1st October 2010 changes

A quick note of the changes coming into force this Friday.

1. Equality Act 2010
Most parts of the Equality Act 2010 come into force. This huge legislative tome will doubtless have lawyers arguing over the minutiae for years to come. But other than partially prohibiting pre-employment health questionnaires, it actually makes no difference whatsoever to what employers need to do. Storms and teacups. For a good summary of the Equality Act 2010, see this Law Society practice note.

2. Minimum Wage
The annual increase in the national minimum wage comes into force. The principal rate increases from £5.80 to £5.93 per hour (now payable from age 21). Other rates can be seen here. For what it's worth, London Mayor Boris Johnson has increased the London 'living wage' to £7.85 per hour, but this has no legal standing and is completely unenforceable

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Discrimination

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

The EAT (Underhill P) has handed down its decision in Bullimore v Pothecary Witham Weld Solicitors, which is authority for the proposition that the provider of a discriminatory reference can be liable for loss of earnings even if the recipient also victimises a Claimant on the back of it.

The solicitor Claimant was victimised by a reference from a previous firm and a prospective employer withdrew a job offer. The Tribunal held that the claim for loss of future earnings against the reference provider was too remote. The EAT disagreed, observing that this was a not uncommon form of victimisation, and if the reference recipient were not also motivated by victimisation, the Claimant would have no remedy for loss of earnings.

The EAT suggested apportionment of damages between the provider and recipient of the reference to reflect their culpability.

The Claimant's appeal against quantum for injury to feelings ignoring inflation failed, the EAT observing that whilst such awards should be in "today's money", the Tribunal had clearly had regard to the current value of money.

New Guide on Stress at Work

The CIPD, in conjunction with Acas and the Health & Safety Executive, have produced a guide for employers on 'Work Related Stress: What the Law Says'.

You can download it here.

Unfair Dismissal

Is 'loss of £3,000' the same as 'theft of £3,000'? No, says the Employment Appeal Tribunal in Celebi v Compass.

An employee was believed to have stolen £3,000. The allegation put to her, though, was 'loss of £3,000'. Despite this euphemism, she knew she was actually being accused of theft. A disciplinary hearing found her guilty of 'loss' and she was dismissed.

The Employment Appeal Tribunal held that the lack of precision in the charge meant the dismissal was unfair under 'ordinary' unfair dismissal principles. It was also unfair under the (now repealed) statutory dismissal procedures, as the Step 1 letter did not accurately set out the charge.

The case has been remitted to the tribunal for consideration of an award, in particular whether there should be any reductions for contributory fault and on Polkey grounds.

Discrimination Compensation

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

The EAT (Keith J) has handed down its decision in Thaine v London School of Economics, in which the approach to apportionment of damages in psychiatric injury cases was considered. The case concerned a female employee, who made 10 claims of sex discrimination against her former employer, 2 of which were upheld.

The Tribunal found that the unlawful discrimination had been a "material and effective cause" of the claimant's ill health, but that there were other "concurrent causes" in her personal life, and her belief that she had been discriminated against in circumstances where the Tribunal had found she had not (i.e. the unsuccessful claims).

The Tribunal assessed the contribution of the unlawful discrimination at 40% and discounted compensation accordingly. The EAT considered whether it was legally open to the Tribunal to discount an award in such a way, ultimately holding that it was. The judgment suggests the proper approach in such cases is to ask

1. did the conduct for which the respondent is liable materially contribute to the harm, and if so

2. to what extent should liability for that harm fairly be attributed to the respondent.

Mitigation of Loss

[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The EAT (Keith J) has handed down judgment in Kelly v University of Southampton, upholding the tribunal's finding that the Claimant, an academic, had failed to mitigate her loss by failing to apply for either of two vacant posts for which she was qualified in the University's relevant academic school. The tribunal limited the Claimant's loss of earnings up to the date by which she would have been appointed to one of the posts.

The finding was challenged on the basis that the tribunal was not entitled to find that the Claimant would actually have been appointed to one of the posts, and only heard evidence stating that she was qualified to apply, which is a different animal.

The EAT, however, upheld the tribunal's finding; the tribunal was entitled to rely on facts they had heard covering the length of time that she had worked at the University, the circumstances of her previous dismissal and her qualifications - to arrive at their conclusion that the Claimant would or was extremely likely to have been appointed to one of the posts.

Equal Pay - Statutory Grievance Procedure

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The EAT (Cox J) has handed down its decision in Birch v Walsall MBC, which is authority for the proposition that a written grievance raised in the context of an equal pay claim can still comply with step 1 of the statutory grievance procedure (SGP) even if such a document contains questions about equal pay that are outlawed by Regulation 14. In such circumstances, the dual purpose of the document should be recognised.

Any outlawed questions can then be excluded without vitiating the remainder of the grievance, provided it otherwise meets the minimum requirements needed to be SGP-compliant.

New Acas/TUC Mediation Guide

[Thanks to Laurie Anstis of Boyes Turner for telling me about this]

Acas and the TUC have, today, launched a new guide for trade union representatives on workplace mediation, and how mediation can avoid costly disputes.

The new guide covers:

• What happens during mediation
• The role of representatives in mediation and how to support members
• Working with employers to set up mediation arrangements
• How mediation fits with other workplace procedures and agreements
• Trade Union reps acting as mediators

The new guide is available here. Another Acas mediation guide, aimed at employers, is available here.

Employment Tribunal Annual Statistics

[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The ET and EAT Statistics for 2009-10 have been published and can be found at www.justice.gov.uk/publications/docs/tribs-et-eat-annual-stats-april09-march10.pdf.

They reveal an overall increase (a rise of 56% from 2008-9) in accepted claims, mainly due to a rise in the number of multiple claims, but also partly due to the changing economic climate. Thus accepted claims are at their highest levels.

The particular impact of the economic recession appears to have been in the areas of unfair dismissal, breach of contract and redundancy claims, where jurisdictional claims in these areas had increased by 17% from
2008-9 and 62% from 2007-8.

Of particular note is that, of the 392,800 jurisdictional claims received in the year, just under a quarter related to the Working Time Directive (largely multiple airline industry cases that are resubmitted every three months) and 75,500 were unauthorised deductions (Wages Act).

The statistics show that there is no real difference in the number of appeals dealt with by the EAT in the last year by comparison with 2008-9.

Disability Discrimination

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

The EAT (HHJ Serota) has handed down its decision in JP Morgan v Chweidan, which is authority for the proposition that where a claim for disability-related discrimination fails, the same facts probably should not support a finding of direct discrimination.

The banker Claimant, disabled after a skiing accident, was unable to work as long hours as before, which led to a reduction in his bonus and dismissal. The Employment Tribunal held that this was not disability-related discrimination, as the Claimant was treated like a comparator in the same predicament but without his disability.

Nevertheless, the Employment Tribunal found direct discrimination under S3A (5) DDA against the Claimant out of the same facts. The EAT overturned this, holding that it was difficult to see how a claim of direct discrimination would succeed where a claim of disability-related discrimination under S3A (1) DDA fails, and remitted the issue of whether the Claimant suffered direct discrimination for the Tribunal to consider whether there were additional grounds to support such a finding.

Disability Discrimination

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

The EAT (HHJ Serota) has handed down its decision in JP Morgan v Chweidan, which is authority for the proposition that where a claim for disability-related discrimination fails, the same facts probably should not support a finding of direct discrimination.

The banker Claimant, disabled after a skiing accident, was unable to work as long hours as before, which led to a reduction in his bonus and dismissal. The Employment Tribunal held that this was not disability-related discrimination, as the Claimant was treated like a comparator in the same predicament but without his disability.

Nevertheless, the Employment Tribunal found direct discrimination under S3A (5) DDA against the Claimant out of the same facts. The EAT overturned this, holding that it was difficult to see how a claim of direct discrimination would succeed where a claim of disability-related discrimination under S3A (1) DDA fails, and remitted the issue of whether the Claimant suffered direct discrimination for the Tribunal to consider whether there were additional grounds to support such a finding.