Disability Discrimination

[Thanks to Anna Thomas of Devereux Chambers for providing this case summary]

The case of Aitken v Commissioner of Police of the Metropolis is authority for the proposition that treatment on the basis of a mistaken perception that an employee is suffering from a particular disability does not fall within the definition of direct disability or disability-related discrimination.

In this case a police officer (who suffered from OCD) contended that, following the ECJ's reasoning in Attridge Law LLP v Coleman, s3 Disability Discrimination Act should be interpreted so as to include discrimination on the grounds of perceived disability. The EAT disagreed. Slade J held:

• the case was not one in which the Respondent acted on the basis of an assumption that the claimant had a dangerous mental illness; rather the Respondent acted on the basis of how the Claimant presented himself
  
  
• in any event the words of section s3 DDA ['...the disabled person's disability '] are distinguishable from those used in other discrimination statutes which do not relate the relevant characteristic to the complainant
  
  
• DDA requires an actual disability albeit, since Coleman, the actual disability of a person related to the complainant

Equality Act 2010 - implementation

Q. How do you make the switchboard at the Government Equalities Office go mad?

A. Send out a bulletin pointing out that the implementation date for the Equality Act 2010 has been removed from the GEO website.

Apparently the GEO has been inundated with requests for more information. And they've helpfully provided it. Deidre Wright, professional support lawyer at Shepherd and Wedderburn LLP, tells me that the GEO has announced, on its Latest News

page, that:

"The provisions in the Equality Act will come into force at different times to allow time for the people and organisations affected by the new laws to prepare for them. The Government is currently considering how the different provisions will be commenced so that the Act is implemented in an effective and proportionate way. In the meantime, the Government Equalities Office continues to work on the basis of the previously announced timetable, which envisaged commencement of the Act's core provisions in October 2010."

Daniel Barnett

Statutory Grievance Procedure

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

The EAT (Cox J) has handed down its decision in Reddy v Bedfordshire NHS Trust , which is authority for the proposition that the requirement in regulation 9(1)(a) of the Dispute Resolution Regulations 2004 that a person who is an appropriate representative of the employee having the grievance has "written to the employer setting out the grievance" was satisfied where the grievance was not sent directly to the employer but was forwarded on by a third party.

The Claimants' union representative sought to raise a collective grievance regarding equal pay. The union representative sent the grievance by email to Bedfordshire County Council, but in error did not succeed in sending it to the employer (Bedfordshire and Luton Partnership NHS Trust) although she had sought to copy the employer in to the email.

The Council forwarded the grievance to the Trust. The tribunal concluded that regulation 9(1)(a) required the Claimants' representative to send the grievance to the employer, and it was not sufficient that the employer had received the grievance indirectly.

The EAT, stressing the importance of focusing on substance rather than technicality, concluded that the tribunal had erred in requiring that regulation 9(1)(a) demanded that the grievance should have been sent to the employer directly, in circumstances where the employer had in fact received the grievance.

Equality Act 2010 - implementation

Damian McCarthy of Cloisters has pointed out that the Government Equality Office has removed the implementation dates for the Equality Act 2010 from its website.

It may be that parts of the Act are no longer being implemented in October as anticipated, or that the Act is being put out to pasture. Or we could all be reading too much into it!

Definition of Disability

[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The EAT (Underhill P presiding) has handed down judgment in J v DLA Piper UK LLP, where the EAT had to consider closely the definition of 'disability' for mental impairments within the meaning of the DDA. It stated:-

• A GP is fully qualified to express an opinion on whether a patient is suffering from depression;
• it remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it); but
• the tribunal should not proceed by rigid consecutive stages; if there is a dispute about the existence of an impairment, it will make sense to start with the question of whether a claimant's ability to carry out normal day-to-day activities is adversely affected.

The EAT added that there is a technical difference between 'depression' and a reaction to adverse life events; in practice little turns on the distinction because tribunals are concerned with the impact of any symptoms on day-to-day activities, and the clinical label applied (if any) was of little relevance under the statutory test.

Conditional Resignations

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The EAT (HHJ Pugsley) has handed down its decision in Heaven v Whitbread Group, which is authority for the proposition that, as the effective date of termination is a statutory construct, the date of termination in a 'conditional resignation' claim depends on what happened between the parties. Their wishes, or subsequent agreement as to a different date, are irrelevant (applying Fitzgerald v University of Kent [2004] EWCA Civ 143).

Thus, even though the Claimant had later stated that his resignation should be effective from the date of his conditional letter of resignation, the statutory date of termination still ran from when he confirmed his intention to resign several days later. This meant that the Tribunal had erred in finding that his claim had been brought out of time.

Statutory Disciplinary and Dismissal Procedures

[Thanks to Claire Darwin of Matrix Chambers for providing this case summary]

In Ngo Mbog v Whitbread Group Plc, the EAT (HHJ Hand QC) was asked to decide the meaning of the words "substance of the Tribunal complaint" in Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The employee in this case presented two ET1s. The first ET1 complained only of unfair dismissal pursuant to s94 and s98 of the Employment Rights Act 1996. The second ET1, presented approximately a month later, complained that the same dismissal was contrary to the Race Relations Act 1976. The EAT held that both ET1s relied on more or less the same factual matrix.

Both ET1s were presented out of time, and the employee sought to rely on Regulation 15 to extend time.

The employee had pursued an internal appeal in relation to her unfair dismissal complaint. This was concluded before the primary limitation period expired. She had also complained by way of the employer's grievance procedure that her dismissal was discriminatory. This procedure was ongoing at the time of the expiry of the primary limitation period.

East London ET held that the circumstances specified in Regulation 15(2) did not apply to the unfair dismissal complaint, because at the time of the expiry of the primary limitation period, no procedure was being followed in respect of that particular cause of action.

The EAT allowed the appeal by the employee, and held that the words "substance of the complaint" in Regulation 15(2) referred to the factual matrix of the complaint rather than the individual cause of action relied on.

This case serves as yet another reminder that ETs should avoid approaching the question of compliance with the Statutory Procedures in an overly-technical manner.

Fresh Evidence

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

The EAT (Underhill P) has handed down its decision in Adegbuji v Meteor Parking, which is authority for the proposition that the EAT might not have jurisdiction to hear fresh evidence appeals as no error of law arises where a Tribunal makes a decision on the evidence before it. The EAT can only hear appeals on matters of law, not fact.

The President suggested that the proper course for a litigant with fresh evidence is to apply to the Employment Tribunal for a Review under Rule 34 (3) (d), and that in genuine fresh evidence cases, it would normally be just to extend time to hear a Review. Furthermore, an Employment Tribunal will normally be better placed to apply the second and third questions of the Ladd v Marshall test.

The President hoped that fresh evidence appeals would be stayed pending review applications unless pertinent to other issues under appeal.

The appeal against a grievance-related jurisdictional point was dismissed.

Contingency Fee Agreements

[Thanks to Alex Jones of Bunkers Solicitors for telling me about this]

The Law Society has, yesterday, published guidance on the Damages Based Agreement Regulations 2010 which regulate the manner in which solicitors can enter into contingency fee agreements (ie a percentage of the award) in employment claims. Barristers are still prohibited from entering into contingency fee agreements under the Bar Code of Conduct.

The new rules came into force on 9th April 2010, and the Guidance Note can be found here. The Regulations themselves are here.

Breach of Contract Damages

[Thanks to Marcus Pilgerstorfer of Old Square Chambers, who was junior Counsel for the employer, for providing this case summary]

The Court of Appeal (Ward, Lloyd, Moore-Bick LJJ) has today handed down its decision in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571.

This case is authority for the proposition that a doctor, whose contract is terminable on 3 months' notice, but who suffers damage as a result of findings of misconduct leading to dismissal and loss of professional status that were made against him in disciplinary proceedings conducted in breach of a contractual disciplinary procedure, but which would not otherwise have been made, may recover damages at large.

The Court of appeal rejected the employer's argument that damages should, in accordance with Gunton v Richmond-upon-Thames LBC [1980] ICR 755, be limited to damages over the contractual period of notice plus the time it would have taken for a contractually compliant disciplinary procedure to have been carried out.

In reaching those conclusions, the Court held that:

(a) Comments in Johnson v Unisys properly understood did not require the result contended for by the employer (§23, §27), and the provisions of the Employment Rights Act 1996 did not take away rights enjoyed at common law or under contract (§38).

(b) The decision in Gunton supported Mr Edwards' case because "the decision in that case can be explained only on the basis that the employee had a contractual right to have the benefit of the agreed disciplinary procedure before he was dismissed" (§26, §40). Breach of the express term relied on by Mr Edwards gives rise to the normal contractual remedies: had he acted in time, he could have obtained an injunction (§50).

(c) In Skidmore v Dartford and Gravesham NHS Trust Lord Steyn held at §15 that: "The trust is entitled to decide what disciplinary route should be followed. That decision must, however, comply with the terms of the contract. If a non-conforming decision is taken and acted upon, there is a breach of contract resulting in the usual remedies".

(d) The reasoning of Slade J in Botham v Ministry of Defence was not correct (§42, §53).

The Respondent is seeking permission to appeal to the Supreme Court.

'Without Prejudice' Communications

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The EAT (HHJ Richardson) has handed down its decision in Woodward v Santander, which is authority for the proposition that the exception to the 'without prejudice' rule where there has been 'unambiguous impropriety' only applies in the very clearest of cases.

The without prejudice rule renders inadmissible in subsequent litigation evidence of all negotiations 'genuinely aimed at settlement whether oral or in writing' subject to certain limited exceptions. It had been argued that the case of BNP Paribas v Mezzotero [2004] IRLR 508 created a new and wider exception to this rule where discrimination is alleged.

However, the EAT rejected this submission, finding that the rule should be construed very narrowly. Thus, applying the leading authorities, the exception would only operate where without prejudice discussions would act as a cloak for perjury, blackmail or other clear and unambiguous impropriety regardless of the nature of the dispute.

Statutory Dispute Resolution Uplifts

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT (Underhill P) has handed down its decision in Lawless v Print Plus, which is authority for the proposition that, in choosing the size of the uplift for a failure to follow a proper disciplinary procedure, the relevant factors to be considered by a tribunal include:

(a) whether the procedures were ignored altogether or applied to
some extent

(b) whether the failure to comply with the procedures was deliberate
or inadvertent

(c) whether there are circumstances which may mitigate the
blameworthiness of the failure

The size and resources of the employer are also, in principle, capable of being relevant.

Equal Pay

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The EAT (Lady Smith) has handed down its decision in City of Edinburgh v Wilkinson & ors, which is authority for the proposition that white collar Claimants (APT & C employees) can bring equal pay claims using bonus-earning manual workers as comparators.

The Council argued that male manual workers were not valid comparators because they were not employed 'at the same establishment'; for example the bin men did not work in schools or on 'common terms and conditions' under s.1(6) of the Equal Pay Act 1970. The ET found in favour of the Claimants on the second point and the Council appealed. There was also a cross-appeal in relation to whether the comparators worked at the same establishment.

On appeal, Lady Smith held that:-

• A council is a single establishment for pay purposes.
• Even if they were not employed at the same establishment, there were common terms and conditions as between the Claimants and the manual workers.
• A broad approach is required when determining the issue of 'same employment' and the definition of 'establishment' and should not be limited to considering whether the work is undertaken at a single geographical location.
• Her own analysis in the Dumfries and Galloway cases was wrong. There is therefore no need to establish, as a fact, that there was a real possibility of the blue-collar comparators being employed at the same establishments as the Claimants.
• The Council should be considered the 'single source' of any unequal pay because they were responsible for setting the pay terms of both the Claimants and the comparators.

Compromise Agreements

[Thanks to John Bowers QC of Littleton Chambers and Stephen Miller of MacRoberts for telling me this decision had been handed down]

It's an employment tribunal rather than appellate case, but sufficiently important to warrant reporting.

McWilliam & Others v Glasgow City Council is the first case to consider the requirements of section 77 of the Sex Discrimination Act 1975. Section 77 sets out the criteria for a valid compromise agreement and in particular the need for the complainant to receive independent advice as to the terms and effect of the proposed contract.

Most importantly, the vice-president of the Scottish employment tribunals, Employment Judge Walker, held that it is not necessary that the advice is such as would allow the complainant to make an informed decision. All that is required is that the complainant is advised what the terms of the compromise agreement are and what they mean. This would include the scope of the claims, what claims are being compromised, how any payment would be treated for tax purposes etc.. This is to be distinguished from an assessment of whether or not the agreement is a 'good deal'.

Other points decided were that:-

• there is no requirement for a claim to be lodged with the ET before it can be compromised
• the solicitors who agreed the compromise agreements were independent even though their fees were paid by the City Council and had attended a meeting at which the logistics for mass advice sessions had been set.

Conduct Dismissals

[Thanks to James Medhurst of Employment Law Advocates for preparing this case summary]

The Court of Appeal has handed down its decision in Salford NHS Trust v Roldan, which is authority for three propositions:-

• the more serious the consequences of dismissal for the employee, the more careful an investigation is required. Thus, in this case, a more careful investigation was needed because the consequence of dismissal was thta the employee would be deported.
• an employer faced with a conflict of evidence between two witnesses is not obliged to believe one employee and to disbelieve the other. If it is unable to resolve the conflict, it is perfectly proper to give the alleged wrongdoer the benefit of the doubt.
• where a tribunal has properly directed itself in accordance with Burchell v British Home Stores, its conclusion should not be overturned unless there is no evidence to support it, or unless it is perverse.

Employment status

[Thanks to Chris Milsom of St Philips Chambers for providing this case summary]

In Leeds City Council v Woodhouse and anr, the Court of Appeal (Smith LJ giving leading judgment) has shed light on the meaning of a "contract worker" as defined in s7 RRA 1976.

W issued a claim of race discrimination against West North Homes Leeds Ltd (WN), Leeds City Council (LCC) and an employee of LCC (C). Following a government initiative to improve the efficiency of running housing operations, the Council founded a series of Arms-Length Management Organisations (ALMOs), one of which was WN. W, together with numerous other staff, transferred under TUPE from LCC to WN. LCC argued, without success, that W had no jurisdiction to bring a race discrimination claim as he was not a "contract worker" as defined under s7.

Whilst this was not a straightforward agency relationship, the Court endorsed the first instance reasoning that the legislation should be broadly constructed (see Harrods Ltd v Remick & Ors [1998] ICR 156). A purposive approach is to be taken given the aim of providing a remedy to victims of discrimination who would otherwise be without one.

Accordingly:-

(a) It is not necessary for a budding "contract worker" to establish a respondent has control or influence over the work he did.

(b) There was no need to show the primary purpose of obligation between the two contracting parties was the supply of labour. WN could not perform its obligations without employing labourers to carry out the work. As such, the supply of workers was pursuant to an obligation under that contract.

(c) Since WN was a wholly owned subsidiary with one client (LCC) everything done by WNs servants was being done not only for WN but for LCC as well.

Going forward, the tribunal is to take a pragmatic view to s7, focussing on the factual nature of the relationships between the parties rather than the written terms of service. Save in the plainest of cases, therefore, the totality of evidence should generally be considered by a fully constituted tribunal; the application of s7 should not be decided as a preliminary issue.

Closed Proceedings

[Thanks to Emma Price of Temple Garden Chambers for providing this case summary]

The Court of Appeal has handed down its Judgment in The Home Office v Tariq , which is authority for the proposition that: 1) an ET has the power to order a closed material procedure; but 2) the Crown must provide an employee and his legal representatives with a gist of the closed material on which it seeks to rely.

It was held that the ET Rules 2004 and the ET (Nat Sec) Rules 2004 did not breach EU law or Article 6 of the ECHR. However, the Home Office had an obligation, arising from the control order cases of A and AF No.3). Lord Justice Kay cited Lord Brown's interpretation (in AF(No.3)) of the impact of Strasbourg decision in A, that a "suspect must always be told sufficient of the case against him to enable him to give 'effective instructions' to the special advocate". That the Secretary of State was not seeking to subject Mr Tariq to a control order but was simply defending a discrimination claim did not mean that A and AF(No.3) did not apply.

The decision may mean the somewhat unpalatable choice open to public authorities is between disclosure of sensitive information and capitulation.

Magnifying Glasses and ET1s

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

The EAT (HHJ Serota) has handed down its decision in May v Greenwich Council, which is authority for the proposition that where part of a claim form is illegible, rather than rejecting the claim altogether, the correct course is for the Employment Tribunal to require a Claimant to provide a more readable copy within a defined period, and if necessary to impose sanctions on his failure to do so.

The Claimant presented an ET1 on the last available date of the 3 month period permitting him to do so, but the form contained some writing which was small and difficult to read. The Employment Tribunal rejected the claim on the ground that the claim form was illegible, effectively leaving the claim time-barred.

Allowing the appeal, the EAT made clear that the Employment Tribunal has no jurisdiction to refuse to accept the claim under rule 3(2) of the Employment Tribunal Rules of Procedure because of partial illegibility where the ET1 contains the required details. In any case, this particular claim form was legible. Per HHJ Serota, a document is only illegible if it is not capable of being read without the need to use a magnifying glass!

Reasonable Adjustments

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT (Cox J) has handed down its decision in Chief Constable of South Yorkshire Police v Jelic , which is authority for the proposition that swapping the role of a disabled employee with that of another employee is capable of being a reasonable adjustment for the purposes of the Disability Discrimination Act 1995 and the Tribunal was entitled to find that such an adjustment ought to have been made. The list of possible adjustments in section 18B(2) of the Act is not exhaustive. There is also no reason why the retirement of an employee on medical grounds and his re-engagement in a new role cannot be a reasonable adjustment although, in this case, the Tribunal had given inadequate reasons for such a finding.

There was no injustice to the Respondent in that proposed adjustments were raised at the "eleventh hour" in circumstances in which there was no objection during the hearing to the Claimant advancing the point, no application was made to recall witnesses and there was nothing to support the submission that there was further evidence that the Respondent would have wished to adduce. Any evidential disadvantage to the Respondent arose from its own failure to consult the Claimant.

Religious Discrimination

[Thanks to Anna Thomas of Devereux Chambers for providing this case summary]

The Court of Appeal has handed down a reserved judgment on a permission application in McFarlane v Relate brought by the Christian counsellor dismissed for failing to give an unequivocal commitment to counsel same sex couples. The application was refused and claims of direct and indirect religious discrimination dismissed. The judgment, applying London Borough Islington v Ladele, is authority for the proposition that there is nothing in the Employment Equality (Religion or Belief) Regulations 2003 or Article 9 ECHR that entitled Mr Mcfarlane to refuse to provide counselling services to all sections of the community. Laws LJ held:

• it was impossible to contend that Ladele had been decided per incuriam;
• the tribunal and EAT had correctly distinguished between the conduct which led to the act complained of and the religious belief of which the conduct was an outward sign;
• the observations in Lord Carey's supporting witness statement were misplaced and arose from a misunderstanding as to the meaning attributed by the law to discrimination, in particular that the law forbids indirect discrimination not by reference to the actor's motives but by reference to the outcome of his acts or omissions;
• there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. Only the former is protected.