Thursday 28 February 2002

Employment Tribunal Survey

The DTI has published an extensive report (121 pages!) as a result of a survey of tribunal users in 2,700 cases.

Some examples of the findings:

• 5% of Applicants had made previous applications to a tribunal. 56% of employers had not faced a claim before;
• 7% of sex claims are brought by men. 15% of race claims are brought by white people;
• 82% of employers said written statements of terms and conditions had been issued. Only 60% of employees agreed;
• solicitors were consulted (for advice, albeit not necessarily representation) by 63% of employers and 49% of employees;
• 62% of employees who settled their cases said they definitely or probably would not have settled without ACAS involvement;
• nearly 2/3rds of employees report stress as a result of their claim, and 16% of employees withdrew their case because of stress;
• 4% of employers have a policy of always going to a hearing, irrespective of costs or merits;
• 21% of employers had made changes to their procedures as a result of the case.

Perhaps most interestingly, public sector employees:

• bring over double the number of discrimination claims as private sector employees;
• are more likely to withdraw their cases;
• are less likely to settle their cases (one might speculate that is because of the employer's approach); and,
• are less likely to succeed at a full hearing that a private sector employee.

The full report can be seen here (Adobe Acrobat required).

Tuesday 26 February 2002

Amendments to Part-Time Workers Regulations

The government has today announced two amendments to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

First, the requirement that a part-time fixed-term worker must be compared with a full-time fixed-term worker, rather than a full-time permanent contract worker, will be removed. This is because the distinction may encourage less favourable treatment of fixed-term workers, and thus is contrary to the EC Fixed Term Workers Directive.

Second, the two-year backdating limit for pension schemes in regulation 8(8) will be removed, so as to comply with the House of Lord's judgment in Preston v Wolverhampton Health Authority (which was handed down in February 2001!).

For further information, click here.

Friday 22 February 2002

Bennett v London Borough of Southwark

The Court of Appeal has, yesterday, handed down its decision in Bennett v London Borough of Southwark. Its flavour can best be gleaned from the opening words of Ward LJ, namely "This case fills me with despair" or the conclusion of Sedley LJ, namely the case is "both inexorable and deeply depressing".


Mrs Bennett, who is black, brought a race claim against Southwark in 1994. It was listed for 10 days in 1996, and then for a further 8 days in 1997. At the start of the resumed hearing, Mrs Bennett's lay representative applied for an ajournment on the grounds of Mrs Bennett's ill-health. The tribunal refused, on the grounds that the case had been very lengthy, she had already given evidence and her representative was capable of cross-examining in her absence.

The representative repeated the adjournment application and, when it was refused again, told the tribunal "If I was a white barrister I would not be treated in this way" and "If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position".

The tribunal decided to recuse itself, without giving the parties the opportunity to comment. The case was subsequently struck out on the grounds of scandalous conduct of proceedings.


Whilst the list of issues was quite lengthy, the pertinent ones are:

1. ought the tribunal have recused itself?
2. is the Applicant to be fixed with her representative's conduct?
3. was the (subsequent) tribunal right to strike out the claim for the scandalous conduct of proceedings?


1. the tribunal should not have recused itself. Its first course of conduct should have been to attempt to defuse the situation, perhaps by a short adjournment or simply by ignoring the allegation. At the very minimum, the tribunal should point out the consequences of the statement to the representative (i.e. a possible recusal) and invite him to withdraw it. Even if the statement is not withdrawn, a tribunal should be very cautious about adopting a course which involves wastage of significant costs and time. As Ward LJ put it:
"In getting on their high horse, [the tribunal] fell off the judgment seat."

2. an Applicant is not necessarily fixed with her representative's conduct. Whilst there is a presumption of agency, "a principal can always prove a want of actual authority, and I do not believe that the advocate's ostensible or implied authority, large as it is, extends (at least in the absence of ratification) to abusing the judicial process."

3. the subsequent tribunal was wrong to strike out the claim for scandalous conduct of proceedings. 'Scandalous' means, in this context, "the misuse of the privilege of legal process in order to vilify others [or] giving gratuitous insult to the court". Further, when deciding whether to strike out on this ground, one must look at the conduct of the entire proceedings, not just an isolated two sentences.

Accordingly, despite it being "a deeply unsatisfactory result", the Court of Appeal remitted the entire claim for a fresh hearing before a new tribunal.

To see the full judgment, click here.

Monday 18 February 2002

EC Agency Workers Directive

According to this morning's lead article in the Financial Times, and to BBC Radio, the EC is drawing up a Directive to grant agency workers - including 'temps' - equal rights to pay and pensions as normal employees.

This will prevent employers offering less favourable terms to those whom they hire using employment agencies as an intermediary.

It was not clear from the news reports whether unfair dismissal rights will also be extended to agency workers (thus reversing decisions such as Montgomery v Johnson Underwood and Hewlett-Packard v O'Murphy). However, since the ECJ has already held unfair dismissal rights to be part of 'pay' for the purposes of Article 141 (Seymour-Smith), it seems entirely possible that the government will be compelled to extend unfair dismissal rights to agency workers using its powers under the Employment Relations Act 1999.

The draft Directive was, apparently, due to be published on 27th February. According to the FT, it has been delayed, probably until March.

To see the FT story, click here.

South Ayrshire Council v Morton Equal Pay Act Comparators

The Court of Session has handed down its decision in the seminal Equal Pay case of Soith Ayrshire Council v Morton, upholding the decision of the employment tribunal and the EAT.

Ms Morton was the headmistress of a Scottish primary school. Primary school teachers (who, statistically, are mostly female) are paid less than secondary school teachers (who, statistically, are mostly male). She brought a claim under the Equal Pay Act 1970, citing a male headmaster of a secondary school as one of her comparators. The headmaster was employed by a different education authority (one of 32 in Scotland). However, terms as to pay are negotiated nationally, not by each education authority separately, and bind all the educations authorities.

Could an employee from another education authority be used as a comparator under the Equal Pay Act 1970?

Yes. Following the reasoning of the ECJ in Defrenne v Sabena, the scope of an enquiry under the Equal Pay Act 1970 need not always be confined to the Claimant's own workplace, or to his own employer. Where collective bargaining units exist, any employee who falls within that collective bargaining unit may relied upon as a comparator.

The decision is available from the Court of Session website, here.

[Thanks to Stuart Neilson of McGrigor Donald, solicitors for Ms Morton, for notifying me of this decision]

Wednesday 13 February 2002

Court of Appeal - Pensions Decision

The Court of Appeal has handed down its judgment in Quirk v Burton Hospital NHS Trust.

It upholds the distinction in the approach to men and women in occupational pension schemes, holding that, under Article 141 of the Treaty of Amsterdam:

• a claim can be brought under the Equal Pay Act 1970, giving effect to Article 141, in all cases where different rules are applied to men and women for access into an occupational pension scheme (irrespective of dates); but,

• claims relating to the calculation of the level of benefits under a pension scheme can only be calculated with reference to pensionable service after 17th May 1990 (the date of the decision in Barber v Guardian Royal Exchange).

The full decision can be seen here.