Friday 28 May 2004

Effect of Human Rights Act on unfair dismissal claim against private-sector employer

The Court of Appeal has, this morning, handed down a rather academic decision dealing with the vexed question of whether tribunals must take account of the Human Rights Act 1998 (in this case, the right to respect for privacy) when deciding unfair dismissal claims brought against private sector employers. The case, X v Y, is well known because of the rather unusual facts. The EAT's decision is reported at [2003] IRLR 561.


Mr X worked with vulnerable children. On a Saturday in January 2001, he drove to a transport cafe, entered the toilet, met a man he did not know, and "they began to engage in sexual activity". A passing policeman arrested them.

Mr X accepted a caution, and his name was placed on the Sex Offenders register. His employers, who worked closely with the Probation Service, discovered this. After full hearings, they dismissed him on the grounds of (a) having committed a criminal offence; and (b) thereafter not having disclosed it. The tribunal found the dismissal was fair.

The Issue

The issue for the Court of Appeal was whether a tribunal is bound to have regard to the right to respect for privacy in private life, accorded by article 8 of the ECHR, when deciding whether a dismissal is fair or unfair.

The tricky point was that the employer was a private-sector employer, and the Human Rights Act only provides that public bodies must comply with the ECHR. Thus, the issue because, should the tribunal (as a public body) apply the ECHR in private-sector cases?

The EAT's Decision

The EAT (HHJ Peter Clark presiding) held that article 8 was not engaged, therefore the main issue did not need to be determined. He considered that an act of 'cottaging', committed in a public place and which attracted a criminal caution was a public matter not a private matter.

The Court of Appeal's Decision

The majority of the Court of Appeal (Mummery and Dyson LJJ) agreed with HHJ Peter Clark, holding that article 8 was not engaged on the facts of this case. In a compelling minority judgment, Buxton LJ doubted this (thinking that acts in a secluded room in private could properly be categorised as private in nature), but thought that the acceptance of the caution by Mr X subsequently removed the private aspect of it.

Mummery LJ went on to consider the alternative point: what should a tribunal do when faced with an argument that a private-sector employer must respect an individual's right to privacy. Buxton LJ agreed with this part of the judgment, but Dyson LJ did not comment on it.

Mummery LJ stated that there should be no difference in approach, whether the employer is private- or public-sector. He described the effect of the ECHR as "oblique", rather than horizontal (para. 59). He then set out eleven factors to be considered by tribunals when deciding the impact of ECHR rights on the fairness of a dismissal. However, he did not actually give an answer - instead he restated basic principles and said it was for employment tribunals to decide! So matters are no clearer.

Monday 24 May 2004


The Court of Appeal has upheld, in principle, the ET and EAT's decision in McPherson v BNP Paribas, although it has varied the amount of costs payable by Mr McPherson.

Mr McPherson withdrew his ET claim about two weeks before the hearing. He cited ill-health, although there were doubts about the extent of the ill-health. He had failed to comply with a number of tribunal orders in the run-up to the hearing. The tribunal, and the EAT, held that the late withdrawal was (against the background of breach of tribunal orders) unreasonable conduct. He was ordered to pay all of BNP Paribas's costs. See my bulletin of 27/8/03 for a summary of the EAT's decision.

The Court of Appeal (Mummery LJ) held that:

"it would be legally erroneous if, acting on a misconceived analogy with the CPR, tribunals took the line that it was unreasonable conduct for employment tribunal claimants to withdraw claims and that they should accordingly be made liable to pay all the costs of the proceedings. It would be unfortunate if claimants were deterred from dropping claims by the prospect of an order for costs on withdrawal, which might well not be made against them if they fought on to a full hearing and failed. As Miss McCafferty, appearing for Mr McPherson, pointed out, withdrawal could lead to a saving of costs. Also, as Thorpe LJ observed during argument, notice of withdrawal might in some cases be the dawn of sanity and the tribunal should not adopt a practice on costs, which would deter applicants from making sensible litigation decisions.

"On the other side, I agree with Mr Tatton-Brown, appearing for BNP Paribas, that tribunals should not follow a practice on costs, which might encourage speculative claims, by allowing applicants to start cases and to pursue them down to the last week or two before the hearing in the hope of receiving an offer to settle, and then, failing an offer, dropping the case without any risk of a costs sanction.

"The solution lies in the proper construction and sensible application of rule 14. The crucial question is whether, in all the circumstances of the case, the claimant withdrawing the claim has conducted the proceedings unreasonably. It is not whether the withdrawal of the claim is in itself unreasonable..."

On the facts, the Court of Appeal agreed that Mr McPherson had acted unreasonably, but allowed his appeal to the extent that is substituted a smaller period of time in connection with which costs would be payable (effectively excluding the first months of the litigation, when Mr McPherson had not been conducting the litigation unreasonably).

Failure to Attend at Tribunal

The Employment Appeal Tribunal has, in Cooke v Glenrose Fish Co Ltd, performed a U-turn on the approach for tribunals to take when a party fails to attend.

The previous position, set out by the EAT in London Borough of Southwark v Bartholomew [2004] ICR 358, was that it was incumbent on a tribunal to telephone the litigant to establish whether they were on their way, and the reason for non-attendance.

Burton P., has now held there is no such duty (although a tribunal should consider doing so). Since there is no obligation on a party to attend a hearing, it is perfectly legitimate to hear the case in a party's absence without further enquiry. However, if the non-attending party then applies for a review, a review should ordinarily be allowed if a good reason for the non-attendance is put forward.

Importantly, Burton P. makes it clear that (unlike for extensions of time), it is not good enough for a tribunal to refuse a review on the grounds that a litigant may have a strong claim against his solicitor. The aggravation, uncertainty and cost of satellite litigation militates against encouraging litigants to sue their solicitors for negligence. Provided the attending party can be compensated in costs, there would normally be no good reason not to allow a review and order a retrial.

Wednesday 19 May 2004

Statutory Dispute Resolution - DTI Guidance

The DTI's Guidance Notes to the forthcoming mandatory disciplinary and grievance procedures (coming into force 1st October 2004) have just been placed on the DTI website.

Overall, it is a well drafted and thought out document, which goes some way towards explaining the horrendously complex (and in places, incomprehensible) regulations.

I will be updating my Dispute Resolution Analysis Notes to incorporate the guidance. In the meantime, here are a few key points:

  • the Guidance Notes make it clear the dismissal procedures do apply for dismissals on grounds of redundancy and, as importantly, retirement
  • they make it clear that the mandatory DDPs are an addition to ordinary concepts of fairness under s98(4) of the ERA 1996
  • it has useful sections on overlapping procedures and on extensions of time for presenting claims.

Wednesday 12 May 2004

New Equality Commission - DTI White Paper

The DTI has, today, issued a White Paper seeking views on the new integrated equality commission, to be known as the Commission for Equality and Human Rights (CEHR).

The new commission will combine the functions of the EOC, CRE and DRC (whoops - redundancy time) in challenging discrimination, as well as promoting human rights issues. In addition to taking over the functions of those three organisations, it will be responsible for tackling discrimination on grounds of age, sexual orientation, religion and belief.

The White Paper sets out proposals for the structure and mandate of the new organisation. The deadline for responses is 6th August 2004.

Thursday 6 May 2004

Transexual Discrimination

The House of Lords has handed down its decision in A v Chief Constable of West Yorkshire Police.

In 1998, the Chief Constable of West Yorkshire rejected Ms A's application to become a constable in the West Yorkshire Police on the ground that, as a male-to-female trenssaxual, she could not perform the full searching duties required of a police constable. The issue was whether he thereby discriminated against her unlawfully in breach of the Sex Discrimination Act 1975

The Chief Constable admitted that the refusal was prima facie discriminatory, but defended the claim on the basis that being able to search is a genuine occupational qualification.

The House of Lords held that gender was not a genuine occupational qualification. Men could perform searching duties, and so could women. To put it another way, it was not a genuine occupational qualification that somebody needed to be either a man or a woman to undertake searching duties - both male and female officers undertook searching duties. The genuine occupational requirement defence was not drafted to cover gender reassignment, and this case did not fall within the exception.

Note that this is an enormous oversimplification of a very complex judgment Moreover, the case is now largely of historic interest only, due to the subsequent implementation of the Sex Discrimination (Gender Reassignment) Regulations 1999.

Rolled up Holiday Pay

The Court of Appeal has, for the first time, considered the thorny issue of 'rolled-up' holiday pay.

In an astonishingly robust and clear judgment, Laws LJ held in the conjoined appeals of Clarke v Staddon and Caulfield v Marshalls Clay Products (see my bulletin of 4/8/03 for the EAT decision) that 'rolled-up' holiday pay complies with the EU Working Time Directive. He examined the policy behind the Directive and relied heavily on the fact that the Directive does not state that the payment has to be received at the time the holiday is taken.

He then asked the question: does rolling-up holiday pay undermine or negate the relevant article of the EU Working Time Directive, and held that it did not. He also held that since the Working Time Regulations 1998 were enacted to implement the Directive, if they said anything different, they were ultra vires. However, he went to hold that the WTR 1998 did allow for rolled-up holiday pay.

But he said it was unsatisfactory that there were two inconsistent decisions; one from the English Court of Appeal and the other from the Scottish Court of Session (in MPB Structures v Munro - see my bulletin of 8/4/03). As a result, he thought that the issue should be referred to the European Court of Justice, and adjourned the hearing to enable Counsel to suggest a draft form of reference. He made it clear that the reference would (if possible) be joined with the reference from the Leeds employment tribunal on the same point (see my bulletin 17/3/04).

Also of significance: he held (in a passage I have some reservations over) that the EAT sitting in England is not bound by the decisions of the Scottish Court of Session. This must be doubtful because the EAT - whether sitting in England or Scotland - is one statutory body. It cannot be right that the same court may, or may not, be bound by decisions of higher courts depending on where the Applicant lives.

New Draft CRE Code of Practice

The CRE is consulting on a revised statutory Code of Practice on Racial Equality in Employment. It is now twenty years since the current statutory code of practice came into force. Since then, there have been a number of important amendments to the Race Relations Act 1976, as well as new EU legislation governing racial equality in the workplace.

To reflect these changes, revisions have been made to the new code, including:

  • greater accessibility, in terms of language and style;
  • an accurate reflection of current legislation and the modern world of work;
  • more real-life employment tribunal case studies; and
  • detailed guidance on topics such as positive action, ethnic monitoring and racial equality policies.

The code aims to give practical guidance to employers, recruitment agencies, trades unions and individual employees on how to meet their obligations under the Race Relations Act. It will have statutory status; this means that any of its provisions can be referred to in an employment tribunal.

The consultation paper is available on the CRE website. Consultation closes on Friday, 6th August 2004.

ACAS Guides

ACAS has updated its booklets on Absence and Labour Turnover, and on the new Employment Equality Legislation.

Note: I could not open the two bottom links directly. If you experience similar problems, go to and save the guides to your hard disk, then open them from there.

Wednesday 5 May 2004

Employment Status

The Employment Appeal Tribunal has handed down its decision in Staffordshire Sentinel Newspapers Ltd v Potter (HHJ Peter Clark, argument 18th March 2004).

It confirms that an "irreducible minimum" for there being a contract of employment is personal service. Following Express & Echo Publications v Tanton [1999] ICR 693, CA, the EAT held that a provision in Mr Potter's contract that he be entitled to substitute "a suitable person" to perform his duties, whenever he wanted, was fatal to him accruing status as an employee.

Note that other cases have held that such a provisions is not necessarily conclusive. Thus in MacFarlane v Glasgow City Council [2001] IRLR 7, it was held that a gym instructor whose contract provided he could select a substitute from a list pre-approved by the gym did not cease to be an employee because of that provision. A similar result was reached in Byrne Brothers (Formwork) Ltd v Baird [2002] IRLR 96.

The position therefore appears to depend on the extent of the substitution clause. If the worker has an unfettered discretion to appoint a substitute, he cannot be an employee. If he has a heavily fettered discretion, or requires the employer's approval, the substitution clause will not prevent him from accruing employee status.