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]