New President of EAT Announced

The DCA has just (12.15pm) announced that the new President of the Employment Appeal Tribunal is the Honourable Mr Justice (Patrick) Elias.

His term is from 3 January 2006 until 2 January 2009 inclusive. He will succeed the Honourable Mr Justice Burton.

Maternity Suspension - Obligation to 'Avoid' Risks

An interesting point of construction of regulation 16 of the Management of Health and Safety at Work Regulations 1999 is dealt with in the EAT's judgment in New Southern Railway v Quinn.

Mrs Quinn was (effectively) demoted from the Duty Station Manager's post at Brighton station when she announced her pregnancy. The Respondent justified the demotion on the basis that it was taking steps to "avoid" physical risks (eg assault) flowing from the Duty Station Manager's position.

The employment tribunal found that this assertion was a sham, and that the Respondent had simply adopted "an extremely paternalistic and patronizing attitude towards the Claimant and her condition." It also found that the risk of assault was small and could easily be reduced further.

Before the EAT, the Appellant (employer) argued that the obligation to "avoid" risks was an absolute obligation under European law, so that if there was any risk of harm, the employer was under an absolute obligation to avoid it - in this case, by demoting the Claimant.

The EAT held this argument was wrong. Adopting a purposive approach to the word 'avoid', it held that it meant 'reduce to a low risk' or 'reduce the risk as far as possible', rather than 'eliminate the risk entirely'.

The EAT also dealt with a number of other arguments, including waiver of breach (for the purpose of constructive dismissal). This decision makes interesting reading, not least for the very lucid way both sides arguments are set out and analysed.

New Southern Railway v Quinn

Statutory Grievance letters

They're coming fast and furious...

Yesterday, the EAT published yet another decision on step 1 statutory grievance letters (judgment was given on 13th October, although the transcript was not released until yesterday).

As well as winning first prize in the 'easy case name to remember' competition, Commotion Ltd. v Rutty is another example of the relaxed view that tribunals are taking to whether a letter amounts to a statutory grievance letter under step 1 of the standard grievance procedure.

Mrs Rutty applied in writing for a variation to her working pattern under the flexible working provisions in s80F of the Employment Rights Act 1996. Her letter did not suggest it was to be regarded as a grievance.

Following the employer's unreasonable refusal of the request, in circumstances which the tribunal found was a breach of trust and confidence, she resigned and claimed constructive dismissal. She did not send a subsequent grievance letter.

The EAT (HHJ Burke presiding) upheld the employment tribunal's ruling that the original request to vary her contractual working pattern amounted to a step 1 grievance letter. The EAT relied upon regulation 2(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which provides that it is irrelevant whether the purported grievance letter deals with any other matter.

This decision, whilst demonstrating the relaxed view that tribunals are taking on this issue, is possibly open to being challenged at a future date on the basis that Mrs Rutty's true complaint - and reason for resigning - was not her original working pattern, but was the failure to deal properly with her request for flexible working contained within her letter. This is clearly a fact-sensitive area, which the employment tribunal (and EAT), in this case, considered fell on the side of the line where the letter complied with s32 Employment Act 2002.

The transcript is not yet on the EAT website, but it should be put up in the next week or so. Due to copyright constraints, I cannot attach a copy of the transcript to this Email.

[Thanks to Chris Carr of 36 Bedford Row (who represented Mrs Rutty) for sending me a copy of the transcript.]

Polkey Reductions

Another case from the EAT (HHJ McMullen presiding) reminding tribunals that it is incumbent on them to consider making a Polkey reduction to compensation for unfair dismissal, and that the King v Eaton situation where no reduction should be made because of the difficulty of reconstructing 'what would have happened' should rarely be adopted.

The EAT split the possible Polkey options into four categories (para. 22):

1. Length of time cases, where a dismissal would have occurred in due course;
2. Loss of chance cases, where there was a chance of surviving dismissal;
3. Cases where a reduction has been effected because the Claimant was likely to have been dismissed on another ground; and,
4. Cases where there has been no reduction because there was a complete sham

Gover v PropertyCare Ltd.

What is a Grievance Letter?

Hot on the heels of HHJ Peter Clark's decision in Thorpe & Soleil Investments v Poat & Lake (see bulletin 25/11/05) comes an even more important decision on what does (or does not) constitute a step 1 grievance letter for the purpose of the (standard) statutory grievance procedure.

In Shergold v Fieldway Medical Centre (EAT, 5/12/05), the Claimant wrote a three-page resignation letter setting out the reasons for her resignation. She did not ask for it to be treated as a grievance, although her employers invited her to a meeting to discuss the issues she raised before accepting her resignation.

The employment tribunal held that this did not amount to a step 1 grievance letter, but was instead properly classified as a resignation letter.

The Employment Appeal Tribunal (Burton P. presiding) overturned this, holding:

• there is no formality required in a statutory standard grievance letter. The requirements "are minimal" - all an employee needs to do is set out his or her complaint in writing (para 30)
• the statutory procedures should rarely result in the Claimant being debarred or the employer being liable for an automatic unfair dismissal. Burton P. states that the purpose behind the statutory grievance procedures is, like the civil court pre-action protocols, to give the parties a chance to settle disputes before litigating. "The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here...It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those are sanctions, which should be very rarely used; the purpose of the legislation is quite other, as we have described" (para 28)
• the fact that the written grievance is contained in a letter of resignation "makes no difference at all", provided that it is the setting out of a complaint in writing (para 31)
• it is not necessary to make it plain in the writing that it is a grievance, or is an invocation of a grievance procedure (para 33)
• there is equally no requirement that an employee must comply with any company or contractual grievance procedure (para 34)
• it is not necessary that every detail of the complaint be set out, as a grievance letter is not a pleading. It is sufficient if the employe can "understand the general nature of the complaint being made" (para 37)
• it is also unnecessary that the employer have the chance to respond to the grievance; all the statute requires (for the standard procedure) is for the employee to set out his complaint in writing (para 38)

NOTE: the EAT stated that it "deprecate[d]" the jargonistic use of the verb 'to grieve', as in 'Has the employee grieved?', and reminded practitioners that 'grieving' has a specific meaning which is not appropriate in the context of an employment grievance (para 17).

Shergold v Fieldway Medical Centre

ACAS "Christmas Party" Advice

Acas has issued a set of Frequently Asked Questions for employers arising out of 'Christmas Party' issues.

Questions (and answers) include:

• How can you make sure people don't get too drunk and fail to turn up for work the day after the party?
• What if an employee suffers verbal abuse about being gay at the local pub before the party - it's not on work premises so it's a matter for them isn't it?; and,
• What do you do with those photocopies of bare flesh? (yes, really!!)

View Acas 'Happy Christmas Party' Advice

What is a Statutory Grievance Letter?

We have the first EAT decision concerning the contents of statutory grievance letters under the Employment Act 2002.

The EAT (HHJ Peter Clark sitting alone) holds:

• the intention of the employee is irrelevant - it matters not whether the employee did (or did not) intend to raise a grievance within the body of the letter (para 22)
• likewise, the terms of any contractual grievance procedure are irrelevant - an employee does not have to comply with a contractual grievance procedure for a letter to amount to a valid stautory grievance (para 24)
• most importantly, practitioners and tribunals must always bear in mind that it is necessary to decide whether the standard or modified grievance procedures apply. That is because a standard procedure grievance letter requires the employee to "set out the grievance in writing", whereas a modified procedure grievance letter also requires the employee to set out "the basis for" the grievance, i.e. the grounds of the grievance as well as an outline of the grievance itself. This may make a difference as to whether the letter complies with the technical requirements of a grievance letter (paras. 25-26 and 21)

Thorpe & Soleil Investments v Poat & Lake

Sex Discrimination - Rub down body searches

The EAT has handed down its judgment in Home Office v Saunders.

It holds that a tribunal is entitled to find that the correct hypothetical comparator for a female prison officer conducting a rub-down search of a male prisoner was a male prison officer conducting a rub-down search of a female prisoner, despite the fact that a male prison officer was not permitted to carry out such a search.

In doing so, the EAT rejected the argument that the correct comparator was a male officer conducting a rub-down search of a male (not female) prisoner. In coming to this decision, the EAT relied heavily on policy arguments that care must be taken not to approach comparator issues in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex throughout employment.

Home Office v Saunders

Age Discrimination Telephone Seminars

Use brand-new technology to attend two one-hour telephone seminars that I am presenting on age discrimination on 12th January and 23rd January 2006.

Just dial-in to a pre-arranged number (national rate) and listen to me speaking on age discrimination. If you have a broadband connection, you can simultaneously watch a powerpoint presentation via a weblink.

Click here for more information

Here are just some of the benefits for you:

• easy access to the seminars from the comfort of your desk
• avoid lost revenue caused by travel and waiting time
• a fantastic opportunity for those outside city centres who find it difficult to attend traditional lectures
• live Q&A sessions over the web
• multiple fee-earners can listen in around a speakerphone

Click here for more information

The course attracts 2.75 hours CPD from the Law Society (reflecting the course length of two hours, plus 45 minutes to review the material and answer 10 multiple-choice questions at the end).

Fees

The course fee, covering both seminars, is just £129+VAT. This includes:

• dial-in access for one telephone (and/or computer);
• as many participants gathering around the telephone to listen as you wish
• 2.75 CPD hours for one attendee (subject to completion of the multiple-choice questions).

Additional delegates can purchase the CPD hours for a nominal administration fee of £35+VAT.

Click here for more information

Age Discrimination and Fixed Term Workers - ECJ Decision

The ECJ has given judgment in Mangold v Rudiger Helm, dealing with the approach courts should take to the forthcoming age discrimination laws.

Under German law (implementing the Fixed Term Workers Directive), fixed-term contracts are normally unlawful unless objectively justified, UNLESS the employee is aged over 52 - in which case, fixed-term contracts do not need to be objectively unjustified.

A 56-year old German employee argued this contravened the EU Equal Treatment Framework Directive, and in particular, the requirement that member states eliminate age discrimination in employment.

The German government (and the employer) argued that as the Framework Directive did not have to be implemented until December 2006 (when the 'over-52' exemption for fixed-term contracts was due to expire), the Directive could have no impact on the legality of the 'over-52' exemption for fixed term contracts.

The ECJ disagreed. It held:

• national legislation which allows employers to treat those over 52 less favourably than those under 52 (by permitting fixed-term contracts without objective justification) offends the principle of eliminating discrimination on grounds of age; and,
• it did not matter that the Equal Treatment Framework Directive was not due to be implemented until December 2006, as the 'over-52' exemption had been introduced in 2002, after the Equal Treatment Framework Directive had been agreed. It was therefore incumbent on the German government not to legislate, once there was a clear aim of eliminating age discrimination by 2006, in a way which encouraged age discrimination.

Mangold v Rudiger Helm

Minimum Discrimination Awards

An interesting case from the EAT (sitting in Scotland) involving awards for injury to feelings when a disabled job applicant made a job application which was "not made wholly in good faith."

The Claimant applied for a job as a security officer. On his application form, he said he suffereded from depression and had not had a job for 14 years. His application was rejected at the first sift, which the tribunal found to be discriminatory on grounds of the Claimant's disability.

However, the tribunal noted that the Claimant was woefully underqualified for the job and had probably lied about the training he had received. They thought his job application was "not made wholly in good faith", and noted that he had attended a number of tribunal claims previously as a result of which he had a wide knowledge of discrimination law.

They awarded him £500 for injury to feelings. The Claimant appealed on the basis that a practical minimum should be £750, and on these facts he should have been awarded £2,500.

The Employment Appeal Tribunal dismissed the appeal, holding that the award of £500 was well within the tribunal's discretion. Interestingly, the EAT held that there was no minimum award that tribunals should award (which appears to go against previous authorities), albeit that a practice had arisen of awarding at least £500.

Greig v Initial Security Ltd

No cancers to be excluded from definition of disability

This is not particularly 'hot' news, but it is quite important and has not been picked up (as far as I am aware) by any of the legal journals.

It is well-known that from 5th December 2005, cover under the DDA 1995 will be extended to include, effectively from the point of diagnosis, people with HIV infection, cancer or multiple sclerosis.

There had been a previous indication that certain types of cancer were to be excluded from being deemed to be a disability. However, the Parliamentary Under Secretary of State announced in the Commons a few weeks ago that "...following a review of evidence of the extent of discrimination faced by people with more minor forms of cancer, we have decided not to exercise the 2005 Act's regulation-making power which would allow us to exclude certain types of cancer from automatic coverage by the DDA 1995."

Other changes from 5th December will include the removal of the requirement that a mental illness be "clinically well-recognised" before it can be regarded as an impairment.

Click here to see the relevant extract from Hansard (scroll to third paragraph under the table)

[Thanks to Richard Lister of Lewis Silkin for notifying me of this.]

Equal Pay - Genuine Material Factor Defence

The EAT has handed down an important equal pay decision, holding that the genuine material factor defence requires justification by objective criteria.

There has, for a little while, been tension between domestic and ECJ authorities in this area. The European approach requires that a difference in pay has to be objectively justified whereas the domestic approach is simply to require the employer to be able to account for the difference by reference to a factor which is material but is not the sex of the employee unless the factor relied upon by the employer is one which may itself indirectly discriminate against female employees, in which case the factor has to be objectively justified.

In a new decision, Sharp v Caledonia Group Services Ltd. (HHJ Ansell presiding), the EAT has departed from the traditional domestic approach and adopted the European approach of requiring objective justification.

In so doing, the EAT declined to follow its previous 2004 decision in Parliamentary Commissioner for Administration v Fernandez, which held that a genuine material factor for a reason not related to sex is sufficient, and objective justification is not required.

Instead, it relied on the earlier 2001 ECJ authority of Brunhoffer Brunhoffer v Bank Der Osterrichischen Postparkasse AG, which had held that objective justification is required. The EAT has given permission to appeal to the Court of Appeal.

Sharp v Caledonia Group Services Ltd.

Thanks to Russell Jones & Walker, who successfully represented the Claimant, and to the EOC (who funded the appeal), both of whom notified me of this decision

Equality Bill Printed

The Equality Bill (which has been passed in the House of Lords) has now been transferred to the House of Commons and is available on the House of Commons' website.

View Equality Bill

Extension of Time for Appealing

A useful decision from the EAT, in which a firm of solicitors moved offices at the same time as London (Central) tribunal moved from Woburn Place to Kingsway.

Unsurprisingly, the tribunal's decision got lost somwhere along the way. The Claimant's solicitor wrote to chase up the tribunal, but the tribunal did not respond promptly. The end result was that the tribunal decision was received by the Claimant's solicitors on the 42nd day after it was officially sent to the parties, i.e. the last day for appealing.

The solicitor was on holiday and his trainee spoke to a colleague and spent two weeks obtaining instructions, awaiting the return of the relevant fee-earner, and liaising with Counsel. A Notice of Appeal was lodged two weeks after time technically expired.

The Employment Appeal Tribunal (HHJ McMullen sitting alone) found that it was appropriate in those circumstances to exercise the EAT's discretion to extend time, and that the 14-day delay before the Notice of Appeal was lodged was reasonable.

This decision marks a slight departure from the EAT's usual reluctance to extend time - albeit in a fact-specific way when the EAT was satisfied that the Claimant did not receive the decision until the 42nd day.

Practice Point
If you are expecting a decision in the post, and it does not arrive, make sure you write to the tribunal to chase it up. If there is no reply, do not sit back - write again.

Without such correspondence on file, the EAT will be unsympathetic to an argument later down the line that the decision was lost or delayed in the post.

Dodd v Bank of Tokyo-Mitsubishi, 30th Sept 2005

No Smoking in Scotland..

From 6am on March 26, 2006, smoking will no longer be allowed in the majority of enclosed public places, including workplaces, to protect people from the harmful effects of passive smoking. This applies only to Scotland.

The Scottish Executive has just published guidelines to help businesses and organisations prepare for the ban, together with other useful documents (such as downloadable posters to display in the workplace).

Click here for further information

[Thanks to Gillian Bain of Just Employment Law for sending me the above information.]

Claim and Response Forms

I have been in correspondence with the Employment Tribunals Service over precisely which Claim and Response Forms are 'prescribed' for use in tribunals. I am receiving dozens of Emails on this topic and I understand the ETS are likewise receiving many similar queries. Hopefully this bulletin will help clear the air.

Has anything been prescribed?
No statutory instrument has been issued - a matter which has caused a lot of queries. However, there is no requirement under the rules for the prescribed forms to be issued by way of Regulation.

The ETS made a formal submission to Gerry Sutcliffe, Minister for Employment, on 19th September 2005. This contained proposals for exactly what versions of the forms should be used from 1st October 2005.
Gerry Sutcliffe approved the submissions (and thereby prescribed the forms) on 22nd September 2005.

What forms have been prescribed?
The following paper forms have been prescribed:

• the version of the Claim Form which was available from 1 October 2004 (coloured purple);
• OCR compatible versions of the Claim and Response Forms issued in March and September 2005 (coloured aqua);
• Welsh Language versions of the OCR compatible versions issued in September 2005;
• large print versions of the OCR compatible versions issued in September 2005.

In addition, the electronic / pdf versions available from the Employment Tribunals website (submitted either via the website or by Email) are prescribed for use.

Employment Tribunals Service website

Very Important Bulletin

The downloadable .pdf Claim and Response Forms on the ETS website are not in the prescribed form

As readers will know, tribunals are now rejecting Claim and Response Forms that are not the 'official' versions. These include in-house computer forms and forms by commercial organisations such as Laserform.

I have just been told (and checked - it's right!!) that some downloadable .pdf versions of the Claim and Response Forms that are on the ETS website are the old forms which are not valid.

To get the correct forms go to the ETS website at
http://www.employmenttribunals.gov.uk.

Click "Publications" at the top of the page.

The links to the correct forms appear in the main text on that page.

The incorrect forms appear if, instead, you click 'Download' on the left-hand side (rather than 'Publications' at the top) of the ETS homepage. The forms that are then offered for downloading are the old, incorrect forms. The Claim Form does not contain box 11 (disability discrimination claims) or box 13 (mutliple cases), and the Response Form does not contain boxes 1.5 to 1.8

DO NOT USE THESE VERSIONS OF THE FORMS

[Thanks to Paula Lawn at Butcher Andrews for providing this information]

Ainsworth off to the Lords...

I have been told by Thompsons solicitors (acting for the Appellants) that Ainsworth v Inland Revenue has been granted permission to appeal to the House of Lords.

The Court of Appeal decided (overturning Kigass v Brown Aero) that employees on long-term sick did not continue to accrue the right to four weeks' paid holiday each year (see bulletin 22/4/05). The decision was greeted with relief by employers, but it seems the saga has not yet ended...

EAT in Scotland

From this week, all appeals in Scotland will be handled administratively from Audit House, London, rather than from Edinburgh.

The hearings will continue to take place in Melville Street, Edinburgh.

Click here for formal Notice from the EAT

Thanks to Henry Scrope of http://www.emplaw.co.uk for this information