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.