Monday 23 December 2002

Manner of Dismissal Damages - McCabe v Cornwall County Council (Court of Appeal)

The Court of Appeal has today handed down its decision in cCabe v Cornwall County Council (CA, 23rd December 2002).

Readers will be delighted to know the law on manner of dismissal remains as confused as ever, despite the valiant attempts of the Court of Appeal to analyse and distinguish the existing cases of Johnson v Unisys, Gogay v Herts County Council and Eastwood v Magnox.

All three Lord Justices (Auld, Brooke and Sedley LJJ) point to the difficulties in understanding this area of law. Sedley LJ comments on the absurdity (my word, not his!) of an employee being able to recover substantial damages at common law if his employment terminates because of psychiatric trauma caused by the implied duty of care, but as soon as the employer's conduct becomes serious enough to be a breach of trust and confidence, his leaving "becomes a matter of constructive dismissal and his loss becomes subsumed in his limited statutory rights."

The decision is worth reading, if only as a summary of the distinction the courts are drawing become breaches of trust and confidence prior and separate from dismissal, in which case it seems actions can be brought in the civil courts for substantial sums of damages, and breaches of trust and confidence prior to but bound up in dismissal, in which case the remedy is for unfair dismissal - with all the compensation caps that entails.

Saturday 21 December 2002

Injury to Feelings - Court of Appeal

[Two job advertisements for the Citizens Advice Bureaux specialist support unit in Wolverhampton appear below]

The Court of Appeal has handed down its decision in Vento v Chief Constable of West Yorkshire Police (CA, 20th December 2002).

This is likely to become the lead case on the assessment of damages in discrimination cases.


Ms Vento always wanted to be a police officer. She was initially prohibited from joining the force due to the height requirement. When this requirement was relaxed in 1995, she joined the force as a probationary constable, aged 28. At that time, she was married with three children.

After about two years, a series of incidents occurred which led to a number of criticisms being made of her, eventually leading to her dismissal on grounds of lack of honesty and lack of performance. The employment tribunal found this was less favourable treatment which would not have occurred if Ms Vento were a man, and found in her favour on liability for sex discrimination.

Injury to Feelings

The employment tribunal noted she had been put through "four traumatic years" of bullying, leading to clinical depression. She then had the "shock and disappointment" of dismissal, a total of 22 days in the tribunal "in which her private life was subject to minute scrutiny", the uncertainty of an appeal on liability and the loss of "a satisfying and congenial career". They awarded £50,000 for injury to feelings.

The Employment Appeal Tribunal held this was plainly excessive, having regard to authorities such as Tchoula v ICTS and Armitage v Prison Service. It halved the award, substituting a figure of £25,000 for injury to feelings.

The Court of Appeal agreed that £50,000 was plainly too high. Mummery LJ, giving the leading judgment, stating that:

"45. This is the first time for many years that the Court of Appeal has had the opportunity to consider the appropriate level of compensation for injury to feelings in discrimination cases..."

Mummery LJ went on to point out that the total award to Ms Vento of £74,000 (which included the award for aggravated damages and personal injury general damages):

"61. in excess of the JSB Guidelines for the award of general damages for moderate brain damage, involving epilepsy, for severe post-traumatic stress disorder having permanent effects...and for total deafness and loss of speech. No reasonable person would think that that excess was a sensible result. The patent extravagance of the global sum is unjustifiable as an award of compensation."

He set out three bands of damages for injury to feelings (at paragraph 65):

"i. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment...This case falls within that band...

"ii. The middle band of between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.

"iii. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings."

The Court of Appeal accordingly substituted an award for injury to feelings of £18,000.

Aggravated Damages

The employment tribunal thought the police force's conduct to be high-handed, warranting an award of aggravated damages. Reasoning included that no apology had been made by the officers concerned, that the police force had unreasonable condemned Ms Vento as dishonest, that the Deputy Chief Constable attended the tribunal to apologise, but when questioned it transpired he had not read the tribunal's decision and did not know what he was apologising for.

The employment tribunal awarded £15,000, on top of the £50,000 for injury to feelings, as aggravated damages.

The Employment Appeal Tribunal thought this was too high, and substituted an award of £7,000.

The Court of Appeal again had regard to the totality of the award compared with damages in personal injury cases. It reduced the award yet further, to £5,000

General Damages for Personal Injury

Ms Vento developed clinical depression and an adjustment disorder, which lasted for three years. Basing its decision on the JSB Guidelines, the employment tribunal awarded £9,000. The EAT held this a reasonable assessment and did not interfere. It did not form part of the appeal to the Court of Appeal, and therefore stands.

Damages for Future Loss of Earnings

The employment tribunal awarded Ms Vento £165,829 for future loss of earnings, on the basis that she was now only able to work in a clerical capacity, whereas if she had not been driven out the police force there was a 75% chance she would have remained there until retirement.

The EAT overturned this. It stated that the employment tribunal had failed to give sufficient regard to statistics showing that only 9% of female police constables remain in the police force for 18 or more years.

The Court of Appeal reinstated the employment tribunal's award. It held that the employment tribunal had taken that statistic into account, but rejected it on various grounds (including that the statistics were out of date, relating to a period before the police force introduced family friendly policies, and also that Ms Vento was incapable of having more children and therefore she was different from other female police officers who might give up their careers to have children). This section of the judgement is really a decision on the facts and does not lay down any principle of law.

Friday 20 December 2002

Disclosure Orders

The EAT, in Ken Read v Dawson & Ette (Burton P., 11/11/02), has made some interesting observations on a tribunal's interlocutory powers when considering applications for discovery and inspection.

The principles to be drawn from Burton P.'s decision include:

(a) an order (or refusal of an order) under regulation 4(5)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, namely requiring the attendance of any person to give evidence or produce documents, is not a 'decision' of a tribunal within the meaning of the rules. A tribunal therefore has no jurisdiction to review the order (or refusal of the order);

(b) nor should such an application be renewed, if it has earlier been refused, unless fresh circumstances to exist. A party who unsuccessfully seeks such an order is not entitled to a second bite at the cherry without good reason;

(c) when deciding to order disclosure of particular documents under regulation 4(5)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, tribunals should have regard to the overriding objecting. This is not to say that the Civil Procedure Rules are deemed to be incorporated into the tribunal proceedings, notwithstanding the express reference to rule 31 of the Civil Procedure Rules 1998 in regulation 4(5)(b); there is no requirement in a tribunal for an application for discovery to be supported by formal evidence or a statement of truth.

Wednesday 18 December 2002

Extension of Young Worker Protection

The government has today announced regulations to limit working hours of young workers, to come into force on 6th April 2003.

The new laws apply to workers between school-leaving age and 18, and limit working time to:
• 40 hours per week;
• 8 hours per day; and,
• night working prohibited between 10pm - 6am or 11pm - 7am.
These regulations are being introduced following the government's consultation over the summer (see bulletin dated 14th June 2002).

A further amendment is being made to the Working Time Regulations, so that all overtime (not just guaranteed overtime) is included in the calculation of average nighttime working limits. This affects all workers, not just those under 18,

DTI Guide to TUPE

The DTI has, this evening, published a summary guide to TUPE. It deals with current law, not the proposals we are all awaiting.

Tuesday 17 December 2002

Continuity of Employment

The Court of Appeal has overturned the EAT's decision in Curr v Marks & Spencers plc (see bulletin dated 9th April 2002 for the EAT decision).

An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.

The Court of Appeal has overturned that decision, holding (reluctantly) that continuity of employment was broken during the four year Child Break gap. Because the M&S Child Break scheme involved a resignation from work (albeit with a guarantee of re-employment at the end of four years), there was no way in which Ms Curr could be regarded as "continuing in the employment of her employer". The very fact she resigned showed she was not continuing in employment. The position might have been different if there had been an agreement or custom that she remained regarded as employed for the purpose of, for example, pension arrangements - but this was not the case. Therefore she lost the benefit of 17 of her 25 years' service for the purpose of calculating her redundancy payment.

Wednesday 11 December 2002

New EAT Practice Direction

The new EAT Practice Direction has now been published. It came into force on Monday (9th December).

Some practical points to note:
• the Notice of Appeal must state the order the Appellant will ask the EAT to make (as well as the grounds of appeal);
• it is now the responsibility of the parties, and ultimately the Appellant, to prepare the appeal bundles (this was previously done by EAT staff). Practice Direction 6 sets out the required contents of the bundle. For preliminary hearings, four copies of the bundle must be lodged at least two weeks before the hearing. For full hearings, four copies of the bundle must be lodged at least seven weeks before the hearing.
• cases will be considered on paper to sift them into one of four categories:
1. rule 3(7) cases - i.e. where the EAT lacks jurisdiction and the appeal is rejected summarily;
2. cases requiring a preliminary hearing
3. cases that can go straight to a full hearing; and,
4. cases that go straight to a full hearing, but are fast-tracked. This will normally include appeals against interlocutory decisions, appeals where the outcome of other cases will depend on the decision or appeals involving a reference to the ECJ or a declaration of incompatibility under the Human Rights Act
• Skeleton arguments must be lodged at least 10 days (previously 7) before a preliminary hearing, or 21 days (previously 14) before a full hearing. The Appellant must include a chronology with its skeleton.
• transcripts will not be provided of decisions where reasons are given verbally at the hearing
The Practice Direction is set out below.

Liversidge - House of Lords refuses Appeal

The House of Lords has refused permission to appeal in Chief Constable of Bedfordshire v Liversidge [2002] IRLR 651.

The law is therefore settled. Under the Sex Discrimination Act 1975 and the Race Relations Act 1976, the Chief Constable of a police force is not liable for sex or race harassment upon a police officer by other officers in his command. (note: Liversidge dealt with the RRA, but the position was confirmed as identical for sex discrimination in Chief Constable of Cumbria v McGlennon (15/7/02).

The position with respect to race has been amended with respect to discrimination occurring after April 2001 (in which case, the chief constable is now liable) - but it remains the case that a female police officer cannot claim sex discrimination arising out of harassment by one of her colleagues.

Christmas Gift from the Croydon Tribunal

The regional chairman in Croydon has directed that in any cases where an IT3 is due to be filed between 21st December 2002 and 4th January 2003 (inclusive), time is extended to 14th January 2003.

This does not apply to Originating Applications.

Whilst I have not seen a copy of the direction, I have confirmed it with the tribunal staff in Croydon.

Thursday 5 December 2002

Income Tax (Earnings and Pensions) Bill

The Income Tax (Earnings and Pensions) Bill was introduced in the House of Commons today. Its purpose, in the explanatory notes, is stated to be "to rewrite tax legislation relating to income from employment, pensions and social security so as to make it clearer and easier to use."

The "clearer and easier" Bill has 725 clauses and eight Schedules. I have no intention of reading or summarising it! If anybody wants to produce a summary, I would be happy to distribute it.

Wednesday 4 December 2002

Annual Increase to Tribunal Awards

Hot off the press, the annual increase to the limits on tribunal awards have been published. They take effect as of the 1st February 2003 (for unfair dismissal claims, this is for all claims where the EDT is on or after 1st February 2003 rather than the date of the tribunal hearing).

The main increases are:

Current From 1st Feb 2003
Maximum amount of "a week's pay" (for the purpose of
calculating, inter alia, the basic award or
redundancy payments) £250 £260

Maximum compensatory award £52,600 £53,500

Minimum basic award in prescribed situations
(eg trade union related dismissal) £3,400 £3,500