ECJ Decision: Coleman v Attridge Law

[Thanks to Paul Michell of Cloisters, who acted for Mrs Coleman, for providing this summary]

The ECJ has, this morning, published its landmark decision in Coleman v Attridge Law, in answer to questions posed of it by London South Employment Tribunal. Following the Advocate General’s opinion given on 31 January 2008 (bulletin 31/1/08), the ECJ has confirmed that the Equal Treatment Framework Directive is intended to prohibit associative discrimination in the context of direct discrimination and harassment.

Ms Coleman alleges she was directly discriminated against and harassed by her former employers on grounds of the disability of her son, for whom she is the primary carer. According to the ECJ's decision, the Directive is intended to prohibit direct discrimination or harassment on grounds of disability, even where the person concerned is not disabled themselves.

The Directive applies to age, sexual orientation, religion and belief, as well as disability. Following the ECJ's decision, direct discrimination by association in those other contexts must also be prohibited. (Notably, the Employment Equality (Age) Regulations 2006 do not yet appear to afford protection from direct discrimination by association in the context of age.)

Ms Coleman's former employer was a law firm, not a public body. Hence the next stage in her case will be to ascertain if the Disability Discrimination Act 1995 can be read purposively, so as to conform with the intent of the Framework Directive which it is supposed to implement.

Note: the full decision will be available on the internet here, probably after midday today. In the meantime, see this Press Release.

A very bad day for unions...

[Thanks to John Bowers QC for telling this decision was imminent, and to Chris Quinn, who acted for the successful Appellants, for sending me a copy immediately upon it being handed down]

The Court of Appeal has, this morning, handed down its judgment in the very important - and controversial - case of Allen v GMB. The employment tribunal (bulletin 9/6/06) held that the GMB had indirectly discriminated against union members by recommending acceptance of a 'single status' pay deal which grossly underestimated the compensation which should be due to female equal pay Claimants. Although the objective of securing a fair single status pay deal was legitimate, the means used by the union to secure the deal (including grossly misleading the female back-pay claimants) meant that they had not pursued proportionate means of achieving that pay deal.

The EAT reversed the decision (bulletin 31/7/07), and found in favour of the union. The Court of Appeal has now restored the ET's decision - the judgment revolves around some highly techincal analysis of the differences between 'legitimate aims' and 'proportionate means'.

Permission to appeal to the House of Lords has been refused by the Court of Appeal, meaning that (subject to a Petition directly to the HofL) compensation will now fall to be assessed against the union. It is believed there are about 4,000 claims outstanding against the GMB and some 7,000 against UNISON.

Age Discrimination: Staying Compulsory Retirement Cases

The Court of Appeal has published its reasons in Johns v Solent (the decision was announced about a month ago, but the transcript has only just become available).

The Court of Appeal confirmed that cases which raise the same issue as the Heyday case in the ECJ should be stayed (not struck out). In other words, where a Claimant brings a claim of age discrimination in respect of a retirement dismissal at age 65, the case should be stayed notwithstanding that regulation 30 of the Age Regulations appears to make such a claim impossible.

In the Heyday appeal, Age Concern is challenging the legitimacy of regulation 30, arguing that it is prima facie incompatible with the Equal Treatment Framework Directive. If it is found to be prima facie incompatible, the government will need to objectively justify a mandatory retirement age of 65.

Meanwhile, the President of Employment Tribunals will need to review the Practice Direction issued last year - but there is unlikely to be any change.

Discriminatory Job Awards

The ECJ has ruled, in Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn, that discriminatory job advertisements amount to direct discrimination.

Thus a job advert by a Belgian company stating that it did not employ 'immigrants' because it's clients did not like dealing with immigrants was capable of amounting to direct discrimination on grounds of race.

This overturns the UK position decided in Cardiff Women's Aid v Hartup in 1984, which held that a job advertisement falls outside the discrimination legislation and that an individual could not bring a claim based on such an advert. Until now, proceedings could only be brought by the CEHR - it seems now that individuals can bring claims as well.

The ECJ held (at paras 28 and 34) that a discriminatory job advert sets up a presumption that the employer's recruitment process is tainted by discrimination, and the burden of proof then shifts to the employer to show that its actual recruitment practice does not correspond to that stated in the advert

Legal Advice Privilege and Employment Consultants

[Thanks to Scott Halborg, who acted for the Appellant, for providing this summary.]

The EAT has handed down its decision in Howes v Hinckley Borough Council, which is authority for the propositions that:

• New Victoria Hospital v Ryan, holding that legal advice privilege does not attach to the advice of employment consultants, remains good law (para 30)
• New Victoria could, in theory, be extended so that qualified solicitors who do not hold themselves out as acting in the capacity of a solicitor (e.g. where part of a firm of employment consultants) may find that privilege does not attach to their advice (although the hurdle of holding themselves out may not be much to get over) (para 32)
• where a document was obtained to both determine a grievance and in case of any future legal proceedings, litigation privilege would not apply to it if the subsequent litigation was not shown to be the dominant purpose of the advice. (para 42)

Statutory Grievance Procedure

The EAT has held that a statutory grievance is still a statutory grievance, even when the grievance itself states that it is not.

The Claimant presented a grievance which expressly stated that it was informal, and that a failure to address it would result in a formal grievance, under the 2004 Regulations, being lodged. This never happened

The EAT held that the letter was nevertheless a valid grievance under the Employment Act 2002. Elias P stated that "The issue is not whether the grievance lodged is stated to be a statutory grievance. The only question is whether it satisfies the requirements laid down for a Step 1 grievance letter. This merely requires that the grievance is set out in writing and sent to the employer. That has been done. We do not see that the classification placed on it by [Mr Procek] can affect that conclusion."

Countering the argument that it would be unfair on the employer to face a statutory uplift in compensation when he did not realise that the grievance (which he ignored) was a "statutory grievance", the President pointed out that the tribunal had a discretion under s31(4) of the 2002 Act to conclude that it would not be "just and equitable" to apply any uplift.

Procek v Oakford Farms Ltd

Thanks to www.emplaw.co.uk, for giving me permission to use this abridged version of their own summary

Time-Limits

In Beasley v National Grid (bulletin 7/8/2007), the EAT upheld a tribunal's decision that an ET1 presented 88 seconds out of time was too late.

The Court of Appeal has just upheld the EAT's decision (see here). Commenting at paragraph 12 that "There is no grey area for complaints which are only a bit out of time", Tuckey LJ refused the Claimant permission to appeal and dismissed his claim.

Dispute Resolution (and other) Consultations

The government has published its consultation paper seeking views on amendments to the dispute resolution and other employment law matters.

The matters under consultation include:-

• extending the definition of a 'relevant advisor' who can sign off a compromise agreement (to include CIPD members);
• changing the current position on interest accruing on tribunal awards;
• broader powers for tribunals to make recommendations in discrimination cases;
• introducing a procedure for chairman to make decisions on the papers only, without a hearing, in
• certain jurisdictions (with the parties' consent);
• adding Holiday Pay to the list of jurisdictions normally heard by a chairman sitting alone;
• clarifying the 'withdrawal' and 'dismissal' provisions of rule 25;
• revised ET1 and ET3 forms;
• transitional provisions for the abolition of the statutory dismissal and grievance procedures.

The closing date for responses to the Consultation Paper is 26 September 2008.

Positive Discrimination

Harriet Harman (Equality Minister) has, this morning, announced that the forthcoming Equalities Bill will permit positive discrimination on grounds of sex and race. Details on the BBC website.

It will also, according to the Sky News website, force employers to reveal salary structures to make the pay gap between men and women clearer.

House of Lords overhauls approach in Disability Discrimination Cases

The House of Lords has, yesterday, handed down a judgment overhauling the approach taken in disability discrimination cases.

Whilst in the context of a housing case, it has substantial ramifications for employment practitioners.The speeches all consider the meaning of (what is now) s3A of the DDA 1995, in particular the phrase "a person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply".

By a 4:1 majority (Baroness Hale dissenting on most points), the House held:-

• a person can only be liable for discrimination if they know that the individual is disabled
  
• 'a reason which relates to the disabled person's disability' has to be construed narrowly. So, for example, if an employer dismisses somebody for being off work sick for a year, then the reason is the absence from work, and not one that relates to the underlying disability itself - which means the employer will not be liable under the DDA
  
• the correct comparator is somebody to whom the underlying reason still applies. So, in the above example, the comparator would be someone who was absent for a year but was not disabled.

In so holding, the House of Lords held that Clark v Novacold was wrongly decided by the Court of Appeal.It's a complicated decision and needs careful thought. But it is clear that the impact of this decision will be to make it much harder for a Claimant to succeed in a claim of disability discrimination.

London Borough of Lewisham v Malcolm

Government to review no-win, no-fee funding

The Ministry of Justice has, this afternoon, announced a review of no-win, no-fee funding in employment (as well as personal injury and defamation) cases.

Stating that "we are aware of growing concerns that they may not always be operating in the interests of access to justice", the Minister of Justice has stated that the review is expected to conclude in the autumn.

See the full press release.

Garden Leave and Implied Terms

The High Court, in SG&R Valuation Service v Boudrais, has held that an employer will sometimes be entitled to force garden leave onto senior directors even when there is no such right in the contract.

In this case, two directors resigned with the intention of joining the competition. There was strong evidence of an intention to misappropriate confidential information. The employer insisted on a period of garden leave, so as to delay the date when they joined their new employer, and sought an injunction enforcing this The employees resisted on the grounds there was no garden leave clause, they had a right to work, and that by not providing work the old employer was in breach of contract - entitling them to leave and go elsewhere.

The court held that the implied right to provide work is subject to the qualification that they have not, as a result of some prior breach of contract or other duty, "rendered it impossible or reasonably impracticable for the employer to provide work" (para 24). As there was a prima facie case on the documentary evidence that the directors had done just that, the judge held that they had no right to be provided with work by the old employer, and so the employer could insist on a period of garden leave. The injunction was granted.

Garden Leave and Implied Terms

The High Court, in SG&R Valuation Service v Boudrais, has held that an employer will sometimes be entitled to force garden leave onto senior directors even when there is no such right in the contract.

In this case, two directors resigned with the intention of joining the competition. There was strong evidence of an intention to misappropriate confidential information. The employer insisted on a period of garden leave, so as to delay the date when they joined their new employer, and sought an injunction enforcing this The employees resisted on the grounds there was no garden leave clause, they had a right to work, and that by not providing work the old employer was in breach of contract - entitling them to leave and go elsewhere.

The court held that the implied right to provide work is subject to the qualification that they have not, as a result of some prior breach of contract or other duty, "rendered it impossible or reasonably impracticable for the employer to provide work" (para 24). As there was a prima facie case on the documentary evidence that the directors had done just that, the judge held that they had no right to be provided with work by the old employer, and so the employer could insist on a period of garden leave. The injunction was granted.

ELISE: new employment law resource

I've been asked by www.emplaw.co.uk to mention their new search engine, ELISE.

I've been using it for a couple of weeks, and it's fabulous; it scans all the relevant employment law sources and (in my view) knocks spots off all other search engines. Best of all, if you type your (or your firm's) name in, and select EAT and Court of Appeal cases, you can find out exactly how many cases you've been in!!

You can see a video demo, and try it out for free, here. There is free access until 24th June - use username elise and password trial.

(and just in case anyone thinks otherwise, this is a real recommendation and not a paid advertisement!)

Daniel Barnett

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.