Sky News: Office of Fair Trading drops Bank Charge Litigation

Sky News have broken the story that the OFT will announce at 7am tomorrow that it intends to drop the Bank Charges case. See below for an interview spot with me on Sky News.

IVF Treatment and Sex Discrimination

[Thanks to Caroline Musgrave of Cloisters for providing this case summary]

The EAT (Underhill P) has handed down its decision in Sahota v Home Office, which considers whether IVF treatment should be treated as equivalent to pregnancy for the purposes of the Sex Discrimination Act such that a comparator need not be identified.

The appeal failed for different reasons but the EAT expressed their view on the comparability of IVF treatment and pregnancy as follows:

• The woman undergoing IVF treatment is clearly to be regarded as pregnant for the period following the implantation of the fertilised ova until the end of the protected period as set down in s.3A(3)(a)(i)-(iii) SDA.
  
• Prior to implantation, less favourable treatment of a woman on the ground that she is receiving IVF treatment may constitute sex discrimination during the limited, closely defined, period set down by the ECJ in Mayr v Backerei und Konditorei Gerhard Flockner OHG [2008] IRLR 387. The period in question is the advanced stage between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus. The EAT did not accept that there should be a wider period of protection.

Drop in Annual Compensation Limit

For the first time ever, the annual review of compensation limits has resulted in a reduction to the maximum compensatory award limit.

From 1st February 2010, the maximum compensatory award drops from £66,200 to £65,300.

A week's pay (for basic award and redundancy pay purposes) remains the same at £380.

Employment Rights (Revision of Limits) Order 2009

Contingency Fees: Consultation

Following consultation, the above Regulations have now been published and are currently the subject of further consultation with the appropriate consultees. It is the Government's proposal to lay the Regulations as early as possible in the new Parliamentary term with a view to implementation in April 2010.

The draft Regulations and covering letter are available here.

In summary, the proposed Regulations:

• Render unenforceable any DBA (damage based agreement, also known as contingency fee agreement) that does not comply with certain specific requirements including the costs and expenses payable and the reasons for setting the fee at the agreed level;
  
• Before the agreement is signed, the client must be informed of certain specific matters including other methods of available funding and the circumstances in which the client may seek a review of the costs and expenses incurred;
• Impose a maximum costs percentage of 25% of damages;
• Allow a Claimant to terminate the DBA at any time leaving their liability to their representative limited to the reasonable costs actually incurred (at an hourly rate) for work undertaken to the point of termination.

You are at liberty to make any representations to the Ministry of Justice (privatefundingbranch@justice.gsi.gov.uk) and/or via any of the named Consultees who include the ELA and Law Society. Any comments are to be received for submission to the MoJ by Friday 8 January 2010.

All the relevant consultation papers are available at
http://www.justice.gov.uk/consultations/regulating-damges-based-agreements.htm including a list of all the Consultees.

Review of the Year (and other exciting things!)

On behalf of everyone who produces these bulletins, I am writing to wish you a very happy Christmas and New Year, and to thank you for continuing to read these newsletters.

I would also like to highlight these two really useful resources:-

• first, the excellent Review of the Year produced by the employment team at Wragge & Co, who have given me permission to distribute this link
  
  
• second, free access to a webinar recorded earlier this year by Tom Croxford of Blackstone Chambers on Whistleblowing . This will give everyone in your office two hours' CPD upon watching the webinar and completion of a short multiple-choice test. You can also obtain access to webinars for the next 12 months via CPD Webinar's website.

Finally, on a lighter note, if you are looking for a Christmas read, may I be bold enough to suggest the legal comedy novel by Tim Kevan entitled 'BabyBarista and the Art of War' which The Times recommended as "a cross between The Talented Mr Ripley, Rumpole and Bridget Jones’s Diary" and Jeremy Vine described as "a wonderful, racing read - well-drawn, smartly plotted and laugh out loud". Or for something even lighter, try the Unfair Dismissal song.

Daniel Barnett

Compromise Agreements

[Thanks to Lionel Stride of 1 Temple Gardens for providing this case summary]

The EAT (Silber J) has handed down its decision in Industrious Ltd v Vincent, which is authority for the proposition that the Employment Tribunal does have jurisdiction to determine whether a compromise agreement, otherwise complying with the provisions of section 203(3) of the ERA, is unenforceable because of misrepresentation.

There was conflicting authority on whether the Employment Tribunal had any jurisdiction to set aside such a compromise agreement. However, applying the principle in Hennessey v Craigmyle [1985] ICR 879 that the word agreement is subject to all the qualification by which an agreement can be voided at common law, the EAT found that the Employment Tribunal had to ensure that any purported compromise disposing of employment proceedings was a valid agreement. As such an enquiry was not expressly precluded under the ERA, it therefore had jurisdiction to determine the issue.

Supreme Court Decision on JFS Case

The Supreme Court has, this morning, held by a 5:4 majority that the (old) admissions policy of JFS is directly discriminatory on grounds of race.

I'm not going to summarise the reasoning (it's very long). Both a press release and the full judgment are available.

Religious Belief v Sexual Orientation

[Thanks to Claire Darwin of Matrix Chambers for summarising this case]

The Court of Appeal has this morning handed down its judgment in Ladele v London Borough of Islington (the Christian registrar case).

It is authority for the proposition that there is nothing in the Religion or Belief Regulations 2003 that entitled Ms Ladele, as a civil partnership registrar, to insist on her right not to have civil partnership duties assigned to her because of her belief that civil partnerships were contrary to the will of God.

The Court of Appeal agreed with the EAT that Ms Ladele was neither directly nor indirectly discriminated against, nor harassed contrary to the 2003 Regulations, by being designated a civil partnership registrar, by being required to officiate at civil partnerships, or by any other aspect of her treatment by Islington.

Interestingly, the Court of Appeal (unlike the EAT) did go on to consider the conflict of rights issue, namely whether the effect of the Sexual Orientation Regulations 2007 is to "trump" the right to freedom of religion. The Court of Appeal held that the prohibition of discrimination by the 2007 Regulations took precedence over any right which a person would otherwise have by virtue of their religious belief or faith, to practice discrimination on the ground of sexual orientation (save for in the limited circumstances provided for in Regulation 14 of those Regulations).

Costs - Important Case

The Court of Appeal has handed down a short supplemental judgment in St Albans' Girl School v Neary (see bulletin 16/11/09) dealing with the School's application for the costs of the Court of Appeal hearing.

The Court of Appeal held that where a Claimant in the employment tribunal "is pitched against his will into a costs-bearing jurisdiction", it would be normally be wrong to make a costs order against him if the appeal is successful.

This is a very different approach to that which the Court of Appeal normally adopts, and it is unclear whether this practice will be followed by subsequent divisions of the Court.

St Albans' Girl School v Neary - supplemental costs judgment

Protection from Harassment Act

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Veakins v Keir Islington Ltd, which is authority for the proposition that ...

In a claim for harassment under the Harassment Act 1997, when deciding whether the conduct complained of constitutes harassment within section 1, the primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which would sustain criminal liability (per Lord Nicholls in Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34).

Although there is nothing in the language of the Act which excludes workplace harassment, Lord Maurice Kay giving the leading speech did not expect that many workplace cases will give rise to liability under the Harassment Act. The Employment Tribunal will more fittingly provide the remedy for the great majority of cases of high-handed and discriminatory conduct.

Veakins, a trainee electrician, gave unchallenged evidence that she was a usually robust woman who had been victimised and demoralised by her supervisor and became clinically depressed. Lord Maurice Kay held that in this unusually one-sided case the proven conduct crossed the line into conduct which is oppressive and unreasonable which he considered would, in the event of a prosecution, be sufficient to establish criminal liability.

TUPE - Failure to Consult

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (HHJ Peter Clark) has handed down its decision in Cable Realisations v GMB , which is authority for the proposition that:

• in a TUPE transfer, the obligation to inform affected employees is a discrete obligation which arises even if no measures are contemplated in relation to the transfer;
  
• in setting a protective award for a breach of Regulation 13 TUPE, applying Susie Radin (a redundancy consultation case) the size of the protective award should reflect the justice of the case; and,
  
• on the facts, an award of three weeks pay per affected employee, appealed by both sides, was "like baby bear's porridge,... just right".

Accordingly, employers who make a porridge of their Regulation 13 obligations do not automatically face a compensation (honey) pot of 13 weeks' pay per affected employee. The EAT also remarked that the provision of information is designed to facilitate informed consultation, whether or not it is obligatory.

Religious Belief Discrimination

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (Underhill P) has handed down its decision in McFarlane v Relate, which is authority for the proposition that:-

• following Ladele (the Registrar case), dismissing a Christian who was a relationship counsellor required to counsel same-sex couples about their sex lives when he equivocated about conforming to that requirement, was not direct discrimination, as it arose from a manifestation of belief rather than the belief itself
  
  
• indirect discrimination was justified since the employer had the legitimate aim of providing services equally to all users, achieved by requiring staff to participate in the provision of services, even if that conflicted their with religious beliefs
  
  
• this type of dismissal can be fair for conduct or SOSR, but the EAT deprecated the increasing tendency of employers to dismiss on grounds of 'loss of trust and confidence', when the concept of trust and confidence is a constructive dismissal - not really an actual dismissal - concept.
  
  

The EAT decided the appeal with the parties' consent despite the pending Court of Appeal Judgment in Ladele.

Evening Sessions for Employment Tribunals

The Tribunals Service has started a six-month pilot scheme, with Stratford and Cardiff tribunals sitting between 6pm and 8pm to hear straightforward claims involving a judge sitting without members (such as unpaid wages claims).

Clearly there are implications for those with childcare responsibilities, and it is hoped that both parties need to consent to an evening slot (the precise details of the scheme are not published, although you can see a summary press release).

But well done to the Tribunals Service - it's a fabulous idea, and means that people might not need to take a day off work to attend the tribunal for straightforward claims.

Sky News: Bank Charges and the Supreme Court

Live interview with Sky News this morning as the Supreme Court handed down its judgment in Office of Fair Trading v Abbey National & ors. The Supreme Court held that unauthorised overdraft charges made by banks fell outside the provisions of the Unfair Terms in Consumer Contract Regulations 1999. Watch the interview here:

That was followed by an interview about the new Supreme Court, its constitutional position and the difference between it and the (old) House of Lords. Watch the interview here:

Age Discrimination

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The EAT (Underhill P) has handed down its decision in ABN Amro v Hogben , which is authority for the proposition that:-

• where an application is made to strike out a claim for age discrimination on the grounds that it has no reasonable prospects of success, in refusing that application the tribunal is wrong to attach any weight to the possibility that evidence in support of the age discrimination claim may be adduced through cross-examination of witnesses at the substantive hearing, where there is no material before the tribunal to support that possibility.
  
  
• where an employer introduces a change from one substantive PCP, to another substantive PCP, and the employees to whom the earlier PCP applied have a different age profile from those dealt with under the new PCP, the change itself cannot be described as constituting a PCP.
  
  
• (expressed as obiter) where the claimant makes a complaint that a redundancy scheme discriminates against younger employees, what has to be justified by the employer is the feature of the scheme which impacts on the claimant. If that feature can be justified the fact that the scheme has other features which may discriminate against other age groups is immaterial unless the employer attempts to justify the scheme by relying on those other features. In those circumstances whether or not those other features are discriminatory may become relevant
  
  
• the practice of offering an enhanced redundancy payment in return for an agreement not to pursue any age discrimination claim did not place persons of the same age group as the claimant at a particular disadvantage when compared with other persons. The practice affected all dismissed employees in the same way. Even if a discriminatory impact could be made out the practice would be plainly justified because employers have a legitimate interest in achieving finality as regards all issues arising out the dismissal and the practice was a proportionate means of achieving that aim.

Retirement: Employment Judge Colin Sara

Employment Judge Colin Sara, who has sat as a salaried employment judge in Bristol for over 20 years, retired last week.

There will be a valedictory address this coming Friday (27th November) at the Bristol tribunal at 2.30pm for all those of us who wish to bid him a happy retirement. Everyone welcome.

Breaking News: Queen's Speech

As widely anticipated, the Queen's Speech includes provisions limiting bankers' bonuses. The Financial Services and Business Bill will "control the system of rewards" in the finance sector.

The Queen also announced a Bill to allow agency workers to be paid equally to permanent staff, including giving agency workers equality on issues such as holiday pay.


Details will doubtless be available shortly on the BBC News website.

Territorial Jurisdiction

[Thanks to Paul Lewis of St John's Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Diggins v Condor Marine , which is authority for the proposition that an employee who works on a ship which is not registered in a British port may still claim unfair dismissal provided he can establish the necessary link with the UK.

At the heart of the case was a Suffolk based seaman who worked fortnightly shifts on board a ship trading between the Channel Islands and Portsmouth. The vessel was registered in Nassau, the company based in Guernsey. The company appealed against the decision of the EAT that:

(a) the tribunal did in principle have jurisdiction to hear a claim for unfair dismissal and
(b) that the relevant conditions necessary to satisfy the exercise of that jurisdiction existed in this case.

Reaffirming the approach espoused by the House of Lords in Serco, Elias LJ emphasised the key question is not where the employer is based, but where the employee is based; an employee is based where his duty begins and where it ends. On that basis, the Court of Appeal unanimously rejected the appeal allowing the unfair dismissal claim to proceed.

Relief from Sanctions

[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]

The Court of Appeal has handed down its decision in The Governing Body of St Albans Girls' School v Neary, which is authority for the proposition that an employment judge considering an application for review of a sanction is not under an obligation to expressly consider each of the potentially relevant factors set out in CPR 3.9 (overturning the EAT's decision). It should be inferred that Parliament deliberately did not incorporate CPR 3.9 into employment tribunal practice.

In considering an application for relief from sanctions, the employment judge must make clear the facts that he has regarded as relevant and say enough for the reason for his decision to be understood by a person who knows the background. Where the sanction of strike-out has been imposed, the judge must show that he has weighed the factors affecting proportionality and reached a tenable decision about it. He need not use any particular form of words, but it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just.

Previous EAT authorities requiring an employment judge to take into account all CPR 3.9 factors are no longer good law.

Compensation

[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]

The Court of Appeal has handed down its decision in Chaggers v Abbey National, which is authority for the following propositions:

• in a discriminatory dismissal case, it is proper for a tribunal to reduce compensation to reflect the chance that the claimant would have been dismissed lawfully in any event.
  
  
• the dismissing employer remains liable for 'stigma loss', if other employers are unwilling to offer employment because the claimant has previously brought proceedings. This will usually feature in the normal loss of earnings calculation of how long it will be before another job can be found. But in exceptional cases, stigma loss might form the only head of future loss, e.g. where the claimant would definitely have been dismissed in any event. In such cases, an employment tribunal might make an award of future loss for a specific period attributable to the stigma, or a modest lump sum might be more appropriate (similar to a Smith v Manchester award in personal injury cases).
  
  
• the level of compensation is in itself capable of being an exceptional circumstance within s31(4) EA 2002 entitling an employment tribunal to reduce the uplift below what would otherwise be the minimum of 10%.

[Thanks also to John Bowers QC of Littleton Chambers, who represented the employee, for telling me about the case]

Disability Discrimination: Reasonable Adjustments

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

Section 4A(3) of the Disability Discrimination Act 1995 states that employers do not need to make reasonable adjustments in certain circumstances.

The EAT has, this week, handed down its decision in DWP v Alam, which is authority for the proposition that two questions arise when deciding whether s4A(3) applies:

1. did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?
   
   
2. if not, ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?

The employer will be exempt from any duty to make reasonable adjustments if both those questions are answered in the negative.

Eastern and Coastal Kent PCT v Grey (see archive) is not, as previously thought, authority for the proposition that the requirements of section 4A(3)(b) must be interpreted cumulatively. If the employer could not reasonably have been expected to know that an employee's disability would have the effect in section 4A(1), no duty to make reasonable adjustments arises.

[Thanks also to George Branchflower, who successfully represented for the employer, for telling about this case]

Whistleblowing: Meaning of 'Disclose Information'

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT (Slade J) has handed down its decision in Cavendish Munro v Geduld, which is authority for the proposition that:-

• to make a protected disclosure it is necessary to disclose information about a situation, i.e. by conveying facts. It is not enough to make an allegation. The EAT illustrated the distinction by hypothetical examples in a hospital scenario: 'The wards have not been cleaned for the past two weeks' discloses information; whereas saying 'You are not complying with Health and Safety legislation' is an allegation.
  
  
• there is a distinction between 'disclosing' and 'communicating' information even though a disclosure can be made to a person already aware of information.

On the facts, the common scenario of a letter from the claimant's solicitor to the respondent complaining about his treatment - and provoking his dismissal - did not contain a disclosure, and therefore there was no protected disclosure.

Volunteers not covered by Disability Discrimination Act

[Thanks to Will Dobson of Cloisters for preparing this case summary]

X v Mid-Sussex CAB is authority for the proposition that 'volunteers' (such as unpaid charity or CAB workers) are not protected by the Disability Discrimination Act or the EU Framework Directive.

The Claimant was a volunteer part time advisor at the CAB. She had no contract. She left in circumstances which she alleged amounted to discrimination on grounds of her disability. She argued she was protected by the EU Directive, and that the DDA should be 'read down' to provide that protection.

Burton J, in the EAT, held that her claim should be struck out. He held "employment" in the Directive requires a material contract between the parties. He observed there was no jurisprudence to suggest that "occupation" meant unpaid employment; also, that the Directive offered protection only in relation to "access" to occupation. He held the Directive was not intended to protect volunteers in the Claimant's position and declined to make a reference to the ECJ on the point.

Discrimination: Philosophical Belief

[Thanks to John Bowers QC, who represented the employer, for telling me this judgment had been handed down]

The Employment Appeal Tribunal (Burton J sitting alone) has held in Grainger plc v Nicholson that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable of being a 'philosophical belief' for the purpose of the Employment Equality (Religion or Belief) Regulations 2003.

Guidelines as to what constitutes a 'philosophical belief' are set out at paragraph 24, which I recommend reading. Paragraphs 26-31 are also worth reading in this extremely interesting judgment.

Age Discrimination / Pay Protection

[Thanks to Kathleen Donnolly of Henderson Chambers for providing this case summary]

The EAT (Underhill P) has handed down its decision in Pulham v London Borough of Barking, an age discrimination / pay protection case, which is authority for the following propositions:

• in assessing justifiability, a tribunal is entitled to have regard to the fact that a discriminatory measure was negotiated with the unions, but a tribunal cannot abdicate the responsibility of itself carrying out the necessary proportionality exercise.
  
  
• the size of relevant budgets is a useful benchmark, but cannot be determinative: an employer cannot justify a failure to eliminate discrimination by allocating the costs of doing so to a particular budget and simply declaring that budget to be exhausted.
  
  
• parties should ensure that tribunals are given sufficient information about both (a) the discriminatory impact of a particular measure on claimants and; (b) the alleged costs and the financial background against which the affordability of those costs falls to be judged.

Associative Discrimination

[Thanks to Will Dobson of Cloisters for writing this summary]

The EAT has, this morning, given another important and far reaching judgment in the long running case of Attridge Law v Coleman.

It will be recalled that the ECJ held associative discrimination is proscribed by Directive 2000/78 EC (see previous bulletins). After the ECJ’s judgment, the tribunal was persuaded to interpolate words into s.3A(5) and 3B of the DDA to outlaw associative discrimination. EBR Attridge Law LLP appealed, on the basis that the tribunal had “distorted and rewritten” the DDA; also, that until the time for compliance with the Directive had expired in December 2006 the Courts had no Marleasing duty to interpret domestic law.

Underhill P upheld the tribunal’s decision. In so doing, he followed the approach to interpolation in Ghaidan v. Godin-Mendoza (2004), in the context of s.3(1) of the HRA.
Of striking significance is the extent of interpolations Underhill P makes. He adds a new s.3A(5A):

3A(5A) A person also discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person.

Also, a new sub-section (3) to s. 3B:

(3) A person also subjects a person (A) to harassment where, for a reason which relates to the disability of another person (B), he engages in unwanted conduct which has the purpose or effect of—
(a) violating A's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
Sub-section (2) applies to this sub-section, save that the relevant perception is that of A.

Underhill P also holds that the Courts’ Marleasing obligations bit at the moment the Regulations implementing the Directive came into force in 2004, (rather than when the deadline for implementation expired in December 2006).

Default Retirement Age: Consultation

The government has asked businesses and individuals to submit evidence on the default retirement age, to feed into the review taking place next year.

The evidence requested includes:-

• the operation of the default retirement age in practice;
• the reasons that businesses use mandatory retirement ages;
• the impacts on businesses, individuals and the economy of raising or removing the default retirement age;
• the experience of businesses operating without a default retirement age;
• how could any costs of raising or removing the DRA be mitigated

More details here.

Protective Costs Orders

[Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary]

The Court of Appeal has handed down its judgment in Eweida v British Airways, deciding that a protective costs order is not available in private litigation.

The appellant claimed discrimination on grounds of religion, and harassment, following a decision by British Airways that she could not wear a visible cross with her uniform. She was unsuccessful in the employment tribunal and EAT. She wished to appeal to the Court of Appeal but sought a Protective Costs Order ('PCO') to protect her against having to pay the respondent's costs if her appeal was unsuccessful.

The Court of Appeal unanimously held that such orders are only available in public litigation. While the appellant's claim concerned issues of general importance, it was a claim by an employee against her employer for her personal benefit and did not therefore come within the governing principles for PCOs outlined within R(Corner House Research) v Secretary of State for Trade and Industry (2005), which relate to protecting litigants raising issues of public interest who would not be able to pursue their claim but for the PCO.

Equal Pay: Service Related Pay Schemes

[Thanks to Ben Cooper of Old Square Chambers, junior counsel for Mrs Wilson, for providing this case summary]

The Court of Appeal's decision in Wilson v Health & Safety Executive is authority for the proposition that, in an equal pay claim arising from a service-related pay progression scheme which has a disparate impact on women compared with men, it is open to an employee to challenge both the adoption of length of service as a determinant of pay and the particular way in which it is used or applied.

In order to be allowed to pursue such a case, the employee is required to do no more than show that her claim has some prospect of success in the sense that there is evidence from which, if established at trial, it could properly be found that the adoption or use of length of service is not justified and/or is disproportionate.

The legal burden of proof in relation to objective justification, including showing proportionality, remains on the employer in accordance with ordinary principles under the Equal Pay Act 1970 (read together with the Sex Discrimination Act 1975). That approach is consistent with Community law under Cadman v HSE [2006] ICR 1623, ECJ. However, if Community law were less favourable to employees in that regard, domestic law would prevail because Community law sets only minimum guarantees.

Discrimination

[Thanks to Chris Milsom of St Philips Chambers for preparing this case summary]

The EAT (Cox J) has handed down its decision in Ministry of Defence v Debique, an indirect discrimination claim. The decision serves as an illustration of the tribunal adopting a practical approach to the doubly disadvantaged claimant and exemplifies a robust attitude towards the state as employer.

In dismissing the appeal, it was held that the Claimant, a female soldier from St Vincent with childcare commitments, had been the victim of sex and race discrimination by reason of two provisions:- (a) requiring that she be available for deployment on a 24/7 basis ('the 24/7 PCP'); (b) prohibiting her from inviting a member of her extended family not of British origin to stay with her in Services Family Accommodation (and thereby assist with childcare) ('the immigration PCP'):

• the EAT agreed that the combined effect of the PCPs should be assessed; "discrimination is often a multi-faceted experience" and should not be artificially compartmentalised;
  
• the MoD could not argue that this was a collateral attack upon immigration rules since discrimination arose out of the course of employment (under Pt III RRA) and the Crown (including the Home Office and MoD departments) was to be treated as a single entity. Parliament did not intend to remove the jurisdiction conferred by RRA and ERA 1996 where indirect discrimination arises from the exercise of functions by a different governmental department;
  
• it was immaterial that the immigration PCP was not applied by the Crown in its capacity as an employer since there was no requirement for this gloss to be put on RRA
  
• this was not a frontal assault on immigration rules but the application of those to the Claimant through the MoDs own policies.

TUPE Consultation

[Thanks to David Reade, who appeared for the CWU, for telling me about this case, and to Joanne Sefton - both of Littleton Chambers - for summarising it]

In Royal Mail v Communication Workers Union , the Court of Appeal has considered employer's consultation obligations in a TUPE transfer situation.

It held that the only obligation on a transferor employer is to communicate matters (such as the legal, social and economic implications of the transfer) as it believes them to be. It does not warrant the truth of what it says - so if it makes a mistake about the legal implications of the transfer, it will not (without more) be liable for a failure to inform and consult.

The case took place in the context of the sell-off of some post office services to WH Smith, where the Royal Mail took the view that TUPE did not apply (which, needless to say, influenced its view as to the legal implications of a transfer).

Giving the leading judgment, Waller LJ said: "It is a powerful argument that employees need to know where they are... But in my view it does not follow that the employer must, in effect, warrant the accuracy of the law." (para 62)

Whilst this decision will be welcomed by employers, it may be a difficult test to apply in practice, particularly where employers may be forced to waive privilege in the are unwilling to disclose the legal advice which they have received to make good the defence.

Employment Status

[Thanks to Patrick Green and Kathleen Donnelly, of Henderson Chambers, who appeared on behalf of the Appellant, for this summary]

The Court of Appeal yesterday handed down judgment in Autoclenz v Belcher, which primarily concerned the vexed question of employee/worker status. On this issue, the case is authority for the proposition that:

1. the practice of requiring car valeters to notify the company if they were not going to turn up for work was capable of being characterised as 'wholly inconsistent' with an express written term that there was no obligation for them to perform any work, such that the written term did not reflect the true agreement between the parties;

2. it was not necessary to find that the express written terms were a Snook sham (both parties intending to mislead others), as Rimer LJ had stated in Consistent Group v Kalwak [2007] IRLR 560; and Rimer LJ's reasoning was "not strictly necessary to the decision"; [para 48]

3. the Tribunal was "entitled to infer from the evidence recited that the substitution clause did not genuinely reflect the rights and obligations of the valeters", on the basis no real substitution had actually taken place [para 61] (with some hesitation - per Smith and Aikens LJJ).

As to perversity challenges to the decision of the Employment Tribunal, the case is authority for the proposition that:

4. although, as a general rule, it is not possible to mount a perversity challenge unless the court is provided with the evidence which was before the fact finder (usually agreed notes of the relevant evidence or the EJ's notes), it may be possible to mount a perversity challenge simply on the basis of the evidence recited and facts found in the judgment itself. [para 41]

Costs - just a thought...

I have long been vexed by the EAT's decision in Telephone Information Services v Wilkinson [1991] IRLR 148, in which the EAT held that it is not "frivolous or vexatious" for a Claimant to pursue an unfair dismissal claim even though the employer has offered to pay the maximum statutory compensation, as he is entitled to pursue his claim to obtain the declaration of unfair dismissal. In essence, this gives a Claimant carte blanche to force a Respondent to incur massive legal costs even though the Respondent is keen to settle its way out of the case.

Telephone Information Services v Wilkinson was decided under the old procedural rules. It would probably be decided differently now, unless the employee was seeking - and had a reasonable prospect of obtaining - reinstatement or reengagement.

This is because, in the absence of a request for reinstatement/reengagement, it would normally be unreasonable to continue with the proceedings once the maximum compensation is offered (the test of unreasonable conduct of proceedings did not exist when Wilkinson was decided - the costs triggers were simply frivolous or abusive conduct).

Alternatively, Telephone Information Services v Wilkinson could be distinguished on the basis it was decided at a time when the parties were not under a duty to follow the overriding objective (ie cooperating, and acting in a way to save tribunal time).

This decision has been quoted against me several times in the last couple of years. It might have been good law in twenty years ago, but it is time for a change.

Daniel Barnett is co-author of Costs in Employment Tribunals (Jordan Publishing)

Sky News: Sharon Shoesmith

Sky News picked up on a piece I did for LBC 97.3 this morning about Sharon Shoesmith. See the video below (I appear at 1:58).

Employment Tribunal Statistics 2008/09

The Employment Tribunal and EAT statistics 2008/09 have been published today.

Key findings:-

• 20% decrease in the number of claims accepted - but if multiple airline (cabin crew) claims are excluded, there is in fact a 4% decrease
• unfair dismissal, redundancy pay and breach of contract claims rose in number. Working time claims, equal pay and sex discrimination fell.
• maximum award (in a race case) - £1,353,432
• 21 age discrimination claims disposed of (average award £8k)
• costs awarded in 367 (0.2%) cases (average costs award £2,470)
• for the first time, the EAT rejected over 50% of all appeals at the sift stage

Default Retirement Age - More Detail

[Thanks to Schona Jolley for writing this case summary, and Declan O'Dempsey (who appeared in the Heyday case) for sending me the decision ]

Judgment was handed down today in the Heyday litigation. Age UK challenged the Default Retirement Age (DRA) of 65 in the Age Regulations arguing that Regulation 30 should be struck down since there was no clear and consistent social policy aim pursued by government. They argued the choice of a DRA at 65 was not proportionate. The EHRC submitted that 70 was the earliest appropriate age for a DRA.

The Government succeeded in respect of Regulation 30, but only just. Although the Court held that Regulation 30 (and a DRA in principle) was both legitimate and proportionate, there were powerful reasons why an age over 65 should have been adopted. Two days before trial the Defendant announced it would review Regulation 30 in early 2010. The Court considered that if there had been no indication of this imminent review it would have granted the application. Likewise, if Regulation 30 had been adopted for the first time in 2009, the application would have been granted.

The Claimants lost on their argument that the Regulation 3 justification test should be struck down for want of clarity since the Court considered the Government had spelled out sufficiently its social policy aims about the integrity of the labour market.

To listen to Daniel Barnett discussing this case on LBC 97.3, click here(allow 30 seconds for the download).

Breaking News: Heyday Decision Out...

The High Court has just handed down its decision in the Heyday appeal, ruling that it is legal for UK law to allow employers to force employees to retire at age 65.

BBC news story here... (and see the history of this litigation here).

Employment Status - Ultra Vires contracts

[Thanks to Chris Milsom of St Philips Chambers for preparing this case summary]

The EAT (Slade J) has handed down its decision in Shrewsbury NHS Trust v Lairikyengban. In upholding the appeal, the EAT ruled that an employment contract renewed in contravention of the NHS Regulations was ultra vires. However, an employee who continues to work under an ultra vires contract of employment is nevertheless entitled to be treated as an employee under the ERA (Eastbourne Borough Council v Foster [2002] ICR 234 applied).

The EAT stated that a failure to renew a fixed-term contract is not in itself sufficient grounds for a redundancy claim where there was no reduction in the overall level of work required to be completed by an employer and there remained a vacancy for a permanent employee. In those circumstances, the ET's decision to uphold a claim for contractual redundancy payment was perverse.

Further, the ET acted erroneously where it determined remedy on the evidence despite a previous agreement between the judge and the parties to conduct a split hearing.

Gordon Brown to fast-track agency workers' rights

[Thanks to emplaw.co.uk for allowing me to use their summary]

Speaking at the TUC annual conference in Liverpool, the Prime Minister has said: "I believe that the fight for fairness must include agency workers and so I pledge... that when parliament returns our new legislative programme will include equal treatment for agency workers".

It presumably follows that Gordon Brown intends to ensure that Britain does not delay implementation in the UK of the EC Agency Workers directive "on temporary agency work" of 19th November 2008). The Directive itself allows until 5th December 2011 for implementation.

See here for more.

Workers can reclaim holidays lost to sickness

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary]

The ECJ has handed down its decision in Pereda, which is authority for the proposition that a period of illness whilst on holiday does not count towards the minimum period of 4 weeks paid annual leave under the Working Time Directive (WTD).

Mr. Pereda, a specialist driver, suffered an accident at work around 14 days before the commencement of his allocated period of 4 weeks annual leave. The injury put him out of action for 6 weeks. His sick leave therefore almost entirely overlapped with his planned holiday but his request for an additional period of annual leave was refused. Under the ECJs ruling his period of sick leave should not have counted towards his holiday time.

The ruling emphasises that there can be no derogations from the entitlement to paid annual leave, the purpose of which is to enable a worker to rest and enjoy a period of relaxation and leisure. By contrast the purpose of entitlement to sick leave is to ensure that he can recover from being ill. Consequently, if a worker decides not to take annual leave during a period of illness, he must be granted a replacement holiday period to ensure that he is not deprived of his entitlement to rest, relaxation and leisure. This principle is likely to apply whether the employee falls sick before or during the actual period of leave.

Click to hear Daniel Barnett discussing this case with David Mellor on LBC 97.3

Avoiding the statutory uplift…

[Thanks to Ed McFarlane of EEF for preparing this case summary]

An interesting case...

The EAT has handed down judgment in the case of Tim Arrow & Sons v Olney, which is authority for the proposition that where a Tribunal award includes an uplift, if the respondent pays the claimant a sum to cover the award before Judgement, the uplift is calculated on the outstanding sum due, rather than the total amount of the award.

This case was decided under the Employment Act 2002, it is likely to have application under the 2008 provisions, given the similarity of the uplift provisions in the two Acts. Conversely, where a reduction is made to an award, by the same reasoning, any advance payment offset against an award would be likely to disregarded in any reduction of compensation. The EAT also overturned an award for loss of statutory rights where the dismissal was inevitable.

Norton Tool and Constructive Dismissal

The Court of Appeal has overturned the EAT (see summary of the EAT decision) in Stuart Peters v Bell, holding that the Norton Tool principle does not extend to constructive dismissal, and so a constructively dismissed employee must give credit for sums earned from other employment during the notice period.

For more detail, I recommend the summary of the Court of Appeal's decision on emplaw.co.uk (who tipped me off about this decision - thank you).

London (East) Tribunal is moving

No more trips to Stratford.

From 30th September 2009, the London (East) tribunal moves to new premises in London E14 (Docklands, near Canary Wharf). The old hearing centre closes for business on 24th September.

Full details here.

New DCSF Guidance on Employing Children

Ever wondered whether Mr Grimes breached health and safety laws when sending Tom up the chimney? Or whether Miss Hannigan breached the Working Time Regulations when forcing Annie to sweep the orphanage floor?

Well, wonder no more. The Department for Children Schools and Family has produced an excellent Guide on Employing Children, covering everything from the types of work children can (and cannot) do, through the number of hours they can be required to work, to specific health & safety requirements. It's a really good guide to print off and keep for future reference.

Costs: Lying Litigants

[Thanks to Will Dobson of Cloisters for providing this case summary]

The EAT in Dunedin Canmore Housing Association v Donaldson has held that it was perverse for the Tribunal to have refused to award costs where the claimant's assertions that she had not disclosed details of her compromise agreement in breach of a confidentiality clause were false.

The Claimant brought proceedings for breach of a compromise agreement, claiming she had not been in breach of a confidentiality clause. The Tribunal rejected her evidence and found she had made disclosures to two people. Nonetheless, it declined to award costs against her as it took the view that it was necessary for her to bring proceedings as the employer had alleged that the claimant had breached the clause.

The EAT disagreed and observed:

• there was no basis for the view that proceedings were 'necessary' or that the claimant had no other alternative but bring proceedings where she knew her assertions were false;
  
  
• the fact that the claimant was a lay person was irrelevant - what mattered was whether she had or had not, in simple human terms, approached the essential factual matters that lay at the heart of her case honestly and reasonably

Because she had not approached the case honestly and reasonably, the EAT reversed the tribunal's decision on costs and ordered the Claimant to pay her ex-employer's legal costs.

This case follows the EAT's earlier judgment in Daleside Nursing Home Ltd v Mathew which held that it was perverse for a Tribunal not to award costs where the central allegation of racial abuse was a lie.

TUPE and Constructive Dismissal (Important Case)

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT has handed down its decision in Tapere v South London & Maundsley NHS Trust, which is authority for the proposition that:

1. post-transfer, the test for whether a substantial change to working conditions - which covers contractual terms - is to the material detriment of a transferred employee, under TUPE 2006 reg 4(9), follows Lord Scott's formulation for detriments in Shamoon, a discrimination case, looking at the impact of the change from the employee's reasonable viewpoint, not by balancing the views of the employee and employer.
   
   
2. transferees cannot use a 'substantial equivalence' argument to defend breaches of pre-transfer terms, except when terms present practical difficulties, like share options. A mobility clause is unchanged upon transfer.

On these facts, changing the place of work, to a transferred employee's detriment, led to a dismissal. The EAT remitted the questions of fairness of the dismissal and redundancy pay to a new tribunal.

Disability Discrimination and Local Government Pensions

[Thanks to Emma Price of 1 Temple Gardens for preparing this case summary]

The Court of Appeal has handed down its decision in Booth v Oldham MBC, an interesting case about 1) the effect of a failed DDA claim on a breach of contract action brought in relation to an employer's decision about pension entitlement and 2) the need for exhaustion of remedies provided by the 1997 Pension Regulations before resort to litigation.

Mr Booth was dismissed in August 2001 on grounds of capability, having been signed off for stress and depression. He brought an ET claim for disability discrimination. Had he been deemed permanently incapable of discharging efficiently his duties of employment because of ill-health or infirmity of mind or body then - under regulation 27 of the Pension Regulations (which govern the Local Government Pension Scheme) - he would have been entitled to additional pension benefits. However, after the ET held that Mr Booth was not a disabled person for the purposes of the DDA 1995, the Council decided not to medically examine Mr Booth to establish if he qualified for those additional pension benefits. Whilst Mr Booth appealed the ET decision (unsuccessfully) he did not avail himself of all of the dispute resolution remedies provided by the Pension Regulations.

Mr Booth brought a breach of contract action several years later, arguing that, had they referred him for medical assessment, he would have satisfied the criteria for ill-health under regulation 27 and he would have been awarded permanent ill-health retirement.

The claim was dismissed by the High Court and, subsequently, by the Court of Appeal. The Court of Appeal held:-

• given the finding of the ET in relation to disability, Mr Booth could not successfully contend that the Council remained under a duty to medically assess him. Lord Justice Thomas stated that there was no need to consider whether a person who is found not to be under a disability under the DDA will always fail to establish permanent incapacity under the Pensions Regulations since there was clear evidence in this case that Mr Booth did not satisfy the latter test.
  
  
• as the Pension Regulations provided dispute resolution machinery by which to challenge the Council's decision, which Mr Booth had not availed himself of, he had no right to bring his claim at all.

Discrimination: Motive of Employer

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary.]

[Listen to Daniel Barnett discussing this case on LBC 97.3]

The EAT (Underhill P) has handed down its decision in Amnesty International v Ahmed, where it upheld the original tribunal's decision that Amnesty was in breach of the RRA 1976 by refusing to appoint a Sudanese woman to the post of Sudanese researcher, on grounds that the organisation would appear to lack impartiality.

In reaching this conclusion the EAT discussed the relationship between James v Eastleigh Borough Council [1990] 2 AC 751 and Nagarajan v London Regional Transport [2000] 1 AC 501, emphasising that the ultimate question in both cases (whether the discrimination is intentional, as in Nagarajan, or simply the unintended result of a benign policy as in Eastleigh) was the ground of the treatment complained of (i.e. the reason why it occurred).

The 'two-stage approach' advocated by Amnesty, applying a 'but for' test as to causation followed by an analysis of the motivation of the discriminator, was rejected. Accordingly, as Amnesty's decision not to appoint the Claimant as a researcher was solely based on her ethnic origins, there had been direct discrimination. Motive was irrelevant.

Industrial Action: Strikes and Ballots

[Thanks to Ed McFarlane of EEF for preparing this case summary.]

The Court of Appeal has handed down its decision in Metrobus v UNITE, which is authority for the propositions that:

• a union is obliged to inform an affected employer of the result of a ballot on industrial action as soon as is reasonably practicable, regardless of whether the ballot supports action or the union decides not to take action.
  
• where affected members are partly covered by 'check off' arrangements, a union is obliged to provide with ballot and strike notices sufficient information to enable an employer to readily deduce the numbers, types and workplaces of 'non-check off' employees by providing lists and figures of affected employees, and an explanation of how they were arrived at, along with details of the 'check-off' employees

The Court rejected arguments that the ballot and notice provisions of TULR(C)A 1992 were so onerous as to be incompatible with ECHR Article 11.

Bias: Peninsula and trenchant comments

[Thanks to Ed McFarlane of EEF for preparing this case summary.]

The EAT (Slade J) has handed down its decision in Peninsula v Rees & ors, which is authority for the proposition that the test for the appearance of a risk of bias can be met where a part-time Employment Judge is closely associated with an advertisement expressing trenchant derogatory views about a group of people, in this case unqualified employment consultants, where one of the parties in the case being heard by the part-time Judge (Peninsula) is a member of that group.

The extent of any actual competition between the Employment Judge's practice and the party (para. 50).

In the joined case of Peninsula v Malik, the EAT held, as between the same party and Employment Judge, that apparent bias might not be established with the passage of time and/or a change in the Judge's status to full-time (para. 56).

If a lay member is recused during a hearing and a party consents to proceeding with a 2 member panel, consent is not vitiated even if the full facts about the remaining panel are not known when consent is given, if there is not, on the facts, the risk of an appearance of bias (para. 58).

Disability Discrimination: Excluded Conditions

[Thanks to Will Dobson of Cloisters for preparing this case summary]

The case of X Endowed Primary School v Mr & Mrs T (transcript not yet up on BAILII, but will in due course will be here) is authority for the proposition that where a disabled person has a protected impairment under the DDA which manifests itself in a form falling within one of the conditions excluded by Regulation 4 of the Disability Discrimination (Meaning of Disability) Regulations 1996, the focus should be on whether any alleged discrimination relates to the excluded condition or to the protected disability or to both.

JT was excluded from the Appellant School for scratching a teacher. He suffers from ADHD (a protected disability) which causes sufferers to act aggressively in certain provocative situations. The School appealed the Special Educational Needs and Disability Tribunal's finding that it had failed to make reasonable adjustments, arguing that the only aspect of JT's ADHD in respect of which there was need to make an adjustment was his tendency to physical abuse of other persons (an excluded condition under the Regulations).

The Equality and Human Rights Commission, supporting JT's parents, argued that the Regulations only applied to free standing conditions and not to consequential symptoms of an impairment. Mr Justice Lloyd Jones rejected this and in so doing preferred Edmund Nuttall Limited v Butterfield (2005) over Murray v Newham CAB (2003), both EAT decisions. The fact that the tendency to physical abuse was a manifestation of a protected disability did not remove it from the Regulations' scope. On the facts, there was a failure to make reasonable adjustments in respect of JT's protected disability.

Claimants may wish to argue that where there is an underlying protected disability and an excluded condition, the issue is one of reasonable adjustments for the protected disability even where any failure to make adjustments causes the excluded behaviour.

Right to Legal Representation at Disciplinary Hearings

The Court of Appeal has handed down its decision in Kulkarni v Milton Keynes Hospital NHS Trust, which:-

a. is authority for the proposition that NHS doctors are entitled to legal representation if is authority for the proposition that NHS doctors are entitled to legal representation if facing charges of misconduct or capability, under the terms of their contract; and,

b. contains clear obiter suggesting that where disciplinary charges are of such gravity that someone might be unable to work in the future if the charges are proved, that person has a free-standing right to legal representation at internal disciplinary hearings under Art 6 of the European Convention on Human Rights.

This latter point has significant implications for all public sector workers, and is consistent with this decision of the High Court earlier in the year.

The solicitors for the Appellant, Radcliffes Le Brasseur, have put together an excellent case summary if you want to learn more about this case

Employment Status - consultation

[Thanks to Professor Anne Redstone, visiting professor at King's College, London, for writing this bulletin]

HM Revenue and Customs have published a consultation document yesterday called 'False Self-employment in Construction”. It proposes deeming workers within the construction industry to be in receipt of employment income for tax and NICs purposes unless at least one of the following criteria are met:

• provision of plant and equipment – that a person provides the plant and equipment required for the job they have been engaged to carry out. This will exclude the tools of the trade which it is normal and traditional in the industry for individuals to provide for themselves to do their job;
  
• provision of all materials – that a person provides all materials required to complete a job; or
  
• provision of other workers – that a person provides other workers to carry out operations under the contract and is responsible for paying them.

Although the proposed new rules will not change the individual's employment status for employment law purposes, the impact of paying PAYE and NICs at an employed level may increase the liklihood of workers taking cases to the tribunal, as they have less incentive to accept self-employed status.

Industrial Action and Dismissals

Thanks to Ed McFarlane of EEF (pictured) for preparing this case summary. Thanks also to John Bowers QC of Littleton Chambers, leading counsel for Gate Gourmet, for telling me the decision had been handed down.

The EAT (Underhill P) has handed down its decision in Sandhu & ors v Gate Gourmet, which is authority for the proposition that:

• dismissal of an employee at work for having taken part in unprotected industrial action, whilst not being automatically fair, is potentially fair for conduct. Simmons v Hoover [1977] ICR 61 is still good law notwithstanding developments in Human Rights and UK/EU law enshrining the right to strike (para. 35). The then-current modified statutory dismissal procedure could be used in cases of unofficial industrial action.
  
• where a trade union official, called in to mediate, takes part in industrial action, that of itself does not mean that the action is approved by the union. The status of the employee at the time of dismissal is the key question, and one of fact.

The EAT also made observations on the operation of issue estoppel where a preliminary finding may impact upon issues determined later in proceedings, and the doctrine is engaged only if findings are necessarily inconsistent (paras. 19-22).

Tribunal Service Annual Report

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

The Tribunals Service Annual Report and Accounts have been published today, marking the third year of the Tribunals Service. Important announcements for employment lawyers include:

• Caseflow, a joint project between the Tribunal Service and ACAS, and which is an electronic case management system, will be piloted at the end of June 2009 and is expected to roll-out to all employment tribunal offices by the Summer 2010. It is hoped Caseflow will be an IT solution for the efficient processing of claims and their transfer between the Tribunals Service and local ACAS offices.
  
• the results of the pilot tests of judicial mediation conducted in the employment tribunals in the last year have been very positive, with judicial mediation on a specific subset of cases having been rolled out to all employment tribunal regional offices in England and Wales in January 2009. Work is currently underway to develop a similar scheme in Scotland.
  
• Work progresses on the plan to move employment tribunal IT systems to the standard Ministry of Justice IT infrastructure; this should be complete by September 2009.

Equal Pay: Time Limits and TUPE

[Thanks to John Bowers QC of Littleton Chambers, Counsel for the employer, for telling me abot this decision, and to Mark Berry of Thompsons, solicitors for the Claimants, for writing the case summary]

The Court of Appeal has today handed down its decision in Gutridge v Sodexo , a case involving equal pay rights in the event of women being subject to a TUPE transfer .

By a majority, the Court of Appeal upholds Elias P.'s decision in the EAT, namely that:-

• claims for equal pay losses, which have accumulated during employment up to the date of transfer of the undertaking to the transferee, must be brought against the transferee within 6 months of the date of the transfer (and will otherwise be barred by limitation rules); but,
  
  
• claims for losses after the date of the transfer are able to proceed against the new (transferee) employer for up to 6 years' losses from the date of the claim. Claims must be pursued within 6 months of the termination of that employment.

Employers taking over public sector service contracts will therefore continue to be liable for equal pay claims long after the transfer has taken place for so long as those transferred remain employed, based on the earnings of comparators employed by the public authority before the transfer occurred.

Employment Status: Substitution Clauses

[Thanks to Lydia Carter, pupil barrister at Littleton Chambers, for preparing this case summary]

The EAT (Slade J) has handed down its decision in Archer-Hoblin v MacGettigan, which is authority for two propositions.

1. the construction of substitution clauses must be carried out applying ordinary principles of construction. If the clause is clear and unambiguous, its meaning and effect are to be determined in accordance with its terms [34]. The term in question, unless held to be a sham, provided an unfettered right of substitution which was inconsistent with an obligation to perform personally any work or services within the meaning of WTR Reg 2(1) [43]. The tribunal judge had erred in considering what happened in practice when construing the meaning of the clause.
   
   
2. what happened in practice would, however, be relevant in determining whether or not the clause was a sham. In determining whether a substitution clause was a sham the intention and practice of the parties should have been considered [45].

The case has been remitted to a fresh tribunal to determine whether the substitution clause was a sham and, in light of the conclusion on that point, to make a finding on whether the Claimant was a worker within the WTR.

Addendum: Comparators in Equal Value Claims

Thanks to all those who have emailed me to say that the link in my last bulletin (meant to go to Hovell v St Peter's NHS Trust) is wrong.

The case transcript has been removed from BAILII and is no longer accessible - I don't know why. It will presumably go up again sometime today and will be accessible from here:-

http://www.bailii.org/ew/cases/EWCA/Civ/2009/

(scroll down to July)

Daniel Barnett

Equal Pay: Comparators in Equal Value claims

[Thanks to Ed McFarlane of EEF for providing this case summary]

The Court of Appeal has handed down its decision in Hovell v St Peters NHS Trust , which is authority for the proposition that where a Job Evaluation Scheme has been implemented and jobs are rated equal or very similar, a claim for equal value during the pre-JES period under section 1(2)(c) of the Equal Pay Act 1970 will not automatically succeed.

Elias LJ, giving the only reasoned judgment, rejected a 'substantial equivalence' argument, to the effect that similar ratings under a JES, without more, can demonstrate equal value, an approach which could lead to Claimants salami-slicing their way along a pay scale by successive comparisons (paras. 32- 41).

He emphasised that the Tribunal should focus on a 'one-on-one comparison' for equal value claims, and this may involve more detailed comparison of the respective jobs under consideration that is involved section 1(2)(b) (work rated as equivalent under a JES).

The Court also made observations on the discretion to use an Independent Expert in equal value claims (para. 46).

Disability Discrimination: Malcolm continues…

Thanks to Caroline Musgrave of Cloisters for summarising this decision]

The EAT has held, in Fareham College v Walters, that a decision to dismiss can be an unlawful act of disability discrimination by reason of being a failure to make reasonable adjustments. It therefore mitigates the effect of Lewisham v Malcolm .

Fareham makes it clear (paras 65 -78) that if, at the point at which the employer was considering dismissing the employee, there was a reasonable adjustment (e.g. allowing the employee to transfer to an alternative role) which would have avoided the dismissal, the dismissal itself will be an unlawful act of disability discrimination - by reason of the failure to make reasonable adjustments.

Contrary to previous dicta there is no need for claimants in such circumstances to rely on disability-related discrimination and the problems posed by Malcolm in these situations can thereby be avoided.

Fareham also contains a useful discussion of the comparative exercise involved in the duty to make reasonable adjustments (paras 50- 64). It is a broad-brush exercise that does not involve like for like comparisons. Moreover, it is not always necessary for a tribunal to expressly state who the comparators are because it is often obvious.

Construction of Contracts

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

The House of Lords decision in Chartbrook v Persimmon Homes is not an employment law case. It is noted here because it deals, at length, with the important questions of:

• the extent to which context and backgound can be taken into account in determining the proper meaning of words in a contract;
• the distinction between context and backgound (which can be taken into account) and pre-contractual negotiations (which must not be taken into account) in determining the proper meaning of words in a contract;
• the distinction between "rectification" of a contract, which applies when the parties are in complete agreement on the terms of their contract but by error wrote them down wrongly, and "construction" of a contract which means giving a proper interpretation to words actually used.

In this case the House of Lords allowed an appeal by the Persimmon house building company. The House of Lords construed a contract in the manner contended for by Persimmon. Rectification was neither appropriate nor necessary.

Overruling the Court of Appeal, the House of Lords interpreted a badly drafted, even nonsensical, part of the contract by taking into account the context and commercial background behind it (but not the negotiations leading up to it). The result was that Persimmon Homes Ltd owed Chartbrook Ltd, a landowning company, just £900,000 rather than the £4 million which would have resulted from a literal, albeit unintended, interpretation of the wording.

Important Case: House of Lords considers Disability Discrimination Act

[Thanks to Paul Lewis of St John's Chambers for providing this case summary]

The House of Lords has handed down its important decision in the case of SCA Packaging v Boyle, which is authority for the proposition that the word 'likely' as used in the Disability Discrimination Act 1995 should be interpreted as meaning 'could well happen', rather than 'more likely than not'.

In order to decide whether an illness (hoarseness caused by nodes on the vocal chords) qualified as a disability for the purposes of the DDA 1995, the Court had to consider meaning of the word 'likely' in two specific contexts: (a) the likelihood of a substantial adverse effect if the corrective measures were not taken and (b) the likelihood of a recurrence of that effect at some point in the future.

Wiping the slate clean, the House of Lords firmly rejected previous authority that 'likely' in the context of the DDA 1995 was taken to mean a 51% chance. In future, the courts will apply what is surely a much lower standard 'could well happen'. See in particular the discussion in the leading speech given by Baroness Hale at paras 65-75.

Compensatory Award

[Thanks to Paul Lewis of St John's Chambers for preparing this case summary]

The EAT has handed down its decision in Saunders v OCS Group, which is authority for the proposition that in deciding whether to make a compensatory award following an unfair dismissal, a Tribunal must (a) dentify what loss the employee has suffered at the time of dismissal, and then (b) decide whether that loss is attributable to the action taken by the employer.

The Claimant, an airport worker, was unfairly dismissed for gross misconduct and had his licence to work at the airport withdrawn immediately. The Tribunal made a nil compensatory award on the basis that, having lost his licence, the Claimanthad no prospect of working beyond the date of his dismissal, and therefore had suffered no loss of wages.

The EAT held that the Tribunal failed to identify correctly the Claimant's loss at the time of dismissal, namely his right to be dismissed in accordance with the terms of his contract. Furthermore, despite finding the dismissal unfair, the Tribunal failed to consider the 'what if' Polkey scenario in deciding to make a nil compensatory award.

TUPE: Service Provisions Change

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT has considered, in Metropolitan Resources v Martin Cambridge , the correct approach for establishing whether or not a service provision change falls withinTUPE 2006. A contractor took over the provision of services to asylum seekers, providing services in a new way at a new site.

The EAT held that regulation 3(1)(b), which defines a 'service provision change', has broad scope, the key issue being one of fact as to whether or not any of the conditions in 3(1)(b)(i) to (iii) are met.

A "…commonsense and pragmatic approach is required…". The fundamental question for a tribunal is "…whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor…". (para 30.). There is "…no call for a formal list of factors which the Tribunal must consider before it can make a decision…" (para.34) unlike the multi-factorial Cheeseman approach under Reg 3(1)(a).

According to the EAT, "Where one contractor ceases and another commences service provision with differences in time,manner and/or place, there can still be an SPC under TUPE" (para. 37). Thus the sands of time will not save contractors from the quicksands of TUPE.