Statutory Dismissal Procedure

An accounts clerk was dismissed for fraudulent accounting. The dismissal was automatically unfair, because of failure to follow the statutory dismissal procedure, but the tribunal reduced the basic and compensatory awards by 100%, commenting, "if ever there was a case for a 100% reduction for contribution, this was it". The appeal to the EAT raised two important points.

First, Elias P. overturned the finding that the dismissal was automatically unfair simply because some evidence was given to the employee during the disciplinary hearing. The "basis" for the allegation was given to her in advance, and that was all the statutory procedure required. In holding that all the evidence had to be provided to an employee in advance of the hearings, the tribunal set the requirement under step 2 "far too high".

Second, the tribunal had erred in ordering a nil basic award on grounds of a 100% reduction, since s120(1A) ERA provides for a minimum four-week basic award to be calculated after any reduction for contribution. Although it is open to a tribunal, under s.120(1B), to not increase the basic award "if it considers that the increase would result in injustice to the employer"; the tribunal had not considered that provision.

Had it been necessary, this compensation issue would have been remitted to the tribunal to consider whether to make any basic award in the light of s.120(1B). However, given the overturning of the unfair dismissal finding, no remission was necessary.

Ingram v Bristol Street Parts

[Thanks to Anya Palmer of Old Square Chambers, who successfully represented the employer, for telling me about this case.]

Victimisation: House of Lords

Getting back to Chambers this afternoon, I found 37 Emails waiting for me about this case. 37!!! I'd like to thank everyone individually, but come on...

Anyway, the House of Lords has overturned the Court of Appeal in St Helens Borough Council v Derbyshire (see bulletin 30/7/05), holding that forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.

The House of Lords held that the employer, who had written deeply unpleasant letters to 39 equal pay Claimants - pointing out that they might be responsible for the loss of their colleagues' jobs if they won their equal pay claims - had subjected those Claimants to a detriment on the grounds they had brought a tribunal claim.

Whilst acknowledging that the employer was entitled to take legitimate steps to try to settle claims, the House of Lords stated that the employment tribunal was entitled to find that Derbyshire Borough Council had crossed the line, and actively subjected the Claimants to a detriment.

Age Discrimination - Interviews

Last month, the Director of the Equality Tribunal in the Republic of Ireland published a decision on age discrimination likely to be relevant in the UK.

In the case, the complainant was asked questions about his age at an early stage of the interview process, including questions on the application form such as "living with parents/ renting/ mortgaged accommodation", "number of children", "age" and "date of birth".

The complainant provided incorrect information, objecting the questions were "irrelevant and invasive". He was not given the job, despite being suitable for it. The Equality Officer held that he had been discriminated against on grounds of his age, and awarded him 5,000 Euro.

Cunningham v BMS Sales

Discrimination on grounds of Philosophical Belief

Neil Addison of New Bailey Chambers (the man behind www.harassmentaw.co.uk) has emailed me to point out an important amendment to the Employment Equality (Religion or Belief) Regulations 2003, which is due to take effect on 30th April 2007.

Section 77 of the Equality Act 2006 amends the Regulations so as to replace the definition of 'religion or belief' (previously "any religion, religious belief or similar philosophical belief") with "any religion, or religious or philosophical belief".

The important bit is the removal of the word 'similar'. This was previously interpreted in Baggs v Fudge (the BNP member who claimed facism was a 'similar philosophical belief') as requiring that the philosophical belief be similar in nature to a religious belief (so Mr Baggs' claim was struck out).

Thus this amendment re-opens the question of whether political belief can fall within the 2003 Regulations. In fact, during debate in the House of Lords, it was suggested that a philosophical belief should cover a "world view or life stance". Whilst it's harder to think of a more opaque definition, I suspect that would cover fundamental political beliefs.

Smoking at Work

The Health Act 2006 means that smoking in all enclosed public spaces and workplaces was outlawed from 2 April 2007 in Wales and will be outlawed from 30 April in Northern Ireland and 1 July 2007 in England.

Acas has produced a first-class Q&A sheet for employers on how to stop staff smoking, containing answers to (amongst others) the following questions:

• I have been smoking at work for eight years so doesn't that give me a right to continue?
• Can I claim I suffer from an addiction under the Disability Discrimination Act?
• How can I get my reluctant workforce to take the new ban seriously?
• What if customers insist on smoking on my premises?

View the Q&A guide here.

Updated Acas Guides

Acas has published two revised guides today: Smoking at Work and redundancy payments.

As always with Acas guides, well worth reading.

Paying Salary as a Reasonable Adjustment under the DDA

The Cout of Appeal has handed down its decision in O'Hanlon v HM Revenue & Customs, upholding the EAT's decision that an employer is not obliged to pay salary to disabled employees pursuant to its duty to make reasonable adjustments (see bulletin 7/8/06 for EAT decision).

This is a complicated decision, but essentially turns on social policy and a justification defence - ie the courts should not interpret the DDA in a way which encourages people to stay away from (rather than return to) work and, in any event, it is not reasonable to expect an employer to subsidise indefinitely its long-term sick who also qualify as disabled.

O'Hanlon v v HM Revenue & Customs

Agency Workers and Whistleblowing

The EAT has held that - when constructing the statutory definition of 'worker' for the purposes of the whistleblowing legislation - it is appropriate to adopt a purposive approach.

Therefore an individual who supplied his services through a limited company, which in turn was engaged by an employment agency to provide services for the end-user (i.e. Claimant --> Claimant's service company --> employment agency --> end user), fell within the extended definition of 'worker' in s43(K) ERA 1996 and was entitled to rely on the whistleblowing legislation.

Croke v Hydro Aluminium Worcester Ltd

Thanks to John Bowers QC of Littleton Chambers and Rebecca Ireland of ClarksLegal, who represented the end-user, for telling me about this case

Bank Holiday Mondays / Part Time Workers

The Court of Session has affirmed the EAT's decision (see bulletin 19/4/06), holding that an employer who does not give a part-time employee pro rata days off work to reflect Monday bank holidays is not discriminating under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Mr McMenemy worked on Wednesdays, Thursdays and Fridays. His employer allowed people to have bank holidays off, but only if they actually worked on the bank holiday. Mr McMenemy claimed that amounted to less favourable treatment on grounds of his part-time status, as most bank holidays fall on a Monday.

The Court of Session, construing the Regulations and the underlying Directive, held that the treatment must be solely on grounds of the worker's part-time status (paras. 2 and 6). It held that, because the employer would have treated a full-time worker who did not work on a Monday in the same way, Mr McMenemy had failed to establish causation. Accordingly, his appeal was dismissed.

McMenemy v Capita Business Services Ltd

[Thanks to Brian Napier QC, who successfully acted for Capita, for telling me about this decision ]

Agency Workers

The EAT, in two separate judgments (both decisions of HHJ Peter Clark) has deconstructed and emasculated the Court of Appeal's reasoning in Dacas and the other agency worker cases.

Hot on the heels of the decisions of Elias P. in James v Greenwich Borough Council, and Bean J. in Craigie v London Borough of Haringey, the EAT has held in two further cases that agency workers were not employees of the end user.

First, in Heatherwood & Wexham Park Hospitals NHS Trust v Kulubowila & ors., the EAT pointed out that:

"It is not enough to form that view that because the Claimant looked like an employee of the Trust, acted like an employee and was treated like an employee, the business reality is that he was an employee and the ET must therefore imply a contract of employment." (para. 29)

It held that where the affairs of the parties are as consistent with the express arrangement (ie a triangular agreement), it cannot be said that it is necessary to infer a contract of service between end-user and worker (paras. 30-32).

Second, in Astbury v Gist, the EAT convincingly demonstrates the error implicit in Sedley LJ's throwaway comment in Dacas, that:

"The conclusion of the ET that Mrs Dacas was employed by nobody is simply not credible"

In a superb analysis, HHJ Peter Clark demonstrates precisely how the statutory framework does allow for someone in Mrs Dacas's position to be employed by nobody.

These decisions should both be read by anybody involved in any agency worker cases.

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.]