Information and Consultation

ACAS has just published its Good Practice Advice on the forthcoming information and consultation rules.

The Good Practice Advice has been produced in collaboration with the CBI, the TUC and the DTI. It takes the form of a brief overview, plus a series of modules dealing with specific issues such as 'Information', 'Employee representation', and so on.

It is only available as a series of pages on ACAS's website; hopefully, it will be made available as a self-contained document to download soon.

Fresh or Unfresh? Remissions from the EAT

The Employment Appeal Tribunal (Burton P.) has provided, for the first time, guidelines on whether a case should be remitted to the same or a different tribunal, following a successful appeal. The factors, contained in para. 46 of the judgment in Sinclair Roche & Temperley v Heard & Fellows, are:

• proportionality: ordering a fresh hearing always adds considerably to the cost;
• passage of time: the EAT should not send a matter back to the same tribunal if there is a real risk they will have forgotten about the case;
• bias or partiality: if there is a question (note: the word 'question' is not defined) of bias, or the risk of prejudgment, the matter should not be sent back to the same tribunal;
• totally flawed decision: it is not appropriate to remit to the same tribunal if the first decision is completely flawed, or there has been a complete mishandling of it;
• second bite: the EAT should guard against the risk of a tribunal wanting to reach the same result, if only on the basis of the natural wish to say 'I told you so'; but balance this against,
• tribunal professionalism: in the absence of clear indications to the contrary, the EAT should assume that the tribunal below is capable of a professional approach in dealing with the matter on remission. ETs are only too familiar with legal approaches changing, and applying a different legal test one week to that which they applied a year or a week before.
  

In conclusion, Buton P. stated:

"It follows, that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision...) then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."

He also described remission to the same tribunal as appropriate where "there is unfinished business to be done." (para. 47.2)

Vexatious Litigants

The EAT has barred Mr D'Souza (as in D'Souza v Lambeth) from bringing proceedings in the employment tribunal without obtaining prior leave from the EAT.

Mr D'Souza initially brought seven cases against the London Borough of Lambeth between 1987 and 1989. One of his claims reached the House of Lords in June 2003, in which (in a series of conjoined appeals) the House of Lords held that it is possible for post-termination discrimination to fall within the discrimination statutes (but, on the facts, rejecting Mr D'Souza's appeal).

He then brought a second series of cases - this time eight cases - between 1997 and 2004. The Attorney General argued that this second series of cases rendered Mr D'Souza a vexatious litigant.

In a detailed judgment, the EAT has agreed, and has made a 'restriction of proceedings' order against him. The case affirms and follows the previous 'vexatious litigant' cases of Attorney-General v Wheen [2000] IRLR 461 and Attorney-General v Barker [2001] FLR 759. Like all these cases, it makes sad reading and emphasises the need for multiple, habitual and persistent claims arising out of the same of similar facts and causes of action.

Kamlesh Bahl v Law Society

According to a report in The Lawyer online, the Court of Appeal has just upheld the EAT's decision that the Law Society did not discriminate against Kamlesh Bahl.

I have not seen the transcript, but will make the link available when it comes out.

Whistleblowing

[Thanks to Colin Bourne of York Chambers, Counsel for the Respondent, for telling me this decision was being handed down today]

The Court of Appeal has, this morning, handed down its decision in Street v Derbyshire Unemployed Workers' Centre.

Affirming the EAT's decision, the Court of Appeal said that the requirement that a protected disclosure be made in 'good faith' meant that the predominant motive of the person disclosing information must be "to remedy the wrong that has occurred" (para. 71). The Court recognised that whistleblowers often have mixed motives, and it is only when the "dominant or predominant motive for making [the disclosure] was for some ulterior motive" (para. 56) that the disclosure ceases to be in good faith.

Disability Discrimination - Applicants forPupillage

The Court of Appeal has handed down its decision in 1 Pump Court Chambers v Horton, upholding (by a majority) the decision of the EAT.

Mr Horton had been offered a pupillage at a set of barristers' chambers but, because of ill-health (which qualified as a disability), asked for his pupillage to be deferred for a year. The Chambers decided not to grant him a deferral, and the employment tribunal found this decision prevented him from taking a pupillage with the Chambers.

The issue for the Court of Appeal was whether an applicant for pupillage was an applicant for "membership of [a trade organisation]" within the meaning of s13 of the Disability Discrimination Act 1995. It was common ground that a set of Chambers was a 'trade organisation' for this purpose: hence, the issue was whether an application for pupillage was an application for membership of Chambers.

The majority of the Court of Appeal (Peter Gibson and Jonathan Parker LJJ) held that pupils are not members of Chambers within the meaning of s13, and therefore an application for pupillage was not an application for membership. Accordingly Mr Horton was not entitled to the protection of the Disability Discrimination Act 1995.

Giving a dissenting judgment, Laddie J. stated that pupils make use of Chambers' facilities (such as telephones, post, computer and library facilities), have briefs provided by the clerks during the second-six months, are insured under their pupilmasters insurance policies and may have to pay a contribution to Chambers expenses on monies received for briefs. This was enough to make a pupil a member of Chambers for the purpose of s13 of the DDA, even if the pupil was not a 'full' member and did not have 'equal status' with tenants.

Permission has been granted to appeal to the House of Lords.

Disability Discrimination

In the rush of excitement over the last bulletin, I said the draft Bill introduced a questionnaire procedure under the DDA 1995. This is for claims under Part III of the Act: there is, of course, already a questionnaire procedure for claims under Part II (employment).

Of greater importance is the fact that I have had the grand total of five responses to my question asking for the connection between firefighters, police officers and barristers. They are:

• "You don't want to meet any of them"
• "ers" (I had to think about that one for a moment)
• "they are all (allegedly) looking to beat something: flames; prisoners; opponents"
• "they all wear funny costumes" (err.... yes)
• "firefighters attend to the work of the arsonist, barristers represent the arsonist and prison officers look after the arsonist after the barrister has failed in his attempts to keep his client from being convicted" (oh, please!)
  

And the prize goes to... Roger James of Taylor Vintners for "they are all (allegedly) looking to beat something: flames; prisoners; opponents". A complimentary copy of the Law Society Handbook on Employment Law is winging its way to you in the DX - how lucky are you?

Disability Discrimination 2

And there's more... (and then I stop - I promise!)

Andrew Smith, the Works and Pensions Secretary, has announced that the government will be accepting a number of recommended changes to the draft Disability Discrimination Bill which is expected to come into force in 2006.

The majority of the changes (and, indeed, the Bill itself) are concerned with the extension of disability discrimination protection outside the employment field, for example in areas such as transport and housing.

The areas which will affect employment practitioners include:

• bringing a larger number of people with mental illnesses within the definition of 'disability', by removing the requirement that their condition be clinically well-recognised.
• bringing within the scope of the DDA more people diagnosed with progressive conditions such as HIV, MS and cancer
• introducing a 'questionnaire' procedure

Whilst on the subject, don't forget that from 1st October 2004 the 'small-employer' exemption in the DDA vanishes. So does the exemption for firefighters, prison officers and barristers (a prize to anyone who can tell me what firefighters, prison officers and barristers have in common!)

House of Lords - Eastwood v Magnox

A busy day for employment lawyers. As well as handing down judgment in Dunnachie, the House of Lords has handed down its judgment in the conjoined appeals of Eastwood & Williams v Magnox and McCabe v Cornwall County Council.

This is not an easy decision to summarise. The two cases concern the overlap between common law claims for damages for breach of trust and confidence, and the statutory unfair dismissal regime. In Johnson v Unisys, the House of Lords held that employees could not bring a common law claim for damages arising out of an allegation that the dismissal was, itself, a breach of trust and confidence - thereby circumventing the statutory cap for compensation for unfair dismissal.

The House of Lords has confirmed that principle is correct. Lord Nicholls (with whom Lords Hoffman, Rodger and Brown agreed), stated that a distinction must be drawn between:

(a) cases where the employer has breached the term of trust and confidence prior to the dismissal - for which an (unlimited) common law claim can be brought; and

(b) cases where the decision to dismiss, itself, is a breach of trust of confidence - which falls within the statutory unfair dismissal regime, is subject to a cap on compensation, and which cap (imposed by parliament) cannot be circumvented by bringing a breach of contract claim in the civil courts.

Lord Nicholls recognised the practical difficulties which arise. He said "In the ordinary course...an employer's failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Them the resultant claim for loss falls squarely within the Johnson exclusion zone." (para. 28)

However, he went on to point out two exceptions where problems will arise. First, financial losses flowing from suspension without pay. Second, financial losses (as in these two appeals) flowing from psychiatric illness caused by pre-dismissal unfair treatment. He said "In such cases, the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal." (para. 29)

He went on to give examples of the artificiality of the distinction (para. 31) but said it was nevertheless a distinction which had to be observed. He pointed out that "An employer may be better off dismissing an employee than suspending him" (para. 32) and called for "urgent attention by the government and the legislature" (para. 33)

Lord Steyn agreed with the result, but went further. In a fascinating critique, he thoroughly deconstructs and (almost) ridicules the reasoning of the majority of the House of Lords in Johnson v Unisys (recognising, at para. 36, that he had given the sole dissenting judgment in Johnson). He also gave a clear hint that he thought the statutory cap on compensation for unfair dismissal should be abolished (para. 51).

The end result of the appeal is that both Messrs Eastwood, Williams and McCabe are now permitted to proceed with their cases in the civil courts (the strike-outs of their actions having been overturned).

Eastwood and anor v Magnox Electric plc HL 2004

House of Lords - Dunnachie Decision

The House of Lords has - less than 15 minutes ago - handed down judgment in Dunnachie v Kinston upon Hull City Council, on whether damages for injury to feelings are recoverable in unfair dismissal claims.

Lord Steyn (with whom the other four judges agreed) held that damages for non-economic loss are not recoverable for unfair dismissal, and that s123 of the Employment Rights Act 1996 only allows tribunal to award financial losses.

This overrides the Court of Appeal's decision (see my bulletin 11/2/04) and upholds Burton P.'s decision in the EAT (see my bulletin 22/5/03).

This will end the battle between employee and employer representatives in small value cases who cannot agree whether (in principle) an award for injury to feelings should be made.

Surprisingly, the decision is very short - indeed, much shorter that Burton P.'s analysis in the EAT.. Lord Hoffman, whose comments in Johnson v Unisys gave rise to this whole debate, stays quiet. One suspects the House of Lords are a little embarrassed by the enormous amount of satellite litigation that has been triggered by their decision in Johnson v Unisys.

(Thanks to John Bowers QC, Counsel for the successful Appellant, for telling me the decision was due this morning)

Disability Discrimination - Court of Appeal

The Court of Appeal has, today, handed down its judgment in Nottinghamshire County Council v Meikle, dealing with aspects of the Disability Discrimination Act 1995.

Upholding the EAT's decision (HHJ Ansell), it held:

• that in a constructive dismissal case, the employee's resignation need only be "in part" because of the employer's breach of contract: it need not be the 'effective case' (para. 33). This is not particularly new, although Keene LJ's analysis makes interesting reading (paras. 32-33);
• the word 'dismissal' in s4(2)(d) of the Disability Discrimination Act 1995 covers constructive dismissals. The EAT's decision in Commissioner of Police for the Metropolis v Harley [2001] ICR 927, that a constructive dismissal does not fall within the definition of 'dismissal' under the Act, was wrongly decided (paras. 41-52). As a result, the three month time limit starts running from the date of the resignation, not the date of the repudiatory conduct giving rise to the resignation (para. 53);
• the duty to make reasonable adjustments includes a duty to consider paying employees during sick absence periods (even if they are only contractually entitled to reduced pay or SSP). Section 6(11) of the DDA 1995, which excludes (amongst other things) "schemes or arrangements...in respect of...(c) accident, injury or invalidity" from the duty to make reasonable adjustments applies to insurance schemes, not to sickness provisions in the contract of employment.

Territorial Jurisdiction

Hot on the heels of Burton P.'s judgment on territorial jurisdiction in discrimination claims (see bulletin 29/6/04) come a series of four conjoined appeals before the EAT (HHJ Peter Clark) dealing with territorial jurisdiction in unfair dismissal and breach of contract claims.

The EAT, in SSAFA Forces Help v McClymont (& conjoined appeals), adopted the test laid down by the Court of Appeal in Jackson v Ghost earlier this year - i.e. 'is the employment in Great Britain?'. The difficulty, fairly obviously, involves deciding which side of the line many cases fall on. The EAT said the process was similar to deciding whether someone is an employee or self-employed, i.e. weigh up all the factors and decide which side of the line the case falls on (para. 19).

In the first two cases, which the EAT thought were straightforward, it held:

• employment of UK national by Cyprus company which did not carry on business in the UK. He worked at all relevant times in Nigeria. Held (on concession) this was not employment in Great Britain.
• UK national employed by a charity registered in the UK. She was appointed to a job in Germany and worked wholly in Germany until her resignation. She was paid partly in sterling and partly in German marks, and paid UK national insurance. Held this was not employment in Great Britain.

However, the EAT thought the other two cases were more difficult, and remitted them to the tribunal to reconsider in the light of the guidance in Jackson v Ghost.

As to breach of contract jurisdiction, the EAT considered the occasions when the civil courts had jurisdiction to determine a breach of contract claim (CPR 6) and made various fact-specific findings. They are of interest not so much for legal principle (although the case is a good summary) but for precedent examples when arguing in front of a tribunal.

Information and Consultation Regulations 2004

The DTI has today published:

• its draft Guidance Notes on the forthcoming Information and Consultation of Employees Regulations 2004, together with a consultation paper asking for feedback on the draft Guidance Notes by 22nd October 2004
• the government's response to the consultation on the draft Regulations; and,
• an updated draft of the Regulations (only 41 pages long!

Time Limits for Appeals to the EAT

The Court of Appeal has, today, handed down judgment in Gdynia American Shipping Lines (London) Ltd v Chelminski.

Overruling previous EAT authorities, the Court of Appeal held that the 42 days for lodging an appeal from the tribunal's decision runs from the date that the decision is sent out by the tribunal office. It does not start running (despite s7 of the Interpretation Act 1977 saying that service is effective two days after postage) from the deemed date of service.

The previous cases of Immigration Advisory Service v Oommen and Scotford v SmithKline Beecham are wrongly decided and are overruled.

Part-Time Workers - Retained Firefighters

(Thanks to Nicholas Chronias of Beachcroft Wansbroughs, and John Bowers QC of Littleton Chambers (both of whom represented Kent & Medway Towns Fire Authority) for telling me this decision had been handed down)

The Court of Appeal has upheld the Employment Appeal Tribunal in Matthews v Kent & Medway Fire Authority (better known as the 'retained firefighters' case), although it overturned one of the key findings in the case. Matthews is the leading case under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

For those who may not be familiar with the term, 'retained' firefighter simply means 'part-time' firefighter.

The judgment is short, but forceful. Maurice Kay LJ overturns the Employment Appeal Tribunal's decision that part-time firefighters were employed under different types of contract. He confirmed that full-time firefighters fall within the category of "employees under a contract that is neither for a fixed term not a contract of apprenticeship". He then held that since the categories in regulation 2(3) are stated to be mutually exclusive, it is inappropriate to find that retained fire-fighters fall within the catch-all category "any other description of worker..." since, like full-timers, they work under a contract which is neither for a fixed term not a contract of apprenticeship. Thus full-time and retained firefighters do, contrary to the EAT's view, work under the same type of contract.

However, Maurice Kay LJ upheld the tribunal's (and EAT's) decision that retained firefighters did not perform "the same or broadly similar work" to full-time firefighters. Both groups had, at their core, a duty to fight fires. However, full-time fire-fighters also had other, additional duties, and the Court of Appeal held the tribunal was entitled to find that this meant the two jobs were not truly comparable.

Accordingly the overall decision was upheld in (as Maurice Kay LJ) described it, "a pyrrhic victory" for the firefighters in having part of their appeal allowed, which "may have happier consequences for other part-time workers in other cases."

Disability Discrimination - House of Lords

The House of Lords has, this morning, handed down its opinion in the important case of Archibald v Fife Council.

Mrs Fife was a road sweeper. She became unable to walk after a rare complication of surgery, and could not fulfil her job. It was common ground she was disabled within the meaning of the Disability Discrimination Act 1995. Her employer, Fife Council, interviewed her for a sedentary post but chose to appoint a more qualified individual. It therefore dismissed her.

The House of Lords held:

• there is a positive duty to make reasonable adjustments - unlike sex and race discrimination, an employer is obliged to positively discriminate in favour of disabled people;
• contrary to the EAT and Court of Appeal's view, there was an 'arrangement' which placed Mrs Archibald at a substantial disadvantage; namely, an 'arrangement' that if she was physically unable to work as a road sweeper, she was liable to be dismissed;
• the positive obligation to make reasonable adjustments potentially includes allowing disabled persons to 'trump' applicants for other jobs, even if the disabled employee is not the best candidate, if the disabled employee is suitable to do that work.

Thus the House of Lords remitted the case to the tribunal to decide whether Fife Council failed to make reasonable adjustments and/or treated Mrs Archibald less favourably by requiring her to undergo an interview for the sedentary job rather than offering it to her as of right.

If anyone wants to read the judgment, the most thorough opinion (and easiest to read!) is Baroness Hale's, starting at para. 46.

Discrimination Overseas - Jurisdiction

The EAT has handed down its decision in the important case of Saggar (&ors.) v Ministry of Defence.

Under the sex and race discrimination legislation, an employee can claim discrimination "unless the employee does his work wholly outside Great Britain". This case considers the position of three army officers who were based outside Great Britain and answers three questions.

1. What is the time at which whether the Applicant works outside Great Britain to be judged?
Burton P. held that one looks at the time of the allegations of discrimination. There is no discrimination at an establishment in Great Britain if the person being discriminated against (abroad) is either someone who used to work in Great Britain, but has not done so for many years, or who is employed under a contract which contemplates he might be employed in Great Britain, but in fact he never was (para. 27)

2. What is work?
In one of the cases, the overseas officer attended training courses in Great Britain during the year. If this was 'work', then she did not do her work 'wholly' outside Great Britain, so the tribunal would have had jurisdiction to hear her complaints.

The EAT held that attendance at a training course may be work (and, on the facts in this case, was work) - the important factors being the contractual position, the content of ther work, its duration and regularity (paras. 36-37)

3. Is there a de minimis exception?

Yes. One of the cases involved an army chaplain who attended a funeral in Great Britain (which was held to be 'work'), whilst based in Germany. The EAT held that a de minimis principle applies, and that "it would offend against the de minimis principle to found jurisdiction on a one day visit" (para. 45).

New ACAS Code on Disciplinary and Grievance Procedures

The revised ACAS Code on Practice on Disciplinary and Grievance Procedures in the Workplace was laid before parliament yesterday. Subject to parliamentary approval, it will come into force on 1st October 2004.

There is substantially more information about the new dispute resolution procedures than appeared in the draft Code (which went out to consultation earlier this year). In keeping with ACAS Codes, it is written in user-friendly language and is a very good summary of the law (and good practice) relating to conduct issues in the workplace.

I am offering in-house seminars on the new dispute resolution procedures (in-house, up to three hours). Click the link on the right for more details (including fees).

Bias

An interesting (and unusual) decision on tribunal bias has been put on the EAT website today.

In Breeze Benton solicitors v Weddell, the EAT held that there was an appearance of bias if a chairman, who was alleged to have been critical of a litigant in proceedings a year earlier, sat again in another case involving that litigant.

The tribunal chairman had, it was said by Breeze Benton, criticised the firm (and awarded costs against it) fifteen months earlier when one of the two partners appeared in person to defend an unlawful deductions claim. The chairman did not accept the firm's recollection was accurate (although from the EAT's description, the firm's conduct undoubtedly warranted criticism). The firm did not appeal at the time against the costs order, but complained in an incorrectly addressed letter to the Lord Chancellor's department which they did not chase up.

Fifteen months later, the same firm was again before the tribunal for a 10-day hearing. It was allocated to the same chairman who, before the parties came into the room, anticipated the point and raised it with the regional chairman, who said it was not possible to reallocate the case to another chairman without adjourning it for some months. The Respondent then formally applied for the chairman to recuse himself on grounds of apparent bias. The tribunal unanimously refused, partly on the basis that the two wing members could outvote the chairman if necessary, and partly on other grounds.

The EAT, on existing authority, held that it is no answer to a recusal application to say that the Chairman is only one of three members with an equal vote, given the important position of the legally qualified and presiding member of a tribunal of three members (para. 44(3)).

But of significance, the EAT also held that "the very fact that [the Respondent] had complained [to the Lord Chancellor's Department] about the Chairman's conduct made it inappropriate that the Chairman should sit..." (para. 47). This approach must be questioned. If correct, it means that the vexatious litigant (and, indeed, unions and large companies who regularly appear in cases in the same region) can 'cherry-pick' their chairmen by complaining about those whom they do not like appearing in front of. This approach is dangerous as it can be easily abused: if a chairman decides (say) three consecutive cases against a local large employer, will the mere fact that that employer then complains (whether on good grounds or not) mean that the chairman has to recuse himself from hearing future cases? Surely not.

ACAS Booklet on Redundancy

ACAS has updated its booklet on redundancy.

In line with all the ACAS booklets, it is becoming more practical and user-friendly. This one contains really useful information, particularly the 'walkthrough' of how to conduct a redundancy exercise in appendices 1 and 2.

The only adverse comment is that the booklet mentions in passing, but does not explain in any detail, the mandatory dismissal procedures which come into force from 1st October 2004. These will apply to all dismissals of less than 20 staff within a 90 day period.