Age Discrimination

In Seldon v Clarkson Wright & James, a firm of solicitors had a provision in their Partnership Agreement which required partners to resign at 65 (although they could be kept on by agreement). The claimant alleged that this was age discrimination.

The Employment Tribunal found that although the provision constituted direct age discrimination, it was justified. In part this was found on an assumption that performance tails off at around this age. The claimant appealed on various grounds, and the Equality & Human Rights Commission was permitted to make representations as interveners.

The EAT dismissed all the grounds save one, namely that the assumption that performance dropped off at 65 was not supported by any evidence and involved stereotyping. In principle, such a rule could be justified, but it was not justified in this case. The case was remitted to the same Tribunal to consider whether the need to achieve the other legitimate aims was sufficient to justify the rule.

In his judgment, Elias P. made the following observations:-

• the test with respect to direct age discrimination is not fundamentally different to that which applies to the other forms of discrimination. Nothing in domestic law nor the Directive requires a different test;
• there is no basis for Tribunals to direct themselves that it is only in very exceptional cases that direct age discrimination should be permitted - "it must apply the normal principles of legitimate aim and proportionality";
• the fact that, at the time when the rule was agreed upon the firm gave no thought to age discrimination or its justification, does not prevent it from justifying that rule now;
• the fact that the partners consented to the rule originally may be a factor to consider, but it does not automatically make it justified;
• for a partnership to seek to conduct matters so as to achieve "a congenial relationship amongst the partners" is a perfectly legitimate aim - "the equality laws are not designed to determine for companies what might be appropriate objectives"

[Thanks to Tom Croxford of Blackstone Chambers, who acted for the Respondent, for telling me about this case. Thanks also to www.emplaw.co.uk for allowing me to reproduce their summary of the EAT's key observations]

Homophobic Banter

The Court of Appeal has, today, overturned the EAT's decision in English v Thomas Sanderson Ltd. (see bulletin 20/2/08 for EAT decision).

By a majority, the Court of Appeal held that the Sexual Orientation Regulations 2003 DO protect a heterosexual man who is repeatedly tormented by homophobic banter (including names such as “faggot”) when (a) he is not gay, (b) he is not perceived or assumed to be gay by his tormentors, and (c) he accepts that they do not believe him to be gay. The banter arose purely because he had attended a boarding school and lived in Brighton.

The judgment of Laws LJ, who dissented, is twice as long as the combined judgments of Sedley LJ and Lawrence Collins LJ, who allowed the appeal. The judgments make very interesting reading.

[Thanks to Marcus Pilgerstorfer for telling me about this case. He has written an excellent summary of it, which appears on the Old Square Chambers website]

Time limits in the EAT

We all know the strict Abdelghafar rule against extending the 42-day time limit for appealing to the EAT. But what about the 28-day time limit that an Appellant has to apply for a r3(10) hearing if his/her appeal is rejected under r3(7)? Is it the strict Abdelghafar approach? Or the more relaxed approach the the EAT takes for, for example, lodging bundles of authorities or skeleton arguments?

This has now been decided by Underhill J. in Echendu v Morison Supermarkets. He holds that the strict Abdelghafar approach applies, so the 28-day time limit cannot be extended unless exceptional reasons apply (para 20).

He also holds that the 28-day period starts running from the date the r3(7) Notice is sent out, not the day it is received by the parties. Since the rule 3(7) Notice is not normally sealed by the EAT, the sensible rule of thumb is to assume that the letter is sent out on the date on the Notice itself, although that could be rebutted by other evidence (eg the postmark on the envelope) - paras. 13-15.

[Thanks to Dale Martin of Littleton Chambers, who successfully acted for the Respondent, for telling me about this case]

Restricted Reporting Orders

The EAT has, in Tradition Securities & Futures SA v Fariad, held that a restricted reporting order (‘RRO’) prohibiting the naming of the Claimants in relation to allegations of sexual misconduct can be varied in order to permit naming of those Claimants, notwithstanding that the previous RRO had been varied so as to permit reporting of the Claimant’s other discrimination claims against the alleged perpetrators.

In reaching this conclusion, Underhill J stated:

• an application to vary a RRO is governed by the principles in Hart v English Heritage (2006), namely a Tribunal should only vary a case management order where there is a material change of circumstance or some other exceptional reasoning justifying reconsideration.
• the Claimants’ change of position that they no longer wished to have the protection of the RRO was sufficient reason to justify reconsideration by the Tribunal.
• in principle, if the naming of the Claimants was likely to lead to identification of the alleged perpetrators by members of the public, it was open to the Tribunal to draft the RRO so as to prohibit such identification.
• on the facts of the case, it was not established that the identification of the Claimants was likely to identify the alleged perpetrators. Crucially, no identifying detail had been published in relation to the other discrimination claims and would almost certainly not be published in the future because the press would be aware that such publication would in practice lead to the alleged perpetrators’ identification in relation to the sexual misconduct allegations.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this summary]

Annual Increase in Compensation Limits

The annual increase in compensation limits has just been published (for dismissals and other trigger events occurring after 1st February 2009). The key increases are:

• compensatory award: £63,000 to £66,200
• a 'week's pay': £330 to £350
• maximum redundancy payment: £9,900 to £10,500

Full details here.

Allen v GMB - House of Lords refuses permission

The House of Lords has refused permission to appeal in the important case of Allen v GMB (for the Court of Appeal's decision, see bulletin 16/7/08).

The Court of Appeal restored the employment tribunal's finding that the GMB had indirectly discriminated against female union members by recommending acceptance of a 'single status' pay deal which grossly underestimated the compensation which should be due to female equal pay Claimants. Although the objective of securing a fair single status pay deal was legitimate, the means used by the union to secure the deal (including grossly misleading the female back-pay claimants) meant that they had not pursued proportionate means of achieving that pay deal.

It is likely that - subject to time limit issues - large numbers of discrimination claims by female workers against their trade unions, complaining of the way in which their rights were treated in negotiations with their local authority employers, will now follow.

[Thanks to Alex Robson of Littleton Chambers for telling me about this]

New edition out today...

The fourth edition of the Law Society Handbook on Employment Law, which I co-write with Henry Scrope, is out today.

If you fancy buying a copy (£59.95), the best place is via Amazon.co.uk (who don't charge the normal £4 or £5 for postage, although they offset this generosity by charging a £2 'sourcing fee').

Reviews of Previous Edition

• For an all-embracing, authoritative introduction to all major aspects of employment law, the Law Society's Employment Law Handbook is hard to beat."

Employment Lawletter

• "It strikes the right balance between detail and overview. If one was looking for that swift answer then this book will provide one.

ELA Briefing

Illegality

Elias P. has held, in Blue Chip Trading Ltd v Helbawi, that a breach of conditions imposed by a student working visa was not sufficient to render the whole employment contract illegal so as to a defeat a claim under the National Minimum Wage Act 1998. Mr Helbawi worked longer hours than was permitted by his visa during term-time. Notwithstanding that the breach was “flagrant and deliberate” and indeed a criminal offence, Elias P held, on the facts of this case, that part of the contract was legal and could be severed from the illegal part:

• the breach of the conditions was not a complete bar to Mr Helbawi doing any work at all. His visa allowed him to do particular work at certain times (Vakante v Governing Body of Addey and Stanhope School distinguished)
  
• Mr Helbawi could, subject to liability, recover with respect to those weeks where he was not working in excess of the number of hours permitted by his visa
  
• when exceeding the number of hours permitted to work under the terms of the visa, Mr Helbawi was knowingly doing the very thing he was forbidden from doing.

Accordingly, he would not be allowed to recover in respect of these weeks as to allow otherwise would involve the court condoning the illegality

Minimum Wage - Restaurant Tips

The government has, this morning, launched a consultation on proposed amendments to the minimum wage legislation.

Currently, where tips and gratuities are given directly to workers by customers and are retained by the workers without any other party being involved, they cannot count towards NMW payment. Where service charges, tips, gratuities and cover charges, are paid by the employer to the worker via the payroll then the tip can count towards national minimum wage pay (currently £5.73ph for adults).

The government proposes to amend the legislation so that tips can never count towards payment of the minimum wage. It will also require restaurants to make it clear how they distribute tips so that customers know where their money is going.

According to the Press Release issued at 8am this morning, the consultation paper is due to go up here. But the link isn't working at the time of sending this bulletin.

Incapacity Benefit and Compensation

In the conjoined appeals of Telindus Ltd v Brading and Sheffield Forgemasters International Ltd v Fox, the EAT (Silber J presiding) held that the mere fact a claimant received incapacity benefits for a period did not preclude him from recovering compensation for loss of earnings during the same period (subject to the rule against double recovery).

In each case, the claimant was dismissed, and the dismissal was held to be unfair and discriminatory. The Employment Tribunals awarded compensation for earnings which the claimants would have received had they not been unfairly dismissed or discriminated against, including in each case a period during which the claimant received incapacity benefit. The employers contended that the receipt of incapacity benefit should have prevented the tribunal from awarding damages for loss of earnings, because under the relevant statutory benefits scheme eligibility for incapacity benefits depended on a person being “incapable of work”; and unless that incapacity was itself attributable to the respondent’s unlawful conduct, the claimant should not be awarded damages in respect of that period.

The EAT held that statutory the definition of “incapable of work” was a deeming provision which applied only for the purposes of the benefits system, and observed that many people who satisfy this test might still, as a matter of fact, be able to work.

It did not follow therefore that a person incapable of working for purposes of the benefits scheme must be regarded as unable to earn during the period of incapacity.

Tribunal bias

City & County of Swansea v Honey is a rare example of the EAT assenting to a bias appeal. The judgment contains comments of some importance to the probity of wing members sitting on cases involving employers in the same area of industry as the member.

The Employment Tribunal found that Mr Honey, a senior legal executive with Swansea Council, had been automatically unfairly dismissed and awarded him the statutory maximum compensation. After judgment but before the remedies hearing, the employer discovered that the Union wing member was a District Secretary of the RMT and had been involved in the representation of taxi drivers in a campaign against the local authority employer to restrict numbers of taxi licences and held a "thoroughly negative" view of the local authority as an organisation. This did not relate to the parties involved in the Employment Tribunal hearing who were unknown to him.

The employer argued apparent bias. The EAT was strongly critical of the failure of both the Employment Judge and the member to recognise that this was a plain case of apparent bias, both before trial and at a subsequent review application.

The EAT commented (in particular at paragraph 35) that if a wing member has had any contentious dealings with an employer or has articulated criticism of an employer, this must be declared to the parties and will probably satisfy the test of apparent bias, even where, as in the immediate case, the individuals involved in the Employment Tribunal claim were unknown to the member.

Statutory Grievances and Equal Pay Claims revisited

In three conjoined appeals under the name Arnold & ors v Sandwell MBC, the EAT has revisited the question of what detail is necessary to identify “the complaint” in a grievance concerning the Equal Pay Act 1970.

Departing from the EAT decision in Highland Council v TGWU, Elias P held that the information in a grievance can be minimal and need state no more than that the claim is a claim under the Equal Pay Act 1970. Elias P reasoned as follows:

• it is implicit in an Equal Pay Act grievance that the complaint is that a comparable employee man doing equal work is receiving more than she is and ought not to be
• a restrictive construction of “the grievance” may deny Claimants (often litigants in person) an opportunity to bring their claims, an outcome wholly inconsistent with the objective of the Dispute Regulations
• once notified of the grievance, an employer can initiate further discussion to find out more about the complaint
• even if the bare statement of grievance suffices, a Claimant who provides no more will be subject to a sanction at any remedy stage. This was a significant consideration in Elias P’s reasoning and such that, in part, persuaded him to depart from the Highland Council decision (para. 65/75).

We are now faced with two conflicting EAT decisions on the proper construction of the Dispute Regulations, a predicament that influenced Elias P in granting the employers permission to appeal.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]

New Acas Code on Disciplinary and Grievance Procedures

The eagerly awaited revised Acas Code of Practice on Disciplinary and Grievance Procedures has been published this afternoon. It comes into effect on 6th April 2009, when the statutory dismissal and grievance procedures are abolished. An unreasonable failure by an employer to follow the Code will result in a tribunal having the power to increase any award by up to 25%.

It can be downloaded from Acas's website. The current version has the word 'draft' stamped all over it as it is awaiting approval by parliament - but this should be a formality.

Age Discrimination

The EAT has, in Live Nations (Venues) UK Ltd v Hussain, given some guidance as to conduct which may justify a finding of age discrimination:

• an employer that genuinely believes employee 'A' is guilty of age discrimination against employee 'B', and dismisses employee 'A' for that reason, cannot be said to be discriminating against employee 'A' on the grounds of his or her age
• an unjustified or unreasoned belief that an employee has ageist tendencies may render a dismissal unfair, but it does not justify an inference that the reason for the dismissal is the employee's age
• if an employee's dismissal for suspected ageism justified an inference of age discrimination by the employer, it might restrict an employer in dealing with a suspected discriminator for fear that they would be found to be discriminating
• reference to an employee being 'too old to change' could, in an appropriate case, provide some basis for inferring age discrimination.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]

Religious Discrimination

The EAT has held, in Saini v All Saints Haque Centre, that Regulation 5(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 will be breached not only where an employee is harassed on the grounds that he holds certain religious beliefs but also where he is harassed because someone else holds certain religious beliefs.

In reaching this conclusion, the EAT reasoned that:

• regulation 5(1) requires conduct “on grounds of religion or belief” and as such, does not require the unwanted conduct to be on the grounds of the employee’s own religious beliefs.
• such an interpretation is consistent with the aims and intention of the EC Framework Directive and with the judicial interpretation of the Race Relations Act 1976, which is similarly engaged where there is discriminatory conduct on the grounds of someone else’s race.
• to use an employee in any manner in the implementation of a discriminatory policy is caught if the effect on the employee falls within any of the descriptions set out in paragraph 5(1)(b). The circumstances need not be confined to those where an employee has been instructed to act in a discriminatory fashion.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]

Age Discrimination

In Chief Constable of West Yorkshire Police v Homer, the EAT held that a requirement that an employee had to have a law degree to be entitled to graded at a higher pay scale did not put a 61-year old employee at a particular disadvantage on the grounds of his age, even though he could not have obtained a degree (studying part-time) before he retired.

The EAT (Elias P. presiding) reasoned:

• the requirement of a law degree was not something required only of those over a certain age. Nor was it in principle more difficult for an older person to obtain the qualification that it was a younger person.
• whilst the Claimant could not materially benefit from any law degree he might obtain, that was because his working life was limited by his age. The EAT described such a disadvantage as "the inevitable consequence of age; it is not a consequence of age discrimination" (para 39), drawing an analogy with an employee who complained that a universal payrise was discriminatory because he, being closer to retirement, had less time than younger colleagues to enjoy it.

The decision need not however spell all doom and gloom for Claimants. Had Mr Homer been able to establish the requisite disadvantage, the EAT stated that it would have upheld the tribunal's finding that any age discrimination was not justified as the requirement was not a proportionate means of achieving the recruitment and retention of appropriately qualified staff.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this case summary]

Working Time Regulations - Rest Breaks

In Commissionaires Management v Hughes, a case dealing with several aspects of rest breaks under the Working Time Regulations 1998, the EAT has held:-

• that an employee is only entitled to one rest break once he has worked more than six hours; he is not entitled to a subsequent rest break if he works for twelve hours (paras. 15-16)
• where a rest break cannot be taken at the correct time, a proper compensatory rest break must be offered. It is not enough to say that an employee can rest between shifts (paras. 25-29)
• a claim can only be brought in respect of rest breaks for the three month period before presentation of a claim (six months if the statutory grievance applies). The concept of 'continuing breaches' to enable further backdating does not apply here (para. 42)

Stress at Work Claims

The Court of Appeal has handed down its decision in Dickens v O2 plc, dismissing O2’s appeal against the trial judge’s finding that O2 was liable for stress induced personal injury suffered by one of its employees.

Whilst purporting to apply the guidance given in Hatton v Sutherland, the Court's application of that guidance to the facts before them arguably indicated that the requirements of reasonable foreseeability, breach and causation may not be as difficult for claimants to satisfy as a strict reading of Hatton may have suggested.

• In relation to reasonable foreseeability, it was sufficient that the employee had previously complained about the stress of her job, had been coming into work late on a regular basis, and had told her line manager that she did not know how long she could keep going before she would become ill;
• In relation to breach of duty, O2 ought to have sent its employee home pending urgent investigation by occupational health, even in circumstances where she had not been signed off sick by her GP. The Court held that the mere suggestion of confidential counselling was not an adequate response to a situation where an employee was complaining of severe stress;
• In relation to causation, the Court inferred a sufficient causal connection between the breach and the illness, finding the series of failings by O2 to address her problems had materially contributed to her illness.
• In relation to apportionment, the Court indicated that there should be no across the board percentage reduction to damages for the contribution to the illness made by non-tortious causes, doubting the correctness of Hale LJ’s remarks in Hatton on this point.

[Thanks to Bruce Gardiner of 2 Temple Gardens, who acted for the Defendant, for providing this case summary]

Names of all ET Respondents to be published

The Information Commissioner's Office has ruled that the identity of all Respondents to employment tribunal cases has to be disclosed by the Department for Business, Enterprise and Regulatory Reform (BERR), the government department responsible for tribunal policy, under a Freedom of Information Act request.

The ICO Press Release states that "The new ruling by the Information Commissioner’s Office paves the way for the material to be released routinely once again." Details of parties to tribunal cases previously appeared in a Register, but this ceased in 2001 following concerns that commercial organisations targeted parties (including represented parties) offering to represent them in tribunal cases.

To view the Decision Notice, click here. Note that this decision is concerned with the identity of Respondents only; not Claimants. Far stronger privacy arguments will exist in connection with the identity of Claimants.

Age Discrimination - ECJ Judgment

[Thanks to Louise Jones of 1 Temple Gardens for providing this summary]

The ECJ has held, in Bartsch v Bosch, that where there is no link with Community law, it is not mandatory for a Member State to apply the prohibition against age discrimination.

Mrs Bartsch, a German national, was 21 years younger than her husband, a former BSH employee. Under their pension policy, although spouses were normally entitled to pension payments, upon his death, she was not so entitled, as BSH had a guideline that they would not make payments if the widow/widower was more than 15 years younger than the former employee. Mr Bartsch died before Germany had implemented the EC Equal Treatment Framework Directive 2000/78, and BSH imposed their guideline against Mrs Bartsch.

Mrs Bartsch challenged this in the German labour courts unsuccessfully, but the Landesarbeitsgericht (Higher Labour Court) made a reference to the ECJ: was the prohibition under Community law of discrimination on the ground of age is mandatory where the allegedly discriminatory treatment contains no link with Community law? It was also significant that the guideline had been implemented by BSH before Germany had implemented Directive 2000/78; the time-limit for implementation had yet to expire.

The Court distinguished Mangold [2005], where the national rules in question were a measure specifically implementing a directive, so the national measure had fallen within the scope of Community law. The difference in the index case was that the guidelines at issue do not correspond to measures transposing Community provisions.

The Court held that neither the Equal Treatment Framework Directive, nor Article 13 EC, enable a situation such as Mrs Bartsch’s to be brought within the scope of Community law. The kind of scheme in question was not covered by the legal framework of the Directive or Article 13.

[Thanks also to Katherine Apps of Littleton Chambers for telling me about this case]

Delay

The EAT's decision this week in Grosvenor v Aylesford School is notable simply for its bizarre facts (paras. 10-14), as well as the comment that teachers who remove their clothing on a school coach might find themselves facing a reduction in award for contributory fault (paras 35 + 36).

But it is also a reminder that:

• delay, even if it is excessive, is not normally a free-standing ground of appeal. In a case where the tribunal was giving regular consideration to the case in Chambers throughout the lengthy period of reserving the judgment, then there was no error of law to correct(paras. 2-6).
• a tribunal has a wide discretion in dealing with just and equitable extension of time and the manner in which the question is dealt with at the tribunal is unlikley to raise an error of law, taking into account the fact that the issue was flagged up early on in proceedings (para. 20).

[Thanks to Ed McFarlane of RBS Mentor for telling me about this case and providing the summary]

Time Off for Emergencies

The EAT has held, in RBS v Harrison, that entitlement to parental leave under s.57A(1)(d) of the Employment Rights Act 1996 because of the unexpected disruption or termination of care arrangements for dependents, is not limited to last minute unavailability or emergencies.

The issue that arose for consideration by the EAT was as to the meaning of “necessary” and “unexpected” in s.57A(1). RBS sought to argue that as Mrs Harrison had been notified of the unavailability of her childminder two weeks prior, the termination could not be said to be unexpected. The EAT disagreed. By a process of statutory interpretation, the EAT stated that:

• that the passage of time between the employee’s discovery of the forthcoming disruption of care arrangements and that disruption taking effect was to be considered as part of the question whether it was “necessary” for an employee to take the take off (s.57A(1))
• the word “unexpected” does not involve a time element. There was no warrant for the insertion of the words “sudden” or “in emergency” into s.57A(1)(d)

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this summary]

Fixed Term Employee's

The EAT has held, in DCSF v Fletcher, that a legal obligation limiting employment to 9 years is not - without more - enough to amount to 'justification' under the Fixed Term Employees (Prevention of Less Favourable) Treatment Regulations 2002.

The Department for Children, Schools and Families employs teachers who teach at various European Schools. Under EU secondary legislation dating back to 1994, agreed by 27 other member states, their period at the school is limited to nine years.

A teacher, Mr Fletcher, said that the 9-year rule offended the Fixed Term Employee Regulations. The EAT, HHJ McMullen QC presiding, agreed. The EAT stated that the:

• the 1999 EU Fixed Term Employee Directive impliedly repeals an earlier (1994) piece of legislation, insofar as the earlier legislation is incompatible
• if the underlying rule (9 years maximum) is not itself objectively justified, the fact it has been agreed by 27 Member States cannot - without more - justify it

This is quite a difficult issue, and permission has been given to appeal to the Court of Appeal.

October Changes to Employment Law

Here are the main changes coming to employment law next month:

• increase in minimum wage (to £5.73 for adults)
• women on additional maternity leave become entitled to the same terms and conditions of employment as when they were on ordinary maternity leave (for babies expected after 5th October)
• changes to requirements for displaying an employer's liability insurance certificate - basically, it will become okay to make an electronic copy available rather than having a hard copy on display (see here)
• Incapacity Benefit and Income Support are replaced by Employment and Support Allowance
• amendment to the Fixed Term Employees (Prevention of Less Favourable) Treatment Regulations, removing the provision that agency workers for less than three months' duration are excluded from SSP (see here for draft Regs)

for new applicants who are claiming on incapacity grounds

Age Discrimination - AG issues opinion in Heyday

The Advocate-General has handed down his opinion in The Heyday Appeal. He recommends that the ECJ dismiss Age Concern's challenges to the lawfulness of regulations 3 and 30 of the Employment Equality (Age Discrimination) Regulations 2006.The opinion is here, and a BBC news summary is here.The two key recommendations are that the Court holds:-

• that it is legitimate to allow a general justification defence, and that it is not necessary for the Regulations to define specific categories of conduct which can be justified (see paras. 56 and 57); and,
• that regulation 30 (which permits employers to dismiss employees aged 65 or over if the reason for dismissal is retirement) is not incompatible with the Equal Treatment Framework Directive provided the regulation is objectively justified within the context of national law.

So the question of whether a lawful retirement age of 65 is lawful is still very much a live issue for determination by the national courts.

EAT Procedure - Rule 3 (10) applications

The Employment Appeal Tribunal, in a judgment delivered by HHJ McMullen QC (here), has issued a robust reminder to practitioners about how the rule 3 sifting process works. It's worth reading - particularly for the cutting comments about the use of Latin in courts at paragraphs 23 and 24.

Employment Status of Directors / Majority Shareholders of a Company

The President of the Employment Tribunals, HHJ Meeran QC, has issued a Practice Direction staying all claims which involve the question of when a director and majority shareholder of a company qualifies as an employee of that company.

These claims will all be stayed until after the Court of Appeal gives judgment on this issue (in Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld). The Court of Appeal hearing is currently listed for hearing on 3rd and 4th December 2008.

The Practice Direction requires it to be posted on www.employmenttribbunals.gov.uk - but it is not yet up there.

[Thanks to Malcolm Glazier of ELAS for telling me about this]

Agreement on Holiday Dates overrides Statutory Rules

In Industry & Commerce Maintenance v Briffa, the employer gave Mr Briffa one week's notice of termination of his employment. It required him to take 4 days holiday in his last week to use up his outstanding entitlement.

An employment tribunal held that the employer was in breach of Working Time Regulations 1998 Reg 15 which requires that an employer must give notice of holiday dates "double the amount of time to be taken". Since Mr Briffa was not given 8 days notice of his holiday, taking it could not legally be required of him. He was awarded 4 days' pay in lieu of the 4 days' holiday.

The EAT allowed the employer's appeal. The original tribunal had totally overlooked that the basic requirement in WTR Reg 15 can be varied or excluded by a "relevant agreement". In this case there was a contractual term which covered the position and was legally enforceable between the parties. This was a "relevant agreement" under Reg 2 and it overrode Reg 15.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]

Claimant's Companion to Tribunal Claims

I've just come across a fabulous guide (mentioned on Naomi Cunningham's blog) written by Tamara Lewis of the Central London Law Centre, called The Claimant's Companion. It's a very practical, common-sense booklet for claimants in employment tribunals, which will help guide them through the process.

It is, needless to say, something to hand out to clients as a support guide and is not intended as a subtitute for lawyers!

Merrill Lynch & Lehman Brothers

A newsflash which will affect many employment law practitioners with claims against the big investment banks...

This morning in the US, Lehman Brothers announced it was filing for Chapter 11 bankruptcy, and Merrill Lynch have announced they are being purchased by Bank of America (for about 20% of the price their shares reached last year).

See New York Times Online for more information.

New President of EAT Announced

Just in case anyone missed the announcement over the summer, Mr Justice Underhill has been announced as the next President of the EAT. He takes over from Elias P. with effect from January 2009.

Approach to Calculating Compensation

In Adey-Jones v O'Dowd, the EAT has considered the approach to calculating a compensatory award.

Mrs O'Dowd worked in a care home run by Mrs Adey-Jones. A police investigation and internal disciplinary proceedings into suggestions that she was stealing from a patient led to Mrs O'Dowd being dismissed. Mrs O'Dowd denied the allegations and none of them were ever proved. She found new work (at lower pay) but soon became ill and had to leave that job as well.

An employment tribunal found the dismissal unfair. Awarding compensation for loss of future earnings, it concluded that the dismissal process was at least one cause of her illness, and thus included a sum to fully cover Mrs O'Dowd's losses during her sick absence. On this remedies point Mrs Adey-Jones appealed.

The EAT allowed the appeal and remitted the matter back to the same tribunal for further consideration.

HHJ Serota noted that Mrs O'Dowd's illness started some 20 weeks after dismissal, and there were ongoing investigations by the police and the local council. This must all be taken into consideration "in determining whether it could be said that it was sufficiently caused by the actions of [Mrs Adey-Jones] as would justify a finding that [she] was responsible for the illness and consequently for the loss of earnings...". Furthermore there should not be an 'all-or-nothing approach' but one that takes into account the percentage to which the employer's actions are responsible for the illness as against the other factors.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]

Flexible Working Consultation

The government has, this morning, launched a consultation to extend / revamp the right to request flexible working. The consultation will cover:

• extending the right to request contract variations to parents with children under 16 (it is currently parents of children under 6)
• methods of raising awareness of the right to request flexible working amongst the workforce;
• methods of making it easier for employers to deal with requests.

The consultation document is meant to be here, but the link isn't currently working. So, if you're interested, try the Press Release instead.

[Thanks to Eugenie Verney for telling me about this]

Restrictive Covenants Enforceable

The QBD has handed down judgment in Kynixa Ltd v Hines, a restrictive covenant case.

Mr Hynes, Ms Preston and Ms Smith worked for Kynixa. All three left and went to work for a separate organisation with which Kynixia had dealings. None of the three warned Kynixa that this was where they were going to work and it was some time later before Kynixia discovered what had happened.

In the High Court Wyn Williams J held that given the senior positions they held, all three employees were in breach of their fiduciary duties. Two were also in breach of restrictive covenants contained within a shareholders' agreement. The question, then, was whether these restrictive covenants were enforceable. They purported to bind the employees for 12 months after they ceased connections with Kynixia. It was argued that this was too long a period.

At paragraphs 130 - 141 of his judgment Wyn Williams J set out a detailed analysis of the law on restrictive covenants. He then concluded that in all the circumstances 12 months was a reasonable period and that, although the restrictive covenants were very wide, even so they were reasonable and enforceable.

[Thanks to www.emplaw.co.uk for giving permission to use their summary of this case.]

Crack down on rogue employers

A new Government drive to crack down on rogue employers who abuse vulnerable workers and undercut honest businesses is unveiled today.

The strategy includes a single telephone helpline for vulnerable workers to report abuses to the Government's workplace enforcement agencies, breaking down barriers so agencies can share vital information to catch rogue employers and a £6 million information campaign to raise awareness of employment rights and how to enforce them.

This initiative will be overseen by a new Fair Employment Enforcement Board which will co-ordinate the work of the government enforcement agencies covering minimum wage, health and safety, employment agencies and gangmasters. The new Board will be chaired by the Employment Relations Minister and will include representatives from business and trade unions, as well as the enforcement agencies.

More details here.

[Thanks to Eugenie Verney for telling me about this]

Equal Pay

[Thanks to Rachel Crasnow of Cloisters for being the first to tell me about this case, and to www.emplaw.co.uk for allowing me to reproduce their summary.]

This is the long and complex decision of the Court of Appeal in Redcar v Cleveland BC; Surtees v Middlesborough BC on the questions of pay protection and objective justification in the long-running equal pay claims against local authority employers in the North East. Mummery LJ gave the decision of the whole court. A thumbnail such as this cannot even begin to cover it, given that it runs to 318 paragraphs addressing six separate issues.

Points of general relevance in the judgment include:

• the employer's knowledge and intentions when putting arrangements such as the pay protection schemes in these cases into place are relevant when considering justification but are not relevant when considering the essential preliminary question of whether there has been discrimination.
• although the Court of Appeal ruled that on the facts Middlesborough and Redcar Councils were both "guilty" of unjustified sex discrimination, it also made it clear that in principle a sex discriminatory pay protection scheme can be capable of being justified;
• whether discrimination is justified depends on findings of fact by the original tribunal and therefore, unless perverse, cannot be overturned on appeal. At the heart of the decision is the dismissal of Redcar's appeal and the granting of Ms Surtees' appeal on the questions of the Genuine Material Factor (GMF) defence and objective justification.

In the Redcar case, the EAT had agreed with the original tribunal that Redcar's attempts at pay protection were sex tainted and so could not amount to a GMF defence - "The council can surely not pray in aid its own failure to implement equality as a justification for defeating it. It would frustrate the fundamental principle of equality to deny them benefits which, as everyone accepted, they were legally entitled to receive...". The Court of Appeal agreed, and dismissed Redcar's appeal as the EAT had done.

In the Surtees case, the EAT had come to a different conclusion. Overturning the original tribunal decision, the EAT concluded that Middlesbrough's pay protection scheme was discriminatory but that the discrimination was objectively justifiable. The Court of Appeal held that the EAT had had no grounds to interfere with the original tribunal's findings. Objective justification is to be decided upon by the original tribunal - "The findings of fact which underlie the evaluation are matters for the [original tribunal] and can be overturned only on conventional perversity grounds". Perversity did not apply here and so the EAT had no right to interfere. Ms Surtees' appeal therefore succeeded and the orginal tribunal's decision, that the discrimination in pay was not objectively justified, was restored.

Statutory Dismissal Procedure: Unreasonable Delay

The Court of Appeal has today overturned a line of EAT authorities on whether unreasonable delay in the statutory dismissal procedures makes the dismissal automatically unfair.

In Selvarajan v Wilmot, the employer took about four months to deal with the appeal against dismissal.

The Court of Appeal held, contrary to a line of EAT authorities, that unreasonable delay did not make the dismissal automatically unfair, as the statutory procedure had been "completed". Therefore - despite the delay - it could not be said that the procedure had "not been completed" under ERA 1996, s98A(1).

[Thanks to Joanne Woodward of 9 St John Street Chambers and Joanne Martin of Davies Arnold Cooper, both of whom acted for the successful employer, for telling me about this case]

Equality Bill

The government has published its response to the consultation on the Equality Bill. It's long - 203 pages - but an executive summary appears between pages 4 and 12.

Download Response document (large .pdf file)

[Thanks to Gaby Charing, policy advisor at the Law Society, for telling me about this]

Tribunals Service Annual Report 2007-2008

The Tribunals Service has issued its Annual Report (note: this is all tribunals, not just employment tribunals).

Key figures:

• the number of ET applications received were 189,300 - 42% higher than expected due to the number of multiple claims
• 86,237 claims were disposed of
• 79% of employment tribunal cases were heard within six months of receipt (beating the target of 75%)
• 88% of written decisions were issued within four weeks of the hearing

ECJ Decision: Coleman v Attridge Law

[Thanks to Paul Michell of Cloisters, who acted for Mrs Coleman, for providing this summary]

The ECJ has, this morning, published its landmark decision in Coleman v Attridge Law, in answer to questions posed of it by London South Employment Tribunal. Following the Advocate General’s opinion given on 31 January 2008 (bulletin 31/1/08), the ECJ has confirmed that the Equal Treatment Framework Directive is intended to prohibit associative discrimination in the context of direct discrimination and harassment.

Ms Coleman alleges she was directly discriminated against and harassed by her former employers on grounds of the disability of her son, for whom she is the primary carer. According to the ECJ's decision, the Directive is intended to prohibit direct discrimination or harassment on grounds of disability, even where the person concerned is not disabled themselves.

The Directive applies to age, sexual orientation, religion and belief, as well as disability. Following the ECJ's decision, direct discrimination by association in those other contexts must also be prohibited. (Notably, the Employment Equality (Age) Regulations 2006 do not yet appear to afford protection from direct discrimination by association in the context of age.)

Ms Coleman's former employer was a law firm, not a public body. Hence the next stage in her case will be to ascertain if the Disability Discrimination Act 1995 can be read purposively, so as to conform with the intent of the Framework Directive which it is supposed to implement.

Note: the full decision will be available on the internet here, probably after midday today. In the meantime, see this Press Release.

A very bad day for unions...

[Thanks to John Bowers QC for telling this decision was imminent, and to Chris Quinn, who acted for the successful Appellants, for sending me a copy immediately upon it being handed down]

The Court of Appeal has, this morning, handed down its judgment in the very important - and controversial - case of Allen v GMB. The employment tribunal (bulletin 9/6/06) held that the GMB had indirectly discriminated against union members by recommending acceptance of a 'single status' pay deal which grossly underestimated the compensation which should be due to female equal pay Claimants. Although the objective of securing a fair single status pay deal was legitimate, the means used by the union to secure the deal (including grossly misleading the female back-pay claimants) meant that they had not pursued proportionate means of achieving that pay deal.

The EAT reversed the decision (bulletin 31/7/07), and found in favour of the union. The Court of Appeal has now restored the ET's decision - the judgment revolves around some highly techincal analysis of the differences between 'legitimate aims' and 'proportionate means'.

Permission to appeal to the House of Lords has been refused by the Court of Appeal, meaning that (subject to a Petition directly to the HofL) compensation will now fall to be assessed against the union. It is believed there are about 4,000 claims outstanding against the GMB and some 7,000 against UNISON.

Age Discrimination: Staying Compulsory Retirement Cases

The Court of Appeal has published its reasons in Johns v Solent (the decision was announced about a month ago, but the transcript has only just become available).

The Court of Appeal confirmed that cases which raise the same issue as the Heyday case in the ECJ should be stayed (not struck out). In other words, where a Claimant brings a claim of age discrimination in respect of a retirement dismissal at age 65, the case should be stayed notwithstanding that regulation 30 of the Age Regulations appears to make such a claim impossible.

In the Heyday appeal, Age Concern is challenging the legitimacy of regulation 30, arguing that it is prima facie incompatible with the Equal Treatment Framework Directive. If it is found to be prima facie incompatible, the government will need to objectively justify a mandatory retirement age of 65.

Meanwhile, the President of Employment Tribunals will need to review the Practice Direction issued last year - but there is unlikely to be any change.

Discriminatory Job Awards

The ECJ has ruled, in Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn, that discriminatory job advertisements amount to direct discrimination.

Thus a job advert by a Belgian company stating that it did not employ 'immigrants' because it's clients did not like dealing with immigrants was capable of amounting to direct discrimination on grounds of race.

This overturns the UK position decided in Cardiff Women's Aid v Hartup in 1984, which held that a job advertisement falls outside the discrimination legislation and that an individual could not bring a claim based on such an advert. Until now, proceedings could only be brought by the CEHR - it seems now that individuals can bring claims as well.

The ECJ held (at paras 28 and 34) that a discriminatory job advert sets up a presumption that the employer's recruitment process is tainted by discrimination, and the burden of proof then shifts to the employer to show that its actual recruitment practice does not correspond to that stated in the advert

Legal Advice Privilege and Employment Consultants

[Thanks to Scott Halborg, who acted for the Appellant, for providing this summary.]

The EAT has handed down its decision in Howes v Hinckley Borough Council, which is authority for the propositions that:

• New Victoria Hospital v Ryan, holding that legal advice privilege does not attach to the advice of employment consultants, remains good law (para 30)
• New Victoria could, in theory, be extended so that qualified solicitors who do not hold themselves out as acting in the capacity of a solicitor (e.g. where part of a firm of employment consultants) may find that privilege does not attach to their advice (although the hurdle of holding themselves out may not be much to get over) (para 32)
• where a document was obtained to both determine a grievance and in case of any future legal proceedings, litigation privilege would not apply to it if the subsequent litigation was not shown to be the dominant purpose of the advice. (para 42)

Statutory Grievance Procedure

The EAT has held that a statutory grievance is still a statutory grievance, even when the grievance itself states that it is not.

The Claimant presented a grievance which expressly stated that it was informal, and that a failure to address it would result in a formal grievance, under the 2004 Regulations, being lodged. This never happened

The EAT held that the letter was nevertheless a valid grievance under the Employment Act 2002. Elias P stated that "The issue is not whether the grievance lodged is stated to be a statutory grievance. The only question is whether it satisfies the requirements laid down for a Step 1 grievance letter. This merely requires that the grievance is set out in writing and sent to the employer. That has been done. We do not see that the classification placed on it by [Mr Procek] can affect that conclusion."

Countering the argument that it would be unfair on the employer to face a statutory uplift in compensation when he did not realise that the grievance (which he ignored) was a "statutory grievance", the President pointed out that the tribunal had a discretion under s31(4) of the 2002 Act to conclude that it would not be "just and equitable" to apply any uplift.

Procek v Oakford Farms Ltd

Thanks to www.emplaw.co.uk, for giving me permission to use this abridged version of their own summary

Time-Limits

In Beasley v National Grid (bulletin 7/8/2007), the EAT upheld a tribunal's decision that an ET1 presented 88 seconds out of time was too late.

The Court of Appeal has just upheld the EAT's decision (see here). Commenting at paragraph 12 that "There is no grey area for complaints which are only a bit out of time", Tuckey LJ refused the Claimant permission to appeal and dismissed his claim.

Dispute Resolution (and other) Consultations

The government has published its consultation paper seeking views on amendments to the dispute resolution and other employment law matters.

The matters under consultation include:-

• extending the definition of a 'relevant advisor' who can sign off a compromise agreement (to include CIPD members);
• changing the current position on interest accruing on tribunal awards;
• broader powers for tribunals to make recommendations in discrimination cases;
• introducing a procedure for chairman to make decisions on the papers only, without a hearing, in
• certain jurisdictions (with the parties' consent);
• adding Holiday Pay to the list of jurisdictions normally heard by a chairman sitting alone;
• clarifying the 'withdrawal' and 'dismissal' provisions of rule 25;
• revised ET1 and ET3 forms;
• transitional provisions for the abolition of the statutory dismissal and grievance procedures.

The closing date for responses to the Consultation Paper is 26 September 2008.

Positive Discrimination

Harriet Harman (Equality Minister) has, this morning, announced that the forthcoming Equalities Bill will permit positive discrimination on grounds of sex and race. Details on the BBC website.

It will also, according to the Sky News website, force employers to reveal salary structures to make the pay gap between men and women clearer.

House of Lords overhauls approach in Disability Discrimination Cases

The House of Lords has, yesterday, handed down a judgment overhauling the approach taken in disability discrimination cases.

Whilst in the context of a housing case, it has substantial ramifications for employment practitioners.The speeches all consider the meaning of (what is now) s3A of the DDA 1995, in particular the phrase "a person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply".

By a 4:1 majority (Baroness Hale dissenting on most points), the House held:-

• a person can only be liable for discrimination if they know that the individual is disabled
  
• 'a reason which relates to the disabled person's disability' has to be construed narrowly. So, for example, if an employer dismisses somebody for being off work sick for a year, then the reason is the absence from work, and not one that relates to the underlying disability itself - which means the employer will not be liable under the DDA
  
• the correct comparator is somebody to whom the underlying reason still applies. So, in the above example, the comparator would be someone who was absent for a year but was not disabled.

In so holding, the House of Lords held that Clark v Novacold was wrongly decided by the Court of Appeal.It's a complicated decision and needs careful thought. But it is clear that the impact of this decision will be to make it much harder for a Claimant to succeed in a claim of disability discrimination.

London Borough of Lewisham v Malcolm

Government to review no-win, no-fee funding

The Ministry of Justice has, this afternoon, announced a review of no-win, no-fee funding in employment (as well as personal injury and defamation) cases.

Stating that "we are aware of growing concerns that they may not always be operating in the interests of access to justice", the Minister of Justice has stated that the review is expected to conclude in the autumn.

See the full press release.

Garden Leave and Implied Terms

The High Court, in SG&R Valuation Service v Boudrais, has held that an employer will sometimes be entitled to force garden leave onto senior directors even when there is no such right in the contract.

In this case, two directors resigned with the intention of joining the competition. There was strong evidence of an intention to misappropriate confidential information. The employer insisted on a period of garden leave, so as to delay the date when they joined their new employer, and sought an injunction enforcing this The employees resisted on the grounds there was no garden leave clause, they had a right to work, and that by not providing work the old employer was in breach of contract - entitling them to leave and go elsewhere.

The court held that the implied right to provide work is subject to the qualification that they have not, as a result of some prior breach of contract or other duty, "rendered it impossible or reasonably impracticable for the employer to provide work" (para 24). As there was a prima facie case on the documentary evidence that the directors had done just that, the judge held that they had no right to be provided with work by the old employer, and so the employer could insist on a period of garden leave. The injunction was granted.

Garden Leave and Implied Terms

The High Court, in SG&R Valuation Service v Boudrais, has held that an employer will sometimes be entitled to force garden leave onto senior directors even when there is no such right in the contract.

In this case, two directors resigned with the intention of joining the competition. There was strong evidence of an intention to misappropriate confidential information. The employer insisted on a period of garden leave, so as to delay the date when they joined their new employer, and sought an injunction enforcing this The employees resisted on the grounds there was no garden leave clause, they had a right to work, and that by not providing work the old employer was in breach of contract - entitling them to leave and go elsewhere.

The court held that the implied right to provide work is subject to the qualification that they have not, as a result of some prior breach of contract or other duty, "rendered it impossible or reasonably impracticable for the employer to provide work" (para 24). As there was a prima facie case on the documentary evidence that the directors had done just that, the judge held that they had no right to be provided with work by the old employer, and so the employer could insist on a period of garden leave. The injunction was granted.

ELISE: new employment law resource

I've been asked by www.emplaw.co.uk to mention their new search engine, ELISE.

I've been using it for a couple of weeks, and it's fabulous; it scans all the relevant employment law sources and (in my view) knocks spots off all other search engines. Best of all, if you type your (or your firm's) name in, and select EAT and Court of Appeal cases, you can find out exactly how many cases you've been in!!

You can see a video demo, and try it out for free, here. There is free access until 24th June - use username elise and password trial.

(and just in case anyone thinks otherwise, this is a real recommendation and not a paid advertisement!)

Daniel Barnett

Statutory Dismissal Procedures: Unreasonable Delay

In Yorkshire Housing v Swanson, the EAT has held that a dismissal is automatically unfair when the employer delays unreasonably in following the statutory dismissal procedure.

With "some unease" (para 67), the EAT stated that the delay provisions, despite being in a different Part of Schedule 1 to the Employment Act 2002 to the standard dismissal procedure, were mandatory rules that had to be followed - breach of which led to a finding of automatic unfair dismissals. The EAT acknowledged the difficulty construing unreasonable delay as falling within "non-completion" (para 64), since very often the procedures would be completed - albeit late - but held for policy reasons (para 69) that there should be a finding of automatic unfair dismissal.

On the facts, the employer had delayed for five months between holding the disciplinary meeting and writing the letter dismissing the Claimant. That was (unsurprisingly) held to be unreasonable delay.

Thanks to Sally Cowen of Cloisters, who appeared for the Claimant, for telling me about this case.

Protective Awards Recoverable in Litigation

This is an abridged version of a summary prepared by www.emplaw.co.uk to whom I extend my thanks

The Court of Appeal has, yesterday, overturned the EAT's decision in Haine v Day (see bulletin 15/1/08 for EAT decision).

Mr Haine was employed by an insolvent company. He tried to enforce "protective awards" made by an employment tribunal under TULR(C)A 1992 ss. 188 & 189 for failure to consult about dismissals as the company went into insolvent liquidation. The problem was that the tribunal made the awards some months after the liquidation. The High Court concluded that therefore they were not debts provable in the liquidation of the company, and on that basis, the Liquidator was not liable to pay them.

The Court of Appeal, seemingly driven by the policy argument that "if the Liquidator does not need to pay, the Secretary of State will have to", concluded that the obligation to consult under section 188 arose before the liquidation of the company and at that point the protective award was a debt or liability to which the company "may become subject" in due course. Therefore the protective awards in this case were contingent liabilities of the company, and within rule 13,12(1)(b). It followed that liability therefore lay with the Liquidator. The appeal was allowed.

Statutory Grievances and Equal Pay Claims

Thanks to Macroberts LLP, who acted for the Respondent, for preparing this summary.

The Court of Session has, today, largely upheld that EAT’s decision in Cannop & Others –v- The Highland Council on the correlation required between grievance and claim form in Equal Pay cases (see bulletin dated 10/1/08 for the EAT’s decision).

The Court confirmed that there does require to be a necessary relationship between the grievance and the claim form. Adopting wording used by Elias P in Canary Wharf, the Court stated that the underlying claim presented to the tribunal must be "essentially the same" as the grievance. They went on to add that other communications by the employee to the employer prior to the grievance may provide a context within which to interpret the grievance and that events subsequent to the grievance may also "illuminate the nature and scope of the grievance." The Court was mindful that the Dispute Resolution procedures should not be applied to render access for individuals to Tribunal in Equal Pay matters "impossible or excessively difficult."

The Court confirmed that the EAT were entitled to find the Employment Tribunal's approach flawed. However, as acknowledged by Counsel for the Highland Council, the exact wording of the EAT's order created some ambiguity as to its scope. The Court of Session therefore amended the wording of the EAT's order to make it clear which claimant's cases it applied to and substituted the test to be applied in comparing the grievance with the claim form with "essentially the same" as opposed to "not materially different."

The Court commented that the hypothetical debate pursued on behalf of the Claimants as to whether or not a grievance that stated "I have an Equal Pay grievance" (and nothing more) satisfied the requirements of para 6 Sch 2 of the Dispute Regulations was unhelpful in the context where none of the grievances in question were in fact presented in such stark terms. Accordingly, any comments made by the Employment Tribunal and the EAT in that respect should be regarded as obiter dicta.

48 Hour Week opt-out

An agreement within the EU Employment Council, announced this morning, will allow the UK to continue permitting employees to opt-out of the 48-hour maximum average working week.

For the full press release, see here.

Thanks to Eugenie Verney for telling me about this news item.

TUPE - Ineffective objection to transfer

Thanks to www.emplaw.co.uk for permission to use their case summary

The BBC transferred its occupational health (OH) department to Capita as of 1 April 2006. The Claimant objected to being transferred. She resigned on 31 March 2006, stating that due to her professional commitments she would work a "period of secondment" with Capita until she actually left on 12 May. However, there was no role that the Claimant could have returned to with the BBC at the end of any "secondment". The BBC paid Mrs MacLean for what it saw as her working out her notice period.

An employment tribunal held that even so her employment had transferred under TUPE - that decision was appealed.

In the EAT Lady Smith noted that employees are plainly entitled to object to being transferred to the employment of another employer - that accords with common law, the underlying intentions of the relevant Directives and TUPE. However, whether the employee has "objected" is a question of fact to be decided objectively in all the circumstances. TUPE 1981 Reg 5 (now TUPE 2006 Reg 4) states that such objection will prevent a transfer occurring and end the contract of employment, and it makes no provision allowing employees to work out their notice - so if she had successfully "objected" Mrs MacLean could not have continued as BBC's employee after 1 April 2006. On the facts Mrs MacLean did not object to transfer - she simply insisted that she would only transfer for a limited period of time. Therefore there was a TUPE transfer of her contract of employment to Capita for 6 weeks.

Capital Health Solutions v McLean

Detriments

[Thank to Louise Jones of 1 Temple Gardens for writing this summary]

The EAT has again considered the meaning of 'detriment' in Bayode v Chief Constable of Derbyshire. The Appellant police officer appealed to the EAT on whether the mere act of a written record being made, where there was no inappropriate action, could be a detriment in the context of race discrimination; the material complaint was one of victimisation by colleagues.

Colleagues had recorded details of an incident in their Pocket Note Books, before passing the comments onto more senior colleagues; the Appellant had not known of these written comments until disclosure in the employment tribunal proceedings.

At first instance, the tribunal inferred that these comments were recorded because the authors thought the Appellant might make allegations of race discrimination, and they wished to have a record of what had been said.

The Appellant argued that the tribunal had failed to consider the detriment arising from the recording of the comments. It was submitted that the effect of the entries on the Appellant should have been considered, and this effect constituted a detriment. The EAT rejected this submission; the wide definition of detriment was considered, but the EAT still concluded that the tribunal had made no error in concluding that the making and content of the notebook entries did not amount to a detriment.

Equal Pay

The EAT has held (overturning previous caselaw) in Walton Centre for Neurology v. Bewley that a woman's successor in a job cannot be used as a comparator for the purposes of an equal pay claim, either under the Equal Pay Act 1970 or Article 141 of the EC Treaty.

Elias P. accepted the Appellant's submission that the 1970 Act does not permit a comparison with a woman's successor because the statute envisages a specific person contemporaneously employed with whom a comparison can be made.

However, this was not determinative of the appeal because it was necessary to consider whether the Act should be read in accordance with EU law.

Having examined the case-law at some length, the EAT decided that comparison with a successor is not permitted under EU law either. The logic behind comparison with a successor was the same as that behind allowing a hypothetical comparator; in essence, it is an exercise in speculation as to what would have happened if they had been employed contemporaneously. This is not consistent with the structure of the Equal Pay legislation, which requires comparison with an actual comparator and not a hypothetical comparator.

Michael Duggan's Case Index

Michael Duggan of Littleton Chambers has published the latest edition of his excellent case index. He has made it available to all - download it here.

NOTE: it is a large file - please try again later if it does not download immediately

New EAT Practice Direction

The Employment Appeal Tribunal has issued a new (2008) Practice Direction dealing with EAT procedure, replacing the previous (2004) Practice Direction in its entirety. It came into force yesterday.

Download it here. Note that it is a large (3Mb) document, and the EAT website may have trouble coping if too many people try to download it simultaneously. If it doesn't work, try again later.

[Thanks to John Bowers QC of Littleton Chambers for telling me about this]

Implied Duty to Provide Work

Thanks to Saul Margo of Outer Temple Chambers, who appeared for the successful employee, for writing this case summary.

The EAT, in St Ives Plymouth Limited v Haggerty, has considered whether the expectation of being given work, resulting from the practice over a period of time, can of itself constitute a legal obligation to provide some work or to perform the work provided, even where there is no duty to undertake any particular work offered or a minimum amount of work.

In a majority decision, Elias P, presiding, held that the practical commercial consequences of not providing work on the one hand or of not performing it on the other could crystallise over time into legal obligations.

The EAT relied upon the majority reasoning of the Court of Appeal in Nethermere v Gardiner but considered the impact on that Judgment of Lord Irvine’s observations in Carmichael that no terms could be implied by business efficacy unless and until the relationship itself was contractual. It was held that in Carmichael there was no express rejection of the reasoning of the majority in Nethermere and that the reasoning of the Court of Appeal should not be taken to have been overruled. The appeal was dismissed.

Compromise Agreements - Court of Appeal

[Thanks to Anthony Johnson of 1 Temple Gardens for providing this case summary]

In Collidge v. Freeport plc, handed down last week, the Court of Appeal unanimously upheld the High Court's decision that it was a condition precedent of the Respondent's liability to perform its obligations under a Compromise Agreement that the Claimant was not in breach of a term included in that agreement to the effect that he had not previously committed any repudiatory breaches of his contract of employment that would have entitled the Respondent to terminate his employment.

Counsel for the Claimant argued in the Court of Appeal that the Respondent had elected not to treat the Claimant's repudiatory breach as bringing the agreement to an end, or at least not before his right to payment had accrued. However, all three judges rejected this construction of the agreement. Tuckey LJ, giving the lead judgment, said that it was a carefully drafted agreement, and that its construction was put beyond doubt when its context was considered. Sedley LJ said that the proverbial officious bystander "would have thought the parties were pulling his leg" if told that Claimant's purported construction of the agreement was the correct one.

Agency Workers

The government, TUC and CBI have today agreed a deal which will see agency workers in the UK receive equal treatment after 12 weeks' employment.

Details can be seen on the government press release or BBC news item.

Unified Tribunals Service

The Ministry of Justice has today announced that the new Unified Tribunals Service will be going live on 3rd November 2008.

Employment tribunals (and the EAT) will remain separate from the unified system, but closely associated with it (whatever that means).

More details here.

Redundancy: unreasonable refusal of suitable alternative

HHJ Peter Clark, in the EAT, has handed down a decision for those fighting over redundancy payments.

In Commission for Healthcare Audit & Inspection v Ward, the EAT considered the overlap between the suitability of alternative employment, and the (un)reasonableness of a refusal of that suitable job.

They held that a tribunal is entitled to have regard to the degree of suitability when deciding whether the employee's refusal is reasonable. In other words, where the new job offer is overwhelmingly suitable it may be a little easier for the employer to show that a refusal by the employee is unreasonable than if the suitability was a more borderline decision.

Disability Discrimination

Thanks to Louise Jones of 1 Temple Gardens for providing this summary.

In Lincolnshire Police v Weaver, the EAT reaffirmed that employers can have regard to factors outside those of an individual employee when deciding whether an adjustment is reasonable under the DDA 1995.

As a police officer of over 30 years’ experience, the Claimant was entitled to apply to a ‘Thirty+ Retention Scheme’, which allowed a pension to be claimed, but the individual’s employment to carry on favourable terms.

The Claimant’s disability had taken him from the role of a fully operational officer to an office-based post, which was essentially a post of restricted duties, before he became eligible for the Scheme. The way in which the Respondent applied the Scheme to him was such that, as an officer on restricted duties, he was not permitted access to the Scheme, as his departure might enable another officer to take up that post.

Elias P. held that the tribunal approached the ‘reasonable adjustment’ question incorrectly, as it did not take into account the wider implications of making the adjustment (which in the instant case meant admitting the Claimant onto the Scheme).

The tribunal was under an obligation, the EAT said, to engage with the wider operational objectives of the Respondent and, in particular the desire to liberate posts for restricted officers. Indeed, the wider approach was one suggested by paragraph 5.42 of the Disability Rights Commission Code of Practice: Employment and Occupation [2004]. Further, the tribunal had erred in having regard to the fact that the Respondent had deliberately adopted a policy which operated to the disadvantage of disabled people. The EAT found this could not be a relevant consideration.

Modified Grievance Procedure

This summary was prepared by, and is reproduced with permission of, www.emplaw.co.uk

Yet another case concerning the statutory dispute procedures which, as pointed out by Lady Smith in the Scottish EAT in Clyde Valley Housing Association v McAulay, "have provoked a sea of negative comment of Pacific rather than Caspian proportions".

Ms MacAuley resigned from the Clyde Housing Association, claiming constructive dismissal and disability discrimination. It was agreed that the modified statutory procedure, set out in Employment Act 2002, applied, and so Ms MacAuley's solicitors wrote to Clyde setting out a number of allegations. Clyde sought clarification of exactly what acts and conduct of theirs it was that Ms MacAuley was referring to. These were not forthcoming, so they wrote to say that, as a result, they had been unable to address the grievance. An employment tribunal held that the grievance procedures had been complied with, and Ms MacAuley won her case. Clyde appealed.

The EAT confirmed that the tribunal could not entertain the claim unless Ms MacAuley had sent something in writing to Clyde which set out her grievance and the basis for it. This is a threshold condition. The written statement must "contain the answers to the essential questions that one would expect to arise in a grievance, namely: 'Who? What? Where? When? Why?'" The fact that further details could come to light during litigation, or indeed that there could be financial penalties for failing to fully comply with the procedures, does not remove the tribunal's need to consider that written statement alone and be satisfied that it meets these certain minimum requirements. The letter in this case simply made assertions, and did not meet the basic requirements. The appeal was allowed and the tribunal's order set aside - so the claim was dismissed.

Uplifts to Awards

The EAT, sitting in Scotland, has handed down a controversial decision on uplifts to the compensatory award (McKindless Group v McLaughlin).

The employer admitted breach of the statutory dismissal proceedings, and defended on quantum only. The tribunal awarded a 50% uplift. Overturning this, and substituting a 10% uplift, the EAT stated that:

• a tribunal cannot award more than a 10% uplift in the absence of evidence on the reason(s) for breach of the statutory dismissal procedure (para. 13); and,
• a tribunal is not entitled to take into account the way in which the employer subsequently conducted the litigation (para. 26)

Both of these conclusions are open to question. As to the first, if correct, it would mean an employer who deliberately flouts the procedures and then takes no part in the proceedings could not be subjected to more than a 10% uplift, whereas a well-meaning but ignorant employer who tries to explain his error could be subject to a greater award. The approach is also not reflected in the practice of tribunals (certainly, in my experience) up and down the country.

As to the second conclusion, this does not flow from the wording of the statute. Certainly, a breach of the statutory procedures is the trigger for an uplift, but nothing in s31 of the 2002 Act confines the tribunal to the degree of, or motive for, breach of the procedures when assessing what level of uplift is 'just and equitable'.

Tony Blair, Jehovah's Witnesses and Delusional Litigants

What do Tony Blair and the Jehovah's Witnesses have in common? Well, according to the Claimant in Johnson v Edwardian International Hotels, they conspired with his employer to dismiss him from his job as a hotel kitchen porter.

The tribunal, which suspected that the Claimant was "delusional", invited the Official Solicitor to investigate whether the Claimant had sufficient mental capacity to litigate his claim.

The Claimant appealed. Underhill J., sitting alone, held that:-

• the employment tribunal rules make no provision for the tribunal to appoint a litigation friend. Such a power cannot be implied (para. 11);
• there is, in law, a presumption that a party has mental capacity (para. 12).

Taken together, these mean that tribunals should be very wary of investigating a party's mental capacity. Underhill J. stated that tribunals are required to deal with "delusional" allegations under their general case management powers. If the case is misconceived, it can be struck out. However, even if the case is not misconceived, it may still be struck out if the party suffering from possible mental incapacity conducts the proceedings in a way which renders the case unmanageable (paras. 13-14)

Conversely, this means that Respondents may be exposed to vexatious or misconceived allegations which a tribunal may be reluctant to strike out. On the other hand claimants who are genuinely mentally ill will be exposed to costs sanctions where the claim or at least some of the allegations are or may be a product of their illness.

Perhaps unsurprisingly, the EAT did not deal with the Claimant's ground of appeal which asserted that he had - in fact - won his claim and been awarded compensation by the tribunal, and that the tribunal order which arrived through the post was "a forgery" (para. 4)

Consultation: New Acas Code on Discipline and Grievance

Acas has launched a consultation on its proposed revised Code of Practice on Discipline and Grievance.

Under proposed changes to employment law due to take place in April 2009, a failure to follow the Code does not, in itself, make a person or organisation liable in proceedings. However, tribunals will be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with any provision of the Code.

The new draft Code is very short. You can see it here. The consultation period closes on 25th July 2008.

Statutory Dismissal Procedure: Extensions of Time

The Court of Appeal has held by a 2:1 majority in Towergate London Marketing v. Harris that a claimant was entitled to an extension of time in accordance with Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in circumstances where she had filed a 'grievance', but not an 'appeal' letter, within the original three months' time limit.

The tribunal decision, holding that at the date the limitation period expired, she did not have reasonable grounds for believing that a disciplinary procedure was being followed within the meaning of Regulation 15(1), was overturned.

Keen LJ, in the majority, stated that whereas to an employment lawyer there is clearly a distinction between a 'grievance' and an 'appeal', "one does not expect an employee to have a ready grasp of these arcane mysteries". Most employees do not have ready access to skilled legal advice; it is, therefore, important that the courts avoid an unduly technical approach. He felt that from the wording of the Regulation was clear that the claimant's belief did not have to be that a statutory procedure was being followed, merely that a procedure was being followed.

Wilson LJ agreed, saying that an employee can have a grievance in accordance with the use of the word in common parlance. It is not objectionable or misconceived for the claimant to write a letter to her employer stating that she had a 'grievance', when she meant to say she had an 'appeal'.

Ward LJ, dissenting, was of the opinion that, looking at the matter objectively, a reasonable employer would construct the letter to mean what it clearly and plainly said, i.e. that it was a grievance about action the employer had taken. It was too late for the claimant to bring such a complaint because she had already been dismissed. She should have exercised her right to appeal if she wanted to make such a complaint to the tribunal.

Intimidation of Litigants

Last week we heard about the Respondent whose Response was struck out for threatening the Claimant in the tribunal car park. This week, things get even closer to home - a Respondent threatened a Claimant, using unpleasant and intimidating language, outside the lifts at the Southampton tribunal (see para. 6 of the judgment).

The employment tribunal held that such threats could not amount to an actionable case of victimisation, as they were so closely connected with the hearing that judicial proceedings immunity applied. The EAT overturned this, holding that conversations outside the lift did not form any part of the juducial proceedings (para. 15).

Separately, the EAT held that conduct intended to deter a Claimant from enforcing his statutory employment rights would be sufficient closely connected with the employment relationship to amount to a (potentially) unlawful act by an employer within the meaning of the discrimination legislation (para. 14).

Strike Out: Intimidatory Conduct

The EAT has held, in Force One Utilities v Hatfield, that it is appropriate to strike out a Response when the employer's main witness threatens the Claimant at the tribunal.

The Respondent's main witness threatened and swore at the Claimant in a car park near the tribunal (see paras. 7-9). The EAT held that:

• once intimidation of this kind has occurred, it will be a very exceptional case where it can be said that a finding that no fair trial is possible is perverse (para. 28);
• a possible exception is where the intimidation happens very late in the trial, when a fair hearing may well remain possible (para. 31).

TUPE: Who does the thinking?

Thanks to Anthony Johnson of 1 Temple Gardens for preparing this case summary.

In Dynamex Friction v. Amicus, the Court of Appeal held that in TUPE cases, when determining whether the reason for a dismissal was transfer-related or an economic reason, it has be the person who took the decision whose thought process is subject to analysis.

In this case, as the company were in administration, it was the administrator’s decision that came under the microscope. The Tribunal had found as a fact that he had to dismiss the employees because he had no money with which to pay them; it had to be said that was an economic reason. Although a purchaser of the business was subsequently identified a week later, there was no evidence to suggest that the administrator dismissed the staff in order to have a better prospect of selling the business. Accordingly, the employees were not dismissed 'immediately before' the TUPE transfer for the purpose of the 1981 Regulations.

So far so good: however, matters were complicated by an allegation that the administrator's mind had been affected by the "Machiavellian machinations" of the American managing director who had the day-to-day running of the business. It was alleged that the administration had essentially been stage-managed, using the administrator as an "unwitting tool" for the business to be regained via an alternative investment vehicle without having to incur various liabilities.

The Court of Appeal held that, even taking these allegations as proven and at their highest, they would not impact upon its decision. The Shrewsbury ET had found as fact that there was no collusion between the administrator and the director. Ward LJ said that the crucial question was "whose decision was it?" Once it was established that it was the administrator's independent decision, nothing done by the director or anyone else could be said to have any bearing on why he did what he did.

Fixed Term Workers: ECJ decision may cause chaos for employers

Thanks to Katherine Apps of Littleton Chambers for writing this case summary

The ECJ has handed down judgment in Impact v Minister for Agriculture and Food (Ireland). The case is important both for its ruling on the substantive law and particularly on how Claimants can protect their EC law rights in national Employment Tribunals. The ECJ holds:-

• Non-discrimination rules in the Fixed Term Workers Directive have direct effect, meaning they can be enforced directly irrespective of the national laws (para 59-68).
• Abuse by use of successive fixed term contract rules do not have direct effect, but national law should be interpreted consistently with the Directive if at all possible (para.80 and para. 104). The ECJ sets out in terms what is 'possible' and holds that retroactive effect must be given to the Irish legislation.
• The principle of non discrimination against fixed term workers extends to pension entitlements: This has the potential to cause chaos for employers which treat fixed term employees differently for pension purposes, or exclude them altogether from their pension scheme. As Article 4(2) has been held to have direct effect this ruling will be of particular concern to public bodies. It should also be noted that the extent of indirect effect through the duty of consistent interpretation could potentially significantly affect private employers as well.
• Employees must be able to bring claims based on EC law in the Employment Tribunal: The ECJ held that where national legislation implementing EC law provides for a specialist court jurisdiction (here the Irish Labour Court, which is similar to the Employment Tribunal system), European law requires that that tribunal have the power to hear and determine disputes arising directly from that European legislation. It is not sufficient for Claimants to have recourse separately to the County Court/ High Court (paras 37-55); the tribunal must have jurisdiction to hear the complaints.