Statutory Dismissal Procedures: Unreasonable Delay

In Yorkshire Housing v Swanson, the EAT has held that a dismissal is automatically unfair when the employer delays unreasonably in following the statutory dismissal procedure.

With "some unease" (para 67), the EAT stated that the delay provisions, despite being in a different Part of Schedule 1 to the Employment Act 2002 to the standard dismissal procedure, were mandatory rules that had to be followed - breach of which led to a finding of automatic unfair dismissals. The EAT acknowledged the difficulty construing unreasonable delay as falling within "non-completion" (para 64), since very often the procedures would be completed - albeit late - but held for policy reasons (para 69) that there should be a finding of automatic unfair dismissal.

On the facts, the employer had delayed for five months between holding the disciplinary meeting and writing the letter dismissing the Claimant. That was (unsurprisingly) held to be unreasonable delay.

Thanks to Sally Cowen of Cloisters, who appeared for the Claimant, for telling me about this case.

Protective Awards Recoverable in Litigation

This is an abridged version of a summary prepared by www.emplaw.co.uk to whom I extend my thanks

The Court of Appeal has, yesterday, overturned the EAT's decision in Haine v Day (see bulletin 15/1/08 for EAT decision).

Mr Haine was employed by an insolvent company. He tried to enforce "protective awards" made by an employment tribunal under TULR(C)A 1992 ss. 188 & 189 for failure to consult about dismissals as the company went into insolvent liquidation. The problem was that the tribunal made the awards some months after the liquidation. The High Court concluded that therefore they were not debts provable in the liquidation of the company, and on that basis, the Liquidator was not liable to pay them.

The Court of Appeal, seemingly driven by the policy argument that "if the Liquidator does not need to pay, the Secretary of State will have to", concluded that the obligation to consult under section 188 arose before the liquidation of the company and at that point the protective award was a debt or liability to which the company "may become subject" in due course. Therefore the protective awards in this case were contingent liabilities of the company, and within rule 13,12(1)(b). It followed that liability therefore lay with the Liquidator. The appeal was allowed.

Statutory Grievances and Equal Pay Claims

Thanks to Macroberts LLP, who acted for the Respondent, for preparing this summary.

The Court of Session has, today, largely upheld that EAT’s decision in Cannop & Others –v- The Highland Council on the correlation required between grievance and claim form in Equal Pay cases (see bulletin dated 10/1/08 for the EAT’s decision).

The Court confirmed that there does require to be a necessary relationship between the grievance and the claim form. Adopting wording used by Elias P in Canary Wharf, the Court stated that the underlying claim presented to the tribunal must be "essentially the same" as the grievance. They went on to add that other communications by the employee to the employer prior to the grievance may provide a context within which to interpret the grievance and that events subsequent to the grievance may also "illuminate the nature and scope of the grievance." The Court was mindful that the Dispute Resolution procedures should not be applied to render access for individuals to Tribunal in Equal Pay matters "impossible or excessively difficult."

The Court confirmed that the EAT were entitled to find the Employment Tribunal's approach flawed. However, as acknowledged by Counsel for the Highland Council, the exact wording of the EAT's order created some ambiguity as to its scope. The Court of Session therefore amended the wording of the EAT's order to make it clear which claimant's cases it applied to and substituted the test to be applied in comparing the grievance with the claim form with "essentially the same" as opposed to "not materially different."

The Court commented that the hypothetical debate pursued on behalf of the Claimants as to whether or not a grievance that stated "I have an Equal Pay grievance" (and nothing more) satisfied the requirements of para 6 Sch 2 of the Dispute Regulations was unhelpful in the context where none of the grievances in question were in fact presented in such stark terms. Accordingly, any comments made by the Employment Tribunal and the EAT in that respect should be regarded as obiter dicta.

48 Hour Week opt-out

An agreement within the EU Employment Council, announced this morning, will allow the UK to continue permitting employees to opt-out of the 48-hour maximum average working week.

For the full press release, see here.

Thanks to Eugenie Verney for telling me about this news item.

TUPE - Ineffective objection to transfer

Thanks to www.emplaw.co.uk for permission to use their case summary

The BBC transferred its occupational health (OH) department to Capita as of 1 April 2006. The Claimant objected to being transferred. She resigned on 31 March 2006, stating that due to her professional commitments she would work a "period of secondment" with Capita until she actually left on 12 May. However, there was no role that the Claimant could have returned to with the BBC at the end of any "secondment". The BBC paid Mrs MacLean for what it saw as her working out her notice period.

An employment tribunal held that even so her employment had transferred under TUPE - that decision was appealed.

In the EAT Lady Smith noted that employees are plainly entitled to object to being transferred to the employment of another employer - that accords with common law, the underlying intentions of the relevant Directives and TUPE. However, whether the employee has "objected" is a question of fact to be decided objectively in all the circumstances. TUPE 1981 Reg 5 (now TUPE 2006 Reg 4) states that such objection will prevent a transfer occurring and end the contract of employment, and it makes no provision allowing employees to work out their notice - so if she had successfully "objected" Mrs MacLean could not have continued as BBC's employee after 1 April 2006. On the facts Mrs MacLean did not object to transfer - she simply insisted that she would only transfer for a limited period of time. Therefore there was a TUPE transfer of her contract of employment to Capita for 6 weeks.

Capital Health Solutions v McLean

Detriments

[Thank to Louise Jones of 1 Temple Gardens for writing this summary]

The EAT has again considered the meaning of 'detriment' in Bayode v Chief Constable of Derbyshire. The Appellant police officer appealed to the EAT on whether the mere act of a written record being made, where there was no inappropriate action, could be a detriment in the context of race discrimination; the material complaint was one of victimisation by colleagues.

Colleagues had recorded details of an incident in their Pocket Note Books, before passing the comments onto more senior colleagues; the Appellant had not known of these written comments until disclosure in the employment tribunal proceedings.

At first instance, the tribunal inferred that these comments were recorded because the authors thought the Appellant might make allegations of race discrimination, and they wished to have a record of what had been said.

The Appellant argued that the tribunal had failed to consider the detriment arising from the recording of the comments. It was submitted that the effect of the entries on the Appellant should have been considered, and this effect constituted a detriment. The EAT rejected this submission; the wide definition of detriment was considered, but the EAT still concluded that the tribunal had made no error in concluding that the making and content of the notebook entries did not amount to a detriment.

Equal Pay

The EAT has held (overturning previous caselaw) in Walton Centre for Neurology v. Bewley that a woman's successor in a job cannot be used as a comparator for the purposes of an equal pay claim, either under the Equal Pay Act 1970 or Article 141 of the EC Treaty.

Elias P. accepted the Appellant's submission that the 1970 Act does not permit a comparison with a woman's successor because the statute envisages a specific person contemporaneously employed with whom a comparison can be made.

However, this was not determinative of the appeal because it was necessary to consider whether the Act should be read in accordance with EU law.

Having examined the case-law at some length, the EAT decided that comparison with a successor is not permitted under EU law either. The logic behind comparison with a successor was the same as that behind allowing a hypothetical comparator; in essence, it is an exercise in speculation as to what would have happened if they had been employed contemporaneously. This is not consistent with the structure of the Equal Pay legislation, which requires comparison with an actual comparator and not a hypothetical comparator.

Michael Duggan's Case Index

Michael Duggan of Littleton Chambers has published the latest edition of his excellent case index. He has made it available to all - download it here.

NOTE: it is a large file - please try again later if it does not download immediately

New EAT Practice Direction

The Employment Appeal Tribunal has issued a new (2008) Practice Direction dealing with EAT procedure, replacing the previous (2004) Practice Direction in its entirety. It came into force yesterday.

Download it here. Note that it is a large (3Mb) document, and the EAT website may have trouble coping if too many people try to download it simultaneously. If it doesn't work, try again later.

[Thanks to John Bowers QC of Littleton Chambers for telling me about this]

Implied Duty to Provide Work

Thanks to Saul Margo of Outer Temple Chambers, who appeared for the successful employee, for writing this case summary.

The EAT, in St Ives Plymouth Limited v Haggerty, has considered whether the expectation of being given work, resulting from the practice over a period of time, can of itself constitute a legal obligation to provide some work or to perform the work provided, even where there is no duty to undertake any particular work offered or a minimum amount of work.

In a majority decision, Elias P, presiding, held that the practical commercial consequences of not providing work on the one hand or of not performing it on the other could crystallise over time into legal obligations.

The EAT relied upon the majority reasoning of the Court of Appeal in Nethermere v Gardiner but considered the impact on that Judgment of Lord Irvine’s observations in Carmichael that no terms could be implied by business efficacy unless and until the relationship itself was contractual. It was held that in Carmichael there was no express rejection of the reasoning of the majority in Nethermere and that the reasoning of the Court of Appeal should not be taken to have been overruled. The appeal was dismissed.

Compromise Agreements - Court of Appeal

[Thanks to Anthony Johnson of 1 Temple Gardens for providing this case summary]

In Collidge v. Freeport plc, handed down last week, the Court of Appeal unanimously upheld the High Court's decision that it was a condition precedent of the Respondent's liability to perform its obligations under a Compromise Agreement that the Claimant was not in breach of a term included in that agreement to the effect that he had not previously committed any repudiatory breaches of his contract of employment that would have entitled the Respondent to terminate his employment.

Counsel for the Claimant argued in the Court of Appeal that the Respondent had elected not to treat the Claimant's repudiatory breach as bringing the agreement to an end, or at least not before his right to payment had accrued. However, all three judges rejected this construction of the agreement. Tuckey LJ, giving the lead judgment, said that it was a carefully drafted agreement, and that its construction was put beyond doubt when its context was considered. Sedley LJ said that the proverbial officious bystander "would have thought the parties were pulling his leg" if told that Claimant's purported construction of the agreement was the correct one.

Agency Workers

The government, TUC and CBI have today agreed a deal which will see agency workers in the UK receive equal treatment after 12 weeks' employment.

Details can be seen on the government press release or BBC news item.

Unified Tribunals Service

The Ministry of Justice has today announced that the new Unified Tribunals Service will be going live on 3rd November 2008.

Employment tribunals (and the EAT) will remain separate from the unified system, but closely associated with it (whatever that means).

More details here.

Redundancy: unreasonable refusal of suitable alternative

HHJ Peter Clark, in the EAT, has handed down a decision for those fighting over redundancy payments.

In Commission for Healthcare Audit & Inspection v Ward, the EAT considered the overlap between the suitability of alternative employment, and the (un)reasonableness of a refusal of that suitable job.

They held that a tribunal is entitled to have regard to the degree of suitability when deciding whether the employee's refusal is reasonable. In other words, where the new job offer is overwhelmingly suitable it may be a little easier for the employer to show that a refusal by the employee is unreasonable than if the suitability was a more borderline decision.

Disability Discrimination

Thanks to Louise Jones of 1 Temple Gardens for providing this summary.

In Lincolnshire Police v Weaver, the EAT reaffirmed that employers can have regard to factors outside those of an individual employee when deciding whether an adjustment is reasonable under the DDA 1995.

As a police officer of over 30 years’ experience, the Claimant was entitled to apply to a ‘Thirty+ Retention Scheme’, which allowed a pension to be claimed, but the individual’s employment to carry on favourable terms.

The Claimant’s disability had taken him from the role of a fully operational officer to an office-based post, which was essentially a post of restricted duties, before he became eligible for the Scheme. The way in which the Respondent applied the Scheme to him was such that, as an officer on restricted duties, he was not permitted access to the Scheme, as his departure might enable another officer to take up that post.

Elias P. held that the tribunal approached the ‘reasonable adjustment’ question incorrectly, as it did not take into account the wider implications of making the adjustment (which in the instant case meant admitting the Claimant onto the Scheme).

The tribunal was under an obligation, the EAT said, to engage with the wider operational objectives of the Respondent and, in particular the desire to liberate posts for restricted officers. Indeed, the wider approach was one suggested by paragraph 5.42 of the Disability Rights Commission Code of Practice: Employment and Occupation [2004]. Further, the tribunal had erred in having regard to the fact that the Respondent had deliberately adopted a policy which operated to the disadvantage of disabled people. The EAT found this could not be a relevant consideration.

Modified Grievance Procedure

This summary was prepared by, and is reproduced with permission of, www.emplaw.co.uk

Yet another case concerning the statutory dispute procedures which, as pointed out by Lady Smith in the Scottish EAT in Clyde Valley Housing Association v McAulay, "have provoked a sea of negative comment of Pacific rather than Caspian proportions".

Ms MacAuley resigned from the Clyde Housing Association, claiming constructive dismissal and disability discrimination. It was agreed that the modified statutory procedure, set out in Employment Act 2002, applied, and so Ms MacAuley's solicitors wrote to Clyde setting out a number of allegations. Clyde sought clarification of exactly what acts and conduct of theirs it was that Ms MacAuley was referring to. These were not forthcoming, so they wrote to say that, as a result, they had been unable to address the grievance. An employment tribunal held that the grievance procedures had been complied with, and Ms MacAuley won her case. Clyde appealed.

The EAT confirmed that the tribunal could not entertain the claim unless Ms MacAuley had sent something in writing to Clyde which set out her grievance and the basis for it. This is a threshold condition. The written statement must "contain the answers to the essential questions that one would expect to arise in a grievance, namely: 'Who? What? Where? When? Why?'" The fact that further details could come to light during litigation, or indeed that there could be financial penalties for failing to fully comply with the procedures, does not remove the tribunal's need to consider that written statement alone and be satisfied that it meets these certain minimum requirements. The letter in this case simply made assertions, and did not meet the basic requirements. The appeal was allowed and the tribunal's order set aside - so the claim was dismissed.

Uplifts to Awards

The EAT, sitting in Scotland, has handed down a controversial decision on uplifts to the compensatory award (McKindless Group v McLaughlin).

The employer admitted breach of the statutory dismissal proceedings, and defended on quantum only. The tribunal awarded a 50% uplift. Overturning this, and substituting a 10% uplift, the EAT stated that:

• a tribunal cannot award more than a 10% uplift in the absence of evidence on the reason(s) for breach of the statutory dismissal procedure (para. 13); and,
• a tribunal is not entitled to take into account the way in which the employer subsequently conducted the litigation (para. 26)

Both of these conclusions are open to question. As to the first, if correct, it would mean an employer who deliberately flouts the procedures and then takes no part in the proceedings could not be subjected to more than a 10% uplift, whereas a well-meaning but ignorant employer who tries to explain his error could be subject to a greater award. The approach is also not reflected in the practice of tribunals (certainly, in my experience) up and down the country.

As to the second conclusion, this does not flow from the wording of the statute. Certainly, a breach of the statutory procedures is the trigger for an uplift, but nothing in s31 of the 2002 Act confines the tribunal to the degree of, or motive for, breach of the procedures when assessing what level of uplift is 'just and equitable'.

Tony Blair, Jehovah's Witnesses and Delusional Litigants

What do Tony Blair and the Jehovah's Witnesses have in common? Well, according to the Claimant in Johnson v Edwardian International Hotels, they conspired with his employer to dismiss him from his job as a hotel kitchen porter.

The tribunal, which suspected that the Claimant was "delusional", invited the Official Solicitor to investigate whether the Claimant had sufficient mental capacity to litigate his claim.

The Claimant appealed. Underhill J., sitting alone, held that:-

• the employment tribunal rules make no provision for the tribunal to appoint a litigation friend. Such a power cannot be implied (para. 11);
• there is, in law, a presumption that a party has mental capacity (para. 12).

Taken together, these mean that tribunals should be very wary of investigating a party's mental capacity. Underhill J. stated that tribunals are required to deal with "delusional" allegations under their general case management powers. If the case is misconceived, it can be struck out. However, even if the case is not misconceived, it may still be struck out if the party suffering from possible mental incapacity conducts the proceedings in a way which renders the case unmanageable (paras. 13-14)

Conversely, this means that Respondents may be exposed to vexatious or misconceived allegations which a tribunal may be reluctant to strike out. On the other hand claimants who are genuinely mentally ill will be exposed to costs sanctions where the claim or at least some of the allegations are or may be a product of their illness.

Perhaps unsurprisingly, the EAT did not deal with the Claimant's ground of appeal which asserted that he had - in fact - won his claim and been awarded compensation by the tribunal, and that the tribunal order which arrived through the post was "a forgery" (para. 4)

Consultation: New Acas Code on Discipline and Grievance

Acas has launched a consultation on its proposed revised Code of Practice on Discipline and Grievance.

Under proposed changes to employment law due to take place in April 2009, a failure to follow the Code does not, in itself, make a person or organisation liable in proceedings. However, tribunals will be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with any provision of the Code.

The new draft Code is very short. You can see it here. The consultation period closes on 25th July 2008.

Statutory Dismissal Procedure: Extensions of Time

The Court of Appeal has held by a 2:1 majority in Towergate London Marketing v. Harris that a claimant was entitled to an extension of time in accordance with Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in circumstances where she had filed a 'grievance', but not an 'appeal' letter, within the original three months' time limit.

The tribunal decision, holding that at the date the limitation period expired, she did not have reasonable grounds for believing that a disciplinary procedure was being followed within the meaning of Regulation 15(1), was overturned.

Keen LJ, in the majority, stated that whereas to an employment lawyer there is clearly a distinction between a 'grievance' and an 'appeal', "one does not expect an employee to have a ready grasp of these arcane mysteries". Most employees do not have ready access to skilled legal advice; it is, therefore, important that the courts avoid an unduly technical approach. He felt that from the wording of the Regulation was clear that the claimant's belief did not have to be that a statutory procedure was being followed, merely that a procedure was being followed.

Wilson LJ agreed, saying that an employee can have a grievance in accordance with the use of the word in common parlance. It is not objectionable or misconceived for the claimant to write a letter to her employer stating that she had a 'grievance', when she meant to say she had an 'appeal'.

Ward LJ, dissenting, was of the opinion that, looking at the matter objectively, a reasonable employer would construct the letter to mean what it clearly and plainly said, i.e. that it was a grievance about action the employer had taken. It was too late for the claimant to bring such a complaint because she had already been dismissed. She should have exercised her right to appeal if she wanted to make such a complaint to the tribunal.