fixed Term Contracts

A quick reminder that next week (10th July) sees the fourth anniversary of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The significance of this anniversary is that, under regulation 8, any employee who has been on a fixed-term contract (or a series of fixed-term contracts) for four years becomes, as if by magic, a permanent employee. There is an objective justification exception, if the employer can objectively justify the fixed-term nature of the contract at the date of the last renewal.

In practical terms, nothing really turns on this (since expiry of a fixed-term contract is just as much a dismissal, for employment law purposes, as a straight sacking). There is one little point of interest, though...

Technically, the employer must (within one month of the fourth anniversary) give the employee a statement of changes to his terms and conditions of employment - so as to provide information as to the length of the relevant notice periods rather than the date of expiry under a fixed term contract (ERA 1996, ss1(4)(e) and (g)). Failure to do so can result in an award of two or four weeks' pay (Employment Act 2002, s38).

High Court Challenge to Age Regulations

Heyday, an organisation created by and closely associated with Age Concern, has issued a judicial review application in the High Court challenging the legality of the Employment Equality (Age) Regulations 2006.

According to their press release, the challenge is based upon the argument that the 2006 Regulations fail to implement the EU Equal Treatment Framework Directive, since the Regulations effectively exclude people over 65 from having a right to work.

Watch this space...

Appeals: New points and perversity

The Court of Appeal has, in part, overturned the decision of the EAT in Unison v Leicestershire City Council. See bulletin of 29/5/05 for the EAT's decision.

This case is authority for the propositions that:

• the fact that a case is of very large value or involves a complex and important point of law is not, without more, an 'exceptional' circumstance allowing a party to raise a new point of law on appeal which had not been raised before the employment tribunal. What is required is something akin to "a pressing public interest" (para. 21)
• the Employment Appeal Tribunal is not permitted to interfere with fact-sensitive assessments, such as the number of days' pay for a protective award (where the EAT reduced it from 20 to 10), unless the tribunal's assessment is plainly wrong in law or otherwise perverse (para. 34).

Unison v Leicestershire County Council

How not to conduct tribunal proceedings...

Whilst I don't normally announce first instance decisions, this case contains such an amusing summary of how not to conduct a tribunal hearing (in the context of a wasted costs order) that I thought it deserved wider distribution. See paragraph 20 for the tribunal's erudite exposition of how not to conduct a case.

The decision is also interesting because of the tribunal's finding that an employment consultant was lying about being a 'not for profit' representative (so as to avoid a wasted costs order) - see paras. 23-27.

Johal v Initial City Link

[Thanks to Simon Shepherd of Schofield Sweeney for sending me this judgment]

When is three months not three months?

The EAT has handed down a judgment dealing with time limits under Regulation 15(1) of the Employment Act (Dispute Resolution) Regulations 2004.

The Claimant resigned on the basis of constructive dismissal and served a combined resignation and grievance letter on the Respondent on 20 June 2005.

He then lodged his tribunal claim on 20th December 2005.

The finding of both the Employment Tribunal in a pre-hearing review, and later at the EAT, were that the claim was served on time. The EAT held that the extension of time under Regulation 15(1) means three months, and not three months less one day.

Rainbow International v Taylor

[Thanks to Helen Kennedy, trainee solicitor at Anthony Collins, who successfully represented the Claimant at both the ET and EAT]

Detriments to ex-Employees

The Court of Appeal has handed down an important decision in Woodward v Abbey National plc.

In 2003, the House of Lords ruled (in Rhys-Harper v Relaxion Group plc) that ex-employees were entitled to rely on the discrimination legislation in connection with victimisation occurring after termination of employment (such as the refusal to provide a reference).

Previously, in 2001, the Court of Appeal had held in Fasipe v Reed Nursing Personnel Ltd. that ex-employees could not rely on the Employment Rights Act 1996 so as to claim protection against detriments occurring after termination of employment, as the legislation only protected employees against detriments suffered whilst in employment.

In the current case, Woodward v Abbey National, the Claimant had complained of being subjected to various detriments - after her employment finished - because she had made a protected disclosure some ten years earlier whilst still employed by the Abbey National.

The employment tribunal, and the EAT, rejected her claim because they considered themselves bound by Fasipe, which they regarded as binding authority for the proposition that the detriment had to occur during employment in order to be actionable under the Employment Rights Act 1996. They considered that the discrimination legislation was a wholly different statutory framework, affected by considerations of European law, and Fasipe remained binding as it had not been expressly overruled by the House of Lords in Rhys-Harper.

The Court of Appeal has disagreed, overturning the ET and EAT. Following extensive analysis of the reasoning in Rhys-Harper by Ward LJ, which is worth reading, it held that the provisions protecting against suffering a detriment in the Employment Rights Act should be interpreted so as to include detriments suffered by ex-employees as well as existing employees.

Woodward v Abbey National plc

Date of TUPE transfers

The House of Lords has handed down a 4:1 ruling in Celtec v Astley, following the ECJ's decision last year.

Upholding the employment tribunal and Court of Appeal's decisions, but on different grounds, it held:

• following the ECJ ruling, a TUPE transfer must take place on a specific date, rather than over an extended period
• employees and employers cannot agree or arrange fo the transfer to take place on a date other than the true legal date of the transfer.

It is a complicated decision, made slightly easier if put into its factual background. In the early 1990s, the Department of Education created Training and Enterprise Councils (TECs) to take over its responsibility for training young people.

A large number of civil servants were seconded from the DofE to the TECs. Three years later, they were offered the opportunity to return to the DofE, or stay with the TECs and be transferred into the employment of the TECs. Thus in 1993, the Claimants resigned from the DofE and signed new contracts with Celtec (the employer)

The TUPE transfer (when the TECs actually opened for business) was found to be in September 1990.

When the Claimants were made redundant in 1998, they claimed redundancy payments based on continuity of employment back to the beginning of their employment with the DofE. Celtec argued that they were only entitled to continuity of employment from 1993.

The House of Lords, in five separate opinions, decided (4:1) that, in fact, the Claimants had all TUPE-transferred to Celtec in September 1990, irrespective of the fact that everyone believed they remained employees of the DofE and had simply been seconded out. Because it was not possible for the parties to agree a different transfer date, the operation of TUPE 'trumped' any understanding or arrangement between the parties. Accordingly, the Claimants were entitled to rely on their continuity of employment with the DofE.

The dissenting judgment (that of Lord Mance) is impressive and worth reading, to appreciate the potential commercial implications of this decision.

Celtec v Astley

[Thanks to John Bowers QC of Littleton Chambers, who represented Celtec, for telling me this decision was published]

Retrospective award for failure to provide written statement of terms and conditions

The Employment Appeal Tribunal has handed down a (short) judgment dealing with whether tribunals are entitled to grant a retrospective award of two (or four) weeks' pay against an employer who has failed to provide a written statement of terms and conditions.

This remedy was introduced under the Employment Act 2002 (section 38). It came into force on 1st October 2004. The EAT has held that an employee is entitled to the award, when judgment is given after 1st October 2004, even if the dismissal was before 1st October and the claim lodged before 1st October.

This decision is likely to prove controversial, although it is likely to have relative little impact as most cases going through the tribunal system will now be dealing with dismissals after October 2004.

Lewald-Jezierska v Solicitors in Law Ltd.

Whistleblowing - No case to answer

The EAT (HHJ McMullen QC presiding) has held that it is normally inappropriate to make a submission of 'no case to answer' at the end of the Claimant's case in whistleblowing cases.

Whistleblowing is a form of discrimination. As with all discrimination claims, it is possible that much of the relevant evidence will come from the Respondent's side. By cutting off a case at half-time, a tribunal denies the Claimant an opportunity to cross-examine the Respondent and seek to elicit favourable evidence - notwithstanding that the burden of proof is on the Claimant to establish a protected disclosure.

Accordingly the EAT set aside the tribunal's decision to dismiss a whistleblowing claim on a submission of no case to answer, and remitted the case to the same tribunal to hear the rest of the evidence.

Boulding v Land Securities

Breach of Contract: Can you recover the excess of £25k in the High Court?

At last, after twelve years of uncertainty, we have an answer. The Court of Appeal has, today, handed down judgment in Fraser v Hlmad Ltd, holding that the excess over £25k in a tribunal breach of contract claim cannot be recovered in the civil courts.

Mr Fraser brought a breach of contract claim in the employment tribunal and the High Court. His Claim Form in the ET expressly reserved the right to pursue the excess over the £25k limit in the High Court.

He succeeded in his employment tribunal claim and recovered £25,000, a shortfall of £55,000 on the full value of his contract claim.

Following a strike-out appliation by the Defendant in the High Court claim, the Court of Appeal held:

• Mr Fraser's wrongful dismissal claim merged into the judment of the employment tribunal on his wrongful dismissal claim
• his cause of action for wrongful dismissal ceased to exist independently of the judgment
• he no longer had any cause of action to pursue in the High Court, even for the excess over £25k
• it is not open to a Claimant to avoid the operation of a cause of action estoppel simply by purporting to reserve a right to make a second claim in the future.

As a postscript, the Court of Appeal recommended that the ETS review their literature to make it clear that wrongful dismissal claims cannot be brought in the High Court to recover the excess over £25k.

Mummery LJ also suggested that Claimants and their legal advisers do not bring wrongful dismissal claims in the employment tribunal unless they are certain they want to limit compensation to £25k. If the Claimant wishes to recover more, the claim should only be brought in the High Court. Finally, he suggested that the DTI reconsider the limits on the jurisdiction of the employment tribunal in respect of claims for wrongful dismissal.

Fraser v Hlmad Ltd

National Minimum Wage

The draft statutory instrument, raising the adult minimum wage to £5.35ph from 1st October 2006, has been laid before parliament. It also increases the minimum wage to £4.45ph for 18-21 year olds, and to £3.30 for 16-17 year olds.

The National Minimum Wage Regulations 1999 (Amendment) Regulations 2006

Holiday Entitlement - Consultation

The DTI has issued a preliminary consultation paper on extending the right to 20 days' paid holiday per year to 28 days' paid holiday.

The additional eight days are intended to represent the eight bank holidays, so as to allow employees a minimum of 20 days' plus bank holidays (although the holiday need not be taken on the bank holidays).

View Consultation Paper

Nurse Chaperones

The EAT has held that an NHS Trust discriminated against a male nurse who was required to have a female chaperone present when administering an ECG to a female patient.

Barts and London NHS Trust has a policy, in common with many other NHS Trusts, of requiring male nurses to be accompanied by a female chaperone when administering an ECG to a female patient, because the procedure would involve touching the patient's breasts. This might give rise to unjustified allegations of assault - hence the desirability of a chaperone. No similar requirement exists when a female nurse administers an ECG to a male patient.

The EAT recognised that such a policy was extremely sensible. Nevertheless, upholding the tribunal's decision, it noted that justification cannot be a defence to direct discrimination and therefore the Trust's policy was in breach of the SDA 1975.

It also held (overturning the EAT) that the male nurse, who felt upset and demotivated, had suffered a detriment - and therefore was entitled to compensation. It was an error of law for the tribunal to find that he had not suffered a detriment simply because no reasonable person could have objected to the policy. To find that was to introduce a justification defence by the back door. The test for establishing a detriment is much broader.

Accordingly the nurse's appeal succeeded. The EAT substituted an award for injury to feelings of £750, which it described as "very much at the lower end of the scale."

Moyhing v Barts & London NHS Trust

North East Equal Pay Litigation

The employment tribunal's decision in Allan v GMB was handed down earlier this week.

In a claim brought by five test Claimants against the GMB, the GMB has been held liable for sex discrimination and victimisation in failing to pursue Middlesborough Borough Council in connection with a long-running equal pay dispute.

The decision (139 pages) is deeply critical of the GMB, including findings that it misled and manipulated its "relatively unsophisticaed" members (paras 7.59 and 7.66), "rushed headlong into accepting an ill-considered pay deal" (para 7.60) and "neglected the interests of the back pay Claimants" (para 7.61).

The tribunal also found that the GMB victimised those of its members who had chosen to be presented by an external solicitor, by impeding the settlement of their claims with the Council, on the grounds that it regarded them as "pariahs" (para. 7.73).

The remedies element of the claim has been adjourned, and the GMB has indicated an intention to appeal. According to an item on the BBC news website, the potential cost to the the GMB is expected to exceed £1,000,000.

View judgment here (7Mb pdf file - please try again later if download does not work due to overburdened website!)

Notification of Redundancy Bill

The Notification of Redundancy Bill 2006, has been introduced as a private members Bill in the House of Commons.

If passed (which is unlikely), it will become a criminal offence for an administrator of an insolvent company to issue notices of redundancy to the workforce, without having first consulted with the employees about the management of the company's affairs, and subsequently waited for at least one month.

Not a very sensible contribution to the 'business rescue' culture!

Notification of Redundancy Bill 2006

Reviews, Rehearings and DDA

The Court of Appeal has handed down its judgment in Taylor v OCS Group Ltd., dealing with issues relating to unfair dismissal and disability discrimination.

Unfair Dismissal
The Court of Appeal stated that the distinction between reviews and rehearings (in connection with appeals against dismissal) is unhelpful. The essential question when deciding whether a dismissal is fair under ERA 1996, s98(4) is whether the employer acted reasonably. There is no rule of law providing that a 'rehearing' can cure earlier procedural defects, whereas a 'review' cannot.

In particular, the Court held:

• if a first hearing is defective, the appeal can cure the defect if the appeal is comprehensive (para. 37)
• to the extent that the well-known case of Whitbread v Mills suggests that a rehearing can cure defects, whereas a review cannot, Whitbread should no longer be cited to tribunals (para. 47)

Disability Discrimination
This part of the judgment is not quite as easy to understand. The Court appears to be stating that, in order to establish a claim of disability-related discrimination under the DDA 1995:

• an employer must have in mind the disability-related reason (para. 70). Unless that reason affects the employer's mind, he cannot discriminate (para. 72)
• but the employer does not necessarily have to intend to discriminate on disability-related grounds. Discrimination can be unconscious as well as intentional (paras. 72-73)

On the facts, an employer who had dismissed a profoundly deaf employee for misconduct, in circumstances where the employee had not had a fair disciplinary hearing because of his inability to understand what was going on, was found by the Court of Appeal not to have been discriminated against disability-related grounds.

Taylor v OCS Group Ltd

Age Discrimination - New DTI fact sheets

The DTI has just published eight 'age legislation factsheets'.

They provide concise advice on topics such as 'objective justification', 'service related benefits', 'occupational pension rights' and 'redundancy'.

To view, click the link below and then follow the links on the right-hand side of the page.

View DTI Age Legislation Factsheets

Acas World Cup Guide

Acas has, this morning, published a really useful set of FAQs, dealing with both employers' and employees' questions about 'sickies', pub lunches and similar issues for World Cup devotees.

View Acas World Cup Guide FAQs

No Response Form - No Costs

The EAT has handed down a decision considering whether it is possible to award costs against a Respondent who fails to submit a Response Form.

It held that a tribunal's jurisdiction to award costs under the rules, when an employer fails to enter a Response, is limited to costs caused or incurred in dealing with one of the express matters set out in rule 9 (essentially making an application for review of a default judgment). The EAT's reasoning was heavily based on the fact that there is no obligation on an employer to enter a Response, thus an employer is not technically in breach of any rule if it fails to do so.

Accordingly, the EAT upheld the tribunal's decision on review to overturn the making of a £5,500 costs order in favour of a Claimant where the Respondent had not entered a Response.

Sutton v The Ranch Ltd

BNP/Racial Discrimination

The Court of Appeal has, this morning, overturned the EAT's controversial decision in Redfearn v Serco.

Serco dismissed Mr Redfearn, a BNP local councillor, following complains by the union that its (predominantly Asian) members objected to working with him. It was common ground that, whilst he was an active member of a political party with unpleasant racial views, those views had not affected the way he conducted himself at work. However, Serco was concerned (following some bad publicity) that employees and clients would be worried about them employing an active BNP local councillor.

Mr Redfearn, who lacked the qualifying period to claim unfair dismissal, brought a claim of race discrimination.

Overturning the EAT, the Court of Appeal held that his complaint did not fall within the Race Relations Act 1976. It was wrong to say that he had been dismissed 'on racial grounds', simply because race issues had been in the employer's mind when deciding to dismiss, and that the decision could be said to be referable to race.

To the contrary, Mummery LJ held that to allow Mr Redfearn's claim of direct discrimination to succeed would "cover cases that would produce consequences at odds with the legislative aim" and "turn...the policy of race relations legislation upside down... Mr Redfearn was no more dismissed 'on racial grounds' than an employee who is dismissed for racially abusing his employer, a fellow employee or a valued customer."

Mr Redfearn's case of race discrimination accordingly fails.

[Thanks to Nick Thomas of Pinsent Masons for telling me about this decision]

Strike Outs

The Court of Appeal has, this morning, handed down a decision reinforcing the extreme nature of a strike-out order and emphasising how infrequently they should be made.

In Blockbuster Entertainment v James, the Claimant:

• in breach of a tribunal order, failed to provide adequate further particulars of his claims
• in breach of another tribunal order, refused to allow the Respondent to photocopy his disclosure documents, and attended the tribunal on day one of a six day hearing with previously unseen documents (including an undisclosed tape recording of an important conversation)
• in breach of yet another tribunal order, refused to sign his witness statement, and attended on the morning of the hearing having made changes without notice to the employer (albeit the changes seem to have been minor).

The Court of Appeal upheld the EAT's decision, overturning the employment tribunal's decision to strike out the Claimant's case. Whilst the reasons are largely fact-specific, Sedley LJ gave the following guidance:

• the first object of any system of justice is to get triable cases tried. The courts are open to the difficult, as well as to the compliant. It does not necessarily matter if the litigant is difficult, querulous and uncooperative (para. 18)
• it is undesirable for a strike-out application to be made (or granted) on the first day of a six day hearing. If non-compliance is serious enough to warrant a strike-out application, this ought to be clear before the trial begins (paras. 19 and 21)
• it is not satisfactory for a tribunal to simply record that a strike out is "the only proportionate and fair course to take". The tribunal's reasons should spell out why a strike-out is the only proportionate and fair course to take (para 20). Although Sedley LJ dos not expessly say this, it would seem desirable for a tribunal to expressly consider other sanctions (such as refusing to admit evidence) and explain why they are insufficient.

[Thanks to John Bowers QC of Littleton Chambers, who represented Blockbuster Entertainment Ltd., for informing me of this decision.]

Injury to Feelings

The Employment Appeal has handed down a (short) judgment dealing with awards for injury to feelings. Although a small-value claim, the decision has general ramifications.

The EAT held that:

• tribunals must not take the size of the employer's organisation into account when assessing injury to feelings (para. 16)
• the fact they took into account the "complete failure" of the Respondent's equal opportunity indicated that the award included a punitive element, which was not permitted in an award for injury to feelings (paras. 19-20)

Accordingly the EAT reduced the injury to feelings award from £5,000 to £4,000.

Corus Hotels v Woodward

Brighton Moving...

With effect from 3rd July 2006, the Brighton hearing centre will move to City Gate House, 185 Dyke Road, Brighton BN3 1TL. According to the tribunal's notice, the new hearing centre is 10 minutes' walk from Brighton station. You can see the new location on this map.

Rumours that the move was prompted by complaints from the junkyard next door that the tribunal building was spoiling the area are hotly denied.

[Thanks to Ed McFarlane of RBS Mentor Services for telling me about the move]

Does a "normal retirement age" transfer under TUPE?

The Court of Appeal has upheld the EAT's decision in Cross v BA, that a normal retirement age does not transfer under TUPE.

The Claimants worked for British Caledonian, who had a retirement age of 60. After its take-over by BA in 1988, they continued to work for BA, whose retirement age was 55.

Some 13 years after the transfer, the Claimants were retired at age 55. They claimed unfair dismissal. BA argued that they had reached the normal retirement age, and therefore could not claim unfair dismissal. The Claimants argued that British Caledonian's normal retirement age was 60, and that this retirement age had transferred to BA under TUPE.

The Court of Appeal confirmed that a 'normal retirement age' is not the same a contractual retirement age, and is not one of the 'rights, powers, duties and liabilities' which transfers under reg. 5 of TUPE. Accordingly the Claimants could not maintain their argument that their normal retirement age was 'frozen', because of the TUPE transfer, at 60 (rather than 55). Since they had reached the normal retirement age of 55, they were not entitled to claim unfair dismissal.

Cross v BA

Costs

This appeal involved the question of whether it was reasonably practicable to bring a claim within three months. The tribunal found in the Claimant's favour, allowing a claim through out of time.

The employer had asserted, in the Response Form, that the claim was "abusive, vexatious and has been unreasonably conducted".

Following the Claimant's win, the employer appealed to the EAT. The employer lost the appeal - essentially on the basis that the question of time limits has been stated, again and again, to be a question of fact.

The point of note in this case is that the EAT awarded costs against the appellant employer. Two points of principle / reasoning were given, namely:

• the fact that the appeal had succeeded at its preliminary hearing was not a talisman against a costs order ultimately being made (para. 28)
• since the employer had, itself, threatened an appliation for costs in the Response Form, "the employers can have little complaint at being ordered to pay the costs of this appeal" (para 29) - a salutory warning to those who routinely include costs threats in pleadings or open correspondence with the other side.

Sims Ltd v McKee

Age Positive Week

Today sees the launch of Age Positive week.

The Age Positive website boasts a new 'Age to Z' guide - an alphabetical guide to age discrimination. Amusingly, the author seems to have got a little lost around 'M', having come up with the idea, 'Marriott Hotel is Positive about Age'.

Of more importance is a live Q&A session with Stephen Timms MP, Minister for Pensions Reform, who is responsible for the government's age awareness campaign. He will be answering questions online between 3pm and 4pm on Thursday, 11th May. Interested people are asked to submit questions in advance.

Narrow Escape for New TUPE

IDS Brief have just sent out a bulletin breaking the news of the near-repeal of TUPE 2006 by the House of Lords.

On Wednesday, a motion to revoke TUPE 2006 was defeated by a narrow vote margin of just 79:77. The attempt to repeal new TUPE was based on an argument that the drafting of new TUPE failed to meet policy aims, particularly in relation to insolvency.

Lord Sainsbury, defending new TUPE on behalf of the DTI, did admit "I do not pretend that the regulations are completely certain in their effect and in their capture." He went on to say, referring to the DTI guidance on redundancy payments when companies are insolvent, that "I concede that it might potentially confuse the reader".

Read the debate in Hansard

Age Discrimination Transitional Provisions

I'm being asked by a number of people to make my flowcharts for the 'right to request not to retire' transitional provisions publicly available.


Here they are...

View transitional priovision flowcharts

Age Discrimination Transitional Provisions

Acas has issued a fascinating discussion paper, setting out its views on the 2004 dispute resolution procedures, the future of the tribunal system and the future of conciliation.

Key points include:

• since the pre-acceptance procedures came in in October 2004, 10% of submitted claims have been rejected at the pre-acceptance stage. Less than half have of the rejected claims have been re-submitted.
• the fixed conciliation period (of 7 or 13 weeks) is not assisting settlement of disputes. Parties are not ready to settle so early on; indeed, the 7 week period can almost expire before large employers receive the papers and allocate the case to the correct person within its organisation. As Acas states, "The seven-week period is proving far too short to offer meaningful conciliation in many cases."
• although Acas has a power to conciliate once the fixed conciliation period has expired, it has taken a policy decision not to do so as if it routinely exercised its power to extend the conciliation period, it would undermine the purpose of the legislation. Exceptional cases where it would conciliate outside the fixed period include cases where a large number of unrepresented Claimants are involved, where there have been delays in receiving paperwork from the tribunal offices, or because of the incapacity of a party due to serious illness.
• due to budget cuts and the new performance measure imposed by the DTI (assessing Acas by the number of hearing days saved, rather than the number of cases settled), Acas has taken a policy decision to reduce the amount of time it will spend conciliating short-period cases (such as deductions from wages, breach of contract and redundancy claims). This is because a settlement in a short-period claim is regarded by the DTI as saving 1/4 day, whereas other types of settled cases are regarded as saving a greater amount of hearing time).

View Acas Policy Discussion Paper

ACAS Discussion Paper

Acas has issued a fascinating discussion paper, setting out its views on the 2004 dispute resolution procedures, the future of the tribunal system and the future of conciliation.

Key points include:

• since the pre-acceptance procedures came in in October 2004, 10% of submitted claims have been rejected at the pre-acceptance stage. Less than half have of the rejected claims have been re-submitted.
• the fixed conciliation period (of 7 or 13 weeks) is not assisting settlement of disputes. Parties are not ready to settle so early on; indeed, the 7 week period can almost expire before large employers receive the papers and allocate the case to the correct person within its organisation. As Acas states, "The seven-week period is proving far too short to offer meaningful conciliation in many cases."
• although Acas has a power to conciliate once the fixed conciliation period has expired, it has taken a policy decision not to do so as if it routinely exercised its power to extend the conciliation period, it would undermine the purpose of the legislation. Exceptional cases where it would conciliate outside the fixed period include cases where a large number of unrepresented Claimants are involved, where there have been delays in receiving paperwork from the tribunal offices, or because of the incapacity of a party due to serious illness.
• due to budget cuts and the new performance measure imposed by the DTI (assessing Acas by the number of hearing days saved, rather than the number of cases settled), Acas has taken a policy decision to reduce the amount of time it will spend conciliating short-period cases (such as deductions from wages, breach of contract and redundancy claims). This is because a settlement in a short-period claim is regarded by the DTI as saving 1/4 day, whereas other types of settled cases are regarded as saving a greater amount of hearing time).

View Acas Policy Discussion Paper

Repayment Clauses in Compromise Agreements

The Court of Appeal has handed down an important decision in CMC Group plc v Zhang.

Mr Zhang signed a contract (not strictly a compromise agreement, but that does not matter) settling his claim against CMC for $40,000. It contained a clause, common in compromise agreements, that the full $40,000 would be immediately repayable if Mr Zhang broke any terms in the agreement (namely, non-harassment / derogatory remarks clauses).

CMC Group alleged that Mr Zhang broke his side of the deal, and issued proceedings for the return of the $40,000. They obtained default judgment, with damages to be assessed. Mr Zhang appealed.

The issue for the Court of Appeal was whether the repayment clause was valid, or whether it amounted to a penalty clause.

The Court of Appeal noted that the other provisions in the agreement (such as Mr Zhang not being able to bring further claims) remained enforceable. They considered that fixed damages for breach of the non-derogratory statement clause of $40,000 were plainly excessive, when the damages flowing from a derogatory statement might only be nominal.

Accordingly the repayment clause was a penalty and, whilst CMC Group was free to bring a claim for the damages it had actually incurred, it could not recover the $40,000 without proving it had incurred that amount of loss.

The Court of Appeal has granted permission to appeal to the House of Lords.

CMC Group v Zhang

[Thanks to Julian Yew of Stephenson Harwood, amongst others, for telling me of this decision]