The worst case in the world... ever!

"Mr Khan is by some distance the most obdurate, recalcitrant and openly contemptuous party that any of us have ever had to deal with." (ET decision, quoted at para. 8 of the EAT judgment)

For those of us who deal with difficult litigants in person, here's a little case to make you realise life really isn't that bad...

Mr Khan brought a case against Kirklees Borough Council, alleging race and disability discrimination. His claim was ultimately struck out due to his deliberate refusal to attend hearing dates. Here are some of the highlights from the EAT decision (HHJ Ansell):

• prior to the strike-out, the case spanned 49 days of hearing over four-and-a-half years, largely in blocks of three or four days
• he made repeated inappropriate allegations against the tribunal and the Respondents, including allegations of racism, and in particular alleged that the tribunal panel were showing "repeated and racial Islamophobic allegiance with the Respondents"
• the Claimant, having discovered the tribunal chairman was a school governor, made a Freedom of Information Act request to the school for information about the chairman, with a view to embarrassing the chairman
• when that failed, he issued a free-standing race discrimination claim against the school, with a view to forcing the chairman to stand down due to a conflict of interest.

The summary above doesn't even begin to tell the sorry story of this case. It makes for an interesting read on the train journey home...

Khan v Kirklees Metropolitan Borough Council

Statutory Grievance Procedure 2

What should tribunals do when an ET1 is presented without a grievance letter having been sent (or if the required 28 days has not elapsed)?

I understand, anecdotally, that a number of tribunals (including Croydon) are staying such claims, rather than rejecting them, to allow the Claimant to put in a grievance. This is purportedly on the grounds that rule 1(8) of the Employment Tribunal Procedure Rules allows them to do so.

Hoever, whilst having "considerably sympathy" with the practical adantages of this approach, Elias P. has held that tribunals do not have jurisdiction to stay claims when a grievance letter has not been sent (or 28 days not elapsed). The ET1s must be rejected.

London Borough of Hounslow v Miller

Statutory Grievance Procedure

The EAT (Elias P.) has resolved a niggly little point which was causing problems in many tribunal claims.

Does the statutory grievance procedure apply when dealing with causes of action other than unfair dismissal, where the essence of the claim is about the dismissal? Thus, where an employee claims that his or her dismissal is discriminatory, is she obliged to lodge a step 1 grievance letter and wait 28 days?

Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the grievance procedures do not apply where the grievance is that the employer has dismissed the employee. But until now, it has been unclear whether that subregulation engages where the complaint is one of (say) discrimination, notwithstanding that it relates to the dismissal decision.

The EAT has now clearly held that the grievance procedure does not apply in those circumstances. So, where an employee claims discrimination arising from a dismissal:

• she is under no obligation to lodge a step 1 grievance letter; and,
• she is not entitled to a three month extension of time under regulation 15(3).

Lawrence v HM Prison Service

Equal Pay

Yet another EAT decision in the long-running North-East equal pay litigation was handed down last week.

In Bainbridge v Redcar & Cleveland Borough Council (no. 3), Elias P. held:

• employees whose jobs are rated as equivalent under a job evaluation scheme cannot, unlike in cases involving like work or work or equal value, backdate their claims for six years. The claims arise on the date of the job evaluation study, and cannot be backdated (notwithstanding that the nature of their jobs would be the same) (paras. 34-37)
• no uplift to compensation should be awarded because of the employer's failure to hold a meeting with individual employees under the statutory grievance procedure. The nature of the employees' conditional fee agreements with their solicitors meant that they could not have settled the claims themselves (and would not have understood the issues in any event), and therefore such a meeting would have been futile - amounting to an exceptional circumstances allowing for no uplift to compensation (para. 88). The EAT was critical of the use of CFAs in this situation (paras. 57-58), although made it clear that there was no suggestion of improper or unethical conduct by the Claimants' solicitors.
• (by a majority), employees are free to bring fresh proceedings for equal pay, in respect of the same period, citing a new comparator. The principles of issue estoppel and cause of action estoppel do not prevent the Claimants having a second bite at the cherry - whether successful or unsuccessful first time around - with a different comparator (paras. 124-130)

This is an interesting equal pay judgment, and worth reading if you practice in that area.

Bainbridge v Redcar & Cleveland Borough Council

Abolition of Statutory Dispute Resolution Procedures

The DTI launched a consultation yesterday with a view to abolishing the statutory dismissal and grievance procedures, introduced in 2004.

The consultation follows the report from Michael Gibbons on the efficacy of the 2004 Regulations. He commented, "I was struck by the overwhelming consensus that the intentions of the 2004 Dispute Resolution Regulations were sound and there was a genuine attempt to keep them simple. However they have had unintended consequences which have outweighed their benefits."

Key recommendations of the Gibbons report, on which views are sought in the consultation paper, include:

• repeal the statutory dismissal and grievance procedures
• simplify tribunal applications forms
• provide free mediation services for employment disputes
• abolish Acas fixed conciliation periods
• strengthen tribunal's powers to award costs, including taking into account the efforts the parties have made to resolve workplace disputes or settle the case

Click here for the Gibbons report, or here for the consultation paper. And if you want to respond, click here (the consultation closes on 20th June 2007).

High Court rules Sex Discrimination Laws incompatible with EU Directive

The High Court has today ruled, in judicial review proceedings brought by the EOC, that the government has failed to implement the European Equal Treatment Directive properly within the Employment Equality (Sex Discrimination) Regulations 2005 so as to protect the rights of women.

The key points are:

• The definition of harassment in the regulations was too narrow, and did not reflect the broad protection in the Directive. For example, the regulations gave no apparent protection to women harassed by clients, even when their employer knows of the harassment and could take steps to prevent it but fails to do so.
• Women's rights during maternity leave were also unclear as a result of the new regulations. Women and their employers did not know whether a woman was protected if she was not consulted about a change to her job while on maternity leave, or if she fell behind a queue for promotion because her time on additional maternity leave was excluded from length of service.

The court has ordered that the Secretary of State for Trade and Industry has until midday, March 16th to inform the EOC and the court how the Government plans to remedy the situation.

NOTE: I have obtained the above information from an EOC press release and have not seen the actual judgment to check its accuracy.

Whistleblowing: Kraus v Penna

The Court of Appeal has handed down a decision overturning the frequently criticised EAT case of Kraus v Penna, which was authority for the proposition that a disclosure is not a 'qualifying disclosure' unless a criminal offence, capable of breach, had actually existed.

The Court of Appeal has now held that it is sufficient if an employee reasonably believes that such a criminal offence (or legal obligation) exists. It does not actually need to exist.

In deciding the meaning of 'reasonable belief', the Court decided that the words did not introduce an additional requirement for the employee to be right. Consequently, the test of 'reasonable belief' was a subjective one. Applying this, the Court decided that the appellant's belief that the information he was disclosing met the criteria in section 43B(1)(a) was plainly reasonable' even though it turned out to be wrong.

Babula v Waltham Forest

Whistleblowing: Burden of Proof

Another important decision continuing the Alexander v Bridgen line of authorities on the impact of s98A(2) of the Employment Rights Act 1996.

Langstaff J., wading into the disagreement between Elias P. and HHJ McMullen over the meaning of the phrase 'failure...to follow a procedure', comes down in favour of the Elias approach (without actually saying so). The EAT upholds the tribunal's decision that a fundamental substantive failure by an employer, in failing to offer suitable alternative employment in a redundancy situation, fell within the definition of 'a procedure' and the employer was allowed to rely on the s98A(2) escape clause so as to prevent the dismissal being unfair (see para. 22).

For some useful guidance on the approach to s98A(2), see paras. 22-24.

Interestingly (and perhaps surprisingly given the inconsistent decisions in this area), Langstaff J. states at paragraph 31 that "the law is clear" and refuses permission to appeal to the Court of Appeal.

Loosley v Social Action for Health

Statutory Dismissal Procedure

Another important decision continuing the Alexander v Bridgen line of authorities on the impact of s98A(2) of the Employment Rights Act 1996.

Langstaff J., wading into the disagreement between Elias P. and HHJ McMullen over the meaning of the phrase 'failure...to follow a procedure', comes down in favour of the Elias approach (without actually saying so). The EAT upholds the tribunal's decision that a fundamental substantive failure by an employer, in failing to offer suitable alternative employment in a redundancy situation, fell within the definition of 'a procedure' and the employer was allowed to rely on the s98A(2) escape clause so as to prevent the dismissal being unfair (see para. 22).

For some useful guidance on the approach to s98A(2), see paras. 22-24.

Interestingly (and perhaps surprisingly given the inconsistent decisions in this area), Langstaff J. states at paragraph 31 that "the law is clear" and refuses permission to appeal to the Court of Appeal.

Loosley v Social Action for Health

Unions and the BNP

The ECHR has upheld the right of unions to exclude BNP members from their membership.

In ASLEF v UK, the ECHR held that:

• Art 11 does not impose an obligation on a union to admit those who do not share their values (para 39); and,
• the right of ASLEF to choose its members outweighed the BNP member's right to freedom of expression (para. 50).

ASLEF v UK

[Thanks to John Hendy QC and Michael Ford, who successfull represented ASLEF, for telling me about this case.]

Agency Workers

Hot on the heels of the EAT's decision in James v Greenwich Council (see bulletin 22/12/06) comes another decision on agency workers from a differently constituted division of the EAT.

In Craigie v Haringey, Bean J. declines to follow the Court of Appeal's decision in Dacas v Brook Street Bureau on the grounds he preferred to focus on the more traditional 'necessity' test for implying a contract. He upheld a tribunal's decision that there was no 'necessity' to imply a contract of employment between agency worker and end-user.

The EAT commented that the law on agency workers is unsatisfactory, but that it needs legislation to change it (para. 17).

Craigie v Haringey

New ET1 Data Upload Facility

The Employment Tribunals Service has, today, introduced a data upload facility on its website.

The system is designed to handle and process details of large numbers of cases which are being lodged as a group (a multiple) in one submission and has been developed for corporate users who have their own IT support. The ETS states that this is not suitable for individuals without advanced IT support.

For more information, click here (note: tomorrow the ETS will be adding an explanatory powerpoint display at this address)

Who is a Worker?

The EAT has, this morning, handed down a lengthy analysis of the meaning of the word 'worker'. Although the decision is in the context of the minimum wage legislation, it has ramifications for other areas of employment law.

Elias P. stated that the essential question is:

"...whether the obligation for personal service is the dominant feature of the contractual relationship or not. If it is, then the contract lies in the employment field..." (para 67).

The case also considers issues relating to mutuality of obligation - it is a useful case to read.

James v Redcats

[Thanks to Ed Mallett of Littleton Chambers, junior Counsel for the successful employee, for telling me about this case]

How not to Inform and Consult

The CAC has ruled against Macmillan Publishers for failing to respond properly to an employee request for information and consultation.

The CAC decision is highly critical of the employer. The case is a salutary lesson in how not to respond to an employee request under the Information and Consulation of Employees Regultions 2004.

Amicus v Macmillan

[Thanks to Philip Sack, Director of Policy at the European Studies Group, for telling me about this cas]

New ET Practice Directions, Scotland

In 2004, the new procedural rules gave the Presidents of the Employment Tribunals power to issue national Practice Directions.

The President in Scotland has recently issued three Practice Directions, available here and dealing with:

* providing a list of documents 14 days before a hearing

* sists (stays) for mediation

* contractual counterclaims

No Practice Directions have yet been issued in England or Wales

Restrictive Covenants

The Court of Appeal has, this morning, handed down a decision considering the reasonableness of a 12-month post-termination non-competing restrictive covenants for the managing director of an insurance broker.

The Court, in a judgment considering many of the authorities on such covenants, upheld the enforceability of the non-competition clause.

Thomas v Farr plc

Minimum Wage - gas & electricity

he Court of Appeal has, this morning, handed down its decision in Leisure Employment v HMRC, upholding the decision of the EAT (see bulletin 13/4/06).

In a judgment combining policy arguments with a detailed analysis largely lifted from Elias P.'s earlier decision, the Court of Appeal held that a deduction from wages of £3 per week, in respect of a payment for gas and electricity, was part of the provision of living accommodation (in respect of which the employer had already taken advantage of the maximum allowance) and, in the alternative, that the deduction was for the employer's own use and benefit.

Accordingly, the employer could not count the £3 per week towards the employees' wages. This, in turn, meant that the employer (which owns the Butlins brand) was in breach of the national minimum wage legislation.

In a (partially) dissenting judgment, Wilson LJ described this consequence of the national minimum wage legislation as "regrettable", as it would amount to a disincentive to employers who wish to help provide living accommodation to low-paid staff.

Leisure Employment Services v HMRC

[Thanks to John Bowers QC of Littleton Chambers, who represented Leisure Employment Services, for telling me about this decision.]

Expired Disciplinary Warnings

Expired warnings can never be taken into account when deciding whether to dismiss an employee, the EAT has stated in Airbus UK v Webb.

Three weeks after a final written warning expired, Mr Webb committed a similar offence (with four colleagues) to that for which he had previously been warned. He was dismissed. They were not. The employment tribunal, by a majority, found the dismissal was unfair because of inconsistent treatment. The employer appealed, on the basis that it was legitimate for an employer to take an expired disciplinary warning into account.

Reciting the competing arguments, Elias P. said he considered it to be a finely balanced point (para. 56). That being the case, he chose to follow the Scottish Court of Session case of Diosynth v Thomson (see bulletin 1/2/06), and held that "a tribunal is obliged, and not merely entitled, to ignore expired warnings" (para. 60)

Airbus UK v Webb

Age Discrimination and Retirement Ages

The Advocate General has, this morning, delivered his opinion in the Spanish case of Palacios v Cortefiel Servicios SA.

In considering whether a national law allowing for compulsory retirement upon reaching a certain age was inconsistent with the EU Equal Treatment Framwork Directive 2000, the Advocate General stated that the EU Directive does not apply to state laws setting retirement ages (paras. 63-67). And even if the Directive did apply, such a national provision was justified (paras. 72 and 78).

An Advocate General's opinion is not binding upon the ECJ, but it is unusual for it not to be followed. If the ECJ reaches the same conclusion, it does not bode well for Heyday's challenge to the UK mandatory retirement procedures contained in the Employment Equality (Age) Regulations 2006.

Advocate General's Opinion in Palacios v Cortefiel Servicios SA

Paying salary as a reasonable adjustment under the DD

The EAT has handed down a decision confirming that it will not normally be incumbent on employers to pay salary to those on long-term sick, who qualify as disabled, as a reasonable adjustment under the DDA 1995.

Reaffirming its earlier decision in O'Hanlon v HMRC, the EAT stated that such an adjustment was not normally reasonable because it would not help the employee return to work. It confirmed that the (seemingly) contrary decision of the Court of Appeal in Nottinghamshire County Council v Meikle should be regarded as a decision on its own facts.

Fowlet v Waltham Forest