Constructive Dismissals and Grievances

[Thanks to Will Dobson, pupil barrister at Cloisters, for summarising this case]

The EAT, in Parsons v Burworth Estates (Underhill P presiding), has held that there was no reason why a tribunal could not consider a constructive unfair dismissal claim on a 'severed' basis, where some of the employee's complaints had been the subject of a grievance but others had not.

The EAT had previously held in Cyprus Airways v Lambrou that there was no juridical basis for such a 'severed' approach by tribunals. In Parsons, the EAT stated that Cyprus Airways did not "enunciate any general principle about 'severance'. In a case where the claimant relies for the purpose of his constructive dismissal claim on a series of quite discrete breaches, but has failed to lodge a grievance in respect of some them, we can see no reason in principle why he should not pursue his claim insofar as it is based on the remainder". A claimant will still need to establish that the breaches on which he is entitled to rely are those in response to which he resigned (at para 23).

This decision will come as a relief to claimant lawyers who have faced strike out applications - often successful - on the basis of the principle as previously understood to be set out in Cyprus Airways .

New 'Fit Note' Unveiled

[Thanks to Eugenie Verney for sending me this information]

The government has announced details of its new 'Fit Note', to replace the MED3 sicknote.

There is currently a 12-week consultation on the design of the Fit Notes, and it is intended that they will come into use in Spring 2010.

Rather than just having a binary 'fit / unfit' to work choice, as per the current forms, the new 'Fit Note' will contain suggestions as to how an unwell individual can be eased back into work.

Details (rather sparse as I send this) here .

Failure to pay tribunal award capable of being Victimisation

[Thanks to Anya Palmer of Old Square Chambers for summarising this case]

In Rank Nemo (DMS) Ltd v Coutinho the Court of Appeal holds that an ex-employee is entitled to proceed with a claim for victimisation against a (new) ex-employer for failing to pay an award of £72,500 for race discrimination and TUPE unfair dismissal by a predecessor company.

The Respondent argued that this was not really a claim for victimisation at all, but an inappropriate attempt at enforcement in the wrong venue. The Claimant (in person) persuaded the Court of Appeal that this was not so. He does allege subjective discriminatory motives by the Respondent in failing to pay his award, pointing out that other creditors who have not done a protected act have been paid. As this was a preliminary challenge, the facts were assumed in his favour. The earlier case of D'Souza v Lambeth was distinguished because in that case the detriment was refusal to reinstate, for which the only remedy statute allows is further compensation.

Mummery LJ also called on Parliament to enact "some reasonably workable test for determining discrimination liability in the sensitive area of expired employment."

Costs: Lying Litigants

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

The EAT has handed down its decision in Daleside Nursing Home v Mathew, which is authority for the proposition that where there is a clear-cut finding that the central allegation in a discrimination claim is a lie, it is perverse for the Tribunal to conclude that the making of such a false allegation does not constitute unreasonable behaviour for the purposes of costs.

At the heart of the direct race discrimination claim was the allegation that the Claimant had been called "a black bitch" by her manager. After hearing evidence, the Tribunal concluded that this was untrue. However, when the discrimination claim subsequently failed, the Tribunal declined to make a costs order on the basis that the Claimant had a genuine belief in her claim, and had not acted unreasonably.

The EAT held that the Tribunal, in light of the findings of fact which had been made, should have come to the conclusion that the Claimant had acted unreasonably in bringing and conducting the proceedings, and was therefore wrong in law to reject the claim for costs on that basis.

Part Time Workers

[Thanks to Marcus Pilgerstorfer of Old Square Chambers, who acted for the Appellant, for providing this case summary]

The EAT has handed down its decision in Carl v The University of Sheffield , which is authority for the following propositions:

• a Claimant seeking to establish unlawful less favourable treatment under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 must be able to point to a real comparator who amounts to a “comparable full-time worker” under reg 2(4). Clause 3.2 of the Part Time Worker Directive 97/81/EC did not require that a hypothetical comparator is available to a part time worker complainant.
• it is not necessary that the treatment was only on the ground of part time status. Rejecting the approach in Gibson v Scottish Ambulance Service (which focused on the presence of the word “solely” in the Directive) and preferring Sharma v Manchester City Council, the EAT held (para 42) that part time working must be the effective and predominant cause of the less favourable treatment complained of, but need not be the only cause.

On the facts, the EAT held that the Tribunal had been entitled to find that the alleged comparable full-time worker in the case, Ms McClelland, was not properly regarded as a true comparator. Unlike the position in Matthews v Kent & Medway Towns Fire Authority, the claimant and Ms McClelland did not undertake the same work, and the Tribunal had been entitled to take into account the differences in what they taught, their job specifications, how they taught as well as their skills, qualifications and educational achievements.

Equal Pay: Time Limits and New Contracts

[Summary written by Michael Duggan, barrister at Littleton Chambers and author of Equal Pay: Law and Practice (Jordans Employment Law Series 2009)]

The EAT has handed down an important judgment in Potter v North Cumbria Acute Hospitals NHS Trust (the Casson Claimants), which is authority for the proposition that the move from Whitley Council agreements to Agenda for Change does not constitute a new contract of employment, so that time does not star to run from the changeover.

Miss Potter and other lead Claimants were refused leave to amend their applications to change the comparators named in the originating applications by adding in different job groups on the ground that the move from Whitley Council to Agenda for Change constituted entering into a new contract of employment with the effect that the six month time limit ran from the date the Claimants were assimilated into AfC so that there was no jurisdiction to hear claims involving new comparators.

The EAT held that the Tribunal had erred in law and reached a perverse conclusion in deciding that the changes were so fundamental that an inference could be drawn that the parties intended to make a new contract. The move to AfC constituted a variation of the contracts and not their termination and replacement. The Tribunal therefore had a discretion to allow the amendments, so that the case was remitted to a Tribunal to exercise its discretion. The case is of some significance since it is not uncommon for new comparators to be added in this litigation as the cases progress.

Discrimination: Extensions of Time

[Thanks to Anya Palmer of Old Square Chambers, who acted for the employee in this case, for writing this summary.]

In Carter v London Underground Limited, the EAT holds for what is by now the umpteenth time that the House of Lords decision in Lewisham v Malcolm does apply to disability related discrimination in employment. However, the decision is of interest for two other reasons.

Firstly, the EAT holds that the Tribunal was wrong to conclude that regulation 15 Employment Act 2002 (Dispute Resolution) Regulations 2004 meant it had no jurisdiction to hear a claim brought more than six months after the act of discrimination in question, and no discretion to extend time. It would be "extraordinary" if regulation 15 had that effect.

Secondly, and unusually, at paras.47-49 the EAT itself decides the question whether time should have been extended (but for the successful cross appeal). The claim in question had been brought a year out of time. Although this delay was said to be "substantial" and the EAT regarded the case as "near the borderline", the EAT said it was reasonable to accept that a depression of the severity experienced by the Claimant would have had a serious impact on the Claimant's ability to take decisions about legal proceedings. It was reasonable on the facts of this case for the Claimant to have focused on keeping his job rather than bringing legal proceedings. It was also relevant that the act in question had played an important part in the Claimant's mental deterioration; and that the Respondent could not show any serious evidential prejudice resulting from the delay.

Although the EAT is careful to emphasise that each case turns on its own facts, it makes a number of general observations and the decision will repay careful study both by claimant and respondent lawyers dealing with the discretion to extend time.

Constructive Dismissal

Two interesting cases were handed down last week on constructive dismissal.

The first case, summarised by Tom Brown, Jason Galbraith-Martin and Ed Williams of Cloisters (all of whom appeared in the case), is Bournemouth University Higher Education Corporation v. Buckland. This is authority for the proposition that the ‘range of reasonable responses’ test should not be used when considering whether an employee has been constructively dismissed: such an approach (seen in Fairbrother and Claridge) either adds nothing to settled Court of Appeal and House of Lords authority or is inconsistent with it.

The EAT provides guidance on the proper approach to considering whether there has been a constructive dismissal and on whether an employer can cure a breach of the implied term of trust and confidence. On the facts, Professor Buckland resigned after his marks were overturned without his knowledge. The ET held that overturning his marks amounted to a breach of the implied term of trust and confidence and the University had not cured the breach through the grievance process. On appeal by the University, the EAT rejected the argument that a range of reasonable responses approach should be used when deciding if an employee has been dismissed but held that the ET had been wrong to find that the grievance process hadn’t cured any breach of the implied term.

The second case, summarised by Richard Woods of LawAtWork, is Wishaw and District Housing Association Limited -v- Moncrieff . This is authority for the proposition that a tribunal must clearly identify what the final straw is when determining whether a Claimant is entitled to resign or not. Further, it provides a useful summary in identifying what types of conduct by a Respondent are capable (or not) of constituting a 'final straw' for the purpose of breaching trust and confidence. In this case the EAT held that (1) a letter from the Respondent threatening to consider the possible dismissal of the Claimant because of his long term absence and (2) a letter from the Respondent's representative offering to deal with his grievance internally when he had previously been offered external mediation, could not objectively be considered as a last straw entitling the Claimant to resign.

A Procedural Pigs' Breakfast

[Thanks to Michael Duggan of Littleton Chambers, who successfully represented the employer, for providing this summary]

"A procedural pigs' breakfast" was the description given by Underhill P. to the strike out provisions of the Employment Tribunal Rules of Procedural 2004 in North Tyneside Primary Care Trust v Ms Aynsley and others, handed down on 8th May 2009.

An Unless Order was made against the Trust in one of the multiple equal pay claims proceeding in Newcastle to disclose various categories of information relating to comparator groups by 20th May 2008. The Employment Judge found that there had not been compliance so hat the Trust’s Response was struck out without the need for any further order under Rule 13(2). The Trust had remedied the defects in provision of information by the time a review hearing took place on 16th July 2008 but the Tribunal refused the review, purportedly under Rule 34.

After considering the rules in some detail (see paragraphs 23 to 29) Underhill P held that a the strike out of a Response could not be reviewed under Rule 34 as it was not a judgment or final determination of the proceedings. However, it could be reconsidered under Rule 10(2)(n) and CPR 3.9. should be taken into account.

Underhill P stated that the breach of an Unless Order was only one factor to be considered. The Employment Judge had seriously overstated the extent of non-compliance and explanations had been provided for any gaps. The Tribunal Judgment was set aside.

The case is an indictment of the convoluted provisions of the 2004 Rules as well as providing a useful illustration of when it is appropriate for there to be relief from the consequences of an Unless Order.

Extensions of Time

In Accurist Watches v Wadher, the Employment Appeal Tribunal (Underhill P) has held that although evidence is required when considering an application to extend time, it need not be in any particular form. Specifically it need not be in the form of oral testimony from the Claimant.

Distinguishing a previous EAT decision where it was said that no extension could be granted without evidence from the Claimant, Underhill P clarifies that actual testimony is unnecessary (although it is, of course, desirable). It is sufficient for a tribunal to rely on medical evidence, or even infer facts from pleadings or contemporaneous documents (paras. 16-17).