Disability: Who should get and pay for medical evidence?

Thanks to James English of Samuel Phillips solicitors for preparing this case summary

Can an employment tribunal insist both that the Claimant obtains further evidence on her alleged disability, and that the Respondent should pay for it?

No and no, held the EAT in City Facilities Management v Ling.

The Claimant was a janitor based in a supermarket. She was dismissed on grounds of capability following a period of absence which began due to a psychiatric condition (depression/anxiety). A separate assessment by the DWP had concluded that she was not disabled.

A pre-hearing review was arranged to consider the issue of disability and whether to strike out the Claimant's claims as having little prospect of success. The Tribunal decided that it required expert evidence rather than simply the GP records in order to consider this, and given the Claimant's finances also that the Respondent should pay for this report. The Respondent appealed.

In allowing the appeal, the EAT held that the evidence was unnecessary, as the Claimant herself could give evidence on the effect of the impairment, and that the overriding objective did not require a Respondent to help support a weak case against it. The case was remitted to a fresh Tribunal.

Discrimination: Extension of Time

Thanks to Vanessa James of SA Law for preparing this case summary

Is it necessary for an employment tribunal to set out all the factors upon which it decided that a claim was time-barred? No, holds the EAT in the case of Hall v ADP Dealer Services Ltd

Ms Hall was employed by ADP as a compensation manager until 10 February 2012. She subsequently brought a claim for age discrimination, which was received by the Tribunal on 30 November 2012. The Claimant alleged that she was given misleading references by ADP, the last of which was in July 2012.

Ms Hall acknowledged that her claim was out of time in her ET1 but maintained that the delay was due to ADP insisting that she follow their grievance process first.

The employment tribunal held that the claim was time-barred and that it was not just and equitable to extend time. The Claimant appealed the decision on several grounds, including the Tribunal's failure to take relevant factors into account and the failure to provide adequate reasons for the decision. The EAT held that there was no error of law in the Tribunal's reasoning.

The EAT stated that there is no need for an employment tribunal to follow a formulaic approach and set out a checklist of the variety of factors that may be relevant in any case, in particular where no reliance has been placed upon them, or where other factors have been addressed in evidence as being of a greater significance. The EAT considered that the judge adequately explained the reasons for her decision and therefore the appeal was dismissed.

Whistleblowing Detriment Cases: The Correct Approach

Thanks to Will Young of Outer Temple Chambers for preparing this case summary

The EAT has given guidance on how whistleblowing detriment cases should be approached in Chemsitree v Gahir.

The case concerned a Claimant who was employed as a pharmacist but was dismissed after 18 days after raising health and safety concerns and alleging failures to comply with legal obligations. She was found to have been subjected to detriment and to have ben unfairly dismissed.

The EAT overturned the decision on detriment but upheld the finding of unfair dismissal, in the process giving guidance as to the approach to be followed in such cases:

1. Each disclosure should be separately identified;

2. Each alleged failure to comply with a legal obligation or health and safety breach should be separately identified;

3. The basis upon which each disclosure is said to be protected and qualified should be addressed;

4. Save in obvious cases any legal obligation relied upon should be identified and capable of verification;

5. The Tribunal should then determine whether the Claimant had the required reasonable belief, and whether each disclosure was made in good faith, under the old law, or in the public interest, under the new law;

6. Where detriment is alleged, the Tribunal should identify the detriment in question and the date of the act or failure to act relied upon.

Restrictive covenant enforced despite drafting error

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

Can an ill-drafted restrictive covenant be enforced even if the court would need to add words in order to give it effect?

Yes, holds the High Court in Prophet plc v Huggett.

The employee was subject to a restrictive covenant that prevented him from competing with, or working for a competitor of, Prophet plc. An additional sentence in the contract qualified this restriction by defining what competition would mean, in that it related to the provision of computer software systems for the fresh produce industry, produced by Prophet. The employee left and moved to a competitor company and his original employer, Prophet, sought to enforce the covenant.

On a literal reading of the restrictive covenant, Prophet accepted that the competitor company would never provide software systems produced by them and therefore the covenant would not afford them protection. David Donaldson QC (sitting as a Deputy High Court Judge) rejected the employee's assertion that the covenant meant to say what it said. Instead, he concluded that the addition of three words to the covenant reflected its true meaning, as that would include software systems produced by Prophet "or similar thereto". In line with the well-known case law, the Judge proceeded to consider Prophet's injunction application on the basis of the covenant's new formulation.

Practitioners will be familiar with situations where the removal of certain words, or 'blue pencilling', is required before the court can give effect to a restrictive covenant that would otherwise be unenforceable. This case demonstrates the flexibility the courts have in the opposite situation, where words have to be added to give effect to what the parties had agreed at the time. Whilst this is a first-instance decision, it would appear that the court has a broad discretion in this type of scenario.

Update on Fee-paid Judges' Pensions

The Ministry of Justice has issued a statement in fee-paid judicial cases, following the recent decision in O'Brien v Ministry of Justice.

If you are a fee-paid judge (and thus affected), you need to read the statement in full.  In summary, the MOJ is setting up a claims handling system for eligible fee-paid judicial office holders, intended to remedy the less favourable treatment. Non-pension claim payments will only be made to claimants who have brought, or could bring, a claim in time (taking into account any extension) whose claim relates to payments due from 7 April 2000 onwards.
If you are a potential claimant and your non-pension claim would have been in time for the purposes of regulation 8(2) of the 2000 Regulations as at 3 June 2013, the Ministry of Justice invites you to particularise your losses and from 1 June 2014 to 31 August 2014 to submit your claim to the Judicial Pay Claims team at the contact address below. The Judicial Pay Claims team will seek to reconcile your claim with Ministry of Justice records in order to arrive at a settlement. This offer applies to eligible fee-paid judicial office-holders in England and Wales, Scotland and Northern Ireland insofar as their potential claim is against the Ministry of Justice.

Implied Terms and Redundancy Payments

Thanks to Lisa Joyce of DTM Legal LLP for preparing this case summary

Can the consistent practice of an employer calculating redundancy payments without the statutory caps convert into a contractual right for future practice?

Yes, held the EAT in Peacock Stores v Peregrine.

The employer had routinely paid redundancy pay to staff in accordance with the statutory redundancy scheme, except for the statutory caps relating to length of service and the amount of weekly pay being disapplied.

The burden of proof fell on the claimant to show that there was a contractual entitlement to the uncapped payments, which was a question of fact. The former head of HR's evidence was accepted, that calculation of redundancy payment in the above manner was ""most definitely custom and practice".

The Judge concluded that "there was 'a consistently applied and well understood policy of enhanced redundancy payments' and 'it is probable that remained the situation until 2002 when Mr Thomas was made redundant'". There was no evidence to the contrary.

Once the position was reached that a contractual right to an uncapped redundancy payment was to be implied by custom and practice, a departure from that term by the employer would represent a breach.

TUPE: Service Provision Changeover

Thanks to Joanna Cowie of SA Law for preparing this case summary Was a tribunal entitled to rely on contractual documentation between the parties when determining the "activities" of a service provision change for the purposes of reg 3(1)(b) TUPE? Yes, held the EAT in the case of Qlog Ltd v O'Brien. McCarthy Haulage Ltd had a contract with Ribble Ltd to carry out transport and delivery services. McCarthy employed drivers to carry out those deliveries. McCarthy also employed a transport manager and four shunters, who were responsible for managing the deliveries. The contract ended on 17 September 2011. The new provider (Qlog Ltd) started on 19 September 2011. The transport manager and the shunters transferred to Qlog. However Qlog denied that TUPE applied to the drivers on the basis that Qlog would not be providing the transport services - as they would be sub-contracted to individual haulage providers. The tribunal considered that the interpretation of "activities" was critical for determining whether there was a service provision change. In doing so, the tribunal considered the written agreement between Ribble and Qlog which stated that "[Ribble] wishes to transfer the provision for part of its transportation, delivery and distribution services from its incumbent provider to [Qlog]." Relying on this agreement between the parties as compelling evidence of their intentions, the tribunal found that the "activities" which were carried out were principally the transportation of goods. The tribunal found that, whilst the mode of carrying out that activity post-transfer was very different, the actual activity which Qlog had agreed to provide was the same. Qlog appealed the decision, challenging the Tribunal's approach to the identification of a service provision change for the purposes of reg 3(1)(b) TUPE. The EAT rejected the appeal. In making its decision, the EAT applied the case of Johnson Controls v UK Atomic Energy Authority, and held that the identification of the "activities" undertaken before and after the provision change was a matter of fact and degree for the tribunal. Therefore, the EAT held that the tribunal had been entitled, when characterising the "activities" undertaken by Qlog, to have regard to the way in which these were set out in the contractual documentation between the parties.

Equal Pay

Thanks to Vanessa James of SA Law for preparing this case summary In equal pay cases does a Limited Liability Partnership (LLP) qualify as an 'associated employer' under s1(6) of the Equal Pay Act 1970 (now the Equality Act 2010) for the purpose of identifying a comparator employed by a different entity? The Court of Session in Glasgow City Council v Unison looked at an outsource by Glasgow City Council, whereby services for parking enforcement and direct care services (care, cleaning, catering and related services) were transferred into LLPs set up to operate those outsourced services and the women who transferred wanted to rely upon male comparators still employed by Glasgow council. The court accepted that LLPs were companies in the broader sense (rather than the narrower Companies Act 2006 definition) and could be considered an associated employer on that basis. Employers who deal in any outsourcing model (particularly where equal pay claims have been more common in recent years such as local authorities) need to be diligent to avoid inadvertently assuming large financial liability for latent equal pay claims that may have arisen outside of their knowledge and control.

'Receiving' surrogate mother not entitled to maternity leave

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary Does a commissioning mother in a surrogacy arrangement fall within the scope of the Pregnant Workers Directive, particularly where she has breastfed the child following birth? No, according to the opinion of the CJEU in Case C 167/12 CD v ST. The Claimant, Ms D, and her partner had a child via a surrogate mother. The Claimant started mothering and breastfeeding the child within an hour of the birth. The couple were granted a parental order. The Claimant lodged a claim with the Employment Tribunal after being denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child. Following a preliminary reference by the Employment Judge, Advocate-General Kokott suggested the Court should find that a commissioning mother has the right to receive maternity leave under the Directive, even when she does not breastfeed the child. However, the Court has held that although maternity leave is intended to protect the special relationship between a woman and her child, the grant of maternity leave pursuant to the Directive presupposes that a worker has actually been pregnant and given birth to a child. The Court also found that an employer's refusal to provide maternity leave to a commissioning mother does not constitute discrimination on the grounds of sex contrary to the Equal Treatment Directive.

TUPE: Task of short-term duration

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

Following a service provision change, is a 'hope or wish' of a client that a service would be carried out as a task of short-term duration an 'intention' which exempts the service provision change from TUPE?

No, held the EAT (Slade J) in Prestige Nursing Care v O'Connell, turning down an appeal against the finding that there was a transfer of staff to the Appellant.

The transferor, Allied, cancelled its contract with a local authority to care for a vulnerable adult, X. The local authority engaged Prestige to care for X pending the Court of Protection's approval of changes to X's care plan, a matter outside the local authority's control. Prestige did not accept that Allied's staff transferred to it, arguing that the local authority intended that the care for X was intended to be a task of short-term duration.

The EAT agreed with the Tribunal that in these circumstances, the exception to TUPE in Regulation 3 (3) (a) (ii) - where a client intends that a task would be of a 'short-term' duration - would not apply. As the Tribunal found, the local authority had no control over how long it might take or whether approval would even be granted for changes in X's care plan, so it could not 'intend' that the task of caring for X pending approval would be of a short-term duration, "...an 'intention' is directed to an objective which is a possibility...", "...intending to do something which is not reasonably achievable is meaningless..."

Another limb of the appeal succeeded, however, as a care worker prohibited by the local authority from providing care to X could not be said to have been assigned to the staff transferring despite a contractual assignment to those staff, so one claim against Prestige was dismissed.

Presidential Guidance: General Case Management

In his final weeks of office, President of Employment Tribunals Judge Latham has issued the third Presidential Guidance for England & Wales, on General Case Management. It covers:- making applications disclosure and preparing bundles witness statements establishing disability remedies costs timetabling concluding cases without a hearing judicial mediation It's all good stuff, and should be read by all tribunal litigators. You can see the previous Presidential Guidance in England & Wales here.

Direct discrimination and Immigration Status

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary

Does mistreatment of a worker on the ground of immigration status constitute direct discrimination?

No, holds the Court of Appeal in Onu v Akwiwu.

Two Nigerian women claimants who came to the country on a migrant domestic worker visas to work for families were found to have been subjected to abuse and exploitation.

Both asserted mistreatment based on immigration status, which was intimately linked to their nationality, and as such direct discrimination.

At the EAT, Langstaff J held mistreatment due to vulnerability as migrant workers was not direct racial discrimination.

The Claimants appealed. Underhill LJ, delivering leading judgment, said the Court had asked itself two questions:-

(1) Can the employment tribunal’s findings truly be that the Claimants’ immigration status constituted ‘grounds’ of their mistreatment (s.1(1)(a) 1976 Act) or as findings their mistreatment was because of their immigration status?

(2) If so, can the Claimants’ immigration status be equated with their nationality?

Answering the first question in the positive but second in the negative, the Court rejected the 'intimately linked' submission. The Court held direct discrimination would only be made out if the ground and the protected characteristic exactly corresponded.

Employment Tribunal Statistics

Okay, this is depressing.

The MOJ has published the quarterly employment tribunal statistics for October to December 2013.  Unlike the July-Sept quarter, there is no 'skewing' effect from those who rushed to lodge claims before the introduction of fees in July 2013.

There was a 79% drop (compared with the same period in 2012) in the number of applications lodged.    The number of single claims has dropped from a monthly average of between 4,000 - 5,000, down to 1,700 (a drop of about 63%).

Discrimination: Removal of Dog from Pregnant Police Dog Handler

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

Was it a detriment for a police dog handler to have her dog removed from her when she was no longer operational due to pregnancy?

Yes, held the EAT (Langstaff P presiding) in Metropolitan Police v Keohane, the removal of the dog, called Nunki Pippin, which was apparently permanent, produced a risk of an impact on career progression and loss of overtime on the Claimant's return, and so was a detriment. The EAT noted, as was accepted, that the loss of a dog as a companion would give rise to an 'unjustified sense of grievance' which could not lead to a detriment.

Whilst the Police's need to keep a search dog operational might have been the major factor in the removal decision, that did not mean that the Claimant's pregnancy was not a cause of it. The Tribunal's findings of fact were that the Claimant's pregnancy had been a factor in the decision, rather than "merely the context within which the circumstances had arisen". The detriment did not need to be caused solely, or even mainly, by a discriminatory motive, it was enough that pregnancy was a significant and material influence on the decision.

The EAT rejected a contention that the use of the words 'because of' in section 18 of the Equality Act 2010 required a 'narrow' or 'broad' approach to causation in detriment cases; causation was a finding 'robustly to be made', but it went on to say that if that was wrong, it would prefer a broad approach, citing the Equal Treatment Directive 2006/54/EC, which uses the term 'related to', broader than 'because of'.

The EAT overturned the employment tribunal's dismissal of an indirect sex discrimination complaint arising from the dog's removal, noting that the policy of removing dogs without guaranteeing their return to handlers would have a differential impact on one gender as a whole, so it would be indirectly discriminatory, although it may be open to justification. The Claimant sought no extra monetary compensation for indirect discrimination and the EAT put a stay on remission pending a decision on the Police's appeal on the direct discrimination point.

Discrimination: Dismissal after end of maternity period

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

Does dismissal for absences due to post-natal depression arising after maternity leave amount to sex and/or pregnancy and maternity discrimination under s.13 or s. 18 of the Equality Act 2010?

No, held the EAT in Lyons v DWP JobCentre Plus.

By being dismissed, the Claimant was treated unfairly for a pregnancy-related illness. However, unfavourable treatment only amounts to discrimination under s.18 of the Equality Act 2010 if it occurs between the beginning of pregnancy and the end of maternity leave (the protected period). As the Claimant was dismissed after the protected period her claim under s.18 failed.

The Claimant's claim for direct sex discrimination under s.13 of the Equality Act 2010 also failed. Following the ECJ case of Brown v Rentokil, the EAT held that if a woman suffers a pregnancy-related illness which extends beyond the period of her maternity leave, the employer is entitled to take into account the period of absence after the maternity leave and compare that period with any period of sickness of a man.

Consultation: Parental Leave Regulations

The government is consulting on the draft Shared Parental Leave Regulations, which will allow parents to share the leave after birth of a baby in pretty much whatever proportions they choose.

Here is the best advice I can give:  DO NOT READ THEM.  The draft Regulations consist of 29 pages of migraine-inducing drafting, and are supplemented by two other sets of Regulations.

Since there is no way in a million years that I'm going to read them - at least, not before I really, really have to - the easiest thing to do is link to a blog by Richard Fox of Kingsley Napley which outlines the changes.

Changes to Rehabilitation Periods

Important changes reducing the rehabilitation periods under the Rehabilitation of Offenders Act 1974 came into force yesterday.

In the main, the period of rehabilitation runs from the date that imprisonment ends, rather than the date of conviction, and the periods are substantially reduced.  After the rehabilitation period, individuals are no longer required to disclose criminal convictions on job applications (subject to some exceptions).

So, for example, a 12-month prison sentence will now become 'spent' four years after the end of the sentence (rather than 10 years after conviction).

The changes are set out in section 139 of the Legal Aid, Sentencing and Rehabilitation of Offenders Act 1974 (and the commencement order is here).  The Home Office has also issued updated guidance.

But rather than read all the above, I suggest you just look at this really good summary.

Compensation for Collective Redundancy Consultation

Thanks to David Leslie of Lyons Davidson for preparing this case summary

Is the starting point for compensation for failure to inform and consult in relation to a collective redundancy situation the statutory maximum?

No, holds the EAT in London Borough of Barnet v Unison.

The Trade Union and Labour Relations (Consolidation) Act 1992 imposes a duty on employers to consult relevant trade unions where they propose to dismiss as redundant 20 or more employees. The maximum penalty for breach is a protective award of 90 days' pay for each affected employee.

Barnet carried out some consultation but admitted a breach of its obligations in relation to agency workers.

The EAT referred to Susie Radin v GMB [2004] ICR 893, which said that where there has been no consultation, the starting point for compensation should be the maximum award before considering mitigating factors. This, said the EAT, did not mean that the starting point was the maximum where some consultation had taken place.

Therefore, even though the tribunal had awarded less than the maximum in this case, it had erred by stating that it started its considerations by looking at the maximum award.

The EAT also held that in relation to a TUPE transfer, the transferee, NSL, would be jointly and severally liable for compensation for failure to inform and consult and therefore refused to apportion liability between Barnet and NSL.

Admissibility: Covert Recordings

Thanks to Peter Taheri of 5 Essex Court for preparing this case summary

If an employee hides a tape recorder and captures comments made during his employer's private deliberations during a grievance and disciplinary hearing, is that evidence admissible in an employment tribunal?

Normally yes, especially if it does not form part of the employer's deliberations on the matters in question, held the EAT in Punjab National Bank v Gosain.

The employer was alleged to have made wholly inappropriate comments about the employee when she was out the room; these had (allegedly) been captured on a covert recording.  The EAT stated the correct test is to undertake a balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance/disciplinary context.

The employment judge had correctly distinguished Amwell View School Governors v Dogherty, as the private material recorded in this case fell well outside the area of legitimate consideration of matters within the grievance and disciplinary panels' remit.

Acas Guide to Discrimination Questionnaires

Statutory questionnaires are being abolished in discrimination cases with effect from 6th April 2014 (here's the statutory instrument).

Acas has produced some useful new guidance on asking and responding to questions of discrimination in the workplace.  The statutory right to draw an adverse inference if replies are evasive or equivocal has gone (not that it did much anyway), but as a matter of common sense if an employer unreasonably fails to provide accurate answers to informal questions, the tribunal might rely on that to draw an adverse inference anyway.

(And in case that's unclear, my view is the abolition of statutory questionnaires will make not a jot of difference in the real world).

Labour seeks annulment of CRATUPEAR

An Early Day Motion has been tabled in parliament, calling for the annulment of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which came into force on 31st January 2014. Signed by Ed Milliband, Chuka Umanna and a host of other Labour bigwigs, this is an unexpected development given the lack of opposition during the consultation and legislative phases. What does it mean?  Well, for the moment, CRATUPEAR is in force.  But the Early Day Motion calls for its annulment, not just a repeal.  So it's a bit of a mess - anyone relying on the changes made by CRATUPEAR is at risk.  But since Labour doesn't command a majority of the House of Commons, the Early Day Motion is unlikely to pass. Oh dear.  Watch this space.

Part-time Judges: Backdated Judicial Pensions

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary

When does the period of reckonable service begin for the purpose of calculating the amount of pension to which a retired part-time judge is entitled?

On 7 April 2000, the date by which the Part-time Workers Directive should have been transposed into domestic law, according to the Employment Appeal Tribunal in Ministry of Justice v O'Brien.

The Supreme Court previously held that Mr O’Brien, a retired Recorder, was entitled to a pension on terms equivalent to those applicable to a circuit judge. This was pursuant to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which transposed the Directive into domestic law. The Court remitted the case to the Employment Tribunal for the determination of the amount of the pension to be awarded.

On 19 August 2013, the Tribunal held that Mr O’Brien was entitled to a pension calculated from the start of his service in 1978, even though this pre-dated the commencement of the Regulations.

On appeal by the Ministry of Justice, the EAT held that the Tribunal’s approach was wrong as a matter law. The level of pension will be the result of the gradual accrual of rights during a period of employment. However, the calculation of a pension owed to a part-time worker should include only his period of service since discrimination against part-time workers had been rendered unlawful. To find otherwise would undermine the well-established principle of legal certainty.

You can read all the case summaries - dating back to 2010 - in the part-time judges' pension saga.