Costs - Important Case

The Court of Appeal has handed down a short supplemental judgment in St Albans' Girl School v Neary (see bulletin 16/11/09) dealing with the School's application for the costs of the Court of Appeal hearing.

The Court of Appeal held that where a Claimant in the employment tribunal "is pitched against his will into a costs-bearing jurisdiction", it would be normally be wrong to make a costs order against him if the appeal is successful.

This is a very different approach to that which the Court of Appeal normally adopts, and it is unclear whether this practice will be followed by subsequent divisions of the Court.

St Albans' Girl School v Neary - supplemental costs judgment

Protection from Harassment Act

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Veakins v Keir Islington Ltd, which is authority for the proposition that ...

In a claim for harassment under the Harassment Act 1997, when deciding whether the conduct complained of constitutes harassment within section 1, the primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which would sustain criminal liability (per Lord Nicholls in Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34).

Although there is nothing in the language of the Act which excludes workplace harassment, Lord Maurice Kay giving the leading speech did not expect that many workplace cases will give rise to liability under the Harassment Act. The Employment Tribunal will more fittingly provide the remedy for the great majority of cases of high-handed and discriminatory conduct.

Veakins, a trainee electrician, gave unchallenged evidence that she was a usually robust woman who had been victimised and demoralised by her supervisor and became clinically depressed. Lord Maurice Kay held that in this unusually one-sided case the proven conduct crossed the line into conduct which is oppressive and unreasonable which he considered would, in the event of a prosecution, be sufficient to establish criminal liability.

TUPE - Failure to Consult

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (HHJ Peter Clark) has handed down its decision in Cable Realisations v GMB , which is authority for the proposition that:

• in a TUPE transfer, the obligation to inform affected employees is a discrete obligation which arises even if no measures are contemplated in relation to the transfer;
  
• in setting a protective award for a breach of Regulation 13 TUPE, applying Susie Radin (a redundancy consultation case) the size of the protective award should reflect the justice of the case; and,
  
• on the facts, an award of three weeks pay per affected employee, appealed by both sides, was "like baby bear's porridge,... just right".

Accordingly, employers who make a porridge of their Regulation 13 obligations do not automatically face a compensation (honey) pot of 13 weeks' pay per affected employee. The EAT also remarked that the provision of information is designed to facilitate informed consultation, whether or not it is obligatory.

Religious Belief Discrimination

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (Underhill P) has handed down its decision in McFarlane v Relate, which is authority for the proposition that:-

• following Ladele (the Registrar case), dismissing a Christian who was a relationship counsellor required to counsel same-sex couples about their sex lives when he equivocated about conforming to that requirement, was not direct discrimination, as it arose from a manifestation of belief rather than the belief itself
  
  
• indirect discrimination was justified since the employer had the legitimate aim of providing services equally to all users, achieved by requiring staff to participate in the provision of services, even if that conflicted their with religious beliefs
  
  
• this type of dismissal can be fair for conduct or SOSR, but the EAT deprecated the increasing tendency of employers to dismiss on grounds of 'loss of trust and confidence', when the concept of trust and confidence is a constructive dismissal - not really an actual dismissal - concept.
  
  

The EAT decided the appeal with the parties' consent despite the pending Court of Appeal Judgment in Ladele.

Evening Sessions for Employment Tribunals

The Tribunals Service has started a six-month pilot scheme, with Stratford and Cardiff tribunals sitting between 6pm and 8pm to hear straightforward claims involving a judge sitting without members (such as unpaid wages claims).

Clearly there are implications for those with childcare responsibilities, and it is hoped that both parties need to consent to an evening slot (the precise details of the scheme are not published, although you can see a summary press release).

But well done to the Tribunals Service - it's a fabulous idea, and means that people might not need to take a day off work to attend the tribunal for straightforward claims.

Sky News: Bank Charges and the Supreme Court

Live interview with Sky News this morning as the Supreme Court handed down its judgment in Office of Fair Trading v Abbey National & ors. The Supreme Court held that unauthorised overdraft charges made by banks fell outside the provisions of the Unfair Terms in Consumer Contract Regulations 1999. Watch the interview here:

That was followed by an interview about the new Supreme Court, its constitutional position and the difference between it and the (old) House of Lords. Watch the interview here:

Age Discrimination

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The EAT (Underhill P) has handed down its decision in ABN Amro v Hogben , which is authority for the proposition that:-

• where an application is made to strike out a claim for age discrimination on the grounds that it has no reasonable prospects of success, in refusing that application the tribunal is wrong to attach any weight to the possibility that evidence in support of the age discrimination claim may be adduced through cross-examination of witnesses at the substantive hearing, where there is no material before the tribunal to support that possibility.
  
  
• where an employer introduces a change from one substantive PCP, to another substantive PCP, and the employees to whom the earlier PCP applied have a different age profile from those dealt with under the new PCP, the change itself cannot be described as constituting a PCP.
  
  
• (expressed as obiter) where the claimant makes a complaint that a redundancy scheme discriminates against younger employees, what has to be justified by the employer is the feature of the scheme which impacts on the claimant. If that feature can be justified the fact that the scheme has other features which may discriminate against other age groups is immaterial unless the employer attempts to justify the scheme by relying on those other features. In those circumstances whether or not those other features are discriminatory may become relevant
  
  
• the practice of offering an enhanced redundancy payment in return for an agreement not to pursue any age discrimination claim did not place persons of the same age group as the claimant at a particular disadvantage when compared with other persons. The practice affected all dismissed employees in the same way. Even if a discriminatory impact could be made out the practice would be plainly justified because employers have a legitimate interest in achieving finality as regards all issues arising out the dismissal and the practice was a proportionate means of achieving that aim.

Retirement: Employment Judge Colin Sara

Employment Judge Colin Sara, who has sat as a salaried employment judge in Bristol for over 20 years, retired last week.

There will be a valedictory address this coming Friday (27th November) at the Bristol tribunal at 2.30pm for all those of us who wish to bid him a happy retirement. Everyone welcome.

Breaking News: Queen's Speech

As widely anticipated, the Queen's Speech includes provisions limiting bankers' bonuses. The Financial Services and Business Bill will "control the system of rewards" in the finance sector.

The Queen also announced a Bill to allow agency workers to be paid equally to permanent staff, including giving agency workers equality on issues such as holiday pay.


Details will doubtless be available shortly on the BBC News website.

Territorial Jurisdiction

[Thanks to Paul Lewis of St John's Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Diggins v Condor Marine , which is authority for the proposition that an employee who works on a ship which is not registered in a British port may still claim unfair dismissal provided he can establish the necessary link with the UK.

At the heart of the case was a Suffolk based seaman who worked fortnightly shifts on board a ship trading between the Channel Islands and Portsmouth. The vessel was registered in Nassau, the company based in Guernsey. The company appealed against the decision of the EAT that:

(a) the tribunal did in principle have jurisdiction to hear a claim for unfair dismissal and
(b) that the relevant conditions necessary to satisfy the exercise of that jurisdiction existed in this case.

Reaffirming the approach espoused by the House of Lords in Serco, Elias LJ emphasised the key question is not where the employer is based, but where the employee is based; an employee is based where his duty begins and where it ends. On that basis, the Court of Appeal unanimously rejected the appeal allowing the unfair dismissal claim to proceed.

Relief from Sanctions

[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]

The Court of Appeal has handed down its decision in The Governing Body of St Albans Girls' School v Neary, which is authority for the proposition that an employment judge considering an application for review of a sanction is not under an obligation to expressly consider each of the potentially relevant factors set out in CPR 3.9 (overturning the EAT's decision). It should be inferred that Parliament deliberately did not incorporate CPR 3.9 into employment tribunal practice.

In considering an application for relief from sanctions, the employment judge must make clear the facts that he has regarded as relevant and say enough for the reason for his decision to be understood by a person who knows the background. Where the sanction of strike-out has been imposed, the judge must show that he has weighed the factors affecting proportionality and reached a tenable decision about it. He need not use any particular form of words, but it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just.

Previous EAT authorities requiring an employment judge to take into account all CPR 3.9 factors are no longer good law.

Compensation

[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]

The Court of Appeal has handed down its decision in Chaggers v Abbey National, which is authority for the following propositions:

• in a discriminatory dismissal case, it is proper for a tribunal to reduce compensation to reflect the chance that the claimant would have been dismissed lawfully in any event.
  
  
• the dismissing employer remains liable for 'stigma loss', if other employers are unwilling to offer employment because the claimant has previously brought proceedings. This will usually feature in the normal loss of earnings calculation of how long it will be before another job can be found. But in exceptional cases, stigma loss might form the only head of future loss, e.g. where the claimant would definitely have been dismissed in any event. In such cases, an employment tribunal might make an award of future loss for a specific period attributable to the stigma, or a modest lump sum might be more appropriate (similar to a Smith v Manchester award in personal injury cases).
  
  
• the level of compensation is in itself capable of being an exceptional circumstance within s31(4) EA 2002 entitling an employment tribunal to reduce the uplift below what would otherwise be the minimum of 10%.

[Thanks also to John Bowers QC of Littleton Chambers, who represented the employee, for telling me about the case]

Disability Discrimination: Reasonable Adjustments

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

Section 4A(3) of the Disability Discrimination Act 1995 states that employers do not need to make reasonable adjustments in certain circumstances.

The EAT has, this week, handed down its decision in DWP v Alam, which is authority for the proposition that two questions arise when deciding whether s4A(3) applies:

1. did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?
   
   
2. if not, ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?

The employer will be exempt from any duty to make reasonable adjustments if both those questions are answered in the negative.

Eastern and Coastal Kent PCT v Grey (see archive) is not, as previously thought, authority for the proposition that the requirements of section 4A(3)(b) must be interpreted cumulatively. If the employer could not reasonably have been expected to know that an employee's disability would have the effect in section 4A(1), no duty to make reasonable adjustments arises.

[Thanks also to George Branchflower, who successfully represented for the employer, for telling about this case]

Whistleblowing: Meaning of 'Disclose Information'

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT (Slade J) has handed down its decision in Cavendish Munro v Geduld, which is authority for the proposition that:-

• to make a protected disclosure it is necessary to disclose information about a situation, i.e. by conveying facts. It is not enough to make an allegation. The EAT illustrated the distinction by hypothetical examples in a hospital scenario: 'The wards have not been cleaned for the past two weeks' discloses information; whereas saying 'You are not complying with Health and Safety legislation' is an allegation.
  
  
• there is a distinction between 'disclosing' and 'communicating' information even though a disclosure can be made to a person already aware of information.

On the facts, the common scenario of a letter from the claimant's solicitor to the respondent complaining about his treatment - and provoking his dismissal - did not contain a disclosure, and therefore there was no protected disclosure.

Volunteers not covered by Disability Discrimination Act

[Thanks to Will Dobson of Cloisters for preparing this case summary]

X v Mid-Sussex CAB is authority for the proposition that 'volunteers' (such as unpaid charity or CAB workers) are not protected by the Disability Discrimination Act or the EU Framework Directive.

The Claimant was a volunteer part time advisor at the CAB. She had no contract. She left in circumstances which she alleged amounted to discrimination on grounds of her disability. She argued she was protected by the EU Directive, and that the DDA should be 'read down' to provide that protection.

Burton J, in the EAT, held that her claim should be struck out. He held "employment" in the Directive requires a material contract between the parties. He observed there was no jurisprudence to suggest that "occupation" meant unpaid employment; also, that the Directive offered protection only in relation to "access" to occupation. He held the Directive was not intended to protect volunteers in the Claimant's position and declined to make a reference to the ECJ on the point.

Discrimination: Philosophical Belief

[Thanks to John Bowers QC, who represented the employer, for telling me this judgment had been handed down]

The Employment Appeal Tribunal (Burton J sitting alone) has held in Grainger plc v Nicholson that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable of being a 'philosophical belief' for the purpose of the Employment Equality (Religion or Belief) Regulations 2003.

Guidelines as to what constitutes a 'philosophical belief' are set out at paragraph 24, which I recommend reading. Paragraphs 26-31 are also worth reading in this extremely interesting judgment.

Age Discrimination / Pay Protection

[Thanks to Kathleen Donnolly of Henderson Chambers for providing this case summary]

The EAT (Underhill P) has handed down its decision in Pulham v London Borough of Barking, an age discrimination / pay protection case, which is authority for the following propositions:

• in assessing justifiability, a tribunal is entitled to have regard to the fact that a discriminatory measure was negotiated with the unions, but a tribunal cannot abdicate the responsibility of itself carrying out the necessary proportionality exercise.
  
  
• the size of relevant budgets is a useful benchmark, but cannot be determinative: an employer cannot justify a failure to eliminate discrimination by allocating the costs of doing so to a particular budget and simply declaring that budget to be exhausted.
  
  
• parties should ensure that tribunals are given sufficient information about both (a) the discriminatory impact of a particular measure on claimants and; (b) the alleged costs and the financial background against which the affordability of those costs falls to be judged.

Associative Discrimination

[Thanks to Will Dobson of Cloisters for writing this summary]

The EAT has, this morning, given another important and far reaching judgment in the long running case of Attridge Law v Coleman.

It will be recalled that the ECJ held associative discrimination is proscribed by Directive 2000/78 EC (see previous bulletins). After the ECJ’s judgment, the tribunal was persuaded to interpolate words into s.3A(5) and 3B of the DDA to outlaw associative discrimination. EBR Attridge Law LLP appealed, on the basis that the tribunal had “distorted and rewritten” the DDA; also, that until the time for compliance with the Directive had expired in December 2006 the Courts had no Marleasing duty to interpret domestic law.

Underhill P upheld the tribunal’s decision. In so doing, he followed the approach to interpolation in Ghaidan v. Godin-Mendoza (2004), in the context of s.3(1) of the HRA.
Of striking significance is the extent of interpolations Underhill P makes. He adds a new s.3A(5A):

3A(5A) A person also discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person.

Also, a new sub-section (3) to s. 3B:

(3) A person also subjects a person (A) to harassment where, for a reason which relates to the disability of another person (B), he engages in unwanted conduct which has the purpose or effect of—
(a) violating A's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
Sub-section (2) applies to this sub-section, save that the relevant perception is that of A.

Underhill P also holds that the Courts’ Marleasing obligations bit at the moment the Regulations implementing the Directive came into force in 2004, (rather than when the deadline for implementation expired in December 2006).

Default Retirement Age: Consultation

The government has asked businesses and individuals to submit evidence on the default retirement age, to feed into the review taking place next year.

The evidence requested includes:-

• the operation of the default retirement age in practice;
• the reasons that businesses use mandatory retirement ages;
• the impacts on businesses, individuals and the economy of raising or removing the default retirement age;
• the experience of businesses operating without a default retirement age;
• how could any costs of raising or removing the DRA be mitigated

More details here.

Protective Costs Orders

[Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary]

The Court of Appeal has handed down its judgment in Eweida v British Airways, deciding that a protective costs order is not available in private litigation.

The appellant claimed discrimination on grounds of religion, and harassment, following a decision by British Airways that she could not wear a visible cross with her uniform. She was unsuccessful in the employment tribunal and EAT. She wished to appeal to the Court of Appeal but sought a Protective Costs Order ('PCO') to protect her against having to pay the respondent's costs if her appeal was unsuccessful.

The Court of Appeal unanimously held that such orders are only available in public litigation. While the appellant's claim concerned issues of general importance, it was a claim by an employee against her employer for her personal benefit and did not therefore come within the governing principles for PCOs outlined within R(Corner House Research) v Secretary of State for Trade and Industry (2005), which relate to protecting litigants raising issues of public interest who would not be able to pursue their claim but for the PCO.