The EAT has confirmed "with some degree of hesitation and disquiet" (para. 38) that the reversed burden of proof in discrimination claims does not apply to allegations of victimisation.
It held that a close examination of s54A of the Race Relations Act 1976 and the Equal Treatment Directive 2000 shows an intention to treat victimisation separately from direct and indirect discrimination. The reversal of the burden of proof, whilst applying to direct and indirect discrimination, does not apply to victimisation.
Oyarce v Cheshire County Council
Thursday, 19 July 2007
Tuesday, 17 July 2007
Equal Pay - Material Factor Defence
As part of an extensive job evaluation scheme by Middlesbrough Borough Council, a pay protection scheme was introduced to protect those in receipt of higher pay against an immediate and significant reduction in pay. Agreement on the scheme was reached in February 2005 by which time a number of equal pay claims related to pre-April 2005 terms were under way but were not resolved. The Claimants submitted that they too should receive the benefits of the protected pay arrangements, arguing that had the Equal Pay Act "equality clause" been applied to them at the correct time they would have been in receipt of a higher rate of pay, and thus the protected pay scheme would have applied to them. The ET agreed. The Council appealed.
The EAT has allowed the appeal. Given that the purpose of the scheme was to cushion better paid employees from a potentially disastrous sudden drop in pay, the Council was justified in limiting it to those who were actually in that group. Further justification lay in the fact that the need to agree a pay protection scheme with the trades unions was crucial to the making of the job evaluation scheme.
The EAT held that the scheme was not, to the knowledge of the Council at the time, exacerbating existing discrimination. However (1) the benefits under the scheme were limited to those who, to the knowledge of the Council, were in receipt of higher pay when it was introduced, (2) at least some of the outstanding claims were likely to succeed, and (3) the Claimants were overwhelmingly female. The decision not to extend the payment protection scheme to those who were subsequently found to be entitled to equal pay was therefore tainted by sex discrimination and therefore required objective justification - a requirement which, as noted above, the EAT found the Council had satisfied.
[Thanks to www.emplaw.co.uk for permssion to reproduce their summary of this case.]
Middlesbrough Borough Council v Surtees & Ors
The EAT has allowed the appeal. Given that the purpose of the scheme was to cushion better paid employees from a potentially disastrous sudden drop in pay, the Council was justified in limiting it to those who were actually in that group. Further justification lay in the fact that the need to agree a pay protection scheme with the trades unions was crucial to the making of the job evaluation scheme.
The EAT held that the scheme was not, to the knowledge of the Council at the time, exacerbating existing discrimination. However (1) the benefits under the scheme were limited to those who, to the knowledge of the Council, were in receipt of higher pay when it was introduced, (2) at least some of the outstanding claims were likely to succeed, and (3) the Claimants were overwhelmingly female. The decision not to extend the payment protection scheme to those who were subsequently found to be entitled to equal pay was therefore tainted by sex discrimination and therefore required objective justification - a requirement which, as noted above, the EAT found the Council had satisfied.
[Thanks to www.emplaw.co.uk for permssion to reproduce their summary of this case.]
Middlesbrough Borough Council v Surtees & Ors
Boring but important
Last week, the Cabinet Office published the government's draft legislative programme for the forthcoming year.
Included is the Employment Simplification Bill, the contents of which cover:
If you want to read the summary, click the link above and selection Chapter 5, item 10.
Included is the Employment Simplification Bill, the contents of which cover:
- implementation of the Gibbons review of workplace dispute resolution (including repeal of the statutory dispute resolution procedures and implementation of a package of replacement measures - although the content of that package is not yet known);
- clarification and strengthening of the enforcement framework for the national minimum wage
- various minor amendments to existing statutes
If you want to read the summary, click the link above and selection Chapter 5, item 10.
Thursday, 12 July 2007
PILON clauses
The Inner House of the Court of Session has held that PILON clauses cannot be implied into contracts of employment - i.e. if an employer wants to pay money in lieu of notice without being in breach of contract, there must be an express term allowing it to do so.
In this case, a financial director/company secretary's contract expressly stated he was entitled to 12 months' written notice. It was terminated without such notice. The company argued that the contract was subject to an implied term entitling them to pay in lieu (an effect of which would have been to deprive the Pursuer (Claimant)of a bonus). The Court of Session disagreed.
The Court stated that it had "strong reservations as to whether, in the 21st century, there is any scope for the implication of such a term", also holding that such an implied term would be contrary to the express right to receive twelve months' notice.
Morrish v NTL Group
In this case, a financial director/company secretary's contract expressly stated he was entitled to 12 months' written notice. It was terminated without such notice. The company argued that the contract was subject to an implied term entitling them to pay in lieu (an effect of which would have been to deprive the Pursuer (Claimant)of a bonus). The Court of Session disagreed.
The Court stated that it had "strong reservations as to whether, in the 21st century, there is any scope for the implication of such a term", also holding that such an implied term would be contrary to the express right to receive twelve months' notice.
Morrish v NTL Group
PILON Clauses
The Inner House of the Court of Session has held that PILON clauses cannot be implied into contracts of employment - i.e. if an employer wants to pay money in lieu of notice without being in breach of contract, there must be an express term allowing it to do so.
In this case, a financial director/company secretary's contract expressly stated he was entitled to 12 months' written notice. It was terminated without such notice. The company argued that the contract was subject to an implied term entitling them to pay in lieu (an effect of which would have been to deprive the Pursuer (Claimant)of a bonus). The Court of Session disagreed.
The Court stated that it had "strong reservations as to whether, in the 21st century, there is any scope for the implication of such a term", also holding that such an implied term would be contrary to the express right to receive twelve months' notice.
Morrish v NTL Group
In this case, a financial director/company secretary's contract expressly stated he was entitled to 12 months' written notice. It was terminated without such notice. The company argued that the contract was subject to an implied term entitling them to pay in lieu (an effect of which would have been to deprive the Pursuer (Claimant)of a bonus). The Court of Session disagreed.
The Court stated that it had "strong reservations as to whether, in the 21st century, there is any scope for the implication of such a term", also holding that such an implied term would be contrary to the express right to receive twelve months' notice.
Morrish v NTL Group
RIP Wigs and Bands
The Lord Chief Justice has, this morning, announced the abolition of wigs and bands in civil cases, from 1st January 2008. Gowns will continue to be worn.
Court dress remains unchanged in criminal cases.
Court dress remains unchanged in criminal cases.
Collective Redundancy Consultation
17 + 3 = 20, conculdes the EAT in Optare Group v TGWU.
The employer made 17 compulsory redundancies, immediately on the back of 3 voluntary redundancies. The union alleged that the collective consultation requirements were engaged, as the employer proposed to make 20 people redundant. 'Oh no', said the employer, 'you can't count the 3. We didn't propose to dismiss them - they left themselves'.
Funnily enough, the ET and EAT both disagreed. Holding that one asks the question, 'who really is responsible for the dismissals', it was evident that the employer had proposed to make 20 people redundant within a 90 day period - thus the collective consultation provisions were engaged and a protective award could be made.
The employer made 17 compulsory redundancies, immediately on the back of 3 voluntary redundancies. The union alleged that the collective consultation requirements were engaged, as the employer proposed to make 20 people redundant. 'Oh no', said the employer, 'you can't count the 3. We didn't propose to dismiss them - they left themselves'.
Funnily enough, the ET and EAT both disagreed. Holding that one asks the question, 'who really is responsible for the dismissals', it was evident that the employer had proposed to make 20 people redundant within a 90 day period - thus the collective consultation provisions were engaged and a protective award could be made.
Weirdest Employment Disputes
Earlier this week, to celebrate the EAT's 30th anniversary, The Times Online dusted off its archives to search for some of the most colourful employment disputes over the last few years. For tales of witches, dogs and axe-wielding murderers, visit here.
Wednesday, 4 July 2007
Equal Pay
This Court of Appeal has handed down judgment in South Tyneside Council v Anderson & ors. The appeal relates to the last of a group of equal pay claims brought by female school support staff in the north-east. Each was paid at a rate determined by the grade to which she was contractually assigned, set out in a collective agreement known as the 'White Book'. Their chosen comparators were men employed by the local authority whose earnings were significantly higher. Although they were doing identically rated work, none of the men actually worked in schools.
The Newcastle Employment Tribunal held that the female claimants were in the same employment as their comparators and that the pay inequalities between them put the local authority in breach of the women's equality clauses. This decision was upheld by the EAT. The local authority’s subsequent appeal concerned only workers like Ms Irving who were employed on the recommendation of the governing body of a community school (as opposed to those employed directly by the local education authority).
On appeal, the local authority argued that the women and their comparators could not be described as being 'in the same employment' because it was open to each such governing body to decide what an individual worker's terms and conditions of employment should be. The Court rejected this argument and held, on the contrary, that workers of either sex were subject to 'common terms and conditions of employment' for the purposes of the Equal Pay Act section 1(6). Whatever their place of work, they were employed by the same employer and paid by reference to a collective agreement (the White Book) to which any governing body would invariably be required to refer. Ms Irving and her male comparator "were therefore to be treated as in the same employment. From this, coupled with the inequality of pay, a breach of the implied equality clause ineluctably followed".
[Thanks to John Bowers QC, counsel for Tyneside, for telling me about this decision and to www.emplaw.co.uk for allowing me to adopt their summary.]
The Newcastle Employment Tribunal held that the female claimants were in the same employment as their comparators and that the pay inequalities between them put the local authority in breach of the women's equality clauses. This decision was upheld by the EAT. The local authority’s subsequent appeal concerned only workers like Ms Irving who were employed on the recommendation of the governing body of a community school (as opposed to those employed directly by the local education authority).
On appeal, the local authority argued that the women and their comparators could not be described as being 'in the same employment' because it was open to each such governing body to decide what an individual worker's terms and conditions of employment should be. The Court rejected this argument and held, on the contrary, that workers of either sex were subject to 'common terms and conditions of employment' for the purposes of the Equal Pay Act section 1(6). Whatever their place of work, they were employed by the same employer and paid by reference to a collective agreement (the White Book) to which any governing body would invariably be required to refer. Ms Irving and her male comparator "were therefore to be treated as in the same employment. From this, coupled with the inequality of pay, a breach of the implied equality clause ineluctably followed".
[Thanks to John Bowers QC, counsel for Tyneside, for telling me about this decision and to www.emplaw.co.uk for allowing me to adopt their summary.]
Unfair Dismissal, Age Discrimination and Article 119
The novel approach of the ECJ in Mangold v Helm (bulletin 24/11/05, [2006] IRLR 143) has been rejected by the EAT in the case of Lloyd-Briden v Worthing College.
Mr Lloyd-Briden's claim had been struck out pursuant to s.109 ERA 1996 (as it then was) because he was older than 65 at the time he tried to claim unfair dismissal. He relied on Mangold to suggest that the provision was contrary to the general EU principle against age discrimination, and therefore should be set aside.
In the EAT, Wilkie J. held that the principle in Mangold must be limited to cases where a Member State had breached part of the Directive (in Mangold the German government was found to have breached Art.18 of the Framework Directive), since otherwise the Directive itself determines the extent to which EU law intervenes to affect the outcome of domestic employment litigation. Accordingly, the ET's decision to apply s.109 contained no error of law and the appeal was dismissed (paragraphs 21-22).
Thanks to Karen Moss of 3 Paper Buildings, counsel for the successful Respondent, for telling me about this case
Mr Lloyd-Briden's claim had been struck out pursuant to s.109 ERA 1996 (as it then was) because he was older than 65 at the time he tried to claim unfair dismissal. He relied on Mangold to suggest that the provision was contrary to the general EU principle against age discrimination, and therefore should be set aside.
In the EAT, Wilkie J. held that the principle in Mangold must be limited to cases where a Member State had breached part of the Directive (in Mangold the German government was found to have breached Art.18 of the Framework Directive), since otherwise the Directive itself determines the extent to which EU law intervenes to affect the outcome of domestic employment litigation. Accordingly, the ET's decision to apply s.109 contained no error of law and the appeal was dismissed (paragraphs 21-22).
Thanks to Karen Moss of 3 Paper Buildings, counsel for the successful Respondent, for telling me about this case
Commercial Agents
The House of Lords has handed down its decision in Lonsdale v Howard & Hallam. This is an important case for those dealing with commercial agents.
The Commercial Agents (Council Directive) Regulations 1993 (which, over a decade on, many people remain unaware of) provide a statutory right to compensation for any self-employed intermediary who sells goods on behalf of, and in the name of, a principal.
Historically, the view has been taken in many first instance decisions (based upon French jurisprudence) that a commercial agent ought to be awarded compensation of two years' earnings if his agency is terminated, unless there is a good reason to depart from the two year presumption.
The House of Lords, upholding the Court of Appeal, has conclusive stated that English courts should not follow the French practice of awarding two years' losses as compensation. Instead, the correct measure of damages is to value the income stream which the agency business would have generated. This will often require expert evidence, and the best evidence of te value will be the price at which the agent could have sold his 'business' on the open market. The key passages in the judgment are paras. 10-13 and 21.
The Commercial Agents (Council Directive) Regulations 1993 (which, over a decade on, many people remain unaware of) provide a statutory right to compensation for any self-employed intermediary who sells goods on behalf of, and in the name of, a principal.
Historically, the view has been taken in many first instance decisions (based upon French jurisprudence) that a commercial agent ought to be awarded compensation of two years' earnings if his agency is terminated, unless there is a good reason to depart from the two year presumption.
The House of Lords, upholding the Court of Appeal, has conclusive stated that English courts should not follow the French practice of awarding two years' losses as compensation. Instead, the correct measure of damages is to value the income stream which the agency business would have generated. This will often require expert evidence, and the best evidence of te value will be the price at which the agent could have sold his 'business' on the open market. The key passages in the judgment are paras. 10-13 and 21.
Monday, 2 July 2007
EAT Scotland
The EAT in Scotland has announced it is closing between 2pm Friday (6th July 2007) and Monday 16th July.
For information on how to deal with documents that need to be served during the intervening week, please see this notice.
For information on how to deal with documents that need to be served during the intervening week, please see this notice.
Friday, 29 June 2007
Acas to conciliate in EAT cases
Acas is extending its conciliation services to cover certain categories of EAT cases, at the EAT's invitiation. The type of cases where conciliation may be appropriate will include cases where:
Thanks to Eugenie Verney for telling me about this development
Click here for Acas press release
- the employment relationship is ongoing
- a case might be referred back to the employment tribunal; or,
- appeals covering monetary awards
Thanks to Eugenie Verney for telling me about this development
Click here for Acas press release
Wednesday, 20 June 2007
Statutory Grievances - Admissibility of Claims
The EAT has come up with another clever way of circumventing s31 of the Employment Act 2002 in Mackay v Blakes Newsagents (HHJ Serota QC).
It held that where an ET1 is presented prematurely (because 28 days from the grievance letter had not elapsed), an employment tribunal has jurisdiction to permit the ET1 to be amended after the 28 days has elapsed, provided it contains one or more causes of action that are not caught by s32(2).
It held that where an ET1 is presented prematurely (because 28 days from the grievance letter had not elapsed), an employment tribunal has jurisdiction to permit the ET1 to be amended after the 28 days has elapsed, provided it contains one or more causes of action that are not caught by s32(2).
Tuesday, 19 June 2007
Increase in Annual Leave
The draft Working Time (Amendment) Regulations 2007 are now available. They phase in an increase in the annual leave entitlement from 4 weeks to 5.6 weeks.
[Thanks to www.emplaw.co.uk for this information.]
[Thanks to www.emplaw.co.uk for this information.]
Updated Acas Guides
Acas has updated its website guides on maternity and annual leave. It has also just published two research papers on sexual orientation discrimination.
Thursday, 14 June 2007
Unfair Dismissal Compensation - Sick Employees
The EAT has handed down an important decision, GAB Robins v Trigg, dealing with the calculation of a compensatory award for a constructively dismissed employee who had been off work sick.
The issue, on which there was no direct authority, was whether such an employee's loss of earnings has been caused by the constructive dismissal or, instead, caused by her long-term sick absence. The employer argued that since the employee had been off work for four months prior to her dismissal, her absence after the dismissal had not been caused by that dismissal.
HHJ Peter Clark distinguished an 'actual' dismissal, where loss of earnings might not be awarded, from a 'constructive' dismissal (para. 66). The constructive dismissal covered a whole series of events, not just the 'last straw' (failure to deal with a grievance properly), some of which were the incidents of bullying and overwork which gave rise to the sickness absence in the first place.
In those circumstances, the course of conduct by the employer amounted to a breach of the implied term, formed part of the constructive dismissal, and thus the Claimant’s ill-health caused by that breach is to be treated as a consequence of the dismissal leading to loss of earnings which would otherwise have been received at the full rate from the employer, such loss being attributable to action taken by the employer (para. 75)
The issue, on which there was no direct authority, was whether such an employee's loss of earnings has been caused by the constructive dismissal or, instead, caused by her long-term sick absence. The employer argued that since the employee had been off work for four months prior to her dismissal, her absence after the dismissal had not been caused by that dismissal.
HHJ Peter Clark distinguished an 'actual' dismissal, where loss of earnings might not be awarded, from a 'constructive' dismissal (para. 66). The constructive dismissal covered a whole series of events, not just the 'last straw' (failure to deal with a grievance properly), some of which were the incidents of bullying and overwork which gave rise to the sickness absence in the first place.
In those circumstances, the course of conduct by the employer amounted to a breach of the implied term, formed part of the constructive dismissal, and thus the Claimant’s ill-health caused by that breach is to be treated as a consequence of the dismissal leading to loss of earnings which would otherwise have been received at the full rate from the employer, such loss being attributable to action taken by the employer (para. 75)
Wednesday, 13 June 2007
Cheekiest Legal Argument of the Year
As part of my ongoing quest to find the cheekiest legal argument of the year (see bulletin 18/5/07), the second contender is the employer in Cummings v Scholarest.
The Claimant presented an equal pay claim to the employment tribunal with an equal pay claim. Her solicitor misspelled her name on the ET1 as Mrs W.E. Cummings (it should have been Mrs W.E. Cowings). The Claimant, who had worked for the employer for 30 years, set out her place of work and address correctly.
The employer applied to strike out the claim on the basis that the Claim Form did not correctly identify the Claimant. The employment tribunal granted the application.
Quashing the decision, the EAT made it clear that there was a power to amend the name of the Claimant, and sent the case back to a different chairman with a clear steer to make a finding that it was just and equitable to allow the Claimant to amend her name on the ET1.
(any other contributions for 'cheekiest legal argument of the year' gratefully received)
The Claimant presented an equal pay claim to the employment tribunal with an equal pay claim. Her solicitor misspelled her name on the ET1 as Mrs W.E. Cummings (it should have been Mrs W.E. Cowings). The Claimant, who had worked for the employer for 30 years, set out her place of work and address correctly.
The employer applied to strike out the claim on the basis that the Claim Form did not correctly identify the Claimant. The employment tribunal granted the application.
Quashing the decision, the EAT made it clear that there was a power to amend the name of the Claimant, and sent the case back to a different chairman with a clear steer to make a finding that it was just and equitable to allow the Claimant to amend her name on the ET1.
(any other contributions for 'cheekiest legal argument of the year' gratefully received)
Tuesday, 12 June 2007
Introducing New Claims outside the Limitation Period
The EAT has handed down judgment in the important case of TGWU v Safeway Stores. It is authority for the proposition that it will almost always be permissible to amend a Claim Form to introduce a new legal cause of action which relies on already pleaded facts, even if the new cause of action is out of time (see paras. 13 and 15).
Even if you don't have a case involving this particular point, this is a decision well worth reading for Underhill J.'s analysis and explanation of the authorities on amending Claim Forms.
Even if you don't have a case involving this particular point, this is a decision well worth reading for Underhill J.'s analysis and explanation of the authorities on amending Claim Forms.
Monday, 4 June 2007
New Points on Appeal
Quite simply, the perfect guidelines on whether new points can be taken on appeal - see paragraph 50 of HHJ McMullen QC's judgment in this case with a very long name.
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