Thursday 27 April 2006

ACAS Guide to Age Discrimination

Acas has, overnight, published its Guidance on Age Discrimination.

It is a very clear guide although, being aimed at employers, it is pitched at too basic a level for employment lawyers. There are some very useful flowcharts towards the end of the booklet.

View Acas Guide to Age Discrimination (.pdf file)

Friday 21 April 2006

Tribunal Bias

This case is an example of a tribunal decision being set aside because of apparent bias (i.e. where the fair minded and informed observer present at the hearing, not being a party or associated with a party, having considered the facts, would consider that there was a real possibility that the tribunal was biased).

An employment tribunal chair, at the outset of a case, said to the employer's representative (who was not a legal representative) that it "may be in some difficulties in maintaining that the claimant was dismissed by reason of her conduct as it appeared from the [documents] lodged by the [employer] that there was no indication that the reason for the [employee's]dismissal was her conduct."

As a result of that indication, the employer conceded that the dismissal was unfair (a position it had previously challenged). It then appealed.

The EAT (Lady Smith presiding) noted that the representative, also at the EAT, "was anxious, not confident and it was easy to envisage that he would have been vulnerable to pressure".

Against that impression of the representative, and the fact that the chairman had not expressly said "This is only a preliminary view and we are open to persuasion", the EAT considered the test for apparent bias was made out. Accordingly it set aside the finding of unfair dismissal and allowed the employer to withraw its concession.

Chris Project v Hutt

Thursday 20 April 2006

Tupe and the Vanishing Dismissal

The EAT (HHJ Peter Clark sitting alone) has held that TUPE 1981 operates so that, when employees are dismissed for misconduct before a TUPE transfer, but are reinstated after the date of transfer by the transferor, the dismissal 'vanishes' and the employees are deemed to have been transferred under TUPE.

In other words, despite having been dismissed at the date of the transfer, they are deemed (if the appeal is successful) to have been employed "immediately before" the transfer.

In reaching that conclusion, the EAT relied on previous decisions of the EAT and Court of Appeal where a dismissal was held to have 'vanished' following a successful appeal, for example for the purpose of deciding whether an employee had continuity of employment for claiming unfair dismissal.

G4S Justice Services v Anstey & Simpson

Wednesday 19 April 2006

Bank Holiday Mondays / Part-Time Workers

The EAT has considered, in a case with slightly unusual facts, the difficult question of whether part-time employees who do not work on Mondays are entitled to a pro rata apportionment of extra time off in respect of Bank Holidays which always fall on a Monday.

Four of the UK's eight bank holidays always fall on Monday (Easter Monday, May Day, Spring Bank Holiday and August Bank Holiday). One is always on a Friday (Good Friday) and the other three vary. For some time, there has been debate about whether the Part Time Workers (Prevention of Less Favourable Treatment) Regulation 2000 prohibit an employer from allowing a full-time worker time off for Monday Bank Holidays, when part-timers who do not work Mondays do not receive time off.

The Claimant in this case worked Wednesdays, Thursdays and Fridays. The employer, Capita Business Services, operates seven days a week. The tribunal found that the part-time Claimant suffered a detriment compared with full-time workers, in that he did not receive the benefit of Monday bank holidays. However, it found the reason was not his status as a part-time worker, but simply because he did not work Mondays. Accordingly his claim was dismissed.

The Employment Appeal Tribunal upheld the tribunal's decision. It placed considerable emphasis on the fact that the Respondent operated a seven-day a week business, and that full-timers who worked five days a week excluding Mondays also did not receive time off for those Bank Holidays.

This decision provides some support for employers who do not give part-time workers additional pro rata time off in respect of bank holidays. However:

  • it remains to be seen whether the same approach would be taken with a five-day (rather than seven-day) a week business, where ALL full timers receive the benefit of bank holidays;
  • the case did not deal with justification (as it was not necessary to do so). It is strongly arguable that an employer would be justified in restricting the benefit of time off for Bank Holidays to people who actually work on those days, even if doing so has a detrimental impact on part-time workers.

McMenemy v Capita Business Services Ltd

Sunday 16 April 2006

Reversal of Polkey

Last week, I reported Alexander & Hatherley v Bridgen Enterprises, in which the EAT (Elias P. presiding) considered s98A(2) of the Employment Rights Act 1996. This section, which partially reverses Polkey, provides:

"98A(2) Subject to subsection (1) [compliance with the statutory minimum dismissal procedure], failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."

In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that s98A(2) enables employers to avoid a finding of unfair dismissal in respect of any breaches of what might otherwise be regarded as a 'fair' procedure, when the employer could establish that the 'fair' procedure would not have saved the employee from dismissal.

On the same day last week, another division of the EAT (HHJ McMullen presiding) handed down a decision holding almost precisely the opposite - see Mason v Ward End Primary School.

HHJ McMullen holds that s98A(2) only rescues employers when the procedural breach amounts to breach of a formal procedure - either one that is written down, or one which has arisen through custom and practice. However, he considers it does not extend to more general breaches of a 'fair' procedure, such as those envisaged by the Acas Code of Practice.

In reaching this decision, HHJ McMullen repeats his views (far more briefly expressed) in Pudney v Network Rail last month, which were regarded by Elias P. at para. 56 of Alexander & Hatherley v Bridgen Enterprises as wrong. However, in this more recent case, HHJ McMullen has set out full reasoning for his conclusion, rather than just asserted a principle.

Thus we are left with two inconsistent - and both, well-reasoned - decisions of the EAT on a very important point of interpretation of s98A(2). As I understand it, neither case is being appealed to the Court of Appeal.

Thursday 6 April 2006

Employment Agency Contracts

It's not strictly employment law, but a lot of employment lawyers will find this case useful. It's good news for those who advise employment agencies...

The Court of Appeal has allowed an employment agency's second-tier appeal in Euro London Appointments Ltd v Claessens International Ltd. The case is authority for the proposition that a clause making partial refunds against an employment agency's fees, in respect of permanent staff whose employment ends within 12 weeks of commencement, conditional on the client discharging the agency's fees within seven days is not an unlawful penalty (and therefore void).

The agency brought a summary judgment application for unpaid fees, in respect of two workers who had left their employment within a few weeks. The client admitted liability for part of the fees, but relied on a contractual term stating that it could have an 80% and 40% refund respectively, as the employees had been left employment within a few weeks of starting.

The agency responded by relying on another term, providing that the refund was only available if its fees were paid within seven days (which they had not been). The client responded, in turn, that the term was a penalty and should not be enforced. The District Judge and the Circuit Judge both accepted that the clause was a disguised penalty. The Court of Appeal reversed these decisions, and held that the clause making the refund conditional on payment within seven days was not a penalty.

The decision is complicated. The essence of the Court's reasoning (Chadwick LJ giving the leading judgment) is that the clause was simply a condition precedent to exercising the right to a refund, and was not a measure of damages (whether grossly disproportionate or not) for breach of contract.

Euro London Appointments Ltd v Claessens International Ltd

ECJ Holiday Pay Decision

The ECJ has, this morning (Thurs), handed down its decision in Federatie Nederlandse Vakbeweging v Staat der Nederlanden.

It is authority for the proposition that:

  • the ECJ TUPE case of Henke v Gemeide Schierke and Verwaltuingsgemeinschaft Brocken remains the most unpronounceable case name out there, but only just (do feel free to challenge me on this!); and,
  • more importantly, it is unlawful for EU states to allow employers to replace the minimum four weeks' paid holiday with pay in lieu, even when the holiday year has expired and the holiday allowance carries over into the following year.
Under the Netherlands' civil code, employers must provide four weeks' paid holiday leave each year. However, if the employee does not take the holiday, employers are permitted to roll it over into the next year and pay compensation in lieu (provided they allow the employee to have their full four week entitlement in that, subsequent, year).

The ECJ has ruled that this practice is contrary to Article 7(2) of the Working Time Directive, which requires Member States to ensure that every worker is allowed four weeks' paid annual leave, and that this annual leave may not be replaced by a payment in lieu (except after termination of employment).

The ECJ's reasoning is, essentially, that permitting pay in lieu for untaken holiday entitlement in subsequent years might provide an incentive for employees, incompatible with the objectives of the Directive, not to take their full leave entitlement (which is an important health & safety measure) during the year.

Federatie Nederlandse Vakbeweging v Staat der Nederlanden

Monday 3 April 2006

Solution to New EAT Website problem

In a bulletin yesterday, I pointed out that an unfortunate side-effect of this weekend's revamp of the EAT website is that all previous links to EAT judgments on my bulletins no longer work. As you may know the website hosts an archive of my bulletins in its subscription area.

I've now been told by Henry Scrope, who heads the team running the site, that they have found a solution and have already reconstituted all links to EAT judgments on the emplaw website, including links to EAT judgments from the archive of my bulletins. So if you are a subscriber to emplaw, the problem should be a non-problem.

At his request, I am happy to point out that subscribers to the professional area on now receive at no extra cost a twice weekly web-updater e-mail of links to latest employment-law related material available free on the web. To help avoid 'information overload', it starts with a sifted section of around half a dozen of the more significant items. offers free trial passwords to the professional subscription area - send an e-mail to

Sunday 2 April 2006

New EAT Website

An impressive new-look website has replaced the old EAT site, following the move of the employment tribunals service from the DTI to the Lord Chancellor's Department over the weekend.

However, an unfortunate consequence is that all links to judgments have changed (which means that all previous links to EAT judgments on these bulletins will not work).

The web address is the same - but it does look far more professional!

New EAT website -