Statutory Grievance Procedure

I have decided to launch a cheekiest legal argument of the year competition. Nominations happily received, but here's a starter...

An employee had trouble writing. The employer, rather than he, made a written note of his grievance for step 1 of the statutory grievance procedure.

The employer then argued that the statutory requirement to "set out the grievance in writing and send...a copy of it to the employer" was not fulfilled, and that therefore the employment tribunal had no power to hear his claims of race and sex discrimination.

Cox J., upholding the tribunal, refused to go along with this legalistic argument and the EAT thus permitted the claim to proceed.

Kennedy Scott Ltd v Francis

Maternity - what is the 'same job'?

Women who return from maternity leave are normally entitled to return to "the job in which she was employed before her absence". The EAT has handed down the first decision considering what this actually means.

The Claimant was a teacher at a primary school, in which the teachers typically rotated classes every two years. When she commenced maternity leave, she was teaching the reception class. On her return, she was allocated to teach Year 2. She alleged that this was not a return to the same job.

The EAT, upholding the tribunal, held that this was the same job. It was necessary to consider three factors when comparing the 'old' and 'new' jobs; nature, capacity and place - see discussion at paras. 51-54. The Claimant was employed as a primary school teacher, and she returned to work as a primary school teacher. Therefore the statutory requirement was satisfied.

On a minor note, the EAT substituted a finding that the Claimant was subjected to a detriment because she was not consulted over the class which she would be assigned to teach, as she would have been if she had not been absent on maternity leave.

Blundell v St Andrew's Catholic Primary School

Statutory Paternity Leave - Consultation

The DTI has issued a further consultation paper on the implementation of statutory paternity leave and pay, which is intended to be implemented in two years time.

The scheme allows mothers to pass some of their statutory maternity leave (and pay) to fathers if they (the mums) want to return to work during either OML or AML. This is likely to be prove popular with families where the mother earns substantially more than the father.

The government proposes to allow fathers to 'self-certify' that their child's mother is returning to work early and passing maternity entitlements over to them. He will be required to give eight weeks' notice. It is not proposed that the father's employer carry out any checks with the mother's employer, although HM Revenue & Customs will carry out occasional random checks to detect and prevent fraud.

Consultation on the implementation of the scheme closes on 3rd August 2007.

View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)

EAT - reopening conceded points

The EAT has a discretion to allow argument on points conceded at employment tribunal level, but will only exercise that discretion if there are exceptionally compelling reasons to do so.

This case is a complicated example of the EAT allowing points conceded at Tribunal to be reopened, in cases concerning large numbers of claims by part timers for the right to join occupational pension schemes in the health service (part of the Preston litigation).

The headnote states that "exceptional circumstances included the fact that the issue went to jurisdiction, these were four test cases representing 120 similar concessions in mass litigation affecting 11,000 NHS employees; the mistake was administrative not tactical, the Respondents applied in each case for a review to the Employment Tribunal, as well as appealing. There had been no first instance full hearing of the Claimants’ cases, the matter being handled according to national protocols, and no further investigation into the facts was required in order to do justice"

Secretary of State for Health & anor v Prance & ors

Thanks to www.emplaw.co.uk for giving me permission to adopt their summary of this case.

Inducing Breach of Contract

The House of Lords has handed down judgment in three conjoined appeals (one of which was the Michael Douglas v Hello case), dealing with the tort of inducing a breach of contract. This tort is often invoked in restrictive covenant / confidential information cases by old employers in order to impose liability onto the new employer (as well as the departing emplpoyee).

The House of Lords has held that it is an essential prerequisite for establishing the tort of inducing a breach of contract that the alleged wrongdoer specifically intended to interfere with the contract.

The tort is thus one of deliberately, not just carelessly or negligently, inducing such a breach.

Mainstream Properties Ltd v Young

[Thanks to www.emplaw.co.ukA for giving me permission to adopt their summary of this case.]

Failure to perform risk assessment for disabled employees

Does an employer's failure to make an assessment of a disabled employee of itself amount to a failure to make a "reasonable adjustment"? If the answer is no that is an end of the matter but if it is yes, then the employer is in breach of the DDA 1995.

There have been conflicting decisions on the point but the EAT clearly ruled in the case of Tarbuck v Sainsbury’s Supermarkets Ltd in 2006 that the answer is no.

In the present case, an IT manager had become disabled and claimed that his employer had failed to make a reasonable adjustment by not obtaining and consulting on a medical report before dismissing him. It was argued on his behalf that the Tarbuck case had been wrongly decided or alternatively that it could be distinguished. He lost, but given that there are conflicting decisions of the EAT on the point and that it is of some importance, the EAT gave leave to Mr Spence to appeal to the Court of Appeal.

It is understood that the Disability Rights Commission will be seeking to intervene in the appeal to the Court of Appeal, as it is believes this case (and Tarbuck) to be wrongly decided.

Spence v Intype Libra Ltd

Thanks to www.emplaw.co.uk for giving me permission to adopt their summary of this case.

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