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).