Indirect Discrimination - Expansion in Scope?

The ECJ has handed down an important decision, dealing with indirect discrimination, in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia.

The ECJ holds that individuals can claim indirect discrimination even if they fall outside the class affected by the provision, criterion or practice.

Sound a bit dry and boring? Well, it's not, as this blog from Lewis Silkin shows. Read it.
 

Tribunal Fees - Unison loses Court of Appeal case

Thanks to Laurie Anstis of Boyes Turner for allowing me to reproduce his summary of this decision from worklifelaw.co.uk

The Court of Appeal has dismissed Unison's appeals against its judicial review applications challenging the legality of tribunal fees.

Whilst “troubled” by the sharp decline in employment tribunal claims, Underhill LJ held that:

“the case based on the overall decline in claims cannot succeed by itself. It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that that the fees payable under the Order will indeed be realistically unaffordable in some cases.”

Whilst accepting that evidence in respect of notional, rather than actual, Claimants could be relevant, Underhill LJ held that the provision in the remission regime allowing for consideration of “exceptional circumstances” meant that it could not be said that the fee system in general was so unaffordable as to mean that there was no effective remedy under European Union law.

He went on to dismiss arguments based on indirect discrimination and the public sector equality duty.

The judicial review application has failed in the Court of Appeal, but Underhill LJ noted the government’s commitment to a review of the fees regime, and observed:

“The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by Claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited.”

Unison have said that they will seek permission to appeal to the Supreme Court.

Newcastle Employment Tribunal

Newcastle Employment Tribunal is moving from Quayside to:

Kings Court
Earl Grey Way
Royal Quays
North Shields
Tyne and Wear
NE29 6AR

During the move, the tribunal will have no access to emails or telephones. The move takes place from noon tomorrow (27 August), and normal business resumes on Tuesday 1 September.

Choice of Companion at Disciplinary Hearing

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

Was the denial of choice of representative for disciplinary investigation beyond statutory or contractual entitlement a breach of the implied term of trust and confidence?

Yes, on the facts, held the High Court in Stevens v University of Birmingham.

The Claimant academic at the Defendant University was the subject of allegations regarding his role as Chief Investigator to clinical trials of patients suffering with diabetes. He was later invited to a disciplinary investigation.  His employment contract entitled him to the statutory minimum choice of representation (trade union representative or colleague).

However, he was not a member of a union, nor did he have colleagues employed by the University suitable to accompany him. He had, however, from the date of the allegations been assisted via the Medical Protection Society ('MPS') by a representative, Dr Palmer.

The court held that the University was breaching the implied term of trust and confidence by failing to permit Dr Palmer to represent him due to (a) the objective perception of inequality of arms in the circumstances, (b) the seriousness of the allegations, (c) that the MPS served a similar function to a union and (d) the Claimant had been permitted the assistance of Dr Palmer to that point.  The court went on to grant a declaration to that effect.

Social Media Dismissal: EAT declines to lay down guidance

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

Was it unfair to dismiss an employee for comments made on Facebook which he claimed were untrue?

No, held the EAT in British Waterways Board v Smith in a cautionary tale for all social media users.

The Claimant had made derogatory comments on Facebook about his managers and work, and a claim that two years earlier he had been drinking whilst on standby. During a standby period, workers were not permitted to consume alcohol. Whilst the Claimant denied that he had in fact been drinking, and claimed that the comments were banter, he was summarily dismissed on the grounds of gross misconduct as his comments had undermined the confidence his employer or the public could have in him.

Despite finding that the employer had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that the Claimant had made the comments, the employment tribunal found that the dismissal was unfair as the employer had failed to consider the Claimant's mitigation, including the point that some claims made on Facebook are exaggerated or not true.

The EAT overturned that decision and held that the dismissal was fair. The EAT said that such cases fall to be determined according to the ordinary principles of law, agreeing with Game Retail Ltd v Laws. Having found that the procedure was fair, the employment tribunal must have concluded that the Claimant's mitigation was taken into account (which the EAT thought it had), and the employment tribunal had substituted their view for that of the employer.

Civil Restraint Orders

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

Can the High Court make a Civil Restraint Order (CRO) to prevent further claims being brought in the employment tribunal?

Yes, held the High Court in Nursing & MIdwifery Council v Harrold.

The Defendant was a former Nurse, who, after being struck off the Nursing Register had brought a series of unsuccessful employment tribunal claims against the NMC and the NHS. The Claimant applied for a CRO to prevent any more claims being brought. The Defendant argued that under Civil Procedure Rule 3.11 a CRO could only apply to claims in the County and High Court, not employment tribunal claims.

The Judge decided that the power to make a CRO did not derive from CPR 3.11 but was part of the inherent jurisdiction of the High Court. This allowed the High Court to make orders to assist the administration of justice by inferior courts including the employment tribunal where the employment tribunal did not itself have the necessary power. Vexatious claims needed to be prevented in the employment tribunal just as much as in the Civil Courts, and since the employment tribunal did not have the power to make a CRO itself, the High Court could make one for it.

Fees paid by Union can be Reimbursed

Thanks to Karen Jackson of didlaw for preparing this case summary

Can the consistent application of the same rule policy or practice across a series of separate contracts amount to "a series of similar acts" where there is no continuity of employment?

Yes, held the EAT in Ibarz v University of Sheffield.

Does the fact that employment tribunal fees were paid by a union preclude a successful Appellant from recovering fees?

No, they are recoverable per rule 34A(2A) of the Employment Appeal Tribunal Rules.

Dr Ibarz taught Spanish and Latin American Studies at the university between 2004 and 2013 under a series of fixed-term contracts which the employment tribunal held did not amount to continuous employment since there were gaps between the periods. Most of the complaints brought under the Part-Time Workers Regulations 2000 and the Fixed-Term Employees Regulations 2002 were out of time unless he could demonstrate that events in the last contract in May 2013 were part of a series of similar acts or could be shown to be extending over a period per sections 48(3) and 48(4) of the Employment Rights Act.

The employment tribunal held that the consistent application of the same rules, policies and practices was incapable of being sufficiently linked so as to amount to a series of similar acts. The EAT held that this erroneous finding was based on a misreading ofArthur v London Eastern Railway Ltd which was an error of law. The EAT quashed this part of the earlier decision and remitted the case.

On costs, the EAT followed the judgment in Mardner v Gardner v Others which is authority for the proposition that it would be contrary to public policy to allow a Respondent to avoid costs consequences where an insurer had met costs. In the judgment of Mr Justice Wilkie, the recent EAT decision of Goldwater and Others v Sellafield is wrong.

New Acas Guides on Equality

Acas has published three new guides on equality:-
 

• Equality and Discrimination: Understand the basics
• Prevent Discrimination: Support equality
• Discrimination: What to do if it happens

Like most Acas guides, they are detailed and set out best practice for businesses.
 

Agency Workers Regulations

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Does EU law require that an agency worker in a temporary job be given a right to apply for that job, and/or get preference ahead of an employer's permanent employees? No, held the EAT in Coles v Ministry of Defence, dismissing the Claimant's appeal and a request for a reference to the European Court of Justice. The Claimant was an agency worker for the MoD. After redeploying redundant permanent employees, the MoD filled the Claimant's role, without offering him an interview for 'his' job. Whilst the Claimant had been informed of the vacancy, as required by the Agency Workers Regulations 2010, he maintained that the failure to allow him to apply for the post, and/or to give him preference ahead of permanent employees breached his right to 'equal treatment' in basic working and employment conditions under the Temporary Agency Worker Directive. The EAT held that for agency workers, "the principle of equal treatment is confined to working time and pay", unlike the general right to no less favourable treatment of fixed-term employees. The right of agency workers to be informed of vacancies was a valuable right in itself. To refuse agency workers interviews would not breach any duty under the Directive. The EAT refused to make a reference to the ECJ on whether the Directive required employers to provide opportunities for agency workers to find alternative employment beyond giving them information on vacancies.