Friday 30 April 2010

Secret Policeman has a Ball at the EAT

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

The EAT has handed down judgment in the case of Commissioner of the Metropolitan Police v Rixon which is authority for the proposition that an initial decision to reject a claim can be reconsidered at a PHR applying Rule 3 (9).

The Claimant, a serving Police Sergeant, had given anonymous evidence at the Stockwell Tube shooting inquest. He then made a timely but anonymous whistleblowing claim, giving only his representative's details. The Tribunal rejected the Claim Form, lacking required information, his name and address. He later e-mailed in his name and address, out of time, and the "complete" Claim Form was accepted. The Commissioner's contention at a PHR that the Claim Form was presented late failed, the Tribunal having extended time on the facts.

The EAT held, dismissing the appeal, that at the PHR the Tribunal ought, applying Rule 3 (9), to have accepted Claim Form as first presented, and observed that where a claim might be thrown out on procedural grounds "...elementary observance of human rights requires... an opportunity for input by a Claimant..." (para. 15).

Age Discrimination

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Homer v Chief Constable of West Yorkshire Police, which is authority for the proposition that requiring an employee to hold a degree in order to qualify for a higher pay grade did not amount to indirect age discrimination in respect of an employee who would not have time to obtain such a qualification before retirement. This was on the basis that the particular disadvantage to the employee flowed from the fact of his imminent retirement rather than his age.

However, all is not necessarily lost for claimants on the issue. H, a 61-year old legal adviser, had argued that a requirement that employees obtain a law degree before attaining the highest pay scale was intrinsically discriminatory, which was a question of law. As noted by both the CA and EAT, no factual evidence was presented to show that those in H's age group would be less likely to have a law degree, or would find it harder to meet the requirement. Such arguments therefore remain open if such evidence can be obtained.

Wednesday 28 April 2010

Equal Pay

There has been another important development in the equal pay litigation, to which Andrew Short QC (instructed by Thompsons on behalf of the UNISON, GMB and Unite claimants) has asked me to draw people's attention.

An employment tribunal in Birmingham has just rejected the Genuine Material Factor defence of Birmingham City Council in an equal pay claim involving 4,000 female employees. The hearing, which took place in November and December 2009, considered the defence in relation to five comparator groups: refuse workers, grave diggers, road workers, road cleansers and gardeners.

In a 167 page judgment, the tribunal has rejected the defence in relation to each of the comparator groups. The litigation is the largest of the local authority claims arising out of the implementation of Single Status. Quantum has yet to be determined, and equal value remains in issue for some of the claimants, but has been estimated as potentially running into £100s of millions of pounds.

Tuesday 27 April 2010

Industrial Action Ballots

[Thanks to Edward Kemp of 12 King's Bench Walk for providing this case summary]

The Court of Appeal has handed down its decision in Milford Haven Port Authority v UNITE, which is authority for the proposition that notice of separate, continuous and discontinuous industrial action can be given in the same document, provided that the notice otherwise satisfies the requirements of the provisions of the TULR(C)A 1992.

The Union gave notice of industrial action to the Port Authority in respect of launch crews and pilots of vessels navigating within Milford Haven. Each notice specified that the industrial action would be both continuous including measures such as an overtime ban and discontinuous consisting of a 48 hour stoppage.

The Port Authority challenged the validity of the notices and obtained an injunction. The High Court accepted the Port Authority's argument that s.234(A)(3)(b) of the TULR(C)A 1992 required a notice to specify disjunctively either continuous action or discontinuous action.

The Court of Appeal disagreed with this construction holding that the provision is disjunctive only in relation to particular action specified in the notice. The High Court's construction could generate more confusion than clarity. For example, more than one notice might cause concerns as to which is to be effective.

Friday 23 April 2010

Comment on Sharon Shoesmith judgment

The High Court handed down its decision at midday today (23rd April 2010) in Sharon Shoesmith's claim for judicial review of the decision to dismiss her. You can see the full 200-page judgement or read the judge's 18-page summary.

In dismissing all of Sharon Shoesmith's claims, the judge made it clear that although there were several criticisms which could be made of the process leading to Sharon Shoesmith's dismissal, they were not serious enough to mean that OFSTED or the Secretary of State for Children Schools and Family had acted unfairly.

The judge was critical of the way in which the London Borough of Haringey took the decision to dismiss Sharon Shoesmith, but declined to make any ruling against Haringey, saying that the case would be better decided by a forthcoming employment tribunal hearing.

The judge was also very critical of Haringey's lack of process when dismissing Sharon Shoesmith. Although an employment tribunal is free to disagree, it is very likely to follow the judge's steer. However, unfair dismissal compensation from an employment tribunal is capped at £65,000, which is far less than Sharon Shoesmith has actually lost.

The judge criticised OFSTED for its failures to produce relevant documentation – especially the early drafts of its Report into Haringey Social Services – and has said he will be requiring an explanation from the Treasury Solicitor (the civil service’s chief legal officer). However, he did not think there was any real evidence that the report had been 'beefed-up'.

The judge also stated that Ed Balls was entitled to act quickly – he was entitled to view the interests of vulnerable children as taking priority over the employment rights of Sharon Shoesmith.

Finally, the judge ended his judgment by asking all parties to take at least 28 days to reflect over what they would do next. This is a clear steer that he thinks it is not in the public interest for Sharon Shoesmith to appeal, and perhaps not in the public interest for OFSTED and the DCSF to pursue Sharon Shoesmith for their legal costs.

Thursday 22 April 2010

Equal Pay - NorthEast Litigation

There has been an important development in the equal pay litigation to which Thomas Linden QC (who was Counsel for the Claimants) has asked me to draw attention. The appeal in Potter v North Cumbria Acute Hospitals NHS Trust (No 2) [2009] IRLR 900 (now Fox & Others v North Cumbria University NHS Trust (No 2)) has been dismissed.

The issue in the case was whether the introduction of Agenda for Change ("AfC"), of itself, triggered the 6 month limitation period under Section 2ZA Equal Pay 1970. The Employment Appeal Tribunal held that it did not on the basis that the cases in question were standard cases and AfC merely amounted to a variation, rather than a rescission, of the existing contracts of NHS employees.

The Court of Appeal reached the same conclusion by a different and shorter route namely that, applying Slack v Cumbria County Council [2009] ICR 1217, AfC did not, of itself, operate to terminate stable employment relationships in existence at the time of its introduction. Where such employment relationships continued after the introduction of AfC (as will generally have been the case) time only started to run if and when the stable relationship came to an end. The claimants were therefore entitled to rely on Section 2ZA(4) of the 1970 Act as they were at all material times employed on a permanent basis as full time nurses. The finding by the Employment Tribunal that there had been fundamental changes to their terms and conditions as the result of the introduction of AfC did not mean that this stable employment relationship ceased or was interrupted.

The Court did not hear argument on the rescission versus variation issue, or rule on it, as this issue became academic in the light of the ruling on the stable employment relationship case.

The Court's reasons will follow in due course.

TUPE: Service Provision Changeover

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT (HHJ McMullen) has handed down its decision in Ward Hadaway Solicitors v Capsticks Solicitors, which is authority for the proposition that, for the purposes of paragraph 3(1)(b) of the TUPE Regulations 2006, the question of whether the contracting out of activities constitutes a service provision change is a matter of law but the identification of the activities themselves is a question of fact and, therefore, the decision of a tribunal cannot be overturned on appeal unless it is perverse.

In this case, Ward Hadaway had been a member of a panel who provided legal services to the Nursing and Midwifery Council. There was no obligation for the NMC to allocate any work and no obligation for Ward Hadaway to accept it. The NMC decided to tender out its work to a single provider, Capsticks, but Ward Hadaway continued to carry out the work already allocated to it. Most future work of a similar nature was to be taken in-house. The Tribunal was entitled to find that only the work in progress, rather than the expectation of future work, was an activity and that, in any event, there was a change in the nature of the work carried out.

Wednesday 21 April 2010

Equal Pay

[Thanks to Paul Doran of Stefan Cross Solicitors for providing this case summary]

Readers will remember last year's decision in
South Tyneside v McAvoy, in which the EAT held that male employees can 'piggyback' on female colleagues' claims, so that (e.g.) male cleaning and catering staff can claim equal pay with female cleaning and catering staff who have increased their salaries through successful equal pay claims relating to (e.g.) male refuse collectors and gardeners.

The case, the impact of which is somewhat controversial, was due to be heard next week in the Court of Appeal. However, the case has just settled, meaning that the EAT decision stands.

Monday 19 April 2010


[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The EAT (Wilkie J) has handed down its judgment in Goode v Marks & Spencer, which is authority for the proposition that the expression of an opinion about an employer's proposal, after consultation, to change a discretionary enhanced redundancy scheme does not amount to a qualifying or protected disclosure.

The Appellant had taken a number of steps, including complaining to his line manager, contacting the Times and completing a survey, which he sought to argue were protected disclosures - all in relation to the detail of a proposed redundancy scheme - which should entitle him to the protection of section 103A ERA and render his subsequent dismissal automatically unfair. Such information as the Appellant sought to rely on to establish that protected disclosures had been made was not enough to be the subject of a reasonable belief that it tended to show that the Respondent was likely to fail to comply with any legal obligation to which it was subject. The appeal was dismissed.

Friday 9 April 2010

Costs in Employment Tribunals

If you're interested in costs applications in employment tribunals, I've just co-written a new book on the subject.

It's packed with practical tips on how to obtain or resist costs applications, conveniently arranged in sections covering lying litigants, hopeless allegations, costs warnings, adjournments, and much more.

Find out more

Jordans Publishing
April 2010
270 pages hardback

Wednesday 7 April 2010

Equality Act passed by Commons

What's got 210 clauses, 28 schedules and has been at the bottom of everybody's 'must read' pile since first introduced in 2005?

Well, it's time to get the magnifying glass out and start reading. The Equality Act 2010 passed its final stages last night (see
Hansard) and has been sent for Royal Assent. It is expected to come into force in October 2010.

There is a useful article
here summarising the changes to existing law brought about by the Act, and a useful government summary here. There will also be a constantly updating page on dealing with the new Act.

Tuesday 6 April 2010


[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT (Langstaff J) has handed down its decision in BP plc v Elstone, which is authority for the proposition that a worker can claim to have suffered a detriment from his current employer on the ground of a protected disclosure made whilst employed by a previous employer. It was held that there is no reason to suppose that there is any implied restriction of the expression "worker" and "employer" in sections 43A and 43B of the Employment Rights Act 1996 to that which is work under the same contract and for the same employer as that referred to in section 47B. The courts are obliged to take a purposive approach to the statutory provisions and, otherwise, it would lead to practical repercussions where the two employers are part of a group of companies and there is a TUPE transfer between them.

However, it is not correct that a claimant does not need to be a worker of any employer at the time of making the disclosure. The plain wording of the statutory provisions identifies a worker as making the disclosure, not "a person", and contemplates that at the time of the disclosure there is someone who is an employer.

Restraining Disciplinaries by Injunction

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Mezey v South West London Mental Health NHS Trust, which is authority for the proposition that ... to invoke a disciplinary procedure against a Consultant Forensic Psychiatrist whose decision to allow unescorted leave in the hospital garden to a schizophrenic patient who took the opportunity to escape, was a breach of contract capable of being restrained by an injunction.

The patient absconded and killed a stranger. An internal inquiry found that the psychiatrist was a highly competent practitioner but that on this occasion her decision to grant unescorted garden leave was unjustified and inappropriate.

The psychiatrist argued that the purpose of her contractual capability procedure under which disciplinary proceedings could be brought was to improve future performance and the findings of the inquiry showed that there was no fault in her performance beyond an isolated mistake and so no disciplinary action was necessary.

The Court of Appeal held that the contractual capability procedure was designed to cover situations where a practitioner's capability to practise was in question. The findings of the inquiry precluded such a judgment being made against the psychiatrist. The threshold for invoking any disciplinary procedure was not crossed and the Trust was not entitled to commence any disciplinary procedure.