Work placements - discrimination

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

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Does an employment tribunal have jurisdiction to hear a discrimination claim about a work placement which is part of a university course?

No, held the EAT in Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust.

The Claimant was a student at Birmingham City University, studying for a diploma in mental health nursing. She undertook a vocational placement with the Trust as part of her course. She was a single mother and, because of her childcare responsibilities, was unable to comply with the shift patterns of the placement, leading the Trust to withdraw it. She claimed indirect sex discrimination.

Claims for discrimination in the provision of vocational training usually fall within the jurisdiction of the employment tribunal. However, section 56(5) of the Equality Act provides an exception where that training is provided through a university which "has the power to afford access" to that training. The EAT held that this provision should be construed widely and so the fact that it was the Trust which terminated the placement did not mean that the University did not have such a power.

It follows that the claim falls within the educational provisions in Part 6 of the Equality Act and has to be pursued in the county court.

Discrimination - meaning of 'employee'

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

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Does UK discrimination law meet the requirements of EU law in protecting employees?

Yes, held the Court of Appeal (unanimously) on the facts in Halawi v WDFG UK Ltd, upholding the decisions of the ET and the EAT.

The Appellant worked through her own company as a beauty consultant in a duty-free shop at Heathrow. The company managing the premises removed her airside pass. She claimed that this amounted to a discriminatory dismissal by her 'employer'.

On the employment tribunal's findings of fact, with no contract between the Appellant and Respondent, the Appellant failed to satisfy two key tests for employment with the Respondent under EU law. She had not agreed personally to perform services for the putative employer, even having a right of substitution with the shop owner, which was exercised. Furthermore, she was not controlled by the Respondent, which had no control over how the Appellant worked beyond its right to restrict her access to the workplace, so there was no subordination, a key element of employment in EU law (para. 4).

The Court of Appeal echoed the EAT's concerns over the ramifications of the judgment as leaving the Appellant with no remedy if there had been discrimination, but recognised that it was bound to so find on the facts, and rejected a request for a reference to the ECJ.

Striking out

Thanks to Sarah Fitzpatrick of Collingwood Legal for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Can a claim for unfair dismissal due to whistleblowing be struck out without hearing the evidence as to the reason for dismissal?

That would very rarely be appropriate where the reason for dismissal is the central dispute between the parties, held the EAT (Langstaff P) in Romanowska v Aspirations Care Limited.

The Claimant worked in a care home and was dismissed following an incident during which she allegedly used inappropriate physical force with a resident. At the disciplinary hearing prior to the dismissal the Claimant raised complaints about the care home's use of Agency staff. At a PHR the Employment Judge held that the Claimant's complaints may be capable of being a public interest disclosure yet proceeded to strike out her whistleblowing claim as having no reasonable prospects of success. The Claimant appealed.

The EAT held there was a real dispute of fact and to know what was in the mind of the employer at the time of dismissal (and thus what the principal reason for dismissal was) it was necessary for the employment tribunal to hear and evaluate evidence. The Employment Judge had made an error of law, the appeal was allowed and the case was remitted to a fresh employment tribunal.

Injunctions during notice period

Thanks to Grahame Anderson of Littleton Chambers for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Where a departing employee expresses unwillingness to work out the life of his contract (as distinct from post-termination restrictions) and the employer does not, therefore, continue to pay him, is the employee entitled to treat the contract as at an end such that injunctive relief to enforce the duty of loyalty may not be granted?

No, held the Court of Appeal (Underhill, Longmore and Gloster LJJ) in Sunrise Brokers LLP v Rodgers.

The employer was an inter-dealer broker; the employee was a derivatives broker. Midway through the life of his employment contract, the employee informed the employer that he wanted to leave immediately and would not continue to work. That is what he did. The employer stopped paying him.

The contract was terminable on 12 months' notice from him and contained provision for Garden Leave and post-termination restrictions.

On appeal it was accepted that:

(1) The employer was entitled to elect whether or not to accept the employee's repudiation, or to keep the contract alive. Since it chose to keep it alive, the employee remained an employee for the remaining period of his contract.

(2) Since an employee's right to remuneration depended on his being willing to work, the employee was not entitled to terminate the contract because of failure to pay.

The Court of Appeal rejected the grounds of appeal before it. They all went to the Judge's discretion to grant injunctive relief. Two key points are:

(1) It declined to go behind the Judge's finding that it was not demonstrated before him that the failure to pay would mean that the employee was, in reality, compelled to return to work for the employer or face "idleness and starvation". Employees must lead cogent evidence to this effect.

(2) The employee argued that the presence of a set-off clause between the Garden Leave clause and post-termination restrictions meant that the employer only needed 6 months of protection. As a matter of fact, the employee had had no client contact (etc) for more than 6 months. It was entitled to no further protection. The Court of Appeal decided that the Judge was entitled to have regard to what would have happened if the employee had in fact given the notice required under his contract.

Actors as workers

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

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Were actors working under a profit share agreement 'workers' for the purposes of employment legislation?

Not necessarily, held the EAT on the facts in MacAlinden v Lazarov and others.

Five actors were hired to appear in a play. They were recruited on an 'actor's contract' which remunerated them by way of a profit share. The play gained critical success but did not produce a profit. The Claimants received nothing.

On the termination of their engagement they pursued claims to the employment tribunal for payment of the national minimum wage and holiday pay. They could only succeed if they were 'workers' as defined in the relevant legislation. The Employment Judge determined that they were workers. He considered that the Claimants undertook to perform work personally. And he found that there was a sufficient degree of mutual obligations for the Claimants to be workers.

On appeal, the Respondent contended that the Employment Judge had not properly considered whether the actors were carrying out a profession or a business undertaking so that the other party to the contract was a client or a customer, this being the exception to the definition of a worker.

The EAT agreed. On the witness evidence, there was some indication at least that the actors concerned were people who were embarking on a professional business undertaking. They appeared to be actively marketing their services as an independent person to the world in general rather than being recruited to work for any individual as an integral part of that individual's operations.

In this case the Employment Judge had not applied the statement of principle set out by Langstaff J in Cotswold Developments Construction Limited v Williams to the effect that the focus must be on whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer), on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, on the other. The matter was remitted to a fresh employment tribunal.

Teachers - disciplinary procedures

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Can a teacher be disciplined by a local authority rather than her school?

Yes, held Mr Justice Supperstone in Davies v Haringey LBC.

The Claimant was employed by Haringey at a Community School for 8 years until she was elected as an NUT official. For the next 14 years she continued to be paid as a teacher of the School whilst doing the NUT task full time until she was suspended by Haringey for alleged breaches of their Code of Conduct.

The Claimant asked the High Court to rule that she could only be disciplined by the Governors of her School. Haringey however said that since the Claimant was employed by them she could be disciplined by them as well as by the School. The Judge held that whilst Governors had disciplinary powers over staff working in their School since the Claimant had not in practice worked at the School for 14 years it was Haringey which had disciplinary powers over her.

Reasonable adjustments

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

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Does an employment tribunal deciding a reasonable adjustments case have to identify the 'step' for the purposes of section 20(3) of the Equality Act 2010?

Yes, held the EAT in General Dynamics v Carranza.

The Claimant suffered from stomach adhesions. He received a final written warning in September 2011 following 206 days of sickness absence in three years, mainly caused by his disability. He was dismissed in December 2012 after a further three months of sickness, not related to his disability. A majority of the employment tribunal found that the Respondent ought to have disregarded the final written warning and so there had been a failure to make reasonable adjustments.

The EAT overturned the decision and held that the employment tribunal had failed to identify a 'step' which the employer could have taken. It doubted that the mental process of disregarding a warning is such a step, although formally revoking a warning might be. In any event, it also rejected the conclusion that this adjustment would have been reasonable.

The EAT said that it would have been easier to analyse the case as one of discrimination arising from disability because it was not really about taking practical steps to prevent disadvantage. Had the case been put that way it would have been doomed to failure because the dismissal of the Claimant was a proportionate means of achieving the legitimate aim of consistent attendance at work.

ACAS guidance on shared parental leave

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

ACAS has published a detailed guidance note on the new shared parental leave rules, together with supporting material including standard letters and a policy document. These documents are available for download here.

Polkey deductions

Thanks to Grahame Anderson of Littleton Chambers for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Was an employment tribunal's failure explicitly to identify those factors that led it to a percentage Polkey reduction an error of law?

Yes, held the EAT in Contract Bottling Limited v Cave and McNaughton.

The Claimants were made redundant pursuant to an unfair selection process. The employment tribunal reduced their compensation on the basis of a 20% Polkey reduction. In the EAT, Langstaff P reiterates core Polkey principles. An employment tribunal's role is to engage with evidence (speculative albeit) to determine the chance of a fair dismissal taking place at some point in the future. Here, the employment tribunal 'rather plucked a figure in the air'. Unsurprisingly, that is not a safe approach.

Points to note:

(1) Where an employment tribunal does set out a reasoned connection between the evidence available to it as to the likelihood of fair dismissal "there can be no legitimate ground for criticising a particular percentage unless it is manifestly less than or more than the percentage which might have seemed proper".

(2) A purely mathematical approach will rarely be sufficient. Where, as in this case, 4 out of 10 pooled employees were in the event made redundant, it is not enough to give 40% as the percentage.

Following the President's example, employment tribunals would be well advised to identify all of those factors that might increase the chance of a fair dismissal, and all of those that decrease it, in order to come to a reasoned figure. This is art, not science.

Duty of care in instigating disciplinary proceedings

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

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Can an employer be liable to an employee for breach of contract and/or negligence in initiating disciplinary proceedings without undertaking due enquiry?

Not on the facts of Coventry University v Mian held the Court of Appeal.

In this case Dr Mian was a senior lecturer employed by Coventry University. She was alleged to have written a reference about Dr Javed, her former colleague, for the benefit of Greenwich University. The reference was misleading and inaccurate and overstated the colleague's qualities and qualifications.

Dr Mian denied sending the reference in question. But a search of her computer showed drafts which were very similar. Dr Mian's case was that she was guilty of stupidity and naivety but not complicity. Dr Javed had sent Dr Mian draft references (containing the misleading information), which she had saved into her "H" drive. She had sent a shorter reference, she said, but had not saved it.

Soon after Dr Mian submitted a sickness certificate and the disciplinary hearing went ahead in her absence. At the end of the day the University dismissed the allegations against Dr Mian. Dr Mian did not return to work and she brought proceedings alleging breach of contract and/or negligence leading to personal injury. The trial Judge held in her favour.

In the Court of Appeal it was held that the Judge had identified the correct test to apply to the decision whether to commence disciplinary proceedings. This was whether the decision was "unreasonable" in the sense that it was outside the range of reasonable decisions open to an employer in the circumstances. This required an objective assessment and one that was not to be made with the benefit of hindsight.

Here the Judge was misled in eliding the question of whether it was reasonable of the University to institute disciplinary proceedings and whether, in the end, the allegations made against Dr Mian were true. The decision of the trial Judge was reversed and the University was not in breach of its duty of care.

Retirement - Lord Justice Maurice Kay

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

The Ministry of Justice has announced the retirement of Lord Justice Maurice Kay as of 1 October 2014.

Sir Maurice sat as a judge in the Employment Appeal Tribunal from 1995, and as a Lord Justice of Appeal from 2004. He was appointed vice-president of the Court of Appeal (Civil Division) in 2010 and delivered the leading judgments in many of the employment law cases heard in that court. The employment law community wishes him a happy and healthy retirement.

Armed forces discrimination claims in the employment tribunal

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

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

How should the bar to bringing discrimination claims against the MOD without having first completed their internal process be interpreted?

Purposively, in the case of the statute in question, held the EAT in Duncan v MOD (HHJ Eady presiding).

By s.121 Equality Act, the employment tribunal's jurisdiction to hear claims brought by serving armed forces members is contingent on a claimant's submission of a valid service complaint, which is not withdrawn.

By s.121(2), a service complaint is 'withdrawn' if not referred to the defence council (the last stage in the complaint process).

In compliance with employment tribunal time limits, the Claimant submitted her claim to the employment tribunal before her service complaints had reached the final stage of the Respondent's process.

At a preliminary hearing, her complaints were still at the first stage and the employment tribunal held it had no jurisdiction. The Claimant appealed.

In its submissions to the EAT, the Respondent agreed with the Claimant, accepting "a purposive construction of s. 121 [is] required to achieve a lawful balance between the statutory aim to enable the Armed Forces to determine complaints internally prior to litigation and a complainant's right of access to a Court/Tribunal within a reasonable time". The EAT agreed and allowed the appeal, concluding that "section 121(2) should be read so as to operate as a jurisdictional bar only where the right ... to make a referral to the defence council has arisen and is not exercised". 

Retirement of Lord Justice Rimer

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month. The Ministry of Justice has announced the retirement of Lord Justice Rimer, as of yesterday. Lord Justice Rimer sat as a judge in the Employment Appeal Tribunal from 2002, and was appointed to the Court of Appeal in 2007. He was involved in many of the most significant employment law cases over the last 15 years. The employment law community wishes him well in his retirement.

BIS announcements on minimum wage and employment status

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Following Vince Cable’s speech to the Liberal Democrat conference yesterday, BIS have made two new employment law announcements:

1. National minimum wage reform

The government is to propose to the Low Pay Commission that there should be a single national minimum wage rate for apprentices and 16-17 year olds, with the apprenticeship rate rising by just over £1 to match the rate for 16-17 year olds.

2. Employment status

The government has launched a “wide-ranging employment review to help clarify and potentially strengthen the employment status of workers”. According to the press release:

“Officials at the Department for Business, Innovation and Skills will today start the process of determining how clear the current employment framework is, what the options are to extend some employment rights to more people and whether there is scope to streamline this very complex area of employment law, thus simplifying and clarifying rights for both employers and employees.”

Procedural Guidance for Tribunals

The Court of Appeal has handed down guidance on the best way for Employment Judges to prepare their written reasons in cases where they sit with wing members.

See paragraph 11 of Eyitene v Wirral MBC.

In short, there is no obligation for Employment Judges to circulate draft reasons to the members for comment, unless it is a majority decision or one member has expressly asked to see the draft reasons.

Effective Date of Termination

Thanks to Jennifer Danvers of Cloisters for preparing this case summary.

Where the result of an internal appeal is that an employee’s summary dismissal is substituted for dismissal with pay in lieu of notice, is the effective date of termination changed?

No, held the EAT in Rabess v London Fire and Emergency Planning Authority.

The Claimant was dismissed for gross misconduct on 24 August 2012. Following an internal appeal, the finding of gross misconduct was substituted for misconduct. The Claimant was already on a final written warning so the penalty remained dismissal, but the decision maker found he was entitled to six weeks payment in lieu of notice (PILON). The Employment Judge found that the effective date of termination (EDT) was 24 August 2012 and that the claim for unfair dismissal was out of time.

On appeal, the Claimant relied in particular on the absence of a contractual entitlement to PILON, which rendered it a breach of contract to dismiss the Claimant without notice unless there was gross misconduct.

HHJ Richardson held that because the EDT was a statutory construction what was important was what actually happened, not what ought to have happened contractually. He distinguished Hawes & Curtis Ltd v Arfan on the basis that in Hawes the employer had expressly altered the date on which dismissal took effect following the internal appeal.