Damages for Injury to Feelings and Personal Injury

Thanks to Karen Jackson of didlaw for preparing this case summary .

Is cutting off email access for a sick employee a provision, criterion or practice (PCP) which triggers the reasonable adjustment duty? Does the Vento uplift in Simmons v Castle (CA) apply in the employment tribunal?

Yes and no respectively, held the EAT in Chawla v Hewlett Packard Ltd.

In a case of "almost unmanageable proportions" arising from three grievances, four ET1s and five preliminary hearings, the employment tribunal held that the employer was liable for a number of discriminatory acts.

The EAT agreed with the employment tribunal's decision on liability. The PCP of allowing no email access caused substantial disadvantage and triggered the duty to make reasonable adjustments. Delaying Mr Chawla's joining of the employer's share purchase plan was direct discrimination. Failure to pay a retention bonus was not discrimination, nor was forcing the employee to deal with company lawyers around his grievances, nor forbidding co-workers from communicating with him. A claim for harassment failed.

On remedy, no award had been made for loss of earnings because the liability issues established had only a "fractional influence" on the employee's illness. The employer's default exacerbated the illness but did not cause it. The EAT held that the employment tribunal had erred in making no injury to feelings award in respect of stress generated by the reasonable adjustments failure. The EAT increased the overall award from £5,000 to £8,000, but in doing so said specifically that the rationale for the uplift inSimmons does not apply to litigation in the employment tribunal.

ET1 form

The online ET1 form has been updated, so that it now has a 'save' and 'return' function.

Finally.

Repudiatory Breach of Contract

Thanks to James English of Hempsons solicitors for preparing this case summary

Is it a repudiatory breach of contract to forward an obscene and pornographic email at work?

Yes, held the High Court in Williams v Leeds United Football Club.

Mr Williams, a senior employee, brought a claim for wrongful dismissal against his former employer, an association football club. He had been dismissed, with notice, on grounds of redundancy. Within a week of being given notice, however, the Club summarily dismissed him on grounds of gross misconduct. It had discovered that over 5 years earlier, he had forwarded an email containing obscene and pornographic material (aptly described as 'dirty Leeds') to a junior female employee, and two friends at other football clubs. The club refused to pay him the balance of his notice pay, some £200,000.

Mr Justice Lewis, sitting in the High Court, dismissed the notice pay claim. Although it was clear that the club had planned to stop paying his notice pay before notice was served (knowing it to be a breach of contract) and had forensic investigators actively seeking evidence of misconduct, there was no evidence that they knew of the offensive email before redundancy notice was given. The sending of the email 5 1/2 years earlier was a breach of the duty of trust and confidence, particularly given his senior position. The nature of the images, the fact that it could amount to harassment of the female employee and the potential consequences to the club was sufficiently serious to amount to repudiatory conduct. The Club was thus entitled to dismiss him without notice.

Unfair Dismissal: Scope of Investigation in Conduct Dismissals

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

In a suspected misconduct case does an employer have to investigate every line of defence put forward by an employee?

No, held the Court of Appeal in Shrestha v Genesis Housing.

In this case Mr Shrestha was employed as a floating support worker required to travel by car to see clients at their homes. An audit of his expenses claims for a three month period in 2011 revealed excessive mileage. For example the total claim for July 2011 was for 197 miles, whereas the AA figures for the same journeys totalled 99 miles.

The Claimant asserted that the high mileage he claimed was due to a number of factors, namely difficultly in parking, one way road systems and road works, causing closures or diversions.

The employer did not put each specific journey to the Claimant and analyse the purported reasons for the additional mileage. This was because every single journey that the Claimant had made was above the AA suggested mileage. It concluded that it was simply not plausible that there was a legitimate explanation for each and every journey. The employer concluded that gross misconduct had occurred and the Claimant was dismissed.

The employment tribunal dismissed a claim for unfair dismissal, a decision which was upheld by the EAT and Court of Appeal. According to the Court of Appeal the tribunal was required to apply the test in British Home Stores Limited v Burchell, which includes the employer carrying out as much investigation into the matter as was reasonable in the circumstances. But the band of reasonable responses test applies to an investigation into suspected conduct as well as to the reasonableness of the decision to dismiss.

The Court of Appeal considered that the employer's investigation was reasonable and should not be interfered with. According to the Court of Appeal, to say that each line of defence put forward by the Claimant must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and would add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness.

Shared Parental Leave: BIS Eligibility Calculator / Resources

Jo Swinson, the Employment Relations Minister, has today issued a press release about the imminent introduction of Shared Parental Leave.  Meanwhile, the Department of Business, Innovation and Skills has developed an online calculator to help prospective parents calculate their eligibility for shared parental leave and their pay entitlements.

To learn more about shared parental leave, see the Acas Good Practice Guide or the BIS Technical Guide.

Strike Out and Detriment

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

May an employment tribunal strike out a victimisation claim based on a procedurally flawed grievance process if removal of the flaw would have made no difference to the outcome of the grievance?

Not usually, held the Court of Appeal in Deer v University of Oxford.

The Claimant, a former PHD student, appealed the dismissal at pre-trial review of her victimisation claims for a defective grievance investigation and appeal process consequent upon earlier claims.

The tribunal found there was no detriment for the purposes of a victimisation claim because it appeared to be the case that any cure of the procedure would not have made a difference to the outcome. A further appeal on a rejection of a DPA request was rejected on other grounds.

The Court of Appeal, upholding the Claimant’s appeal in relation to grievance procedure (and substituting deposit orders), held the Claimant’s sense of injustice was capable of being a detriment in and of itself. The fact that curing the procedure would have no effect on the outcome, whilst relevant to remedy, was not perilous to liability in a claim of this nature.

The Court reminded itself: “…although the concepts of less favourable treatment and detriment are distinct, there will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment.” (paragraph 26)

Tribunals' Annual Report

The Senior President of Tribunals has issued his Annual Report, which is well worth reading for first-rate summaries of what has been happening in the EAT and ETs over the last 12 months, and what is expected in the future. The relevant sections are:-   report from the President of the Employment Appeal Tribunal (Mr Justice Langstaff) - from page 70 report from the President of Employment Tribunals (England & Wales) (Judge Brian Doyle) - from page 73 report from the President of Employment Tribunals (Scotland) (Judge Shona Simon) - from page 80, with a further section on devolution issues from page 89.

'Loss of a Chance' Compensation

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

Can an employment tribunal reduce victimisation compensation because the Claimant was unlikely to be appointed to a role?
 

Yes, held the EAT in Das v Ayrshire & Arran Health Board.

During his employment the Claimant (a doctor) had made a number of complaints about treatment directed towards him and towards patients. His employment ended in 2009. In 2012, the Respondent advertised for a post and the Claimant was the only applicant. In part because of the Claimant’s history, the Respondent decided to withdraw the vacancy and made no appointment.

The tribunal held that the Respondent’s failure to interview the Claimant was because of the risk he would make a claim under the Equality Act 2010, which amounted to an act of victimisation.

However, it reduced compensation by 90%. He had performed badly in earlier interviews and had had a number of temporary roles: there were no guarantees he would get the job.

The EAT held that this decision was not perverse. There was sufficient material on which the employment tribunal could speculate about what would have happened had the Claimant been interviewed. A crucial finding was that the Respondent was prepared to appoint no one, rather than appoint someone they did not think suitable.

Annual Compensation Limit Increase

It's time for the annual increase in compensation limits, requiring us to yet again commit a series of essentially meaningless numbers to memory.

The Employment Rights (Increase of Limits) Order 2015
applies where the dismissal (or detriment, or whatever it is that is being complained about) takes place on or after 6th April 2015.

The main changes are:-

• max for a week's pay - £475 (prev £464)
• max compensatory award - £78,335 (prev £76,574)

TUPE: Organised Grouping of Employees

[Thanks to Georgina Bryan, pupil barrister at Littleton Chambers, for preparing this case summary.]

Does a single employee constitute an organised grouping for TUPE purposes where he or she has been instructed by the employer to carry out all of the activities necessary to provide the services for the client?

In the circumstances of this case, yes, held the Court of Appeal in Rynda (UK) Limited v Rhijnsburger (see, also, EAT decision) .

The Respondent had worked as an asset manager for an LLP which provided asset management services to the H20 fund. The Appellant took over provision of these services. At this time the Respondent was responsible for managing the Dutch properties in the fund. She had no other duties and was the only employee who carried out this task.

At paragraph 44 the Court of Appeal summarised the approach to service provision changes set out in the authorities as follows:

1. Identify the service the company was providing to the client
2. List the activities performed in order to provide that service
3. Identify the employees who performed those activities
4. Consider whether the company organised those employees into a grouping for the principal purpose of carrying out those activities.

In this case, the Court of Appeal held that the principles had correctly been applied, and that the fourth requirement was met as the LLP had decided that the Respondent should work full time on the Dutch properties with no significant assistance.

The Court distinguished Eddie Stobart Ltd v Moreman, as it was a “positive decision of the employer” rather than “fortuity” that resulted in the Respondent dealing with the properties. Seawell Ltd v Ceva Freight (UK) Ltd was also distinguished, on the basis that the Respondent was not part of a team. Any inconsistency between the authorities will fall to be resolved on another occasion.

Indirect Age Discrimination

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary If an employer introduces contractual changes, can those changes themselves be regarded as a provision, criterion or practice (PCP)? Yes, held the EAT in Edie v HCL Insurance. HCL had acquired employees with widely varying employment conditions after a series of transfers. They decided to harmonise their terms of employment by introducing compulsory new contracts; those who refused to sign were dismissed. Ms Edie and others argued that the change put them at a particular disadvantage compared to their younger colleagues, because before the change they had benefited disproportionately from the more valuable contractual rights that were being abolished. HCL relied on ABN Amro Management v RBS to argue that the change could not be a PCP; the PCP was the new contract, which did not in itself disproportionately disadvantage older employees. The EAT distinguished ABN v RBS, relying on the difference between a mere change between two inherently non-discriminatory policies (as in ABN) on the one hand; and the imposition of a choice between accepting new terms and being dismissed on the other. But the claim still failed, because the EAT also upheld the employment tribunal's finding that the operation of the PCP was justified.

HHJ Jeremy McMullen QC 1948 - 2015

Employment law practitioners will be saddened to learn of the death of His Honour Judge Jeremy McMullen QC, who has passed away after a period of illness. HHJ Jeremy McMullen was a resident judge of the Employment Appeal Tribunal, sitting there from 2001 and being promoted to senior circuit judge in 2006.  He sat as a deputy High Court Judge, and was vice-president of the Industrial Law Society and the Employment Law Bar Association. Before elevation to the Bench, he was an official and legal officer of the General & Municipal Workers' Union (now GMB), and a barrister at Old Square Chambers. He retired in 2013, but maintained strong contacts with the employment law community and his many friends and colleagues at the Bar and on the Bench.

Employment Status

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

Was an unremunerated director both an employee and a worker?

Yes, held the Court of Appeal, on the facts in Stack v Ajar-Tec.

Agar-Tec had three shareholders, who were each directors, one of whom was the Claimant, Mr Stack. He had no written employment contract. He also had other business interests. But for three years he devoted approximately 80% of his time on the company's business. It was common ground that he was never paid and never pursued payment. And there was no provision in the company's accounts reflecting liability to pay him.

But the Employment Judge, applying the indicia of a contract of service to be found in Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance [1968] 2 QB 497, held that there was an express agreement that Mr Stack would do work for the company and it was an implied term that he would (eventually) be paid for what he did. He therefore concluded Mr Stack was an employee. It was unnecessary to decide separately the issue of whether he was a worker, but an analysis of the relevant factors brought the Employment Judge to the conclusion that he was. The EAT reversed the decision of the employment tribunal on the basis that it was wrong to find an express contract of employment on the basis of an implied term that Mr Stack should be paid for remuneration. In its view the arrangement lacked agreed consideration.

The Court of Appeal reversed the EAT, reinstating the employment judge's decision. The company was incorporated essentially by three promoters, each agreeing to bring different things to the venture. And it was in the nature of the agreement that Mr Stack accepted some obligation to work for the company. In this particular case it was not fatal to the existence of a concluded contract that the three promoters failed expressly to agree a term concerning remuneration.

The process of contract formation may be partly express and partly by implication. Here, given the way the three directors dealt with each other, a term for remuneration could be implied in order to give business reality to the transaction and create enforceable obligations between parties dealing with each other in circumstances in which one would expect that business reality, and those enforceable obligations, to exist.

State Immunity

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

Is a member of service staff at a foreign diplomatic mission to the UK able to bring proceedings in this jurisdiction against the employing state to assert UK employment rights?

In some cases yes, held the Court of Appeal in Benkharbouche and Janah v Sudan and Libya.

The Appellants worked as service staff in the Sudanese and Libyan embassies in London. Between them, they brought claims for unfair dismissal, arrears of pay, race discrimination, harassment and claims in relation to the national minimum wage and Working Time Regulations 1998.

The Court of Appeal held that the blanket immunity from claims provided by section 16(1)(a) of the State Immunity Act 1978 went beyond the UK's obligations in public international law. ApplyingHolland v Lampen Wolfe [2000] 1 WLR 1573, if section 16(1)(a) had been a mere implementation of international law obligations, there could have been no question of a violation of Article 6 of the Human Rights Act 1998.

The Court examined a number of treaties to which the UK is party and customary international law, and concluded that a blanket ban was not required in international law and did not fall within any margin of appreciation. It was not a proportionate means of achieving a legitimate aim: attempts in the case law to justify similar bans related to the legitimate aim of implementing international law obligations. Section 16(1)(a) is therefore incompatible with the Human Rights Act. The remedy was a declaration of incompatibility.

The Court of Appeal came to the same conclusion on SIA section 4(2)(b) which bars claims where the claimant is not habitually resident in the UK.

The Court of Appeal agreed with Langstaff P in the EAT that the immunity also violated Article 47 of the EU Charter ("Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal") which, enshrining a general principle of EU law, was directly effective against the Respondents. The Appellants could therefore proceed in their claims "guaranteed by the law of the Union": claims under the WTR 1998, and claims for racial discrimination and harassment.

Redundancy: Meaning of 'Establishment'

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Does the EU Collective Redundancies Directive 98/59 require that the numbers of employees dismissed across an employer’s various establishments be aggregated to see if the thresholds for protection under the Directive are met? No, says Advocate General Wahl in Usdaw & Wilson v Woolworths and others, giving the preliminary opinion on the reference to the ECJ from the Court of Appeal in the Woolworths case (summarised here), which was heard along with the Northern Irish industrial tribunal case of Lyttle v Bluebird and a Spanish case, Cañas v Nexea. The judgment looked at the alternative methods for implementing collective redundancies under Article 1 (a) (i) or (ii). The Court of Appeal referred two questions from the ‘Woolworths’ case, the first whether the phrase in the Directive ‘at least 20’ dismissals referred to dismissals over the employer’s establishments, or the number in each establishment, and if it did refer to each establishment, what was meant by ‘establishment’? The Advocate General noted (para. 61) ‘…that directive does not require — nor does it preclude — aggregating the number of dismissals in all the employer’s establishments for the purposes of verifying whether the thresholds set in Article 1(1)(a) are met...”and noted that ‘…It is for the Member States to decide, where appropriate, to increase the level of protection… …provided that, on every occasion … it would be more favourable to the workers made redundant…’. The Advocate General recommended answering that the meaning of ‘establishment’ in the Directive was the same under Article 1 (1) (a) (i) and (ii) and ‘…that concept denotes the unit to which the workers made redundant are assigned to carry out their duties, which it is for the national court to determine…’. The Advocate General recommended not answering the Court of Appeal’s second question regarding redundant employees of insolvent companies being able to claim against the UK government for not implementing the Directive properly, without suggesting that was the case. This opinion is not binding on the full ECJ, which should rule on the questions later in the year.

Affirmation and Sickness

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

Does an employee who might claim constructive dismissal affirm the contract by claiming sick pay whilst off sick?

Not necessarily, held the EAT in Colomar Mari v Reuters.

The Claimant was a systems support analyst. She resigned after 19 months after going off sick with stress, anxiety and depression. An employment tribunal had rejected the Claimant's assertion that she had been too ill to resign sooner and dismissed the complaint on the basis of affirmation.

The EAT dismissed the appeal, the employment tribunal had correctly applied the law to the facts, with affirmation being a mixed question of law and fact, the decision was not perverse.

Whilst the EAT noted 'What can be safely said is that an innocent employee faced with a repudiatory breach is not to be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period whilst protesting about the position' the judgment stood on the facts found by the employment tribunal.

The EAT noted a previous authority, Hadji v St Luke's Plymouth, including the principle that an employment tribunal may find affirmation if an employee calls on the employer to perform its obligations under the contract. The employment tribunal found that the Claimant had done so, by accepting contractual sick pay, and requesting PHI amongst other factors.

The employment tribunal dealt with affirmation as a preliminary issue, without making findings of fact, but assuming that the Claimant had shown a fundamental breach of contract. The EAT indicated that this should be regarded as an exceptional course, in nearly all cases which go to a full hearing, it is better to determine the issues.