Discrimination: provision, criterion or practice

Thanks to James Medhurst of Hill Hofstetter for preparing this case summary

Does an employee have to be forced to do something for it to be a provision, criterion or practice?

No, held the EAT in Carreras v United First Partners Research.

The Claimant was disabled, having suffered serious injuries in a cycling accident. He said that it was a requirement of the Respondent that he would work late but the employment tribunal dismissed his claim on the grounds that, although there was an assumption that he would work late, there was no coercion. The employment tribunal did find that the Claimant had been placed at a disadvantage, but held that the disadvantage which it found was not the same as the one which had been pleaded.

On appeal, the Claimant described this reasoning as "an exercise in semantics" and the EAT agreed that "an overly technical or narrow approach" should not be adopted. Although a simple request cannot be a provision, criterion or practice, the Respondent in this case had done more than request that the Claimant work late. There had been an expectation and an assumption that he would do so.

Because no findings were made about the nature and extent of the disadvantage, or whether any adjustments would have been reasonable, the case was remitted to the same employment tribunal.

New Acas research paper

Thanks to Laurie Anstis for permission to reproduce the content of his blog Work/Life/Law

ACAS has just published a lengthy research paper on the effect of its conciliation processes in employment tribunal claims.

There is an enormous amount of material in the report for those interested in employment tribunal statistics.

One particularly interesting point, in light of the current debate around tribunal fees, are the reasons given (at p66 – 69) for claimants withdrawing their cases – 27% said they thought they would not win or that it would be a waste of time, 20% said that the tribunal fees (presumably hearing fees) were off-putting and 17% said they found the process too stressful.

The sample is small, but this represents some of the best information we have about reasons for the withdrawal of claims.

WTR Rest Breaks - No Injury to Feelings Award

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

Can a worker claim compensation for injury to feelings if not allowed rest breaks under the WTR?

No, held the EAT in Santos Gomes v Higher Level Care Ltd, dismissing the Claimant’s appeal.

The Claimant won compensation from an employment tribunal after her employer had failed to provide her with 20-minute rest breaks in shifts over 6 hours, breaching Regulation 12 (1) of the WTR 1998. The Employment Judge refused to award compensation for injury to feelings.

The EAT rejected a series of arguments to the effect that either UK or EU law required compensation to be paid for injury to feelings, noting that compensation to a worker for a breach of the entitlement to rest breaks was akin to a claim for breach of contract, although an award takes into account any loss sustained by the worker and the default of the employer in not allowing rest breaks. The EAT noted that a claim for compensation for damage to health might be made, e.g. if a worker were made ill by a lack of rest breaks. Nothing in the Directive or EU law provides for compensation for injury to feelings for this right, nor does UK law.

Indirect religious discrimination

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

Was it indirect religious discrimination to dismiss a teacher for refusing to leave her husband after his conviction for sex offences?

Yes, held the EAT on the facts in Pendleton v Derbyshire County Council, upholding the Claimant’s appeal against the dismissal of a claim of indirect religious discrimination.

The Claimant was a teacher of many years unblemished service. Her husband, a Headteacher, was convicted of making indecent images of children and voyeurism. The School dismissed the Claimant for failing to end her relationship with her husband. The Claimant won an unfair dismissal claim as the School failed to show that the dismissal was for gross misconduct or SOSR.

As the dismissal was based on a ‘practice’ of dismissing someone who had chosen not to end a relationship with a convicted sex offender, the Claimant alleged indirect religious discrimination; her Christian faith meant that she regarded her marriage vows as sacrosanct. The employment tribunal rejected that claim, but the EAT overturned the decision and substituted a finding of indirect religious discrimination.

The EAT held that on the facts, it was inevitable that the Claimant would be in a group (those holding a belief in the sanctity of marriage vows) that was put at a particular disadvantage by the School’s ‘practice’ of dismissing those in her situation, and there was no justification for the dismissal. The EAT noted that on these highly unusual facts, a ‘practice’ was established, and in the crisis of conscience that faced the Claimant (and others of similar beliefs) there was a ‘particular disadvantage’ and so unlawful discrimination.

Definition of Employee

Thanks to Gus Baker, pupil barrister of Outer Temple Chambers, for preparing this case summary Can an employment tribunal take account of the absence of mutuality of obligation when deciding whether an individual is an employee for the purpose of the Equality Act 2010? Yes, held the Court of Appeal in Secretary of State for Justice v Windle and Arada. The Claimants were professional interpreters who provided work for HMCTS on a case-by-case basis. They were self-employed for tax purposes and did not receive holiday or sick pay. Proceedings were brought against the MoJ for racial discrimination. The employment tribunal dismissed the claims on the basis that the Claimants were not employees for the purposes of the Equality Act 2010. Citing Quashie v Stringfellows, the employment tribunal considered that it was relevant that there was no obligation on the Claimants to accept any assignment, and thus there was no mutuality of obligation. The EAT disagreed, finding that the absence of mutuality of obligation was only relevant in considering whether a contract of employment existed, and was irrelevant to whether there was a “contract personally to do work” as specified by the Act. Restoring the employment tribunal’s decision, the Court of Appeal found that, despite the fact that demonstrating mutuality of obligation between parties was not a pre-condition for the definition of 'employment' under the Equality Act, it was a factor capable of shedding light on the nature of the relationship.

Civil Restraint Orders

According to the High Court in National Midwifery Council v Harrold, it would be desirable for employment tribunals - when they make decisions in weak claims - to consider, and make a finding on whether the claim (or application) is Totally Without Merit.

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. In an earlier incarnation of this case, the Claimant applied for a Civil Restraint Order (‘CRO’) to prevent any more claims being brought, and the High Court held that a CRO could be granted when an employment tribunal Claimant brought claims which were Totally Without Merit in the employment tribunal (notwithstanding the wording of the CPR appeared to limit CROs to Claimants who had brought such cases in the civil courts only).

The case having now returned to the High Court, the Judge commented (para 139) that she hoped employment tribunals would take notice of this suggestion. She said it would greatly help to have the views of the employment tribunal on the Totally Without Merit issue in any case in which a Respondent to employment tribunal claims applies for a CRO in the High Court.

Territorial Jurisdiction: Equality Act

Thanks to James Medhurst of Hill Hofstetter for preparing this case summary

Is the territorial jurisdiction of the Equality Act 2010 the same as the territorial jurisdiction for unfair dismissal?

Yes, held the Court of Appeal in Hottak v FCO.

The Claimants were Afghan nationals employed at a British compound in Afghanistan. They sought judicial review of their employee benefits on the grounds that they were less generous than those given to Iraqi nationals similarly employed in Iraq, which they said amounted to race discrimination.

The Court of Appeal applied the Lawson v Serco line of authorities, which is used for claims of unfair dismissal under the Employment Rights Act 1996. It noted that the Claimants were Afghan nationals who lived in Afghanistan, were recruited in Afghanistan, worked exclusively in Afghanistan, and had contracts which were subject to Afghan law. Therefore, none of the exceptions in Lawson were held to apply and there was no jurisdiction to hear their claims of discrimination under the Equality Act.

Meaning of Philosophical Belief

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

Is a belief that public service is improperly wasteful of money protected as a ‘philosophical belief’ under the Equality Act 2010?

Potentially, yes, held the EAT in Harron v Dorset Police, remitting an employment tribunal’s dismissal of the Claimant’s discrimination claim for re-consideration.

The Claimant worked for Dorset Police. He claimed a detriment arising from his profound ‘belief in the proper and efficient use of public money in the public sector’ as discrimination on the basis of ‘philosophical belief’. The employment tribunal regarded the Claimant’s belief as not protected as a ‘philosophical belief’, applying the five criteria set out in Grainger plc v Nicholson (belief in ‘climate change’).

The employment tribunal rejected the claim on the basis that it failed to meet 3 of the 5 criteria in Grainger. The EAT held that it was not clear that the employment tribunal had taken the correct approach to applying two of the five criteria in Grainger to determine if the Claimant’s philosophical belief was protected, and sent the case back for reconsideration.

The EAT noted that ‘belief’ must relate to matters that are more than merely trivial, but also cautioned against setting the bar too high. The EAT also said that the employment tribunal did not err in finding that a belief that operated merely in the workplace would have too narrow a focus to be qualify for protection. The proper approach is to apply Grainger and the statutory Code of Practice for the Equality Act to see if a belief qualifies for protection.

Repudiatory Breach by Employer

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

Does an employee's willingness to negotiate a termination package prevent a claim of constructive dismissal?

No, held the High Court in Gibbs v Leeds United Football Club.

The Claimant was the assistant manager at Leeds United. The manager he worked with was sacked. The Claimant was asked if he was interested in becoming head coach but he declined. He expected to be dismissed although he was asked to continue in his role whilst discussions were held about a consensual departure.

The Claimant was not expected to work with the new manager. He was excluded from any meaningful part in the training of the first team, which was part of his normal duties, and he was not invited to pre-season training. Instead, he was told by email that he was to have no contact with the first team and he would work with the youth academy. He resigned in response.

The High Court held that it was not a breach of contract on his part to initiate a discussion about consensual termination. The fact that he had said that he was prepared to leave if suitable terms were agreed was beside the point. He had remained ready and willing to fulfil his duties. The email was repudiatory, since it led to a plain loss of status, and he had resigned in response to that and was therefore entitled to succeed in his claim for notice pay.

Trade Union Bill receives Royal Assent and becomes Trade Union Act

The Trade Union Bill received Royal Assent today and becomes the Trade Union Act.

Key provisions are:-

• requirement for at least 50% turnout in votes for industrial action
• in certain public services, including in the health, education, transport, border security and fire sectors, an additional threshold of 40% of support to take industrial action from all eligible members must be met for action to be legal
• setting a 6 month time limit (which can be increased to 9 months if the union and employer agree) for industrial action so that mandates are always recent
• requiring a clearer description of the trade dispute and the planned industrial action on the ballot paper, so that all union members are clear what they are voting for
• creating a transparent process for trade union subscriptions that allows new members to make an active choice of paying into political funds
• ensuring that payroll deductions for trade union subscriptions are only administered where the cost is not funded by the public

The commencement date is not known; it will be brought into force by a statutory instrument in due course.

Consultation on Tipping

The Government has launched a consultation on its proposals to secure a fairer deal for workers.

The consultation paper reflects the evidence received from consumer, worker and employer groups, and sets out the Government’s proposals for the handling of tips and service charges. They include:
 

• updating the current voluntary code of practice and putting it on a statutory footing to increase employer compliance
• increasing transparency for consumers to make it clearer that suggested discretionary payments for service are discretionary and that consumers are free to choose
• preventing or limiting any employer deduction from discretionary payments for service, except for those required under tax law

In addition the Government is considering:
 

• whether to ban or restrict the levying of table sales charges on staff – a fee paid by waiting staff based on their sales during a shift
• how to incentivise and increase the prevalence of well managed tronc systems