Thursday 19 June 2003

Lawal: House of Lords Decision

I have just been told by John Bowers QC of Littleton Chambers that the House of Lords has overturned the Court of Appeal's decision in Lawal v Northen Spirit.

This means that the well-known employment QCs who sit as recorders in the EAT are no longer allowed to do so (unless they give up appearing as advocates in the EAT), due to the risk that they lay members with whom they sit will be influenced into confusing their status as advocate with judge.

The transcript is not yet on the House of Lords website: I will post a fuller summary once it is placed up there. I also understand judgment in MacDonald v Ministry of Defence (whether sexual orientation is sex discrimination under the SDA 1975) and Pearce v Mayfield (the same issue) are due for judgment today.

Lawal v Northern Spirit Ltd

Further to my earlier Email, the judgment is now available.

It is a very short judgment. The House of Lords holds that there is a real possibility of bias where a Queen's Counsel appears as representative in front of a division of the EAT where he has previously sat as part-time judge with one or both wing members.

At paragraph 23, the House of Lords state:

"...Like Pill LJ in the Court of Appeal we consider that the present practice in the EAT tends to undermine public confidence in the system. It should be discontinued. It follows that the present practice in the EAT should be assimilated to that in the Employment Tribunal by introducing a restriction on part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat."

Homosexuals and the SDA 1975

The House of Lords has handed down its decision in the cases of MacDonald v Advocate General for Scotland and Pearce v Mayfield School.

The House of Lords resolved the two competing arguments as to whether homosexuals fall within the Sex Discrimination Act 1975. In five distinct judgments, the five Law Lords were unanimous in dismissing the appeals.

The argument in favour was that if an employer dismisses a male who is sexually attracted to men (ie a homosexual), but would not dismiss a female who is sexually attracted to men (ie a heterosexual), the man has been treated less favourably than the woman and so has been discriminated against on grounds of gender.

The contrary argument was that the two are not in the same position, i.e. there are material differences between the man and the woman. Following the approach in Shamoon, the appropriate comparator would not be woman who was attracted to people of the opposite gender, but a woman who was attracted to someone of the same gender.

The House of Lords unanimously preferred the latter argument, holding that homosexuals are not protected by the provisions of the SDA 1975. If somebody is dismissed because they are homosexual, this is gender-neutral treatment by the employer provided it applies to both homosexual men and homosexual women. The appropriate comparator for a homosexual man is a homosexual woman.

Of just as much importance as the ratio of the case is the fact that the House of Lords stated that Burton v De Vere Hotels (the 'Bernard Manning' case) was wrongly decided. The House of Lords state that whilst an employer's failure to prevent third parties committing acts of sexual/racial harassment might amount to discrimination by the employer, it will only do so if the employer failed to take such steps because of the employee's sex/race. This has significant ramifications for discrimination claims generally, and also for the Liversidge cases where police constables are bringing sex discrimination claims against their chief constables.

Wednesday 18 June 2003

Amendments to Race Relations Act

The Race Relations Act 1976 (Amendment) Regulations 2003 have been laid before parliament.

If passed, they are due to come into force on 19th July 2003. The amendments are required under the EC Racial Treatment Directive of July 2000 which required all countries to amend domestic legislation by - guess when - 19th July 2003.

The main changes are:
• setting out a new definition of indirect discrimination, bringing it into line with the definition under the Sex Discrimination Act 1975;

• creating a new definition of harassment and making harassment an express offence;

• introducing a new defence where race is a "genuine and determining requirement" for the job

• statutory reversal of the burden of proof, in line with s63A of the SDA 1975, so that if an Applicant proves a prima facie case of indirect discrimination, the burden shifts to the Respondent to prove that it was not racially discriminatory

Monday 16 June 2003

New EAT Decisions

Mansi & Mansi v Straw (HHJ Birtles, 20/5/03)

A short case which is authority for the proposition that tribunals are not obliged to make an award of compensation under regulation 11 of TUPE for failure to consult with affected employees. It is lawful to make a nil award.


X v Y (HHJ Peter Clark, 11/6/03)

The Applicant, a male adult, worked with young people on probation. Whilst off duty, he "pulled into a lay-by where there was a transport café and went to the toilet. There he engaged in consensual sexual activity with a man of about his age whom he had never met before". He was arrested and accepted a caution for gross indecency. He lied to the police about what he did for a job (not revealing he worked with young people) and sought to withhold the fact of the conviction from his employers. When they discovered it, they dismissed him - not for the underlying offence but for lying to the police and placing the employer at risk of embarrassing publicity.

The tribunal found the dismissal was fair. The Applicant appealed on the basis that the tribunal had failed to take into account article 8 of the Human Rights Act 1998, namely a right to respect for his "private and family life".

The EAT held that article 8 only protects acts that are "private". They held:

"We think that the offence known as ‘cottaging’ falls on the other side of that dividing line. The offence here took place in toilets to which the public had access. The activities in which the Applicant engaged were ‘genuinely’ in public, to paraphrase the Court in ADT."

Accordingly article 8 was immaterial and the tribunal's failure to consider it was not an error of law.


Emms v UCATT (HHJ Ansell, 28/3/03)

An entirely uninteresting appeal against a tribunal's refusal to grant a costs warning. It is, however, worth a mention because:

(a) the Appellant's representative was 'Mr A Scargill' of the National Union of Mineworkers; and,

(b) costs were ordered against the Appellant on the grounds the appeal was 'unnecessary'.
Of course, it could be said it was just as unnecessary for me to report this case. But I couldn't resist it!

Wednesday 11 June 2003

Data Protection Code Part 3: Monitoring At Work

The long-awaited Part 3 of the Data Protection Code on Employment Practices, dealing with Monitoring at Work, has been issued.

The four parts are:

Part 1 - Recruitment and Training (see bulletin 14/3/02)
Part 2 - Record Management (see bulletin 3/9/02)
Part 3 - Monitoring At Work (today)
Part 4 - Medical Records (forthcoming)

The Code is 55 pages long. The Supplementary Guidance is a further 49 pages - giving 104 pages in total. Helpfully, the key sections and summaries have been highlighted in a gray colour which does prevents printing and which makes them almost impossible to read on the screen.

In summary, the Code provides:

• employers can monitor workers when the advantage to the business outweighs the intrusion into the workers' affairs;
• employers should normally carry out an impact assessment before monitoring, weighing up the advantage v intrusion equation;
• workers should be told if they are being monitored;
• information discovered through monitoring should normally only be used for the purpose for which the monitoring was carried out;
• the information discovered should be kept secure, which may mean only letting one or two people have access to it
• employers should be careful when monitoring personal communications such as Emails which are clearly personal
• employers should not undertake covert monitoring except in the rarest circumstances where it is used for the prevention or detection of crime, it has been authorised at the highest level of the business, and where there is a risk that notifying workers of the monitoring would frustrate the purpose of the monitoring.
Why does that need 104 pages? Answers on a postcard, please.

Tuesday 10 June 2003

New EAT Decisions

[A job advertisement for Thomas Eggar, Horsham, appears below]

The following decisions of the Employment Appeal Tribunal have been placed on the EAT website today.

Ogilvie v Neyrfor-Weir Ltd (Burton P., 15/5/03)

An interesting case where an oil executive was told he had to go abroad over the forthcoming bank holiday weekend, when he was expecting to attend his sister-in-law's engagement party. He objected to the short notice, and his superior told him in a heated exchange (with the door open) that he was a "fucking cunt" and would be dismissed if he did not miss the engagement party and travel abroad. Mr Ogilvie resigned and claimed constructive dismissal. The tribunal held that the employer's conduct did not amount to a constructive dismissal.

The EAT's decision (substituting a finding of unfair dismissal) is of interest for two reasons:

First, the Appellant sought to introduce a new ground of appeal at the hearing. In line with Miriki v General Council of the Bar (see bulletin of 28/12/01), the EAT refused permission to amend. Burton P. stated that it was not appropriate to introduce new grounds of appeal "even if they are one or two days late" and that "it is a matter of importance that, save in exceptional circumstances, amendments to Notices of Appeal should not be allowed out of time" (para 18). If followed, this would seem to rule out the very common practice of lodging vague grounds of appeal, so as to meet the 42-day time limit, and then substituting detailed grounds at the preliminary hearing stage.

Second, the EAT made the point that words (such as "fucking cunt") that might be acceptable in the heat of a moment on an oil rig are not necessarily acceptable in the boardroom or the office of a senior oil company executive. The tribunal was wrong to adopt a blanket approach to the use of profanity in particular industries.

Grant v BSS Group (Mr Commissioner Howell, 13/3/03)

This is authority for the proposition that the failure to undertake identical or similar levels of consultation with the entire redundancy pool, even after provisionally selecting one person from the pool for redundancy, renders the dismissal unfair.

This is an important point: it is common practice for lawyers / HR advisors to recommend that individual consultation need take place only with those who have been provisionally selected for redundancy following a matrix selection process. In this case, the EAT stated that the failure to consult with all of the pool - even the one who was not provisionally selected for redundancy - made the dismissal unfair.

The facts of the case dealt with a pool of two employees. I suspect that the case may be distinguished in situations where there is a larger selection pool. Certainly lawyers and employers may need to re-think their standard approach to redundancy consultation in the light of this decision.

New Archive Service

I have put together an archive for these bulletins. To access it, visit

It is possible that excessive demand when this bulletin arrives may mean you cannot access the page (and, yes, sometimes I do live in the real world!). If that happens, please try again later.

Monday 9 June 2003


As promised in my bulletin of 15th May, I now enclose the link for the Dunnachie v Kingston upon Hull City Council decision. There was also a summary of it in this morning's Times Law Reports.

The bulletin of 15th May is reproduced below.

Wednesday 4 June 2003

Correction to Previous Bulletin

In my bulletin of 23rd May 2003 ('Compromise Agreements - New Approach by Inland Revenue', reproduced below), I stated that the Revenue's new approach to compromise agreements might be out of date because of new wording in the Income Tax (Earning and Pensions) Act 2003.

That created a flurry of protest from over 100 people (seriously!), all of whom told me they thought I was wrong. So I've looked at it again, and I agree! Irrespective of whether the Revenue's approach is lawful (which has, as far as I am aware, not yet been tested), the different wording in the new Act would not seem to affect the legality of its approach.

Unfair Dismissal - Reasonable Investigation

The Court of Appeal has handed down its decision in The Post Office (Consignia plc) v Burkett.

It is authority for the proposition that tribunals, when deciding whether an employer had reasonable grounds for its belief in misconduct, must set out and analyse the facts as found by the employer at the time of the dismissal (assuming the employer undertook a reasonable investigation).

It is an error of law to set out facts as found by the tribunal, unless a clear distinction is drawn between what the tribunal decides occurred, and what the tribunal decides the employer thought occurred.

Mr Burkett was dismissed for deliberately overfilling a Post Office van with oil, causing an explosion. The tribunal found that there was no evidence to support the fact that he had overfilled it deliberately and held the dismissal to be unfair. The Court of Appeal (after the EAT dismissed the original appeal) allowed the appeal on the grounds that the tribunal had substituted its view, whereas it should have looked at the facts that the Post Office had found after the Post Office's original disciplinary investigation, and decided whether those grounds for belief in misconduct were reasonable.