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]
Wednesday, 20 December 2006
Wednesday, 13 December 2006
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]
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
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
Monday, 11 December 2006
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:
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.]
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
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
Wednesday, 6 December 2006
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...
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...
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