Wednesday 27 April 2011

Statutory Questionnaires and Costs

[Thanks to Sarah Russell, solicitor at Ventura, for preparing this case summary]

The EAT has handed down its decision in Deer v Walford and Anor, an appeal regarding the inferences to be drawn from a statutory questionnaire. Underhill P commented that if answers to a questionnaire were less than full it would not necessarily follow that they were evasive nor justify an inference of victimisation. He emphasised that the process of deciding whether an inference should be drawn in the case of an evasive or equivocal answer is the same as that to be applied in any case regarding inferences of discriminatory behaviour - does the act or omission tend to show that the respondent acted in the way complained of.

The EAT also dismissed a ground of appeal that it was wrong in principle for the employment tribunal to have determined a costs application without having first produced written reasons. The order for full costs was justified, given that the Claimant had brought a claim based on 'implausible speculation' and persisted after a warning from the tribunal.

Tuesday 26 April 2011

Internal Disciplinaries and Human Rights

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

The High Court has handed down its decision in Puri v Bradford Teaching Hospitals, which is authority for the proposition that Article 6 of the European Convention of Human Rights is not engaged in respect of internal disciplinary procedures if their effect is not to deprive the employee concerned of the right to practise his profession.

The claimant was dismissed for rudeness but the General Medical Council did not impose any sanctions against him. Although it became difficult for him to find work within the NHS, he was able to obtain a job in private practice and it was found that it would not be impossible for him to return to the NHS at some point. Therefore, there was no need for his dismissal to comply with Article 6.

The High Court also said that, even if Article 6 had been engaged, it would not have been breached by the use of a disciplinary panel constituted of three members, only one of whom was from outside of the employer Trust. Fairness did not require either all, or the majority of, the panel to be from outside the Trust.

Friday 15 April 2011

Implied Terms

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

The Court of Appeal has handed down its decision in Garratt v Mirror Group Newspapers, which is an interesting case about the implication of terms into an employment contract. It was held that a term requiring Mr Garratt to sign a compromise agreement before receiving an enhanced redundancy payment could be implied because:
  • no employee had been paid an enhanced redundancy payment without signing a compromise agreement since 1993.

  • the requirement to sign a compromise agreement was expressly notified to all employees identified as redundant and the signing of such an agreement was an automatic consequence of being dismissed as redundant.

  • no employee, other than Mr Garratt, has sought to insist on a contractual right to an enhanced redundancy payment in the absence of a signed compromise agreement.

  • before the redundancy process started, Mr Garratt knew that he would have to sign a compromise agreement in order to get the enhanced redundancy payment provided by his contract.

Thursday 14 April 2011

Employment Status Under DDA 1995

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ Birtles) has handed down judgment in the case Breakell v Shropshire Army Cadet Force which is authority for the proposition that a paid volunteer is not an 'employee' under the Disability Discrimination Act 1995 if there is no mutuality of obligation between the parties.

The EAT also held that mutuality of obligation is not necessarily established where a volunteer is required to provide services when at work or can expect to be paid for them.

The Claimant was a paid volunteer Adult Instructor for the Cadet Force, although not entitled to the National Minimum Wage. An Employment Tribunal found the parties' arrangements created no mutuality of obligation; the Claimant neither had to take work, nor had the Cadet Force to provide him with it, although he had to follow instructions when at work. As he was not an 'employee' under S68(1) DDA, his claim was struck out.

The EAT upheld the Tribunal's decision largely on the factual findings of a lack of mutuality of obligation, which was open to it on the facts.

However, the EAT refused to consider employee status under S212 Employment Rights Act 1996 (a series of connected contracts) since the Claimant had not raised it at the Employment Tribunal, so the effect of the decision may be limited.

This decision relied on different reasoning to that in X v Mid Sussex CAB (see bulletin 26th January 2011), but applied South East Sheffield CAB v Grayson (UKEAT/0283/03).

Tuesday 12 April 2011

Notice of Dismissal and the EDT

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

The EAT (HHJ Hand QC) has handed down judgment in the case of Wang v University of Keele which is authority for the proposition that, unless a contract provides otherwise, contractual notice, whether oral or written, runs from the day after notice is given.

The Claimant was dismissed with three months notice by a letter emailed and read on the afternoon of 3rd November. He presented a claim for Unfair Dismissal the following May 2nd. The ET dismissed the claim as a day out of time, counting notice as running from 3rd November to 2nd February.

On appeal, the EAT held, in a comprehensive review of authorities, that the principle in West v Kneels - that when verbal notice is given, notice starts on the following day - applies equally to written notice. Therefore, in this case, notice ran from 4th November, with dismissal taking effect on 3rd February, so the Claim was in time. It was irrelevant that the Claimant had only been paid to and stopped work on 2nd February; notice once given cannot be shortened without agreement.

The EAT indicated that if the giver of notice makes the dismissal date ambiguous, the notice should be construed in favour of the recipient, and observed (without recommending) that notice could be given by text, email or even instant messaging.

Monday 11 April 2011

Pregnancy, Positive Discrimination & Polkey

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

The EAT (Underhill P) has handed down its decision in Eversheds v De Belin, which is authority for the proposition that the obligation to protect employees who are pregnant or on maternity leave under S 2(2) of the SDA 1975 is limited to treatment that is "reasonably necessary [meaning proportionate] to compensate them for the disadvantages occasioned by their condition". Thus, a colleague who is disadvantaged by the provision of a disproportionate pregnancy or maternity benefit - for example when other less discriminatory alternatives are available - would be entitled to claim sex discrimination.

Accordingly, the EAT upheld the Tribunal's finding of sex discrimination and unfair dismissal where the claimant had been scored lower in a redundancy exercise than a colleague on maternity leave solely because she had been given a maximum notional score for "lock up", measuring the length of time between undertaking work and receiving payment from the client. The maternity benefit was disproportionate because there were less discriminatory alternative measures that could be adopted, such as measuring performance at a time when both candidates were still at work.

There was some success for the employers, however: the EAT upheld their appeal against the Tribunal's decision not to make any Polkey reduction on the basis that they had disregarded cogent evidence that the claimant would have been made redundant in any event some 9 months later. The claim was therefore remitted to a different Tribunal to consider whether the claim for loss of earnings should be capped or discounted on this basis.

TUPE Dismissals

[Thanks to Dr John McMullen of Durham University for preparing this case summary]

The EAT (HHJ Richardson presiding) has handed down its judgment in Spaceright Europe Ltd. v Baillavoine which stands for the proposition that, in order for a dismissal to be automatically unfair under regulation 7 (1) of the Transfer of Undertakings (Protection) Protection) Regulations 2006 (prohibited dismissal by reason of the transfer), it is not necessary for the transferor to have a specific transferee in contemplation.

In the case, the claimant was managing director of a business which was up for sale. Although no transferee (buyer) had been identified, a view had been taken that an incumbent managing director was too expensive for a purchaser and he was dismissed, ostensibly on ground of redundancy. This, the employment tribunal held, connected the dismissal to the ultimate transfer for the purposes of Reg 7 (1) and made the dismissal unfair. In this regard the EAT followed Harrison Bowden v Bowden [1994] ICR 986 in preference to Ibex Trading v Walton [1994] ICR 907.

The EAT also considered, given the dismissal was by reason of the transfer, was there an economic, technical, or organisational (ETO) reason for the dismissal which entailed changes in the workforce which would render a transfer connected dismissal not automatically unfair? It held that the employee was a managing director and that there was a continuing need for that role. As such, there could not be an ETO for the dismissal.

Friday 8 April 2011


[Thanks to Rad Kohanzad, pupil at Old Square Chambers, for preparing this case summary]

The EAT (Silber J) has handed down its decision in Allen v Hounga, which is a tragic case of abuse and exploitation demonstrating the harsh operation of the law applicable to illegality, while also providing a useful review of the relevant authorities.

The Claimant was engaged in Nigeria to work in the UK as a domestic servant. On the employer's instigation, the Claimant obtained a Nigerian passport in their family name and falsely suggested in her visa application that she was a relative of theirs visiting for a holiday. She then intentionally overstayed.

The Claimant was paid £50 per month and was subjected to serious physical abuse by the Respondent. She ultimately resigned.

Upholding the tribunal's decision, the EAT held that:

  • despite the Respondent instigating the illegality, the Claimant knowingly participated in it and therefore her claims of unfair dismissal, holiday pay and breach of contract were unenforceable;
  • she was entitled to an award for injury to feelings because it was held that her discrimination claim was not "inextricably linked with the illegal conduct"; but
  • she was not entitled to any potential loss of earnings resulting from her discriminatory dismissal because she never had the right to work in this country, which seems to conflate principles of tortuous damages with illegality.

Thursday 7 April 2011

Minimum Wage increase announced

The government has announced that the adult national minimum wage will increase by 15p an hour, to £6.08, from 1st October 2011.

Other increases are:-
  • 18-20 year olds: by 6p to £4.98ph
  • 16-17 year olds: by 4p to £3.68ph
  • apprentices: by 10p to £2.60ph
See the Press Association press release.

Tuesday 5 April 2011

Appeals and Fresh Evidence

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ Richardson presiding) has handed down judgment in the case of Aslam v Barclays Capital Services & others which is authority for the proposition that the EAT may consider fresh evidence appeals, where a fair hearing might not be achieved by a review by an Employment Tribunal.

The Claimant appealed having lost a discrimination case. Only during the appeal did the Respondent disclose an e-mail, which the Claimant sought to admit as it might have impacted on the credibility of the parties.

The EAT admitted the e-mail and allowed the appeal, having considered Adegbuji v Meteor Parking (see bulletin 8th July 2010). Concurring that the usual approach to fresh evidence is to seek a review from the Employment Tribunal rather than appeal, having applied Anya v University of Oxford, the EAT distinguished situations where an appeal is appropriate. As a review is generally held by the original Tribunal, its findings on witnesses' credibility may be difficult for it to re-visit. If credibility is a serious issue, the right to a fair hearing is maintained and justice can be seen to be done by remission to a fresh Tribunal, which can be ordered after an appeal.