Tuesday 28 July 2009

Bias: Peninsula and trenchant comments

[Thanks to Ed McFarlane of EEF for preparing this case summary.]

The EAT (Slade J) has handed down its decision in Peninsula v Rees & ors, which is authority for the proposition that the test for the appearance of a risk of bias can be met where a part-time Employment Judge is closely associated with an advertisement expressing trenchant derogatory views about a group of people, in this case unqualified employment consultants, where one of the parties in the case being heard by the part-time Judge (Peninsula) is a member of that group.

The extent of any actual competition between the Employment Judge's practice and the party (para. 50).

In the joined case of Peninsula v Malik, the EAT held, as between the same party and Employment Judge, that apparent bias might not be established with the passage of time and/or a change in the Judge's status to full-time (para. 56).

If a lay member is recused during a hearing and a party consents to proceeding with a 2 member panel, consent is not vitiated even if the full facts about the remaining panel are not known when consent is given, if there is not, on the facts, the risk of an appearance of bias (para. 58).

Monday 27 July 2009

Disability Discrimination: Excluded Conditions

[Thanks to Will Dobson of Cloisters for preparing this case summary]

The case of X Endowed Primary School v Mr & Mrs T (transcript not yet up on BAILII, but will in due course will be here) is authority for the proposition that where a disabled person has a protected impairment under the DDA which manifests itself in a form falling within one of the conditions excluded by Regulation 4 of the Disability Discrimination (Meaning of Disability) Regulations 1996, the focus should be on whether any alleged discrimination relates to the excluded condition or to the protected disability or to both.

JT was excluded from the Appellant School for scratching a teacher. He suffers from ADHD (a protected disability) which causes sufferers to act aggressively in certain provocative situations. The School appealed the Special Educational Needs and Disability Tribunal's finding that it had failed to make reasonable adjustments, arguing that the only aspect of JT's ADHD in respect of which there was need to make an adjustment was his tendency to physical abuse of other persons (an excluded condition under the Regulations).

The Equality and Human Rights Commission, supporting JT's parents, argued that the Regulations only applied to free standing conditions and not to consequential symptoms of an impairment. Mr Justice Lloyd Jones rejected this and in so doing preferred Edmund Nuttall Limited v Butterfield (2005) over Murray v Newham CAB (2003), both EAT decisions. The fact that the tendency to physical abuse was a manifestation of a protected disability did not remove it from the Regulations' scope. On the facts, there was a failure to make reasonable adjustments in respect of JT's protected disability.

Claimants may wish to argue that where there is an underlying protected disability and an excluded condition, the issue is one of reasonable adjustments for the protected disability even where any failure to make adjustments causes the excluded behaviour.

Friday 24 July 2009

Right to Legal Representation at Disciplinary Hearings

The Court of Appeal has handed down its decision in Kulkarni v Milton Keynes Hospital NHS Trust, which:-

a. is authority for the proposition that NHS doctors are entitled to legal representation if is authority for the proposition that NHS doctors are entitled to legal representation if facing charges of misconduct or capability, under the terms of their contract; and,

b. contains clear obiter suggesting that where disciplinary charges are of such gravity that someone might be unable to work in the future if the charges are proved, that person has a free-standing right to legal representation at internal disciplinary hearings under Art 6 of the European Convention on Human Rights.

This latter point has significant implications for all public sector workers, and is consistent with this decision of the High Court earlier in the year.

The solicitors for the Appellant, Radcliffes Le Brasseur, have put together an excellent case summary if you want to learn more about this case

Employment Status - consultation

[Thanks to Professor Anne Redstone, visiting professor at King's College, London, for writing this bulletin]

HM Revenue and Customs have published a consultation document yesterday called 'False Self-employment in Construction”. It proposes deeming workers within the construction industry to be in receipt of employment income for tax and NICs purposes unless at least one of the following criteria are met:
  • provision of plant and equipment – that a person provides the plant and equipment required for the job they have been engaged to carry out. This will exclude the tools of the trade which it is normal and traditional in the industry for individuals to provide for themselves to do their job;
  • provision of all materials – that a person provides all materials required to complete a job; or
  • provision of other workers – that a person provides other workers to carry out operations under the contract and is responsible for paying them.
Although the proposed new rules will not change the individual's employment status for employment law purposes, the impact of paying PAYE and NICs at an employed level may increase the liklihood of workers taking cases to the tribunal, as they have less incentive to accept self-employed status.

Friday 17 July 2009

Industrial Action and Dismissals

Thanks to Ed McFarlane of EEF (pictured) for preparing this case summary. Thanks also to John Bowers QC of Littleton Chambers, leading counsel for Gate Gourmet, for telling me the decision had been handed down.

The EAT (Underhill P) has handed down its decision in Sandhu & ors v Gate Gourmet, which is authority for the proposition that:
  • dismissal of an employee at work for having taken part in unprotected industrial action, whilst not being automatically fair, is potentially fair for conduct. Simmons v Hoover [1977] ICR 61 is still good law notwithstanding developments in Human Rights and UK/EU law enshrining the right to strike (para. 35). The then-current modified statutory dismissal procedure could be used in cases of unofficial industrial action.
  • where a trade union official, called in to mediate, takes part in industrial action, that of itself does not mean that the action is approved by the union. The status of the employee at the time of dismissal is the key question, and one of fact.
The EAT also made observations on the operation of issue estoppel where a preliminary finding may impact upon issues determined later in proceedings, and the doctrine is engaged only if findings are necessarily inconsistent (paras. 19-22).

Thursday 16 July 2009

Tribunal Service Annual Report

Thanks to Louise Jones of 1 Temple Gardens for preparing this summary.

The Tribunals Service Annual Report and Accounts have been published today, marking the third year of the Tribunals Service. Important announcements for employment lawyers include:
  • Caseflow, a joint project between the Tribunal Service and ACAS, and which is an electronic case management system, will be piloted at the end of June 2009 and is expected to roll-out to all employment tribunal offices by the Summer 2010. It is hoped Caseflow will be an IT solution for the efficient processing of claims and their transfer between the Tribunals Service and local ACAS offices.
  • the results of the pilot tests of judicial mediation conducted in the employment tribunals in the last year have been very positive, with judicial mediation on a specific subset of cases having been rolled out to all employment tribunal regional offices in England and Wales in January 2009. Work is currently underway to develop a similar scheme in Scotland.
  • Work progresses on the plan to move employment tribunal IT systems to the standard Ministry of Justice IT infrastructure; this should be complete by September 2009.

Tuesday 14 July 2009

Equal Pay: Time Limits and TUPE

[Thanks to John Bowers QC of Littleton Chambers, Counsel for the employer, for telling me abot this decision, and to Mark Berry of Thompsons, solicitors for the Claimants, for writing the case summary]

The Court of Appeal has today handed down its decision in Gutridge v Sodexo , a case involving equal pay rights in the event of women being subject to a TUPE transfer .

By a majority, the Court of Appeal upholds Elias P.'s decision in the EAT, namely that:-
  • claims for equal pay losses, which have accumulated during employment up to the date of transfer of the undertaking to the transferee, must be brought against the transferee within 6 months of the date of the transfer (and will otherwise be barred by limitation rules); but,

  • claims for losses after the date of the transfer are able to proceed against the new (transferee) employer for up to 6 years' losses from the date of the claim. Claims must be pursued within 6 months of the termination of that employment.
Employers taking over public sector service contracts will therefore continue to be liable for equal pay claims long after the transfer has taken place for so long as those transferred remain employed, based on the earnings of comparators employed by the public authority before the transfer occurred.

Employment Status: Substitution Clauses

[Thanks to Lydia Carter, pupil barrister at Littleton Chambers, for preparing this case summary]

The EAT (Slade J) has handed down its decision in Archer-Hoblin v MacGettigan, which is authority for two propositions.
  1. the construction of substitution clauses must be carried out applying ordinary principles of construction. If the clause is clear and unambiguous, its meaning and effect are to be determined in accordance with its terms [34]. The term in question, unless held to be a sham, provided an unfettered right of substitution which was inconsistent with an obligation to perform personally any work or services within the meaning of WTR Reg 2(1) [43]. The tribunal judge had erred in considering what happened in practice when construing the meaning of the clause.

  2. what happened in practice would, however, be relevant in determining whether or not the clause was a sham. In determining whether a substitution clause was a sham the intention and practice of the parties should have been considered [45].
The case has been remitted to a fresh tribunal to determine whether the substitution clause was a sham and, in light of the conclusion on that point, to make a finding on whether the Claimant was a worker within the WTR.

Monday 13 July 2009

Addendum: Comparators in Equal Value Claims

Thanks to all those who have emailed me to say that the link in my last bulletin (meant to go to Hovell v St Peter's NHS Trust) is wrong.

The case transcript has been removed from BAILII and is no longer accessible - I don't know why. It will presumably go up again sometime today and will be accessible from here:-


(scroll down to July)

Daniel Barnett

Saturday 11 July 2009

Equal Pay:  Comparators in Equal Value claims

[Thanks to Ed McFarlane of EEF for providing this case summary]

The Court of Appeal has handed down its decision in Hovell v St Peters NHS Trust , which is authority for the proposition that where a Job Evaluation Scheme has been implemented and jobs are rated equal or very similar, a claim for equal value during the pre-JES period under section 1(2)(c) of the Equal Pay Act 1970 will not automatically succeed.

Elias LJ, giving the only reasoned judgment, rejected a 'substantial equivalence' argument, to the effect that similar ratings under a JES, without more, can demonstrate equal value, an approach which could lead to Claimants salami-slicing their way along a pay scale by successive comparisons (paras. 32- 41).

He emphasised that the Tribunal should focus on a 'one-on-one comparison' for equal value claims, and this may involve more detailed comparison of the respective jobs under consideration that is involved section 1(2)(b) (work rated as equivalent under a JES).

The Court also made observations on the discretion to use an Independent Expert in equal value claims (para. 46).

Thursday 9 July 2009

Disability Discrimination: Malcolm continues…

Thanks to Caroline Musgrave of Cloisters for summarising this decision]

The EAT has held, in Fareham College v Walters, that a decision to dismiss can be an unlawful act of disability discrimination by reason of being a failure to make reasonable adjustments. It therefore mitigates the effect of Lewisham v Malcolm .

Fareham makes it clear (paras 65 -78) that if, at the point at which the employer was considering dismissing the employee, there was a reasonable adjustment (e.g. allowing the employee to transfer to an alternative role) which would have avoided the dismissal, the dismissal itself will be an unlawful act of disability discrimination - by reason of the failure to make reasonable adjustments.

Contrary to previous dicta there is no need for claimants in such circumstances to rely on disability-related discrimination and the problems posed by Malcolm in these situations can thereby be avoided.

Fareham also contains a useful discussion of the comparative exercise involved in the duty to make reasonable adjustments (paras 50- 64). It is a broad-brush exercise that does not involve like for like comparisons. Moreover, it is not always necessary for a tribunal to expressly state who the comparators are because it is often obvious.

Monday 6 July 2009

Construction of Contracts

[Thanks to www.emplaw.co.uk for allowing me to reproduce their summary of this case]

The House of Lords decision in Chartbrook v Persimmon Homes is not an employment law case. It is noted here because it deals, at length, with the important questions of:
  • the extent to which context and backgound can be taken into account in determining the proper meaning of words in a contract;
  • the distinction between context and backgound (which can be taken into account) and pre-contractual negotiations (which must not be taken into account) in determining the proper meaning of words in a contract;
  • the distinction between "rectification" of a contract, which applies when the parties are in complete agreement on the terms of their contract but by error wrote them down wrongly, and "construction" of a contract which means giving a proper interpretation to words actually used.
In this case the House of Lords allowed an appeal by the Persimmon house building company. The House of Lords construed a contract in the manner contended for by Persimmon. Rectification was neither appropriate nor necessary.

Overruling the Court of Appeal, the House of Lords interpreted a badly drafted, even nonsensical, part of the contract by taking into account the context and commercial background behind it (but not the negotiations leading up to it). The result was that Persimmon Homes Ltd owed Chartbrook Ltd, a landowning company, just £900,000 rather than the £4 million which would have resulted from a literal, albeit unintended, interpretation of the wording.

Thursday 2 July 2009

Important Case:  House of Lords considers Disability Discrimination Act

[Thanks to Paul Lewis of St John's Chambers for providing this case summary]

The House of Lords has handed down its important decision in the case of SCA Packaging v Boyle, which is authority for the proposition that the word 'likely' as used in the Disability Discrimination Act 1995 should be interpreted as meaning 'could well happen', rather than 'more likely than not'.

In order to decide whether an illness (hoarseness caused by nodes on the vocal chords) qualified as a disability for the purposes of the DDA 1995, the Court had to consider meaning of the word 'likely' in two specific contexts: (a) the likelihood of a substantial adverse effect if the corrective measures were not taken and (b) the likelihood of a recurrence of that effect at some point in the future.

Wiping the slate clean, the House of Lords firmly rejected previous authority that 'likely' in the context of the DDA 1995 was taken to mean a 51% chance. In future, the courts will apply what is surely a much lower standard 'could well happen'. See in particular the discussion in the leading speech given by Baroness Hale at paras 65-75.

Wednesday 1 July 2009

Compensatory Award

[Thanks to Paul Lewis of St John's Chambers for preparing this case summary]

The EAT has handed down its decision in Saunders v OCS Group, which is authority for the proposition that in deciding whether to make a compensatory award following an unfair dismissal, a Tribunal must (a) dentify what loss the employee has suffered at the time of dismissal, and then (b) decide whether that loss is attributable to the action taken by the employer.

The Claimant, an airport worker, was unfairly dismissed for gross misconduct and had his licence to work at the airport withdrawn immediately. The Tribunal made a nil compensatory award on the basis that, having lost his licence, the Claimanthad no prospect of working beyond the date of his dismissal, and therefore had suffered no loss of wages.

The EAT held that the Tribunal failed to identify correctly the Claimant's loss at the time of dismissal, namely his right to be dismissed in accordance with the terms of his contract. Furthermore, despite finding the dismissal unfair, the Tribunal failed to consider the 'what if' Polkey scenario in deciding to make a nil compensatory award.