Summary Dismissal and Gross Misconduct

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Can an employee be dismissed without notice for disclosing confidential information? Yes, held the High Court (Whipple J) dismissing a claim for wrongful dismissal and breach of contract in Farnan v Sunderland Association Football Club. The Claimant was the Club's International and National Marketing Director.  The Club summarily dismissed him without notice, having suspended him and trawled through his work emails. The Club alleged breaches of confidence and other matters, including sending a lewd email and making derogatory comments. The Court found that the Claimant had committed serious and repeated breaches of contract by 'banking' confidential information about sponsorship bids, which he sent to his wife's private email, purportedly for administrative support but in fact to keep evidence if he ever ended up in litigation with the Club. The Claimant had also used confidential bid documents for his own purposes in seeking employment, briefed a journalist against clear Club policy, and wrongly disclosed a sponsorship agreement to a third party. This was sufficient justification for dismissal without notice. The Court noted that an email containing confidential information to a former director, David Miliband, was not a breach of contract, as on the facts it was in the best interests of the Club, at a time of crisis around the appointment of Paolo di Canio, whose politics were controversial. The Court however criticised the Club for trumping up part of its case against the Claimant, alleging that his emails had derogatory comments about the CEO, and noting that his sending a lewd Christmas card email of 10 bare-breasted women was not gross misconduct in the context of other incidents tolerated by the Club, including a birthday card sent by a co-director to the Claimant's wife saying 'Happy Birthday all the breast', which the Club's CEO appeared to have accepted as a typo, requiring more care in future. This is a case of 'two halves', with employment tribunal proceedings for unfair dismissal stayed pending the outcome of the contractual case.

Part-Time Pensions

Thanks to Sandy Kemp of Clyde & Co for preparing this case summary Can the purposive interpretation obligation for the construction of statutory provisions to give effect to EU Directives (theMarleasing principle) extend to the deletion of a key provision? No, held the Inner House of the Court of Session in The Advocate General for Scotland v Barton. Lady Smith held that the proposed rewriting of the statute would distort a piece of primary domestic legislation to such an extent that it would not be an appropriate application of the Marleasingprinciple. “...there are limits to what can be done by the court to amend the expressed will of Parliament as set out in its legislation and care has to be taken to ensure that the court does not legislate under the guise of reading down.” This decision stands in stark contrast to the decision of the EAT in Bear Scotland v Fulton and others. The Inner House is the equivalent in Scotland to the Court of Appeal, and the case gives some support to those seeking to argue that in this respect Bearwas wrongly decided.

Discrimination: Instruction to speak English not discrimination

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Was an instruction to a non-native English speaker not to speak in her native language at work discriminatory? No, held the EAT in Kelly v Covance Laboratories Ltd, dismissing the appeal. The Russian-born Claimant alleged that she had been subjected to discrimination and harassment on the grounds of race or national origin. The Claimant was instructed not to speak Russian at a laboratory involved in animal testing, her conduct in leaving her work station and talking on her phone gave the Respondent cause for concern that she might be an animal rights infiltrator. The Respondent's language policy operated in the context of the Respondent's requirement for its English-speaking managers to understand conversations for security reasons. On the facts found by the employment tribunal, the policy of requiring only English to be spoken at work was not applied because of the Claimant's race or national origin, but her behaviour at work in the context of that particular working environment, it was neither direct discrimination nor harassment, and there was no evidence that the instruction had caused any harassment. The EAT held that the employment tribunal had properly directed itself in law and made permissible findings on the facts. Whilst it can be direct discrimination or harassment to ban the use of a foreign language at work, a comparator speaking any other language apart from English would have been treated in the same way as the Claimant. The EAT rejected an argument, seeking to follow Dziedziak that there was an intrinsic link between the instruction and the Claimant's national origin as she had been instructed not to speak in her 'native Russian', the Respondent's explanation demonstrated no link to national origin in the complained of treatment.

Mitigation of Loss

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

The EAT (Langstaff P) has summarised the main principles in decisions on mitigation of loss in Cooper Contracting Ltd v Lindsey.

The Claimant carpenter was found unfairly dismissal and awarded losses on the basis he was entitled to have commenced true self-employment post dismissal but there were better paid employed opportunities "out there".

The Respondent's grounds of appeal argued inadequate reasoning by the employment tribunal, stating the Claimant had not reasonably mitigated his loss between dismissal and the hearing.

Dismissing the appeal the EAT summarised the legal approach to mitigation:-

- the burden of proof is on the wrongdoer - not the Claimant - so, without the former submitting mitigation evidence, the employment tribunal has no obligation to make a finding;

- the Claimant must be shown to have acted 'unreasonably', not necessarily 'not reasonably';

- determination of unreasonableness is a question of fact, taking account of the Claimant's views and wishes, though assessment is objective.

- the employment tribunal should not put Claimants on trial as if losses were their fault;

- the employment tribunal's approach is: "It is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate";

- failure to take better paid jobs do not necessarily satisfy the test.

Negative References and Disability Discrimination

Thanks to Karen Jackson of didlaw for preparing this case summary

Did a tribunal err in its approach to the burden of proof when it required a Claimant to show that the only inference which could be drawn from a negative oral reference was that discrimination had taken place?

Yes, held the EAT in Pnaiser v NHS England and Coventry City Council.

Focussing on paragraph 122 of the employment tribunal judgment, the EAT found that the employment tribunal had imposed an impermissibly high hurdle on the Claimant and one which went beyond the requirements of sections 136(2) and (3) of the Equality Act to raise merely a prima facie case.

The employment tribunal had also failed to consider whether there was a link between Ms Pnaiser's sickness absences at the Council and her manager Ms Tennant's adverse assessment of her suitability for a role with NHS England due to disability-related sickness absence.

The EAT found that the Claimant had made a prima facie case which shifted the burden to the Respondents and substituted findings of unlawful disability discrimination pursuant to section 15.

On the EAT's findings the unfavourable oral reference was given partly in consequence of sickness absence which arose from disability and was therefore in breach of section 15.

The case was remitted for remedy.

Disability Discrimination and Reasonable Adjustments

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

Should the duty to make reasonable adjustments under s.20 of the Equality Act be abolished?

No, held the Court of Appeal in Griffiths v Secretary of State for Work & Pensions.

The Appellant was an administrative officer who suffered from post-viral fatigue and fibromyalgia. She asked the Respondent to withdraw the warning issued after a 66-day absence from work, mostly attributable to her disability, and to modify the policy for the future so that she could have longer periods of absence without sanction than would be permitted to a non-disabled employee. The Respondent refused, and the Appellant complained of a failure to make reasonable adjustments required under the Equality Act.

The provision, criterion or practice (PCP) relied on was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” The employment tribunal and EAT felt bound by the perplexing decision of the EAT in Royal Bank of Scotland v Ashton to hold that the PCP did not put the Appellant at a disadvantage compared with those who were not disabled, because a non-disabled employee absent for a similar period would have been subject to the same process. Hence no s.20 duty arose.

The trouble with Ashton was that it abolished the duty to make reasonable adjustments at a stroke. If the correct comparator is a person on whom the practical effects of a PCP are the same as they are on the disabled person, no s.20 duty can ever arise: the devoted pet-owner’s dinner is as much disrupted by the restaurant’s ban on dogs as the blind diner’s.

Though dismissing the appeal (for other and less interesting reasons), Elias LJ has finally laid Ashton to rest.

Discrimination: Less Favourable Treatment and Assessing Compensation

Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary

Was an employment tribunal entitled to find that part-time judges of the Residential Property Tribunal had been less favourably treated than their full-time comparators in respect of payment for judgment writing? And was the employment tribunal entitled to take a rough and ready approach to the quantification of the extent of the less favourable treatment?

Yes, on both counts, held the EAT in MOJ v Burton & Engel.

The Claimants (who had been appointed as Lead Claimants) were both former judges of the Residential Property Tribunal who alleged that they had been less favourably treated than their full-time comparators "full-time salaried judges of the First-Tier Tribunal (Tax Chamber)" in respect of payment for judgment writing in Leasehold Valuation Tribunal cases.

The employment tribunal upheld their claims and went on to determine that the Claimants were, subject to mitigation of loss arguments, entitled to be paid two-thirds of a daily sitting fee for each day they spent sitting on a substantive case. The MOJ appealed on both liability and quantum.

In dismissing the appeal President Langstaff held that the fact that Tax Judges were entitled to be paid for judgment writing as a right, whereas the Claimants were subject to a discretionary system, was sufficient to establish less favourable treatment.

As to the employment tribunal's approach to quantification, President Langstaff held that the figures reached as a result of a broad brush assessment could not be said to be manifestly too low.

Mr Engel succeeded in various aspects of a cross-appeal and on that basis the case was remitted to the employment tribunal.

TUPE and short term contracts

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

Are events following a putative service provision change relevant in determining whether it was the client’s intention that the contract awarded be short term, and caught by the short term task exception?

Yes, held the EAT in ICTS UK Limited v Mahdi.

ICTS had a contract to provide security services to Middlesex University at one of its former campuses. Middlesex sold the site but ICTS continued as service provider. The new owner then put the security service out to tender. Mr Mahdi lost his job when the contract was taken over by a new contractor, First Call.

First Call disputed there was a TUPE transfer on a number of grounds, one of which was that, whereas ICTS had a contract to secure an operating site, First Call had a contract simply to look after the site pending its redevelopment by the new owner. The new contract was, therefore, First Call said, a contract for a single specific task of short term duration and so excluded from being a service provision change by virtue of TUPE, Reg 3(3) (a) (ii).

The exclusion only applies, however, where it is the client’s intention that the activities concerned are to be carried out in connection with a task of short term duration. An Employment Judge accepted First Call’s argument that when the contract had been granted it was the intention that the contract was to be for a limited period, to look after the site pending construction.

But by the time of the hearing no planning permission had been obtained and no building work had commenced. On appeal, the EAT said this may have been relevant, and should have been taken into account by the Employment Judge. The Employment Judge therefore erred in law in not doing so, and the case was remitted for a re-hearing by the employment tribunal.

Given that the EAT has previously decided, in Robert Sage Ltd v O’Connell [2014] IRLR 428 that an intention is more than a “hope and wish”, subsequent events, held the EAT, can be relevant in deciding a client’s intention for the purposes of Reg 3 (3) (a) (ii).

New Government Guide: Transgender Staff

The Government Equalities Office has today published a new guide for employers on Recruitment and Retention of Transgender Staff. It is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also intended as a guide for the managers of transgender staff and for transgender staff themselves.

Practice and Procedure: Amendment to Claim and Acas Early Conciliation

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary When an employment tribunal claim is amended to add a new cause of action, is fresh early conciliation required? No, held the EAT in Science Warehouse Limited v Mills. Ms Mills resigned her employment with her employer whilst on maternity leave. She made various allegations under the Equality Act 2010 and went through early conciliation. No settlement was reached and ACAS issued an EC certificate. The Claimant then presented an employment tribunal claim form (ET1) complaining of discrimination on account of pregnancy or maternity contrary to the Equality Act 2010. This was defended by the employer. The employer also said in its ET3 that, had she not resigned, the Claimant would have been subject to an investigation and potential disciplinary action in relation to a conduct issue. When the Claimant received that response, she made an application to amend her claim to include a complaint of victimisation in respect of the employer's allegation against her in the ET3. The employer objected to the amendment on the basis that the Claimant had not gone through the early conciliation procedure in relation to that added claim. The EAT held however that section 18A of the Employment Tribunals Act 1996 did not require that the EC process be undertaken in respect of each claim, as it used the broad terminology of "matter". When a Claimant had lodged a previously valid employment tribunal claim following an EC reference and was applying to amend to add a new, but related, claim, this was a matter for the employment tribunal's general case management powers and a fresh application for early conciliation was not necessary.

Tribunal Procedure: Use of Interpreters

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Was it wrong for an employment tribunal to proceed with a hearing where an interpreter had previously been requested but did not attend?

No, held the EAT in Hak v St Christopher's Fellowship.

The Claimant, who had some command of English, wanted to be assisted by an interpreter and requested one in advance of a hearing, but none were available. At the outset of the hearing, the Employment Judge asked the Claimant whether he wanted to proceed, to which he replied that he did. The Claimant appealed when his claim was struck out.

While reluctant to give any prescriptive guidance, the EAT said that in cases such as this, giving a choice of proceeding, or alternatively waiting until an interpreter may be found if one can be, provides a reasonable opportunity for litigants to have an interpreter if they wish. A judge must be satisfied that the litigant's understanding of that issue is sufficient for the choice to be real.

However, there may be circumstances where the litigant's command of English is so poor that they simply cannot give the account which they would wish to give. In such a case, it may be insufficient to offer the litigant the choice of whether to proceed on that day, or to wait until a later date when an interpreter might be found.

Discrimination and Time Limits

[Thanks to Bruno Gil, pupil barrister of Old Square Chambers for preparing this case summary]

Can an employment tribunal consider complaints of different types of discriminatory conduct when considering whether there is an act extending over a period?

Potentially yes, held the EAT in Robinson v RSCH.

The Claimant, a nurse with a disability, was dismissed following a capability hearing. She brought a claim complaining of various acts of direct disability discrimination, disability related harassment and a failure to make reasonable adjustments. These complaints related to various acts of the Trust in 2011/12 and then her dismissal in 2013.

The employment tribunal, when determining whether there was a continuing act in time, considered each of the causes of action (direct discrimination, harassment and failure to make reasonable adjustments) separately. It held on the facts that the dismissal was not part of a continuing act and that the claims were accordingly out of time.

The Claimant’s primary case on appeal was that the employment tribunal had erred in considering each complaint separately when determining whether there was a continuing act of discrimination. On the facts, the EAT held that the employment tribunal was entitled to form the view that there was no link between the earlier acts and the decision to dismiss, so that the point was academic.

The EAT went on to state (obiter), however, that when considering whether a Claimant has made out a prima facie case that the acts of which she complains amount to conduct extending over a period, it might be appropriate to allow complaints of different types of discrimination to be taken together as constituting conduct extending over a period. The example given was where there are complaints of 1) direct discrimination for putting the Claimant on specific, undesirable shifts; and 2) a failure to make reasonable adjustments to put the Claimant on different shifts.