Thursday 31 August 2006

Grievance Procedures and Limitation

The Employment Appeal Tribunal has held that time limits are not extended under the statutory dispute resolution procedures, where an employee brings a discrimination claim against another employee.

The Claimant brought a race discrimination claim against her employer and the individual she claimed had discriminated against her. The claims were presented over three months, but less than six months, after the discrimination allegedly took place.

As against the employer, the three-month limitation period was undoubtedly extended to six months following her submission of a step 1 grievance letter.

However, the EAT held that there was no extension of time in respect of the claim against the fellow employee, as the statutory grievance procedure did not apply - and therefore the provisions extending the limitation period did not engage. Accordingly the claim was prima facie out of time.

The conclusion is undoubtedly correct. It is quite plain from the wording of the legislation that the statutory dispute resolution framework is not intended to apply to disputes between fellow employees - thus the result of this case is unimpeachable.

However, the EAT's reasoning in reaching that conclusion was (in part) flawed, as the EAT relied on s30 of the Employment Act 2002. This provides that the statutory grievance procedures are deemed to be implied into the contract of employment - and since the Claimant had no contract with her fellow employee, the statutory grievance procedure could not have applied. This reasoning is incorrect as s30 has not been brought into force (the DTI is reviewing this, amongst other matters, later this year).

Bisset v Martins & Castlehill

[Thanks to Sandy Kemp of Simpson & Marwick, who represented the Respondent, for passing me this decision.]

Tuesday 22 August 2006

Mutuality of Obligation

The EAT has, in a decision handed down yesterday, neatly circumvented the requirement for mutuality of obligation in an employment contract.

The Claimant, a TV reporter for ABC, was employed under a framework agreement whereby ABC was obliged to offer him at least 100 days' work a year, and he was entitled to either accept or refuse the assignment(s).

The employment tribunal held that there was no mutuality of obligation, since the Claimant was not obliged to accept any work.

The EAT, striving to reach a decision which was plainly fair on the facts (read the judgment!), held that there was an implied obligation for the Claimant to decide whether to accept or refuse assignments in good faith. Thus mutuality could be implied into the arrangements, and the Claimant achieved continuity of employment to bring an unfair dismissal claim.

The judgment also contains some interesting (but largely fact-sensitive) comments on the scope of ERA 1996, s100 (automatically unfair dismissals for health & safety reason).

ABC News International v Gizbert

Friday 18 August 2006

Judicial Mediation Plot

A new Judicial Mediation Pilot Scheme has been launched.

With the parties' consent, the case will be stayed pending mediation by a full-time tribunal chairman (specially trained for the purpose). The mediation can last for up to two days.

It applies to sex, race and disability discrimination cases, normally where there is an ongoing employment relationship. The trial is running for 6-12 months in Birmingham, London Central and Newcastle (Newcastle will also be mediating equal pay claims).

A guidance note for parties is available, giving further information about the pilot scheme. I've got a rather poor faxed copy of it here, but better copies are probably available somewhere!

[Thanks to Ed McFarlane of RBS Mentor for telling me about this.]

Tuesday 15 August 2006

2004 Workplace Employment Relations Survey

The DTI has today published the first findings from the 2004 Workplace Employment Relations Survey. This is the fifth survey in the series - previous surveys were conducted in 1980, 1984, 1990 and 1998.

It provides an up to date account of the state of employment relations in Britain, together with information on changes that have occurred in workplaces since the last survey was conducted.

They survey covers methods of recruitment, workplace consultation, pay and benefits, workplace conflicts (such as disciplinary and grievance procedures), equal opportunities, work-life balance and other fascinating miscellanea. The summary is at page 35.

View report (large .pdf file - takes 30 seconds to download)

Paying Tax Twice

The heading makes this case sound boring, but it is important.

This case is authority for the proposition that HM Revenue and Customs is entitled to charge an employer full tax and NI under the PAYE regulations, where the parties have wrongly viewed the employee as self-employed, without giving credit for the tax and national insurance already paid directly by the 'employee'.

Mr Bone and his employer genuine believed he was self-employed. For some ten years, he sent invoices and was paid gross. He completed annual accounts and paid his own tax.

The Inland Revenue (as it was then called) then decided that he was employee rather than self-employed, an assessment with which the Special Commissioner agreed. Following a failure by the employer to agree back-tax, the Revenue levied a tax determination for the full amount of tax, without giving credit for the tax which the individual had been paying each year.

The Special Commissioner upheld this approach. He suggested that the Revenue negotiate an appropriate settlement to give credit for the tax already paid, but he had no power to order such credit.

The effect of this decision is that the Revenue can recover tax twice in a situation where an individual has been paying tax (wrongly) as a self-employed person. Often the individual will be able to recover his own payments of tax in subsequent years; however (as here), sometimes the payments date back too far and the employee will have lost the right to claim back previous overpayments.

Demibourne Ltd v HM Revenue & Customs


Regulars in the EAT will be all too familiar with 'reasons' appeals, where it is argued that a tribunal failed to give a sufficient explanation of why they reached their conclusions - hence making it impossible to see whether they fell into an error of law.

The seminal case on this is English v Emery Reimbold (2002, CA). The Court of Appeal has now heard another case, which it describes as 'following on' from English.

In McLoughlin v Jones, the Court of Appeal had to decide on the impact on the decision if one of several reasons given by a judge turns out to be wrong.

Arden LJ, giving the leading judgment, robustly emphasises the reluctance of an appellate court to interfere with the decision below. Her judgment is lengthy, involving a trawl through findings of fact (in a professional negligence case).

The core paragraphs are paras. 72 and 74. The Court holds that a first instance decision should not be overturned where the "overriding reason for rejecting the claim remains" - notwithstanding the presence of four errors in the court's decision.

Arden LJ continues to say (para. 74), "It is necessary, in my judgment, to look at the imperfections in the judgment as a whole, cumulatively. Even so, they are not in my judgment to shake the foundations on which the judgment was based".

'Shaking the foundations of the judgment' - a pretty high test? Certainly one which, if followed by the EAT, will result in far fewer 'reasons' appeals succeeding (or being allowed through the sift).

McLoughlin v Jones

Wednesday 9 August 2006

Age Discrimination Questionnaire Published

The DTI has, this morning, published the official age discrimination questionnaire (.pdf document). It is in similar form to questionnaires under other pieces of discrimination legislation.

The new questionnaire repackages, in a more attractive and user-friendly form, the technical questionnaire set out in Schedules 3 and 4 of the Employment Equality (Age) Regulations 2006.

Monday 7 August 2006

No duty to pay full pay to disabled employee when off sick

The Employment Appeal tribunal has handed down an important Disability Discrimination Act case, dealing with whether a failure to pay disabled employees full pay when off sick is either a failure to make reasonable adjustments, or disability-related discrimination.

The employer (HM Revenue & Customs) offers six months' full pay to all employees who were absent from work on grounds of health, followed by six-months on half pay. Mrs O'Hanlon, who was clinically depressed, claimed that the failure to pay her during her absence at full pay was either a failure to make reasonable adjustment to compensate for her disability, or unjustified disability-related discrimination.

The EAT held:

  • it will be "a very rare case indeed" where the duty to make reasonable adjustments entails paying a disabled absent employee more than a non-disabled absent employee (para. 67), as to do so would mean "the Tribunals would be entering into a form of wage fixing for the disabled sick" (para 68). It would also fall foul of the DDA's policy objective, which is to assist the integration of disabled people into the workplace. If the DDA required employers to provide or enhance long-term sick payments to disabled people, it would actually be providing a disincentive to them returning to work (para. 69)
  • a reduction of pay because of sick absence is - where the employee is disabled - disability-related discrimination. The reason for cutting pay is that the employee is absent for 26 weeks, and the underlying reason for her absence was her disability (paras. 83-87)
  • however, the disability-related discrimination (not paying full pay) was justified. Once it is established that the duty to make reasonable adjustments does not require an employer to pay full pay to a disabled absent employee, it is very easy to establish that a failure to make such payment is justified.

As readers know, once in a while I recommend reading decisions simply for the clarity of reasoning and the useful overview of the law. This is one of those cases. Read it.

O'Hanlon v HM Revenue & Customs