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Carrying over Paid Annual Leave when Sick

Thanks to Karen Jackson of didlaw for preparing this case summary If sickness prevents a worker from taking annual leave, can the leave be carried forward? Yes, reaffirmed the ECJ in Sobczyszyn v Skola Podstawowa w Rzeplinie, in a case which doesn't really say anything new. Ms Sobczyszyn, a teacher, took convalescence leave provided by a Teachers' Charter and was unable to use her annual leave. The school said that leave had been used during convalescence. A reference was made to the ECJ on the compatibility of the domestic Polish Teachers' Charter with the Working Time Directive 2003/88/EC. Article 7(1) provides four weeks' annual leave for every worker which is a fundamental tenet of EU social law. Only on termination can payment be made in lieu. Annual leave accrues during sick leave, Stringer. If scheduled leave coincides with sickness, a worker can designate a different time to take leave, Pereda. The purpose of paid leave is rest and relaxation. Sick leave is for recovery from illness, it is not rest; annual leave can be rescheduled on recovery, ANGED. Whether leave has been scheduled or booked makes no difference: if sickness prevents annual leave, workers must be able to use annual leave at a later date.

Subconscious Direct Discrimination

Thanks to Karen Jackson of didlaw for preparing this case summary

Is failing to address, or make a finding, in relation to subconscious or unconscious discrimination an error of law?

Sometimes, held the EAT in Geller v Yeshurun Hebrew Congregation.

A husband and wife worked for a joint salary and were made redundant. Mrs Geller brought claims including direct sex discrimination. The factual matrix was far from gender neutral, however an employment tribunal found that Mrs Geller had not been treated less favourably because of her sex.

The EAT overturned the decision because:

(1) Despite facts from which discrimination could be inferred, the tribunal failed to consider subconscious or unconscious discrimination. Only if discrimination is inherent in the act complained of is the tribunal released from the obligation to enquire into the mental processes of the alleged discriminator; and;

(2) Whilst there is no requirement to apply the two-stage test in the burden of proof provisions (section 136 Equality Act 2010) in a mechanistic or formulaic way or even at all, the tribunal\'s treatment of the reverse burden provisions in the case was rudimentary at best.

The decision could not stand and was remitted.

Protected Conversations

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

Can the privilege that covers 'protected conversations' under section 111A ERA be waived?

No, held the EAT giving the first appellate judgment on 'protected conversations' in Faithorn Farrell Timms LLP v Bailey.

The Claimant, a secretary in a firm of surveyors, brought claims for constructive dismissal and indirect sex discrimination. An issue arose over admissibility of evidence under common law 'without prejudice' principles, and, for the first time on appeal, 'protected conversations' under s111A ERA for Unfair Dismissal claims.

The EAT noted that case law on 'without prejudice' discussions was not applicable to the 'protected conversations', the statute had to be read on its own terms. In this case, claims other than Unfair Dismissal not covered by s111A, the admissibility of evidence was determined under 'without prejudice' principles. Evidence may be admitted for a discrimination claim, but remain excluded regarding Unfair Dismissal.

The EAT held that the protection of s111A extends not just to the content of protected conversations, (e.g. an offer) but also the fact of them taking place, a protection broader than with 'without prejudice' discussions. Furthermore, an employer's internal discussions about a protected conversation (e.g. between management and HR advisers) could also be protected.

The Claimant's cross-appeal on waiver of privilege partially succeeded, the EAT holding that privilege had been waived under 'without prejudice' principles, but not under s111A, as that did not allow for waiver of privilege. The EAT noted that s111A can be dis-applied where there is 'improper behaviour', which gives employment tribunals a broader approach to admitting evidence that the limited 'unambiguous impropriety' required to admit in evidence without prejudice discussions. The issue of the applicability of s111A because of alleged improper behaviour was remitted for re-consideration.

The case is important for practitioners and illustrates the complicated scenarios that may arise when without prejudice and protected conversations overlap, along with issues over express or implied waiver of privilege for without prejudice discussions in proceedings.

Discrimination: Work Placements

Thanks to Will Young of Outer Temple Chambers for preparing this case summary Does section 56(5) of the Equality Act 2010 prevent a claim being brought in the employment tribunal against the provider of vocational training in respect of discrimination in the provision of that training? No, held the Court of Appeal in the case of Blackwood v Birmingham & Solihull Mental Health NHS Trust. The Claimant was assigned a work placement with the Defendant Trust as part of her University Course in Mental Health nursing. She was not able to work the shift pattern offered because of her childcare commitments, and her placement was withdrawn. The Claimant brought a claim against the Trust in the employment tribunal, relying on section 55 of the Equality Act, but the employment tribunal dismissed the claim on the basis that it was precluded by section 56(5), which, in summary, was thought to prevent claims being brought by students of universities (et al) in relation to training to which their university had the power to afford access, even where no claim could in fact be made against the university. The Court of Appeal held that section 56(5) needed to be interpreted in line with the EU Directive, reading into the subsection that a claim could not be brought in the employment tribunal against an education service provider concerning training for university students but only "to the extent that the student is entitled under [section 91] to make a claim as regards that discrimination." Thus a lacuna in the law was removed in that if a Claimant cannot, in the circumstances, bring a claim against the university arranging the vocational training under section 91 Equality Act (in the County Court), she is now entitled to bring a claim against the training provider in the employment tribunal.

Equal Pay Claims: No Power to Stay Claims in Employment Tribunal

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

Should the Asda equal pay claims in the employment tribunal be stayed, in effect compelling the Claimants to pursue High Court proceedings?

No, held the Court of Appeal in Asda Stores v Brierley.

There are currently over 7,000 equal pay claims against Asda. The claims allege the work the Claimants do is of equal value to their comparators, and yet their comparators are being paid substantially more than they are. The claims are being defended.

Asda made an application, in effect, to stop the claims proceeding in the employment tribunal. It was accepted that the employment tribunal had no power directly to transfer the claim to the High Court. But Asda contended that the employment tribunal had the power to stay proceedings indefinitely and, if it exercised that power, the Claimants would be compelled to go to the High Court if they wanted to pursue their claims.

The employment tribunal rejected the application, concluding that it had no power to impose a stay for the purpose sought and even if it did, it would not be appropriate to exercise that power in the present case. Asda's appeal to the EAT was rejected.

Asda appealed to the Court of Appeal. Asda's case was that, although, in most cases, the employment tribunal is well suited to hear an equal value claim, the present litigation was exceptional. It said that this was the most important, complex and financially significant equal pay claim ever pursued in the private sector with ramifications, not only for Asda, but the retail trade generally. It also submitted that there were very complex points of law which would need to be resolved, and a High Court Judge would be better suited to decide them than an Employment Judge.

The Court of Appeal rejected the appeal. It was true there was power to stay proceedings, even indefinitely; but this should not happen in the present case. It would be prejudicial to employees. They would have to start proceedings again with additional stress, court fees, limitation issues and the risk of costs if they lost. Finally the Employment Judge had exercised his discretion properly, and had considered all the issues. He was entitled to take the view that an employment tribunal was perfectly capable of handling the claims and it would not be appropriate to "transfer" them.

Elias LJ expressed the view that the assumption that Employment Judges would not be up to the task did less than justice to the quality of some outstanding judges who sit in the employment tribunals.

Abuse of Migrant Workers not Unlawful Discrimination

Does abuse of migrant domestic workers, on grounds of their status as vulnerable migrants, amount to unlawful discrimination? No, held the Supreme Court in an important judgment (Taiwo v Olaigbe and another and Onu  v Akwiwu and another) handed down this morning. Two Nigerian nationals, both in the UK under domestic migrant visas, were mistreated and abused by their employers (see paras 3, 4 and 8 of the judgment for the description of how they were treated). After escaping, they brought successful claims under the minimum wage (and other similar) legislation. They also sought compensation under the Equality Act, asserting they had been directly or indirectly discriminated against on grounds of their nationality. The Supreme Court disagreed. It was not direct discrimination because the mistreatment was due to their vulnerable migrant status, not because of their nationality. Nor was it indirect discrimination, because there was no ‘provision, criterion or practice’ applied by the employers to their employees. Baroness Hale suggested, in a concluding paragraph, that Parliament might consider whether employment tribunals ought to be given jurisdiction to award compensation under section 8 of the Modern Slavery Act to grant recompense for ill-treatment meted out to vulnerable migrant workers.

Acas Code does not apply to Ill Health Dismissals

Thanks to Jamie Anderson of Trinity Chambers for preparing this case summary

Does the Acas Code of Practice on Disciplinary and Grievance Procedures apply to ill health dismissals?

No it does not, held the EAT in Holmes v QinetiQ.

The Claimant was dismissed on the grounds of ill health. It was conceded that the dismissal was unfair because of the failure to obtain an up to date occupational health report. At the remedy hearing, the Claimant contended that the Acas Code applied and that due to the unreasonable failure to follow the code he was entitled to an uplift under s.207A TULR(C)A 1992.

The EAT agreed with the employment tribunal that the Acas Code did not apply. Rather, the Acas Code applies to all cases where an employee's alleged act or omissions involve culpable conduct or performance on their part that requires correction or punishment e.g. misconduct and poor performance. It was difficult to see how ill health fell into this category.

The position would be different where the ill health leads to a disciplinary issue such as a failure to comply with sickness absence procedures. In that situation the disciplinary procedure is invoked to address alleged culpable conduct.

Employment Tribunal Fees Review

The House of Common Justice Committee has published its review into Court and Tribunal Fees.  Note this is not the government review which was completed in 2015 but has not been published, about which the report is deeply critical at paras 58 and 59.

These are the key findings of the report:-
 

•  there has been a significant drop in the number of employment tribunal claims
   
• the government's assertion that the drop is largely attributable to the success of Acas Early Conciliation is "even on the most favourable construction, superficial" (para 69)
   
• fees "have had a significant adverse impact on access to justice for meritorious claims" (para 69)
   
• the 'type A' and 'type B' claim distinction did not relate to the complexity or length of cases (para73)
   
• the level of fees should be a "substantially reduced" (para 79)
   
• the remission system should be overhauled, with only one application needed (to cover both issue and hearing fees)

The report also recommends special consideration - and a review of the three month time limit - in pregnancy discrimination cases (para 79).

This report is embarrassing for the government, but has little political impact (especially as the timing of the report, three days before the Brexit vote, means it will receive very little press attention).

Supreme Court: Reinstatement after Unfair Dismissal

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

Before making an order for reinstatement, does an employment tribunal have to be satisfied that reinstatement would be acceptable to both parties?

No, held the Supreme Court in McBride v Scottish Police Authority.

The Claimant was a fingerprint officer who had been involved in a notorious Scottish Criminal case which had led to a Detective, Shirley McKie, being charged and then acquitted of perjury concerning a contested fingerprint at a murder scene. The case had generated intense media and political criticism in Scotland.

The Claimant was subsequently unfairly dismissed following a reorganisation.  The employment tribunal ordered her reinstatement under s114 Employment Rights Act, but impliedly accepted that she would be employed in a non- court going role. The employer appealed on the basis that the Claimant would not accept such a restriction.

The Supreme Court held that the only obligation under s114 was that a Claimant be restored to their contractual employment. On the facts it would be practicable to restrict the Claimant to non- court employment and there was no evidence such a restriction would be in breach of contract

A decision on very specific facts, but the judgment is a useful analysis of the principles of reinstatement and redeployment.

TUPE: Service Provision Change

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

For a service provision change TUPE transfer, there must have been, prior to the change, an organised grouping of employees, the principal purpose of which was to carry out the relevant activities for the relevant client.

In Amaryllis Ltd v McLeod the EAT considered that the principal purpose of any organised grouping of workers must be assessed at the point immediately before the change of provider, and not historically.

Millbrook Furnishings Ltd carried out work for the Ministry of Defence (MoD) for many years renovating wood and metal furniture. Between 2003 and 2008 it did so as a sub-contractor to Amaryllis. From December 2012 the MoD awarded new contracts under a framework agreement. In 2014 the furnishings renovations contract was retendered among four contractors on the framework agreement. Millbrook was unsuccessful on the retender and, instead, the contract was awarded to Amaryllis.

The question was whether there was an organised grouping of employees in place prior to the transfer to work to Amaryllis, the principal purpose of which was to carry out the activities concerned on behalf of the MoD.

It was accepted that Millbrook's employees were spending just shy of 70% of their time on the MoD renovations contract. Nonetheless the Employment Judge considered that it was appropriate to consider evidence relating to the past. The Employment Judge was satisfied that the department had originally been set up with the specific purpose of servicing the MoD contracts, and although that grouping now serviced other customers, the MoD was still the largest customer. He found TUPE applied.

Amaryllis appealed. The EAT upheld the appeal. It was not sufficient that a department carries out significant work for a client. It must be organised for the principal purpose of carrying out that work for the client. The relevant time is immediately before the transfer.

The Employment Judge was wrong to look at the matter on an historic basis. And it was incorrect to take into account work done on furniture renovation by Millbrook between 2003 and 2008 when Millbrook was a subcontractor of Amaryllis. During this time the MoD was not a client of Millbrook. Millbrook's client for this work was Amaryllis. That period could not be taken into account since, even if there were, during that period, an organised grouping of employees, the grouping concerned was not dedicated to carrying out the activities for the relevant client.

Unfair Dismissal: Procedure and Polkey

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

Can a dismissal be found to be procedurally unfair without specifying the breach of procedure?

No, held the EAT in Express Medicals v O'Donnell.

The Claimant was the minority shareholder in a company. There were discussions with the majority shareholder to negotiate an exit, after a falling out between them, but he was dismissed while the process was still continuing. The employment tribunal noted that there was an "ongoing discussion and dialogue" but found the dismissal unfair because "no particular procedure" had been followed.

The Respondent argued that this was a dismissal for some other substantial reason but neither party addressed the issue of whether the ACAS Code of Practice would apply, and nor did the employment tribunal make a finding on the point. In circumstances where there had already been some dialogue between the parties, it also failed to specify what further steps the Respondent ought to have taken.

It was a further error not to make a Polkey deduction where there had been a finding of fact that the relationship had "seriously deteriorated and could not necessarily be considered to remain tenable".

Age Discrimination and National Minimum Wage

The House of Commons library has produced a debate pack (ie briefing note for MPs) on the interaction between bands of the national minimum wage and age discrimination.

It is intended to inform intelligent discussion in a forthcoming Westminster Hall debate about the introduction of the National Living Wage alongside a new 21-24 year old age band, which has led to renewed interest in the rationale behind minimum wage age-banding, fears that workers over 25 would be discriminated against in favour of younger, cheaper, workers and concerns that workers aged 21-24 are now ineligible for the full minimum wage.

The rationale for minimum wage age banding has typically been that younger workers occupy a more vulnerable position in the labour market, with a greater need to acquire experience, and that if younger workers were eligible for the full minimum wage they might be priced out of the labour market.

Consultation: Changes to IR35 in the public sector

HMRC has issued a consultation document.

It proposes that where individuals offer services to public sector 'employers' through an intermediary, such as a limited company, it will become the public body's responsibility to operate the IR35 regime and pay the tax, rather than the individual/intermediary. This is intended to crack down on what is seen as widespread abuse of the IR35 system and resultant non payment of tax.

These proposals will not affect the operation of IR35 in the private sector.

The closing date for comments is 18 August 2016.

Muslims, headscarfs and direct discrimination

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

Is it direct discrimination for a private employer to prohibit a Muslim employee from wearing a headscarf in the workplace?

Not if the prohibition stems from a general neutrality policy, opines Advocate General Kokott ahead of the European Court of Justice's first judgment on religious discrimination under the Equality Directive, Achbita v Centrum voor gelijkheid van kansen en voor racismebestrijding.

Three years into her employment at a Belgian security company, a Muslim employee began to wear a headscarf at work despite a company rule which prohibited the wearing of any visible signs of political, philosophical or religious beliefs. She was dismissed and appealed through the courts to the Belgian Constitutional Court which posed the question to the ECJ.

AG Kokott considers that as the neutrality policy is not limited to religious beliefs, it could at most amount to indirect discrimination. Even then, it may be objectively justified as an occupational requirement, subject to a proportionality assessment based on the size and conspicuousness of the symbol, the nature and context of the employee's activity, and the national identity of the Member State concerned.

AG Kokott distinguishes this case from the finding of religious discrimination by the European Court of Human Rights in Eweida v United Kingdom, where a similar neutrality policy had not been applied consistently to individual employees.

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.