Judicial Review of Public Sector Employers

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

The Court of Appeal has handed down judgment in R (on the application of Sharon Shoesmith) v OFSTED & ors, rejecting Ms Shoesmith's appeal in relation to OFSTED but upholding it against the Secretary of State for Education and Haringey LBC.

The facts are well known; Sharon Shoesmith was dismissed by Haringey Council as its director of childrens' services, after the death of Baby P. They dismissed her without following any proper process, they said because of pressure from the Secretary of State Ed Balls.

Maurice Kay LJ, giving the lead judgment, stated that Haringey's decision to dismiss for gross misconduct was amenable to judicial review and, notwithstanding pending employment tribunal proceedings, the justice of the case required a decision on the merits. Agreeing with Foskett J's obiter observations below, the dismissal was unreasonable: "she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated". The matter would be remitted on the issue of compensation.

The Court of Appeal upheld the judgment of Foskett J that OFSTED's report into Haringey was carried out lawfully and in good faith, having regard to the "unique nature of the inspection".

However, the Secretary of State's direction to remove Ms Shoesmith from her post was unlawful. Despite a degree of urgency, allowing her to answer the charge would have entailed only a modest delay. Accountability requires giving the accountable individual an opportunity to explain. This was not so clear a case that such an opportunity would inevitably have made no difference.

The Court of Appeal has handed down judgment in R (on the application of Sharon Shoesmith) v OFSTED & ors, rejecting Ms Shoesmith's appeal in relation to OFSTED but upholding it against the Secretary of State for Education and Haringey LBC.

The facts are well known: Sharon Shoesmith was dismissed by Haringey Council as its director of childrens' services, after the death of Baby P. They dismissed her without following any proper process, they said because of pressure from the Secretary of State Ed Balls.

Maurice Kay LJ, giving the lead judgment, stated that Haringey's decision to dismiss for gross misconduct was amenable to judicial review and, notwithstanding pending employment tribunal proceedings, the justice of the case required a decision on the merits. Agreeing with Foskett J's obiter observations below, the dismissal was unreasonable: "she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated". The matter would be remitted on the issue of compensation.

The Court of Appeal upheld the judgment of Foskett J that OFSTED's report into Haringey was carried out lawfully and in good faith, having regard to the "unique nature of the inspection".

However, the Secretary of State's direction to remove Ms Shoesmith from her post was unlawful. Despite a degree of urgency, allowing her to answer the charge would have entailed only a modest delay. Accountability requires giving the accountable individual an opportunity to explain. This was not so clear a case that such an opportunity would inevitably have made no difference.

For a full summary, please see Obiter J.

Wasted Costs Arising From Poorly Prepared CMD

[Thanks to Dr John McMullen of Durham University for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Wilsons Solicitors v Johnson , which is is an example of the proposition that an employment judge may make a wasted costs order against a party's representative under rule 48 of the Employment Tribunal rules arising from the conduct of a telephone Case Management Discussion (CMD).

The solicitors, Wilsons, acted for two employees who raised a wide variety of claims in their ET1.

The pleadings were obscure and lacked detail. Amended particulars were filed before the CMD but they were "decidedly sketchy". The employment judge at the CMD opined they were "all over the place". Nor were they clarified at the CMD itself. The tribunal decided the respondents incurred wasted costs as a result of the claimants' solicitors' unreasonable and negligent acts and omissions. The CMD (the purpose of which had been to achieve a final definition of the issues) had been abortive. These deficiencies were held to be the fault of the solicitors and not because of the instructions of their clients. Rather, they were failures of analysis and accurate formulation.

Underhill P agreed and dismissed the solicitors' appeal.

Addendum 6/6/2011: I have been asked by Wilsons Solicitors LLP in Salisbury, Wiltshire, to make it clear that the firm of solicicitors criticised in this case was another firm trading under the same name (there are several such firms trading as 'Wilsons Solicitors'), based elsewhere in the UK. I am happy to make that clear.

Adequacy of Tribunal Reasons

[Thanks to Jane Russell of Tooks Chambers for providing this case summary]

The EAT (Bean J) has handed down its decision in Mak v Waygood Gallery , which is an example of the proposition that an Employment Tribunal must give adequate reasons for its decision. Meek v City of Birmingham District Council [1987] IRLR 250 and the Court of Appeal's Judgment in English v Emery Reimbold and Strick [2002] EWCA Civ 605 followed.

The Claimant, arguing constructive dismissal, complained about both the manner in which the Respondent replied to her grievance, which she said was negative and aggressive, and the length of time it took to provide a substantive response (four months). However, the Tribunal did not assess whether that conduct amounted to a repudiatory breach and, if not, why not, simply asserting that there was "no last straw" and at a different part of the decision "this is addressed later" (it was not).

The matter was remitted to a freshly constituted Tribunal.

Temporary Typist / Paralegal

I am looking for a typist / paralegal to sit next to me during a four week employment tribunal case in Manchester during July 2011, and type a (thorough) note of all evidence, submissions etc during the course of the trial.

Place: Employment Tribunal, The Parsonage (off Deansgate), Manchester City Centre

Dates: Tuesday 5th July to Friday 29th July (subject to case finishing or settling early)

Hours: About 9.45am to 4.30pm (subject to court sitting slightly early or late)

Equipment: Bring your own laptop, or I can provide an iPad and keyboard

Pay: £85 per day, self-employed basis

Skills: 70+wpm typing (100% accuracy unnecessary, as long as it is comprehensible

If you are interested, please contact me on daniel.barnett@outertemple.com (with a mini-CV), and I will ask you to take a short, online, speed typing test. Please note I am away between 1st and 7th June, so you will receive an out of office reply, but I will respond on or shortly after 7th June.

Closing date: Tuesday 7 June 2011

Equal Pay

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

The EAT (Underhill P) has handed down its decision in Beddoes v Birmingham City Council, which is authority for the propositions that in determining if Claimants (here school staff but Council employees) are in the 'same employment' as comparators (other Council staff) for the purposes of the EPA, the fact that school governors - who are not the employer - set the Claimants' terms and conditions (albeit on Council recommendations) did not mean that the Claimants were not under a 'single source' of terms and conditions with other Council staff, meaning Council staff were potential comparators.

The EAT said that 'the same employment' should be construed naturally, but observed that with sufficient evidence of departures by governors from Council recommendations, the outcome might differ. The EAT suggested that a material factor defence might arise for an employer in such situations.

In mass Equal Pay litigation, with mistakes in job titles being "inevitable", Tribunals should be very ready to accept amendments to correct misdescriptions of job titles, subject to considerations of jurisdiction and prejudice to the employer.

A failure to properly state the basis of a grievance under the (now-repealed) Modified Grievance Procedure will not mean a claim is barred under S32 EA 2002 if a Collective Grievance under Regulation 9 of the 2004 Dispute Resolution Regulations covers that grievance. The EAT set a low threshold for complying with the Collective Grievance provisions by a Union or appropriate representative, allowing for compliance by 'happy accident'.

The EAT also held that agreeing to follow the Modified Procedure is binding, and a Claimant cannot retract agreement and revert to the Standard Procedure to get round a S32 bar if a grievance under the Modified Procedure fails to do so.

Unfair Dismissal Time Limits

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

The EAT (Underhill P) has handed down its decision in John Lewis Partnership v Charman, which restates the proposition that it may not be 'reasonably practicable' for an unfair dismissal claim to be presented within the time limit, if an employee is reasonably ignorant of the time limit prior to receiving the outcome of an internal appeal against dismissal and presents the claim within a reasonable period thereafter.

The Claimant was dismissed on 13th March 2010 and had, under the three month time limit, until 12th June 2010 to present an unfair dismissal claim. The Claimant, who was not aware of time limits, attended an appeal hearing on 24th May 2010. The Claimant was sent a letter dated 28th June 2010 dismissing his appeal which was only received by the Claimant in mid-July 2010 due to him being away. The Claimant's claim was presented on 21st July 2010.

The EAT upheld the Employment Tribunal's decision that it had not been reasonably practicable for the Claimant to present a claim before the determination of his internal appeal and that he had presented his claim within a reasonable period thereafter. The EAT confirmed that whether it is reasonably practicable for a claim to be brought within time is normally a question of fact for an Employment Tribunal and therefore will only be overturned if found to be perverse.

New Consultation: Family Friendly, Working Time and More

The Department for Business Innovation and Skills has launched a new consultation document entitled 'Consultation on Modern Workplaces'.

It proposes the following:-

• Flexible parental leave: retaining 18 weeks' maternity leave for mothers, then reclassifying the remaining maternity leave as 'parental leave' and allowing it to be taken by either mother, or father, or both. Either way, most of it will be paid. The consultation will also cover allowing employers and employees to agree for parental leave to be taken in chunks, or on a part-time basis
  
  
• Flexible working: extending the right to request flexible working to all employees, not just those with children under 17 (or 18 for parents of disabled children)
  
  
• Working time regulations: amending the WTR to bring them into line with ECJ caselaw, namely providing that employees can carry over untaken holiday into subsequent years if they have lost the chance to take paid holiday because of sickness absence or maternity/parental leave. The proposal is to limit carried-over holiday for sickness absence to the four weeks' compulsory paid leave under the Working Time Directive (ie the employee would lose the extra 1.6 weeks they receive, above EU minimum requirements, under the WTR). The government is also considering proposals to allow employers to 'buy out' that extra 1.6 weeks
  
  
• Equal Pay: introducing a duty for employment tribunals to require employers to conduct a pay audit if they have been found guilty of breaching equal pay legislation, unless it is not productive to do so.

The consultation closes on 8th August 2011.

Discrimination: Compensation for Future Losses

[Thanks to Jahad Rahman from Kervin & Barnes Solicitors, for preparing this case summary]

The Court of Appeal has handed down its decision in the case of Wardle v Credit Agricole Corporate and Investment Bank, which is authority for the proposition that when calculating future losses, tribunals should assess the loss suffered up to a certain point in time when an employee would be likely to secure another job on similar terms, rather than award compensation up to the point when there was certainty that the employee would secure another job on equivalent terms. However, losses after that date should be ignored. The tribunal's prediction may not be accurate but this is the best that can be achieved to bring 'finality' to the assessment of compensation for future loss.

The claimant unsuccessfully applied for promotion. He then brought a claim for discrimination on the grounds of his nationality. Shortly after this, he was dismissed. He issued a further claim for unfair dismissal and victimisation. The Tribunal upheld his claims and he was awarded compensation for loss on the basis that there was an 80% chance that he would have left his employment in any event at a certain point in time.

Elias LJ concluded that career long loss should only be awarded in exceptional circumstances and that the Tribunal's approach to the assessment of compensation for future loss over the claimant's career was flawed.

Government announces Employment Law Reforms - Not.

A number of national papers floated leaks this morning about proposals due to be announced today to cap discrimination awards, reform TUPE and reduce redundancy consultation periods. See, for example, reports in The Telegraph and The Guardian.

But it's all turned out to be a damp squib. The government announcement, issued earlier this afternoon, simply states that the government will be "looking carefully at the arguments for reform" but that "legislation will not necessarily be the route to implement any change if there is a case for reform".

In other words, the government knows perfectly well it cannot slash away at TUPE, or cap discrimination awards, without the ECJ having something to say about it.

Daniel Barnett

Redundancy Scoring

[Thanks to Sarah Russell, solicitor at Ventura, for preparing this case summary]

The EAT (HHJ Serota) has handed down its decision in Dabson v David Cover & Sons, which is authority for the proposition that when assessing the fairness of selection for redundancy, the marks awarded in the selection exercise should only be investigated in exceptional circumstances such as bias or obvious mistake.

There had also been an accidental failure to consult the Claimant individually on redundancy. As the only complaint was of unfair dismissal, the only matter to be determined was that the selection was fair in general terms and was applied reasonably in the case of the employee (Buchanan v Tilcon Ltd [1983] IRLR 417). The consultation was found to be adequate for these purposes and failure to consult did not of itself render the dismissal unfair.

Public Sector Equality Duty

The Government Equalities Office has issued a replacement 'quick start' guide on the public sector equality duty.

The public sector equality duty, which came into force on 5 April 2011, requires public bodies to consider the impact of their policies and methods of delivering services on those who possess certain protected characteristics.

In particular, public bodies must have due regard to the need to eliminate unlawful discrimination and advance equality of opportunity. The Equality and Human Rights Commission has power to issue compliance notices and take further steps if necessary.

Agency Workers

The Department for Business, Innovation and Skills has published its guidance on the Agency Workers Regulations 2010, which come into force on 1st October 2011.

The Regulations provide that agency workers (ie temps) will have the same rights to pay, benefits, rest periods and holidays as someone recruited directly by the hirer (including the hirer's own directly recruited temp workers and employees).

There is a 12 week qualifying period, so genuine short-term agency temps will not qualify for this right. The 12 weeks do not have to be continuous; there can be breaks between assignments and absences on grounds of eg sickness or jury service.

[Thanks to Adrian Marlowe of LawSpeed for correcting an earlier draft of this bulletin]

Negligent (non-)References

[Thanks to Dr John McMullen of Durham University for preparing this case summary]

The QBD has handed down its decision in McKie v Swindon College, which is authority for the proposition that an employer may be liable to a former employee in tort for damages for negligent misstatement when communicating with a future employer about him.

It is well established, since Spring v Guardian Assurance [1995] 2 AC 296, that an employee may make such a claim following a reference negligently prepared by an employer. HH Judge Denyer QC extended this principle to a statement made by a former employer which was not a reference.

McKie was an exemplary employee of the College. He received a fine reference when he left. He later joined Bath University. His new job involved contact with his old employer, Swindon College. The new HR Director of Swindon, on behalf of the College, caused an email about Mr McKie to be sent to Bath in damaging terms. On the facts this was "fallacious and untrue" and its preparation "sloppy and slapdash". It cost Mr McKie his job at Bath.

Although this was not a reference case the Court held that a duty of care applied. The claim should succeed because the damage sustained was foreseeable, the relationship was sufficiently proximate, the claim fair, just and reasonable and there was a causal connection between the negligence in and about the sending of the email and the damage claimed.