The Court of Appeal has handed down its judgment in Quirk v Burton Hospital NHS Trust.
It upholds the distinction in the approach to men and women in occupational pension schemes, holding that, under Article 141 of the Treaty of Amsterdam:
• a claim can be brought under the Equal Pay Act 1970, giving effect to Article 141, in all cases where different rules are applied to men and women for access into an occupational pension scheme (irrespective of dates); but,
• claims relating to the calculation of the level of benefits under a pension scheme can only be calculated with reference to pensionable service after 17th May 1990 (the date of the decision in Barber v Guardian Royal Exchange).
The full decision can be seen here.
Wednesday, 13 February 2002
Thursday, 31 January 2002
NEW EAT DECISIONS
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.
LAWAL v NORTHERN SPIRIT LTD.
(Lindsay J., 15th January 2002)
Resolving the issue of the 5 well-known employment QCs who sit as part-time judges in the EAT. According to the EAT, there is no bias (or appearance of bias) if an EAT lay member who has sat with such a QC in his/her capacity as presiding judge, then sits in a case where that presiding judge appears as Counsel.
PHOTIS & ors. v DTI & ors.
(Lindsay J., 6th December 2001)
Applicants to statutory judicial offices cannot bring claims to employment tribunals under the Race Relations Act 1976 or the Disability Discrimination Act 1995. In particular, three unsuccessful applicants for posts as lay-members of employment tribunals and social security tribunals were not permitted to bring employment tribunal claims for race or disability discrimination, because they did not fall within the jurisdictional limits of the Acts. Their only remedy was for Judicial Review.
SAMUEL v LONDON BOROUGH OF LEWISHAM.
(HHJ Peter Clark, 29th November 2001)
A conduct dismissal can be fair even if the employer wrongly labelled the conduct as 'gross misconduct'. In other words, it is still possible for an employer to act reasonably in dismissing for conduct even when the employee has not committed a repudiatory breach of contract.
NETHERCOATS (PROJECTS) LIMITED v SMITH.
(HHJ Levy, 12th November 2001)
The employer's representative wrongly conceded that the limit on the compensatory award was £50,000 (when, because of the date of termination, it might have been £12,000). The EAT held that it was an error of law for the tribunal to proceed without formally determining the effective date of termination, despite the formal concession as to the maximum award having been made, and remitted the case.
BERRY v GB ELECTRONICS LTD.
(HHJ Reid, 17th October 2001)
A profoundly deaf employee was one of seven members of staff dismissed due to redundancy at a meeting. No consultation or warning had occurred. Because of his deafness (which amounted to a disability), he understood that he had been dismissed, but did not understand that others had also been dismissed or that the reason was redundancy. The EAT held that the employer's duty to make reasonable adjustments entailed "having him interviewed separately at the same time, by someone who was capable of communicating with him in a proper manner" and therefore there existed "discrimination in the manner of his dismissal". The EAT added:
"It would be hoped that that declaration will make other employers aware of the need for appropriate and sympathetic treatment of other persons suffering from similar types of disability to Mr Berry at the time of their dismissal. "
LAWAL v NORTHERN SPIRIT LTD.
(Lindsay J., 15th January 2002)
Resolving the issue of the 5 well-known employment QCs who sit as part-time judges in the EAT. According to the EAT, there is no bias (or appearance of bias) if an EAT lay member who has sat with such a QC in his/her capacity as presiding judge, then sits in a case where that presiding judge appears as Counsel.
PHOTIS & ors. v DTI & ors.
(Lindsay J., 6th December 2001)
Applicants to statutory judicial offices cannot bring claims to employment tribunals under the Race Relations Act 1976 or the Disability Discrimination Act 1995. In particular, three unsuccessful applicants for posts as lay-members of employment tribunals and social security tribunals were not permitted to bring employment tribunal claims for race or disability discrimination, because they did not fall within the jurisdictional limits of the Acts. Their only remedy was for Judicial Review.
SAMUEL v LONDON BOROUGH OF LEWISHAM.
(HHJ Peter Clark, 29th November 2001)
A conduct dismissal can be fair even if the employer wrongly labelled the conduct as 'gross misconduct'. In other words, it is still possible for an employer to act reasonably in dismissing for conduct even when the employee has not committed a repudiatory breach of contract.
NETHERCOATS (PROJECTS) LIMITED v SMITH.
(HHJ Levy, 12th November 2001)
The employer's representative wrongly conceded that the limit on the compensatory award was £50,000 (when, because of the date of termination, it might have been £12,000). The EAT held that it was an error of law for the tribunal to proceed without formally determining the effective date of termination, despite the formal concession as to the maximum award having been made, and remitted the case.
BERRY v GB ELECTRONICS LTD.
(HHJ Reid, 17th October 2001)
A profoundly deaf employee was one of seven members of staff dismissed due to redundancy at a meeting. No consultation or warning had occurred. Because of his deafness (which amounted to a disability), he understood that he had been dismissed, but did not understand that others had also been dismissed or that the reason was redundancy. The EAT held that the employer's duty to make reasonable adjustments entailed "having him interviewed separately at the same time, by someone who was capable of communicating with him in a proper manner" and therefore there existed "discrimination in the manner of his dismissal". The EAT added:
"It would be hoped that that declaration will make other employers aware of the need for appropriate and sympathetic treatment of other persons suffering from similar types of disability to Mr Berry at the time of their dismissal. "
Tuesday, 22 January 2002
Fixed Term Employee Regulations
Following extensive consultation, the government has published a second draft of the Fixed-Term (Prevention of Less Favourable Treatment) Regulations 2002 and has commenced a period of further consultation.
The Regulations are designed to give effect to the EC Fixed Term Workers Directive, which must be implemented by 10th July 2002. Unsurprisingly, the proposed date for UK compliance is 10th July 2002!
The latest draft is similar to the original, although some tweaking has taken place. The draft Regulations confer the following rights:
• a right for fixed-term employees (note: 'employees', not 'workers') not to be treated less favourably than a comparable permanent employee, unless objectively justified. This does not require like-for-like pro rata entitlements - provided the fixed-term employee's contractual rights are, as a whole, at least as favourable as the permanent employee's, objective justification is deemed to be made out.
• an obligation on employers to advertise permanent vacancies in such a way as is reasonably likely to come to the fixed-term employee's attention;
• a right to receive a written statement of reasons for treatment, if the employee believes less favourable treatment has occurred;
• provision that any dismissal for seeking to enforce these rights is automatically unfair;
• provision that a fixed-term contract will be converted to a permanent contract upon the next renewal/extension if the employee has been employed on a fixed-term contract for over four years (unless the employer can demonstrate an objective justification for continued fixed-term employment). This period can be varied by collective agreement, and the employee can demand a statement that the employment has converted to a permanent basis. The four-year period starts running from the date the Regulations commence (ie fixed-term time before 10th July 2002 does not count as part of the four-years);
• the ability to enter into redundancy payment waiver agreements will be abolished.
Further information, and the draft Regulations, can be obtained here.
The Regulations are designed to give effect to the EC Fixed Term Workers Directive, which must be implemented by 10th July 2002. Unsurprisingly, the proposed date for UK compliance is 10th July 2002!
The latest draft is similar to the original, although some tweaking has taken place. The draft Regulations confer the following rights:
• a right for fixed-term employees (note: 'employees', not 'workers') not to be treated less favourably than a comparable permanent employee, unless objectively justified. This does not require like-for-like pro rata entitlements - provided the fixed-term employee's contractual rights are, as a whole, at least as favourable as the permanent employee's, objective justification is deemed to be made out.
• an obligation on employers to advertise permanent vacancies in such a way as is reasonably likely to come to the fixed-term employee's attention;
• a right to receive a written statement of reasons for treatment, if the employee believes less favourable treatment has occurred;
• provision that any dismissal for seeking to enforce these rights is automatically unfair;
• provision that a fixed-term contract will be converted to a permanent contract upon the next renewal/extension if the employee has been employed on a fixed-term contract for over four years (unless the employer can demonstrate an objective justification for continued fixed-term employment). This period can be varied by collective agreement, and the employee can demand a statement that the employment has converted to a permanent basis. The four-year period starts running from the date the Regulations commence (ie fixed-term time before 10th July 2002 does not count as part of the four-years);
• the ability to enter into redundancy payment waiver agreements will be abolished.
Further information, and the draft Regulations, can be obtained here.
Monday, 14 January 2002
Increase in Limits for Tribunal Awards
The annual increase in tribunal awards has been announced, pursuant to section 34 of the Employment Relations Act 1999.
The important changes are:
• compensatory award for unfair dismissal - from £51,700 to £52,600;
• basic award for unfair dismissal - from £240pw to £250pw;
The other increases are set out in the statutory instrument, the Employment Rights (Increase of Limits) Order 2002, which can be seen here.
The increases have effect where the 'appropriate date' (which, for unfair dismissal claims, is the effective date of termination) is on or after 1st February 2002.
[Thanks to James Carmody of Bolt Burdon for notifying me of these changes]
The important changes are:
• compensatory award for unfair dismissal - from £51,700 to £52,600;
• basic award for unfair dismissal - from £240pw to £250pw;
The other increases are set out in the statutory instrument, the Employment Rights (Increase of Limits) Order 2002, which can be seen here.
The increases have effect where the 'appropriate date' (which, for unfair dismissal claims, is the effective date of termination) is on or after 1st February 2002.
[Thanks to James Carmody of Bolt Burdon for notifying me of these changes]
Monday, 7 January 2002
NEW EAT DECISIONS
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.
MORGAN v STAFFORDSHIRE UNIVERSITY
(Lindsay P., 11th December 2001)
Practical guidance from the EAT about evidence required to prove mental impairment under the Disability Discrimination Act 1995. Very useful decision, but two points in particular warrant mention. First, Applicants are warned in clear terms that a complaint of 'stress' is not enough - the EAT sets out three methods of proving a recognised psychiatric illness, and says that a catch-all complaint of 'stress' is insufficient. Second, the EAT warns tribunals about forming an impression of the Applicant because of his conduct in the witness box (because of the catch-22 situation of tribunals penalising an inarticulate witness because he cannot explain his level of impairment properly, and penalising an articulate witness because he is thought to be too articulate to be suffering from an impairment!).
JONES & others v 3M HEALTHCARE & others
(Lindsay P., 11th December 2001)
Another chapter in the saga of whether Applicants can claim for post-termination discrimination. This conjoined appeal involved three cases of disability discrimination (including Kirker v British Sugar). The EAT held that the DDA 1995 does not permit a claim to be brought based upon allegations of discrimination occurring after dismissal. The decision is useful in that it contains a first-class summary of all the decisions on this point to date (including those under the SDA 1975 and RRA 1976), and is a concise, readable decision in an area frequently encumbered with precisely the opposite.
MORGAN v STAFFORDSHIRE UNIVERSITY
(Lindsay P., 11th December 2001)
Practical guidance from the EAT about evidence required to prove mental impairment under the Disability Discrimination Act 1995. Very useful decision, but two points in particular warrant mention. First, Applicants are warned in clear terms that a complaint of 'stress' is not enough - the EAT sets out three methods of proving a recognised psychiatric illness, and says that a catch-all complaint of 'stress' is insufficient. Second, the EAT warns tribunals about forming an impression of the Applicant because of his conduct in the witness box (because of the catch-22 situation of tribunals penalising an inarticulate witness because he cannot explain his level of impairment properly, and penalising an articulate witness because he is thought to be too articulate to be suffering from an impairment!).
JONES & others v 3M HEALTHCARE & others
(Lindsay P., 11th December 2001)
Another chapter in the saga of whether Applicants can claim for post-termination discrimination. This conjoined appeal involved three cases of disability discrimination (including Kirker v British Sugar). The EAT held that the DDA 1995 does not permit a claim to be brought based upon allegations of discrimination occurring after dismissal. The decision is useful in that it contains a first-class summary of all the decisions on this point to date (including those under the SDA 1975 and RRA 1976), and is a concise, readable decision in an area frequently encumbered with precisely the opposite.
Thursday, 3 January 2002
NEW EAT DECISIONS
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.
BESTWAYS v MOFFATT
(Lord Johnston, 1st November 2001)
An example of the EAT awarding costs against a party who withdrew an appeal a few days before the hearing. Of interest is the EAT rejecting the argument that lodging an appeal with a view to negotiating a settlement is itself unreasonable or vexatious conduct:
"we recognise as legitimate for an appeal to be taken with a view to achieving a compromise in cases where both sides may reflect their respective weaknesses in achieving such a compromise."
HODES v MARKS & SPENCERS
(HHJ Reid, 1st November 2001)
The Applicant, a senior manager at Marks & Spencers, was selected for early retirement and given a retirement package of £151,000 under a discretionary early retirement scheme. The employment tribunal gave credit for this amount to the Respondent when calculating the compensatory award. The EAT held it was right to do so - the ultimate test is what is 'just and equitable' and it would not be just and equitable to ignore the discretionary payment of £151,000. To this extent the EAT distinguishes Parry v Cleaver, which provides that pension benefits should be ignored for the purpose of calculating personal injury compensation, on the basis that this was a discretionary rather than a contractual payment.
TAYLOR v BARKLAND (UK) LTD
(Lord Johnston, 27th November 2001)
When awarding future losses of earnings, a tribunal must state the reason for the period it selects. In this case, the tribunal awarded six months' future loss of earnings without saying why it selected this period. The failure to give reasons was an error of law and the case was remitted to the same tribunal.
CHIEF CONSTABLE OF WEST YORKSHIRE POLICE v VENTO
(Wall J., 4th December 2001)
The saga continues. After succeeding on liability (following a well-known appeal), Mrs Vento was awarded £166,000 for future loss of earnings, £50,000 for injury to feelings, £15,000 aggravated damages, £9,000 for personal injury and £18,000 interest (total: £258,000). The police force appealed. The EAT held that the tribunal had given inadequate reasons for departing from statistical evidence as to the implausibility of a woman remaining in the West Yorkshire Police Force, and set aside the award for loss of earnings. It also held that the £50,000 injury to feelings and £15,000 aggravated damages awards were so excessive as to be unreasonable, and substituted awards of £30,000 and £5,000 respectively.
SHWKY v HERITAGE CARE
(HHJ Peter Clark, 6th December 2001)
The unrepresented Applicant appealed on the grounds he had not had a fair hearing from the tribunal chairman. The EAT rejected his account of what happened at the hearing, and said:
"We would add this. The passing of the Human Rights Act should not be seen as a licence for unruly litigants to misbehave before Employment Tribunals and to then use the appeal process in order to obtain a second bite of the cherry. Speaking for ourselves we shall scrutinise closely any attempt to do so. It is our experience generally that Tribunals sometimes face a difficult task in controlling proceedings in a way which is fair to both parties. Where there are exceptions we shall not hesitate to say so; otherwise, we do not regard it as being part of our function to undermine the need for Tribunals, on occasions, to robustly maintain their judicial authority."
In the bulletin headed 'Miriki v General Council of the Bar' dated 28th December 2001, I wrongly referred to the decision in Anya v University of Oxford as a House of Lords' decision. In fact, it was a decision of the Court of Appeal.
BESTWAYS v MOFFATT
(Lord Johnston, 1st November 2001)
An example of the EAT awarding costs against a party who withdrew an appeal a few days before the hearing. Of interest is the EAT rejecting the argument that lodging an appeal with a view to negotiating a settlement is itself unreasonable or vexatious conduct:
"we recognise as legitimate for an appeal to be taken with a view to achieving a compromise in cases where both sides may reflect their respective weaknesses in achieving such a compromise."
HODES v MARKS & SPENCERS
(HHJ Reid, 1st November 2001)
The Applicant, a senior manager at Marks & Spencers, was selected for early retirement and given a retirement package of £151,000 under a discretionary early retirement scheme. The employment tribunal gave credit for this amount to the Respondent when calculating the compensatory award. The EAT held it was right to do so - the ultimate test is what is 'just and equitable' and it would not be just and equitable to ignore the discretionary payment of £151,000. To this extent the EAT distinguishes Parry v Cleaver, which provides that pension benefits should be ignored for the purpose of calculating personal injury compensation, on the basis that this was a discretionary rather than a contractual payment.
TAYLOR v BARKLAND (UK) LTD
(Lord Johnston, 27th November 2001)
When awarding future losses of earnings, a tribunal must state the reason for the period it selects. In this case, the tribunal awarded six months' future loss of earnings without saying why it selected this period. The failure to give reasons was an error of law and the case was remitted to the same tribunal.
CHIEF CONSTABLE OF WEST YORKSHIRE POLICE v VENTO
(Wall J., 4th December 2001)
The saga continues. After succeeding on liability (following a well-known appeal), Mrs Vento was awarded £166,000 for future loss of earnings, £50,000 for injury to feelings, £15,000 aggravated damages, £9,000 for personal injury and £18,000 interest (total: £258,000). The police force appealed. The EAT held that the tribunal had given inadequate reasons for departing from statistical evidence as to the implausibility of a woman remaining in the West Yorkshire Police Force, and set aside the award for loss of earnings. It also held that the £50,000 injury to feelings and £15,000 aggravated damages awards were so excessive as to be unreasonable, and substituted awards of £30,000 and £5,000 respectively.
SHWKY v HERITAGE CARE
(HHJ Peter Clark, 6th December 2001)
The unrepresented Applicant appealed on the grounds he had not had a fair hearing from the tribunal chairman. The EAT rejected his account of what happened at the hearing, and said:
"We would add this. The passing of the Human Rights Act should not be seen as a licence for unruly litigants to misbehave before Employment Tribunals and to then use the appeal process in order to obtain a second bite of the cherry. Speaking for ourselves we shall scrutinise closely any attempt to do so. It is our experience generally that Tribunals sometimes face a difficult task in controlling proceedings in a way which is fair to both parties. Where there are exceptions we shall not hesitate to say so; otherwise, we do not regard it as being part of our function to undermine the need for Tribunals, on occasions, to robustly maintain their judicial authority."
Correction to Previous Bulletin
In the bulletin headed 'Miriki v General Council of the Bar' dated 28th December 2001, I wrongly referred to the decision in Anya v University of Oxford as a House of Lords' decision. In fact, it was a decision of the Court of Appeal.
Friday, 28 December 2001
IR35 Decision - Court of Appeal
The Court of Appeal has handed down its decision in the IR35 case, Professional Contractors' Group v Inland Revenue.
Background
In 1999, the government decided to prevent individuals, who would otherwise be classified as employees, from obtaining the financial advantages of self-employment by setting up one-man service companies and hiring out their services. This decision became known as 'IR35', the number of the Inland Revenue circular setting out the changes (which were enacted in three tranches, coming into effect on 6th April 2000).
The Professional Contractors' Group brought an application for judicial review, challenging the legislation as being contrary to European Law. On 2nd April 2001, Burton J. dismissed the application, holding the IR35 legislation to be lawful (see bulletin of that date).
The Professional Contractors' Group appealed.
Decision
The Court of Appeal upheld Burton J.'s decision, holding the IR35 legislation to be lawful. It rejected arguments that the legislation was anti-competitive or inhibited freedom of movement, and refused to refer the matter to the ECJ.
Of interest is Robert Walker LJ's comments about the confusing distinction between employment and self-employment, and his floating the possibility of recognising a middle status reflecting the "no-man's land between Schedule D and Schedule E, rather than insisting on the gulf which exists in theory (but, not always, in practice)..." (decision, para 54).
The full decision can be seen here.
Background
In 1999, the government decided to prevent individuals, who would otherwise be classified as employees, from obtaining the financial advantages of self-employment by setting up one-man service companies and hiring out their services. This decision became known as 'IR35', the number of the Inland Revenue circular setting out the changes (which were enacted in three tranches, coming into effect on 6th April 2000).
The Professional Contractors' Group brought an application for judicial review, challenging the legislation as being contrary to European Law. On 2nd April 2001, Burton J. dismissed the application, holding the IR35 legislation to be lawful (see bulletin of that date).
The Professional Contractors' Group appealed.
Decision
The Court of Appeal upheld Burton J.'s decision, holding the IR35 legislation to be lawful. It rejected arguments that the legislation was anti-competitive or inhibited freedom of movement, and refused to refer the matter to the ECJ.
Of interest is Robert Walker LJ's comments about the confusing distinction between employment and self-employment, and his floating the possibility of recognising a middle status reflecting the "no-man's land between Schedule D and Schedule E, rather than insisting on the gulf which exists in theory (but, not always, in practice)..." (decision, para 54).
The full decision can be seen here.
Thursday, 27 December 2001
Miriki v General Council of the Bar
The Court of Appeal has handed down its decision in Miriki v General Council of the Bar (21st December 2001).
Facts
Mrs Miriki was employed by the Bar Council. She was off work during a period when her department within the Bar Council was being reorganised, due to a combination of maternity leave and contracting malaria whilst on holiday in Nigeria. The Bar Council were unable to contact her during the consultation period, and eventually informed her of her redundancy during a meeting when she returned.
She claimed unfair dismissal and race discrimination. The employment tribunal held the dismissal had been fair, on grounds of redundancy, and dismissed the race claim. The EAT overturned the decision. It permitted various grounds to be argued at the substantive appeal which were wider than those permitted at the preliminary hearing. The Bar Council appealed.
Decision
The Court of Appeal held it was inappropriate for the EAT to allow arguments on wider grounds than those permitted at a preliminary hearing, subject to the EAT's case management powers to make limited departures from those grounds (which did not happen). The proper course for an Applicant who wished to raise further grounds was to appeal to the Court of Appeal.
Whilst obiter, of significant importance is the Court of Appeal's further departure from the House of Lord's controversial decision in Anya v University of Oxford (which provided that employment tribunals have to consider all allegations of race discrimination raised by Applicants, no matter how historical or peripheral, because they might be material to a decision whether to draw an inference of race discrimination). The Court of Appeal stated:
"Anya was a very different case...Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings of every pirce of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint."
The full decision can be seen here.
Facts
Mrs Miriki was employed by the Bar Council. She was off work during a period when her department within the Bar Council was being reorganised, due to a combination of maternity leave and contracting malaria whilst on holiday in Nigeria. The Bar Council were unable to contact her during the consultation period, and eventually informed her of her redundancy during a meeting when she returned.
She claimed unfair dismissal and race discrimination. The employment tribunal held the dismissal had been fair, on grounds of redundancy, and dismissed the race claim. The EAT overturned the decision. It permitted various grounds to be argued at the substantive appeal which were wider than those permitted at the preliminary hearing. The Bar Council appealed.
Decision
The Court of Appeal held it was inappropriate for the EAT to allow arguments on wider grounds than those permitted at a preliminary hearing, subject to the EAT's case management powers to make limited departures from those grounds (which did not happen). The proper course for an Applicant who wished to raise further grounds was to appeal to the Court of Appeal.
Whilst obiter, of significant importance is the Court of Appeal's further departure from the House of Lord's controversial decision in Anya v University of Oxford (which provided that employment tribunals have to consider all allegations of race discrimination raised by Applicants, no matter how historical or peripheral, because they might be material to a decision whether to draw an inference of race discrimination). The Court of Appeal stated:
"Anya was a very different case...Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings of every pirce of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint."
The full decision can be seen here.
Thursday, 13 December 2001
Discrimination Legislation
The government has, today, published its consultation document on legislation required to comply with the EC Equal Treatment Framework Directive. This requires the UK to introduce legislation prohibiting discrimination on grounds of age, religion or belief, and sexual orientation within the fields of employment and training.
It will also require the extension of some of the provisions of the Race Relations Act 1976 and the Disability Discrimination Act 1995 - the most important one being the removal of the 15-employee 'small employer' exemption.
The government is also considering introducing a single 'Equality Commission' (to replace the EOC, CRE and DRC).
The government summary very kindly points out that the cost of the new legislation will only be £157 per employer, whereas the benefits could amount to up to £567million.
The consultation period finishes at the end of March 2002.
For further information, and a copy of the consultation paper, click here.
It will also require the extension of some of the provisions of the Race Relations Act 1976 and the Disability Discrimination Act 1995 - the most important one being the removal of the 15-employee 'small employer' exemption.
The government is also considering introducing a single 'Equality Commission' (to replace the EOC, CRE and DRC).
The government summary very kindly points out that the cost of the new legislation will only be £157 per employer, whereas the benefits could amount to up to £567million.
The consultation period finishes at the end of March 2002.
For further information, and a copy of the consultation paper, click here.
Wednesday, 12 December 2001
Sex Discrimination (Amendment) Bill 2001
The Sex Discrimination (Amendment) Bill 2001 was laid before the House of Lords earlier today.
If enacted, it will extend anti-discrimination legislation in connection with the provision of goods and services to private member clubs, but it will continue to permit wholly single-sex clubs.
It will also permit discrimination in sporting activities where a prize of over £1,000 is offered (ie a similar prize need not be offered to competitors of the other gender).
The Bill can be seen here.
If enacted, it will extend anti-discrimination legislation in connection with the provision of goods and services to private member clubs, but it will continue to permit wholly single-sex clubs.
It will also permit discrimination in sporting activities where a prize of over £1,000 is offered (ie a similar prize need not be offered to competitors of the other gender).
The Bill can be seen here.
Tuesday, 4 December 2001
Dignity at Work Bill 2001
The Dignity at Work Bill 2001 has been introduced in the House of Lords.
It provides that all employees "shall have a right to dignity at work", and that a dignity clause shall be implied into all contracts of employment.
It prohibits harassment, bullying and any conduct which causes the employee "to be alarmed or distressed", including:
• behaviour on more than one occasion which is offensive or abusive;
• unjustified criticism on more than one occasion;
• punishment imposed without reasonable justification; or,
• changes in the duties or responsibilities of the employee to the employee's detriment without reasonable justification.
The right applies to contract workers as well as employees.
The Bill provides for complaints to be brought before an employment tribunal. The tribunal can make a declaration, a recommendation or order compensation (including damages for injury to feelings).
There is a statutory defence that can be made out if:
• the employer has in force a 'Dignity at Work Policy' and has taken reasonable steps to enforce it;
• the acts complained of are repudiated by the person in charge of the policy within 3 days of complaint ('repudiated' is not defined, but it is stated to include a repudiation in writing to the employee and to any other employees who witnessed or knew of the act complained of); and,
• the employer takes all steps reasonably necessary to remedy any loss suffered by the complainant.
The Bill will also amend section 95(1)(c) of the Employment Rights Act 1996 (the section defining constructive dismissal), to provide that breach of the implied dignity clause can amount to constructive dismissal.
The Bill can be seen here. I am offering odds on the Bill failing to be enacted due to lack of parliamentary time!
It provides that all employees "shall have a right to dignity at work", and that a dignity clause shall be implied into all contracts of employment.
It prohibits harassment, bullying and any conduct which causes the employee "to be alarmed or distressed", including:
• behaviour on more than one occasion which is offensive or abusive;
• unjustified criticism on more than one occasion;
• punishment imposed without reasonable justification; or,
• changes in the duties or responsibilities of the employee to the employee's detriment without reasonable justification.
The right applies to contract workers as well as employees.
The Bill provides for complaints to be brought before an employment tribunal. The tribunal can make a declaration, a recommendation or order compensation (including damages for injury to feelings).
There is a statutory defence that can be made out if:
• the employer has in force a 'Dignity at Work Policy' and has taken reasonable steps to enforce it;
• the acts complained of are repudiated by the person in charge of the policy within 3 days of complaint ('repudiated' is not defined, but it is stated to include a repudiation in writing to the employee and to any other employees who witnessed or knew of the act complained of); and,
• the employer takes all steps reasonably necessary to remedy any loss suffered by the complainant.
The Bill will also amend section 95(1)(c) of the Employment Rights Act 1996 (the section defining constructive dismissal), to provide that breach of the implied dignity clause can amount to constructive dismissal.
The Bill can be seen here. I am offering odds on the Bill failing to be enacted due to lack of parliamentary time!
Monday, 3 December 2001
Launch of Age Positive Website
The government has launched an Age Positive website to provide practical help for employers and individuals, as part of a major publicity drive in the run-up to the new anti- age discrimination laws that must be introduced by December 2006.
The website has a 'Games' section, which allows you to test whether you are guilty of age stereotyping!
The government has also published its assessment of the voluntary Code of Practice on Age Diversity in Employment. According to the government statistics:
• 25% of older people believe that they have been discriminated against;
• 90% of people believe that employers discriminate on grounds of age;
• about 30% of employers are aware of the Code of Practice;
• the use of age as a criterion in recruitment has reduced to 13%
A copy of the full press release is available here.
The website has a 'Games' section, which allows you to test whether you are guilty of age stereotyping!
The government has also published its assessment of the voluntary Code of Practice on Age Diversity in Employment. According to the government statistics:
• 25% of older people believe that they have been discriminated against;
• 90% of people believe that employers discriminate on grounds of age;
• about 30% of employers are aware of the Code of Practice;
• the use of age as a criterion in recruitment has reduced to 13%
A copy of the full press release is available here.
Tuesday, 20 November 2001
New Cases
CONTENTS
1. ECJ Opinion - Maternity Benefits
2. New EAT Cases
________________________________________
1. ECJ Opinion - Maternity Benefits
The Advocate General has provided his opinion in C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij. At present, it is available in French, German and Dutch only.
According to the Federation of European Employers, he has advised the ECJ that is lawful for an employer to offer subsidised childcare to female employees in preference to male employees. They state that "in an extensive and frequently convoluted rationale, [Advocate-General] Alber sets aside the views of the European Commission which clearly opposed such a measure as not constituting legitimate positive action under the 1976 Equal Treatment Directive." The case now goes to the ECJ for a final decision sometime next year.
________________________________________
2. New EAT Decisions
These cases unreported (although some may be reported in due course). The transcripts were posted today on the EAT website.
MILLS v LONDON BOROUGH OF HILLINGDON
(Lord Johnstone, 18th October 2001)
In order for the duty to make reasonable adjustments under the Disability Discrimination Act 1995 to bite, the disabled employee needs to establish that an "arrangement made by or on behalf of an employer" places him at a substantial disadvantage. The EAT considers that the word "arrangement" envisages positive steps taken by the employer, and an arrangement cannot arise by means of an omission. Thus the failure to pay a disabled employee his sickpay through administrative error was not capable of amounting to an arrangement, and thus not capable of triggering the duty to make reasonable adjustments.
PROSPECT CARE SERVICES v CURTIS
(Lindsay J., 6th November 2001)
A further gloss on the Court of Appeal's decision in Anya v University of Oxford (see bulletin 24/3/01) - although the EAT takes pains to insist it is following Anya and not limiting its application. Anya provided that in discrimination cases, the employment tribunal must examine every issue raised by an Applicant, and make findings of fact on each of them. However, this case states that the tribunal does not need to go through every allegation raised by the applicant, when the issues raised are "otiose".
FLEXIBLE WORK FOR PARENTS
As foreshadowed in vague (and it seems, somewhat inaccurate) reports in the Sunday papers, the government has today announced its new proposals to help parents work more flexibly - primarily to allow working parents to work part-time. The proposals will apply to parents of children under 6 years old (and to parents of disabled children under 18 years old).
According to this afternoon's DTI press release, the proposals will operate in the following way:
"- The employee makes a written request to their employer, which is followed up by a meeting. The employer should make a practical business assessment on how the flexible working can be arranged. It is estimated, on the basis of current practice, that 80% of requests will be settled at this meeting.
"- If a request cannot be accepted, the employer must fully explain the business reasons in writing. The employee can appeal a negative decision using dispute resolution and ultimately go to an employment tribunal. Estimates, based on current practice, suggest that only 1% of requests will end up at a tribunal."
A copy of the full press release is available here.
According to this afternoon's DTI press release, the proposals will operate in the following way:
"- The employee makes a written request to their employer, which is followed up by a meeting. The employer should make a practical business assessment on how the flexible working can be arranged. It is estimated, on the basis of current practice, that 80% of requests will be settled at this meeting.
"- If a request cannot be accepted, the employer must fully explain the business reasons in writing. The employee can appeal a negative decision using dispute resolution and ultimately go to an employment tribunal. Estimates, based on current practice, suggest that only 1% of requests will end up at a tribunal."
A copy of the full press release is available here.
Monday, 19 November 2001
Age Equality Commission Bill 2001
The Age Equality Commission Bill 2001, a private member's Bill introduced in the summer, has now been published on the internet.
It proposes the establishment of an Age Equality Commission, whose duties shall be to advise the government on matters relating to age discrimination, assess the impact of (but not draft) legislation prohibiting age discrimination, and prepare guidelines for eliminating age discrimination.
To see the Bill, click here.
It proposes the establishment of an Age Equality Commission, whose duties shall be to advise the government on matters relating to age discrimination, assess the impact of (but not draft) legislation prohibiting age discrimination, and prepare guidelines for eliminating age discrimination.
To see the Bill, click here.
Thursday, 8 November 2001
Employment Bill 2001
The government has published the Employment Bill 2001, which has formed the subject of much rumour and speculation in recent weeks.
It covers working parents, dispute resolution, and improving the skills of employees.
The main provisions are:
• six months' paid, and a further six months' unpaid, maternity leave for working mothers;
• six months' paid, and a further six months' unpaid, leave for adoptive parents;
• two weeks' paid paternity leave for working father;
• an increase in SMP from £62pw to £100pw;
• reimbursement of maternity, paternity and adoptive payments by employers from the government, with small employers receiving 100% reimbursement plus a bonus payment on top;
• the establishment of union learning representatives (with a right to paid time off work);
• a questionnaire procedure in Equal Pay cases;
• a power for the Secretary of State to introduce regulations protecting fixed-term workers;
• new systems for handling disputes in the workplace;
• a fast track system for some employment claims.
If enacted, it is anticipated these rights will come into force from April 2003.
The government has also formally announced it will not be introducing charges for applicants bringing tribunal claims.
For further information, click here.
It covers working parents, dispute resolution, and improving the skills of employees.
The main provisions are:
• six months' paid, and a further six months' unpaid, maternity leave for working mothers;
• six months' paid, and a further six months' unpaid, leave for adoptive parents;
• two weeks' paid paternity leave for working father;
• an increase in SMP from £62pw to £100pw;
• reimbursement of maternity, paternity and adoptive payments by employers from the government, with small employers receiving 100% reimbursement plus a bonus payment on top;
• the establishment of union learning representatives (with a right to paid time off work);
• a questionnaire procedure in Equal Pay cases;
• a power for the Secretary of State to introduce regulations protecting fixed-term workers;
• new systems for handling disputes in the workplace;
• a fast track system for some employment claims.
If enacted, it is anticipated these rights will come into force from April 2003.
The government has also formally announced it will not be introducing charges for applicants bringing tribunal claims.
For further information, click here.
Friday, 2 November 2001
NEW EAT DECISIONS
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.
CHIEF CONSTABLE OF WEST YORKSHIRE v A
(Lindsay J., 2nd October 2001)
The police were entitled to refuse to employ a transsexual as a police constable, since the job involved making intimate body searches and thus it needed to be undertaken by one gender to preserve decency or privacy (SDA 1975, s7(2)(b))
HEWLETT-PACKARD v O'MURPHY
(Douglas Brown J., 26 September 2001)
Mr O'Murphy worked for Hewlett-Packard through the medium of a limited company which, in turn, had been engaged via an employment agency. The EAT held that he was not an employee for unfair dismissal purposes. The contract between Hewlett Packard (the client company) and the employment agency stated that "staff provided…will be under the control of [Hewlett Packard] regarding performance and discipline and shall obey all reasonable and lawful instructions given by [Hewlett Packard]" - thus there was clear control by the client company. However, because there was no contractual nexus between Hewlett Packard and Mr O'Murphy, save for a confidentiality agreement, there could be no contract of employment implied between them.
MORROW v SAFEWAY STORES
(Ms Recorder Cox QC, 21 September 2001)
A breach of the term of trust and confidence, ie conduct calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, will always amount to a fundamental breach of contract entitling the employee to resign. In other words, it is an error of law for a tribunal to find that a breach of trust and confidence has occurred, but then go on to say it was not sufficiently fundamental to entitle the employee to resign.
TITCHENER v DTI
(Ms Recorder Cox QC, 21 September 2001)
Under s186 of the Employment Rights Act 1996, the DTI is obliged to make payments of arrears of wages to employees of an insolvent employer, subject to a statutory cap (then £220, now £240) for each week's pay. The issue in this case was whether the cap should be applied before or after deductions for tax and national insurance (the former being more favourable to the DTI, the latter more favourable to the employee). The EAT confirmed pre-existing authority that the cap should be applied before deductions for tax and national insurance: thereby resulting in the employees recovering less that the statutory cap for each week's pay.
MIDDLESBOROUGH BOROUGH COUNCIL v TGWU & UNISON
(HHJ Peter Clark, web transcript undated 2001)
The Council proposed to make about 350 staff redundant - thus triggering obligations to consult with the recognised unions at least 90 days before the first dismissal took place (s188 TULCRA 1992). For that purpose, 'dismiss' meant the date on which notice of dismissal takes effect, not (as previous authority suggested) the date that notice of dismissal is given. Moreover, it is not open to an employer in such circumstances to argue that dismissal would be futile (as in a Polkey redundancy case) - subject to the statutory defence, the duty to consult is mandatory.
BARLOW v LONDON BOROUGH OF SOUTHWARK
(Ms Recorder Slade QC, 13 September 2001)
When exercising discretion whether to extend time under the 'just and equitable' jurisdiction of the Race Relations Act 1976, the tribunal is under a duty to make a finding as to the reason for the delay in presenting the claim. Failure to make such a finding is an error of law.
CHIEF CONSTABLE OF WEST YORKSHIRE v A
(Lindsay J., 2nd October 2001)
The police were entitled to refuse to employ a transsexual as a police constable, since the job involved making intimate body searches and thus it needed to be undertaken by one gender to preserve decency or privacy (SDA 1975, s7(2)(b))
HEWLETT-PACKARD v O'MURPHY
(Douglas Brown J., 26 September 2001)
Mr O'Murphy worked for Hewlett-Packard through the medium of a limited company which, in turn, had been engaged via an employment agency. The EAT held that he was not an employee for unfair dismissal purposes. The contract between Hewlett Packard (the client company) and the employment agency stated that "staff provided…will be under the control of [Hewlett Packard] regarding performance and discipline and shall obey all reasonable and lawful instructions given by [Hewlett Packard]" - thus there was clear control by the client company. However, because there was no contractual nexus between Hewlett Packard and Mr O'Murphy, save for a confidentiality agreement, there could be no contract of employment implied between them.
MORROW v SAFEWAY STORES
(Ms Recorder Cox QC, 21 September 2001)
A breach of the term of trust and confidence, ie conduct calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, will always amount to a fundamental breach of contract entitling the employee to resign. In other words, it is an error of law for a tribunal to find that a breach of trust and confidence has occurred, but then go on to say it was not sufficiently fundamental to entitle the employee to resign.
TITCHENER v DTI
(Ms Recorder Cox QC, 21 September 2001)
Under s186 of the Employment Rights Act 1996, the DTI is obliged to make payments of arrears of wages to employees of an insolvent employer, subject to a statutory cap (then £220, now £240) for each week's pay. The issue in this case was whether the cap should be applied before or after deductions for tax and national insurance (the former being more favourable to the DTI, the latter more favourable to the employee). The EAT confirmed pre-existing authority that the cap should be applied before deductions for tax and national insurance: thereby resulting in the employees recovering less that the statutory cap for each week's pay.
MIDDLESBOROUGH BOROUGH COUNCIL v TGWU & UNISON
(HHJ Peter Clark, web transcript undated 2001)
The Council proposed to make about 350 staff redundant - thus triggering obligations to consult with the recognised unions at least 90 days before the first dismissal took place (s188 TULCRA 1992). For that purpose, 'dismiss' meant the date on which notice of dismissal takes effect, not (as previous authority suggested) the date that notice of dismissal is given. Moreover, it is not open to an employer in such circumstances to argue that dismissal would be futile (as in a Polkey redundancy case) - subject to the statutory defence, the duty to consult is mandatory.
BARLOW v LONDON BOROUGH OF SOUTHWARK
(Ms Recorder Slade QC, 13 September 2001)
When exercising discretion whether to extend time under the 'just and equitable' jurisdiction of the Race Relations Act 1976, the tribunal is under a duty to make a finding as to the reason for the delay in presenting the claim. Failure to make such a finding is an error of law.
Thursday, 18 October 2001
Sex Discrimination (Election Candidates) Bill
The government has published the long-expected Sex Discrimination (Election Candidates) Bill.
It inserts a new section 42A into the Sex Discrimination 1975, which has the effect of disapplying the 1975 Act to any arrangements relating to the right of a registered political party to regulate the selection of that party's election candidates in national, European and local elections.
In other words, it will be permissible for political parties to adopt women-only shortlists, a practice which was previously ruled unlawful.
In order for the exemption to apply, the arrangements must be for the purpose of reducing inequality in the numbers of men and women elected.
The Act (assuming it is enacted) will expire at the end of 2015, unless extended by statutory instrument.
The Bill can be downloaded from here.
It inserts a new section 42A into the Sex Discrimination 1975, which has the effect of disapplying the 1975 Act to any arrangements relating to the right of a registered political party to regulate the selection of that party's election candidates in national, European and local elections.
In other words, it will be permissible for political parties to adopt women-only shortlists, a practice which was previously ruled unlawful.
In order for the exemption to apply, the arrangements must be for the purpose of reducing inequality in the numbers of men and women elected.
The Act (assuming it is enacted) will expire at the end of 2015, unless extended by statutory instrument.
The Bill can be downloaded from here.
Friday, 12 October 2001
House of Lords on Victimisation
House of Lords Opinion - Victimisation under the Race Relations Act 1976
Yesterday (Thursday, 11th October) the House of Lords handed down its decision in Chief Constable of West Yorkshire Police v Khan, holding that an employer who refuses to provide a reference for an employee who has claimed race discrimination is not necessarily thereby guilty of victimisation.
Facts
Sergeant Khan had applied for, and been refused, promotion to inspector on several occasions within the West Yorkshire police. He lodged a claim with the employment tribunal alleging that the refusal to promote him was on grounds of his race (Indian).
Whilst that claim was pending, he applied for promotion/transfer to the Norfolk police force. The West Yorkshire police refused to provide a reference (after seeking legal advice) on the grounds of the pending litigation. They argued that they were placed in the invidious position of either having to repeat what might be a racially motivated assessment (thereby re-discriminating and possibly giving rise to an award of aggravated damages), or not repeating their previous comments and affecting the Force's credibility in Sergeant Khan's discrimination case.
Issue
By refusing to provide a reference because of a pending race discrimination claim, was the police force guilty of victimisation?
Decision
The House of Lords unanimously held that the police force was not guilty of victimisation.
Lord Nicholls pointed out that a finding of unlawful victimisation would mean that West Yorkshire police should have given Norfolk police a reference which have repeated the very views which were being challenged in pending judicial proceedings in the industrial tribunal as evidence of unlawful racial discrimination. This, said Lord Nicholls, "is a surprising proposition. To my mind it has only to be spelled out for it to be apparent that this cannot be right". He went on to say that "Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation".
The question which mattered was therefore "was Sergeant Khan refused a reference by reason that he had brought proceedings against the chief officer of police under this Act?"
The House of Lords said the answer was no. The reason why West Yorkshire Police refused to give a reference was NOT because Sergeant Khan had brought proceedings against them but because they were advised by their in-house legal department that it would be inappropriate to give a reference because there was pending litigation raising relevant issues. In traditional legal language, the institution of proceedings by Sgt Khan was a causa sine qua non of the refusal to give a reference but it was not the causa causans of that refusal.
Lord Mackay said that "once proceedings have been commenced, a new relationship is created between the parties. They are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings" and suggested that "a test which is likely in most cases to give the right answer is to ask whether the employer would have refused the request if the litigation had been concluded, whatever the outcome".
The House of Lords also considered who the correct comparator should be. Lord Scott stated that "the treatment of Sergeant Khan should be compared to the treatment that would have been accorded to an officer in a position the same in all respects as Sergeant Khan's save only that this hypothetical officer had not done the protected act, ie, in this case, had not brought race discrimination proceedings... It provides to employees who do one or other of the protected acts specified in section 2(1) the protection that Parliament must have intended them to have."
Thanks to Henry Scrope of DiscLaw Publishing (www.emplaw.co.uk) for sending me his summary of this case (which I have shamelessly plagiarised).
Wednesday, 10 October 2001
New TUPE decision
NEW TUPE DECISION
An important - and perhaps controversial - EAT decision considering when a TUPE transfer occurs. The case is reported on the EAT website.
CELTEC LTD -v- ASTLEY + others
(EAT, Hooper J. presiding, 5th October 2001))
(EAT, Hooper J. presiding, 5th October 2001))
Facts
Prior to 1990, vocational training and enterprise activities were managed by the Department of Education. In 1989, the government announced the creation of Training and Enterprise Councils (known as TECs). Approximately 80 TECs were set up, using (in the main) the same premises, databases and staff as had been doing the job under the Department of Education. They took over the Department of Education's existing contracts with suppliers and other third parties.
This case was concerned with the North Wales TEC, which began operations in about September 1990. In common with the other TECs, it was a company limited by guarantee and was initially staffed by civil servants, previously working for the Department of Education, who were seconded out for a 3-year period to the TEC. The terms of secondment provided that they continued to be civil servants and that, at the end of the period, they could extend the period of secondment or return to normal civil service duties.
In September 1991 the government decided to end the secondments and arrange for staff to be directly employed by the TECs. Following a period of consultation, all staff were offered the opportunity to return to the civil service at the end of their secondment, or resign from the civil service and enter into contracts of employment with the TEC. Many employees, including the Respondents to this appeal, adopted the latter option. The three in question, who brought their claims as test cases, resigned and entered into new contracts in about October 1993 (although the process extended until 1996 for other employees).
Issue
It was common ground at the appeal that a TUPE transfer took place. The question was, when did it occur?
If the TUPE transfer took place in September 1990, then "at the time of the transfer" (being the wording in ERA 1996, s218, dealing with continuity of employment) the employees were, and remained, employees of the Department of Employment. Thus s218 would not grant them continuity of employment.
If, however, the TUPE transfer was a gradual process occurring between September 1990 and October 1996 (as the staff transferred), then the employees would have retained continuity of employment for their years spent with the civil service.
Decision
The majority of the EAT (including Hooper J.) held that the correct test for the timing of the transfer is "when the new employer takes over the actual occupation and control of the old business". This occurred in September 1990, and thus the employees remained employed by the Department of Employment after the transfer. Thus continuity of employment was not preserved.
The minority member agreed with the decision of the original tribunal, holding that the transfer took place over a period of six years and was effected by a series of transactions, ie the transfers of the individual employees.
The EAT granted permission to appeal to the Court of Appeal without recalling the parties for argument - thus acknowledging the importance/complexity of the point.
[Thanks to John Bowers QC of Littleton Chambers, Counsel for the successful TEC, for sending me this transcript.]
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