Tribunals Service Consultation Paper

The Tribunals Service has, today, issued a consultation paper entitled Transforming Tribunals.

It's not particularly exciting, though. Core points are:-

• cross-ticketing between wing members will be allowed (ie employment tribunal wing members can sit on other types of tribunal) but the existing statutory requirements for sitting on ETs and the EAT will be retained so as not to dilute the expertise of wing members
• enforcement of tribunal awards and Acas settlements is made easier

Anybody who wants to respond to the consultation paper can do so by 22nd February 2008. Details on how to respond here.

Practice Direction - Age Discrimination

The President of the Employment Tribunals, HHJ Meeran, has handed down a Practice Direction staying all current (and future) tribunal claims which involve an allegation that regulation 30 of the Age Regulations (providing for lawful retirement at or beyond 65) is unlawful. The cases will all be stayed until the ECJ has dealt with the Heyday case.

You can see the full text of the Practice Direction here. Interestingly, the Practice Direction records that the recent Solent decision in the EAT is being appealed to the Court of Appeal.

The Practice Direction applies in England and Wales. I am informed that Scotland will not be issuing a similar Practice Direction, but cases will be referred to chairmen for individual decisions.

[Thanks to Marivi Prescott of McRoberts for telling me about this Practice Direction]

Statutory Dismissal Procedures

The EAT has held, in Venniri v Autodex, that tribunals are obliged to consider whether a dismissal is automatically unfair under the statutory dismissal procedures. It is not necessary for the employee to raise compliance as an issue (see para. 34).

This contrasts with the position for grievance procedures, where tribunals are not obliged to consider whether the employee has lodged a grievance and waited 28 days before submitting a claim. The burden is on the employer to raise this as a defence.

Note that the judgment leaves open the question of whether a tribunal is likewise obliged to consider the s98A(2) defence (the partial reversal of Polkey), or whether it has to be expressly raised by the employer

TUPE: Objecting to Transfer

An interesting decision from the Chancery Division, in New ISG Ltd v Vernon.

Five employees objected to a TUPE transfer two days after it had taken place, once they discovered the (previously withheld) identity of the new employer and realised they did not want to work for it.

The new employer sought interim injunctions to enforce restrictive covenant clauses in their contracts, arguing that the right to object must be exercised before the transfer and, since it wasn't, the benefit of the restrictive covenants had transferred over to it.

The court disagreed, holding that a valid objection can take place after the date of transfer, where the employee does not initially know the identity of the transferee and objects promptly as soon as s/he finds out. The objection then has retrospective effect, and prevents the operation of TUPE. Accordingly the benefit of the restrictive covenants had not transferred to the new employer, and the application for injunctive relief was refused.

[Thanks to Michael Herman of Times Online for telling me about this decision]

Discrimination against Parliamentary Candidates

The House of Lords has, today, ended the long-raging battle in Labour Party v Ahsan.

The Labour party did not select Mr Ahsan as its candidate for a parliamentary seat. He claimed this failure to select him was on grounds of race. Considering the jurisdictional position under the RRA 1976, the House of Lords held:-

• political party, in selecting candidates, is not conferring an 'authorisation or qualification' enabling someone to be engaged in a profession - therefore s12 of the RRA 1976 does not apply; but,
• the Labour party is an 'association' within s25 of the RRA 1976, and so a potential claim would exist against it in the county court.

TUPE: Variation of Contract Terms

The Court of Appeal has, today, upheld the EAT's decision in Regent Security Services v Power.

The case is a departure from previous TUPE-law, holding that an employee is entitled to elect to rely on changes to terms and conditions of employment following a TUPE transfer. Previous authorities suggested that such changes were always void.

There remain areas of uncertainty following this decision. In particular, if an employee elects to rely on some of the beneficial changes, is s/he obliged to give credit for the detrimental changes? Is there a time period after which the employee is deemed to lose the right of election? These matters will no doubt be resolved in future cases.

8 seconds past midnight

We all thought the 88 second case was amusing, but here's an even closer shave! A second-year law student, charging �150ph to represent the Claimant, hit the 'transmit' button on the ETS website at 1 second before midnight on the last day for presentation of an ET1 claim. It arrived on the ETS server at 8 seconds past midnight.

The EAT (HHJ McMullen presiding) confirmed the claim was out of time.

The EAT also drew attention to the provisions of the Compensation Act 2006, which prohibits non-lawyers from representing litigants (other than for free, or in limited cases such as charities) unless they are formally registered with, and regulated by, the new Regulated Claims Management Service. The EAT sent a clear warning shot to unqualified and unregistered representatives by referring this law student to the Regulated Claims Management Service. Breach of the registration requirements is punishable by two years in prison.

[Thanks to Ed McFarlane of Mentor Services for telling me about this case]

Miller v Community Links Trust

Ministers of Religion and Unfair Dismissal

The Court of Appeal has upheld the Employment Appeal Tribunal's decision in New Testament Church of God v Rev. Sylvester Stewart, which held that a Christian minister was an employee of his church.

Whilst making it clear that he was not laying down a rule of law that all ministers of religion will be employees, Pill LJ analysed the changes in the common law in recent years and held that there was no legal presumption against a minister being an employee.

All three judges considered, however, that the existence of religious dogma which was opposed to the existence of a contract of employment would be an important factor pointing away from the existence of a contract. Indeed, by a majority, the Court considered that to impose a contract upon a church which was doctrinally opposed to it would be a breach of Article 9 of the ECHR (freedom of religion).

Collective Redundancy Consultation

The EAT has handed down a very important decision dealing with collective consultation obligations in redundancy cases.

Overturning previously binding authority, the EAT has held that there IS a duty on employers to consult over the reason for making redundancies in the first place (in this case, the closure of a place of mine) - previously something which has always been an area in which tribunals will not interfere. Elias P.�s reasoning begins at paragraph 75 - but, in essence, is that the old authorities are no longer good law in the light of statutory changes.

UK Coal Mining Ltd v NU

TUPE

The Court of Appeal has held, on unusual facts, that TUPE does not confer additional rights so as to improve an employee's situation.

Mrs Jackson was employed by CI in 1999. CI's business transferred to Computershare in 2004, and it made Mrs Jackson redundant in 2005. The employment tribunal found that, due to the 2004 TUPE transfer, she was entitled to enhanced severance pay - something which Computershare only made available to employees who had joined it pre-2002. The EAT overturned that decision, and Mrs Jackson appealed.

The Court of Appeal dismissed her appeal. TUPE Reg 5(1) does not give a transferred employee access to benefits other than those to which the employee was entitled before the transfer of the undertaking. It safeguards existing rights. So for the question of enhanced severance pay TUPE could not be used to "miraculously transform" Mrs Jackson into someone who joined Computershare pre-2002 when, as a fact, she joined Computershare in 2004. The original tribunal was wrong and she was not entitled to the enhanced payment.

Jackson v Computershare Investor Services

[Thanks to Patrick Green, Counsel for the Claimant, for telling me about this decision, and to www.emplaw.co.uk for permission to use their summary of the case]

Constructive Dismissal and Grievance Procedures

The EAT has handed down a very interesting judgment in GMB Union v Brown.

Ms Brown had a grievance against her line manager, a regional secretary of the GMB, flowing largely from the breakdown of their working relationship. She did not want him to deal with the grievance himself, as she was suffering from stress, and wanted somebody else to hear the grievance. The manager refused to vary the contractual grievance procedure, which provided he should hear the grievance first, resulting in months of argument, stress absence and eventual resignation by the Claimant.

The ET held, and the EAT upheld, that the GMB's refusal to depart from the grievance procedure amounted to a breach of trust and confidence - and thus the Claimant's constructive dismissal claim succeeded.

Maternity Pay Increases Delayed until April 2010

The Government still has a goal to extend Statutory Maternity Pay [SMP], Maternity Allowance [MA] and Statutory Adoption Pay [SAP] from 39 weeks to 52 weeks and to introduce Additional Paternity Leave and Pay [APL&P] by the end of this Parliament.

However, a Notice issued last week states that the plans have been put back by a year. It says that "HMRC has, up to now, been planning on the basis of implementation for babies due on or after April 2009. We will now start planning implementation for babies due on or after April 2010.

See HMRC Note

[Thanks to www.emplaw.co.uk, from whom I have taken this information (with permission)]

Retirement and Age Discrimination

The ECJ has handed down its opinion in the important case of Palacios v Cortefiel Servicios SA, holding that the EU Equal Treatment Framework Directive does not prohibit member states from introducing mandatory retirement ages.

Disagreeing with the Advocate-General (see bulletin 15/2/07), the ECJ held that a general mandatory retirement age did fall within the scope of what the Directive prohibited.

However, the ECJ considered that a mandatory retirement age was justified, as it was a proportionate means of achieving the legitimate social aim of promoting employment opportunities and reducing unemployment.

As readers will know, Heyday are currently challenging the UK's retirement provisions before the ECJ (see bulletins 5/10/06 and 6/12/06). This decision will cause much glumness at Heyday's offices this morning, and no doubt champage corks are being popped over at DBERR (i.e. the DTI, as it used to be called).

[Thanks to Michael Herman of Times Online for telling me about this decision]

Dreadlocks, Rastafarians and Religious Belief

The EAT (Elias P. presiding) has dismissed an appeal in which it was suggested that a Rastafarian who wore his hear in dreadlocks was discriminated against because of his religious beliefs.

The case turns largely on its facts (and contains an amusing analysis of when matted hair is messy, and when it is not!), but has two points of general interest:-

• the tribunal and EAT accepted, without demurral, the employer's concession that Rastafarianism is a religious belief within the meaning of the Employment Equality (Religion and Belief) Regulations 2003. There has previously been academic debate over whether Rastafarianism so qualified. Rastafarians are not protected under the race discrimination legislation as they do not qualify as an 'ethnic group' (Crown Suppliers v Dawkins (1993)).
• the EAT accepted the employer's argument that it was legitimate to have rules requiring tidy hair (irrespective of whether it was worn in dreadlocks)

Harris v NKL Automotive

Statutory Dismissal Procedures

The EAT has held, in Homeserve v Dixon, that a step 1 letter need not state that the employer is contemplating dismissal.

The employer, having caught the employee red-handed in an act of gross misconduct, sent him a letter inviting him to a 'formal disciplinary meeting' for 'breach of contractual obligations'.

The employment tribunal held that the dismissal was automatically unfair, as the letter did not state that the employer was contemplating dismissal.

The EAT, presided over by HHJ Peter Clark, overturned this decision, holding that it was sufficient that the letter invited the employee to a 'formal disciplinary meeting', as it was implicit in that that the employer was contemplating dismissal or some other disciplinary action.

Disability Discrimination: Failure to consult over redeployment

The EAT has hammered yet another nail in the coffin of the argument that an employer's failure to consult a disabled employee over alternatives to dismissal (or conduct a risk assessment) is, itself, a failure to make reasonable adjustments giving rise to liability.

The EAT confirms that the correct approach is that set out in Tarbuck (2006), and that the earlier line of authorities based on Mid Staffordshire General Hospitals (2003) should no longer be followed.

Thus there is plainly no longer scope for arguing that an employer who fails to investigate redeployment or reasonable adjustments is thereby in breach of the DDA. It is necessary for the Claimant to go a step further and establish precisely what reasonable adjustments could have been made to retain him/her in the workplace.

Scottish & Southern Energy plc v Mackay

Re-Enagement and Loss of Statutory Rights

A couple of interesting points crop up in the EAT's decision in Wolff v Kingston upon Hull City Council.

Unreasonable pursuit of re-engagement claim
The EAT approved the award of costs against Mr Wolff for unreasonably pursuing a re-engagement claim. He had been dismissed from a school and accepted he could not return to that school, but sought re-engagement in another school run by the city council. The city council argued - correctly - that it is the governors of individual schools, not the Council itself, that has the power to appoint teachers.

In the absence of financial losses, the Council offered �1,000 in settlement but the Claimant insisted on his day in court to argue re-engagement. The ET (and EAT) held that this was unreasonable, particularly in the context of a clear steer from the employment tribunal at a case management discussion.

Loss of Statutory Rights
An interesting point arose here. The Claimant found a new job immediately, and over a year had elapsed prior to the remedies hearing. The Respondent argued he should not be entitled to the conventional �250 for loss of statutory rights, as he had succeeded in re-establishing statutory protection and therefore suffered no loss. The EAT rejected this argument, holding that the Claimant was entitled to compensation for having worked for a year "under the shadow of being dismissed without statutory protection" and upheld the award of �250.

Statutory Grievance Procedure

As aficionados of employment law will know, tribunals consistently strain to turn lumps of clay into statutory grievances so that employees are not shut out from bringing tribunal applications.

But there is a limit, the EAT has held in Dick Lovett v Evans. Notwithstanding the Canary Wharf case, which held that employers should be taken to have regard to the factual background against which a written grievance letter is sent, it goes too far to impute an employer with knowledge arising from a meeting occurring after the date the 'grievance' letter was sent.

On the facts, a letter complaining of nosebleeds was insufficient to amount to a statutory grievance letter complaining of pregnancy discrimination, notwithstanding that a few days later, the employee told the employer that she believed the two were connected.

New Evidence as a Ground of Appeal

The EAT has handed down a decision confirming the strict approach it takes to allowing an appeal on grounds of fresh evidence.

The employer dismissed an employee for trying to poach customers. At the tribunal hearing, the employer had no real evidence of the poaching, which it explained on the grounds that it did not know it was expected to obtain such evidence.

Following the decision, the employer obtained four witness statements which, if accepted, would be fairly overwhelming evidence that the ex-employee had been approaching clients to solicit work (whilst still employed).

The EAT held that this did not enable the employer to have a second bite at the cherry. Whilst clearly credible and relevant, there was no proper explanation for not having obtained the evidence first time round. Neither ignorance, nor possibly incompetent advice from the employer's employment consultants, came close to being sufficient.

Hygia Professional Training v Cutter

Holiday Pay

In the light of the increased statutory holiday pay, effective today, Acas has issued a new Advice Leaflet on Holidays and Holiday Pay.

For those who need a quick reminder, minimum annual holiday entitlement increases today to 4.8 weeks (and on 1st April 2009, it increases to 5.6 weeks - intended to reflect 20 days plus 8 days' bank holiday).