...Six days shalt thou labour, and do all thy work

In a fascinating case, the Court of Appeal has considered (in three separate reasoned judgments) the issue of whether and when the dismissal of an employee who refuses to work on the Sabbath is unfair.

The case concerned the impact of article 9 of the ECHR (freedom to manifest religion) on UK unfair dismissal law. The unfair dismissal claim was brought by a Christian employee who refused to accept shift-changes requiring Sunday working, and was dismissed as a result.

Mummery LJ, following a line of European Commission authorities ending with Stedman v UK, held that article 9 is not engaged because an employee is always free to resign from a job and not work on Sundays. He made it fairly clear he disagreed with those authorities, but considered himself bound by them.

Rix LJ, in a thoughtful and compelling judgment, held that the line of cases did not hold that Article 9 was not invoked if an employee had the option to resign. However, on the facts, the employer had tried to accommodate the employee when changing his hours to include Sunday working, and although Article 9 was engaged, it was not breached

. Neuberger LJ, dealing principally with English (rather than Convention) law, held that it is always open to a tribunal to find a dismissal unfair if an employer fails to strike a reasonable balance between the needs of the business and the employee's religious beliefs. He considered that Article 9 of the ECHR added little to the existing balancing act necessary for unfair dismissal decisions.

This decision is important as, despite the result, it makes it very clear that employers must try to minimise the impact of changes to working hours on employees who hold strong religious beliefs (eg by offering alternative jobs)

Copsey v WWB Devon Clays Ltd

Age Discrimination

The DTI has, at 10.30am, published the draft Regulations on age discrimination.

The new Regulations:

• ban age discrimination in terms of recruitment, promotion and training;
• ban all retirement ages below 65 - except where objectively justified;
• require employers to inform employees in writing, and at least 6 months in advance, of their intended retirement date. This will allow people to plan for their retirement;
• remove the current upper qualifying age for unfair dismissal and redundancy rights;
• impose a duty for employers to consider an employee's request to continue working beyond retirement; and
• impose a requirement for employers to give written notification to employees at least 6 months in advance of their intended retirement date. This will allow people to plan for their retirement.

The DTI is embarking on a three-month consultation period, seeking comments on the draft Regulations. The new laws will come into force in October 2006.

DTI Age Discrimination Webpage

Admissibility of Claim Forms

The DTI has, at 10.30am, published the draft Regulations on age discrimination.

The new Regulations:

• ban age discrimination in terms of recruitment, promotion and training;
• ban all retirement ages below 65 - except where objectively justified;
• require employers to inform employees in writing, and at least 6 months in advance, of their intended retirement date. This will allow people to plan for their retirement;
• remove the current upper qualifying age for unfair dismissal and redundancy rights;
• impose a duty for employers to consider an employee's request to continue working beyond retirement; and
• impose a requirement for employers to give written notification to employees at least 6 months in advance of their intended retirement date. This will allow people to plan for their retirement.

The DTI is embarking on a three-month consultation period, seeking comments on the draft Regulations. The new laws will come into force in October 2006.

DTI Age Discrimination Webpage

Age Discrimination - personal organiser

I've been sent a copy of a 'Be Ready' Personnel Organiser, produced by the Age Partnership Group. It's a filofax full of useful information on age discrimination for employers, plus a CD-ROM with training courses on age discrimination awareness.

It's a really good free guide. It will be more useful for HR professionals and employers than for lawyers, but solicitors might want to pass details about it onto clients as a marketing exercise.

You can get copies (as many as you want) by sending a blank Email to apg@isky.co.uk (you will automatically be Emailed back a link to a website request form). You can also phone 0845 715 2000, but you may have problems getting through if a lot of people receive this bulletin and dial the number simultaneously.

Note the Age Partnership Group is fairly overwhelmed with demand (it took about six weeks for me to get my copy), so don't expect anything too quickly.

And just for information, the Age Discrimination Regulations are due to be published in draft form by the end of this month, and will be put out for a three month consultation period.

DTI Stress Guide

The DTI, working with the HSE, CBI, TUC, Local Government Employers and the Forum of Private Business, has produced a leaflet for employers and employees on work-related stress.

It says very little - in fact, it could hardly say less - but it comes in at an impressive eight pages of nicely designed graphics and logos.

It's a large file (Adobe Acrobat needed), so if a large number of people click on the link simultaneously when this bulletin arrives, you may not get through and will need to try again later.

Click here to open the Guide (.pdf file)

ETS Annual Report

The Employment Tribunals Service (ETS) today published its Annual Report and Accounts for 2004-05 (1st April 2004 to 31st March 2005).

Key findings include:

• 86,181 claims registered, compared with 115,042 the previous year. This decrease of 25% is mainly due to fewer multiple cases;
• 1,038 cost orders made, with 283 in favour of the claimant, and 755 in favour of the respondent. This is similar to the 976 costs awards the previous year. The median cost award was £1,000;
• average compensation remains low. The median award for unfair dismissal, including the basic award, was £3,476. The median for discrimination (depending on the type of discrimination) was between £6,200 and £7,500;
• the cost of running the employment tribunal service last year was £69,770,000. This is equivalent to £809 for each application lodged.

It is unclear how the new statutory dismissal and grievance procedures, and the new procedural rules, have impacted on the number of claims being admitted, as the new rules came into force half-way through the year to which these figures relate. The opening summary states that they have "increased pre-hearing activity for both administrators and judiciary"

Click here for the Annual Report

ACAS: Public Sector Change Management

Acas has today launched a range of tailor-made training and workshops to help public sector organisations manage change.

This is accompanied by two publications - 'Working with you to manage change in the NHS' and 'Working with you to manage change in local government' - which include case studies.

More information

Service at Tribunals by Email

Where a Claim Form is sent to the tribunal by Email, a Claimant is entitled to assume it will be delivered at the tribunal within about an hour (unless there is an indication that it has not been received, such as a message bounce-back).

Accordingly the Consignia v Sealy 'escape route' is open to a Claimant who sends his Claim Form by Email on the last day for service of the ET1 (as long as s/he allows an hour before midnight, when time expires). The tribunal should then consider if the Claimant has acted reasonably promptly in re-sending the form once s/he realises it has not been received.

In this case, the Claimant Emailed her Claim Form at 4.05pm on Friday (the last day). It was not received at all. She phoned to check it had arrived the following Wednesday or Thursday, and when she discovered it had not arrived, she delivered another Claim Form.

The EAT (Burton P. presiding) upheld the tribunal's decision that it was not reasonably practicable for her to have presented the Claim Form in time, relying as she did on the ordinary course of Email, and she had presented the Claim Form within a reasonable period after expiry of the three-month period.

Initial Electronic Security Systems v Avdic

Justification of Indirect Discrimination: range of reasonable responses test does not apply

The Court of Appeal has, this morning, held that the range of reasonable responses test does not apply when tribunals decide whether an otherwise indrectly discriminatory 'provision, criterion or practice' is objectively justified.

In Hardys & Hansons v Lax, Pill LJ held that the Sex Discrimination Act 1975 demands that:

"The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances." (para. 32).

Thomas LJ added that where the employer is relying on the economic needs of the business, it would be expected to adduce sufficient evidence of that business need to enable the tribunal to "set out at least a basic economic analysis of the business and its needs... the analysis must be through and critical and show a proper understanding of the business of the enterprise." (para. 55)

Hardys & Hansons v Lax

Commission Advances for Employees not void under Consumer Credit Act

The Court of Appeal has held that monies paid to employees by way of 'advances' on commission are not 'credit' within the meaning of the Consumer Credit Act 1974. Accordingly the repayment clauses are enforceable even if they do not comply with the technical requirements of the Act (and, of course, they never will).

In McMillan Williams v Range, the employers were a three-partner firm of solicitors based in Surrey and South London. They employed an assistant solicitor on a 'commission' basis, to receive one-third of her billings. For the first two years, they paid her £22,000 on account, intending an up or down adjustment to be made after two years. Her billings were not anything like sufficient to cover her salary (i.e. £66,000) and, after she resigned, they sued her for return of £17,000 overpaid commission. She counterclaimed for misrepresentation, alleging the firm had misled her over the amount of work available.

The Court of Appeal, dealing with this as a preliminary issue, held that the arrangement was not one for 'credit' - thus Ms Range could not defeat the claim by pointing the fact that her contract did not comply with the provisions of the Consumer Credit Act 1974.

This very sad case is worth reading - particularly paragraphs 29 and 30 - where the Court of Appeal criticises both sides in extremely robust terms for running up £50,000 of costs on just the preliminary issue, and for "posturing and jockeying for position" throughout "tedious correspondence". The Court makes it very clear that they expect cases of this nature to be dealt with, if at all possible, by mediation.

McMillan Williams v Range

Daniel Barnett
5th July 2004

Equal Pay

The EAT has handed down its decision in Hope v SITA (UK) Ltd.

Mrs Hope was promoted to the position of Group Purchasing Manager, which a man had previously done, but not paid as much.

The tribunal found that this was 'like work', but also found that Mrs Hope in fact did more work than her predecessor because he had had a deputy to shoulder some of the workload (i.e. her), but she did not have a deputy and so was doing more work.

The EAT rejected the argument that there cannot be 'like work' when a woman is found, as a fact, to be doing more work than her male comparator (para. 13). HHJ Wakefield held:"On any purposive construction of the Act, the fact that a promoted woman undertakes more duties than her male predecessor cannot result in a conclusion that the two are not undertaking like work in order to justify her being paid less."

Sita UK Ltd v Hope EAT 2005

Minimum Wage

The statutory instrument containing this year's increase to the minimum wage has been laid before parliament (see bulletin dated 25th February 2005 when the increases were announced).

The changes, which take effect on 1st October 2005, are:

• for adult workers, from £4.85 to £5.05ph
• for younger workers (18-21), from £4.10 to £4.25
• the accommodation allowance increases from £3.75 to £3.90 per day/

New ACAS Guides

Acas has, today, updated three of its guides, namely:

• Booklet on Recruitment and Induction
• Q&A on Discipline, Dismissal and Grievances
• Advice Leaflet on Flexible Working

Click on the titles above to link through

Basic Award Set-off for Redundancy

In what was described by HHJ McMullen QC as "an arcane corner of the law relating to compensation for unfair dismissal", the EAT has held that a payment made by an employer, which purports to be a redundancy payment, cannot be set-off against the basic award in an unfair dismissal claim.

In Bowyer v Siemens Communications, Mrs Bowyer was dismissed on grounds, purportedly, of redundancy. The tribunal found that the dismissal was procedurally and substantively unfair and - significantly - that the real reason for dismissal was not dismissal.

Her financial losses were over £200,000, and were capped at the (then) compensatory award limit of £53,500.

She had been paid, at the time of the dismissal, £6,240 by way of a statutory redundancy payment. The tribunal refused to award a basic award (of £6,240) on the basis of s122(4) of the Employment Rights Act 1996, which states that the basic award should be reduced by the amount of any payment made to the employee on the ground that the dismissal was by reason of redundancy.

The EAT overturned the tribunal's decision, following an older Court of Appeal authority which held that, for s122(4) to be engaged, the dismissal had to actually be on grounds of redundancy. A payment expressed to be in respect of redundancy would not be set-off against the basic award, if the true reason for dismissal was not redundancy.

Normally this will make no difference, since the 'redundancy' payment would be set-off against the compensatory award. But where the compensatory award exceeds the cap, as in this case, it results in the employee receiving a full basic award on top of the 'redundancy' payment she has already had.

Bowyer v Siemens plc, EAT 2005

Discrimination - Joint and Several Liability

The EAT has handed down judgment on whether general 'mental handicap', or generalised learning disorders, can amount to a disability.

It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.

However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.

This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).

Dunham v Ashford Windows EAT 2005

[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]

Disability Discrimination - Mental Impairment

The EAT has handed down judgment on whether general 'mental handicap', or generalised learning disorders, can amount to a disability.

It has often widely thought that a mental impairment must be clinically well-recognised before it can amount to a disability.

However, in Dunham v Ashford Windows, the EAT (drawing on dicta in an earlier case) made it clear that general learning disabilities (if sufficiently serious) can amount to a mental impairment. Whilst a "mental illness" must be clinically well-recognised in order to amount to a disability (under para. 1 of Schedule 1 to the DDA 1995), this does not preclude other types of mental impairment which do not amount to a mental illness, from qualifying as a disability.

This case expands the remit of the DDA 1995. Note that under the Disability Discrimination Act 2005, the requirement for a mential illness to be well-recognised is abolished (expected to come into force December 2005).

Dunham v Ashford Windows EAT 2005

[Thanks to Taqdir Baines of the Citizens Advice Bureau Specialist Support Unit, which represented the Claimant, for notifying me of this decision.]

State Immunity

An interesting decision on the procedure for claiming / challenging state immunity, arising largely from the unusual facts of the case.

Mr Aziz was employed for many years as an accounts assistant at the London embassy of the Republic of Yemen. He claimed unfair dismissal. Solicitors acting for Yemen lodged an ET3, without taking any state immunity point.

On the morning of the hearing, Counsel for Yemen raised the immunity defence. The tribunal rejected this defence, holding that by lodging an ET3, Yemen had waived reliance on state immunity (under s2(5)of the State Immunity Act 1978).

The Employment Appeal Tribunal admitted two witness statements from the Yemeni Ambassador. He said that he was unaware of the right to claim state immunity and had not authorised any waiver. He said that the Embassy had not authorised instruction of solicitors and that the solicitors had entered the ET3 without authority. The EAT accepted this at face value, allowed the appeal and held that Yemen was entitled to claim state immunity.

The Court of Appeal has overturned the EAT's ruling. In a somewhat laconic judgment, the Court of Appeal said that the EAT should critically evaluate claims of this nature (rather than take the Embassy's evidence at face value) and, if a fact-finding mission is needed, remit the case back to a tribunal.

Pill LJ, relying on such factors as the Ambassador had, himself, visited the solicitors' offices (and had denied that an individual at the embassy was a member of the diplomatic staff, despite that individual having been certified as member of diplomatic staff to the Foreign & Commonwealth Office), held that issues of fact as to the accuracy of the Ambassador's evidence arose. Accordingly, the Court of Appeal remitted the case to a (different) tribunal to conduct a fact-finding exercise into whether Yemen had waived state immunity.

Aziz v Republic of Yemen

Rolled up Holiday Pay

UPDATE

As most people will know, the 'rolled-up holiday pay' issue was referred to the ECJ last year (see bulletin 17/3/04).

The conjoined cases of MJ Clarke v Frank Staddon and Caulfield Barnes v Marshalls Clay Products have now been listed for hearing before the ECJ on 15th September 2005.

Allowing time for the Advocate-General's opinion and the judgment of the full court (which normally takes 6-9 months after hearing argument), we should have a decision in Spring/Summer 2006.

[Thanks to Tony Mizler of A.E. Mizler & Co., for telling me about the listing date.]

Redundancy Dismissals - Suitable Alternative Employment

The EAT has held, in Fisher v Hoopoe Finance Ltd., that where there are one or more possibilities of suitable alternative employment available to an employee who is to be made redundant, then the employer should normally inform the employee of the financial prospects of those positions to enable the employee to make an informed choice. A failure to provide such information (unless impractical, for example if the salary has not been set) is likely to make any dismissal unfair and, presumably, likely to render it reasonable for the employee to refuse the offer.

That appeares relatively uncontroversial. Of greater interest, is an indication by the EAT (HHJ Birtles presiding) that a failure by an employee to indicate an interest in a particular position and/or to request further information (including financial information) is a factor which the Employment Tribunal may wish to take into account in reducing the basic and compensatory awards on grounds of contributory fault.

Fisher v Hoopoe Finance Ltd EAT 2005 . (see para. 17)

ACAS Leaflet on employing older workers

Acas has today issued a new advisory leaflet, 'Employing Older Workers'. It gives advice on what to consider when recruiting, planning for the future and managing older workers. As with all Acas guides, it is practical and succinct, with none of the political hyperbole seen in similar guides produced by other organisations.

Acas Leaflet on Employing Older Workers