Agreement on Holiday Dates overrides Statutory Rules

In Industry & Commerce Maintenance v Briffa, the employer gave Mr Briffa one week's notice of termination of his employment. It required him to take 4 days holiday in his last week to use up his outstanding entitlement.

An employment tribunal held that the employer was in breach of Working Time Regulations 1998 Reg 15 which requires that an employer must give notice of holiday dates "double the amount of time to be taken". Since Mr Briffa was not given 8 days notice of his holiday, taking it could not legally be required of him. He was awarded 4 days' pay in lieu of the 4 days' holiday.

The EAT allowed the employer's appeal. The original tribunal had totally overlooked that the basic requirement in WTR Reg 15 can be varied or excluded by a "relevant agreement". In this case there was a contractual term which covered the position and was legally enforceable between the parties. This was a "relevant agreement" under Reg 2 and it overrode Reg 15.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]

Claimant's Companion to Tribunal Claims

I've just come across a fabulous guide (mentioned on Naomi Cunningham's blog) written by Tamara Lewis of the Central London Law Centre, called The Claimant's Companion. It's a very practical, common-sense booklet for claimants in employment tribunals, which will help guide them through the process.

It is, needless to say, something to hand out to clients as a support guide and is not intended as a subtitute for lawyers!

Merrill Lynch & Lehman Brothers

A newsflash which will affect many employment law practitioners with claims against the big investment banks...

This morning in the US, Lehman Brothers announced it was filing for Chapter 11 bankruptcy, and Merrill Lynch have announced they are being purchased by Bank of America (for about 20% of the price their shares reached last year).

See New York Times Online for more information.

New President of EAT Announced

Just in case anyone missed the announcement over the summer, Mr Justice Underhill has been announced as the next President of the EAT. He takes over from Elias P. with effect from January 2009.

Approach to Calculating Compensation

In Adey-Jones v O'Dowd, the EAT has considered the approach to calculating a compensatory award.

Mrs O'Dowd worked in a care home run by Mrs Adey-Jones. A police investigation and internal disciplinary proceedings into suggestions that she was stealing from a patient led to Mrs O'Dowd being dismissed. Mrs O'Dowd denied the allegations and none of them were ever proved. She found new work (at lower pay) but soon became ill and had to leave that job as well.

An employment tribunal found the dismissal unfair. Awarding compensation for loss of future earnings, it concluded that the dismissal process was at least one cause of her illness, and thus included a sum to fully cover Mrs O'Dowd's losses during her sick absence. On this remedies point Mrs Adey-Jones appealed.

The EAT allowed the appeal and remitted the matter back to the same tribunal for further consideration.

HHJ Serota noted that Mrs O'Dowd's illness started some 20 weeks after dismissal, and there were ongoing investigations by the police and the local council. This must all be taken into consideration "in determining whether it could be said that it was sufficiently caused by the actions of [Mrs Adey-Jones] as would justify a finding that [she] was responsible for the illness and consequently for the loss of earnings...". Furthermore there should not be an 'all-or-nothing approach' but one that takes into account the percentage to which the employer's actions are responsible for the illness as against the other factors.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]

Flexible Working Consultation

The government has, this morning, launched a consultation to extend / revamp the right to request flexible working. The consultation will cover:

• extending the right to request contract variations to parents with children under 16 (it is currently parents of children under 6)
• methods of raising awareness of the right to request flexible working amongst the workforce;
• methods of making it easier for employers to deal with requests.

The consultation document is meant to be here, but the link isn't currently working. So, if you're interested, try the Press Release instead.

[Thanks to Eugenie Verney for telling me about this]

Restrictive Covenants Enforceable

The QBD has handed down judgment in Kynixa Ltd v Hines, a restrictive covenant case.

Mr Hynes, Ms Preston and Ms Smith worked for Kynixa. All three left and went to work for a separate organisation with which Kynixia had dealings. None of the three warned Kynixa that this was where they were going to work and it was some time later before Kynixia discovered what had happened.

In the High Court Wyn Williams J held that given the senior positions they held, all three employees were in breach of their fiduciary duties. Two were also in breach of restrictive covenants contained within a shareholders' agreement. The question, then, was whether these restrictive covenants were enforceable. They purported to bind the employees for 12 months after they ceased connections with Kynixia. It was argued that this was too long a period.

At paragraphs 130 - 141 of his judgment Wyn Williams J set out a detailed analysis of the law on restrictive covenants. He then concluded that in all the circumstances 12 months was a reasonable period and that, although the restrictive covenants were very wide, even so they were reasonable and enforceable.

[Thanks to www.emplaw.co.uk for giving permission to use their summary of this case.]

Crack down on rogue employers

A new Government drive to crack down on rogue employers who abuse vulnerable workers and undercut honest businesses is unveiled today.

The strategy includes a single telephone helpline for vulnerable workers to report abuses to the Government's workplace enforcement agencies, breaking down barriers so agencies can share vital information to catch rogue employers and a £6 million information campaign to raise awareness of employment rights and how to enforce them.

This initiative will be overseen by a new Fair Employment Enforcement Board which will co-ordinate the work of the government enforcement agencies covering minimum wage, health and safety, employment agencies and gangmasters. The new Board will be chaired by the Employment Relations Minister and will include representatives from business and trade unions, as well as the enforcement agencies.

More details here.

[Thanks to Eugenie Verney for telling me about this]

Equal Pay

[Thanks to Rachel Crasnow of Cloisters for being the first to tell me about this case, and to www.emplaw.co.uk for allowing me to reproduce their summary.]

This is the long and complex decision of the Court of Appeal in Redcar v Cleveland BC; Surtees v Middlesborough BC on the questions of pay protection and objective justification in the long-running equal pay claims against local authority employers in the North East. Mummery LJ gave the decision of the whole court. A thumbnail such as this cannot even begin to cover it, given that it runs to 318 paragraphs addressing six separate issues.

Points of general relevance in the judgment include:

• the employer's knowledge and intentions when putting arrangements such as the pay protection schemes in these cases into place are relevant when considering justification but are not relevant when considering the essential preliminary question of whether there has been discrimination.
• although the Court of Appeal ruled that on the facts Middlesborough and Redcar Councils were both "guilty" of unjustified sex discrimination, it also made it clear that in principle a sex discriminatory pay protection scheme can be capable of being justified;
• whether discrimination is justified depends on findings of fact by the original tribunal and therefore, unless perverse, cannot be overturned on appeal. At the heart of the decision is the dismissal of Redcar's appeal and the granting of Ms Surtees' appeal on the questions of the Genuine Material Factor (GMF) defence and objective justification.

In the Redcar case, the EAT had agreed with the original tribunal that Redcar's attempts at pay protection were sex tainted and so could not amount to a GMF defence - "The council can surely not pray in aid its own failure to implement equality as a justification for defeating it. It would frustrate the fundamental principle of equality to deny them benefits which, as everyone accepted, they were legally entitled to receive...". The Court of Appeal agreed, and dismissed Redcar's appeal as the EAT had done.

In the Surtees case, the EAT had come to a different conclusion. Overturning the original tribunal decision, the EAT concluded that Middlesbrough's pay protection scheme was discriminatory but that the discrimination was objectively justifiable. The Court of Appeal held that the EAT had had no grounds to interfere with the original tribunal's findings. Objective justification is to be decided upon by the original tribunal - "The findings of fact which underlie the evaluation are matters for the [original tribunal] and can be overturned only on conventional perversity grounds". Perversity did not apply here and so the EAT had no right to interfere. Ms Surtees' appeal therefore succeeded and the orginal tribunal's decision, that the discrimination in pay was not objectively justified, was restored.

Statutory Dismissal Procedure: Unreasonable Delay

The Court of Appeal has today overturned a line of EAT authorities on whether unreasonable delay in the statutory dismissal procedures makes the dismissal automatically unfair.

In Selvarajan v Wilmot, the employer took about four months to deal with the appeal against dismissal.

The Court of Appeal held, contrary to a line of EAT authorities, that unreasonable delay did not make the dismissal automatically unfair, as the statutory procedure had been "completed". Therefore - despite the delay - it could not be said that the procedure had "not been completed" under ERA 1996, s98A(1).

[Thanks to Joanne Woodward of 9 St John Street Chambers and Joanne Martin of Davies Arnold Cooper, both of whom acted for the successful employer, for telling me about this case]

Equality Bill

The government has published its response to the consultation on the Equality Bill. It's long - 203 pages - but an executive summary appears between pages 4 and 12.

Download Response document (large .pdf file)

[Thanks to Gaby Charing, policy advisor at the Law Society, for telling me about this]

Tribunals Service Annual Report 2007-2008

The Tribunals Service has issued its Annual Report (note: this is all tribunals, not just employment tribunals).

Key figures:

• the number of ET applications received were 189,300 - 42% higher than expected due to the number of multiple claims
• 86,237 claims were disposed of
• 79% of employment tribunal cases were heard within six months of receipt (beating the target of 75%)
• 88% of written decisions were issued within four weeks of the hearing

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.