Wednesday 27 April 2005

Unfair Dismissal - time limits

The Court of Appeal has handed down its decision in Marks & Spencer v Williams-Ryan. It upheld the tribunal's (and the EAT's) decision that it was not reasonably practicable for Mrs Williams-Ryan to present her unfair dismissal claim within three months, and therefore that she should have an extension of time.

Mrs Williams-Ryan was dismissed. A CAB advised her to exercise Marks & Spencer's internal appeal procedure, but did not tell her to lodge a tribunal claim. Her letter of dismissal told her she could complain to a tribunal, but did not tell her of the three-month time limit.

The internal appeal took 3.5 months (due to M&S's delay), and she lodged her ET complaint four months after the dismissal.

The Court of Appeal, after thoroughly reviewing the authorities on late presentation of claims, held:

although an employee is bound by the negligence of their solicitor (and cannot have time extended for claiming unfair dismissal if the delay is due to the solicitor's negligence), it is less clear that an employee is bound by the negligence of a CAB advisor;however, since the CAB advisor did not even raise the issue of unfair dismissal (let alone give wrong advice on time limits), no issue of negligence arose. The Court of Appeal did not deal with the argument that it was the very failure to raise the issue of unfair dismissal that might be said to be negligent. Nor did the Court of Appeal deal with the fact that M&S had told the employee of the right to claim unfair dismissal (albeit not about the time limit);that being the case, there was no rule of law requiring the tribunal to find that it was not 'not reasonably practicable' for the employee to present her claim within three months, and so the employment tribunal's decision could not be categorised as perverse.

Although this decision is useful for its review of the authorities, practitioners should be cautious about relying on its decision to promote an extension of time if similar facts crop up again. It is an unusual decision and is (as the Court of Appeal say) heavily influenced by the fact that, if M&S had not been guilty of delay in going through its own internal appeal procedure, Mrs Williams-Ryan would undoubtedly have presented her claim within the three month time period.

Territorial Jurisdiction

The Court of Appeal has, today, overturned the EAT's decision in Saggar v Ministry of Defence.

Lt. Col. Saggar was an army officer. He served between 1982 and 1998 (16 years) in the UK. He was then posted to Cyprus for just over three years. During the first year of that posting, he was (allegedly) subjected to acts of race discrimination.

The employment tribunal (and, subsequently, the EAT) held that Lt. Col. Saggar's employment was, at the relevant time, "wholly or mainly outside Great Britain" and therefore the tribunal had no jurisdiction to hear the substantive complaint of race discrimination because of s8 of the Race Relations Act 1976.

The Court of Appeal has overturned this ruling. Mummery LJ (giving the only judgment) held that the correct approach is to look at where the employee is based for his entire period of employment (in this case, 19 years). In that light, the tribunal should then ask, 'was the employment wholly or mainly outside Great Britain?' It has remitted the question to a different tribunal, with a fairly clear steer that a period of three years abroad out of 19 years total service could not be said to be employment 'wholly or mainly' outside Great Britain.

Note that the test for territorial jurisdiction has now changed (see the new s8 of the Race Relations Act 1976, post July 2003). The test is now whether work is done "wholly or partly" in Great Britain (with an additional proviso granting jurisdiction if the employer carries on business in Great Britain and the employee was ordinarily resident in Great Britain when obtaining employment or at any time during employment). Nevertheless, the Saggar decision remains important, as tribunals will need to look at the entire employment period when deciding whether the employee did work 'wholly or partly' in Great Britain.

Saggar v Ministry of Defence

Tuesday 26 April 2005

When two wrongs dont make a right...

The Court of Appeal has, today, handed down its decision in the important case of Beart v HM Prison Service.

The case had previously reached the Court of Appeal on liability. This Court of Appeal hearing deals with damages.

Mrs Beart was discriminated against, on grounds of disability, by not relocating her after she suffered from depression. She was then dismissed, on grounds which the tribunal found to be plainly unfair, because of a suspicion that she was working whilst on paid sickleave.

The tribunal awarded a six-figure sum for disability discrimination. The Prison Service appealed (to both the EAT and the Court of Appeal) on the basis that its act of unfair dismissal was an intervening act, and so the damages for loss of earnings arising out of the disability discrimination should stop at the point where the unfair dismissal statutory cap would have been engaged (which was, at the time, £12,000).

The Court of Appeal, upholding the ET and EAT decisions, dismissed this submission in scathing terms (paras. 30 onwards). Rix LJ, giving the leading judgment, said that an employer cannot rely on its own act of unfair dismissal to limit the compensation otherwise payable for disability discrimination. He stated that the Prison Service had committed two discrete wrongs, both of which warranted compensation, in respect of which statute has provided a cap for one but not the other (para. 34).

The ratio of the case is best encapsulated at paragraph 50, where Wall LJ holds:

"I share the puzzlement expressed by Rix LJ at the proposition that an employer...could escape liability for acts of disability discrimination by relying on a further wrong committed against the employee, namely that of unfair dismissal."

Beart v HM Prison Service

Monday 25 April 2005

Agency Workers - Implied Contracts of Employment

Since Dacas v Brook Street Bureau, tribunals have been finding implied contracts of employment between agency workers and end users on a regular basis. A practical difficulty, however, is that employees often only bring a claim against either end-user or the employment agency.

The Employment Appeal Tribunal has just handed down a decision recommending that tribunals exercise their own power to join parties in order to add as Respondent the other party (either end-user or employment agency). This enables the tribunal to undertake a fuller review of the 'employment' relationship and ensures that the Claimant will not be left without a practical remedy if the other Respondent (i.e. other than the one the Claimant has sued) is found to be the employer.

Astbury v Gist

Friday 22 April 2005

Holiday Pay for long-term Sick Employees - Commissioners of Inland Revenue v Ainsworth

The Court of Appeal has, today, held that the right to four weeks' statutory paid holiday under the Working Time Regulations 1998 does not continue to accrue whilst an employee is off on long-term sick-leave.

This overturns the EAT's controversial decision in Kigass Aero Components v Brown (2002).

The Court of Appeal also overturned the EAT's decision in List Design v Douglas (2002), which held that non-payment of statutory holiday entitlement amounts to a non-payment of wages (under Part II of the Employment Rights Act 1996) - the importance being that the Claimant can claim back from a number of years if the deductions are part of "a series of deductions or payments". The effect of overruling List Design is that Claimants can only claim under the Working Time Regulations 1998 in respect of the one, relevant holiday year (assuming the statutory three month time limit is met).

Commisioners for the Inland Revenue v Ainsworth

[Thanks to John Bowers QC of Littleton Chambers for telling me this judgment had been handed down]

Monday 18 April 2005

Unfair Dismissal - Upper Qualifying Age

The Employment Appeal Tribunal has handed down a judgment restating the law on the 'normal retirement age' and comprehensively destroying the attempts of some BA employees to claim age discrimination by the backdoor route of sex discrimination.

In Cross & ors. v British Airways, the EAT (Burton P. presiding) held:the existing law on 'normal' (contrasted with 'contractual') retirement ages was correct;the fact that some employees TUPE transferred to BA from British Caledonian (which had a different retirement age) some 17 years before could not impugn the tribunal's conclusion that the normal retirement age for BA staff had, in effect, harmonised;the approach of looking at several different 'pools', to decide if the retirement policy had disparate impact on one gender, was the correct approach;it is legimitate to take account of cost to the employer when deciding the justification issue in an indirect discrimination claim. Importantly, the EAT distinguished the position of a private company, which is entitled to rely on cost to justify a policy, with that of the state (and its notional 'bottemless purse') which, under EU law, is not permitted to justify an otherwise discriminatory social policy on grounds of cost. The EAT added that the employer cannot rely solely on questions of cost, but can put cost into the balance (along with such other justifications as may exist).

The case does not lay down any new propositions of law, but contains thoughtful analysis and a robust approach to the existing, complex, caselaw surrounding this area.

Cross (& ors.) v British Airways

London (Central) Employment Tribunal

A reminder: from today, London (Central) tribunal moves from Woburn Place to:

Victory House
30-34 Kingsway
London WC2B 6EX
DX: 141420 Bloomsbury 7

Telephone and fax numbers remain the same.

Modern Apprenticeships

A Modern Apprentice is not an 'apprentice' in the traditional sense, so as to fall within the definition of 'employee' in the Employment Rights Act 1996(which, at s203, defines 'employee' as including anybody working under a contract of service or apprenticeship). The traditional apprenticeship involved a fixed period of training, where the apprentice would supply labour and the master would supply training.

However, the 'modern apprenticeship' system (where an individual works for an employer, but is sent out to a college or other training provider for part of the working week to be trained) qualifies as a normal contract of employment and therefore the apprentice obtains employment protection through that route.

Flett v Matheson

Monday 11 April 2005

Consultation: Sexual Orientation Regulations

The DTI is consulting on a proposed amendment to the Employment Equality (Sexual Orientation) Regulations 2003.

The amendment follows on from the Civil Partnerships Act 2005. It:

  • makes it clear that, for the purposes of the Employment Equality (Sexual Orientation) Regulations 2003, the status of a civil partner is comparable to the status of a spouse. The effect is to enable a civil partner who is treated less favourably than a married person in similar circumstances to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations; and,
  • prevents an employer justifying less favourable treatment of a civil partner as compared to a spouse in similar circumstances unless he could show that being heterosexual was a genuine occupational requirement of the job.

The consultation also deals with another amendment concerning entitlement to social security and other benefits.

Consultation: Sexual Orientation Regulations

[Thanks to Lucy Baldwinson at Allen & Overy for telling me about this consultation paper]