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.