Whistleblowing - House of Lords Debate

The Enterprise and Regulatory Reform Bill has begun the report stage in the House of Lords this week.

One of the amendments proposed during the debate is the extension of whistleblowing protection to jobseekers (by extending the definition of 'workers' to include job applicants).  This will prevent blacklisting jobseekers who have made protected disclosures against previous employers, and brings the whistleblowing legislation into line with the Equality Act 2010.
Other changes in whistleblowing law being debated include:-

introducing a requirement that the disclosure must, in the worker's reasonable belief, be in the public interest

removing the 'good faith' requirement for a disclosure to qualify as protected, but reducing compensation by up to 25% where a disclosure was not in good faith

making employers vicariously liable for detriments by fellow workers, subject to the normal statutory defence

Dismissal at Behest of Third Party

[Thanks to Vanessa Latham of Berrymans Lace Mawer for preparing this case summary]

Is it reasonable to dismiss an employee at the behest of a third party, without considering whether the request is justified?

No, says the EAT in Bancroft v Interserve.

The Respondent had a contract with the Home Office to provide a catering service to a bail hostel. Under the terms of that contract, the Home Office could "require the removal of contractor staff whose admission would be undesirable", without giving reasons.

Following a falling out between the Claimant and the manager of the bail hostel, the Home Office wrote to the Respondent asking that the Claimant be replaced. The Claimant was subsequently dismissed, without any inquiry into the justification for the request. His claim for unfair dismissal failed in the employment tribunal.

The EAT held that the factor of whether there will be an injustice to the employee, and the extent of that injustice, will be an important consideration in deciding whether a dismissal was fair. The employment tribunal had failed to address their minds to the issue of why the Respondent did not consider the rights and wrongs of the difficulties between the hostel manager and the Claimant. In those circumstances, the employment tribunal had not properly inquired as to whether the Respondent had done "everything they could to mitigate the injustice caused by the third party's request that the Claimant no longer work on their premises". Having failed to make all the necessary findings of fact, the decision could not stand and the case was remitted to the employment tribunal.

Government Consultation on TUPE and Pensions

Don't get too excited.  The government has issued a consultation paper seeking views on the proposed The Transfer of Employment (Pension Protection) (Amendment) Regulations 2013.

The draft Regulations clear up an ambiguity in the original rules allowing the employee to choose their own pension contribution levels after a TUPE transfer, and remove a potential loophole in the overlap between TUPE and the new pension auto-enrolment rules.

I'll talk about this at the forthcoming Employment Law MasterClass 2013  - but for no more than 90 seconds.  And that's a promise.

Final Written Warnings

[Thanks to Michael Reed Employment Legal Officer at the Free Representation Unit for preparing this case summary]

Can an employer's reliance on a written warning be challenged in an unfair dismissal claim?

Only if it was issued in bad faith or manifestly inappropriate, says the Court of Appeal in Davies v Sandwell. Otherwise, past warnings should not be reconsidered.

Ms Davies was dismissed for misconduct. In making their decision, the Council considered a previous written warning. Ms Davies said that the warning was wrong; she had not committed the alleged misconduct. She argued the validity of the warning should be considered as part of her unfair dismissal claim.

The Court of Appeal disagreed. The tribunal's role was to consider the fairness of the dismissal. This included deciding whether it was reasonable to rely on a previous warning -- but that did not mean deciding whether the warning should have been issued. Only in the exceptional case of bad faith or a manifestly inappropriate warning should a tribunal conclude it was unreasonable to rely on it.

The Court of Appeal also called for robust case-managment. Noting that much of the evidence given over four weeks had been irrelevant, they said tribunals (and parties) should exclude irrelevant material and focus on the real issues, rather than wasting time and money.

Further changes to whistleblowing laws announced

The government has announced further amendments to the Enterprise and Regulatory Reform Bill, to stengthen the protection available to whistleblowers.  The amendments will:-

make employers vicariously liable for detriments by one worker towards another because they have made a protected disclosure, thus reversing the Court of Appeal's decision in NHS Manchester v Fecitt (see final paragraph of summary)

but introduce a 'statutory defence', to protect employers who take all reasonable steps to prevent such detrimental action (thus mirroring the equality legislation).

For more details, see https://www.gov.uk/government/news/more-protection-for-whistleblowers-announced

Unfair Dismissal: Approach to Previous Warnings

[Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary]

When, in an unfair dismissal case, should an employment tribunal concern itself with the appropriateness of a final warning preceding the dismissal?

When there are grounds for thinking that the final warning may have been manifestly inappropriate, says the EAT in Simmonds v Milford Club.

Mr Simmonds was disciplined for giving staff a £15 Christmas bonus in cash instead of a bottle of wine up to the value of £15 as instructed. Because he was already under a final warning, he was dismissed.

The final warning was the result of an occasion when Mr Simmonds had asked his wife to deposit the club's takings while he waited outside in the car, having been unable to park near the bank.

The majority of the tribunal, finding the dismissal fair, had failed to consider whether a final written warning in these circumstances was consistent with the club's disciplinary procedure. Mr Simmonds' appeal was allowed, and the matter remitted to the tribunal to consider whether the final warning was manifestly inappropriate. The judgment notes at paragraph 20 that 'manifestly inappropriate' is a higher threshold than the test applied to the reasonableness of a dismissal.

Protected Disclosures

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

Can a Claimant rely on a protected disclosure made after the termination of a working relationship to bring a 'whistleblowing' claim?

Yes, says the EAT in Onyango v Berkeley Solicitors.

Dealing with a novel point, the EAT held that the statutory wording (s47B ERA) did not limit the whistleblower's protection to disclosures made during the relevant employment.

This construction was in line with the purpose of the legislation, and was consistent with other recent authorities. Therefore, an employment tribunal had jurisdiction to hear the Claimant's complaint.

The case was remitted for determination of the issue to a different tribunal.

Collective Agreements post-TUPE

[Thanks to Daniel Tivadar of 3 Hare Court for preparing this case summary]

Is it contrary to the Acquired Rights Directive 2001 for transferee employers to be bound by collective negotiations after the date of transfer under TUPE?

No, as long as the employer's fundamental right to run a business is not breached, according to the Opinion of the Advocate General in Alemo-Herron and ors v Parkwood Leisure Ltd.

The employees worked in a Council leisure department. Their contract of employment contained a 'dynamic clause' incorporating existing and future collective agreements by the National Joint Council ('NJC') for Local Government Services. Their department transferred under TUPE to a private-sector employer first in 2002 and again in 2004 to Parkwood. After the TUPE transfer to Parkwood the NJC agreed pay increases. Parkwood refused to honour these agreements noting that it was not, and could not have been, privy to the NJC negotiations. The Supreme Court asked the CJEU whether dynamic clauses could in principle transfer under the Acquired Rights Directive.

The Advocate General considered that it was up to individual member states to decide whether to allow dynamic clauses to transfer; the Directive did not prescribe either way. National courts, however, had to ensure that the transferee's freedom to conduct business was not breached by the dynamic clause being unconditional and irreversible. There was unlikely to be a breach in the case of the UK, where collective agreements have their legal basis in the individual employment contracts which can be renegotiated.

The opinion of the Advocate General is not binding on the CJEU, but is - as a matter of practice - usually followed.

Political opinions and affiliations, whistleblowing

[Thanks to Laurie Anstis of Boyes Turner for preparing this case summary]

The government has put forward a series of amendments to the Enterprise and Regulatory Reform Bill, which is currently making its way through Parliament.

The first is an amendment to disapply the qualifying period for unfair dismissal "if the reason (or, if more than one, the principal reason) for the dismissal is, or relates to, the employee's political opinions or affiliation". This amendment seeks to implement the decision of the European Court of Human Rights in Redfearn v UK. It does not make a dismissal on the basis of political opinion or affiliation automatically unfair, but simply permits such an unfair dismissal claim to be heard on normal principles without the need for qualifying service.

The second removes the requirement for protected disclosures to be made "in good faith", substituting instead a discretion for the employment tribunal to reduce compensation by up to 25% in cases where the disclosure is not made in good faith.

The final amendment provides that an employment tribunal must have regard to an employer's ability to pay in considering the financial penalties provided for in the Enterprise and Regulatory Reform Bill.

Religious Belief in the Workplace

Following the European Court of Human Rights' judgements last month in Eweida & others, the Equality & Human Rights Commission has, today, published new guidance on Religion and Belief in the Workplace.

It's packed full of sample requests for religious accommodation that employees might make,
and contains practical guidance on how employers should deal with them.

Harassment on Grounds of Religion

[Thanks to Saul Margo of Outer Temple Chambers for preparing this case summary]

Did the question 'What's happened to the fucking Pope?', shouted in a pressured newsroom, amount to harassment on grounds of religion of a Catholic sub-editor present at the time?

Obviously not, says Underhill J in Heafield v Times Newspaper Limited.

The employment tribunal found that the conduct was unwanted, but not done with the purpose of creating an adverse environment for Mr Heafield; if Mr Heafield experienced the environment as adverse, that was unreasonable of him. And it was not done on grounds of Mr Heafield's religion or belief.

Mr Heafield appealed, arguing that the tribunal had wrongly treated the speaker's purpose as conclusive that the words could not create an adverse environment; and that it had erred in relying on the speaker's motive in finding that the words had not been said 'on grounds of' Mr Heafield's religion.

Underhill J emphatically rejected the first argument: the employment tribunal had not treated the speaker's purpose as conclusive, but had legitimately treated it as relevant.  He accepted that the relevance of motive in deciding the 'on grounds of' question was less straightforward. But since his conclusion on the first question disposed of the appeal, he did not need to deal with that argument.  

Judicial Proceedings Immunity

[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]

Can a Claimant in discrimination proceedings treat a witness statement from the Respondent as breaching trust and confidence, and thus justifying resignation and constructive dismissal?

No, says the EAT in Singh v Reading Borough Council.

Here the Claimant (a former head teacher ) had brought a claim alleging a concerted campaign of racial discrimination, harassment and victimisation, by parents, staff and governors at her school.   Before the tribunal hearing began, and while the Claimant was still employed as head teacher, the Respondents served a witness statement from the Clerk to the Governing Body.  The Claimant believed that the statement was the result of improper pressure being put upon the Clerk as part of the campaign of racial discrimination.  In consequence she resigned from her employment, claiming that this was the 'final straw' and then applied to amend her claim to  include a claim of constructive dismissal

The EAT relied upon South London & Maudsley NHS Trust v Dathi as authority that actions in the preparation of a case for trial, including the preparation of witness statements, attracted absolute privilege and so could not constitute the ground for a legal claim.

Abuse of Process

[Thanks to Jonathan Moffat of Outer Temple Chambers for preparing this case summary]

Can a claim be dismissed for abuse of process when it is brought on the same facts as an earlier claim that has been withdrawn but not dismissed?

Yes, according to the EAT in Mills v London Borough of Brent.

Miss Mills presented two claims of race discrimination against the school where she worked, which was maintained by Brent. She withdrew her claims on the third day of a four day trial but the claims were not dismissed.

Miss Mills brought a third claim based on the same facts against Brent. She also submitted a complaint of harassment and duress against the Employment Judge. The complaint was not upheld and the third claim was struck out as an abuse of process at a PHR.

On appeal, Miss Mills alleged bias and claimed that the Employment Judge had erred in striking out the third claim.

The EAT held that:

(1) it did not matter that there was a different respondent to the first two claims than there was to the third given the "privity of interest" between the respective parties;

(2) the Employment Judge had been entitled to take into account the fact that the claims had been withdrawn voluntarily on the third day of the trial; and,

(3) the principle in Henderson v Henderson had no application: the Employment Judge had been entitled to strike the claim out as an abuse of process under rule 18(7)(b).

Settlement Agreements

Acas has launched a consultation on a new Code of Practice on Settlement Agreements

.
The Government is introducing new legislation which will mean that any offers or discussions about settlement agreements cannot be used as evidence in an unfair dismissal claim unless either of the parties has engaged in some improper behaviour.  The Acas Code will come into effect alongside the new legislative provision to help everyone in the workplace understand how it will work in practice. The Code will also explain what constitutes improper behaviour.

The consultation closes on 9th April 2013.

Polkey Assessments

[Thanks to Andrew Smith of Matrix Chambers for preparing this case summary]

Does a Polkey assessment require the application of a 'review' or 'predictive' based approach?

The latter, says the EAT in Hill v Governing Body of Great Tey Primary School.

Following a finding that the Claimant's dismissal was procedurally unfair, the tribunal assessed remedy on the basis that the Claimant's employment would have terminated in any event two months later (had a proper procedure been followed).  An 80% reduction on account of contributory fault was also applied, leaving the claimant with the meagre sum of £49.99 as her compensatory award.

In the EAT's view, the tribunal's conclusion on the Polkey issue indicated that it had asked whether if following a fair procedure the respondent had decided to dismiss, such a decision would have been upheld as fair by a tribunal (as falling "within the band"). That was the wrong approach.  When applying Polkey, a tribunal is required to undertake a predictive approach as to the likelihood of that particular employer fairly dismissing the Claimant.  The issue is not whether a hypothetical fair employer would / could have done so.

The EAT further emphasised that a Polkey assessment requires a consideration of competing factors, including those which weigh in the employee's favour (e.g. lengthy service, past performance and an unblemished disciplinary record).

The tribunal had also erred in its approach to contributory fault.  Amongst other matters, it had adopted a "homespun and inaccurate reflection" of Article 10 (the right to freedom of expression), when considering the blameworthiness of the Claimant's conduct.  The EAT laid down a helpful 'structured approach' for cases involving an Article 10 element (see para. 45 in particular).

The EAT's judgment also contains a helpful analysis of the legal principles relating to the doctrine of issue estoppel (paras. 64 - 73).

Trade Union Recognition and Article 11

[Thanks to Georgina Hirsch of Devereux Chambers for preparing this case summary]

Does the letter of UK trade union recognition law comply with Article 11 of the European Convention on Human Rights?

No, says the Central Arbitration Committee in Pharmacists Defence Association v Boots Management Services Ltd.

The Trade Union & Labour Relations (Consolidation) Act 1992 provides  a mechanism for a trade union to seek recognition by an employer if that employer does not already recognise a trade union for collective bargaining.  The mechanism is regulated by the Central Arbitration Committee, who were faced in this case by an employer who had 'recognised' the Boots Pharmacists Association(BPA) after the Pharmacists Defence Association ('the union') had contacted Boots Management Services Ltd ('the employer') for formal recognition.

This appeared to be a deliberate attempt by the employer to block the independent union's application by recognising the BPA, who were listed as a trade union by the Certification Officer for Trade Unions and Employers Associations ('the CO'), but did not have a Certificate of Independence from the CO. The union accused the BPA of not being independent, and also argued that because the BPA was not allowed to bargain pay, terms and conditions or  holiday under their 'recognition' agreement, that agreement did not meet the requirements of compliance with Art.11, which, according to the European Court of Human Rights Grand Chamber decision in Demir & Baykara v Turkey establishes that in principle, the right to collective bargaining is an essential element of the right to form and join trade unions (para 154).

The CAC Panel found that TULRCA 1992 was not compliant with Art 11, and in accordance with its duty under the HRA 1998 ss.2&3 it "iron(ed) out a wrinkle" in TULRCA 1992 Sch A1 35 by adding the words "in respect of pay, hours and holiday" as a qualifier to "collective bargaining", with the effect that an agreement between an employer and a non-independent union providing collective bargaining rights limited to facilities for officials and machinery for collective consultation cannot be used to block an application by an independent trade union for recognition for collective bargaining on pay, hours and holidays.

Part-time Judges' Pensions

[Thanks to Jessica Denton, Legal Assistant to Gerard McDermott QC for preparing this case summary]

Are part-time judges entitled to judicial pensions on their retirement?

Yes, says the Supreme Court, in the long-running battle of O'Brien v Ministry of Justice.

Mr O'Brien sat as a recorder for 27 years. On his retirement he argued that he was entitled to receive a judicial pension for his work as a recorder pro rata temporis. The Ministry of Justice contended that recorders were 'office holders' and not workers, and thus did not come within the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which provide that a part-time worker should not be treated less favourably than a full-time colleague.

When the case reached the Supreme Court, following a reference to the CJEU
, there were two issues to be decided: (1) whether the relationship between the MoJ and judges is substantially different from that between employers and workers (the worker issue); and (2) whether the difference in treatment of recorders as compared to full-time or salaried judges is justified by objective reasons (the objective justification issue).

The Supreme Court ruled that recorders were 'workers', because they are effectively under the control of another whilst working in that capacity. There was no objective justification for the different treatment between part-time and full-time judges, because that would amount to blanket discrimination and undermine the principles of the European legislation. Although the MoJ argued that paying pensions to part-time workers would reduce the pension pot available for full-time judges, the Supreme Court stated clearly that the principle of equal treatment cannot take into account that a worker's pension is to be paid from State funds.

Collective Redundancy Consultation

The Department for Business, Innovation and Skills has published the draft The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013.

The draft Regulations shorten the consultation period for proposals to make more than 100 people redundant from 90 days to 45 days, and bring fixed-term employees into the headcount.  The trigger date for the new period is when the proposal to make 100+ people redundant occurs on or after 6th April 2013.

Age Discrimination

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

If a Civil Service voluntary severance scheme pays older leavers more than younger leavers, is that unlawful direct discrimination on grounds of age?

No, says the EAT in Lockwood v DWP, turning down the Claimant's appeal against a fact-based employment tribunal judgement.

The Claimant joined the Civil Service at 18 and took voluntary severance nearly eight years later. Her severance payment was about 61% of that of a colleague aged over 35 with the same service. The employment tribunal rejected her complaint of age discrimination, holding that her comparator was not properly comparable, noting the greater comparative difficulties that older workers face on losing work, and further that the Respondent's policy of higher payments for older leavers to provide financial security was objectively justified on the facts.

The EAT's judgment was fortified by applying the Supreme Court decision of Seldon (see bulletin on this here), decided after the employment tribunal case, and in particular paragraphs 67, 73 and 75 on public interest considerations in age discrimination.

Apportionment of Discrimination Awards

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

Can an employment tribunal apportion a compensation award between Respondents when the damage is indivisible?

No, says the Court of Appeal in London Borough of Hackney v Sivanandan & Ors.

The Council, its employee Ms White and other respondents not employed by the Council were found liable for discriminatory acts against the Claimant.  At two separate remedies hearings, the employment tribunal ordered Ms White to pay £1,905.41 in respect of injury to feelings and the Council and the other respondents jointly and severally to pay the Claimant £421,415.

The Council's case in the Court of Appeal was that the Council's liability should be no greater than that of Ms White's, the employment tribunal having fallen into error by its inconsistent treatment of the discriminators as to joint and several liability and apportionment.

The Court of Appeal found that whilst the employment tribunal had erred in finding it had the power to apportion, the decision in respect of the Council's liability was legally correct as the employment tribunal had chosen not to apportion on the facts.  The decision in respect of Ms White was wrong in that the employment tribunal purported to exercise a power to apportion liability to the Claimant, which it did not have, but that error of law was irrelevant to the Council's appeal as there was no appeal of that decision.