Judicial Proceedings Immunity

[Thanks to Anna Thomas of Devereux Chambers for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Parmer v East Leicester Medical Practice, which is authority for the proposition that judicial proceedings immunity applies to all kinds of discrimination, including victimisation.

Mr Justice Underhill (President) dismissed an appeal brought on the basis that the ratio in Heath v Commissioner of Metropolitan Police did not apply to victimisation claims. Heath (Court of Appeal) made it clear that judicial proceedings immunity (i.e. immunity from any action brought on the basis that evidence is false or careless) extended to claims under the discrimination legislation. Dismissing the appeal brought by a Claimant seeking to argue that false witness statements had been made for the reason that he had brought proceedings, Underhill P held:

• it is not right that different rules apply to claims of primary discrimination as to claims of discrimination by way of victimisation, all the more so since victimisation is proscribed essentially in order to protect that primary right
  
• there is no question of an EU-derived right being treated differently from a domestic right
  
• there is no conflict with underlying EU principles; and
  
• there is no inconsistency with the jurisdiction to award aggravated damages which can be seen as falling outside the judicial immunity rule

CPD Webinars - CPD Made Easy

As well as my practise as a barrister, I am also involved with a company called CPD Webinars which provides online video training in personal injury and employment law. We are now celebrating our fourth year and have decided to make available all our back content for FREE to all subscribers. This means that for £795+VAT a whole office can receive access to 60 CPD hours by some of the country's leading lawyers. For more information click here. To receive a FREE webinar which will give two CPD hours, click here.

Arbitration Clause Offends Contracting Out Provisions

[Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary]

The High Court (Slade J) has given judgment in Clyde & Co LLP v van Winkelhof concerning the enforceability of arbitration clauses in employment contracts.

Ms van Winkelhof was a partner at Clyde & Co. She brought discrimination and whistleblowing claims in the employment tribunal after she was expelled from the partnership. Clyde & Co applied for a mandatory injunction in the High Court requiring Ms van Winkelhof to apply for, or consent to, a stay of her employment claims pending compliance with the Dispute Resolution procedure set out in her Members' Agreement. This procedure gave Clyde & Co an unfettered right to refer Ms van Winkelhof's complaints to arbitration, which would be a 'final resolution' of her complaint and therefore prevent the continuation of her claims before the ET.

The High Court held that the provision for binding arbitration was void by operation of s.203 Employment Rights Act 1996. Further, on its proper construction s.144(1) Equality Act 2010 rendered unenforceable an agreement to preclude or limit the continuation of sex discrimination proceedings unless reached in accordance with section 144(4). Accordingly Clyde & Co's application for an injunction was dismissed.

Equal Pay

[Thanks to Emma Price of Temple Garden Chambers for preparing this case summary]

The EAT (Underhill P) has handed down its decision in The Audit Commission v Haq, which is authority for the proposition that:

• An ET is not entitled to find a prima facie case of indirect sex discrimination where a pay protection policy is applied on the amalgamation of two job roles. The pay protection policy does not put women at a particular disadvantage when compared to men and statistics can only establish that one of two roles that were amalgamated was subject to gender stereotyping; and
  
  
• Protecting the pay of employees affected by a re-structuring is in principle a legitimate aim and is justified provided the policy is a proportionate means of achieving that aim.

Both roles fell within the same pay grade, which incorporated a points system to determine the exact level of pay. The pay protection policy applied on amalgamation of the roles allowed employees to retain their previous pay point. The EAT noted that the policy may have led to a situation where a man and a woman doing work of equal value were receiving different amounts, but that was because of the different rates which they were (non-discriminatorily) paid previously and had nothing to do with their gender.

Employment Status

[Thanks to David Campion of EAD Solicitors for preparing this case summary]

The EAT (Silber J) has handed down its decision in Knight v BCCP, which reaffirms the position that without mutual obligations to accept and offer work, there can be no employment relationship under the Employment Rights Act 1996 ("ERA 1996").

The Claimant, a taxi driver engaged by a taxi firm for just over six weeks, did not receive any holiday pay, sick pay or overtime. He worked under the taxi firm's control to a degree and only received wages for the occasions he actually worked.

Following termination, the Claimant claimed statutory notice pay under s.86 ERA 1996. Although the ET originally found that the Claimant was a 'worker' under s.230(3), the Claimant failed to establish that he was an 'employee' under s.230(1). Whilst workers are entitled to some rights under ERA 1996, only employees are able to claim statutory notice pay. As the ET found that the Claimant was under no obligation to accept work and the taxi firm under no obligation to offer work to the Claimant, it held that the Claimant was not an employee, a decision in turn upheld by the EAT.

As there was no contractual documentation in this case, the EAT considered the ET's decision that there was no mutuality of obligation to be a 'question of fact'. The EAT therefore held that the ET's decision could only be overturned if found to be a decision which no reasonable Tribunal could have reached, which it was determined not to be.

SOSR Dismissals

[Thanks to David Campion of EAD Solicitors for preparing this case summary]

The EAT (Keith J) has handed down its decision in Ezsias v North Glamorgan NHS Trust, which is authority for the proposition that the reason for dismissal is not conduct - and thus an employer need not follow its conduct dismissal procedures - where the dismissal is primarily because of a breakdown in trust and confidence caused by the employee's conduct.

The Claimant, a Consultant Surgeon claimed he had been automatically unfairly dismissed due to making protected disclosures (whistleblowing).

An investigation found that the Claimant's conduct had led to the breakdown of relationships and that many of the Claimant's colleagues would not be happy to work with him again. The ET found that the Claimant's alleged protected disclosures were not made in good faith and that dismissal was not due to the disclosures, but rather due to the breakdown in trust and confidence.

The Claimant appealed on the basis that the NHS trust had failed to implement disciplinary procedures under the nationally agreed Whitley Council terms. It was held that these disciplinary procedures were not applicable as the allegation did not relate to the Claimant's conduct. The decision to dismiss was upheld as being fair for some other substantial reason, as dismissal was due to the breakdown in trust and confidence, not the Claimant's conduct by contributing to that breakdown.

Issue Estoppel

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

The EAT (Silber J) has handed down its decision in Foster v Bon Groundwork, which is authority for the propositions that:

• The res judicata doctrine, creating an estoppel barring multiple claims from the same cause of action does not apply if a finding in the first claim determined is not a necessary ingredient of a subsequent claim.
  
  
• A finding made when a Tribunal has no jurisdiction to hear a claim will not create an estoppel against subsequent claims.
  
  
• The rule in Henderson v Henderson "a safeguard against abuse of process that requires parties to put their whole case forward in one claim" is not engaged where there is no oppressive or abusive conduct by a party failing to do so.

The 77 year-old Claimant was laid off, and whilst still employed put in an ET claim for redundancy pay, implying that he had been dismissed, and this claim failed. He was then dismissed by retirement and put in a second claim, alleging unfair dismissal under various bases as well as a claim for guarantee pay.

The Unfair Dismissal element of the second claim was struck out as an abuse of process, relying on the dismissal of the previous claim for redundancy pay.

The employee's appeal succeeded, the second claim was not res judicata since the first claim for redundancy pay was not a necessary ingredient of the Unfair Dismissal complaint, and in any event as the first claim was premature, so the lack of jurisdiction prevented an estoppel, and the Claimant's conduct was not, on the facts, abusive or oppressive under Henderson v Henderson.

The Judgment contains a lucid review of various authorities dealing with estoppel and abuse of process.

Reasonable Adjustments / Aggravated Damages

[Thanks to Natasha Sethi of Henderson Chambers for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Tameside Hospital NHS Foundation Trust v Mr Mylott, which is authority for the proposition that a Tribunal is not entitled to find that section 4A of the Disability Discrimination Act 1995 gives rise to a duty on the employer of a disabled employee to take steps to facilitate an application for ill health retirement. Reasonable adjustments involve steps to enable the employee to stay in employment, not to compensate him for having to leave it. The EAT found that offering ill-health retirement, therefore, does not fall within the scope of "reasonable adjustments".

In quashing the Tribunal's decision to make an award of aggravated damages, the EAT warned that a finding of malice against a manager is a serious finding, which is not to be made lightly and which must be fully supported if made. The Tribunal had found that the Deputy Director of Finance had acted in a brusque and insensitive manner towards the employee and that in giving evidence she was both dismissive and evasive. However, the EAT held that none of those observations were capable of supporting a finding of aggravated damages.

Ministers of Religion

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

The EAT (Underhill P) has handed down its decision in Moore v Methodist Church, which is authority for the proposition that, in light of the decision of the House of Lords in Percy v Board of National Mission of the Church in Scotland, a minister of the Methodist Church may be employed under a contract of service notwithstanding the conclusion of the Court of Appeal in Methodist Church v Parfitt on materially identical facts.

The Tribunal had considered itself bound by Parfitt on the facts, if not the law, and so found that the Claimant minister had not been employed under a contract of service. The EAT provided a helpful overview of the authorities in this area and concluded that the reasoning in Parfitt as applied to the facts of that case could not stand in light of Percy. Hence the Tribunal was wrong to follow Parfitt on the very similar facts of this case.

Termination Payments

[Thanks to Simon Steen of Steen & Co for this information]

On 6th April 2011, the Income Tax (Pay As You Earn) (Amendment) Regulations 2011 come into force.

At present, when a payment is made to a departed employee after their P45 has been produced, income tax is deducted at basic rate only (and they are responsible for any additional tax) using a 'BR' tax code. After 6th April 2011, tax at the full 20%, 40% or 50% rates must be deducted from post-termination payments (using the '0T' tax code).

General Guidance From Court of Appeal

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

The Court of Appeal has handed down its decision in Fuller v London Borough of Brent, which was an appeal against the EAT's decision to overturn a finding of unfair dismissal in a misconduct case on grounds that the ET had substituted its own opinion for that of a reasonable employer. In upholding the appeal, and reinstating the ET's decision, Mummery LJ (giving the leading judgment) reiterated some useful principles pertaining to appeals:-

An appellate body must be on guard against substituting its own subjective response to the employee's conduct for the view formed by the ET: there must be an error of law or a perverse decision on the point;

It is therefore crucial that that the appellate body distinguishes between a real question of law and a challenge to primary findings of fact dressed up as law;

Although the ET judgment must be read carefully to check that the law has been correctly applied, there must not be a "fussy" reading producing "pernickety critiques". The Judgment should be read "in the round" without over-analysis of the reasoning process; being hypercritical of its style; or focusing on particular passages or turns of phrase.

Having found that there had been no error of law in the ET's judgment when read in the round, Mummery LJ proceeded to make three further comments of general application:-

When the ET asks a correct legal question (such as whether an investigation was reasonable in all the circumstances) it should give a specific answer to it in addition to discussion of the facts, law and argument. This would dissuade parties from false optimism as to the prospects of success on appeal;

An employee undergoing disciplinary action and facing possible dismissal, should normally participate in the process by complying with the employer's reasonable requests to provide statements, information and representations and to attend the hearing;

Employees who have concern about the way in which fellow employees perform their duties (whistleblowers), should raise the matter in the right quarters rather than intervening directly in work situations (by, as here, confronting the staff directly).

Redundancy Selection after TUPE Transfer

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

The EAT (The Honourable Lady Smith presiding) has handed down its decision in First Scottish Searching Services Ltd v McDine (EAT/S/0051/10), which is authority for the proposition that when two separate sets of scores in a process of selection for redundancy following a TUPE transfer were applied to two different groups of employees, one group previously having been in the employment of a transferor, and the other in the employment of a transferee, it was not unfair not to have used a system which might have moderated the risk of any inconsistency in scoring between the two groups.

The employment tribunal had made no findings of fact about what system of moderation might have been put in and what difference it might have made. Nor was it established that the process had been carried out in bad faith, in order to favour the transferee's employees. The employment tribunal had wrongly substituted its own view for that of a reasonable employer (contrary to Iceland Frozen Foods Ltd v Jones [1982] IRLR 439) and embarked on an impermissible re-assessment of the scores made (contrary to British Aerospace plc v Green [1995] IRLR 433).

Sex Discrimination - Territorial Jurisdiction

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

The Court of Appeal has handed down its decision in Ministry of Defence v Wallis, in which it held that two wives of British servicemen, who worked for the Ministry of Defence in Belgium and the Netherlands, had a sufficiently strong connection with Great Britain to claim unfair dismissal. The women had been dismissed because their husbands ceased to be employed by the armed forces.

In finding that it had jurisdiction to hear the claims, the Employment Tribunal took into account the fact that the claimants worked on terms and conditions which were subject to English law and that they were only eligible to work on those terms because they were married to members of the armed forces. Elias LJ stated that the analysis of the employment judge was "both cogent and convincing".

The Court of Appeal also held that it was necessary to confer jurisdiction to hear the claims for sex discrimination in order to give the claimants effective protection of their rights under European law.

Strike Injunctions

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

The Court of Appeal has handed down its decision in NURMT v Serco & combined cases, in which it overturned injunctions against strikes in both the RMT and ASLEF cases. The ASLEF appeal relied upon substantially the same grounds as part of the RMT case.

The Judgment will help avoid "traps and hurdles" for Unions balloting on industrial action, probably making interim injunctions less achievable.

The Court held:-

1. The provisions of S232B TULR(C)A 1992 allowing for accidental ballot errors to be disregarded can save a ballot where genuine and ultimately immaterial errors occur, in this case accidentally balloting two members not entitled to vote.

2. The ballot notification provisions of S226A relating to information about the categories of workers entitled to vote only requires disclosure of information in the Union's possession. Whilst the information is to be as accurate as is reasonably practicable, there is no obligation to generate new information, or improve existing records. The Court dismissed concerns that a Union might be tempted to keep minimal records to reduce the information that it would need to provide to an employer. (Obiter) a de minimis breach of the duty to provide accurate figures can be disregarded.

3. The requirement for an explanation as to how the lists and figures of employees in notices under S226A and S234A are reached merely requires explaining how those figures have been arrived at, and it is not onerous. It can be met by complying with paragraph 16 of the relevant ACAS code. The Court observed that the explanation would have to be "positively and materially misleading" before it breached the statutory requirements.

4. There is no obligation on a Union to refer any particular categories of jobs in a notice, the statutory requirements are met by referring to general job categories, regardless of what categories might be used in, for example, pay negotiations.

Equal Pay Claims in the Civil Courts

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

The High Court (Slade J) has handed down its decision in Ashby & ors v Birmingham CC, which is authority for the proposition that section 2(3) Equal Pay Act 1970 does not prevent equal pay claims from being heard in the civil courts, even when they are out of time in the employment tribunal.

Section 2(3) provides: "Where it appears to the court in which any proceedings are pending that a claim or counterclaim in respect of the operation of an equality clause could more conveniently be disposed of separately by an employment tribunal, the court may direct that the claim or counterclaim shall be struck out".

This is a two stage test. The court must decide whether the claim could more conveniently be disposed of separately by an employment tribunal. If the answer is yes, the court will decide whether to exercise its discretion to strike out. Just because an equal pay claim would be time barred if brought in the tribunal does not prevent a judge from deciding it would be more convenient to dispose of the claim in the tribunal. Practical justice requires the reason for not commencing the claim in the tribunal to be taken into account under section 2(3). If it was reasonable not to present the equal pay claim in the tribunal, the interests of justice would likely be served by permitting the claim to be litigated in the ordinary courts.

Repeal of Retirement Age 6

Controversy rears its head again. Debate is raging over the last date on which an employee can be compulsorily retired under the old law - I have received comments from over a dozen different people. Each possibility assumes that an employee is given twelve months' notice of intention to be retired on 5th April 2011 (the last day), and is granted a six month extension (see yesterday's bulletin, 'Repeal of Retirement Age - 4 ' for more detail).

The three possibilities for the last date for retirement are:-

• 3rd October 2012: if the employee is given 12 months' notice of intention to retire from 5th April 2011, this expires on 4th April 2012. The maximum six month extension subsequenly expires on 3rd October 2012.
  
  
• 4th October 2012: I am told a minority of professional support lawyers in City firms support the view the last possbile date is 4th October 2012, presumably on the basis that the courts should not knock a day off (ie a month after 5th being 4th) twice.
  
  
• 5th October 2012: This is the date that BIS contends is the last date for retirement. It has the support of Henry Scrope of www.emplaw.co.uk, who is fairly au fait with the DRA regulations. He points out, as have several others, that under the common law one discounts the day on which notice is given - meaning that the first day of the six month extension period would be 6th April 2012 and it would expire on 5th October 2012.

My initial view was that 3rd October 2012 was the most probably last day for retirement. But general consensus seems to favour 5th October 2012. For now, though, this debate may be a little arcane - the important deadline is to ensure employers serve notice of intention to retire on or before 5th April 2011, less than five weeks away.

I have updated the Outer Temple lecture notes on Justifying Retirement without a Compulsory Retirement Age , sent out yesterday, to incorporate this issue.

Repeal of Retirement Age 5

Last night, Andrew Short QC and I presented a seminar in London on Justifying Retirement without a Compulsory Retirement Age. It included the new transitional provisions and how they will work.

You can download the seminar notes here.

Repeal of Retirement Age - 4

[Thanks to www.emplaw.co.uk for discovering the new Regs, and to Darren Newman of Inco Training for explaining them to me]

The Department for Business, Innovation and Skills has issued a second set of draft Regulations which repeal the default retirement age.

The draft Employment Equality (Repeal of Retirement Age) Regulations 2011 correct the drafting errors in the original version, but in fact go further and are fiendishly complicated.

In summary, they provide:-

• employees can be lawfully retired provided (a) notice of intention to retire is given by 5th April 2011; and (b) the employee has attained, or will attain, the age of 65 by 30th September 2011 (reg 5(1));
  
  
• there is a deadstop of 5th January 2012 for an employee to exercise his/her right to request to work beyond retirement (reg 5(4)(b)). This enables an employee who is given 12 months' notice of intention to retire on 5th April 2011 (the last day) to exercise his right to request on the last day available (which, under para 5(5) of Schedule 6 to the Employment Equality (Age) Regulations 2006, is three months before the employer's notice runs out).
  
  
• in theory, an employer could agree a fixed or indefinite period of working beyond retirement if an employee makes a request. But if it agrees an extension of more than six months, it will have to issue a fresh notice of intention to retire (see para 3 of Schedule 6 to the Age Regulations 2006) - which it cannot do after 5th April 2011. So, in practice, this means the last possible date for retirement of an employee under the existing law seems to be 3rd October 2012. This would cover the employee who was given 12 months' notice of intention to retire on 5th April 2011 (the last day possible), taking him to 4th April 2012, and then given the maximum six month agreed extension which can be given without a fresh notice of intention to retire (going to 3rd October 2012).

In Darren Newman's words: "Emergency over. Everything is (basically) fine. Move along now."

Finally, I understand from the Employment Law Clinic that these draft Regulations are going to be subject to the affirmative procedure in parliament - meaning that it is possible for them to be in force by 5th April 2011. Most draft SIs require a 40 day period before they come into force, which would cause difficulties here since there are less than 40 days before they are due to come into force.

As always, the best way to keep up to date on this subject is via the employment law feed (#ukemplaw) on twitter. This link will take you straight there.