Monday 19 December 2005

Review of the year 2005

For those who appreciate a light-hearted review of the employment law year, Wragge & Co. have produced a first-class summary of this year's employment law developments (and a preview of anticipated issues for 2006).

Click here to download (.pdf file)

Thursday 15 December 2005

Transexuals - Advocate General says UK in break of EU law

The Advocate General has, today, handed down an opinion stating that the UK is in breach of EU law.

In the UK, men are entitled to draw a state pension at 65, but women are entitled to draw a state pension at 60.

Sarah Richards is a male-to-female transexual. She underwent gender reconstruction surgery in 2001. In 2002, she applied to be paid her state pension from the age of 60, but was refused by the DWP on the grounds she was still male.

Advocate General Jacobs considered that in that situation the correct comparator is a female person whose identity is not the result of gender reassignment surgery.

In this instance, Ms Richards was denied her pension in circumstances where, had she been registered as female at birth, she would have been entitled to it. The alleged discrimination lies in the United Kingdom's failure to recognise transsexual persons in his or her acquired gender on equal terms with persons recorded as of that gender at birth. The Advocate General therefore considered that it is contrary to Community law for a Member State to refuse to grant a retirement pension before the age of 65 to a male-to-female transsexual where that person would have been entitled to a pension at the age of 60 had she been regarded as a woman as a matter of national law.

Richards v Secretary of State for Work and Pensions (press release - full text of opinion not available until later today)

[Thanks to Marianna Patane of White & Case for telling me about this case]

Ministers of Religion are Employees

The House of Lords, in a judgment handed down this morning, has overturned decades of practice/authority by holding that ministers of religion are employees (at least for the purpose of the Sex Discrimination Act 1975).

Ms Percy was an ordained Minister of the Church of Scotland. She claimed sex discrimination. The employment tribunal, EAT and Court of Session all held she was not an employee within the meaning of the Sex Discrimination Act 1975.

It is important to note that Ms Percy did not appeal the employment tribunal's finding that she was not an employee for the purpose of claiming unfair dismissal. She said that she fell within the wider definition in the Sex Discrimination Act 1975, i.e. that she was engaged "under a contract to personally execute any work or labour".

The House of Lords upheld her appeal by a 4:1 majority.

The majority (Lords Nicholls, Hope, Scott and Baroness Hale) held:

  • the fact that somebody is an office-holder does not mean they cannot simultaneously be working under a contract;
  • the difficulty of establishing the identity of the 'employer', given the fragmented nature of many religious institutions, should not of itself defeat a claim;
  • the offer and acceptance of a church post, with provisions for the appointee's duties and remuneration, holidays, accommodation etc. will give rise to an intention to enter legal relations;
  • * it is quite apparent, given the degree of control and the requirement for Ms Percy to undertake duties in a personal capacity, that there was a contract to personally undertake work or labour.
Dissenting, Lord Hoffman held that the long-established position is correct, and that a Minister of Religion has legal obligations pursuant to being an office-holder, but not under any contract of employment (whether under the narrow definition for unfair dismissal rights, or the wider definition for discrimination rights).

Although the case only dealt with the definition of employee for the purpose of the SDA 1975, this decision does open the door for Ministers to argue that they are employees within the meaning of the unfair dismissal legislation as well (both Lord Nicholls and Baroness Hale suggested that the cases stating that Ministers cannot claim unfair dismissal may need to be revisited).

Percy v Church of Scotland (.pdf version)

Annual Increase in Compensation Limits

The statutory instrument containing the annual increase in compensation limits has just been laid before Parliament.

The increases take effect, as always, on 1st February (2006). They apply to dismissals occurring on or after that date).

The important increases are:
  • maximum compensatory award to rise from £56,800 to £58,400
  • maximum on a 'week's pay' to increase from £280 to £290
For a list of all the increases, see the statutory instrument below.

The Employment Rights (Increase of Limits) Order 2005

Tuesday 13 December 2005

New President of EAT Announced

The DCA has just (12.15pm) announced that the new President of the Employment Appeal Tribunal is the Honourable Mr Justice (Patrick) Elias.

His term is from 3 January 2006 until 2 January 2009 inclusive. He will succeed the Honourable Mr Justice Burton.

Friday 9 December 2005

Maternity Suspension - Obligation to 'Avoid' Risks

An interesting point of construction of regulation 16 of the Management of Health and Safety at Work Regulations 1999 is dealt with in the EAT's judgment in New Southern Railway v Quinn.

Mrs Quinn was (effectively) demoted from the Duty Station Manager's post at Brighton station when she announced her pregnancy. The Respondent justified the demotion on the basis that it was taking steps to "avoid" physical risks (eg assault) flowing from the Duty Station Manager's position.

The employment tribunal found that this assertion was a sham, and that the Respondent had simply adopted "an extremely paternalistic and patronizing attitude towards the Claimant and her condition." It also found that the risk of assault was small and could easily be reduced further.

Before the EAT, the Appellant (employer) argued that the obligation to "avoid" risks was an absolute obligation under European law, so that if there was any risk of harm, the employer was under an absolute obligation to avoid it - in this case, by demoting the Claimant.

The EAT held this argument was wrong. Adopting a purposive approach to the word 'avoid', it held that it meant 'reduce to a low risk' or 'reduce the risk as far as possible', rather than 'eliminate the risk entirely'.

The EAT also dealt with a number of other arguments, including waiver of breach (for the purpose of constructive dismissal). This decision makes interesting reading, not least for the very lucid way both sides arguments are set out and analysed.

New Southern Railway v Quinn

Statutory Grievance letters

They're coming fast and furious...

Yesterday, the EAT published yet another decision on step 1 statutory grievance letters (judgment was given on 13th October, although the transcript was not released until yesterday).

As well as winning first prize in the 'easy case name to remember' competition, Commotion Ltd. v Rutty is another example of the relaxed view that tribunals are taking to whether a letter amounts to a statutory grievance letter under step 1 of the standard grievance procedure.

Mrs Rutty applied in writing for a variation to her working pattern under the flexible working provisions in s80F of the Employment Rights Act 1996. Her letter did not suggest it was to be regarded as a grievance.

Following the employer's unreasonable refusal of the request, in circumstances which the tribunal found was a breach of trust and confidence, she resigned and claimed constructive dismissal. She did not send a subsequent grievance letter.

The EAT (HHJ Burke presiding) upheld the employment tribunal's ruling that the original request to vary her contractual working pattern amounted to a step 1 grievance letter. The EAT relied upon regulation 2(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which provides that it is irrelevant whether the purported grievance letter deals with any other matter.

This decision, whilst demonstrating the relaxed view that tribunals are taking on this issue, is possibly open to being challenged at a future date on the basis that Mrs Rutty's true complaint - and reason for resigning - was not her original working pattern, but was the failure to deal properly with her request for flexible working contained within her letter. This is clearly a fact-sensitive area, which the employment tribunal (and EAT), in this case, considered fell on the side of the line where the letter complied with s32 Employment Act 2002.

The transcript is not yet on the EAT website, but it should be put up in the next week or so. Due to copyright constraints, I cannot attach a copy of the transcript to this Email.

[Thanks to Chris Carr of 36 Bedford Row (who represented Mrs Rutty) for sending me a copy of the transcript.]

Polkey Reductions

Another case from the EAT (HHJ McMullen presiding) reminding tribunals that it is incumbent on them to consider making a Polkey reduction to compensation for unfair dismissal, and that the King v Eaton situation where no reduction should be made because of the difficulty of reconstructing 'what would have happened' should rarely be adopted.

The EAT split the possible Polkey options into four categories (para. 22):

1. Length of time cases, where a dismissal would have occurred in due course;
2. Loss of chance cases, where there was a chance of surviving dismissal;
3. Cases where a reduction has been effected because the Claimant was likely to have been dismissed on another ground; and,
4. Cases where there has been no reduction because there was a complete sham

Gover v PropertyCare Ltd.

Thursday 8 December 2005

What is a Grievance Letter?

Hot on the heels of HHJ Peter Clark's decision in Thorpe & Soleil Investments v Poat & Lake (see bulletin 25/11/05) comes an even more important decision on what does (or does not) constitute a step 1 grievance letter for the purpose of the (standard) statutory grievance procedure.

In Shergold v Fieldway Medical Centre (EAT, 5/12/05), the Claimant wrote a three-page resignation letter setting out the reasons for her resignation. She did not ask for it to be treated as a grievance, although her employers invited her to a meeting to discuss the issues she raised before accepting her resignation.

The employment tribunal held that this did not amount to a step 1 grievance letter, but was instead properly classified as a resignation letter.

The Employment Appeal Tribunal (Burton P. presiding) overturned this, holding:

  • there is no formality required in a statutory standard grievance letter. The requirements "are minimal" - all an employee needs to do is set out his or her complaint in writing (para 30)
  • the statutory procedures should rarely result in the Claimant being debarred or the employer being liable for an automatic unfair dismissal. Burton P. states that the purpose behind the statutory grievance procedures is, like the civil court pre-action protocols, to give the parties a chance to settle disputes before litigating. "The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here...It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those are sanctions, which should be very rarely used; the purpose of the legislation is quite other, as we have described" (para 28)
  • the fact that the written grievance is contained in a letter of resignation "makes no difference at all", provided that it is the setting out of a complaint in writing (para 31)
  • it is not necessary to make it plain in the writing that it is a grievance, or is an invocation of a grievance procedure (para 33)
  • there is equally no requirement that an employee must comply with any company or contractual grievance procedure (para 34)
  • it is not necessary that every detail of the complaint be set out, as a grievance letter is not a pleading. It is sufficient if the employe can "understand the general nature of the complaint being made" (para 37)
  • it is also unnecessary that the employer have the chance to respond to the grievance; all the statute requires (for the standard procedure) is for the employee to set out his complaint in writing (para 38)
NOTE: the EAT stated that it "deprecate[d]" the jargonistic use of the verb 'to grieve', as in 'Has the employee grieved?', and reminded practitioners that 'grieving' has a specific meaning which is not appropriate in the context of an employment grievance (para 17).

Shergold v Fieldway Medical Centre

Wednesday 30 November 2005

ACAS "Christmas Party" Advice

Acas has issued a set of Frequently Asked Questions for employers arising out of 'Christmas Party' issues.

Questions (and answers) include:
  • How can you make sure people don't get too drunk and fail to turn up for work the day after the party?
  • What if an employee suffers verbal abuse about being gay at the local pub before the party - it's not on work premises so it's a matter for them isn't it?; and,
  • What do you do with those photocopies of bare flesh? (yes, really!!)
View Acas 'Happy Christmas Party' Advice

Friday 25 November 2005

What is a Statutory Grievance Letter?

We have the first EAT decision concerning the contents of statutory grievance letters under the Employment Act 2002.

The EAT (HHJ Peter Clark sitting alone) holds:
  • the intention of the employee is irrelevant - it matters not whether the employee did (or did not) intend to raise a grievance within the body of the letter (para 22)
  • likewise, the terms of any contractual grievance procedure are irrelevant - an employee does not have to comply with a contractual grievance procedure for a letter to amount to a valid stautory grievance (para 24)
  • most importantly, practitioners and tribunals must always bear in mind that it is necessary to decide whether the standard or modified grievance procedures apply. That is because a standard procedure grievance letter requires the employee to "set out the grievance in writing", whereas a modified procedure grievance letter also requires the employee to set out "the basis for" the grievance, i.e. the grounds of the grievance as well as an outline of the grievance itself. This may make a difference as to whether the letter complies with the technical requirements of a grievance letter (paras. 25-26 and 21)
Thorpe & Soleil Investments v Poat & Lake

Sex Discrimination - Rub down body searches

The EAT has handed down its judgment in Home Office v Saunders.

It holds that a tribunal is entitled to find that the correct hypothetical comparator for a female prison officer conducting a rub-down search of a male prisoner was a male prison officer conducting a rub-down search of a female prisoner, despite the fact that a male prison officer was not permitted to carry out such a search.

In doing so, the EAT rejected the argument that the correct comparator was a male officer conducting a rub-down search of a male (not female) prisoner. In coming to this decision, the EAT relied heavily on policy arguments that care must be taken not to approach comparator issues in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex throughout employment.

Home Office v Saunders

Age Discrimination Telephone Seminars

Use brand-new technology to attend two one-hour telephone seminars that I am presenting on age discrimination on 12th January and 23rd January 2006.

Just dial-in to a pre-arranged number (national rate) and listen to me speaking on age discrimination. If you have a broadband connection, you can simultaneously watch a powerpoint presentation via a weblink.

Click here for more information

Here are just some of the benefits for you:

  • easy access to the seminars from the comfort of your desk
  • avoid lost revenue caused by travel and waiting time
  • a fantastic opportunity for those outside city centres who find it difficult to attend traditional lectures
  • live Q&A sessions over the web
  • multiple fee-earners can listen in around a speakerphone

Click here for more information

The course attracts 2.75 hours CPD from the Law Society (reflecting the course length of two hours, plus 45 minutes to review the material and answer 10 multiple-choice questions at the end).


The course fee, covering both seminars, is just £129+VAT. This includes:
  • dial-in access for one telephone (and/or computer);
  • as many participants gathering around the telephone to listen as you wish
  • 2.75 CPD hours for one attendee (subject to completion of the multiple-choice questions).
Additional delegates can purchase the CPD hours for a nominal administration fee of £35+VAT.

Click here for more information

Thursday 24 November 2005

Age Discrimination and Fixed Term Workers - ECJ Decision

The ECJ has given judgment in Mangold v Rudiger Helm, dealing with the approach courts should take to the forthcoming age discrimination laws.

Under German law (implementing the Fixed Term Workers Directive), fixed-term contracts are normally unlawful unless objectively justified, UNLESS the employee is aged over 52 - in which case, fixed-term contracts do not need to be objectively unjustified.

A 56-year old German employee argued this contravened the EU Equal Treatment Framework Directive, and in particular, the requirement that member states eliminate age discrimination in employment.

The German government (and the employer) argued that as the Framework Directive did not have to be implemented until December 2006 (when the 'over-52' exemption for fixed-term contracts was due to expire), the Directive could have no impact on the legality of the 'over-52' exemption for fixed term contracts.

The ECJ disagreed. It held:

  • national legislation which allows employers to treat those over 52 less favourably than those under 52 (by permitting fixed-term contracts without objective justification) offends the principle of eliminating discrimination on grounds of age; and,
  • it did not matter that the Equal Treatment Framework Directive was not due to be implemented until December 2006, as the 'over-52' exemption had been introduced in 2002, after the Equal Treatment Framework Directive had been agreed. It was therefore incumbent on the German government not to legislate, once there was a clear aim of eliminating age discrimination by 2006, in a way which encouraged age discrimination.

Mangold v Rudiger Helm

Minimum Discrimination Awards

An interesting case from the EAT (sitting in Scotland) involving awards for injury to feelings when a disabled job applicant made a job application which was "not made wholly in good faith."

The Claimant applied for a job as a security officer. On his application form, he said he suffereded from depression and had not had a job for 14 years. His application was rejected at the first sift, which the tribunal found to be discriminatory on grounds of the Claimant's disability.

However, the tribunal noted that the Claimant was woefully underqualified for the job and had probably lied about the training he had received. They thought his job application was "not made wholly in good faith", and noted that he had attended a number of tribunal claims previously as a result of which he had a wide knowledge of discrimination law.

They awarded him £500 for injury to feelings. The Claimant appealed on the basis that a practical minimum should be £750, and on these facts he should have been awarded £2,500.

The Employment Appeal Tribunal dismissed the appeal, holding that the award of £500 was well within the tribunal's discretion. Interestingly, the EAT held that there was no minimum award that tribunals should award (which appears to go against previous authorities), albeit that a practice had arisen of awarding at least £500.

Greig v Initial Security Ltd

Wednesday 16 November 2005

No cancers to be excluded from definition of disability

This is not particularly 'hot' news, but it is quite important and has not been picked up (as far as I am aware) by any of the legal journals.

It is well-known that from 5th December 2005, cover under the DDA 1995 will be extended to include, effectively from the point of diagnosis, people with HIV infection, cancer or multiple sclerosis.

There had been a previous indication that certain types of cancer were to be excluded from being deemed to be a disability. However, the Parliamentary Under Secretary of State announced in the Commons a few weeks ago that "...following a review of evidence of the extent of discrimination faced by people with more minor forms of cancer, we have decided not to exercise the 2005 Act's regulation-making power which would allow us to exclude certain types of cancer from automatic coverage by the DDA 1995."

Other changes from 5th December will include the removal of the requirement that a mental illness be "clinically well-recognised" before it can be regarded as an impairment.

Click here to see the relevant extract from Hansard (scroll to third paragraph under the table)

[Thanks to Richard Lister of Lewis Silkin for notifying me of this.]

Tuesday 15 November 2005

Equal Pay - Genuine Material Factor Defence

The EAT has handed down an important equal pay decision, holding that the genuine material factor defence requires justification by objective criteria.

There has, for a little while, been tension between domestic and ECJ authorities in this area. The European approach requires that a difference in pay has to be objectively justified whereas the domestic approach is simply to require the employer to be able to account for the difference by reference to a factor which is material but is not the sex of the employee unless the factor relied upon by the employer is one which may itself indirectly discriminate against female employees, in which case the factor has to be objectively justified.

In a new decision, Sharp v Caledonia Group Services Ltd. (HHJ Ansell presiding), the EAT has departed from the traditional domestic approach and adopted the European approach of requiring objective justification.

In so doing, the EAT declined to follow its previous 2004 decision in Parliamentary Commissioner for Administration v Fernandez, which held that a genuine material factor for a reason not related to sex is sufficient, and objective justification is not required.

Instead, it relied on the earlier 2001 ECJ authority of Brunhoffer Brunhoffer v Bank Der Osterrichischen Postparkasse AG, which had held that objective justification is required. The EAT has given permission to appeal to the Court of Appeal.

Sharp v Caledonia Group Services Ltd.

Thanks to Russell Jones & Walker, who successfully represented the Claimant, and to the EOC (who funded the appeal), both of whom notified me of this decision

Monday 14 November 2005

Equality Bill Printed

The Equality Bill (which has been passed in the House of Lords) has now been transferred to the House of Commons and is available on the House of Commons' website.

View Equality Bill

Thursday 10 November 2005

Extension of Time for Appealing

A useful decision from the EAT, in which a firm of solicitors moved offices at the same time as London (Central) tribunal moved from Woburn Place to Kingsway.

Unsurprisingly, the tribunal's decision got lost somwhere along the way. The Claimant's solicitor wrote to chase up the tribunal, but the tribunal did not respond promptly. The end result was that the tribunal decision was received by the Claimant's solicitors on the 42nd day after it was officially sent to the parties, i.e. the last day for appealing.

The solicitor was on holiday and his trainee spoke to a colleague and spent two weeks obtaining instructions, awaiting the return of the relevant fee-earner, and liaising with Counsel. A Notice of Appeal was lodged two weeks after time technically expired.

The Employment Appeal Tribunal (HHJ McMullen sitting alone) found that it was appropriate in those circumstances to exercise the EAT's discretion to extend time, and that the 14-day delay before the Notice of Appeal was lodged was reasonable.

This decision marks a slight departure from the EAT's usual reluctance to extend time - albeit in a fact-specific way when the EAT was satisfied that the Claimant did not receive the decision until the 42nd day.

Practice Point
If you are expecting a decision in the post, and it does not arrive, make sure you write to the tribunal to chase it up. If there is no reply, do not sit back - write again.

Without such correspondence on file, the EAT will be unsympathetic to an argument later down the line that the decision was lost or delayed in the post.

Dodd v Bank of Tokyo-Mitsubishi, 30th Sept 2005

Wednesday 9 November 2005

No Smoking in Scotland..

From 6am on March 26, 2006, smoking will no longer be allowed in the majority of enclosed public places, including workplaces, to protect people from the harmful effects of passive smoking. This applies only to Scotland.

The Scottish Executive has just published guidelines to help businesses and organisations prepare for the ban, together with other useful documents (such as downloadable posters to display in the workplace).

Click here for further information

[Thanks to Gillian Bain of Just Employment Law for sending me the above information.]

Claim and Response Forms

I have been in correspondence with the Employment Tribunals Service over precisely which Claim and Response Forms are 'prescribed' for use in tribunals. I am receiving dozens of Emails on this topic and I understand the ETS are likewise receiving many similar queries. Hopefully this bulletin will help clear the air.

Has anything been prescribed?
No statutory instrument has been issued - a matter which has caused a lot of queries. However, there is no requirement under the rules for the prescribed forms to be issued by way of Regulation.

The ETS made a formal submission to Gerry Sutcliffe, Minister for Employment, on 19th September 2005. This contained proposals for exactly what versions of the forms should be used from 1st October 2005.
Gerry Sutcliffe approved the submissions (and thereby prescribed the forms) on 22nd September 2005.

What forms have been prescribed?
The following paper forms have been prescribed:

  • the version of the Claim Form which was available from 1 October 2004 (coloured purple);
  • OCR compatible versions of the Claim and Response Forms issued in March and September 2005 (coloured aqua);
  • Welsh Language versions of the OCR compatible versions issued in September 2005;
  • large print versions of the OCR compatible versions issued in September 2005.

In addition, the electronic / pdf versions available from the Employment Tribunals website (submitted either via the website or by Email) are prescribed for use.

Employment Tribunals Service website

Thursday 3 November 2005

Very Important Bulletin

The downloadable .pdf Claim and Response Forms on the ETS website are not in the prescribed form

As readers will know, tribunals are now rejecting Claim and Response Forms that are not the 'official' versions. These include in-house computer forms and forms by commercial organisations such as Laserform.

I have just been told (and checked - it's right!!) that some downloadable .pdf versions of the Claim and Response Forms that are on the ETS website are the old forms which are not valid.

To get the correct forms go to the ETS website at

Click "Publications" at the top of the page.

The links to the correct forms appear in the main text on that page.

The incorrect forms appear if, instead, you click 'Download' on the left-hand side (rather than 'Publications' at the top) of the ETS homepage. The forms that are then offered for downloading are the old, incorrect forms. The Claim Form does not contain box 11 (disability discrimination claims) or box 13 (mutliple cases), and the Response Form does not contain boxes 1.5 to 1.8


[Thanks to Paula Lawn at Butcher Andrews for providing this information]

Ainsworth off to the Lords...

I have been told by Thompsons solicitors (acting for the Appellants) that Ainsworth v Inland Revenue has been granted permission to appeal to the House of Lords.

The Court of Appeal decided (overturning Kigass v Brown Aero) that employees on long-term sick did not continue to accrue the right to four weeks' paid holiday each year (see bulletin 22/4/05). The decision was greeted with relief by employers, but it seems the saga has not yet ended...

Tuesday 1 November 2005

EAT in Scotland

From this week, all appeals in Scotland will be handled administratively from Audit House, London, rather than from Edinburgh.

The hearings will continue to take place in Melville Street, Edinburgh.

Click here for formal Notice from the EAT

Thanks to Henry Scrope of for this information

Thursday 27 October 2005

Sexual Orientation and the Workplace

Acas has updated its guidance on sexual orientation and the workplace.

It can be downloaded from the link below. Note it is a large pdf file and may take 10 or 20 seconds to open.

Download Acas Guide

Stress at Work

Just up on BAILII today is a Court of Appeal decision from June.

In it, the Court holds that when deciding whether psychiatric injury is reasonable foreseeable (for the purpose of a stress at work claim), it is proper for the court to take into account that the employer is breaching the maximum average 48-hour working week (and the rest provisions) contained in the Working Time Regulations 1998.

Hone v Six Continents Retail

Imposing Restrictive Covenants

The EAT has just handed down an important decision in Windsor Recruitment v Silverwood, overturning its previous approach to imposing restrictive covenants in Forshaw v Archcraft.

Windsor Recruitment wanted to impose restrictive covenants on its workforce. It dismissed some employees who refused to accept them. It had faced several successful episodes of poaching both staff and business by its competitors, and there was clearly a good business reason for imposing the restrictive covenants.

The employment tribunal held that the covenants were too wide and therefore unenforceable. It held that the employer could not, therefore, establish 'some other subtantial reason' for the dismissals, which were consequently unfair.

The EAT (Burton P. presiding) overturned this decision (also overturning the previous EAT authority of Forshaw v Archcraft, which was on almost identical facts).

Burton P. stated that dismissal for refusing to accept restrictive covenants is capable of being 'some other substantial reason' unless the covenants were "in fact a cover or a ruse to get rid of the employee" (para. 23).

The consideration of the reasonableness of the covenants then comes in not when deciding the reason for the dismissal, but instrad deciding the general 'fairness' issue. The EAT set out the approach for tribunals at para. 24, namely:
  • if the proposed covenant is plainly unreasonable and is not severable, it will make it easier for a tribunal to conclude there was unfairness;
  • if the proposed covenant is arguably unenforceable (and/or severable), then consideration must be given to the employer's approach to the matter; in particular, the amount of time given to employees to consider the proposals and the opportunity given for legal advice;
  • if the covenant is plainly reasonable then, whilst consideration of procedure is still necessary, it will be easier for a tribunal to conclude the dismissal is fair.
(Note: the unfairness of the dismissal was actually upheld on separate, procedural grounds).

Windsor Recruitment v Silverwood

Disability Discrimination

Phew - wet towel time!

The Court of Appeal has, this morning, handed down a staggeringly complicated decision on the correct approach to claims under the Disability Discrimination Act 1995. Don't even think about trying to read this one unless you're very, very brave...

In a nutshell:
  • when considering what "any arrangements made by or on behalf of an employer (which) the disabled a substantial disadvantage" means, an 'arrangement' covers an employer's belief in the Claimant's ability to fulfil the job requirements, and is not limited to the irreducible minimum of the job;
  • the correct comparator(s), when examining whether the disabled person is at a disadvantage, is not the population as a whole, but those others who fulfil the other conditions for the job;
  • the justification test for deciding whether a failure to make reasonable adjustments is justified (under the old s6 of the DDA) is objective. The justification test when deciding whether an employer has treated a Claimant less favourably (under the old s5 of the Act) is subjective.
Go on... read it...

Smith v Churchills Stairlifts plc

10 Key Facts on Age Discrimination

The 'Age Positive' website has just published ten 'Key Facts your business needs to know about age discrimination' (rather embarrassingly, under the headling '20 key facts', although there are only 10 of them!).

They can be accessed by clicking here

Monday 24 October 2005

Claim and Response Forms online

The Employment Tribunals Service has introduced a service enabling Claimaints and Respondents to save their Claim / Response Forms online.

This makes it much easier to use the online facility, as the forms can be filled in over a period of time and do not need to be completed in the one sitting.

Claim and Response Forms

Thanks to Ed McFarlane of Qdos Consulting for telling me about this development

Compromise Agreements

A majority decision from the EAT sitting in Scotland, holding that a Compromise Agreement did not exclude an Equal Pay claim...

As often happens, the Claimant signed a Compromise Agreement on termination of employment. In exchange for signing away her statutory rights, she was given a payment exceeding her statutory entitlements. She had some 12 or so discussions with her solicitor before signing the agreement.

Several months later, she read an article in the newspapers about part-time workers' pension claims. She brought fresh proceedings under the Equal Pay Act 1970 on the basis she had been excluded from her employer's pension scheme whilst a part-time worker. The employer responded by asserting she had signed a compromise agreement which excluded proceedings under the Equal Pay Act.

It was common ground for the purpose of the appeal that the Claimant did not know of her right to bring a part-time pension claim, and equally that her solicitors had not enquired of her whether she might be able to bring such a claim.

The majority of the EAT held that the Compromise Agreement did not prevent her from bringing a new claim because, at the time of signing the agreement, she did not know that such a claim existed. They placed reliance on the fact that the Compromise Agreement stated that she was only excluding such claims as "you believe you have against the Company". So here is a drafting tip: if you are acting for the employer, don't use a phrase like that in your Compromise Agreements.

The minority (wing) member held that it was contrary to policy to allow an employee to avoid the effect of a Compromise Agreement, the purpose of which is to create industrial certainty for employer and employee.

Just out of interest, the EAT also held that it was not relevant that the Claimant's solicitor was only being paid £250 for dealing with the Compromise Agreement (see paragraph 18 of the judgment)!

Hilton Hotels v McNaughton

Wednesday 19 October 2005

New Family Friendly Proposals

The government has just announced its new family-friendly proposals, following extensive consultation. They will appear in the Works and Families Bill, to be published soon.

The new / changed laws will be:

  • extending Statutory Maternity Pay and Maternity Allowance to nine months from April 2007 with the ambition of moving to a year by the end of the Parliament;
  • a power to introduce new paternity leave for fathers, enabling them to benefit from leave and statutory pay if the mother returns to work after six months but before the end of her maternity leave period;
  • extending the right to request flexible working to carers from April 2007;
  • measures to help businesses manage the administration of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay;
  • introducing 'keeping in touch'days so that where employees and employers agree, a women on maternity leave can go into work for a few days, without losing her right to maternity leave or a week's statutory pay;
  • extending the period of notice for return from maternity leave to two months enabling employees and employers to more effectively plan for return to work;
  • making clear in the regulations that employers can make reasonable contact with their employees on maternity leave to help employers plan and ease the mother's return to work.
For more information, click here

Wednesday 12 October 2005

Personality Dismissals

The Court of Appeal has, today, handed down its judgment in Perkin v St Georges Healthcare NHS Trust.

It stands as authority for the proposition that employers are entitled to dismiss employees for having a difficult personality, even when they are technically good at their jobs and there are no criticisms of their integrity, on the grounds of 'some other substantial reason'. (Note, on the facts, the dismissal was technically unfair because the decision-maker was biased, but the tribunal declined to award compensation).

It is also authority for the proposition that, in an appropriate case, it is possible to:

  • have a finding of 100% contributory fault; and,
  • because of the aggressive way in which the employee defended himself (making allegations of fraud against the Chief Executive of the NHS Trust), any disciplinary panel - even if not chaired by the biased chairperson - would be 100% certain to have dismissed him on the grounds he would not be able to continue working with senior executives of the Trust.
Perkin v St Georges Healthcare NHS Trust

Wednesday 5 October 2005

'Gender Duty' Consultation

Probably of interest only to those who deal in/with the public sector...

The government has launched a consultation on its proposals to introduce a public sector duty to promote gender equality - commonly referred to as the 'gender duty'. These proposals will require public authorities to eliminate discrimination and promote equality of opportunity between men and women. The main three themes oblige public authorities to:
  • identify and implement specific gender equality goals;
  • develop and publish an equal pay policy statement; and
  • assess the impact of new policies and changes to services on men and women - allowing negative effects to be mitigated.
View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)

Thursday 29 September 2005

Redundancy Consultation

The EAT decision in Leicestershire City Council v UNISON has just been placed on the EAT website.

Leicestershire City Council were renegotiating terms and conditions for about 2,600 employees. As commonly happens, they gave notice of dismissal and offered new jobs on new terms. This consitutes a 'redundancy' for the purpose of the collective consultation obligations in s188 of TULR(C)A 1998.

The EAT (HHJ McMullen QC presiding) upheld the tribunal's decision that the time for consultation (ie when the dismissals were 'proposed') began when the practical decision had been taken by the Council's staff - notwithstanding that it needed a formal political vote/decision by the Council to ratify it - and not when the Council voted in favour of the decision to dismiss / re-hire.

This was consistent with the ECJ decision in Junk v Kuhnel, namely that consultation must take place before the decision to dismiss was taken.

The EAT also upheld the award of 90 days' pay (by way of protective award) to a large group of the workforce. It considered that the fact the employer had provided information before the technical obligation to consult arose did not mean that there must be an automatic reduction from the presumed 90 days' pay (as set out in Susie Radin). The protective award to another section of the workforce was reduced (on fact-specific grounds).

Leicestershire City Council v UNISON

Tuesday 27 September 2005

Compulsory ET1 and ET3 Forms

As subscribers will know, use of the 'official' ET1 and ET3 forms becomes compulsory from next week.

Following comments made at user group meetings in Cardiff and Bristol, it seems tribunal staff are being trained to accept and reject the following...

Acceptable from 1st October 2005
  • riders (i.e. separate attached sheets);
  • a pdf version of the forms which will soon appear on the Emplotment Tribunals website which can be downloaded and completed offline (the ETS will be providing software to enable users to fill in these forms - I am told this is likely to happen over the weekend);
  • faxed ET1 / ET3 forms; and
  • black and white photocopies of ET1 / ET3 forms (but note that the coloured guidance notes and text boxes on the forms may not reproduce on a b&w photocopy).

Not acceptable from 1st October 2005
  • any in-house or commercial version that is not produced by the ETS.
Note that the reason for requiring the forms to be asbolutely identical to the prescribed version is to enable them to be scanned in to the new ETS case management system.

The administrative staff at the tribunal offices have all received extensive training in what forms to accept (and reject!) from next week.

The lesson is simple: use the official forms. If you don't have them, they are available on the ETS website.

Further information can be obtained from the Employment Tribunals Service Public Enquiry Line on 0845 7959775.

ETS website - download forms from here

[Thanks to Barry Clarke of Russell Jones & Walker for providing the above information]

Tuesday 20 September 2005

Commission for Racial Equality

The Commission for Racial Equality has just published its 'Race Equalty Scheme' for 2005-2008, setting out the way in which it intends to meet its obligations under the Race Relations Act 1976. Click here to view the Scheme.

It has also just published, on its website, a case law database for court decisions relating to race discrimination. Click here for access.

Wednesday 7 September 2005

Unfair Dismissal Time Limits

The EAT has handed down a decision restating the importance of a solicitor ensuring he does not leave presentation of the Claim Form to the last day.

The Claimant instructed solicitors a week after she was dismissed. The firm, which had only one employment lawyer, was extremely busy and the lawyer concerned adopted a 'time-bar list' approach, i.e. leaving cases to just before the limitation deadline before dealing with them.

On the Friday (before time expired on the following Monday), the solicitor was about to go on holiday but told his secretrary to fax the Claim Form on the Monday morning. She fell ill over the weekend, did not work on Monday, and faxed the Claim Form on Tuesday, i.e. one day late.

The tribunal (sitting at Dundee) held it was not reasonably practicable for the Claim Form to be presented within three months, as the failure to present the claim in time was caused by an unforeseen absence by the solicitor's secretary.

The Employment Appeal Tribunal (HHJ Serota QC presiding) held that this conclusion was wrong in law because the tribunal only looked at the events of the last few days. What it should have done was look at the entire three month period - and there was no good reason why the Claim Form could not have been presented earlie. It reaffirmed cases stating that if a solicitor leaves presenting the Claim Form until the last moment, he does so at his own risk.

Agrico v Ireland

Managing Change: Practical Ways to reduce long hours and reform working practices

The DTI has just published the booklet: Managing Change - Practical Ways to reduce long hours and reform working practices. This is a joint project between the TUC, CBI and DTI.

The booklet identifies practical ways of implementing change management programmes in the workplace and share this learning between businesses.

It is very much aimed at HR practitioners rather than lawyers. But there is a case study of working practices at Eversheds (where flexible working seems to be huge success) - see p20.

Download booklet here (large file - 1.8Mb - Adobe Acrobat required)

Friday 2 September 2005

London Central Tribunal

Some information for aficionados of the London Central tribunal...

Their phone systems and Email systems have been down since (about) the beginning of the week. They now have intermittent phone access and 'slow' - whatever that means - Email access.

So if you think you're being ignored, don't panic (unless you're facing a time limit - in which case, panic!). I am told they do not know when normal service is to be resumed.

Tuesday 30 August 2005

Age Discrimination Seminar

1 Temple Gardens are presenting seminars in London, Birmingham and Manchester on age discrimination. New laws are expected to have a substantial impact on practice for all employment lawyers and HR professionals. The seminars are designed to help delegates advise clients, deal with the ramifications of the legislation and avoid pitfalls leading to tribunal claims.

5th October 2005 - Manchester (location details)
18th October 2005 - Birmingham (location details)
31st October 2005 - London (location details)


Chair: Alison Hewitt

Age Discrimination at the start of employment
Speakers: Paul McGrath / Keith Morton
- advertising
- selection / recruitment

Age discrimination during employment
Speakers: Shaman Kapoor / David Barr
- terms and conditions
- training
- promotion
- harassment

Age discrimination at the end of employment
Speaker: Daniel Barnett
- dimissal to make way for younger workers
- mandatory retirement ages
- the right to request working beyond retirement

Solicitors who are advising clients on how to cope with the forthcoming age discrimination laws, and HR professionals who need to know how the new laws will impact on the workplace.

6.00pm Registration
6.30pm Seminar commences
8.30pm Drinks and canapes

CPD: 2 hours

First delegate: £62.50 + VAT
Subsequent delegates: £55 + VAT

Just click here for the booking form.

Please telephone Gaye Spencer-King on 020 7842 8646 with any enquiries.

Thursday 18 August 2005

Updated ACAS Guides

Acas has just published updated versions of three of its advisory booklets:
It has also published the summer/autumn edition of its national newsletter, Acas News.

Monday 15 August 2005

Employee's Rights on Insolvency - Court of Appeal Resolves Conflicting Authorities

In the last three weeks, the High Court has handed down two inconsistent decision on whether, when a company is in administration, liability for protective awards and payments in lieu of notice take priority (or not) over the expenses of the administration. Peter Smith J. held (27/7/05) that protective awards and PILONs take priority over the expenses of the administration. This has caused enormous panic within the insolvency community.

Two weeks later, Etherton J. (9/8/05) held that they did not take priority - reaching exactly the opposite conclusion to Etherton J..

The Court of Appeal has heard urgent appeals from both these cases and has handed down judgment.

It describes the relevant legislation as "not merely opaque; it is a most unsatisfactory piece of drafting. It is scarcely surprising that it has led to the sharp difference of opinion between two judges..." (para. 29)

Neuberger LJ, after a careful analysis of the statutory provisions, upholds Etherton J.'s decision, holding that protective awards and PILONs do not take priority over the expenses of the administration.

Re Ferrotech Ltd.

Wednesday 10 August 2005

Discrimination against BNP Members

The EAT has handed down a decision holding that BNP activists are entitled to rely on the race discrimination legislation.

Mr Redfearn was a postal delivery driver for the West Yorkshire Transport Service. He was found to have been a "perfectly satisfactory employee". However he was dismissed following union representations when the union and his employer discovered that he stood for, and was elected as, a local authority councillor representing the BNP.

The employment tribunal found he had not been dismissed "on racial grounds", because the reason for dismissal was a fear of violence in the workforce flowing from his political beliefs, and therefore that his claim for direct discrimination under the Race Relations Act 1976 failed.

The EAT (Burton P. presiding) quashed that decision. Relying on the well-established Showboat Entertainment Centre v Owens line of authorities, it held that the phrase 'on racial grounds' must be interpreted widely. It included a dismissal where the decision to dismiss was significantly influenced by questions of race - whether it be the complainant's or somebody else's - and noted that the employer's motive, no matter how benign, was not a defence to the employer.

This decision is undoubtedly correct - the EAT was bound by long-standing authority to rule as it did. However, much with as upper qualifying age unfair dismissal cases allowed age discrimination in through the back door of sex discrimination, this decision allowed discrimination on grounds of political belief in through the back door of race discrimination.

Redfearn v Serco Ltd t/a West Yorkshire Transport Service

[Thanks to John Bowers QC of Littleton Chambers, who represented Serco, for telling me this decision was due]

Friday 5 August 2005

Powers of Review

The EAT has handed down an important judgment dealing with, amongst other things, the ET's powers of review. Importantly, passages in the decision (dealt with below under 'Postscript') encourage tribunals to take a practical rather than rigidly technical approach to the new procedural rules.

The Claimant was ordered to pay £500 as a deposit as a condition of continuing with her unfair dismissal claim. The formal Order did not arrive at the Claimant's solicitors' offices, because the Claimant (when completing her Claim Form) had written their postcode down incorrectly.

The claim was therefore struck out when the deposit was not paid. Upon later enquiry, the Claimant's solicitor discovered what had gone wrong and a cheque for £500 was immediately sent. The tribunal then reviewed its earlier decision, adjusted the date for payment of the £500 and allowed the claim to proceed.

Did the tribunal have power to review its earlier decision?

EAT Decision
The EAT (HHJ Peter Clark sitting alone) held:

contrary to earlier thinking, a strike out under rule 20(4) of the 2004 Rules is a judgment within the meaning of rule 28 and is capable of being reviewed.

an application for a review does not need to formally set out the statutory grounds (eg that the decision is made as the result of an administrative error). It is sufficient if the grounds may be discerned from the document containing the application.

the expression 'administrative error' includes administrative errors by the parties (as well as the tribunal). This is a change from the 2001 rules, which only covered errors by the tribunal;

the 'interests of justice' ground for review should be construed more widely than it was before the 2001 rules introduced the overriding objective;

an order requiring the payment of a deposit is not capable of review (unlike the subsequent order striking out a claim for failing to pay a deposit). However, it may be the subject of revocation or variation under rule 10(2), including the granting of an extension of time for payment.

The following observations of the EAT may be of interest to tribunal chairmen who wish to adopt a practical approach to some of the technicailites under the new Rules:

"42. The 2004 Rules introduce what, on one view, may be thought to be a series of carefully crafted hurdles designed to restrict access to Employment Tribunals and thus reduce the costs of administering the Employment Tribunal system to both Claimants and Respondents...

"84. ...Standing back, one can only speculate at what Lord Donovan and the members of his Commission, reporting in 1965, would have made of the arcane procedural points...discussed in this judgment... I nevertheless prefer to believe that the gradual modification and sophistication in Employment Tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding objective and the increased power of employment tribunal Chairmen to make orders on their own initiative should be seen as valuable signposts to Chairmen to exercise their independent judgment to ensure fairness between the parties. It is what, to return to an earlier theme, truly distinguishes between judicial and administrative decisions."

Sodexho v Gibbons

[Thanks to Alex Lock of Beachcroft Wasbroughs, who represented Sodexho, for telling me about this judgment]

Saturday 30 July 2005

Victimisation by Litigation

The Court of Appeal has (by a majority) overturned the EAT's decision in St Helens MBC v Derbyshire.

Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.

510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.

About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.

The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.

The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.

The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.

They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.

In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.

St Helens MBC v Derbyshire

Remember the Sabbath Day(...Six days shalt thou labour, and do all thy work)

The Court of Appeal has (by a majority) overturned the EAT's decision in St Helens MBC v Derbyshire.

Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.

510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.

About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.

The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.

The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.

The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.

They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.

In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.

St Helens MBC v Derbyshire

Wednesday 27 July 2005

Intervention in Solicitors' Firms - TUPE?

Note- I have entered this case in emplaw under redundancy/meaning of but the internet is not working so have not been able to put in the reference.

The Court of Appeal has today handed down a conceptually complex judgment concerning the effect of the Law Society's intervention in a firm of solicitors on the contracts of employment of those employed by the firm.

It held that where the firm is that of a sole practitioner, the act of intervention by the Law Society does not operate to terminate the employment contracts of staff. Nor does the suspension of the principal's Practising Certificate. Therefore the staff will be transferred under TUPE if the practice is sold as a going concern.

However, where there is a partnership (i.e. not a sole practitioner), the question of whether intervention dissolves the partnership depends on the facts of each case. Intervention will normally dissolve the partnership, as it becomes unlawful for the firm to continue in practice. Thus:

  • if, following dissolution, it becomes impossible or unlawful for the employee to do any of the work he is employed to do, the contract of employment is frustrated and comes to an end. Accordingly, if the practice is later sold, the employee will not transfer under TUPE;
  • if, following dissolution, the parties try to keep the contract alive and to continue it while steps are taken to challenge the intervention or transfer the practice as a going concern, there is no reason for the contracts of employment to terminate automatically. In that situation, if the practice is transferred, TUPE will apply.

Rose v Dodd

Monday 25 July 2005

...Six days shalt thou labour, and do all thy work

In a fascinating case, the Court of Appeal has considered (in three separate reasoned judgments) the issue of whether and when the dismissal of an employee who refuses to work on the Sabbath is unfair.

The case concerned the impact of article 9 of the ECHR (freedom to manifest religion) on UK unfair dismissal law. The unfair dismissal claim was brought by a Christian employee who refused to accept shift-changes requiring Sunday working, and was dismissed as a result.

Mummery LJ, following a line of European Commission authorities ending with Stedman v UK, held that article 9 is not engaged because an employee is always free to resign from a job and not work on Sundays. He made it fairly clear he disagreed with those authorities, but considered himself bound by them.

Rix LJ, in a thoughtful and compelling judgment, held that the line of cases did not hold that Article 9 was not invoked if an employee had the option to resign. However, on the facts, the employer had tried to accommodate the employee when changing his hours to include Sunday working, and although Article 9 was engaged, it was not breached

. Neuberger LJ, dealing principally with English (rather than Convention) law, held that it is always open to a tribunal to find a dismissal unfair if an employer fails to strike a reasonable balance between the needs of the business and the employee's religious beliefs. He considered that Article 9 of the ECHR added little to the existing balancing act necessary for unfair dismissal decisions.

This decision is important as, despite the result, it makes it very clear that employers must try to minimise the impact of changes to working hours on employees who hold strong religious beliefs (eg by offering alternative jobs)

Copsey v WWB Devon Clays Ltd

Thursday 14 July 2005

Age Discrimination

The DTI has, at 10.30am, published the draft Regulations on age discrimination.

The new Regulations:
  • ban age discrimination in terms of recruitment, promotion and training;
  • ban all retirement ages below 65 - except where objectively justified;
  • require employers to inform employees in writing, and at least 6 months in advance, of their intended retirement date. This will allow people to plan for their retirement;
  • remove the current upper qualifying age for unfair dismissal and redundancy rights;
  • impose a duty for employers to consider an employee's request to continue working beyond retirement; and
  • impose a requirement for employers to give written notification to employees at least 6 months in advance of their intended retirement date. This will allow people to plan for their retirement.
The DTI is embarking on a three-month consultation period, seeking comments on the draft Regulations. The new laws will come into force in October 2006.

DTI Age Discrimination Webpage

Admissibility of Claim Forms

The DTI has, at 10.30am, published the draft Regulations on age discrimination.

The new Regulations:
  • ban age discrimination in terms of recruitment, promotion and training;
  • ban all retirement ages below 65 - except where objectively justified;
  • require employers to inform employees in writing, and at least 6 months in advance, of their intended retirement date. This will allow people to plan for their retirement;
  • remove the current upper qualifying age for unfair dismissal and redundancy rights;
  • impose a duty for employers to consider an employee's request to continue working beyond retirement; and
  • impose a requirement for employers to give written notification to employees at least 6 months in advance of their intended retirement date. This will allow people to plan for their retirement.
The DTI is embarking on a three-month consultation period, seeking comments on the draft Regulations. The new laws will come into force in October 2006.

DTI Age Discrimination Webpage

Wednesday 13 July 2005

Age Discrimination - personal organiser

I've been sent a copy of a 'Be Ready' Personnel Organiser, produced by the Age Partnership Group. It's a filofax full of useful information on age discrimination for employers, plus a CD-ROM with training courses on age discrimination awareness.

It's a really good free guide. It will be more useful for HR professionals and employers than for lawyers, but solicitors might want to pass details about it onto clients as a marketing exercise.

You can get copies (as many as you want) by sending a blank Email to (you will automatically be Emailed back a link to a website request form). You can also phone 0845 715 2000, but you may have problems getting through if a lot of people receive this bulletin and dial the number simultaneously.

Note the Age Partnership Group is fairly overwhelmed with demand (it took about six weeks for me to get my copy), so don't expect anything too quickly.

And just for information, the Age Discrimination Regulations are due to be published in draft form by the end of this month, and will be put out for a three month consultation period.

DTI Stress Guide

The DTI, working with the HSE, CBI, TUC, Local Government Employers and the Forum of Private Business, has produced a leaflet for employers and employees on work-related stress.

It says very little - in fact, it could hardly say less - but it comes in at an impressive eight pages of nicely designed graphics and logos.

It's a large file (Adobe Acrobat needed), so if a large number of people click on the link simultaneously when this bulletin arrives, you may not get through and will need to try again later.

Click here to open the Guide (.pdf file)

Tuesday 12 July 2005

ETS Annual Report

The Employment Tribunals Service (ETS) today published its Annual Report and Accounts for 2004-05 (1st April 2004 to 31st March 2005).

Key findings include:

  • 86,181 claims registered, compared with 115,042 the previous year. This decrease of 25% is mainly due to fewer multiple cases;
  • 1,038 cost orders made, with 283 in favour of the claimant, and 755 in favour of the respondent. This is similar to the 976 costs awards the previous year. The median cost award was £1,000;
  • average compensation remains low. The median award for unfair dismissal, including the basic award, was £3,476. The median for discrimination (depending on the type of discrimination) was between £6,200 and £7,500;
  • the cost of running the employment tribunal service last year was £69,770,000. This is equivalent to £809 for each application lodged.

It is unclear how the new statutory dismissal and grievance procedures, and the new procedural rules, have impacted on the number of claims being admitted, as the new rules came into force half-way through the year to which these figures relate. The opening summary states that they have "increased pre-hearing activity for both administrators and judiciary"

Click here for the Annual Report

Monday 11 July 2005

ACAS: Public Sector Change Management

Acas has today launched a range of tailor-made training and workshops to help public sector organisations manage change.

This is accompanied by two publications - 'Working with you to manage change in the NHS' and 'Working with you to manage change in local government' - which include case studies.

More information

Saturday 9 July 2005

Service at Tribunals by Email

Where a Claim Form is sent to the tribunal by Email, a Claimant is entitled to assume it will be delivered at the tribunal within about an hour (unless there is an indication that it has not been received, such as a message bounce-back).

Accordingly the Consignia v Sealy 'escape route' is open to a Claimant who sends his Claim Form by Email on the last day for service of the ET1 (as long as s/he allows an hour before midnight, when time expires). The tribunal should then consider if the Claimant has acted reasonably promptly in re-sending the form once s/he realises it has not been received.

In this case, the Claimant Emailed her Claim Form at 4.05pm on Friday (the last day). It was not received at all. She phoned to check it had arrived the following Wednesday or Thursday, and when she discovered it had not arrived, she delivered another Claim Form.

The EAT (Burton P. presiding) upheld the tribunal's decision that it was not reasonably practicable for her to have presented the Claim Form in time, relying as she did on the ordinary course of Email, and she had presented the Claim Form within a reasonable period after expiry of the three-month period.

Initial Electronic Security Systems v Avdic

Thursday 7 July 2005

Justification of Indirect Discrimination: range of reasonable responses test does not apply

The Court of Appeal has, this morning, held that the range of reasonable responses test does not apply when tribunals decide whether an otherwise indrectly discriminatory 'provision, criterion or practice' is objectively justified.

In Hardys & Hansons v Lax, Pill LJ held that the Sex Discrimination Act 1975 demands that:

"The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances." (para. 32).

Thomas LJ added that where the employer is relying on the economic needs of the business, it would be expected to adduce sufficient evidence of that business need to enable the tribunal to "set out at least a basic economic analysis of the business and its needs... the analysis must be through and critical and show a proper understanding of the business of the enterprise." (para. 55)

Hardys & Hansons v Lax

Tuesday 5 July 2005

Commission Advances for Employees not void under Consumer Credit Act

The Court of Appeal has held that monies paid to employees by way of 'advances' on commission are not 'credit' within the meaning of the Consumer Credit Act 1974. Accordingly the repayment clauses are enforceable even if they do not comply with the technical requirements of the Act (and, of course, they never will).

In McMillan Williams v Range, the employers were a three-partner firm of solicitors based in Surrey and South London. They employed an assistant solicitor on a 'commission' basis, to receive one-third of her billings. For the first two years, they paid her £22,000 on account, intending an up or down adjustment to be made after two years. Her billings were not anything like sufficient to cover her salary (i.e. £66,000) and, after she resigned, they sued her for return of £17,000 overpaid commission. She counterclaimed for misrepresentation, alleging the firm had misled her over the amount of work available.

The Court of Appeal, dealing with this as a preliminary issue, held that the arrangement was not one for 'credit' - thus Ms Range could not defeat the claim by pointing the fact that her contract did not comply with the provisions of the Consumer Credit Act 1974.

This very sad case is worth reading - particularly paragraphs 29 and 30 - where the Court of Appeal criticises both sides in extremely robust terms for running up £50,000 of costs on just the preliminary issue, and for "posturing and jockeying for position" throughout "tedious correspondence". The Court makes it very clear that they expect cases of this nature to be dealt with, if at all possible, by mediation.

McMillan Williams v Range

Daniel Barnett
5th July 2004

Thursday 30 June 2005

Equal Pay

The EAT has handed down its decision in Hope v SITA (UK) Ltd.

Mrs Hope was promoted to the position of Group Purchasing Manager, which a man had previously done, but not paid as much.

The tribunal found that this was 'like work', but also found that Mrs Hope in fact did more work than her predecessor because he had had a deputy to shoulder some of the workload (i.e. her), but she did not have a deputy and so was doing more work.

The EAT rejected the argument that there cannot be 'like work' when a woman is found, as a fact, to be doing more work than her male comparator (para. 13). HHJ Wakefield held:"On any purposive construction of the Act, the fact that a promoted woman undertakes more duties than her male predecessor cannot result in a conclusion that the two are not undertaking like work in order to justify her being paid less."

Sita UK Ltd v Hope EAT 2005

Minimum Wage

The statutory instrument containing this year's increase to the minimum wage has been laid before parliament (see bulletin dated 25th February 2005 when the increases were announced).

The changes, which take effect on 1st October 2005, are:
  • for adult workers, from £4.85 to £5.05ph
  • for younger workers (18-21), from £4.10 to £4.25
  • the accommodation allowance increases from £3.75 to £3.90 per day/

Wednesday 22 June 2005

New ACAS Guides

Acas has, today, updated three of its guides, namely:
Click on the titles above to link through

Basic Award Set-off for Redundancy

In what was described by HHJ McMullen QC as "an arcane corner of the law relating to compensation for unfair dismissal", the EAT has held that a payment made by an employer, which purports to be a redundancy payment, cannot be set-off against the basic award in an unfair dismissal claim.

In Bowyer v Siemens Communications, Mrs Bowyer was dismissed on grounds, purportedly, of redundancy. The tribunal found that the dismissal was procedurally and substantively unfair and - significantly - that the real reason for dismissal was not dismissal.

Her financial losses were over £200,000, and were capped at the (then) compensatory award limit of £53,500.

She had been paid, at the time of the dismissal, £6,240 by way of a statutory redundancy payment. The tribunal refused to award a basic award (of £6,240) on the basis of s122(4) of the Employment Rights Act 1996, which states that the basic award should be reduced by the amount of any payment made to the employee on the ground that the dismissal was by reason of redundancy.

The EAT overturned the tribunal's decision, following an older Court of Appeal authority which held that, for s122(4) to be engaged, the dismissal had to actually be on grounds of redundancy. A payment expressed to be in respect of redundancy would not be set-off against the basic award, if the true reason for dismissal was not redundancy.

Normally this will make no difference, since the 'redundancy' payment would be set-off against the compensatory award. But where the compensatory award exceeds the cap, as in this case, it results in the employee receiving a full basic award on top of the 'redundancy' payment she has already had.

Bowyer v Siemens plc, EAT 2005

Monday 20 June 2005

Discrimination - Joint and Several Liability

The EAT has handed down judgment on whether general 'mental handicap', or generalised learning disorders, can amount to a disability.

It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.

However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.

This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).

Dunham v Ashford Windows EAT 2005

[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]

Disability Discrimination - Mental Impairment

The EAT has handed down judgment on whether general 'mental handicap', or generalised learning disorders, can amount to a disability.

It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.

However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.

This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).

Dunham v Ashford Windows EAT 2005

[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]

State Immunity

An interesting decision on the procedure for claiming / challenging state immunity, arising largely from the unusual facts of the case.

Mr Aziz was employed for many years as an accounts assistant at the London embassy of the Republic of Yemen. He claimed unfair dismissal. Solicitors acting for Yemen lodged an ET3, without taking any state immunity point.

On the morning of the hearing, Counsel for Yemen raised the immunity defence. The tribunal rejected this defence, holding that by lodging an ET3, Yemen had waived reliance on state immunity (under s2(5)of the State Immunity Act 1978).

The Employment Appeal Tribunal admitted two witness statements from the Yemeni Ambassador. He said that he was unaware of the right to claim state immunity and had not authorised any waiver. He said that the Embassy had not authorised instruction of solicitors and that the solicitors had entered the ET3 without authority. The EAT accepted this at face value, allowed the appeal and held that Yemen was entitled to claim state immunity.

The Court of Appeal has overturned the EAT's ruling. In a somewhat laconic judgment, the Court of Appeal said that the EAT should critically evaluate claims of this nature (rather than take the Embassy's evidence at face value) and, if a fact-finding mission is needed, remit the case back to a tribunal.

Pill LJ, relying on such factors as the Ambassador had, himself, visited the solicitors' offices (and had denied that an individual at the embassy was a member of the diplomatic staff, despite that individual having been certified as member of diplomatic staff to the Foreign & Commonwealth Office), held that issues of fact as to the accuracy of the Ambassador's evidence arose. Accordingly, the Court of Appeal remitted the case to a (different) tribunal to conduct a fact-finding exercise into whether Yemen had waived state immunity.

Aziz v Republic of Yemen

Monday 6 June 2005

Rolled up Holiday Pay


As most people will know, the 'rolled-up holiday pay' issue was referred to the ECJ last year (see bulletin 17/3/04).

The conjoined cases of MJ Clarke v Frank Staddon and Caulfield Barnes v Marshalls Clay Products have now been listed for hearing before the ECJ on 15th September 2005.

Allowing time for the Advocate-General's opinion and the judgment of the full court (which normally takes 6-9 months after hearing argument), we should have a decision in Spring/Summer 2006.

[Thanks to Tony Mizler of A.E. Mizler & Co., for telling me about the listing date.]

Redundancy Dismissals - Suitable Alternative Employment

The EAT has held, in Fisher v Hoopoe Finance Ltd., that where there are one or more possibilities of suitable alternative employment available to an employee who is to be made redundant, then the employer should normally inform the employee of the financial prospects of those positions to enable the employee to make an informed choice. A failure to provide such information (unless impractical, for example if the salary has not been set) is likely to make any dismissal unfair and, presumably, likely to render it reasonable for the employee to refuse the offer.

That appeares relatively uncontroversial. Of greater interest, is an indication by the EAT (HHJ Birtles presiding) that a failure by an employee to indicate an interest in a particular position and/or to request further information (including financial information) is a factor which the Employment Tribunal may wish to take into account in reducing the basic and compensatory awards on grounds of contributory fault.

Fisher v Hoopoe Finance Ltd EAT 2005 . (see para. 17)

ACAS Leaflet on employing older workers

Acas has today issued a new advisory leaflet, 'Employing Older Workers'. It gives advice on what to consider when recruiting, planning for the future and managing older workers. As with all Acas guides, it is practical and succinct, with none of the political hyperbole seen in similar guides produced by other organisations.

Acas Leaflet on Employing Older Workers

Thursday 26 May 2005

Unfair Dismissal and National security

Section 10 of the Employment Rights Act 1996 provides that the employment tribunal must dismiss a complaint of unfair dismissal if it is shown that the action complained of (ie dismissal) was taken for the purpose of safeguarding national security.

Mr B was a security guard with the BAA at one of its airport terminals. The Department for Transport informed BAA that it could not employ him on security grounds. BAA therefore dismissed him.

The employment tribunal held that the dismissal was for the purpose of national security, and therefore dismissed the claim.

The EAT (Burton P. presiding) held that the test is not so straightforward. It was incumbent on the tribunal to decide whether the employer acted reasonably in dismissing. The statute refers to "the action complained of", and the employer must establish that dismissal (contrasted with, for example, redeployment into another post) fell within the range of reasonable responses. Only if dismissal was a reasonable response will the tribunal be obliged to dismiss the unfair dismissal application (see paras. 38-40 of the decision).

B v BAA plc EAT 2005

TUPE - Date of Transfer

The ECJ has provided its ruling in Celtec v Astley. The facts are set out below, reproduced from my bulletin dated 13th November 2004:

Prior to 1990, vocational training and enterprise activities were managed by the Department of Education. In 1989, the government announced the creation of Training and Enterprise Councils (known as TECs). Approximately 80 TECs were set up, using (in the main) the same premises, databases and staff as had been doing the job under the Department of Education. They took over the Department of Education's existing contracts with suppliers and other third parties.

This case was concerned with the North Wales TEC, which began operations in about September 1990. In common with the other TECs, it was a company limited by guarantee and was initially staffed by civil servants, previously working for the Department of Education, who were seconded out for a 3-year period to the TEC. The terms of secondment provided that they continued to be civil servants and that, at the end of the period, they could extend the period of secondment or return to normal civil service duties.

In September 1991 the government decided to end the secondments and arrange for staff to be directly employed by the TECs. Following a period of consultation, all staff were offered the opportunity to return to the civil service at the end of their secondment, or resign from the civil service and enter into contracts of employment with the TEC. Many employees, including the Respondents to this appeal, adopted the latter option. The three in question, who brought their claims as test cases, resigned and entered into new contracts in about October 1993 (although the process extended until 1996 for other employees).

If the TUPE transfer took place in September 1990, then "at the time of the transfer" (being the wording in ERA 1996, s218, dealing with continuity of employment) the employees were, and remained, employees of the Department of Employment. Thus s218 would not grant them continuity of employment.

If, however, the TUPE transfer was a gradual process occurring between September 1990 and October 1996 (as the staff transferred), then the employees would have retained continuity of employment for their years spent with the civil service.

Issues and Ruling.
Three issues were referred to the ECJ (I am paraphrasing the questions posed):

1.should the phrase "rights and obligations...existing on the date of a transfer", in the Acquired Rights Directive (which gave rise to TUPE and which had direct effect) be interpreted as meaning that there is a particular point in time at which the undertaking is deemed to have transferred? The ECJ has ruled that the use of the word 'date' (singular) in the Directive, combined with the need for legal certainty, means that the Claimants must be able to point to a specific date on which they say the transfer occurred. A transfer cannot occur over a period of time (see paras. 32-36). This leaves the status of reg. 3(4)(a) of TUPE, which provides that "a transfer...may be effected by a series of two or more transactions", somewhat unclear.

2.If so, how is that date to be ascertained when a transfer takes place as a series of transactions over a period of time? The ECJ completely fudged this issue, and provided a single meaningless Eurospeak sentence (para. 44) which will be of no help to tribunals or practitioners.

3.If not, how should the words 'on the date of a transfer' be interpreted? The ECJ did not need to address this question.

Astley and ors v Celtec Ltd CA 2002

Wednesday 18 May 2005

Inadequate Reasons Appeals

The Court of Appeal held, earlier this week, that the Burns v Consignia procedure adopted by the EAT is lawful, welcome and should not be interfered with by further appeals.

In Burns v Consignia, the EAT developed a procedure for asking tribunals to clarify their reasoning when appeals were brought on grounds of inadequate reasoning.

The Court of Appeal was asked to declare that procedure unlawful on the basis that there was no statutory jurisdiction; alternatively that the power should be exercised in rare circumstances only.

The Court of Appeal, instead, declared the procedure lawful (under each of the EAT's statutory powers, the ET's statutory duties to provide reasons, and as a matter of inherent jurisdiction outside the rules).

The Court of Appeal went on to hold that the Burns procedure can be used freely and is a matter of discretionary exercise of case management powers by the EAT.

Barke v SEETEC Business Technology Centre

Friday 13 May 2005

SOSR - Business Reorganisations

In Scott & Co v Richardson, the EAT has reminded tribunals of the low threshold for deciding whether an employer has 'some other substantial reason' for dismissing an employee

. Scott & Co was a firm of debt collectors. They wanted to reorganise their employees' contracts to introduce a shift system. This meant that employees could be required to knock at debtors' doors in the evenings (rather than during the day, which is less effective).

Mr Richardson refused to agree to the change to his contract. He said that he was willing to work evenings but (as previously) he wanted to be paid at overtime rather than normal rates. After seven months of trying to persuade him, he challenged Scott & Co to dismiss him or stop insisting on the changes. So Scott & Co dismissed him.

The employment tribunal held that the employer had not demonstrated 'some other substantial reason' for the dismissal, as Scott & Co had not demonstrated that the changes in shift patterns had discernible advantages to it.

Burton P. held that this was the wrong approach. The correct approach is whether the employer reasonably believed/concluded that the change to contract terms had advantages. It was not necessary to go a step further and prove that it did have those advantages. Provided the reason was not "whimsical, unworthy or trivial", then the employer will establish 'some other substantial reason'.

The EAT accordingly remitted the case to a different tribunal to decide whether the dismissal was fair under s98(4), which involves balancing the detriment to the employee of introducing the change against the detriment to the employer of not introducing the change.

Scott & Co. v Richardson