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]