Equal Pay - Material Factor Defence

The Claimant police officers received less than their male comparator doing like work. The reason was that the men worked shifts involving night work and received a special payment (effectively a bonus) for this, but the women did not work those hours because they were incompatible with their child care responsibilities.

The Tribunal held that it was a legitimate objective to reward night work, but that the Chief Constable could have paid the claimants as though they had done night work, even though they had not. It would not have been a significant expenditure and would have eliminated the discrimination.

The EAT upheld the Chief Constable�s appeal and held that the Tribunal had misunderstood the nature of the justification defence. Elias P. stated at para. 46 that "The payment of money to compensate for the economic disadvantages suffered by those who have child care responsibilities is not what the Equal Pay Act requires. Nor is the assessment of the employer's ability to pay sums of this kind a task which Parliament could conceivably have expected Tribunals to do."

West Midlands Police v Blackburn

Employment Bill Published

After all the hype, it's finally arrived. The Employment Bill was introduced in the House of Lords last week. Key provisions are:

• abolition of statutory dismissal and grievance procedures (clauses 1-2)
• tribunals have a discretion to increase awards by up to 25% if an employer unreasonably fails to comply with a Code of Practice (clause 3)
• extending Acas's powers of conciliation and removing the fixed conciliation periods (clauses 5-6)
• doing a few other dull things to do with the minimum wage, employment agencies and miscellaneous sweep-up matters

The repeal of s98A of the Employment Rights Act 1996 means that Polkey will be back in full force - brooding and masterful as ever.

The commencement date is whenever the Secretary of State decides. I've heard a rumour it's likely to be Spring 2009 (but don't quote me!).

[Thanks to Michael Duggan of Littleton Chambers for telling me the Bill had been published]

Modified Dismissal Procedure

The EAT has taken a relatively strict approach to the applicability of the statutory Modified Disciplinary Procedure in O�Neil v. Wooldridge Ecotech Ltd, holding that it did not apply in a situation where the alleged gross misconduct occurred in the morning, the Claimant�s Line Manager consulted with other senior employees on the same afternoon, but he was not informed that he had been dismissed until the following morning.

Lady Smith stated that she was not satisfied that there had been a dismissal "at the time the employer became aware of the conduct or immediately after it" (the wording of Regulation 3 of the Employment Act 2002 (Dispute Resolution) Regulations 2004).

The EAT went on to find that, in any event, Step 1 of the modified procedure had not been complied with and there had not been a proper investigation. The extent that the original Tribunal had fallen into error was such that the matter should be remitted to a freshly constituted Tribunal.

[Thanks to Anthony Johnson of 1 Temple Gardens for preparing this case summary, and to Ed McFarlane of Mentor for telling me about the case]

Mutual Trust and Confidence

Last week the QBD handed down the high-profile decision, RDF Media Group v Clements. Quite apart from the media interest due to the personalities involved, from a legal perspective it dealt in some detail with the implied term of mutual trust and confidence (arising in the context of a restrictive covenant dispute).

The judgment contains one of the clearest explanations of the term of trust and confidence that I have ever seen - see paras. 100-106.

Further, it is authority for the following propositions:-

• a Board of Directors is entitled to discuss an employee in a negative manner without breaching the term of trust and confidence, as it is merely the brain of the company 'thinking aloud' and the obligation of trust and confidence does not go so far as to control thoughts (para 113)
• engaging in a campaign of vilification against your employee in the press, even on a non-attributed basis, will amount to a prima facie breach of trust and confidence - but there may be a rebuttal if the employee has, himself, first acted in breach of trust and confidence (paras. 118-120)
• there may be reasonable and proper cause to put out a press release, and even release confidential information to the press, when an employee resigns and is on garden leave
• importantly, an employee is not entitled to accept a repudiatory breach of the trust and confidence term in circumstances where he is himself in repudiatory breach of the same term (para. 140).

This last point appears to give employers another defence in constructive dismissal claims. It seems (if this case is followed) that an employer will not normally be liable for constructive dismissal if the employee has also breached the term of trust and confidence. Get the slingshots and the mud ready... but note that permission to appeal has been granted on this point.

Statutory Dismissal Procedure - Extension of Time

The EAT has, in Royal Bank of Scotland v Bevan, upheld the decision of a tribunal that time for presenting an unfair dismissal claim should be extended where an internal appeal is concluded just five hours before the three-month time limit expires.

Regulation 15 of the 2004 Dispute Resolution Regulations extends time from three to six months if, but only if, the employee reasonably believes the disciplinary procedure is still ongoing at the moment the three months expires. So where, as here, the appeal is disposed of five hours before the normal limitation period expires, regulation 15 does not operate to extend time.

However, the EAT held - somewhat controversially - that there is no rule of law that the existence of an internal appeal does not render it 'not reasonably practicable' to present a claim within three months, and that in those circumstances the tribunal was entitled to extend time.

[Thanks to Ed McFarlane from RBS Mentor Services for telling me about this case]

New Practice Direction: Agency Workers

The President of Employment Tribunals, HHJ Meeran, has issued a Practice Direction staying all agency worker cases. The stay will be lifted once the Court of Appeal gives judgment in James v London Borough of Greenwich.

[Thanks to Jonathan Cohen of Cloisters for telling me about this new Practice Direction]

Tribunal Chairmen to be Abolished

Okay - a slightly alarming (and inaccurate) headline. It's not the role that is being abolished, but the title which is being changed.

From tomorrow (yes, a Saturday!), employment tribunal chairmen become known as Employment Judges.

This change, which has received virtually no publicity, is contained in para. 36 of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007. The commencement order is here.

Tribunals Service Consultation Paper

The Tribunals Service has, today, issued a consultation paper entitled Transforming Tribunals.

It's not particularly exciting, though. Core points are:-

• cross-ticketing between wing members will be allowed (ie employment tribunal wing members can sit on other types of tribunal) but the existing statutory requirements for sitting on ETs and the EAT will be retained so as not to dilute the expertise of wing members
• enforcement of tribunal awards and Acas settlements is made easier

Anybody who wants to respond to the consultation paper can do so by 22nd February 2008. Details on how to respond here.

Practice Direction - Age Discrimination

The President of the Employment Tribunals, HHJ Meeran, has handed down a Practice Direction staying all current (and future) tribunal claims which involve an allegation that regulation 30 of the Age Regulations (providing for lawful retirement at or beyond 65) is unlawful. The cases will all be stayed until the ECJ has dealt with the Heyday case.

You can see the full text of the Practice Direction here. Interestingly, the Practice Direction records that the recent Solent decision in the EAT is being appealed to the Court of Appeal.

The Practice Direction applies in England and Wales. I am informed that Scotland will not be issuing a similar Practice Direction, but cases will be referred to chairmen for individual decisions.

[Thanks to Marivi Prescott of McRoberts for telling me about this Practice Direction]

Statutory Dismissal Procedures

The EAT has held, in Venniri v Autodex, that tribunals are obliged to consider whether a dismissal is automatically unfair under the statutory dismissal procedures. It is not necessary for the employee to raise compliance as an issue (see para. 34).

This contrasts with the position for grievance procedures, where tribunals are not obliged to consider whether the employee has lodged a grievance and waited 28 days before submitting a claim. The burden is on the employer to raise this as a defence.

Note that the judgment leaves open the question of whether a tribunal is likewise obliged to consider the s98A(2) defence (the partial reversal of Polkey), or whether it has to be expressly raised by the employer

TUPE: Objecting to Transfer

An interesting decision from the Chancery Division, in New ISG Ltd v Vernon.

Five employees objected to a TUPE transfer two days after it had taken place, once they discovered the (previously withheld) identity of the new employer and realised they did not want to work for it.

The new employer sought interim injunctions to enforce restrictive covenant clauses in their contracts, arguing that the right to object must be exercised before the transfer and, since it wasn't, the benefit of the restrictive covenants had transferred over to it.

The court disagreed, holding that a valid objection can take place after the date of transfer, where the employee does not initially know the identity of the transferee and objects promptly as soon as s/he finds out. The objection then has retrospective effect, and prevents the operation of TUPE. Accordingly the benefit of the restrictive covenants had not transferred to the new employer, and the application for injunctive relief was refused.

[Thanks to Michael Herman of Times Online for telling me about this decision]

Discrimination against Parliamentary Candidates

The House of Lords has, today, ended the long-raging battle in Labour Party v Ahsan.

The Labour party did not select Mr Ahsan as its candidate for a parliamentary seat. He claimed this failure to select him was on grounds of race. Considering the jurisdictional position under the RRA 1976, the House of Lords held:-

• political party, in selecting candidates, is not conferring an 'authorisation or qualification' enabling someone to be engaged in a profession - therefore s12 of the RRA 1976 does not apply; but,
• the Labour party is an 'association' within s25 of the RRA 1976, and so a potential claim would exist against it in the county court.

TUPE: Variation of Contract Terms

The Court of Appeal has, today, upheld the EAT's decision in Regent Security Services v Power.

The case is a departure from previous TUPE-law, holding that an employee is entitled to elect to rely on changes to terms and conditions of employment following a TUPE transfer. Previous authorities suggested that such changes were always void.

There remain areas of uncertainty following this decision. In particular, if an employee elects to rely on some of the beneficial changes, is s/he obliged to give credit for the detrimental changes? Is there a time period after which the employee is deemed to lose the right of election? These matters will no doubt be resolved in future cases.

8 seconds past midnight

We all thought the 88 second case was amusing, but here's an even closer shave! A second-year law student, charging �150ph to represent the Claimant, hit the 'transmit' button on the ETS website at 1 second before midnight on the last day for presentation of an ET1 claim. It arrived on the ETS server at 8 seconds past midnight.

The EAT (HHJ McMullen presiding) confirmed the claim was out of time.

The EAT also drew attention to the provisions of the Compensation Act 2006, which prohibits non-lawyers from representing litigants (other than for free, or in limited cases such as charities) unless they are formally registered with, and regulated by, the new Regulated Claims Management Service. The EAT sent a clear warning shot to unqualified and unregistered representatives by referring this law student to the Regulated Claims Management Service. Breach of the registration requirements is punishable by two years in prison.

[Thanks to Ed McFarlane of Mentor Services for telling me about this case]

Miller v Community Links Trust

Ministers of Religion and Unfair Dismissal

The Court of Appeal has upheld the Employment Appeal Tribunal's decision in New Testament Church of God v Rev. Sylvester Stewart, which held that a Christian minister was an employee of his church.

Whilst making it clear that he was not laying down a rule of law that all ministers of religion will be employees, Pill LJ analysed the changes in the common law in recent years and held that there was no legal presumption against a minister being an employee.

All three judges considered, however, that the existence of religious dogma which was opposed to the existence of a contract of employment would be an important factor pointing away from the existence of a contract. Indeed, by a majority, the Court considered that to impose a contract upon a church which was doctrinally opposed to it would be a breach of Article 9 of the ECHR (freedom of religion).

Collective Redundancy Consultation

The EAT has handed down a very important decision dealing with collective consultation obligations in redundancy cases.

Overturning previously binding authority, the EAT has held that there IS a duty on employers to consult over the reason for making redundancies in the first place (in this case, the closure of a place of mine) - previously something which has always been an area in which tribunals will not interfere. Elias P.�s reasoning begins at paragraph 75 - but, in essence, is that the old authorities are no longer good law in the light of statutory changes.

UK Coal Mining Ltd v NU

TUPE

The Court of Appeal has held, on unusual facts, that TUPE does not confer additional rights so as to improve an employee's situation.

Mrs Jackson was employed by CI in 1999. CI's business transferred to Computershare in 2004, and it made Mrs Jackson redundant in 2005. The employment tribunal found that, due to the 2004 TUPE transfer, she was entitled to enhanced severance pay - something which Computershare only made available to employees who had joined it pre-2002. The EAT overturned that decision, and Mrs Jackson appealed.

The Court of Appeal dismissed her appeal. TUPE Reg 5(1) does not give a transferred employee access to benefits other than those to which the employee was entitled before the transfer of the undertaking. It safeguards existing rights. So for the question of enhanced severance pay TUPE could not be used to "miraculously transform" Mrs Jackson into someone who joined Computershare pre-2002 when, as a fact, she joined Computershare in 2004. The original tribunal was wrong and she was not entitled to the enhanced payment.

Jackson v Computershare Investor Services

[Thanks to Patrick Green, Counsel for the Claimant, for telling me about this decision, and to www.emplaw.co.uk for permission to use their summary of the case]

Constructive Dismissal and Grievance Procedures

The EAT has handed down a very interesting judgment in GMB Union v Brown.

Ms Brown had a grievance against her line manager, a regional secretary of the GMB, flowing largely from the breakdown of their working relationship. She did not want him to deal with the grievance himself, as she was suffering from stress, and wanted somebody else to hear the grievance. The manager refused to vary the contractual grievance procedure, which provided he should hear the grievance first, resulting in months of argument, stress absence and eventual resignation by the Claimant.

The ET held, and the EAT upheld, that the GMB's refusal to depart from the grievance procedure amounted to a breach of trust and confidence - and thus the Claimant's constructive dismissal claim succeeded.

Maternity Pay Increases Delayed until April 2010

The Government still has a goal to extend Statutory Maternity Pay [SMP], Maternity Allowance [MA] and Statutory Adoption Pay [SAP] from 39 weeks to 52 weeks and to introduce Additional Paternity Leave and Pay [APL&P] by the end of this Parliament.

However, a Notice issued last week states that the plans have been put back by a year. It says that "HMRC has, up to now, been planning on the basis of implementation for babies due on or after April 2009. We will now start planning implementation for babies due on or after April 2010.

See HMRC Note

[Thanks to www.emplaw.co.uk, from whom I have taken this information (with permission)]

Retirement and Age Discrimination

The ECJ has handed down its opinion in the important case of Palacios v Cortefiel Servicios SA, holding that the EU Equal Treatment Framework Directive does not prohibit member states from introducing mandatory retirement ages.

Disagreeing with the Advocate-General (see bulletin 15/2/07), the ECJ held that a general mandatory retirement age did fall within the scope of what the Directive prohibited.

However, the ECJ considered that a mandatory retirement age was justified, as it was a proportionate means of achieving the legitimate social aim of promoting employment opportunities and reducing unemployment.

As readers will know, Heyday are currently challenging the UK's retirement provisions before the ECJ (see bulletins 5/10/06 and 6/12/06). This decision will cause much glumness at Heyday's offices this morning, and no doubt champage corks are being popped over at DBERR (i.e. the DTI, as it used to be called).

[Thanks to Michael Herman of Times Online for telling me about this decision]

Dreadlocks, Rastafarians and Religious Belief

The EAT (Elias P. presiding) has dismissed an appeal in which it was suggested that a Rastafarian who wore his hear in dreadlocks was discriminated against because of his religious beliefs.

The case turns largely on its facts (and contains an amusing analysis of when matted hair is messy, and when it is not!), but has two points of general interest:-

• the tribunal and EAT accepted, without demurral, the employer's concession that Rastafarianism is a religious belief within the meaning of the Employment Equality (Religion and Belief) Regulations 2003. There has previously been academic debate over whether Rastafarianism so qualified. Rastafarians are not protected under the race discrimination legislation as they do not qualify as an 'ethnic group' (Crown Suppliers v Dawkins (1993)).
• the EAT accepted the employer's argument that it was legitimate to have rules requiring tidy hair (irrespective of whether it was worn in dreadlocks)

Harris v NKL Automotive

Statutory Dismissal Procedures

The EAT has held, in Homeserve v Dixon, that a step 1 letter need not state that the employer is contemplating dismissal.

The employer, having caught the employee red-handed in an act of gross misconduct, sent him a letter inviting him to a 'formal disciplinary meeting' for 'breach of contractual obligations'.

The employment tribunal held that the dismissal was automatically unfair, as the letter did not state that the employer was contemplating dismissal.

The EAT, presided over by HHJ Peter Clark, overturned this decision, holding that it was sufficient that the letter invited the employee to a 'formal disciplinary meeting', as it was implicit in that that the employer was contemplating dismissal or some other disciplinary action.

Disability Discrimination: Failure to consult over redeployment

The EAT has hammered yet another nail in the coffin of the argument that an employer's failure to consult a disabled employee over alternatives to dismissal (or conduct a risk assessment) is, itself, a failure to make reasonable adjustments giving rise to liability.

The EAT confirms that the correct approach is that set out in Tarbuck (2006), and that the earlier line of authorities based on Mid Staffordshire General Hospitals (2003) should no longer be followed.

Thus there is plainly no longer scope for arguing that an employer who fails to investigate redeployment or reasonable adjustments is thereby in breach of the DDA. It is necessary for the Claimant to go a step further and establish precisely what reasonable adjustments could have been made to retain him/her in the workplace.

Scottish & Southern Energy plc v Mackay

Re-Enagement and Loss of Statutory Rights

A couple of interesting points crop up in the EAT's decision in Wolff v Kingston upon Hull City Council.

Unreasonable pursuit of re-engagement claim
The EAT approved the award of costs against Mr Wolff for unreasonably pursuing a re-engagement claim. He had been dismissed from a school and accepted he could not return to that school, but sought re-engagement in another school run by the city council. The city council argued - correctly - that it is the governors of individual schools, not the Council itself, that has the power to appoint teachers.

In the absence of financial losses, the Council offered �1,000 in settlement but the Claimant insisted on his day in court to argue re-engagement. The ET (and EAT) held that this was unreasonable, particularly in the context of a clear steer from the employment tribunal at a case management discussion.

Loss of Statutory Rights
An interesting point arose here. The Claimant found a new job immediately, and over a year had elapsed prior to the remedies hearing. The Respondent argued he should not be entitled to the conventional �250 for loss of statutory rights, as he had succeeded in re-establishing statutory protection and therefore suffered no loss. The EAT rejected this argument, holding that the Claimant was entitled to compensation for having worked for a year "under the shadow of being dismissed without statutory protection" and upheld the award of �250.

Statutory Grievance Procedure

As aficionados of employment law will know, tribunals consistently strain to turn lumps of clay into statutory grievances so that employees are not shut out from bringing tribunal applications.

But there is a limit, the EAT has held in Dick Lovett v Evans. Notwithstanding the Canary Wharf case, which held that employers should be taken to have regard to the factual background against which a written grievance letter is sent, it goes too far to impute an employer with knowledge arising from a meeting occurring after the date the 'grievance' letter was sent.

On the facts, a letter complaining of nosebleeds was insufficient to amount to a statutory grievance letter complaining of pregnancy discrimination, notwithstanding that a few days later, the employee told the employer that she believed the two were connected.

New Evidence as a Ground of Appeal

The EAT has handed down a decision confirming the strict approach it takes to allowing an appeal on grounds of fresh evidence.

The employer dismissed an employee for trying to poach customers. At the tribunal hearing, the employer had no real evidence of the poaching, which it explained on the grounds that it did not know it was expected to obtain such evidence.

Following the decision, the employer obtained four witness statements which, if accepted, would be fairly overwhelming evidence that the ex-employee had been approaching clients to solicit work (whilst still employed).

The EAT held that this did not enable the employer to have a second bite at the cherry. Whilst clearly credible and relevant, there was no proper explanation for not having obtained the evidence first time round. Neither ignorance, nor possibly incompetent advice from the employer's employment consultants, came close to being sufficient.

Hygia Professional Training v Cutter

Holiday Pay

In the light of the increased statutory holiday pay, effective today, Acas has issued a new Advice Leaflet on Holidays and Holiday Pay.

For those who need a quick reminder, minimum annual holiday entitlement increases today to 4.8 weeks (and on 1st April 2009, it increases to 5.6 weeks - intended to reflect 20 days plus 8 days' bank holiday).

Unfair Dismissal Investigations

The EAT has handed down judgment in Corus UK Ltd v Mainwaring, considering various points arising out of a conduct / capability investigation where an employee was accused of malingering. The two key points are:-

• there is no obligation to take a statement from the person who 'tips-off' the employer about possible malingering, if the employer then relies on medical/video evidence (rather than the original statement) when dismissing (para. 28)
• there is no obligation to seek a report on malingering from a consultant - an occupational health physician will suffice (para. 43)

Equal Pay

The Court of Appeal has, today, killed off the argument that the equal pay legislation does not apply where the woman is doing higher rated work than a man (rather than work rated the same).

In Redcar v Cleveland Borough Council, the Court rewrites s1(5) of the Equal Pay Act 1970 to make this clear - see para. 25 of the judgment.

EAT Time Limits

The EAT has provided consolidated guidance on the rules relating to the 42-day time limit for appealing a tribunal decision, including the circumstances when an extension of time will be considered. The guidelines appear at para. 5 of HHJ McMullen's judgement in four consolidated appeals here.

The facts of the four appeals are then considered, providing useful examples of how the EAT exercises its discretion.

Part-time Tribunal Chair not 'Worker' for PTWR 2000

On 24th July 2007, I sent out a bulletin about this important case, Christie v DCA, saying that I would send the link out when the judgment was put on the internet.

Well, it's gone up:-
http://www.bailii.org/uk/cases/UKEAT/2007/0140_07_2307.html

New Acas Chair

Edward Sweeney has, this afternoon, been announced as the new Chair of the Acas (Advisory, Conciliation and Abritration Service) Council. He is deputy General Secretary of AMICUS, and is a past General Secretary of UNIFI and BIFU.

He replaces Rita Donaghy with effect from 1st October 2007. The appointment is for three years.

See Press Release

Data Protection: what is 'personal information'?

A new 21-page technical guidance note, 'Determining what is personal data', explains and illustrates the Information Commissioner's view of what is 'personal data' for the purposes of the Data Protection Act. The guidance provides many examples to illustrate circumstances when data relates to an identifiable, living individual.

There is an accompanying short Press Release on the ICO website.

The introduction to the new guidance says that they will soon also be producing new guidance on the meaning of 'relevant filing system'.

[Information provided by www.emplaw.co.uk, to whom I express my thanks]

Employment Tribunal Statistics

The Tribunals Service has just published the 2006/07 employment tribunal statistics (some of the headline statistics were included in the ETS annual report in July - these stats are far more detailed).

Headline points:

• number of cases brought increased by 15%
• number of cases disposed of increased by 19%
• 972 (of 238,546) jurisdictions claimed were age discrimination (note the statistics cover 1st Apr 06 to 31st Mar 07 - and age discrimination only came in on 1st Oct 06, so this should be doubled to get a true pro rata figure)
• equal pay and unfair dismissal came out tops, each with about 44,000 (of 238,546) jurisdictions
• 8% of submitted claims were rejected. Of those, about one-third were resubmitted and accepted.

Much of the increase can be attributed to the substantial number of local authority equal pay claims.

Also of interest, is that the EAT heard 432 cases at a full hearing, a decrease of 22% on the year before.

When is a shareholder an employee?

This vexed question tends to crop when the owners of a company claim a statutory redundancy payment from the DTI following the company's insolvency.

Underhill J. considers a number of conflicting authorities, the best-known of which, Bottrill, poses the question 'who really owns the company?'. He sets out his view (as obiter) that:

"the fact that a claimant under the employment protection legislation is a majority shareholder and a director of the company which employs him does not affect his status as employee unless the tribunal finds that the company is a 'mere simulacrum' ... (and thus, by the same token, that the contract between it and the putative employee is a sham)" (para. 29)

Nesbitt v Secretary of State for Trade and Industry

Statutory Dismissal Procedures

The EAT has decided two interesting points on the statutory dismissal procedure - one on liability, one on quantum - in Aptuit Ltd v Kennedy.

First, it held that the statutory dismissal process does not require notification of the right to appeal to be given in writing. Verbal communication is sufficient (see paras. 35 and 44).

Second, it overturned an uplift of 40% which the tribunal had assessed because (a) it was a large employer; (b) there had been a general lack of consultation; and, (c) the Claimant had been treated in a 'shoddy' manner. The EAT stated that these were all irrelevant factors; in calculating the uplift, tribunals should only have regard to the failure to follow the statutory procedure (para. 47). This second point is likely to prove controversial, as there is nothing in the wording of the statute prohibiting tribunals from having regard to the surrounding circumstances.

Acas e-Learning module on Age Discrimination

Acas has issued a new e-Learning module on Age Discrimination. You can access it here (free registration is required).

I particularly recommend the flowcharts, specimen letters and case studies for retirement dismissals - they're very comprehensive but easy to follow.

Statutory Procedures: Adjustments to awards

Almost three years on, and we still haven't had any guidance on when awards should be increased by 10%, 50%, or somewhere in between, for failing to comply with the statutory dismissal procedures.

In Cex Ltd v Lewis, the EAT refused to lay down general guidelines but commented that it was appropriate for a tribunal to take into account the employer's ignorance of the statutory dismissal procedures when deciding to impose the minimum uplift of 10%.

The lack of guidelines is leading to inconsistent results; I have seen cases where a 50% uplift was awarded precisely because of the employer's ignorance of the law (rationalised as 'if they can't be bothered to learn how to act fairly...'). However, if the dismissal procedures are abolished, as the government intends, this may be a (relatively) short-lived problem.

[Thanks to Richard Linskell of Dawsons LLP, who acted for Cex Ltd. in this appeal, for telling me about the case]

Time-Limits

The EAT has upheld a decision not to accept an unfair dismissal claim which was presented 88 seconds late.

The Claimant tried to present his claim electronically about 15 mins before midnight on the last day for presentation. However, he mistyped the web address (typing 'qsi' instead of 'gsi'). He then sent a test message about 3 mins before midnight, and sent his actual Claim Form 1 min 28 secs after midnight.

The EAT upheld the ET's decision that the claim was out of time. It stated that it was reasonably practicable for the claim to have been presented within time (ie before midnight), and although the result seemed harsh, time limits are there to be followed.

Practice Statement on Citing Authorities in the EAT

The EAT has handed down a short practice statement (unusually, within the body of a judgment) on citing authorities.

The EAT reminds litigants and advocates that they should not rely on transcripts of authorities printed off from the internet, when the cases are reported in the IRLRs or ICRs.

The Practice Statement appears within the decision in Sage v Bacco at paras. 14-17.

Agency Workers

BANG!

The sound of another nail in the Dacas coffin. This time, it's the EAT sitting in Scotland, which repeats Elias P.'s comments in recent cases that it will not be necessary to imply an employment contract between worker and end-user when the relationship is explained by tri-partite (ie through an agency) contractual documentation - see para 15 of the judgement.

Wood Group Engineering v Robertson

TUPE

HHJ McMullen has handed down an interesting TUPE decision, Compass Group v Burke.

In it, the EAT reminds practitioners of the principles for establishing whether there has been a TUPE transfer, and whether particular employees were assigned to the undertaking (para. 9).

The EAT also held that, once the primary facts are established by the tribunal, the question as to whether a TUPE transfer took place is a matter of law (para 10), and thus susceptible to review by an appellate court.

Stress at Work

The Court of Appeal has handed down a decision dealing with contractual liability for stress at work.

After 30 years' good employment, the Claimant developed depression after an allegation of sexual harassment was made against him (and the investigation was, in part, bungled). The Court of Appeal, overturning the High Court's decision, held:

• a policy requiring the employer to handle complaints of harassment "sensitively" was aspirational and did not form part of the Claimant's contract of employment (paras. 17-18)
• although the covening of a panel with two, rather than three, members was a breach of a contractual term, it was not reasonably foreseeable that the Claimant would suffer a psychological reaction as a result (paras. 22-23)
• it was not negligent of the employer to inform the Claimant of its decision "by leaving a bald letter on his desk" - it is the content of the decision, not the manner of transmission (presumably, without more), which is important (paras. 41-42)

This case is another example of the tendency since Sutherland v Hatton in 2002 to limit the scope of stress at work claims.

Deadman v Bristol City Council

Dismissals following Bullying Induced Stress Absence

The Court of Appeal has upheld the EAT's decision in McAdie v Royal Bank of Scotland (see bulletin 30/11/06).

The case considers the fairness of a dismissal where the employee was on long-term stress-related sick absence, caused by bullying and mismanagement at work.

The Court of Appeal ratified the EAT's reasoning, holding that:-

• the fact that the employer has caused the incapacity in question, however culpably, does not preclude it from fairly dismissing the employee
• the real question is whether the employer acted reasonably "in all the circumstances" - and the circumstances include the fact that the employer was responsible for the original absence
• where the employer is responsible for an employee's incapacity, it should normally be expected to "go the extra mile in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable" (this is a quote from the EAT judgment, with which the Court of Appeal agreed).

[Thanks to Jane McNeill QC and Damian Brown of Old Square Chambers, who acted for the successful employer, for telling me about this judgment]

GMB v Allen - EAT overturns decision

Unions will be jumping for joy this morning. The EAT has overturned last summer's employment tribunal decision (see bulletin 9th June 2006) which resulted in many unions withdrawing from negotiations in the North East equal pay litigation.

GMB had encouraged its members to agree a settlement agreement (in the North-East equal pay litigation) which seriously undervalued the women's claims. The tribunal found this was indirectly discriminatory by the union, and it was believed that the GMB would be liable to pay in excess of £1m in compensation.

The EAT has overturned this decision. Notwithstanding criticisms of the GMB's method of obtaining the (potential) Claimants' consent to the undervalued settlements, it held that settlement of the claims was a legitimate aim and the means adopted were proportionate. In the crucial sentence, Elias P. stated that "In short, the fact that the objective might be achieved by using unlawful, even dishonest practices does not necessarily mean that the means are disproportionate once it is accepted that the aim itself is legitimate." (para. 89). An easy to understand example illustrating the point is given at para. 90.

GMB v Allen

Illegality

Elias P. has handed down a judgment clarifying (and possibly weakening) the illegality doctrine in the combined cases of Enfield Technical Services v Payne / Grace v BF Components Ltd.. And about time too - rigid application of the illegality doctrine has historically caused manifest injustice to employees. This is a case where it is well worth reading the full decision.

The EAT declines to follow cases such as Salvesen v Simons, and holds that in order to defeat an unfair dismissal claim on grounds of an illegal conract of employment, there must be "some form of misrepresentation [or] some attempt to conceal the true facts of the relationship" (para. 49). The fact that parties have wrongly labelled the relationship, or have entered into an arrangement which has the effect of depriving the Inland Revenue of tax to which it was entitled in law, is not enough to render the contract unlawful.

This brings the doctrine of illegality for unfair dismissal closer into line with how it operates in discrimination cases since the Court of Appeal's decision in Hall v Woolston Leisure Services.

I understand that permission to appeal is to be sought in both cases.

[Thanks to Ed McFarlane of Mentor (representing Enfield Technical Services) for telling me about this case]

Tribunals, Courts and Enforcement Act

Boring but important.

The Tribunals, Courts and Enforcement Act 2007 received Royal Assent last week. The two points of relevance to employment lawyers are:

• tribunal chairmen become 'employment judges'
• it makes enforcement of tribunal awards easier

The commencement date is not yet known, and will be announced in due course by the Secretary of State.

Tribunals, Courts and Enforcement Act 2007

Failure to Inform and Consult

It's taken three years, but we have the first award by the EAT for failure by an employer to inform and consult under the Information and Consultation of Employee Regulations 2004.

Macmillan Publishers Ltd. failed to arrange a ballot to elect employee representatives following a valid request. This was the third occasion on which Macmillan was in breach of the ICE Regulations.

Whilst the CAC can make a declaration that the procedures have been breached, only the EAT can impose a financial penalty (of up to £75,000).

The EAT considered that this was a "significant failure, because it must have been plain, reading the legislation, that the relevant provisions were being ignored at almost every stage" (para 18). Elias P. analysed the purpose behind the ICE Regulations and set out some factors to take into account at paras. 21-25. The EAT then imposed a penalty of £55,000, recognising that although there was a very serious breach, it was not the most serious breach that could be envisaged.

Amicus v Macmillan Publishers

Dyslexic Policeman is disabled

The EAT has held that a senior policeman who was diagnosed with minor dyslexia was disabled within the meaning of the Disability Discrimination Act 1995.

After over 15 years in the police force, and promotion to the rank of Chief Inspector, the Claimant discovered he was dyslexic. He had not previously had difficulties with report writing, financial literacy or any of the other aspects in his complex and demanding job. However, medical evidence suggested that he ought to be given 25% extra time in his examinations for promotion to the rank of Superintendent as a result of his (newly diagnosed) dyslexia.

The tribunal reminded itself that a diagnosis was not a disability, and that the important thing to look at was what the Claimant could do, rather than what he could not do. They concluded that the dyslexia had only a minor/trivial impact upon the Claimant's day-to-day activities, and that he was therefore not disabled.

The EAT overturned this finding and substituted a finding of disability. It stated that a tribunal should not compare the performance of the employee with the average person in the population (as this tribunal had done). Rather, it is the comparison between what the individual can do and would be able to do without the impairment which is important in determining whether someone is disabled (para 39). The EAT concluded it was self-evidenct that a person who needed 25% longer to complete an examination because of his dyslexia was at a substantial disadvantage to the position if he did not have dyslexia, and he was therefore disabled. The EAT added that any finding to the contrary would undermine the whole purpose of the DDA (para. 70).

Patterson v Commisioner of Police for the Metropolis

Part-time tribunal chairman not 'worker'

The EAT (Elias P presiding) has held that a fee-paid, part-time chairman of various social security appeals' tribunals was not a worker, so as to attract the protection of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The part-time chairman claimed he did not receive equal (pro rata) pension rights to full-time chairmen.

Dealing with the preliminary point as to whether he qualified as a 'worker', the EAT held there was no EU concept of 'worker' which trumped (or provided interpretative assistance) to the meaning of 'worker' within UK legislation. Accordingly, the Claimant had no way of circumventing or disapplying regulation 17 of the Part Time Workers Regulations, which provides that individuals acting in a judicial capacity on a daily fee-paid basis were excluded from the regulations. In those circumstances, the part-time chairman was excluded from the definition of 'worker' and his claim was struck out.

Addendum

Addendum Sophie Buckley, principal legal officer at the EOC, has asked me to point out that the EAT's decision in Oyarce v Cheshire County Council only applies to victimisation on grounds of race (not sex or other forms of prohibited discrimination, where the statutory wording is different).

A corrected version of the bulletin appears below.

Victimisation: Burden of Proof

The EAT has confirmed "with some degree of hesitation and disquiet" (para. 38) that the reversed burden of proof in race discrimination claims does not apply to allegations of victimisation.

It held that a close examination of s54A of the Race Relations Act 1976 and the Equal Treatment Directive 2000 shows an intention to treat victimisation separately from direct and indirect discrimination. The reversal of the burden of proof, whilst applying to direct and indirect discrimination, does not apply to victimisation.

Oyarce v Cheshire County Council

Victimisation: Burden of Proof

The EAT has confirmed "with some degree of hesitation and disquiet" (para. 38) that the reversed burden of proof in discrimination claims does not apply to allegations of victimisation.

It held that a close examination of s54A of the Race Relations Act 1976 and the Equal Treatment Directive 2000 shows an intention to treat victimisation separately from direct and indirect discrimination. The reversal of the burden of proof, whilst applying to direct and indirect discrimination, does not apply to victimisation.

Oyarce v Cheshire County Council

Equal Pay - Material Factor Defence

As part of an extensive job evaluation scheme by Middlesbrough Borough Council, a pay protection scheme was introduced to protect those in receipt of higher pay against an immediate and significant reduction in pay. Agreement on the scheme was reached in February 2005 by which time a number of equal pay claims related to pre-April 2005 terms were under way but were not resolved. The Claimants submitted that they too should receive the benefits of the protected pay arrangements, arguing that had the Equal Pay Act "equality clause" been applied to them at the correct time they would have been in receipt of a higher rate of pay, and thus the protected pay scheme would have applied to them. The ET agreed. The Council appealed.

The EAT has allowed the appeal. Given that the purpose of the scheme was to cushion better paid employees from a potentially disastrous sudden drop in pay, the Council was justified in limiting it to those who were actually in that group. Further justification lay in the fact that the need to agree a pay protection scheme with the trades unions was crucial to the making of the job evaluation scheme.

The EAT held that the scheme was not, to the knowledge of the Council at the time, exacerbating existing discrimination. However (1) the benefits under the scheme were limited to those who, to the knowledge of the Council, were in receipt of higher pay when it was introduced, (2) at least some of the outstanding claims were likely to succeed, and (3) the Claimants were overwhelmingly female. The decision not to extend the payment protection scheme to those who were subsequently found to be entitled to equal pay was therefore tainted by sex discrimination and therefore required objective justification - a requirement which, as noted above, the EAT found the Council had satisfied.

[Thanks to www.emplaw.co.uk for permssion to reproduce their summary of this case.]

Middlesbrough Borough Council v Surtees & Ors

Boring but important

Last week, the Cabinet Office published the government's draft legislative programme for the forthcoming year.

Included is the Employment Simplification Bill, the contents of which cover:

• implementation of the Gibbons review of workplace dispute resolution (including repeal of the statutory dispute resolution procedures and implementation of a package of replacement measures - although the content of that package is not yet known);
• clarification and strengthening of the enforcement framework for the national minimum wage
• various minor amendments to existing statutes

If you want to read the summary, click the link above and selection Chapter 5, item 10.

PILON clauses

The Inner House of the Court of Session has held that PILON clauses cannot be implied into contracts of employment - i.e. if an employer wants to pay money in lieu of notice without being in breach of contract, there must be an express term allowing it to do so.

In this case, a financial director/company secretary's contract expressly stated he was entitled to 12 months' written notice. It was terminated without such notice. The company argued that the contract was subject to an implied term entitling them to pay in lieu (an effect of which would have been to deprive the Pursuer (Claimant)of a bonus). The Court of Session disagreed.

The Court stated that it had "strong reservations as to whether, in the 21st century, there is any scope for the implication of such a term", also holding that such an implied term would be contrary to the express right to receive twelve months' notice.

Morrish v NTL Group

PILON Clauses

The Inner House of the Court of Session has held that PILON clauses cannot be implied into contracts of employment - i.e. if an employer wants to pay money in lieu of notice without being in breach of contract, there must be an express term allowing it to do so.

In this case, a financial director/company secretary's contract expressly stated he was entitled to 12 months' written notice. It was terminated without such notice. The company argued that the contract was subject to an implied term entitling them to pay in lieu (an effect of which would have been to deprive the Pursuer (Claimant)of a bonus). The Court of Session disagreed.

The Court stated that it had "strong reservations as to whether, in the 21st century, there is any scope for the implication of such a term", also holding that such an implied term would be contrary to the express right to receive twelve months' notice.

Morrish v NTL Group

RIP Wigs and Bands

The Lord Chief Justice has, this morning, announced the abolition of wigs and bands in civil cases, from 1st January 2008. Gowns will continue to be worn.

Court dress remains unchanged in criminal cases.

Collective Redundancy Consultation

17 + 3 = 20, conculdes the EAT in Optare Group v TGWU.

The employer made 17 compulsory redundancies, immediately on the back of 3 voluntary redundancies. The union alleged that the collective consultation requirements were engaged, as the employer proposed to make 20 people redundant. 'Oh no', said the employer, 'you can't count the 3. We didn't propose to dismiss them - they left themselves'.

Funnily enough, the ET and EAT both disagreed. Holding that one asks the question, 'who really is responsible for the dismissals', it was evident that the employer had proposed to make 20 people redundant within a 90 day period - thus the collective consultation provisions were engaged and a protective award could be made.

Weirdest Employment Disputes

Earlier this week, to celebrate the EAT's 30th anniversary, The Times Online dusted off its archives to search for some of the most colourful employment disputes over the last few years. For tales of witches, dogs and axe-wielding murderers, visit here.

Equal Pay

This Court of Appeal has handed down judgment in South Tyneside Council v Anderson & ors. The appeal relates to the last of a group of equal pay claims brought by female school support staff in the north-east. Each was paid at a rate determined by the grade to which she was contractually assigned, set out in a collective agreement known as the 'White Book'. Their chosen comparators were men employed by the local authority whose earnings were significantly higher. Although they were doing identically rated work, none of the men actually worked in schools.

The Newcastle Employment Tribunal held that the female claimants were in the same employment as their comparators and that the pay inequalities between them put the local authority in breach of the women's equality clauses. This decision was upheld by the EAT. The local authority’s subsequent appeal concerned only workers like Ms Irving who were employed on the recommendation of the governing body of a community school (as opposed to those employed directly by the local education authority).

On appeal, the local authority argued that the women and their comparators could not be described as being 'in the same employment' because it was open to each such governing body to decide what an individual worker's terms and conditions of employment should be. The Court rejected this argument and held, on the contrary, that workers of either sex were subject to 'common terms and conditions of employment' for the purposes of the Equal Pay Act section 1(6). Whatever their place of work, they were employed by the same employer and paid by reference to a collective agreement (the White Book) to which any governing body would invariably be required to refer. Ms Irving and her male comparator "were therefore to be treated as in the same employment. From this, coupled with the inequality of pay, a breach of the implied equality clause ineluctably followed".

[Thanks to John Bowers QC, counsel for Tyneside, for telling me about this decision and to www.emplaw.co.uk for allowing me to adopt their summary.]

Unfair Dismissal, Age Discrimination and Article 119

The novel approach of the ECJ in Mangold v Helm (bulletin 24/11/05, [2006] IRLR 143) has been rejected by the EAT in the case of Lloyd-Briden v Worthing College.

Mr Lloyd-Briden's claim had been struck out pursuant to s.109 ERA 1996 (as it then was) because he was older than 65 at the time he tried to claim unfair dismissal. He relied on Mangold to suggest that the provision was contrary to the general EU principle against age discrimination, and therefore should be set aside.

In the EAT, Wilkie J. held that the principle in Mangold must be limited to cases where a Member State had breached part of the Directive (in Mangold the German government was found to have breached Art.18 of the Framework Directive), since otherwise the Directive itself determines the extent to which EU law intervenes to affect the outcome of domestic employment litigation. Accordingly, the ET's decision to apply s.109 contained no error of law and the appeal was dismissed (paragraphs 21-22).

Thanks to Karen Moss of 3 Paper Buildings, counsel for the successful Respondent, for telling me about this case

Commercial Agents

The House of Lords has handed down its decision in Lonsdale v Howard & Hallam. This is an important case for those dealing with commercial agents.

The Commercial Agents (Council Directive) Regulations 1993 (which, over a decade on, many people remain unaware of) provide a statutory right to compensation for any self-employed intermediary who sells goods on behalf of, and in the name of, a principal.

Historically, the view has been taken in many first instance decisions (based upon French jurisprudence) that a commercial agent ought to be awarded compensation of two years' earnings if his agency is terminated, unless there is a good reason to depart from the two year presumption.

The House of Lords, upholding the Court of Appeal, has conclusive stated that English courts should not follow the French practice of awarding two years' losses as compensation. Instead, the correct measure of damages is to value the income stream which the agency business would have generated. This will often require expert evidence, and the best evidence of te value will be the price at which the agent could have sold his 'business' on the open market. The key passages in the judgment are paras. 10-13 and 21.

EAT Scotland

The EAT in Scotland has announced it is closing between 2pm Friday (6th July 2007) and Monday 16th July.

For information on how to deal with documents that need to be served during the intervening week, please see this notice.

Acas to conciliate in EAT cases

Acas is extending its conciliation services to cover certain categories of EAT cases, at the EAT's invitiation. The type of cases where conciliation may be appropriate will include cases where:

• the employment relationship is ongoing
• a case might be referred back to the employment tribunal; or,
• appeals covering monetary awards

Thanks to Eugenie Verney for telling me about this development

Click here for Acas press release

Statutory Grievances - Admissibility of Claims

The EAT has come up with another clever way of circumventing s31 of the Employment Act 2002 in Mackay v Blakes Newsagents (HHJ Serota QC).

It held that where an ET1 is presented prematurely (because 28 days from the grievance letter had not elapsed), an employment tribunal has jurisdiction to permit the ET1 to be amended after the 28 days has elapsed, provided it contains one or more causes of action that are not caught by s32(2).

Increase in Annual Leave

The draft Working Time (Amendment) Regulations 2007 are now available. They phase in an increase in the annual leave entitlement from 4 weeks to 5.6 weeks.

[Thanks to www.emplaw.co.uk for this information.]

Updated Acas Guides

Acas has updated its website guides on maternity and annual leave. It has also just published two research papers on sexual orientation discrimination.

Unfair Dismissal Compensation - Sick Employees

The EAT has handed down an important decision, GAB Robins v Trigg, dealing with the calculation of a compensatory award for a constructively dismissed employee who had been off work sick.

The issue, on which there was no direct authority, was whether such an employee's loss of earnings has been caused by the constructive dismissal or, instead, caused by her long-term sick absence. The employer argued that since the employee had been off work for four months prior to her dismissal, her absence after the dismissal had not been caused by that dismissal.

HHJ Peter Clark distinguished an 'actual' dismissal, where loss of earnings might not be awarded, from a 'constructive' dismissal (para. 66). The constructive dismissal covered a whole series of events, not just the 'last straw' (failure to deal with a grievance properly), some of which were the incidents of bullying and overwork which gave rise to the sickness absence in the first place.

In those circumstances, the course of conduct by the employer amounted to a breach of the implied term, formed part of the constructive dismissal, and thus the Claimant’s ill-health caused by that breach is to be treated as a consequence of the dismissal leading to loss of earnings which would otherwise have been received at the full rate from the employer, such loss being attributable to action taken by the employer (para. 75)

Cheekiest Legal Argument of the Year

As part of my ongoing quest to find the cheekiest legal argument of the year (see bulletin 18/5/07), the second contender is the employer in Cummings v Scholarest.

The Claimant presented an equal pay claim to the employment tribunal with an equal pay claim. Her solicitor misspelled her name on the ET1 as Mrs W.E. Cummings (it should have been Mrs W.E. Cowings). The Claimant, who had worked for the employer for 30 years, set out her place of work and address correctly.

The employer applied to strike out the claim on the basis that the Claim Form did not correctly identify the Claimant. The employment tribunal granted the application.

Quashing the decision, the EAT made it clear that there was a power to amend the name of the Claimant, and sent the case back to a different chairman with a clear steer to make a finding that it was just and equitable to allow the Claimant to amend her name on the ET1.

(any other contributions for 'cheekiest legal argument of the year' gratefully received)

Introducing New Claims outside the Limitation Period

The EAT has handed down judgment in the important case of TGWU v Safeway Stores. It is authority for the proposition that it will almost always be permissible to amend a Claim Form to introduce a new legal cause of action which relies on already pleaded facts, even if the new cause of action is out of time (see paras. 13 and 15).

Even if you don't have a case involving this particular point, this is a decision well worth reading for Underhill J.'s analysis and explanation of the authorities on amending Claim Forms.

New Points on Appeal

Quite simply, the perfect guidelines on whether new points can be taken on appeal - see paragraph 50 of HHJ McMullen QC's judgment in this case with a very long name.

'Without Prejudice' Communications

Much like buses, we hear nothing on this subject for years, and then the Court of Appeal hands down two decision in rapid succession (see earlier bulletin on 28/5/07).

This time, the Court of Appeal shies away from the unworkable BNP Paribas v Mezzotero principle - not, of course, that it says so.

In Framlington Group v Barnetson, the Claimant (a senior executive) was negotiating terms of early departure with his employer. No litigation had been threatened.

The Court of Appeal held, overturning the judge, that the discussions were covered by the 'without prejudice' rule. Whilst not overruling Mezzotero, Auld LJ emphasised the desirability of allowing parties to attempt to settle prospective litigation. He expressly held that there is no special rule applying to employment litigation (para. 31), where early settlement of disputes is as important as in any other area of law.

According to Auld LJ, "the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree." (para. 34)

Note that the issue as to 'without prejudice' status does remain fact-sensitive. Where there is no real risk of termination (and an employment claim flowing from termination), it is unlikely that communications will fall under the 'without prejudice' banner.

Without Prejudice Communications

The Court of Appeal has handed down its decision in Brunel University v Webster & Vaseghi, considering issues of waiver of 'without prejudice' status.

The case involved a publication by the employer stating that the employees had demanded unreasonable amounts of compensation in an ongoing discrimination claim. The employees claimed victimisation, asserting they had been subjected to a detriment (i.e. effectively ridiculed) because they had brought a discrimination claim in good faith. The employer sought to argue that the employees could not rely on the without prejudice communications to progress their victimisation claims.

The Court of Appeal held:

• where both parties referred to 'without prejudice' communications in the ET1 and ET3, that was sufficient to waive privilege (para. 41)
• where an employer sets up an impartial enquiry involving a fact-finding exercise as to what happened during a 'without prejudice' meeting, that will also amount to a waiver of privilege (note: the facts were quite unusual - see para. 25)
• the Court of Appeal declined to comment on the correctness of the controversial decision in BNP Paribas v Mezzotero, save to comment that (para .32):

1. o it might sometimes be difficult to prove victimisation if employees are never allowed to rely on 'without prejudice' communications; and,
2. o the BNP Paribas v Mezzotero exception to the sanctity of 'without prejudice' communications should only arise if one of the parties has made it clear at an appropriate stage that it seeks to exclude any reference to 'without prejudice' discussions.

[Thanks to Rohan Pirani of Old Square Chambers, who represented the successful employees, for telling me about this case.]

Brunel University v Webster & Vaseghi

Compensation

An interesting little case in the EAT, worth filing away somewhere, is authority for the proposition that a tribunal should not award loss of earnings in respect of a period after the (successful) Claimant's work permit ran out - even if the Claimant would, in reality, have continued to work for the Respondent. As a matter of law, tribunals cannot award compensation in respect of a period when it would have been illegal for the employee to work.

Aroma v Ang

Resignation or Dismissal?

The Court of Appeal has overruled a decision by an employment tribunal (which had been upheld by the EAT), to the effect that at the end 2002 Mr Sandhu had resigned rather than been dismissed from his job with Jan De Rijk Transport.

His unfair dismissal claims had been rejected on the grounds that he simply had not been dismissed but the Court of Appeal has ruled that this was wrong.

On the facts, by agreeing terms for ending his employment, Mr Sandhu had done no more than attempt to "salvage what he could from the inevitable fact that he was going to be dismissed ...... the very antithesis of free, unpressurised negotiation".

In coming to its conclusion that the termination of Mr Sandhu's employment was by dismissal not resignation the Court was critical of the procedures used by the employer saying "Employers of the size of the respondent should not be encouraged to behave as the respondent has done, nor should they think that proper procedures for disciplining or dismissing their employees are unnecessary"

Sandhu v Jan de Rijk Transport Ltd

This is a copy (with permission) of a summary prepared by www.emplaw.co.uk to whom I [extend my thanks.]

Statutory Grievance Procedure

I have decided to launch a cheekiest legal argument of the year competition. Nominations happily received, but here's a starter...

An employee had trouble writing. The employer, rather than he, made a written note of his grievance for step 1 of the statutory grievance procedure.

The employer then argued that the statutory requirement to "set out the grievance in writing and send...a copy of it to the employer" was not fulfilled, and that therefore the employment tribunal had no power to hear his claims of race and sex discrimination.

Cox J., upholding the tribunal, refused to go along with this legalistic argument and the EAT thus permitted the claim to proceed.

Kennedy Scott Ltd v Francis

Maternity - what is the 'same job'?

Women who return from maternity leave are normally entitled to return to "the job in which she was employed before her absence". The EAT has handed down the first decision considering what this actually means.

The Claimant was a teacher at a primary school, in which the teachers typically rotated classes every two years. When she commenced maternity leave, she was teaching the reception class. On her return, she was allocated to teach Year 2. She alleged that this was not a return to the same job.

The EAT, upholding the tribunal, held that this was the same job. It was necessary to consider three factors when comparing the 'old' and 'new' jobs; nature, capacity and place - see discussion at paras. 51-54. The Claimant was employed as a primary school teacher, and she returned to work as a primary school teacher. Therefore the statutory requirement was satisfied.

On a minor note, the EAT substituted a finding that the Claimant was subjected to a detriment because she was not consulted over the class which she would be assigned to teach, as she would have been if she had not been absent on maternity leave.

Blundell v St Andrew's Catholic Primary School

Statutory Paternity Leave - Consultation

The DTI has issued a further consultation paper on the implementation of statutory paternity leave and pay, which is intended to be implemented in two years time.

The scheme allows mothers to pass some of their statutory maternity leave (and pay) to fathers if they (the mums) want to return to work during either OML or AML. This is likely to be prove popular with families where the mother earns substantially more than the father.

The government proposes to allow fathers to 'self-certify' that their child's mother is returning to work early and passing maternity entitlements over to them. He will be required to give eight weeks' notice. It is not proposed that the father's employer carry out any checks with the mother's employer, although HM Revenue & Customs will carry out occasional random checks to detect and prevent fraud.

Consultation on the implementation of the scheme closes on 3rd August 2007.

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

EAT - reopening conceded points

The EAT has a discretion to allow argument on points conceded at employment tribunal level, but will only exercise that discretion if there are exceptionally compelling reasons to do so.

This case is a complicated example of the EAT allowing points conceded at Tribunal to be reopened, in cases concerning large numbers of claims by part timers for the right to join occupational pension schemes in the health service (part of the Preston litigation).

The headnote states that "exceptional circumstances included the fact that the issue went to jurisdiction, these were four test cases representing 120 similar concessions in mass litigation affecting 11,000 NHS employees; the mistake was administrative not tactical, the Respondents applied in each case for a review to the Employment Tribunal, as well as appealing. There had been no first instance full hearing of the Claimants’ cases, the matter being handled according to national protocols, and no further investigation into the facts was required in order to do justice"

Secretary of State for Health & anor v Prance & ors

Thanks to www.emplaw.co.uk for giving me permission to adopt their summary of this case.

Inducing Breach of Contract

The House of Lords has handed down judgment in three conjoined appeals (one of which was the Michael Douglas v Hello case), dealing with the tort of inducing a breach of contract. This tort is often invoked in restrictive covenant / confidential information cases by old employers in order to impose liability onto the new employer (as well as the departing emplpoyee).

The House of Lords has held that it is an essential prerequisite for establishing the tort of inducing a breach of contract that the alleged wrongdoer specifically intended to interfere with the contract.

The tort is thus one of deliberately, not just carelessly or negligently, inducing such a breach.

Mainstream Properties Ltd v Young

[Thanks to www.emplaw.co.ukA for giving me permission to adopt their summary of this case.]

Failure to perform risk assessment for disabled employees

Does an employer's failure to make an assessment of a disabled employee of itself amount to a failure to make a "reasonable adjustment"? If the answer is no that is an end of the matter but if it is yes, then the employer is in breach of the DDA 1995.

There have been conflicting decisions on the point but the EAT clearly ruled in the case of Tarbuck v Sainsbury’s Supermarkets Ltd in 2006 that the answer is no.

In the present case, an IT manager had become disabled and claimed that his employer had failed to make a reasonable adjustment by not obtaining and consulting on a medical report before dismissing him. It was argued on his behalf that the Tarbuck case had been wrongly decided or alternatively that it could be distinguished. He lost, but given that there are conflicting decisions of the EAT on the point and that it is of some importance, the EAT gave leave to Mr Spence to appeal to the Court of Appeal.

It is understood that the Disability Rights Commission will be seeking to intervene in the appeal to the Court of Appeal, as it is believes this case (and Tarbuck) to be wrongly decided.

Spence v Intype Libra Ltd

Thanks to www.emplaw.co.uk for giving me permission to adopt their summary of this case.

Statutory Dismissal Procedure

An accounts clerk was dismissed for fraudulent accounting. The dismissal was automatically unfair, because of failure to follow the statutory dismissal procedure, but the tribunal reduced the basic and compensatory awards by 100%, commenting, "if ever there was a case for a 100% reduction for contribution, this was it". The appeal to the EAT raised two important points.

First, Elias P. overturned the finding that the dismissal was automatically unfair simply because some evidence was given to the employee during the disciplinary hearing. The "basis" for the allegation was given to her in advance, and that was all the statutory procedure required. In holding that all the evidence had to be provided to an employee in advance of the hearings, the tribunal set the requirement under step 2 "far too high".

Second, the tribunal had erred in ordering a nil basic award on grounds of a 100% reduction, since s120(1A) ERA provides for a minimum four-week basic award to be calculated after any reduction for contribution. Although it is open to a tribunal, under s.120(1B), to not increase the basic award "if it considers that the increase would result in injustice to the employer"; the tribunal had not considered that provision.

Had it been necessary, this compensation issue would have been remitted to the tribunal to consider whether to make any basic award in the light of s.120(1B). However, given the overturning of the unfair dismissal finding, no remission was necessary.

Ingram v Bristol Street Parts

[Thanks to Anya Palmer of Old Square Chambers, who successfully represented the employer, for telling me about this case.]

Victimisation: House of Lords

Getting back to Chambers this afternoon, I found 37 Emails waiting for me about this case. 37!!! I'd like to thank everyone individually, but come on...

Anyway, the House of Lords has overturned the Court of Appeal in St Helens Borough Council v Derbyshire (see bulletin 30/7/05), holding that forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.

The House of Lords held that the employer, who had written deeply unpleasant letters to 39 equal pay Claimants - pointing out that they might be responsible for the loss of their colleagues' jobs if they won their equal pay claims - had subjected those Claimants to a detriment on the grounds they had brought a tribunal claim.

Whilst acknowledging that the employer was entitled to take legitimate steps to try to settle claims, the House of Lords stated that the employment tribunal was entitled to find that Derbyshire Borough Council had crossed the line, and actively subjected the Claimants to a detriment.

Age Discrimination - Interviews

Last month, the Director of the Equality Tribunal in the Republic of Ireland published a decision on age discrimination likely to be relevant in the UK.

In the case, the complainant was asked questions about his age at an early stage of the interview process, including questions on the application form such as "living with parents/ renting/ mortgaged accommodation", "number of children", "age" and "date of birth".

The complainant provided incorrect information, objecting the questions were "irrelevant and invasive". He was not given the job, despite being suitable for it. The Equality Officer held that he had been discriminated against on grounds of his age, and awarded him 5,000 Euro.

Cunningham v BMS Sales

Discrimination on grounds of Philosophical Belief

Neil Addison of New Bailey Chambers (the man behind www.harassmentaw.co.uk) has emailed me to point out an important amendment to the Employment Equality (Religion or Belief) Regulations 2003, which is due to take effect on 30th April 2007.

Section 77 of the Equality Act 2006 amends the Regulations so as to replace the definition of 'religion or belief' (previously "any religion, religious belief or similar philosophical belief") with "any religion, or religious or philosophical belief".

The important bit is the removal of the word 'similar'. This was previously interpreted in Baggs v Fudge (the BNP member who claimed facism was a 'similar philosophical belief') as requiring that the philosophical belief be similar in nature to a religious belief (so Mr Baggs' claim was struck out).

Thus this amendment re-opens the question of whether political belief can fall within the 2003 Regulations. In fact, during debate in the House of Lords, it was suggested that a philosophical belief should cover a "world view or life stance". Whilst it's harder to think of a more opaque definition, I suspect that would cover fundamental political beliefs.

Smoking at Work

The Health Act 2006 means that smoking in all enclosed public spaces and workplaces was outlawed from 2 April 2007 in Wales and will be outlawed from 30 April in Northern Ireland and 1 July 2007 in England.

Acas has produced a first-class Q&A sheet for employers on how to stop staff smoking, containing answers to (amongst others) the following questions:

• I have been smoking at work for eight years so doesn't that give me a right to continue?
• Can I claim I suffer from an addiction under the Disability Discrimination Act?
• How can I get my reluctant workforce to take the new ban seriously?
• What if customers insist on smoking on my premises?

View the Q&A guide here.

Updated Acas Guides

Acas has published two revised guides today: Smoking at Work and redundancy payments.

As always with Acas guides, well worth reading.

Paying Salary as a Reasonable Adjustment under the DDA

The Cout of Appeal has handed down its decision in O'Hanlon v HM Revenue & Customs, upholding the EAT's decision that an employer is not obliged to pay salary to disabled employees pursuant to its duty to make reasonable adjustments (see bulletin 7/8/06 for EAT decision).

This is a complicated decision, but essentially turns on social policy and a justification defence - ie the courts should not interpret the DDA in a way which encourages people to stay away from (rather than return to) work and, in any event, it is not reasonable to expect an employer to subsidise indefinitely its long-term sick who also qualify as disabled.

O'Hanlon v v HM Revenue & Customs

Agency Workers and Whistleblowing

The EAT has held that - when constructing the statutory definition of 'worker' for the purposes of the whistleblowing legislation - it is appropriate to adopt a purposive approach.

Therefore an individual who supplied his services through a limited company, which in turn was engaged by an employment agency to provide services for the end-user (i.e. Claimant --> Claimant's service company --> employment agency --> end user), fell within the extended definition of 'worker' in s43(K) ERA 1996 and was entitled to rely on the whistleblowing legislation.

Croke v Hydro Aluminium Worcester Ltd

Thanks to John Bowers QC of Littleton Chambers and Rebecca Ireland of ClarksLegal, who represented the end-user, for telling me about this case

Bank Holiday Mondays / Part Time Workers

The Court of Session has affirmed the EAT's decision (see bulletin 19/4/06), holding that an employer who does not give a part-time employee pro rata days off work to reflect Monday bank holidays is not discriminating under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Mr McMenemy worked on Wednesdays, Thursdays and Fridays. His employer allowed people to have bank holidays off, but only if they actually worked on the bank holiday. Mr McMenemy claimed that amounted to less favourable treatment on grounds of his part-time status, as most bank holidays fall on a Monday.

The Court of Session, construing the Regulations and the underlying Directive, held that the treatment must be solely on grounds of the worker's part-time status (paras. 2 and 6). It held that, because the employer would have treated a full-time worker who did not work on a Monday in the same way, Mr McMenemy had failed to establish causation. Accordingly, his appeal was dismissed.

McMenemy v Capita Business Services Ltd

[Thanks to Brian Napier QC, who successfully acted for Capita, for telling me about this decision ]

Agency Workers

The EAT, in two separate judgments (both decisions of HHJ Peter Clark) has deconstructed and emasculated the Court of Appeal's reasoning in Dacas and the other agency worker cases.

Hot on the heels of the decisions of Elias P. in James v Greenwich Borough Council, and Bean J. in Craigie v London Borough of Haringey, the EAT has held in two further cases that agency workers were not employees of the end user.

First, in Heatherwood & Wexham Park Hospitals NHS Trust v Kulubowila & ors., the EAT pointed out that:

"It is not enough to form that view that because the Claimant looked like an employee of the Trust, acted like an employee and was treated like an employee, the business reality is that he was an employee and the ET must therefore imply a contract of employment." (para. 29)

It held that where the affairs of the parties are as consistent with the express arrangement (ie a triangular agreement), it cannot be said that it is necessary to infer a contract of service between end-user and worker (paras. 30-32).

Second, in Astbury v Gist, the EAT convincingly demonstrates the error implicit in Sedley LJ's throwaway comment in Dacas, that:

"The conclusion of the ET that Mrs Dacas was employed by nobody is simply not credible"

In a superb analysis, HHJ Peter Clark demonstrates precisely how the statutory framework does allow for someone in Mrs Dacas's position to be employed by nobody.

These decisions should both be read by anybody involved in any agency worker cases.

The worst case in the world... ever!

"Mr Khan is by some distance the most obdurate, recalcitrant and openly contemptuous party that any of us have ever had to deal with." (ET decision, quoted at para. 8 of the EAT judgment)

For those of us who deal with difficult litigants in person, here's a little case to make you realise life really isn't that bad...

Mr Khan brought a case against Kirklees Borough Council, alleging race and disability discrimination. His claim was ultimately struck out due to his deliberate refusal to attend hearing dates. Here are some of the highlights from the EAT decision (HHJ Ansell):

• prior to the strike-out, the case spanned 49 days of hearing over four-and-a-half years, largely in blocks of three or four days
• he made repeated inappropriate allegations against the tribunal and the Respondents, including allegations of racism, and in particular alleged that the tribunal panel were showing "repeated and racial Islamophobic allegiance with the Respondents"
• the Claimant, having discovered the tribunal chairman was a school governor, made a Freedom of Information Act request to the school for information about the chairman, with a view to embarrassing the chairman
• when that failed, he issued a free-standing race discrimination claim against the school, with a view to forcing the chairman to stand down due to a conflict of interest.

The summary above doesn't even begin to tell the sorry story of this case. It makes for an interesting read on the train journey home...

Khan v Kirklees Metropolitan Borough Council

Statutory Grievance Procedure 2

What should tribunals do when an ET1 is presented without a grievance letter having been sent (or if the required 28 days has not elapsed)?

I understand, anecdotally, that a number of tribunals (including Croydon) are staying such claims, rather than rejecting them, to allow the Claimant to put in a grievance. This is purportedly on the grounds that rule 1(8) of the Employment Tribunal Procedure Rules allows them to do so.

Hoever, whilst having "considerably sympathy" with the practical adantages of this approach, Elias P. has held that tribunals do not have jurisdiction to stay claims when a grievance letter has not been sent (or 28 days not elapsed). The ET1s must be rejected.

London Borough of Hounslow v Miller

Statutory Grievance Procedure

The EAT (Elias P.) has resolved a niggly little point which was causing problems in many tribunal claims.

Does the statutory grievance procedure apply when dealing with causes of action other than unfair dismissal, where the essence of the claim is about the dismissal? Thus, where an employee claims that his or her dismissal is discriminatory, is she obliged to lodge a step 1 grievance letter and wait 28 days?

Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the grievance procedures do not apply where the grievance is that the employer has dismissed the employee. But until now, it has been unclear whether that subregulation engages where the complaint is one of (say) discrimination, notwithstanding that it relates to the dismissal decision.

The EAT has now clearly held that the grievance procedure does not apply in those circumstances. So, where an employee claims discrimination arising from a dismissal:

• she is under no obligation to lodge a step 1 grievance letter; and,
• she is not entitled to a three month extension of time under regulation 15(3).

Lawrence v HM Prison Service

Equal Pay

Yet another EAT decision in the long-running North-East equal pay litigation was handed down last week.

In Bainbridge v Redcar & Cleveland Borough Council (no. 3), Elias P. held:

• employees whose jobs are rated as equivalent under a job evaluation scheme cannot, unlike in cases involving like work or work or equal value, backdate their claims for six years. The claims arise on the date of the job evaluation study, and cannot be backdated (notwithstanding that the nature of their jobs would be the same) (paras. 34-37)
• no uplift to compensation should be awarded because of the employer's failure to hold a meeting with individual employees under the statutory grievance procedure. The nature of the employees' conditional fee agreements with their solicitors meant that they could not have settled the claims themselves (and would not have understood the issues in any event), and therefore such a meeting would have been futile - amounting to an exceptional circumstances allowing for no uplift to compensation (para. 88). The EAT was critical of the use of CFAs in this situation (paras. 57-58), although made it clear that there was no suggestion of improper or unethical conduct by the Claimants' solicitors.
• (by a majority), employees are free to bring fresh proceedings for equal pay, in respect of the same period, citing a new comparator. The principles of issue estoppel and cause of action estoppel do not prevent the Claimants having a second bite at the cherry - whether successful or unsuccessful first time around - with a different comparator (paras. 124-130)

This is an interesting equal pay judgment, and worth reading if you practice in that area.

Bainbridge v Redcar & Cleveland Borough Council

Abolition of Statutory Dispute Resolution Procedures

The DTI launched a consultation yesterday with a view to abolishing the statutory dismissal and grievance procedures, introduced in 2004.

The consultation follows the report from Michael Gibbons on the efficacy of the 2004 Regulations. He commented, "I was struck by the overwhelming consensus that the intentions of the 2004 Dispute Resolution Regulations were sound and there was a genuine attempt to keep them simple. However they have had unintended consequences which have outweighed their benefits."

Key recommendations of the Gibbons report, on which views are sought in the consultation paper, include:

• repeal the statutory dismissal and grievance procedures
• simplify tribunal applications forms
• provide free mediation services for employment disputes
• abolish Acas fixed conciliation periods
• strengthen tribunal's powers to award costs, including taking into account the efforts the parties have made to resolve workplace disputes or settle the case

Click here for the Gibbons report, or here for the consultation paper. And if you want to respond, click here (the consultation closes on 20th June 2007).

High Court rules Sex Discrimination Laws incompatible with EU Directive

The High Court has today ruled, in judicial review proceedings brought by the EOC, that the government has failed to implement the European Equal Treatment Directive properly within the Employment Equality (Sex Discrimination) Regulations 2005 so as to protect the rights of women.

The key points are:

• The definition of harassment in the regulations was too narrow, and did not reflect the broad protection in the Directive. For example, the regulations gave no apparent protection to women harassed by clients, even when their employer knows of the harassment and could take steps to prevent it but fails to do so.
• Women's rights during maternity leave were also unclear as a result of the new regulations. Women and their employers did not know whether a woman was protected if she was not consulted about a change to her job while on maternity leave, or if she fell behind a queue for promotion because her time on additional maternity leave was excluded from length of service.

The court has ordered that the Secretary of State for Trade and Industry has until midday, March 16th to inform the EOC and the court how the Government plans to remedy the situation.

NOTE: I have obtained the above information from an EOC press release and have not seen the actual judgment to check its accuracy.