Does an employment tribunal have territorial jurisdiction over an unfair dismissal claim of an employee who lives and works outside Great Britain?
Only where it establishes the employment relationship has much stronger connections with Great Britain and British employment law than with the country where the employee works, and those links are sufficiently strong to presume that Parliament would have intended the employee to be able to bring an unfair dismissal claim in the circumstances, says the EAT in Dhunna v Creditsights
An institutional research salesman employed by the British subsidiary of a US firm in London was dismissed by his employer after he had permanently moved from London to Dubai to open a new office focussed on the Asian market.
Relying on accepted authority (Lawson v Serco) on exceptions to the general rule, the tribunal found it lacked jurisdiction.
The EAT relied on recent CJEU caselaw, Duncombe and Ravat and a CA authority, Bates Van Winkelhof in setting out the importance of the relative strength of ties, and added the requirement for a sufficiently strong connection.
Wednesday, 10 April 2013
Thursday, 4 April 2013
Injury to Feelings & Aggravated Damages
How should tribunals approach injury to feelings and aggravated damages in discrimination cases?
The principles were discussed by the EAT in HM Land Registry v McGlue
Mrs McGlue was on a career break following maternity leave, from which she could return at any time on short notice. In order to achieve reductions in head count and cost the employer set up a voluntary severance scheme. Mrs McGlue applied.
Management then unilaterally decided to exclude all those who were on a career break. This decision was not published and was not subject to consultation with employees or trade unions. Mrs McGlue was also misled into thinking that she still remained eligible for this scheme and that her application would be considered in due course. She was turned down. Her grievance took 7 months to resolve before it was dismissed.
She succeeded before the employment tribunal in her claim for indirect sex discrimination. She was awarded compensation which included injury to feelings at £12,000 and an aggravated award of a further £5,000.
The employer appealed, arguing, amongst other things, that the award for injury to feelings was too high. The EAT noted however that the award made was at the midpoint of the middle range on the Vento scale. Awards in respect of injury to feelings, said the EAT, were not susceptible of close calculation and would not be interfered with unless they were "manifestly excessive" or "wrong in principle". Here the tribunal had used its experience properly to assess the effect of the conduct on the Claimant.
However, in the opinion of the EAT, additional aggravated damages were not appropriate. They should be awarded, as a rule, if the act is done in an exceptionally upsetting way, or for a bad motive, or was aggravated by subsequent conduct, for example at trial. The EAT held that in this case the facts did not meet those conditions.
The principles were discussed by the EAT in HM Land Registry v McGlue
Mrs McGlue was on a career break following maternity leave, from which she could return at any time on short notice. In order to achieve reductions in head count and cost the employer set up a voluntary severance scheme. Mrs McGlue applied.
Management then unilaterally decided to exclude all those who were on a career break. This decision was not published and was not subject to consultation with employees or trade unions. Mrs McGlue was also misled into thinking that she still remained eligible for this scheme and that her application would be considered in due course. She was turned down. Her grievance took 7 months to resolve before it was dismissed.
She succeeded before the employment tribunal in her claim for indirect sex discrimination. She was awarded compensation which included injury to feelings at £12,000 and an aggravated award of a further £5,000.
The employer appealed, arguing, amongst other things, that the award for injury to feelings was too high. The EAT noted however that the award made was at the midpoint of the middle range on the Vento scale. Awards in respect of injury to feelings, said the EAT, were not susceptible of close calculation and would not be interfered with unless they were "manifestly excessive" or "wrong in principle". Here the tribunal had used its experience properly to assess the effect of the conduct on the Claimant.
However, in the opinion of the EAT, additional aggravated damages were not appropriate. They should be awarded, as a rule, if the act is done in an exceptionally upsetting way, or for a bad motive, or was aggravated by subsequent conduct, for example at trial. The EAT held that in this case the facts did not meet those conditions.
Wednesday, 3 April 2013
Costs in the Court of Appeal
Can a party to an appeal from the EAT to the Court of Appeal successfully apply (before the final hearing of the appeal) for the usual cost consequences not to apply?
Yes, says Jackson LJ in Manchester College v Hazel & Anor.
The Court of Appeal had to decide whether the employees, whose application was made under CPR r.52.9, were entitled to cost protection in an upcoming appeal by their employer in the Court of Appeal. The court decided that there was "a compelling reason" as required by CPR r.52.9 for it to apply the cost protection condition to the appeal as, amongst other things, the employees: had won at both the employment tribunal and EAT, had limited means, were relying on pro bono representation and would not be able to continue resisting the appeal unless they received costs protection.
Although fact specific the case is of more general importance as one of the reasons relied upon by Jackson LJ was that from 1 April 2013 the case would fall squarely within the new CPR r.52.9A. This new rule allows the court to exclude or limit cost recovery when a case passes from a "no costs" or "low costs" jurisdiction to a court with full costs shifting powers. Notably this new rule does not require a "compelling reason" and will mitigate the harshness of Eweida v British Airways PLC in which the court held that despite the appellant moving from the "no cost" jurisdiction of the EAT to the cost shifting jurisdiction of the Court of Appeal it had no power to make a protective costs order or costs capping order.
Yes, says Jackson LJ in Manchester College v Hazel & Anor.
The Court of Appeal had to decide whether the employees, whose application was made under CPR r.52.9, were entitled to cost protection in an upcoming appeal by their employer in the Court of Appeal. The court decided that there was "a compelling reason" as required by CPR r.52.9 for it to apply the cost protection condition to the appeal as, amongst other things, the employees: had won at both the employment tribunal and EAT, had limited means, were relying on pro bono representation and would not be able to continue resisting the appeal unless they received costs protection.
Although fact specific the case is of more general importance as one of the reasons relied upon by Jackson LJ was that from 1 April 2013 the case would fall squarely within the new CPR r.52.9A. This new rule allows the court to exclude or limit cost recovery when a case passes from a "no costs" or "low costs" jurisdiction to a court with full costs shifting powers. Notably this new rule does not require a "compelling reason" and will mitigate the harshness of Eweida v British Airways PLC in which the court held that despite the appellant moving from the "no cost" jurisdiction of the EAT to the cost shifting jurisdiction of the Court of Appeal it had no power to make a protective costs order or costs capping order.
Mr Justice Underhill appointed to Court of Appeal
The Ministry of Justice has announced the appointment of Mr Justice Underhill, the past president of the Employment Appeal Tribunal,
as a Lord Justice of Appeal. Congratulations to him from the employment law community.
The list of ten appointees, and their biographies, is here.
Interim Relief
Should a claim for interim relief be decided on the balance of probabilities as to whether a Claimant will ultimately succeed in showing that dismissal was on a prohibited ground?
No, says the EAT in London City Airport Ltd v Chacko, dismissing the employer's appeal against a claim for interim relief for a Claimant alleging dismissal for trade union activities. The employment judge had correctly applied the statutory test, and there was no error of law in the tribunal judgment.
The EAT considered controversy over the correct approach to the test for interim relief, and the meaning of it being 'likely' that the tribunal will ultimately find that a dismissal was for a prohibited ground, noting that it must "be established that the employee can demonstrate a pretty good chance of success" at a final hearing, an approach that had been consistent for over three decades.
The EAT noted that interim relief applications are considered on a summary basis, assessing the untested documentary evidence of the parties, and that "the employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases". The requirement for a swift hearing "must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim".
No, says the EAT in London City Airport Ltd v Chacko, dismissing the employer's appeal against a claim for interim relief for a Claimant alleging dismissal for trade union activities. The employment judge had correctly applied the statutory test, and there was no error of law in the tribunal judgment.
The EAT considered controversy over the correct approach to the test for interim relief, and the meaning of it being 'likely' that the tribunal will ultimately find that a dismissal was for a prohibited ground, noting that it must "be established that the employee can demonstrate a pretty good chance of success" at a final hearing, an approach that had been consistent for over three decades.
The EAT noted that interim relief applications are considered on a summary basis, assessing the untested documentary evidence of the parties, and that "the employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases". The requirement for a swift hearing "must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim".
Solicitor missing unfair dismissal time limit
If a Claimant has instructed advisers to act for him but failed to present his claim for unfair dismissal in time, can he successfully argue that it was not reasonably practicable for him to do so?
No, says the EAT in El-Kholy v Rentokil.
This case stands as a timely reminder to practitioners of the perils of failing to present a client's claim in time, where the 'escape clause' to extend the tribunal's jurisdiction depends on a Claimant satisfying the 'not reasonably practicable' test. This particular case was one of unfair dismissal but the same rule would apply to s.47B detriment claims and those in respect of unauthorised deductions, for example.
Following a helpful review of the authorities Slade J concluded that in such cases the Claimant's remedy would be against the advisers, rather than the Respondent - however, she added that each case will depend on its own facts.
No, says the EAT in El-Kholy v Rentokil.
This case stands as a timely reminder to practitioners of the perils of failing to present a client's claim in time, where the 'escape clause' to extend the tribunal's jurisdiction depends on a Claimant satisfying the 'not reasonably practicable' test. This particular case was one of unfair dismissal but the same rule would apply to s.47B detriment claims and those in respect of unauthorised deductions, for example.
Following a helpful review of the authorities Slade J concluded that in such cases the Claimant's remedy would be against the advisers, rather than the Respondent - however, she added that each case will depend on its own facts.
Definition of Disability - Obesity and Functional Overlay
In considering whether a person is disabled, should the focus be upon the cause of the person's symptoms or upon their effect?
Their effect, says the EAT in Walker v Sita Information Networking Computing Ltd.
This case concerned the thorny, and increasingly common, issue of how obesity should be treated for the purpose of disability discrimination. The appellant weighed 137kg (over 21st) and suffered from a wide range of symptoms associated with obesity. The employment tribunal concluded that he was not 'disabled' within the legal definition on the basis that the medical evidence revealed no physical or mental cause of the symptoms, other than obesity.
Rejecting that approach, the EAT (Langstaff P presiding) stated that in such cases the first question is whether or not the individual has an impairment. The second is whether it is physical or mental. The cause is only relevant insofar as it remains open to a tribunal, on the evidence, to find that a person does not suffer from a disability if it has no recognised cause. The President refused to accept that obesity is a disability it its own right, but stated that it may make it more likely that someone is disabled.
Their effect, says the EAT in Walker v Sita Information Networking Computing Ltd.
This case concerned the thorny, and increasingly common, issue of how obesity should be treated for the purpose of disability discrimination. The appellant weighed 137kg (over 21st) and suffered from a wide range of symptoms associated with obesity. The employment tribunal concluded that he was not 'disabled' within the legal definition on the basis that the medical evidence revealed no physical or mental cause of the symptoms, other than obesity.
Rejecting that approach, the EAT (Langstaff P presiding) stated that in such cases the first question is whether or not the individual has an impairment. The second is whether it is physical or mental. The cause is only relevant insofar as it remains open to a tribunal, on the evidence, to find that a person does not suffer from a disability if it has no recognised cause. The President refused to accept that obesity is a disability it its own right, but stated that it may make it more likely that someone is disabled.
Friday, 22 March 2013
Employee Shareholder Contracts
[Thanks to Michael Rubenstein for notifying the employment law community about this news via Twitter]
The House of Lords has voted (by 232 to 178) to strike down clause 27 of the Growth and Infrastructure Bill, which is the clause introducing the concept of employee shareholders.
This comes hot on the heels of the announcement in today's Budget that employee shareholder contracts will come into force on 1 September 2013 - an announcement which may have proven premature.
The Bill will now return to the House of Commons, where the government will decide whether to accept the defeat (in which employee shareholder contracts will not happen), or try to re-introduce the clause. It is rumoured that the Liberal Democrats are against employee shareholder contracts, and the result of a vote in the Commons is uncertain.
Budget Announcement regarding Employee Shareholders
The Chancellor of the Exchequer, George Osborne, has announced in today's budget an important development with regard to employee shareholders.
Part of the definition of 'employee shareholder' in the forthcoming new s205A Employment Rights Act 1996 requires that the employer must issue or allot shares to the employee which have a value of at least £2,000. Until now, the award of those shares was to be subject to income tax (so
a 20% taxpayer would have paid £400 income tax on their award of £2,000 shares).
The Chancellor has today announced that the first £2,000 of shares will be exempt from income tax and NICs, which means they are effectively free of tax for anybody receiving the minimum allotment - see para 1.133 of the Budget. He has also announced the precise implementation date for employee shareholder status will be 1 September 2013 (until last week, it was to be 6 April, but last week BIS announced it was being put back until the
autumn).
To learn about employee shareholder status, as well as the other changes to employment law coming soon (including Acas Early Conciliation, Protected Settlement Conversations and the Underhill procedural reforms), see Daniel Barnett's Employment Law MasterClass which is taking place soon in Bristol, Birmingham, Manchester and London.
Wednesday, 20 March 2013
Equal Pay / Associated Employers
Is a limited liability partnership a 'company' for the purposes of the Equal Pay Act?
Yes, says the EAT in Fox Cross & Others v Glasgow City Council & Others.
The Claimants were Council employees, until they were transferred to three different bodies. One group went to a company, whilst two groups went to two different LLPs. All three groups wanted to compare their pay with Council employees.
The employment tribunal held that the company was an associated employer but the LLPs were not. Overturning that decision, Langstaff P held that an LLP fell within the definition of 'company' under section 1(6) of the Act. As an anti-avoidance measure, the EAT adopted a purposive construction.
Having decided that issue, the EAT did not have to consider whether there was a 'single source' responsible for pay but did provide some illuminating if obiter comments. The focus should be on the alleged single source, not necessarily the Claimant's employer, as the central question is whether there is a body which is responsible for the inequality and which could restore equal treatment. Although it did not intervene on a daily basis, the Council retained overall responsibility for the LLPs.
Yes, says the EAT in Fox Cross & Others v Glasgow City Council & Others.
The Claimants were Council employees, until they were transferred to three different bodies. One group went to a company, whilst two groups went to two different LLPs. All three groups wanted to compare their pay with Council employees.
The employment tribunal held that the company was an associated employer but the LLPs were not. Overturning that decision, Langstaff P held that an LLP fell within the definition of 'company' under section 1(6) of the Act. As an anti-avoidance measure, the EAT adopted a purposive construction.
Having decided that issue, the EAT did not have to consider whether there was a 'single source' responsible for pay but did provide some illuminating if obiter comments. The focus should be on the alleged single source, not necessarily the Claimant's employer, as the central question is whether there is a body which is responsible for the inequality and which could restore equal treatment. Although it did not intervene on a daily basis, the Council retained overall responsibility for the LLPs.
New Timetable - Major Employment Law Reforms
The Department for Business Innovation and Skills has announced a new implementation timetable for the major employment law reforms, many of which had originally been intended to come into force in April 2013.
Coming into force in summer 2013: protected settlement conversations; 12 month earning cap on compensatory award; revised (Underhill) employment tribunal procedural rules; new tribunal fees; changes to whistleblowing laws
Coming into force in autumn 2013: employee shareholder status and TUPE reforms
Finally, coming into force sometime in 2014: Acas early conciliation and employment tribunal penalties for employers
For more information, see here.
Wednesday, 13 March 2013
Recognising a Trade Union
[Thanks to Michael Reed Employment Legal Officer at the Free Representation Unit for preparing this case summary]
No, concluded the EAT in Working Links v Public and Commercial Services Union.
PCSU brought a claim under the Trade Union and Labour Relations (Consolidation) Act 1992 regarding failure to consult over collective redundancies. To succeed, they needed to establish that they were a recognised trade union for the purpose of collective bargaining.
There had been a history of discussion and consultation between Working Links and PCSU. But the EAT concluded this fell short of the clear evidence of recognition needed in the absence of a written agreement.
The EAT emphasised that recognition for the purposes of collective bargaining required involvement in the negotiation of collective agreements. Discussions in relation to other matters, such as redundancies, was not the same thing and was not enough to evidence recognition.
Internal Disciplinary Proceedings
Do the judicial doctrines of res judicata and abuse of process apply to internal disciplinary proceedings?
No, says the Court of Appeal in Christou v London Borough of Haringey.
The facts related to the handling of the tragic Baby P case, in which a 17-month-old baby died as a result of abuse. The Claimants had been social workers responsible for Baby P and were employed by Haringey Council. Initially, the Claimants were disciplined under the Council's disciplinary procedure and given a written warning. Following extensive media coverage, a review of the case found the original disciplinary proceedings to have been "blatantly unsafe", and fresh disciplinary proceedings were instituted. As a result of these proceedings, both Claimants were dismissed.
The main argument relied on by the Claimants was that the doctrine of res judicata prevented the re-opening of a matter where a decision has already been pronounced by a judge or other tribunal with jurisdiction. The Court of Appeal rejected that argument, saying "it is wrong to describe the exercise
of disciplinary power by the employer as a form of adjudication".
The Court of Appeal held that the purpose of disciplinary procedure is not "a determination of any issue which establishes the existence of a legal right", nor does it determine a dispute. The critical question was whether the procedures "operate independently of the parties such that it is appropriate to describe their function as an adjudication between the parties".
Redundancy Selection and Competency Assessments
Is it fair to carry out a redundancy selection exercise where employee capability is assessed entirely on the basis of competency tests?
Not necessarily, says the EAT in Mental Health Care (UK) Ltd v Biluan & Anor, particularly if no account has been taken of past performance.
The case involved a redundancy exercise where staff were selected using selection criteria comprising disciplinary and absence records and a competency assessment. In the vast majority of cases it was the competency score which was decisive. The manager said that he was surprised by the competency results and that several employees who had been selected for redundancy were good employees.
The original tribunal held that dismissals were unfair because capability had been assessed mainly on the competency assessments and had taken no account of prior performance. The employer appealed arguing that the tribunal had substituted its own view. The EAT acknowledged that the employer took care over the process but chose an 'elaborate and HR driven method' depriving it of the benefit of input from managers and others who knew the staff in question. Importantly for employers they commented that whilst it is desirable to seek to avoid subjectivity and bias, this goal can come at "too high a price" adding that it is misplaced to fear that a tribunal will find a procedure unfair only because there is an "element of 'subjectivity" involved. The appeal was dismissed.
Not necessarily, says the EAT in Mental Health Care (UK) Ltd v Biluan & Anor, particularly if no account has been taken of past performance.
The case involved a redundancy exercise where staff were selected using selection criteria comprising disciplinary and absence records and a competency assessment. In the vast majority of cases it was the competency score which was decisive. The manager said that he was surprised by the competency results and that several employees who had been selected for redundancy were good employees.
The original tribunal held that dismissals were unfair because capability had been assessed mainly on the competency assessments and had taken no account of prior performance. The employer appealed arguing that the tribunal had substituted its own view. The EAT acknowledged that the employer took care over the process but chose an 'elaborate and HR driven method' depriving it of the benefit of input from managers and others who knew the staff in question. Importantly for employers they commented that whilst it is desirable to seek to avoid subjectivity and bias, this goal can come at "too high a price" adding that it is misplaced to fear that a tribunal will find a procedure unfair only because there is an "element of 'subjectivity" involved. The appeal was dismissed.
Covert Recordings
Can an employment tribunal refuse to admit covert recordings?
No, says the EAT in Vaughan v London Borough of Lewisham and Others.
In support of a discrimination claim, the Claimant applied for permission to rely on 39 hours' worth of covert recordings that she had made, using a dictaphone, of contacts between herself and her managers and colleagues. She claimed that the recordings would show that official notes made by the Respondents were inaccurate or wrong. The Employment Judge refused the application.
On appeal, the EAT confirmed that whilst the practice of covert recordings is "very distasteful", such recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable.
Based on the evidence produced by the Claimant, the EAT held that the Judge was right to refuse the application because it was not possible for her to form any view on the relevance and thus the admissibility of the tapes.
However, the EAT was not entirely happy with the Judge's reasoning and at paragraphs 24 and 29, Underhill J recommends the procedure that should be adopted when there are covert recordings. He went on to say that parts of the material would be potentially relevant and admissible, and that if the Claimant lodged a more focused application, supported by transcripts of the recordings she sought to rely on, together with an explanation of why they are relevant, "she might get a different result".
No, says the EAT in Vaughan v London Borough of Lewisham and Others.
In support of a discrimination claim, the Claimant applied for permission to rely on 39 hours' worth of covert recordings that she had made, using a dictaphone, of contacts between herself and her managers and colleagues. She claimed that the recordings would show that official notes made by the Respondents were inaccurate or wrong. The Employment Judge refused the application.
On appeal, the EAT confirmed that whilst the practice of covert recordings is "very distasteful", such recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable.
Based on the evidence produced by the Claimant, the EAT held that the Judge was right to refuse the application because it was not possible for her to form any view on the relevance and thus the admissibility of the tapes.
However, the EAT was not entirely happy with the Judge's reasoning and at paragraphs 24 and 29, Underhill J recommends the procedure that should be adopted when there are covert recordings. He went on to say that parts of the material would be potentially relevant and admissible, and that if the Claimant lodged a more focused application, supported by transcripts of the recordings she sought to rely on, together with an explanation of why they are relevant, "she might get a different result".
Monday, 11 March 2013
Employer Perceptions of Employment Law
The Department for Business Innovation & Skills (BIS) has published a new report in its Employment Relations Research series: Employer Perceptions and the Impact of Employment Regulation.
This report was carried out on behalf of BIS by researchers from TNS/BMRB and Kingston University. A total of 40 businesses took part and were interviewed over the spring and summer of 2012.
The report makes very interesting reading. Contradicting the Coalition government's thinking on the impact of employment law on business via its 'Red Tape Challenge' and Employment Law Review, respondees generally considered that employment regulation was both necessary and fair. In the main, anxiety about employment law stemmed from a fear and misunderstanding of the law. This is the so-called 'perception reality gap', identified by other researchers such as Peck and others in Business Perceptions of Regulatory Burden (2012).
The key points in the report are as follows:
Employers were often supportive of a regulatory framework for employment for the employment relationship.
Reducing regulation for small employers might not actually be effective in reducing anxiety, because those employers are often unaware of the changing laws relating to employment.
Employers have a fear of being taken to an employment tribunal over unfair dismissal, and some myths surrounding the dismissal process need to be dispelled.
Tribunal outcomes were perceived as unpredictable.
Small employers tended not to formalise disciplinary procedures unless dismissal was being considered, a process which often let to litigation.
A solution to that problem would be for small businesses consistently to follow a procedure for dealing with performance and conduct. But these employers expressed a fear that this would damage the personal element of the employment relationship in a small business.
The report identifies a clear need to provide a single information portal regarding employment law and HR.
When looking at reforms to simplify employment law, the focus should be on disciplinary and dismissal procedures. An interesting finding was that, four years on, many employers still believed there was a statutory disciplinary and dismissal procedure that needed to be followed.
An insightful conclusion of the report is that employers' perception of legislation as burdensome is based more on an actual fear of litigation, rather than any actual experience and is actually worsened by the public pervasiveness of the 'anti-regulation' debate.
This report was carried out on behalf of BIS by researchers from TNS/BMRB and Kingston University. A total of 40 businesses took part and were interviewed over the spring and summer of 2012.
The report makes very interesting reading. Contradicting the Coalition government's thinking on the impact of employment law on business via its 'Red Tape Challenge' and Employment Law Review, respondees generally considered that employment regulation was both necessary and fair. In the main, anxiety about employment law stemmed from a fear and misunderstanding of the law. This is the so-called 'perception reality gap', identified by other researchers such as Peck and others in Business Perceptions of Regulatory Burden (2012).
The key points in the report are as follows:
An insightful conclusion of the report is that employers' perception of legislation as burdensome is based more on an actual fear of litigation, rather than any actual experience and is actually worsened by the public pervasiveness of the 'anti-regulation' debate.
Friday, 8 March 2013
Litigants in Person
The Master of the Rolls, Lord Dyson MR, has issued Practice Guidance: Terminology for Litigants in Person. It provides that the term 'Self-Represented Litigant' should no longer be used in courts. The correct nomenclature, going forward, reverts to 'Litigant in Person'.
Technically this applies to criminal, civil and family courts - but doubtless tribunals will also follow it.
Thursday, 7 March 2013
Unfavourable Treatment on Grounds of Vulnerability
Does unfavourable treatment on the grounds of vulnerability for reasons including immigration status constitute race discrimination?
No, says the EAT in Taiwo v Olaigbe, because the vulnerability of foreign national domestic workers is not indissociably linked with migrant status.
The Claimant, a Nigerian woman, worked as a domestic worker in the home of the Respondents between February 2010 and January 2011. Upon her departure, she was assisted by North Kensington Law Centre in bringing a number of claims, including a claim for direct, or alternatively, indirect race discrimination.
The employment tribunal made a finding of fact (which was not appealed) that the Claimant had been treated in an appalling manner by the Respondents and upheld nearly all of the Claimant's claims. However, the tribunal held that the treatment she had suffered did not amount to direct or indirect race discrimination. The tribunal dismissed these claims and the Claimant appealed.
The EAT upheld the decision of the tribunal and held that unfavourable treatment of the employee did not constitute direct or indirect race discrimination. This was even though the tribunal had found that such treatment was strongly associated with her vulnerability caused by her lack of English and dependence on her employer for her right to stay in the UK. The presence of other factors which caused her vulnerability (such as low socio-economic status and the imbalance of power in the relationship between the Claimant and the Respondents) meant that the factual cause of the unfavourable treatment of the claimant was not indissociably linked to immigration status.
The EAT rejected the indirect race discrimination claim on the basis that in this case there was no appropriate provision, criteria or practice (PCP) which put the Claimant (and her racial group) at a substantial disadvantage. Mistreatment could not amount to a PCP.
Permission to appeal is currently being sought by the Claimant.
Importantly, the EAT also held that legal costs can be recovered by a third party who is funding litigation, even though the party themselves is not incurring the cost. North Kensington Law Centre was able to assist the Claimant without charging her by funding from the Legal Services Commission. The costs incurred by North Kensington Law Centre were to be treated as costs incurred by the Claimant for the purposes of a costs application.
No, says the EAT in Taiwo v Olaigbe, because the vulnerability of foreign national domestic workers is not indissociably linked with migrant status.
The Claimant, a Nigerian woman, worked as a domestic worker in the home of the Respondents between February 2010 and January 2011. Upon her departure, she was assisted by North Kensington Law Centre in bringing a number of claims, including a claim for direct, or alternatively, indirect race discrimination.
The employment tribunal made a finding of fact (which was not appealed) that the Claimant had been treated in an appalling manner by the Respondents and upheld nearly all of the Claimant's claims. However, the tribunal held that the treatment she had suffered did not amount to direct or indirect race discrimination. The tribunal dismissed these claims and the Claimant appealed.
The EAT upheld the decision of the tribunal and held that unfavourable treatment of the employee did not constitute direct or indirect race discrimination. This was even though the tribunal had found that such treatment was strongly associated with her vulnerability caused by her lack of English and dependence on her employer for her right to stay in the UK. The presence of other factors which caused her vulnerability (such as low socio-economic status and the imbalance of power in the relationship between the Claimant and the Respondents) meant that the factual cause of the unfavourable treatment of the claimant was not indissociably linked to immigration status.
The EAT rejected the indirect race discrimination claim on the basis that in this case there was no appropriate provision, criteria or practice (PCP) which put the Claimant (and her racial group) at a substantial disadvantage. Mistreatment could not amount to a PCP.
Permission to appeal is currently being sought by the Claimant.
Importantly, the EAT also held that legal costs can be recovered by a third party who is funding litigation, even though the party themselves is not incurring the cost. North Kensington Law Centre was able to assist the Claimant without charging her by funding from the Legal Services Commission. The costs incurred by North Kensington Law Centre were to be treated as costs incurred by the Claimant for the purposes of a costs application.
Wednesday, 6 March 2013
Equality Act does not provide remedy for post-termination victimisation
Does the Equality Act 2010 provide a cause of action or remedy in respect of post-termination victimisation?
No, says the EAT in Rowstock Ltd v Jessemey.
The appellant was dismissed by reason of retirement when he reached 65. In dismissing him the employer had failed to comply with the statutory retirement procedures, and the appellant claimed unfair dismissal and age discrimination. As a consequence of the claim, the employer provided him with a very unfavourable reference and a victimisation claim resulted. The employer contended that s.108(7) Equality Act 2010 specifically disapplied the anti-victimisation provisions in circumstances where the employment relationship has ended. The employment tribunal agreed, and the Equality and Human Rights Commission intervened in the appeal of that decision.
All parties accepted that if s.108(7) had this effect it would not be compatible with the Equal Treatment Directive, but having reviewed the authorities on statutory construction the EAT (Mr Recorder Luba QC presiding) concluded that it would have exceeded its judicial remit if it were to construe the subsection in a wording directly opposite to that which had been expressed in the Act.
Therefore, no cause of action or remedy is available under the Equality Act 2010 for post-termination acts of victimisation. Permission to appeal has understandably been granted, but it may require Parliamentary intervention to close the loophole, ensuring continuity with the previous law and compliance with the Directive.
No, says the EAT in Rowstock Ltd v Jessemey.
The appellant was dismissed by reason of retirement when he reached 65. In dismissing him the employer had failed to comply with the statutory retirement procedures, and the appellant claimed unfair dismissal and age discrimination. As a consequence of the claim, the employer provided him with a very unfavourable reference and a victimisation claim resulted. The employer contended that s.108(7) Equality Act 2010 specifically disapplied the anti-victimisation provisions in circumstances where the employment relationship has ended. The employment tribunal agreed, and the Equality and Human Rights Commission intervened in the appeal of that decision.
All parties accepted that if s.108(7) had this effect it would not be compatible with the Equal Treatment Directive, but having reviewed the authorities on statutory construction the EAT (Mr Recorder Luba QC presiding) concluded that it would have exceeded its judicial remit if it were to construe the subsection in a wording directly opposite to that which had been expressed in the Act.
Therefore, no cause of action or remedy is available under the Equality Act 2010 for post-termination acts of victimisation. Permission to appeal has understandably been granted, but it may require Parliamentary intervention to close the loophole, ensuring continuity with the previous law and compliance with the Directive.
Monday, 4 March 2013
Collective Agreements, without more, do not justify pay disparity
Can collective agreements in themselves justify prima facie indirect discrimination under the Equal Pay Directive?
No, says the CJEU in Kenny v Minister for Justice.
The appellant employees were civil servants deployed to clerical duties with the police force in Ireland. Clerical duties were also carried out by police officers for higher wages. 'Civilian' clerks were mostly female, police clerks were predominantly male. The employees brought an equal pay claim alleging indirect discrimination. The Respondent sought to justify the different treatment by arguing, amongst other things, that the number of posts reserved for police staff had been determined by a collective agreement. The national court sought assistance from the CJEU with the interpretation of the Equal Pay Directive.
The CJEU held that employees perform the 'same work' if they can be considered by the national court to be in a comparable position, considering relevant factors, such as the nature of their work, training requirements etc. The employer's objective justification has to relate to statistics of comparators illustrating the true and long-term position. The interest of good industrial relations is subject to the requirement of non-discrimination and cannot of itself constitute the only basis justifying discrimination. Nevertheless, collective bargains are a factor in determining whether differences of pay are due to objective factors unrelated to discrimination on the grounds of sex.
No, says the CJEU in Kenny v Minister for Justice.
The appellant employees were civil servants deployed to clerical duties with the police force in Ireland. Clerical duties were also carried out by police officers for higher wages. 'Civilian' clerks were mostly female, police clerks were predominantly male. The employees brought an equal pay claim alleging indirect discrimination. The Respondent sought to justify the different treatment by arguing, amongst other things, that the number of posts reserved for police staff had been determined by a collective agreement. The national court sought assistance from the CJEU with the interpretation of the Equal Pay Directive.
The CJEU held that employees perform the 'same work' if they can be considered by the national court to be in a comparable position, considering relevant factors, such as the nature of their work, training requirements etc. The employer's objective justification has to relate to statistics of comparators illustrating the true and long-term position. The interest of good industrial relations is subject to the requirement of non-discrimination and cannot of itself constitute the only basis justifying discrimination. Nevertheless, collective bargains are a factor in determining whether differences of pay are due to objective factors unrelated to discrimination on the grounds of sex.
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