Paralegal sought

Daniel Barnett is looking for someone to help with a one-off piece of research, involving:

• locating and reviewing relevant extracts from Hansard and parliamentary committee papers, to try to establish legislative intention; and,
  
  
• caselaw research on a piece of statutory interpretation.

The ideal candidate will have a first-class or postgraduate degree, and will be accustomed to spending time in the library. S/he will be academically minded and thorough, whilst being able to work efficiently and quickly. The position is offered on a self-employed basis, acting as a paralegal, and the appointee will need to have access to a full legal library (eg an Inn of Court library). It is envisaged that about 10-15 hours work will be required. Further work may be available, but this is offered as a one-off task.

If you are interested in working with me, please send me an email, attaching a CV and setting out in the body of the email (in no more than 200 words) what experience you have that makes you a good candidate. My email address is deliberately not included in this post (as it would get picked up by spam bots), but is on the 'Contact Me' page on my website.

Closing date: 4pm Friday, 4th February 2011

Redundancy

[Thanks to Rad Kohanzad, pupil at Old Square Chambers for preparing this case summary]

The EAT has handed down its decision in Morgan v The Welsh Rugby Union where it reiterates that the redundancy guidance set out in Williams v Compair Maxam does not apply to cases where redundant employees are applying for a new and different role. Where an employer has to appoint new roles their decision must of necessity be forward-looking, centring upon the individual's ability to perform the new role.

The Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role; both of them were interviewed for the new role. Despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.

The tribunal found the interview process was conducted in a fair and objective and that the dismissal was fair, notwithstanding the interview panel did not adhere to the job description and the format of the interview substantially differed between the candidates.

The EAT refused to disturb the tribunal's finding as they were satisfied that the tribunal decided the case in accordance with section 98(4) Employment Rights Act 1996 and were not persuaded that the tribunal's conclusion was perverse.

TUPE

[Thanks to Dr John McMullen of Short Richardson & Forth LLP for preparing this case summary]

The European Court of Justice has handed down its judgment in CLECE SA v Maria Socorro Martin Valor and Ayuntamiento de Cobisa (Case C-463/09) which is authority for the proposition that, for the purposes of the Acquired Rights Directive 2001/23/EC a mere change of service provider is not a transfer of an undertaking.

A local authority had contracted out the cleaning of schools and premises belonging to it. It terminated the contract and brought the service back in house. But it declined to employ the contractor's staff and, instead, hired in new employees to do the work. No assets transferred from the outgoing contractor to the local authority and as no staff were taken on, the Directive did not apply.

This is an application of the European Court test of a transfer on service provision change under which the mere change of provider cannot, without the transfer of assets or the taking of employees, amount to a transfer (see Süzen [1997] IRLR 255). If the situation had arisen in the UK, however, there would have been a relevant transfer under TUPE because Regulation 3 (1) (b) trumps European law and has effectively overruled Süzen, providing that a mere change in service provider can alone trigger a transfer of an undertaking.

Employment Tribunal Reform

According to reports in the Daily Mail and the Telegraph, Prime Minister David Cameron and Business Secretary Vince Cable are due to announce fundamental reforms today to the employment tribunal system today. Whilst the details remain unclear, the article asserts the following reforms are proposed:-

• a fee to lodge a claim. The Daily Mail states this is believed to be £500, other sources suggest a fee of one week's pay
  
• compulsory mediation for all tribunal claims
  
• increase in unfair dismissal qualifying period from one year to two years
  
• employment judges to sit alone (presumably meaning in all cases, not just the jurisdictions where they currently can/do)

They will also introduce an Employer's Charter, which will remind employers of their 'rights', such as the right to ask an employee to take annual leave at a time that suits the business, the right to ask staff to take a pay cut and the right to dismiss poorly performing staff.

Similar reports appear in The Times (paywall) and the Financial Times (registration required).

Certain Volunteers not protected from Disability Discrimination

[Thanks to Sheryn Omeri, pupil barrister at Cloisters, for providing this case summary]

The Court of Appeal has handed down judgment in X v Mid Sussex Citizens Advice Bureau, which is authority for the proposition that certain voluntary workers are not protected under the Disability Discrimination Act 1995 or Directive 2000/78/EEC establishing a general framework for equal treatment in employment and occupation. See here for the earlier EAT decision.

When she commenced work at the CAB, the appellant was given a volunteer agreement which was described as being binding in honour only, not a contract of employment or legally binding.

The Court of Appeal dismissed the appellant's appeal. As the purpose of her role was not to determine whether she should be offered employment with the CAB, it did not come within the protection offered by s.4(1)(a) of the Act. Similarly as the purpose of the appellant's voluntary work was not vocational training, she was not protected by Article 3(1)(c) of the Directive. Finally, the Court held that the term "occupation" in the Directive overlaps with that of "worker" which has been limited by European jurisprudence to persons who are remunerated. It therefore could not operate to bring the appellant within the scope of the Directive, nor the Act as read in conformity with it.

Charities allowed to discriminate against unpaid volunteers, says Court of Appeal

The Court of Appeal has held that unpaid volunteers are not protected by anti-discrimination laws, as they are not ‘workers'.

In a judgment handed down this morning (26 January 2011), Lord Justices Elias, Rix and Tomlinson dismissed a claim by Ms ‘X’ against the mid-Sussex Citizens’ Advice Bureau, who she alleged had terminated her status as a CAB volunteer advisor for a reason relating to her disability.

The Court of Appeal held that an unpaid volunteer does not fall within the definition of ‘employee’ or ‘worker’ in the Disability Discrimination Act 1995. To qualify as an ‘employee’ or ‘worker’, she would need to be paid a salary. Since she did not, the provisions of the Disability Discrimination Act 1995 did not apply and Ms ‘X’ could not bring a claim.

Although the case was decided under the Disability Discrimination Act 1995, it applies to all strands of discrimination law in the UK. It is also unaffected by the consolidation of the DDA 1995 within the Equality Act 2010.

It reveals a loophole in the law. It shows that a charity, or even a business, can take decisions to hire or fire unpaid volunteers based on pregnancy, race, sexual orientation or other factors which are normally regarded as impermissible.

Charities have campaigned against extending equality law to cover unpaid volunteers because they say it would tie them up in too much red tape. A report in 1999 by the Disability Rights Task Force found it was ‘far from self-evident’ that it was desirable to bring the voluntary sector into the scope of discrimination law, certainly as far as the disabled are concerned. Certainly it has long been thought undesirable and unworkable to give other employment rights, such as the right to the national minimum wage, to volunteers.

Cheeky Argument of the Year 2011

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

The EAT (Burton J) has handed down its decision in The University of the Arts London v Rule which is authority for the proposition that a Respondent cannot avoid a statutory uplift on an award by simply making an advance payment to a Claimant, applying Tim Arrow & Sons v Onley.

At a remedy hearing, the Respondent faced a large, six-figure award, with an oral Judgment covering some but not all claims. Counsel were left to agree quantum. Shortly before the remedy hearing concluded, the Respondent engaged – in essence – in electronic reverse mugging of the Claimant by transferring the agreed sum, less the uplift, into his bank account, without his knowledge or consent. The Respondent sought to avoid the 45% uplift, arguing that the uplift didn't apply, as nothing was left to award.

The Tribunal disagreed, and the EAT held that the uplift still applied, holding that Arrow v Onley applied where an interim payment is made before hearing, and that a Claimant may refuse payment, hoping to preserve any future uplift.

The EAT also made observations on the interaction between the uplift and grossing-up for tax purposes.

Right to be Accompanied

[Thanks to James Medhurst of Employment Law Advocates for preparing this case summary]

The EAT (Slade J) has handed down its decision in Bullock v Norfolk County Council, which is authority for the proposition that a foster carer is not a worker within the meaning of the Employment Rights Act 1996 or Employment Relations Act 1999. Therefore, there was no right for the claimant to be accompanied to the meeting of a panel which was to consider withdrawing her approval as a foster parent.

The relationship between a foster carer and a local authority is not contractual and it is a prerequisite of the definition of a worker that there must be a contract in place.

Third Party Harassment Under the Old Law

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

The EAT (Langstaff J) has handed down judgment in Conteh v Parking Partners Ltd, which was decided under the (old) Race Relations Act 1976. Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer did not control, an employer is not liable to her for damages for discrimination or harassment on the grounds of race. The tribunal's rejection of the claim for racial harassment under section 3A RRA was upheld.

The Claimant had been subjected to abusive remarks from a third party over whom her employer had no direct control; the Claimant's employer was a contractor to the third party's employer. Thus the employer had not created the adverse environment, and the employer could not be held vicariously liable for the third party's actions.

In the present case, the EAT was able to reach its conclusion by a close examination of the Race Relations Act 1976 with little recourse to common law authority. However, it is interesting to ponder how the analysis would have been different under the Equality Act 2010, which, by section 40, allows an employee to claim against the employer if the employer has not done enough to prevent third party harassment, although an employee will only succeed where (s)he has been subjected to harassment on at least two occasions and the employer has failed to take such steps as would have been reasonably practicable to prevent it.

Reasonable Adjustments

[Thanks to Robert Dickason of Outer Temple Chambers for preparing this case summary]

The EAT (Langstaff J) has handed down its decision in RBS v Ashton, which reiterates that the test for a failure to make reasonable adjustments under the Disability Discrimination Act 1995 is objective. What matters is the practical effect of the adjustment on the disadvantage suffered by the claimant, not the reasoning of the employer "flawed or otherwise" for not making it.

The claimant had her sick pay withheld under the employer's sickness absence policy. However, the evidence before the Tribunal was that the triggers for withholding sick pay would be relaxed for employees whose absences were disability-related. To that extent, disabled employees benefited when compared to non-disabled employees. The EAT noted that only in exceptional cases would withholding sick pay in accordance with a sickness absence policy amount to a failure to make reasonable adjustments.

The Tribunal also erred in upholding the claim for disability-related discrimination. One cardinal error was failing to consider, on the issue of justification, whether the reason for the difference in treatment was material and substantial: "[T]he Tribunal's excursion into what was or was not reasonable in this context might have been interesting but it was not answering the statutory questions".

Why Nick Clegg’s shared parental leave won’t work

Ministers are expected to announce a consultation today on a new system of parental leave, to allow mothers and fathers more flexibility to share time off after a baby’s birth. The proposals include allowing parents to split their leave in whatever way suits them best, including taking time off in chunks rather than in one go.

Current law gives women up to one year’s maternity leave, of which nine months is paid and three months is unpaid. Fathers are entitled to up to two weeks’ paternity leave (at £125 per week) within eight weeks of the birth.

From April 2011, the position changes. The Additional Paternity Leave Regulations 2010, introduced by the last government, provide that when a baby is born after 6 April 2011, the mother will be able to transfer the second half of her year-long maternity entitlement to the father. Some companies, eg Santander, already have such policies in place.

The new proposals - floated to take effect from 2015 - are noble, but deeply impractical.

Employers often hire maternity cover for a year. Temporary replacements do not hit the ground running; they need training up and mentoring. If a woman on maternity leave can take her leave in chunks, it will make maternity cover impossible for employers to organise. Employers will be unable to find someone to work for an unascertained period. Instead they will have to rely on agency temps for short chunks of time at inflated agency rates. And if the parent returns after a month, all the training invested in the temporary cover will be wasted as they are unlikely to still be available when the parent takes another chunk of time off a month or so later.

Further, a mother and father usually won’t work for the same organisation. It will be difficult for employers to check the truthfulness of a father’s claim that his wife has let him take half of the parental leave, and it might end with parents being able to inveigle extra time off because of the impossibility of policing the system.

Also, I fear it will have a chilling impact on recruitment practice. Many employers shy away from hiring women of childbearing age. Nick Clegg’s proposals might see employers avoiding recruitment of any person in their 20s or 30s, which would lead to an increase in the number of age discrimination claims and the burden of tribunal claims on employers.

Equality Act Compromise Agreements

[Thanks to Neil Russell of BD Laddie for telling me about this]

The furore continues. Two goliaths of the employment law world, John Bowers QC and Tom Linden QC, have provided Advices which reach precisely opposite conclusions on the thorny issue of whether certain compromise agreements can ever be valid under s147 of the Equality Act 2010. Copies of their Advices can be seen here.

The Law Society has produced a new Practice Note summarising the two views. The Practice Note gives very helpful Guidance. Definitely one worth studying.

Negligent CRB checks

[Thanks to James Medhurst of Employment Law Advocates for preparing this case summary]

The Court of Appeal has handed down its decision in Desmond v Nottinghamshire Police, which is authority for the proposition that a person cannot bring a claim in negligence against the police in respect of information provided to an employer during an enhanced Criminal Records Bureau check.

It was held that that, in accordance with the general principles in the case of Hill v Chief Constable of West Yorkshire, the police do not owe a duty of care to members of the public in this situation. Nor does the structure of the statute suggest that there should be a duty of care, as this would create a conflict with the statutory purpose of protecting vulnerable young people.

A further consideration was the availability of other remedies including judicial review, a claim for breach of Article 8 of the European Convention on Human Rights and a possible claim under the Data Protection Act.

Abolition of Default Retirement Age

Government confirms abolition of Default Retirement Age

As widely anticipated in the press, the Department for Business, Innovation & Skills has today confirmed that the default retirement age will be abolished from 1st October 2011 (with phasing in begining in April).

Basically ignoring the concerns expressed by employers during the consultation process, the government's Response to Consultation Paper says that it considers that the dismissal of older workers should be managed either by discussion or by formal performance management procedures.

However, an exemption is going to be introduced for group risk insured benefits (eg medical insurance), where there was a concern that employers would stop offering such benefits if it became too expensive to pay the premiums due to an ageing workforce. In broad terms, it will not be unlawful to discriminate on grounds of age when providing such benefits. Details will presumably follow when the draft legislation is published.

Acas has issued a flowchart showing the transitional arrangements, and a really useful 20-page guide for employers on Working without the Default Retirement Age.

Daniel Barnett

Sexual Orientation and Third Party Discrimination

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

The EAT (HHJ Peter Clark) has handed down its decision in Lisboa v Realpubs, in which it held that "less favourable treatment on grounds of sexual orientation" covers any case where sexual orientation, whether of the claimant or a third party, is an effective cause of the detriment suffered. This follows the principle from Showboat Entertainment v Owens 1983 (in the context of race).

The employer was transforming a formerly "gay pub" into a gastropub. While this was in and of itself unobjectionable, the methods of doing so (including asking the claimant to display a board outside saying "this is not a gay club" and asking him to seat customers who did not appear to be gay in prominent positions) amounted to less favourable treatment of gay customers.

Under the principle from Showboat Entertainment, this less favourable treatment of third parties on grounds of their sexual orientation also amounted to less favourable treatment of the claimant on that ground.

Teacher fails in claim against Police for misleading CRB check info

The Court of Appeal has, this morning in Desmond v Nottinghamshire Police, held that a teacher cannot sue the police in negligence because of misleading information provided by them in an advanced Criminal Records Bureau (‘CRB’) check.

In 2001, Vincent Desmond was arrested on suspicion of sexual assault. He was then released, because of a lack of evidence that he was the assailant. The investigating policeman, DC Kingsbury, closed the file with the words: “It is apparent Desmond is NOT responsible for the crime.”

Four years later, in 2005, the police placed a note on Mr Desmond’s CRB entry that he was arrested in 2001 on suspicion of sexual assault. The entry made no reference to the lack of evidence, nor did the police look back at the original file.

Mr Desmond subsequently failed to obtain employment as a teacher and claimed that the police force’s negligence had impeded his search. He sued them for negligence

The Court of Appeal has, today, held that the chief constable does not owe any duty to an individual to make sure that CRB information is correct, and so (irrespective of the levels of carelessness by the police) Mr Desmond’s claim for negligence failed.

The court held that the practical needs of law enforcement, including the need not to inhibit the police from taking operational decisions and forcing them to act defensively, pointed against imposing a duty on the police force to take Mr Desmond’s particular circumstances into account. The Court also held that it was undesirable for police resources to be diverted into expensive litigation. They recognised that this ‘may lead to hardship in some individual cases, but the greater public good outweighs individual hardship’ (judgment para 31).

However, Mr Hill’s opportunities for redress are not closed. He can require the CRB check to be amended under section 117 of the Police Act 1997, he can bring a claim under the Data Protection Act 1984 for processing data incorrectly, or he can bring a claim for compensation under the Human Rights Act 1998 for breach of his right to respect for privacy. He can also appeal to an ombudsman or under the Police Conduct Complaints procedure. Not all of these will result in compensation, but he should be able to have the record set straight.

Rapacious Employees and the tribunal system

The newpapers have been packed with stories about rapacious employees abusing the employment tribunal system and taking employers to the cleaners (for example, today's rant in the Daily Mail, which is riddled with inaccuracies such as asserting the burden of proof for all claims - not just discrimination claims after the burden shifts - is always on the employer, who are "presumed guilty unless they can prove their innocence, a direct contradiction of centuries of British justice". Dangerous and misleading drivel.).

But as a barrister instructed primarily by employers, I hear this view expressed a lot. Employer clients tell me the tribunal system favours employees. Employee clients tell me the opposite. But where does the truth lie?

Most employment cases are decided by a panel of three. An employment judge chairs the panel. The other two members are picked from a panel chosen by the CBI, and a panel chosen by the TUC, who - much like magistrates - are usually people in full-time jobs who sit for a few weeks a year. This ensures that the tribunal’s approach is balanced and based on practical experience of life at the coalface of industry or office life.

There is truth in the charge that the employment tribunal system is open to abuse. Serial litigants (although my experience teaches me there are probably fewer than half a dozen of these in the UK) make hopeless job applications, then lodge specious discrimination claims to extort a few thousand pounds from employers. But tribunal staff are generally wise to this (they keep seeing the same names crop up), and tribunals are often willing to make substantial cost orders against these individuals if the employer has the resolve to challenge the claim.

Likewise, some employees bring claims knowing them to be hopeless or untrue, hoping to inveigle a compromise payment out of their employer. What can be done? Probably very little, other than take it on the chin and recognise it as part of the cost of doing business, or fight the case and persuade the tribunal that the claim was misconceived (in which case, the tribunal can award costs).

But to argue this justifies the abolition of employment rights is petulant and unsophisticated. The workplace is where most of us spend most of our time, and where we invest much our self-image and self-esteem. Employers have the power to make decisions which impact fundamentally on employees’ lives, and employees are vulnerable to an employer’s unreasonable or improper use of this ability. Employment laws have arisen to strike a balance between the competing rights of the employee not to be treated unfairly, and the employer to be allowed to run its business in the way it thinks fit. Any system of laws requires an effective enforcement mechanism, which is where the employment tribunals system comes in.

Some women cry rape, knowing the allegation to be untrue, but nobody would seriously suggest abolishing rape laws. Likewise, some employees bring specious claims, knowing them to be untrue. That is not, of itself, a reason to throw out employment rights for everybody.

Tribunals already have the power to strike out hopeless cases. In practice, this is rarely used as a ‘he said / she said’ dispute is not normally the type of dispute which a tribunal can say has no reasonable chance of success. It needs a tribunal hearing to decide who is telling the truth.

And most cases are not black or white. They turn on different people’s perception of events, or questions such as whether the employer gave an employee a fair chance to improve job performance before dismissing them. Even if an employee ultimately fails to succeed in such a claim, it is quite wrong to say they should not have the opportunity of bringing a claim.

One possibility for reform, floated by former Enterprise Tzar Lord Young, is to extend the period of time an employee must work before bringing an unfair dismissal claim from one year to two years. This would reduce the number of claims, but probably not by much, as it would not stop employees framing their claim as one of discrimination or whistleblowing – neither of which require the minimum service period to succeed.

Another possibility is introducing a fee for bringing a claim, to be returned if the claim succeeds. But this is deeply unattractive. The point at which someone loses their job, plunging them into prospective impecuniosity and the Byzantine social security system, is not the point to start demanding money. In addition, since most cases settle, the reality is that this fee would end up being reimbursed by the employer as part of the settlement – thus adding to the employer’s cost.

It can cost an employer upwards of £10,000 to pay lawyers to defend a claim. But the answer is simple: why pay lawyers? When a claim is only worth a few thousand pounds, it makes no sense at all to use a lawyer’s services. Sometimes important points of principle arise, or (unusually) case involves a significant sum of money, in which case it makes business sense to hire a lawyer. But tribunals are accustomed to owner-managed companies representing themselves, just as they are accustomed to employees representing themselves. Almost all tribunal judges nowadays are courteous, helpful and will explain the procedure and the law to you. They won’t present your case for you (or, indeed, for the employee), but they will help you present it yourself.

Tribunals cannot construe terms under Part I of ERA

[Thanks to James Williams, pupil at Littleton Chambers, for providing this case summary]

The Court of Appeal has handed down its decision in Southern Cross Healthcare v Perkins and Others , confirming that Employment Tribunals have no power of contractual interpretation outside the context of breach of contract claims raised on or after the termination of employment.

The claimants are employees of the appellant who were all entitled to five days of additional holiday each year for long service, over their standard contractual entitlement. The Working Time Regulations 1998 were then amended to increase the minimum statutory annual leave allowance. Accordingly, the appellant increased holiday allowances to 28 days for any of its employees whose entitlement was less than that (including the respondents). The claimants brought proceedings in the ET arguing that they should still be entitled to their long-service uplift on top of the statutory 28-day minimum. They succeeded in the ET and the EAT.

In allowing the employer's appeal on the basis that the ET had no jurisdiction under the Employment Rights Act 1996 (in particular sections 11 and 12) to construe the holiday provisions of the claimants' contracts, Maurice Kay LJ (who delivered the judgment of the Court) applied obiter passages of the Court of Appeal's decision in Mears v Safecar Security Limited [1982] IRLR 83.

Note that the alternative remedy of a breach of contract claim was not available in the ET because the employees remained employed by the company. Accordingly, the proper forum for the claims was the County Court. If they had no longer been employed, the ET could have construed the holiday provisions under its breach of contract jurisdiction.