Does Size Really Matter?

The EAT has handed down judgment in Grant v In 2 Focus, dealing with an ET1 form which was rejected because it was slightly shrunk during the faxing process.

The Secretary seemingly concluded that the form was not on 'the prescribed form' due to the reduction in size, and therefore rejected it.

Giving the judgment, Elias P. held:

• it is incumbent on the Secretary to explain why an ET1 is not being accepted (as here, the Claimant was "understandably...wholly bemused why the forms had been rejected") (para. 18)
• a reduction in size due to the faxing process is not a reason to reject a form, particularly when lodging by fax is specifically provided as a legitimate way of presenting the claim - otherwise one reaches a "ludicrous result" (para. 35)

Grant v In 2 Focus

Contract Variations and TUPE transfers

The EAT has, today, handed down an interesting decision on contractual variations following a TUPE transfer. The case was decided under TUPE 1981, but the principles remain relevant to TUPE 2006.

Elias P. held that the Daddy's Dance Hall principle - i.e. that changes to contracts made as a result of TUPE transfers are void - does not apply to changes which are to the benefit of the employee. It is only changes to the detriment of the employee that are void.

The core reasoning is at paragraphs 49-54.

Power v Regent Security Services

[Thanks to Paul Housego of Beers solicitors, for telling me about this decision]

Polkey: superb summary...

The EAT has handed down a decision containing a superb summary of the Polkey principle, and its interaction with s98A of the ERA 1996. Importantly, Elias P. (presiding) bangs yet another nail in the coffin of tribunals which avoid making a Polkey reduction on the basis that it is too speculative.

Print off, frame, and hang para. 54 of this judgment on your wall...

[Thanks to Daniel Tatton-Brown of Littleton Chambers, Counsel for the successful employees, for telling me about this case]

Software 2000 v Andrews

Madarassy v Nomura

The Court of Appeal has, today, handed down its decision in Madarassy v Nomura, dealing with the burden of proof in discrimination cases.

Essentially, it upholds the two-stage approach in the House of Lords' judgment in Igen v Wong. To that extent, it says little new. However, it contains a useful example of working through the burden of proof provisions in a factually complex case. Likewise, the same exercise is undertaken in two other cases handed down simultaneously: Appiah v Bishop Douglass Roman Catholic High School and Brown v Croydon

Somewhat tongue in cheek, my favourite part of the Madarassy judgment is para. 16, where Mummery LJ refuses to lay down yet further layers of complexity about the burden of proof, saying "Repetition is superfluous, qualification is unnessary and contradiction is confusing."

Thanks to Victoria Parry of Osborne Clarke, who successfully represented Nomura, for telling me about this decision

Madarassy v Nomura

Sleepy Bus Drivers

The EAT has handed down a decision dealing with rest breaks for bus drivers (which is of general application for all mobile workers). HHJ Peter Clark held, construing some quite complex provisions of the Working Time Regulations 1998, that:

• bus drivers are not entitled to a rigid 11 hours' rest in each 24-hour period (under WTR reg 10(1));
• nor are they entitled to 'compensatory rest' under reg. 24 (being an equivalent period of rest, but at different times);
• instead, they are entitled to 'adequate rest' under reg. 24A (regular but undefined rest periods, so as to prevent them injuring themselves or others through fatigue).

Sadly, nobody thought of asking why a bus driver might feel sleepy, with fascinating issues like this to keep them awake...

First Hampshire & Dorset Ltd v Feist & ors.

Unfair Dismissal Time Limits and Citizens Advice Bureaux

It's been a year or so since this point last cropped up, so we were overdue for another confusing decision...

Luckily, though, Lady Smith (sitting in the EAT) has handed down a clear and helpful judgment dealing with whether it is reasonably practicable for a Claimant to present an unfair dismissal claim where, due to the fault of the CAB, the three month time limit is missed.

Reviewing all the authorities, Lady Smith held that:

• there is no rule of law that a CAB advisor should be regarded as a 'skilled advisor', comparable to a solicitor, so as to fix the Claimant with the advisor's fault (para. 25).
• there is a distinction between cases where an advisor provides general (incorrect!) advice on time limits, and where the advisor takes responsibility for actually presenting the ET1 on the Claimant's behalf (paras. 27-28)
• given the appeal result (for which the Claimant was waiting, on the CAB's advice) was known two days before the end of the three month period, and the Claimant downloaded an ET1 from the ETS website during those two days (and could have submitted his ET1 electronically), it was nevertheless reasonably practicable for him to have presented his claim within the three-month deadline. Accordingly his claim could not proceed (para. 41)

Royal Bank of Scotland v Theobald

Scope of Unlawful Deductions Claim

The Court of Appeal has, this morning, handed down an important judgment considering the scope of an unlawful deductions claim.

About 600 employees claimed they had not been given adequate bonuses under an implied contractual promise to replicate a share bonus scheme operated by a predecessor employer. As they remained employees, the tribunal could only order payment under its unlawful deductions jurisdiction (and not its breach of contract jurisdiction, which only applies to ex-employees).

The Court of Appeal held that such claims are, in reality, claims for unliquidated damages and that they fell outside the scope of an unlawful deductions claim. Wall LJ, giving the leading judgment, stated that the unlawful deductions jurisdiction only applied to claims for "a specific sum of money" (para 46) or to an "identifiable sum" (para 51). Where detailed investigation as to the level of alleged underpayment is required (as in this case), the proper route was for the employees to bring a breach of contract claim - which (as they were still employed) had to be done in the county court. Accordingly their claims were dismissed.

Coors Brewers v Adcock

Bad Grievances and Constructive Dismissal

The EAT has handed down a decision dealing with constructive dismissal (in the context of a grievance procedure which was alleged to have been badly conducted). It is authority for two important propositions.

First, that the 'range of reasonable responses' test applies to the conduct of grievance procedures. Laying this down as a point of general principle, Lady Smith stated it is "not only appropriate, but necessary" to consider whether the employer's conduct of the grievance procedure fell within the band of reasonable responses. She also held that tribunals should not separate out each part of the grievance procedure to see whether it was reasonably conducted; instead, it should be examined as a whole (para. 36).

Second, she stated that in a constructive dismissal case, tribunals should consider the question of whether an employer had reasonable and proper cause for its conduct before going on to consider whether the conduct complained of was calculated or likely to destroy or seriously damage the employer/employee relationship of trust and confidence. This is an important point of principle, as the order does seem to make a difference (Lady Smith's test appears to exclude the impact on the employee as a factor when first considering whether the employer had reasonable cause for acting as it did). This issue will crop up again...

[Thanks to Richard Powell, associate tenant at Littleton Chambers, for sending me this decision]

Abbey National plc v Fairbrother

Increase in Annual Leave Entitlement 2

Increase in Annual Leave Entitlement 2 Subsequent to my bulletin dated 11th January 2007 (announcing the increase in paid annual leave from 20 days to 28 days), the DTI has now published the consultation paper and the draft Annual Leave (Amendment to Working Time Legislation) Regulations 2007.

Available here, the draft SI starts at page 19 of the consultation document. Warning: it's a slow one to download.

[Thanks to Joanna Kavanagh from Dawson Hart for sending me this information.]

Increase in Annual Leave Entitlement

The DTI has, this afternoon, announced an increase in minimum holiday entitlement under the Working Time Regulation 1998 from 20 days to 28 days per annum.

Some employers currently include the eight bank holidays as part of workers' 20-day annual leave entitlement. This change effectively requires them to add the eight bank holidays to the 20-day annual leave entitlement. The DTI estimates that 6 million workers will benefit from this change.

Statutory annual leave entitlement will be increased in two stages, rising from 20 to 24 days on 1st October 2007, and from 24 to 28 days on 1st October 2008. There is to be a second round of public consultation, closing on 13 April 2007, on the implementation of these changes.

See DTI Press Release

Thanks to Eugenie Verney for sending me this information]

Modified Grievance Procedures

The EAT has, today, delivered a judgment considering the requirements of the modified grievance procedure. I believe this is the first appellate case dealing with the modified, rather than standard, grievance procedure.

HHJ Richardson held that the requirement in the modified procedure that the employee set out in writing "the grievance and the basis for it" meant that a grievance letter which simply identified an equal pay complaint (without identifying the category of comparator and the nature of the alleged disparity in pay) did not comply with the modified grievance procedure, notwithstanding it would have complied with the standard procedure.

He stated he reached that conclusion "with no great satisfaction", as it meant the Claimant was barred from access to the tribunal on a technicality. A factor which he considered important was that the employee had consented to the use of the modified grievance procedure (as is necessary, for the modified procedure to apply).

City of Bradford v Pratt

Jealousy Dismissals

solicitor, in a small practice, dismissed his much younger personal assistant with whom he had been having a sexual relationship. He had become jealous when he discovered she was also having an affair with a University student.

The EAT overturned the tribunal's finding that this dismissal amounted to sex discrimination. In its judgment, the EAT sought to draw a distinction between the statutory phrase, 'on the grounds of her sex', and the 'but for' test which the tribunal applied.

More easily understood was the basic premise that if the reason for dismissal was "jealousy" (as the tribunal found), such a reason is "inconsistent with the reason being her sex" (para. 24).

B v A

£200 fine for non- minimum wage payers

The DTI has, this morning, published a policy document containing its policy on issuing fines to employers who do not pay the minimum wage.

The policy document states that a fine (approx. £207pw for each full time employee) will be levied if the minimum wage arrears have not been paid within seven days of service of an enforcement notice.

DTI Penalty Notice Policy (.pdf document)

Michael Duggan's Case Index

Michael Duggan of Littleton Chambers has produced the 2006 edition of his annual Case Index. In it, he summarises every important employment law case of 2006 (grouped by subject area), and provides links or references to fuller reports in the ICRs, IRLRs, IDS Brief and, indeed, these bulletins.

He has offered to make it available to everyone on my mailing list. To view it, please click below.

Michael Duggan's 2006 Case Index

SDA Comparators

Who is the correct comparator when a male manager enters the women’s toilets and shouts at a woman on her break whom he believes to be 'skiving'?

The employment tribunal held that when a man enters the women's toilets, that (in itself) is an act of sex discrimination.

However, according to the EAT (HHJ McMullen QC), the question for a tribunal to ask is: would the Respondent, in the form of a female manager, with the same robust management style as this manager, treat a male cleaner having the same sensitivity as the Claimant, believed to be 'skiving', in the same way as he treated the Claimant?

The finding of sex discrimination was accordingly set aside.

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

Kettle Produce v Ward

Compromise Agreements

An interesting case on compromise agreements appears on BAILII today. An employee signed a compromise agreement, which purported to settle "all claims past or future arising out of the termination of her employment". The EAT held, inevitably, that this was not sufficient to compromise claims which arose before termination of her employment and that she was free to bring proceedings in respect of those.

More interestingly, the compromise agreement was held inadequate to compromise her claims of race discrimination. The body of the agreement stated that it was in settlement of all claims for "redundancy payments, unfair dismissal, discrimination on grounds of race, sex and/or disability". However, the recitals at the end simply stated that "It is confirmed that the conditions regulating this Agreement in section 203 of the Employment Rights Act 1996 are satisfied." There was no similar recital in respect of the Race Relations Act 1976, and the EAT held that the agreement was therefore insufficient to compromise the race claim (notwithstanding the clear intent of the parties), and she was free to pursue the claim.

Palihakkara v BT plc