Extension of Time and Discretionary Factors

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

Must an employment tribunal consider the position of different Respondents separately when considering an extension of time?

Yes, held the EAT in Harden v Wootlif.

An employee bought various claims against his employer, including direct discrimination and detriment for making a protected disclosure. He also brought claims of harassment against both his former employer and against Mr Harden, the chairman of his former employer. These harassment claims were presented out of time.

The employment tribunal had to consider whether it was just and equitable to extend time under the Equality Act 2010, section 123(1)(b). The Employment Judge held that the determinative factor was the balance of prejudice. She held that the harassment claims could proceed against both Respondents as they added little to the remainder of the Claimant's claims and, that allowing the harassment complaint to proceed would add nothing to the preparation of proceedings as a whole because the fact finding employment tribunal would be bound to consider the issue as background in any event.

Mr Harden appealed. He contended that his interests should have been considered separately from that of the company which employed the Claimant. The considerations which the Employment Judge had taken into account did not apply to his circumstances.

The EAT agreed. His case could be distinguished from that of the company. He faced no other claim than that of harassment, whereas the company was subject to a number of claims. In circumstances where different considerations were in play in relation to each Respondent, the Employment Judge should consider whether to extend time on a just and equitable basis in respect of each separately.

Therefore Mr Harden's appeal was allowed. The justification for considering it just and equitable that the harassment allegations might be heard late, namely that the background would be relevant to "the remainder of the Claimant's claims", did not apply to the single claim against Mr Harden.

Consultation on Simplifying Tax Treatment of Termination Payments

This is boring but important.

The government is consulting on simplifying the tax treatment of termination payments.

At the moment, the first £30,000 of any non-contractual termination payment is free of tax and national insurance.

The government is considering:-
 

• removing the distinction between contractual and non-contractual payments (so that, eg, a PILON payment would also attract tax-free status)
• changing the fixed £30,000 tax-free sum to an amount which increases the longer an employee has worked
• introducing a two year qualifying period, so no employee can receive a tax-free termination payment unless they have been working for two years
• making injury to feelings awards (which are arguably - albeit subject to inconsistent caselaw - completely tax free) subject to tax for some or all of the award.

Although the consultation document does not specifically set out amounts or thresholds, a worked hypothetical suggests a £6,000 tax-free sum after two years' employment, increasing by £1,000 for each additional year of employment. If this is the sort of level eventually implemented, it will mean a significantly reduced tax-free sum being available for almost all employees when their employment terminates.

WWCD (What Would Corbyn Do) ?

Jeremy Corbyn, currently the joint favourite to become the next Labour leader, has published a quasi-manifesto document, 'Working With Women'. In it, he sets out the following employment law / HR related goals:-   abolishing employment tribunal fees giving all workers unfair dismissal rights from day 1 (NB he uses the word 'workers', but it's not clear whether that is in a 'workers unite, comrade' sense or a more technical employee v worker v self-employed sense) extend the 3-month limitation period for sex / maternity discrimination claims mandatory equal pay audits for all companies, irrespective of size strengthen trade union recognition and bargaining

National Security and 'Closed Material' procedure

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

Can an employment tribunal prevent an employee from giving instructions, from knowing the full gist of the case against him and from disclosure on national security grounds?

Yes, held the Court of Appeal in Kiani v Secretary of State for the Home Department.

Mr Kiani, an immigration officer, had his security clearance withdrawn and later dismissed without reason. His race and religious discrimination claims were met with a defence on grounds of national security.

The employment tribunal excluded Mr Kiani from giving instructions to his special advocate, denied him disclosure and knowing more fully the gist of the defence.

Mr Kiani's was unsuccessful at the EAT and appealed to the Court of Appeal arguing, amongst other things, that a person should always be informed of the essence of the grounds for alleged treatment and was entitled to a minimum level of disclosure.

Unanimously dismissing the appeals and rejecting application to the CJEU, the Court of Appeal held there was no absolute right to know the full gist of the case and for disclosure. Employment tribunals should decide whether the reasons to deny usual entitlements were well-founded and, if so, to strike a balance between the right to a fair trial and protection of national security.

Discrimination: Meaning of 'Unfavourable'

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

Is 'unfavourable' treatment to be equated with detriment, for the purposes of a claim of discrimination in consequence of something arising from a disability?

No, held the EAT in Trustees of Swansea University Pension & Assurance Scheme & Anor v Williams.

The Claimant took ill-health retirement, aged 38, receiving a pension as if he had worked until retirement at 67 without actuarial reduction, payable immediately upon retirement. By agreement, he had worked part-time to accommodate his disabilities. He claimed that the failure to pay him the equivalent full-time pension was unfavourable treatment in consequence of something arising from his disability.

The employment tribunal upheld his claim, equating 'unfavourable' with the concept of 'detriment'.

The EAT overturned this decision. Noting that there was no authority on the definition, it stated that 'unfavourable' is to be measured against an objective sense of what is adverse compared to what is beneficial, in contrast to 'less favourable' which denotes a comparator. This is a question of fact for the employment tribunal, and it is impossible to be prescriptive. To be eligible, an employee would necessarily have to be disabled, and they were treated favourably in comparison to a non-disabled colleague. The matter was remitted to be heard by a fresh employment tribunal.

Commons Select Committee launches Inquiry into Tribunal Fees

The Commons Justice Select Committee has launched an inquiry into court and tribunal fees, with a particular focus on whether the introduction of fees has affected access to justice. Important:This is different from the Ministry of Justice’s review of employment tribunal fees. Here are the main differences between the Justice Select Committee Inquiry, and the MOJ internal review:-   the Select Committee is taking evidence from external bodies, including court/tribunal users. The MOJ internal review is not. the Select Committee is made up of 11 cross-party MPs. The MOJ internal review is being undertaken by MOJ civil servants. the Select Committee’s terms of reference are looking at courts and tribunals generally. The MOJ internal review is only considering the impact of employment tribunal fees. the MOJ internal review’s terms of reference include assessing whether the fees regime has successfully transferred costs from the taxpayer to tribunal users. The Select Committee’s terms of reference do not include that objective.

Trade Union Bill - Consultation

You can't have missed the news (which everyone knew was coming anyway) about the consultation on a reform of strike balloting laws.

The government has published the draft Trade Union Bill, along with three separate consultation documents on ballot thresholds in important public services, hiring agency staff during industrial action and tackling intimidation of non-striking workers.  Critics are describing the proposals as a sledgehammer to crack a nut which didn't even exist in the first place.

The main proposals are:-

• industrial action will require a 50% turnout
• 40% of all eligible voters must vote in favour of industrial action which affect important public services
• the ban on using agency staff to cover striking workers will be lifted
• there will be a 4 month limit on a strike mandate, after which another ballot is required (this won't apply to ballots taking place before the Act comes into force, assuming it is passed)
• more specific requirements for the wording of the ballot paper
• banning automatic opt-ins to political donations from trade union subscription fees
• the amount of notice of a strike to be given to an employer will be increased from 7 to 14 days

The consultations are open until 9 September 2015.

EAT procedure: What is a cross-appeal?

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

Does a cross-appeal, which could be brought as an independent, free-standing appeal, have to be brought within the ordinary 42-day time limit for appeals?

No, held the EAT (unsurprisingly) in Basildon & Thurrock NHS Trust v Weearsinghe.

A cross-appeal is an appeal against a decision made on the same occasion before the same employment tribunal as the decision which is under appeal.

In this case, the employment tribunal upheld some of the employee's claims, and rejected others.  The employer appealed in relation to one finding.  Within the 14-day time limit to file a Respondent’s notice (but outside the 42 days to file a Notice of Appeal), the employee cross-appealed on one of his unsuccessful claims. The Hospital Trust argued that the cross-appeal, which was not contingent upon the matters raised by the appeal, should have been brought with the ordinary 42-day time limit under Rule 3 of the Employment Appeal Tribunal Rules 1993, and was therefore out of time.

Langstaff P dismissed this argument. First, the ordinary and normal meaning of 'cross-appeal' does not restrict the challenge to contingent matters. Second, practice to date did not support any such restriction. Third, policy considerations reinforced his decision. The fact that a cross-appellant is de facto granted extra time to appeal helps to preserve the balance between the parties and enables a dispute to be fairly resolved, while at the same time allowing for the possibility of settlement.

Indirect Age Discrimination

Thanks to Dionne Dury of Fox Whitfield solicitors for preparing this case summary

Is it indirectly discriminatory on the grounds of age to retire police officers entitled to receive a pension, in order to cut costs?

No, held the EAT in West Midlands Police v Harrod & Ors.

Police officers are not employees, and their office will only terminate (unless found guilty of misconduct or capability) upon retirement.

Regulation A19 of the Police Pensions Regulations 1987 allows for retirement of officers who meet certain criteria, if doing so is in the general interest of efficiency.

Following the Government's Comprehensive Spending Review in 2010, police forces were required to make 20% cuts in their budgets over four years. Since 80% of their costs related to staffing Forces across the country looked to reduce staff numbers.

Using A19 clearly disadvantaged officers over the age of 48 and those affected argued indirect age discrimination. Indirect age discrimination is not unlawful if justified as being a proportionate way of achieving a legitimate aim.

Overturning the employment tribunal's judgment, the EAT found the only way the forces could be certain of a reduction in officer numbers was by use of A19, since there was no power to make a police officer redundant, and their actions were therefore justified.

Carrying over Holiday Pay when Sick

Thanks to Karen Jackson of didlaw for preparing this case summary

Does an employee on sick leave have to show he was unable by reason of illness to take holiday for it to be carried forward and is the right to carry forward unlimited?

No and no, held the EAT in Plumb v Duncan Print Group Limited.

Mr Plumb, a printer, took four years' sick leave following an accident. Upon dismissal he sought payment for 60 days' accrued holiday for 2010, 2011 and 2012. The employment tribunal dismissed the claim because he was unable to show that his medical condition was the reason he did not take his leave.

On appeal the EAT overturned the finding. Article 7 of the Directive does not require a sick employee to take annual leave during the leave year or to show he was unable by reason of sickness to take the leave: he may be unable or unwilling to take it, as per the decision of the Court of Appeal in Larner and is entitled to take it at a later date. Regulation 13(9) of the Working Time Regulations 1998 must be interpreted to give effect to the Directive. Note that this case concerned only the four weeks' leave granted by Regulation 13 and not any additional leave under Regulation 13A. In Sood Enterprises v Healy the EAT held that the additional leave is not eligible for carry forward.

On timing the EAT ruled that such leave cannot be carried forward indefinitely and that it may be limited to 18 months' carry forward from the end of the leave year. The EAT held that it is clear from the wording of the Directive and the case law of the CJEU that national law is not required to allow carry forward without limit and that Regulation 13(9) should be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued. In KHS AG v Schulte the CJEU held that carry forward may expire no earlier than 18 months and held that a shorter period might also be appropriate (in that case 15 months). Note that the issue of the time period for carry forward did not arise before the Court of Appeal in Larner.

The EAT held that Mr Plumb was entitled to payment in lieu of annual leave for 2012 but not for 2010 and 2011. Permission to appeal to the Court of Appeal was granted to both parties.

Acas Early Conciliation: First Year Statistics

Acas has published statistics showing the impact of the first year of Early Conciliation.  Key statistics include:-   it dealt with over 83,000 EC cases between April 2014 and March 2015; and, three out of four employees and employers agreed to try EC in its first year of operation. Of the Early Conciliation notifications received between April 2014 and December 2014:-   63% did not proceed to a tribunal claim; a further 15% resulted in a formal COT3 settlement; and, 22% progressed to a tribunal claim of the 22% in which a claim was issued, more than half (51%) subsequently settled by way of Acas COT3. The full report should be available here very shortly.

New Acas Guide - Handling Staff Pay

Acas has issued a guide for small employers which covers the basics of employment law on staff pay.

According to Acas, the new guide ‘Help for small firms: Handling pay and wages’ can "help small and medium sized businesses stay on the right side of the law and ensure pay issues are handled correctly."

It covers matters such as how to pay new staff, different types of pay systems, wage slips, what to do during staff absences as well as wage deductions and overpayments. It breaks down the most common employment issues into a series of practical steps that a manager or supervisor can access at any time.