Employment Tribunal Rules

HMCTS and BIS have published an updated version of the tribunal procedural rules contained in Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

It incorporates the amendments to the rules since they were first made two years ago (found in SIs 2014/271, 2014/611 and 2014/787 plus two statutes), and is a slightly safer one-stop shop than the previous online version. Print it off and stick it in your Butterworths.

Pay Deductions for Strike

Thanks to Ed McFarlane of Deminos HR for preparing this case summary How much pay can an employer withhold for a day's strike by a salaried striker? 1/260th held the Court of Appeal in Hartley v King Edward VI College, not 1/365th. The appeal arose from a County Court claim by three striking teachers, alleging that their employer had withheld more pay than it was entitled to in response to a day's strike. This was not a deduction from wages case as a 'deduction' presupposes an employer not paying a sum which has been earned. Here the sum was never earned, the dispute being how to calculate it. The College based its calculation on a notional 5 day week, 52 weeks a year, making the sum 1/260th of annual salary; the teachers argued that the nature of their contract and section 2 of the Apportionment Act 1870 meant that pay accrued equally from day-to-day, and the sum to withhold was the smaller 1/365th. The Court held that the sum withheld was to be calculated on the basis of the contractual terms, and noted that although the Apportionment Act applied, it did not require the principle of equal daily accrual of salary to be applied: 'provided it is plain from the terms of the contract that the principle of equal daily accrual is not intended to apply, that should be sufficient to exclude the principle even though there may be difficulty in resolving precisely how the pay is related to the work performed' (para. 43). It was noted that the cost implications of the judgment across the education sector would be around £300,000 per strike day.

Exclusivity clauses in zero-hour contracts finally banned

Some two months after claiming that they had been banned, the government has prohibited the use of exclusivity clauses in zero-hours contracts. This and other employment law-related measures are contained in the first commencement order made under the Small Business, Enterprise and Employment Act 2015.

Coming into force today, section 153 of the 2015 Act bans the use of exclusivity clauses in zero-hours contracts. Further regulations are awaited dealing with the anti-avoidance aspects.

Other things coming into force are increasing the penalty for breach of the national minimum wage, plus more. See this excellent blog by Craig Gordon of HR Bullets, whose content I have partly reproduced above, for more details.

Status of Employee after TUPE Objection

Legal News Item goes Here Thanks to James English of Hempsons solicitors for preparing this case summary

Does the TUPE transfer of a contract of employment amount to an offer of employment?

No, held the EAT in NHS Direct v Gunn.

The Claimant (who was disabled) worked 8.5 hours a week for Shropshire Doctors on a service which was due to transfer to NHS Direct, who informed her that she would have to work at least 15 hours. She could not manage this, so asked for 10 hours. This was rejected. She objected to the transfer and was redeployed by Shropshire Doctors.

NHS Direct applied to have her disability discrimination claim struck out as she was not entitled to bring a claim - she was neither their employee nor an applicant.

The ET dismissed the application. Leaving aside TUPE, NHS Direct had made an offer of new terms to the Claimant. Hence, she was an applicant. NHS Direct appealed.

The EAT rejected the appeal but for an entirely different reason. The EAT held that the transfer of the Claimant's contract under TUPE was not an offer of employment so she was not an applicant.

However, after the hearing the EAT noted that NHS Direct had also made an "offer of suitable alternative employment" to the Claimant in light of a potential redundancy situation post-transfer. This made her an applicant. The parties were invited to make submissions on this new point. The EAT exercised its discretion to consider it, and decided that the claim should not be struck out but on different grounds.

Gay v Religious Beliefs

[Thanks to Gareth Walls of A&L Goodbody NI for preparing this case summary] Is a gay customer's rights to access goods and services more protected than the service provider's religious belief? Yes, held the County Court for Northern Ireland, delivering judgement this morning in the much debated and politicised Ashers Bakery case. The Bakery had been sued following the manager's decision to cancel an order for a cake with an image and slogan in support of gay marriage. The customer, whose case was backed by the Equality Commission for Northern Ireland, complained that the bakery should not be permitted to refuse service on the grounds of sexual orientation. The bakery argued that it was not discriminating against the customer because of their sexuality but because of the message on the cake. In her judgment, Judge Brownlie found that two directors of the bakery were guilty of direct discrimination for which there could be no justification, and breaches of regulation 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 in their failure to provide goods and services to an individual on the grounds of their sexual orientation and political opinion. The judge also confirmed that as the bakery was a purely commercial venture, the directors were not permitted to rely on the statutory exemption for organisations in relation to religious belief (pursuant to regulation 16) – highlighting that there was no reference to furthering religious values within the bakery's Memorandum and Articles of Association.  The 'Gay Cake' row has prompted a proposal to include a so called 'conscience clause' in equality legislation – a move which has already attracted political input from Westminster.

Collective Redundancy Consultation - Establishment

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Is a single retail store capable of being an 'establishment' for collective redundancy consultation purposes? Yes, held the European Court of Justice (ECJ) in Lyttle v Bluebird, answering a reference from a Northern Ireland Industrial Tribunal, arising from the closure of some Bonmarché retail outlets across the UK in 2012. More precisely, the ECJ held that for the purposes of Article 1 (1)(a) of the Directive on Collective Redundancies, which determines the triggers for collective consultation 'it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the 'establishment''. This decision follows the Court's recent decision in theWoolworths and Ethel Austin cases, holding that the definition of 'establishment' was the entity to which workers are assigned to carry out their duties, so this may be the end of line for the 'establishment' question. The Court also held that the meaning of 'establishment' was the same in Article 1 (1)(a)(i) and 1 (1)(a)(ii) of the Directive (providing consistency over the two broad methods for implementing the Directive), The Court noted that if collective consultation were triggered by the number of staff at risk across an undertaking, rather than individual establishments, it could result in employers incurring very different costs in informing and consulting staff, contrary to the EU's objective of providing comparable cost burdens across Member States, and result in individual employees at remote locations coming inappropriately within the scope of collective consultation (para. 44 & 45).

Permanent Anonymity Orders

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary Is the risk of the public believing unfounded allegations a valid reason for anonymising an employment tribunal's judgment? No, held the EAT in BBC v Roden. Whilst not directly in issue as part of the employee's claim of unfair dismissal, numerous allegations of sexual assault had been made and it would have been necessary to consider them as part of the evidence. The Employment Judge at first instance ordered that the employee's identity be anonymised throughout the hearing and again, permanently, upon promulgation of the judgment. On appeal the EAT (Simler J) recognised that, in line with the requirements of rule 50, the employment tribunal had to carry out a balancing exercise between Articles 6, 8 and 10 of the European Convention on Human Rights in determining whether to make an anonymity order. The making of such an order is not a straightforward case management order involving the exercise of a wide discretion, as 'there is a right or wrong answer in each particular case'. Simler J concluded that the employment tribunal had fallen into error because it had not carried out the balancing exercise; it focused instead on one factor, the risk of the public misunderstanding and any consequences that might have had on the employee. This of itself was not a valid factor as it was open to the employment tribunal to specify publicly in its judgment that such allegations had not been proven. The principle of the public interest in open justice attracts considerable weight and the public can be trusted to distinguish between an allegation and a finding of guilt.

Tribunal entitled to reject claim with incorrect early conciliation number

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary Was an employment tribunal entitled to reject a claim that was submitted out of time due to the Claimant entering the wrong Early Conciliation number? Yes, held the EAT in Sterling v United Learning Trust. In this cautionary tale the employee submitted her ET1 'missing some digits from the EC number, the tribunal inferred' four days before the expiry of the limitation period. It was returned to her by the tribunal office two days later, with an accompanying letter. The address cited by the office was neither that of her representative nor her home. It ultimately arrived at a neighbour's house and the employee re-submitted straightaway, albeit out of time. On appeal the employee argued that the employment tribunal was not entitled to make such an inference but the EAT (Langstaff J) disagreed. Rule 10(1)(c)(i) obliges the employment tribunal to reject a claim if the EC number is missing, although a party may apply for a reconsideration of such a rejection. No such application was made by the employee's representative, and even though he was not legally qualified the EAT said the employment tribunal was entitled to conclude that no such application was forthcoming. The representative also failed to argue that it was not reasonably practicable for the employee to have lodged the claim in time. The EAT dismissed the employee's challenge to this aspect of the judgment, making it clear that the burden was on her to prove that it was not reasonably practicable and that even if the point had not been argued originally there was a duty on the employee to ensure that the EC number was cited correctly.

New government appointments

10 Downing Street has announced the ministers filling the roles of relevance to employment lawyers. Secretary of State for Business, Innovation & Skills: Sajid Javid Secretary of State for Justice: Michael Gove Employment Minister: Priti Patel We wish them success in their new roles.

First Sift (before ET3) Strikeouts

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

Was the employment tribunal right to strike out a claim brought six years after the employment relationship ended as an abuse of process?

No, held the EAT in Higgins and Home Office & Attorney General.

The Claimant, an Immigration Officer, claimed that she had applied for a position with MI5 and that she had been harassed and victimised for raising her concerns. She was admitted to hospital suffering from an acute psychotic illness, following which she resigned.

Six years later, the Claimant claimed unfair constructive dismissal and sought compensation and reengagement. The employment tribunal rejected the claim under the new sifting process (Rule 12) as an abuse of process.

The EAT, in the first appeal on the new sift, reaffirmed that striking out a valid claim, as an abuse of process, should be the last option, Wallis v Valentine. Claims should only be rejected in the sift in the most plain and obvious cases - borderline cases should be dealt with under Rule 27 (no reasonable prospects of success).

As the employment tribunal took into account wholly mistaken factors, and failed to appreciate that the Claimant may have had significant mental health issues, the case was remitted back to a fresh tribunal to reconsider the case under the sift (Rule 12), under Rule 27, and also whether or not the Claimant had capacity to conduct the proceedings.

Acas Early Conciliation - no 'unfairness' exception

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary Can an employment tribunal hear a claim if the ACAS early conciliation requirements have not been met? No, held the EAT in Cranwell v Cullen. In this case the facts were simple. The Claimant put in a claim to an employment tribunal without previously complying with the requirement, in s.18A of the Employment Tribunals Act 1996, to supply prescribed information to ACAS. No statutory exemption from this requirement applied on the facts of the case. The Employment Judge rejected the claim on this ground. The EAT (Langstaff J) upheld that decision. This was a sad case. If her allegations were true, the Claimant had been appallingly treated, including being sexually harassed. She may have thought ACAS conciliation meant having to talk to the person meting out the treatment. And she had an interdict (injunction) out against the employer. But outside the permitted exemptions the Employment Judge had no choice. The requirement for ACAS early Conciliation was absolute and strict. There was nothing in the Employment Tribunal Rules of Procedure that allowed discretion, even in a case which attracted the fullest sympathy of the Employment Judge and the President of the EAT.

Union Representatives and Working Time

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

Is attending meetings at the workplace, in the capacity of a trade union or health and safety representative, working time for the purposes of the Working Time Regulations?

Yes, held the EAT in Edwards v Encirc Ltd.

Mr Edwards and Mr Morgan were employed by Encirc on 12 hour shifts. Mr Edwards was also a health and safety representative and Mr Morgan was a trade union representative.

They attended, respectively, health and safety meetings and trade union meetings. These finished in the late afternoon leaving Mr Edwards only 6 hours break between his meeting and the start of his night shift and allowing Mr Morgan just 9 hours between the end of his meeting and the start of his night shift. The employees argued they should, for the purposes of regulation 10(1) of the Working Time Regulations 1998, be given 11 hours rest between the carrying out of their functions at the meetings and attending on shift. The employer disputed the meetings were 'working time'.

The EAT confirmed that regulation 2(1)(a) of the WTR requires that each of the three elements in the definition of working time must be satisfied. Thus, the worker must be (i) working (ii) at the employer's disposal and (iii) carrying out his activities or duties.

The employment tribunal found the Claimants were 'working' when at meetings. But it had adopted too narrow an approach to conditions (ii) and (iii). The Claimants were not, said the EAT, required to be under the employer's specific control and direction in terms of the carrying out of their duties or activities. A wider approach was allowed, which could include where an employer has required an employee to be in a specific place and to hold himself out as ready to work for the employer's benefit, which might include attending a trade union or health and safety meetings, allowing for a broad understanding of 'benefit'.

Also, there was no requirement that the activities or duties required were those for which the Claimants were employed under their employment contracts. If they were engaged in activities that were (in the broader sense) for the benefit of the employer, arose from the employment relationship, and done with the employer's knowledge at and in an approved time and manner, that could be sufficient. Their claims were therefore remitted to the employment tribunal for re-consideration, applying this broader approach to 'working time'.

Suspending Disciplinary Hearing for Grievance

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

Is an employer obliged to put a disciplinary process on hold whilst the employee's grievance is dealt with?

No, held the EAT in Jinadu v Docklands Buses.

In this case the employee was employed as a bus driver. Owing to poor driving she was subject to disciplinary proceedings. During those proceedings the employee made certain allegations about some of the managers involved. Despite these the employer continued with the disciplinary proceedings and ultimately dismissed her. The employment tribunal found that her dismissal was fair.

On appeal the employee argued (amongst other things) that the dismissal was unfair because the employer had not put the disciplinary procedure on hold until the employee's allegations had been dealt with as a grievance. The EAT (per Supperstone J, sitting alone) emphatically rejected this point of appeal in one sentence, at paragraph 18.

Whether this one sentence can be considered an authoritative statement of the law remains to be seen, but it does at least confirm that the default position is not that a dismissal will be unfair if an employer does not postpone disciplinary proceedings where a grievance has been raised. As always, each case will depend on its own facts. Such facts may depend on the grievance(s) raised and how they relate to the disciplinary proceedings in question.

Whistleblowing: Meaning of Disclosure

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

Can disclosures that are not protected disclosures be converted into them by linking them together?

No, held the EAT in Barton v Royal Borough of Greenwich, dismissing the Claimant's appeal.

The Claimant had emailed the Information Commissioner's Office (ICO) after a work colleague at Greenwich Council informed him that a manager had insecurely emailed home hundreds of documents containing personal data. That allegation was wide of the mark, and the Claimant had not checked the basis of it with his employer, he could have done so. The Council instructed him not to contact the ICO about the matter during its investigation, but he then phoned the ICO to discuss that instruction. He was dismissed for misconduct by breaching a reasonable instruction, being already on an unrelated conduct final written warning.

The Claimant lost at the employment tribunal, the Claimant did not have a reasonable belief that the contents of his email to the ICO were true, so it was not a protected disclosure, and his dismissal was fair because of conduct. His various grounds of appeal were rejected.

The EAT rejected an argument that the Claimant's phone call to the ICO could be aggregated to his initial email, so as to make a protected disclosure, 'each disclosure must be considered separately' following Bolton School v Evans. The phone call's purpose was to seek advice on the Claimant's employment situation, it could not have been a protected disclosure, with the ICO not being prescribed for that purpose. The judgment contains a useful analysis of competing reasons for dismissal where a potentially fair reason competes with automatically unfair reasons.

The EAT declined to consider if it was illegal for the Council to have instructed the Claimant not to contact the ICO about the investigation, illegality was a new point on appeal, not raised at the employment tribunal, but it did suggest obiter that it would not have upheld that argument on the facts.

Discrimination: Focus on the Discriminator

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

Is it discriminatory to dismiss after relying upon the reports of colleagues motivated by discrimination?

No, held the Court of Appeal in CLFIS v Dr Mary Reynolds.

The Claimant lost a claim for age discrimination because it was found that the dismissing officer had no discriminatory motivation. On appeal, she argued that her claim should have succeeded because the dismissing officer had relied on a report by colleagues alleged to be motivated by discrimination.

The Court of Appeal held that a claim of discrimination against a dismissing officer should be decided by considering the motivation of that person alone. It is permissible to claim that the person making the report to the dismissing officer has committed an act of discrimination, for which the employer would be vicariously liable, but this should be pleaded separately, via an amendment if necessary.

This made no difference to the outcome of the case because the Claimant had not relied upon the allegations about the other managers. The decision of the employment tribunal was upheld