Adjournments - Tribunals and Criminal Proceedings

[Thanks to Sarah Russell, solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary.]

Will a pre-hearing review be postponed where the Claimant suffers from depression, and a criminal trial is pending?

Not where there is no overlap of issues with the criminal trial, and the PHR can proceed with just his representative present, held the EAT in Firouzian v Metroline Travel Limited.

Mr Firouzian was accused of causing death by dangerous driving whilst working as a bus driver. A PHR on the question of disability was listed for a fortnight before the trial.

If there had been a risk to the Claimant's right to silence or of self-incrimination, it would have been appropriate to postpone the PHR. Further, if he had been expected to give extensive evidence at the PHR, his mental illness might have been grounds to grant the postponement.

Whether to postpone a PHR is at the discretion of the Judge. Where new medical evidence has been produced about the Claimant's fitness to attend the PHR after the Judge's first refusal, the correct procedure is for an application for review of the decision, and only then an appeal of the outcome.

Uplifts for Failure to Comply with Acas Code

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.]

Can uplifts for failure to comply with the Acas Code be made in favour of workers as well as employees?

No, says the EAT in Local Government Yorkshire v Khan.

The claimant was a project manager seconded to Local Government Yorkshire and Humber (an employers' association) from Bradford and Airedale PCT. She was dismissed in circumstances giving rise to a claim for compensation for detriment by reason of having made a PIDA protected disclosure.

The compensation awarded by the employment tribunal included future loss, injury to feelings and a 25% mark up by reason of the employer's non-compliance with the Acas Code of Practice. The employer appealed to the EAT on the issue of remedy. The EAT refused to disturb the tribunal's award for future loss and the amount of compensation for injury to feelings.

But the interesting point is the tribunal's decision to uplift the award for breach of the Acas Code. It had been conceded in the main proceedings that the claimant was a worker under the extended definition of worker for whistle blowing purposes in Section 43K of the Employment Rights Act 1996. However, the source of the rules on uplift of compensation for failure to follow the Acas Code is Sections 207A (1) and (2) of the Trade Union and Labour Relations (Consolidation) Act 1992. This allows uplift of an award to "the employee" by up to 25%. For theses purposes, Section 295 of TURL(C)A defines employee more narrowly than worker, being an individual who has entered into or works under a contract of employment. Therefore, the short answer, said the EAT, was that only employees, as opposed to workers, can take advantage of the remedy offered by Section 207A

This seems an anomalous result. As the EAT said: "Employment law does not always follow a logical course".

Costs - Assessment of Wasted Costs Orders

[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary.]

Can an employment tribunal refer a wasted costs order to the County Court to be assessed?

No, says the EAT in Casquerio v Barclays Bank.

In contrast to an ordinary costs order (made under rule 41), with a wasted costs order (made under rule 48) there is no express provision for the employment tribunal to refer the matter to the County Court for assessment. Therefore the employment tribunal has to deal with the assessment themselves and make an order in a specified sum. Slade J suggested that this may have been a drafting oversight.

Interestingly, whilst recognising that the question of the paying party's ability to pay is not expressly referred to in rule 48, Slade J remitted the question to the employment tribunal. She indicated the possibility of the paying party's means being taken into account as part of the third limb of the Ridehalgh v Horsefield test, i.e. whether it is in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs.

Medical Evidence and 'Unless' Orders

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

Should a Tribunal strike out or stay a disability discrimination case if a Claimant fails to co-operate with an order to obtain medical evidence?

Yes, says the EAT (HHJ Richardson presiding) in GCHQ v Bacchus, provided an 'unless order' is made first.

The Claimant, a press officer at GCHQ, developed an anxiety condition. Disability was disputed, and the employment tribunal ordered that the Claimant attend an appointment with a psychiatrist so that GCHQ could have its own report. The Claimant failed to do so, but provided a report from his own expert.

GCHQ applied to strike out or stay the disability discrimination claim as the Claimant had unreasonably refused to attend an appointment with its nominated expert. The employment tribunal refused, noting that it could determine disability on the available evidence.

The EAT overturned the tribunal's decision, holding that GCHQ was unable to properly prepare its case without its own expert evidence, which led, in the circumstances, to GCHQ being significantly disadvantaged.

The EAT made an 'unless order', requiring the Claimant to attend the examination on pain of strike out for non-compliance, a simple strike out being draconian at this stage.

The Judgment contains a useful narrative on the approaches to obtaining expert medical evidence at paragraphs 26 -32.

Compensatory Award and Entitlement to Work

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Was an employment tribunal right to award unfair dismissal compensation beyond the period an employee was entitled to work in the UK?

No, says the EAT in Kings Castle Church v Okukusie.

The claimant was employed as a pastor. When he began work he applied for permission from the UK Border Agency to live and work in the UK. This was granted until 11 October 2009.

On 19 January 2010 he received a letter from UKBA refusing his refusing an application to remain in the UK indefinitely. On 10 February 2010 he was dismissed. The employment tribunal found that this was unfair on the basis that the church had acted automatically on the information it had, without investigating further. The tribunal awarded compensation to the date of dismissal and future loss for a further six months.

But a material letter dated 18 May 2010, from UKBA, had not been included in the bundle before the tribunal. It said that the claimant's appeal against the original UKBA decision was refused and that there was no right to remain in the UK beyond 10 May 2010.

It was held by the EAT that the tribunal should have enquired into matters more thoroughly. For they should have been alerted to a problem by virtue of the 19 January 2010 letter, and also because the claimant had failed to produce documentation under an order by another employment judge.

As a result the tribunal erred in awarding compensation based on earnings with the church over the period he would not have been permitted to work. The original award of compensation was therefore overturned and substituted by an award of loss of earnings up to 10 May 2010.

'Pool of One' in Redundancy Selection

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

Does the 'range of reasonable responses' test apply to the decision to use a 'pool' of one in a redundancy selection exercise? Yes, says the EAT in Wrexham Golf Co Ltd v Ingham.

The Appellant Golf Club dismissed the Claimant, its sole bar steward for redundancy. The employment tribunal found the dismissal unfair, noting that the Club had not considered any sort of selection pool.

The EAT overturned the finding of Unfair Dismissal, holding that the employment tribunal had not applied the 'range of reasonable responses' test to the question of whether it was reasonable for the Club to focus on the Claimant alone as the person at risk of redundancy, indicating that the tribunal ought to have asked itself whether it was reasonable for the Club not to have considered selection from a wider range of employees than just the Claimant.

The EAT also held that the employment tribunal's findings on consultation were linked to the 'pool' issue, and remitted the case for re-hearing in a fresh tribunal.

Mitigation of Loss

[Thanks to Sarah Russell, solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyer, for preparing this case summary]

Had there been a failure to mitigate loss where an employee declined to accept re-employment in the same role on a self employed basis? There could be, if the loss of ability to bring an unfair dismissal claim was the only way in which the new terms were inferior, said the EAT in F & G Cleaners Ltd v Saddington .

The dismissal took place after a TUPE transfer, where the new employer refused to accept that they employed the claimants, and then offered them work on terms that included self employment, lower earnings etc. It was not unreasonable of the employees to refuse this, so there was no failure to mitigate.

The EAT also found the duty to mitigate had not arisen when the offers were made. It did not commence until after dismissal. Here the employees were dismissed by the offer of the new, inferior terms, which entitled them to resign and be treated as dismissed per regulation 4(9) of TUPE. The offers were therefore prior to the dismissal and refusal to accept them could not be a failure to mitigate.

Managing Redundancy for Pregnant Women

Acas, in association with the Equality and Human Rights Commission, has published a Good Practice Guide on Managing Redundancy for Pregnant Employees or those on Maternity Leave.

Acas has also updated its guidance on Handling Redundancy, which includes a new section on how to break the news to redundant employees.

Intention to Underpay Wages

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

Can an employer commit a fundamental breach of contract by intentionally failing to pay an employee the full amount of pay properly due, even if making an honest mistake as to how much pay is due?

Yes, says the EAT (Mrs Justice Slade DBE presiding) in Roberts v The Governing Body of Whitecross School.

The employee was off sick with stress and depression. The School decided to pay only half pay, rather than full contractual sick pay, on the basis of a mistaken interpretation of the Collective Agreement covering sick pay, thinking that it covered physical but not mental injuries.

The employee won a wages claim for sick pay, but lost a constructive dismissal claim, as the tribunal found that whilst the School was in breach of contract by not paying full sick pay, it was not in fundamental breach of contract.

The EAT overturned the employment tribunal's judgment, as a finding of a fundamental breach was inevitable on the facts; the School had a 'settled intention' not to pay the full contractual sick pay due. The School had acted on its view of the contract, rather than simply asserting it.

The EAT doubted previous case law that repudiation might not occur when a party is acting under a genuine but mistaken belief as to the terms of a contract, but noted that it may not be a fundamental breach of contract for an employer to reduce pay by a material extent if its approach arose from an error or simple mistake.

The EAT remitted the case to a new tribunal to determine if the Claimant was constructively dismissed in response to the breach.

Umbrella Contracts/Continuity of Employment

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

When carers employed by a contractor were engaged under a zero hours contract, was it open to a tribunal to find they were employed under a global contract of employment, with continuity preserved throughout?

Yes, says the EAT in Pulse Healthcare v Carewatch Care.

In this case, the carers were employed by Carewatch Care Services Ltd, a company contracted to a PCT to provide care for a severely disabled individual. The contract was re-tendered and taken over by Pulse Healthcare. The carers asserted they had TUPE rights against the new contractor.

But as a preliminary point, it had to be established that the carers were employees and, for the purposes of any claims they might wish to make, whether they had continuous service.

The carers were given a zero hours contract. It stated there was no obligation to provide work and the employees were ostensibly free to work for another employer.

The employment tribunal found that the contract given to the carers did not reflect the true agreement between the parties. In practice they performed services, were obliged to carry out the work offered and had to do it personally. Finally, the argument that these were individual discrete contracts as opposed to a global umbrella arrangement did not stack up. Carewatch was providing a critical care package 'of a most challenging kind'. The employment tribunal described it as 'fanciful' to suppose that the employer relied only on ad hoc arrangements in the provision of such a service.

Therefore the employment judge was entitled to hold that the claimants were employed by Carewatch under global contracts of employment with full continuity. The issue of whether, as employees, they actually transferred to Pulse under TUPE was remitted to an employment tribunal for further deliberation. 

Unpaid Work Scheme Does Not Breach Human Rights

[Thanks to John Cook of SAS Daniels LLP for preparing this case summary]

Is it slave labour and therefore unlawful to force an individual in receipt of Job Seekers Allowance to participate in a 'work for your benefit' scheme?

No, says the Administrative Court in R (on behalf of Reilly & Wilson) v Department of Work and Pensions.

Article 4 of the European Convention on Human Rights prohibits slavery, servitude and forced labour. As part of two schemes to help recipients back to work individuals were required to participate in schemes that involved them providing unpaid work. A failure to participate in the scheme can result in a loss of benefits.

In the instant case Miss Reilly was a geology graduate who was required to work in Poundland for two weeks. Mr Wilson was a HGV driver who was required to work for an organisation delivering refurbished furniture to the needy in the community. His placement was to be for 30 hours per week for a period of 26 weeks.

Both claimed this amounted to a breach of Article 4. The Court held that although views may reasonably differ about the merits of a scheme that requires individuals to 'work for their benefits' as a means of assisting them back into the workplace, such schemes could not be said to amount to 'slavery' or 'forced labour'.