Tuesday, 30 March 2010
Gender Victimisation: Burden of Proof
The EAT (Underhill P) has handed down its decision in Pothecary Witham Weld v Bullimore, which is authority for the proposition that the reverse burden of proof provisions in section 63A of the Sex Discrimination Act 1975 do apply to victimisation, unlike cognate provisions in section 54A of the Race Relations Act 1976, which have a different wording.
Section 63A of the 1975 Act was held not to be ultra vires because, although the Equal Treatment Directive does not require Member States to protect against victimisation, it is an important part of UK discrimination law and so the Secretary of State was entitled to maintain consistency by applying the Burden of Proof Directive to victimisation as well.
It was also observed that the cases of Chief Constable of West Yorkshire v Khan  IRLR 830 and Derbyshire v St. Helens Metropolitan Borough Council  IRLR 540 are cases of a very particular type, where the employer has taken action in order to protect his position in current litigation. In most cases, the complexities addressed in these cases simply do not arise and it will suffice for tribunals to follow the guidance in Nagarajan v London Regional Transport  IRLR 572.
Injury to Feelings
The EAT (Underhill P) has handed down its decision in Taylor v XLN Telecom, which is authority for the proposition that, in a discrimination claim, a claimant is entitled to recover for any injury to feelings and/or personal injury attributable to the discriminatory act (such as a racially-motivated dismissal) without having to prove that the injury resulted from actual knowledge of the discrimination. The decision is likely to have a significant impact on the assessment of injury to feelings and health in indirect discrimination cases.
In this case, the Tribunal had found that the dismissal of the Claimant, who is black, had been unfair and constituted unlawful (racially-motivated) victimisation. However, they had declined to make an award of injury to feelings or psychiatric injury because his distress arose from the manner of his dismissal rather than any knowledge of the discrimination that he had suffered. The Tribunal therefore found that they were bound by the observation of Lawton LJ in Skyrail Oceanic Ltd v Coleman  ICR 864 that "any injury to feelings must result from the knowledge that it was an act of discrimination which brought about a dismissal..."
On appeal, the EAT held that the observations of Lawton LJ had been misunderstood: there was no requirement to prove knowledge of the act of discrimination whether the claim was for injury to feelings or to health. The Claimant could therefore recover damages for any proven psychiatric injury (or injury to feelings) irrespective of what he knew or did not know about the motivation of his employer's decision to dismiss. The claim has now been remitted to the Tribunal to determine the appropriate level of any such award.
Monday, 29 March 2010
Discrimination Time Limits
The Court of Appeal has handed down its decision in Aziz v FDA, which is authority for the proposition that, in considering whether separate incidents form part of "an act extending over a period" within section 68(7)(b) of the Race Relations Act 1976, one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents.
In this case, the Claimant had made allegations about three union officials failing to provide support over three different periods. While there was a prima facie case for saying that there was a continuing act of discrimination throughout each period, the Tribunal was entitled to find that they could not be joined to form a single continuing act, even though the Claimant alleged that the three individuals had been instructed by the Respondent to act in the way that they did.
Although the Claimant was unsuccessful, the Court thought that there was force in her submission that Kingston Upon Hull City Council v Matuszowicz  IRLR 288, which says that a failure to make reasonable adjustments is an omission rather than an act, was of only limited assistance to this case, which concerned race rather than disability discrimination.
Wednesday, 24 March 2010
The House of Lords has approved various draft regulations pertaining to the new right to paternity leave. The most important is the Additional Paternity Leave Regulations 2010, which specify that additional paternity leave will be for a maximum of 26 weeks and minimum of 2 weeks, that it must not start until at least 20 weeks after the birth or placement for adoption and must end not later than 12 months after the birth or placement for adoption, and that it may only be taken in multiples of complete weeks.
The regulations are due to come into force on 6th April 2010 but will have effect only in relation to children whose expected week of birth (or matching for adoption) begins on or after 3rd April 2011.
Under the regulations fathers will be entitled to up to six months additional paternity leave provided the mother has returned to work, thus giving parents the option of dividing a period of paid leave entitlement between them. To the extent that additional paternity leave is taken during the mother's 39 week maternity pay period it will be paid leave, paid at the same rate and in the same way as Statutory Maternity Pay (which increases in April 2010 to £124.88 per week from the currrent £123.06). Parents will be required to 'self certify' by providing details of their eligibility to their employer. Employers and HMRC will both be able to carry out further checks of entitlement if necessary.
Monday, 22 March 2010
The Court of Appeal has handed down its decision in Maga v Roman Catholic Church , which is authority for the proposition that an employer may be liable for acts of an employee where there is a sufficiently close connection between the tortfeasor's usual functions and tortious deeds, in this case, child abuse, even when the victim came into an abusive priest's orbit from a non-work background, expanding on Lister v Hesley Hall Ltd. (HL).
Lord Neuberger MR noted the special role of a priest, who is "never off duty" and that this priest's role, obliging him to befriend non-Catholics, and working with youths, had afforded him the opportunity to groom his victim, by involving the Claimant in activities such as Church discos, and washing the priest's car, had thereby drawn him into an abusive relationship.
On the sordid facts, there was a sufficiently close connection between employment and the abuse to make it fair and just to hold the employer liable, even if there was no fault on the employer's part.
Friday, 19 March 2010
Stress at Work
The Court of Appeal has handed down judgment in Connor v Surrey County Council, an unusual 'stress at work' claim where the Court considered the edge between the Council's private law duties and its public law functions.
The Court of Appeal upheld the finding that the Council had been negligent towards a former headteacher in failing to establish an interim executive board of school governors (pursuant to the School Standards and Frameworks Act 1998 ss 14 and 16A). The Council had contended that this failure lay wholly in the field of their public law functions, and as such was not justiciable as particulars of negligence in a private law action for damages.
The Court held that the law will, in an appropriate case, require the duty-ower to fulfil his pre-existing private law duty by the exercise of a public law discretion, but only if that may be done consistently with the duty-ower's full performance of his public law obligations. The Council's appeal failed, but the Court sounded a note of caution; the facts of this particular case had made it more than the tip of the iceberg, and nothing in this case remotely resembles a precedent for others in the future to build private law claims out of what may be sensitive and difficult decisions of public authorities.
Tuesday, 16 March 2010
Summary Dismissal: Failure to Obey Instructions
The Court of Appeal has handed down its decision in Dunn v AAH Ltd, which is authority for the proposition that where an employee has so undermined the trust and confidence at the heart of a contract of employment, an employer should no longer be required to retain the employee in his employment, but should be entitled to accept that the contract for employment has been repudiated in its essence; the employer in such circumstances is permitted to terminate the contract.
In this case an employee had failed to follow instructions to report on problems of risk within the operations of his company to group headquarters in Germany; this neglect meant that he had denied the group headquarters the opportunity to assess the risk for themselves. The Court held that the employee had been properly dismissed for gross misconduct.
Sunday, 14 March 2010
Grievances and Equal Pay
The EAT (Underhill P) has handed down its decision in Brett v Hampshire County Council, which is authority for the proposition that in equal pay, each claim by reference to a different comparator is a different claim. Where the Claimant in her grievance under the modified procedure had identified four jobs but had in her eventual claim identified two of those jobs but also two which were different, she was entitled to pursue her claim in so far as it relied on comparison with the jobs identified in her grievance.
Male Claimants advancing "piggyback" claims did not have to make that fact explicit in order to satisfy the requirement of regulation 9(1)(a) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The grievance was sufficiently "set out" if it was "necessarily implicit". A grievance, once withdrawn could only be reinstated in writing.
This case dealt with a number of points arising out of the application of section 32 Employment Act 2002 in the context of equal pay claims.
Friday, 12 March 2010
Ministers of Religion / Meek
[Thanks to Ed McFarlane of EEF for providing this case summary]
The EAT has handed down Judgment in the case of MacDonald v Free Presbyterian Church of Scotland which is authority for the proposition that in determining employment status for Ministers of Religion, an Employment Tribunal was entitled to have regard to the historic background and ethos of the Respondent, in particular its tradition of "independence from the state and the Civil Magistrate" and that employment status of Ministers would be inconsistent with the Church's beliefs.
The EAT held that to determine whether Employment Tribunal reasons are properly framed for the Meek test and Rule 30 (6):
It is enough if an ordinary picture is painted; a "painting by numbers" picture will do even if incomplete so long as it has the main colours and the onlooker can tell what it is a picture of. It does not need to have the detail, subtlety and qualities of, say, Michaelangelo's "Last Judgment".
Wednesday, 10 March 2010
Time Limits for Appealing
The EAT (HHJ Serota) has handed down its decision in Tasneem v Dudley Hospitals, which is authority for the proposition that the presumption that an Employment Tribunal Decision is sent to the parties on the date recorded on it is rebuttable, if an Appellant shows that a decision was posted later, the time limit for appealing runs from the later date.
On the facts, the EAT accepted, on unchallenged evidence, that the Judgment was probably posted two days after the date recorded.
Accordingly, the 42 day time limit had not expired when the notice of appeal was lodged. The envelope containing the Judgment was not available, and there was no contrary evidence from the Respondent or Tribunal.
The EAT acknowledged the risk of unscrupulous Appellants seeking to evade strict appeal time limits by alleging late posting of Decisions, and called for the Employment Tribunals to maintain postal logs to show when Decisions actually leave the Tribunals.
Parties wary of appeals from 'last-minute Lucy' litigants might consider keeping the envelopes when Decisions arrive for proof of the date of sending.
Wednesday, 3 March 2010
The EAT (HHJ Richardson) has handed down its decision in Shanahan Engineering v UNITE, which is authority for the proposition that even where there are special circumstances which mean that it is not reasonably practicable for the normal 30 day collective consultation period under s188(1A) of TULR(C)A 1992 to be complied with, this will not relieve the employer of its actual consultation obligations under sub-sections 188(2)(4) which can still be carried out in a shorter period of time.
Shanahan was instructed to alter its work practices by the end of the day on 1st May 2008 pursuant to a clause which was common in the engineering industry whereby the main contractor could order the sub-contractor to stop work. This meant an immediate reduction in the workforce and the triggering of the collective consultation provisions. Shanahan applied agreed redundancy criteria but it was found by the ET that there was no consultation which could have taken place over 2-3 days so that 90 day protective awards were ordered.
The EAT upheld the Tribunal judgment that special circumstances existed in relation to the 30 day time period but that it had been reasonably practicable for Shanahan to carry out consultation in accordance with the requirements of section 188(2) and 188(4) of TULR(C)A 1992. However, the Tribunal had erred in simply awarding a 90 day protective award as there were mitigating factors and the case was remitted to the Tribunal on this issue.
The case is of some important for the construction industry as the above is a common situation.