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.
Thursday, 26 June 2008
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.
Wednesday, 25 June 2008
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.
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.
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.
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.
Thursday, 19 June 2008
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
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.
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.
Friday, 13 June 2008
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.
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.
Wednesday, 11 June 2008
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.
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.
Tuesday, 10 June 2008
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.
For the full press release, see here.
Thanks to Eugenie Verney for telling me about this news item.
Wednesday, 4 June 2008
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
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
Tuesday, 3 June 2008
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.
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.
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