Acas Guide to Discrimination Questionnaires

Statutory questionnaires are being abolished in discrimination cases with effect from 6th April 2014 (here's the statutory instrument).

Acas has produced some useful new guidance on asking and responding to questions of discrimination in the workplace.  The statutory right to draw an adverse inference if replies are evasive or equivocal has gone (not that it did much anyway), but as a matter of common sense if an employer unreasonably fails to provide accurate answers to informal questions, the tribunal might rely on that to draw an adverse inference anyway.

(And in case that's unclear, my view is the abolition of statutory questionnaires will make not a jot of difference in the real world).

Labour seeks annulment of CRATUPEAR

An Early Day Motion has been tabled in parliament, calling for the annulment of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which came into force on 31st January 2014. Signed by Ed Milliband, Chuka Umanna and a host of other Labour bigwigs, this is an unexpected development given the lack of opposition during the consultation and legislative phases. What does it mean?  Well, for the moment, CRATUPEAR is in force.  But the Early Day Motion calls for its annulment, not just a repeal.  So it's a bit of a mess - anyone relying on the changes made by CRATUPEAR is at risk.  But since Labour doesn't command a majority of the House of Commons, the Early Day Motion is unlikely to pass. Oh dear.  Watch this space.

Part-time Judges: Backdated Judicial Pensions

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary

When does the period of reckonable service begin for the purpose of calculating the amount of pension to which a retired part-time judge is entitled?

On 7 April 2000, the date by which the Part-time Workers Directive should have been transposed into domestic law, according to the Employment Appeal Tribunal in Ministry of Justice v O'Brien.

The Supreme Court previously held that Mr O’Brien, a retired Recorder, was entitled to a pension on terms equivalent to those applicable to a circuit judge. This was pursuant to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which transposed the Directive into domestic law. The Court remitted the case to the Employment Tribunal for the determination of the amount of the pension to be awarded.

On 19 August 2013, the Tribunal held that Mr O’Brien was entitled to a pension calculated from the start of his service in 1978, even though this pre-dated the commencement of the Regulations.

On appeal by the Ministry of Justice, the EAT held that the Tribunal’s approach was wrong as a matter law. The level of pension will be the result of the gradual accrual of rights during a period of employment. However, the calculation of a pension owed to a part-time worker should include only his period of service since discrimination against part-time workers had been rendered unlawful. To find otherwise would undermine the well-established principle of legal certainty.

You can read all the case summaries - dating back to 2010 - in the part-time judges' pension saga.

(1) Compensatory Award; (2) Post-Employment Victimisation

A couple of things... (1)  The Employment Rights (Increase of Limits) Order 2014 has been laid before parliament, and comes into force on 6th April 2014. It increases the maximum compensatory award from £74,200 to £76,574 (try remembering that!) - subject, of course, to the overarching limit of one year's pay which has existed since July 2013.  It also increases the maximum for a 'week's pay' from £450 to £464. (2)  Separately, according to the Equality & Human Rights Commission's website, the Court of Appeal has ruled in Rowstock v Jessemy that post-employment victimisation is prohibited by the Equality Act 2010, thus clearing up inconsistent previous rulings from the EAT.  The transcript is not yet available on BAILII.  (thanks to Laurie Anstis of Boyes Turner for posting this on Twitter)

Whistleblowing

Thanks to Jahad Rahman of Rahman Lowe Solicitors for preparing this case summary On the issue of causation in a whistleblowing claim, did the person who subjected the Claimant to a detriment have to have knowledge of the protected act? Yes, held the EAT in Anastasiou v Western Union Payment Services. In July 2010, the Claimant was interviewed as part of the Respondent's investigation into another employee's complaint of being marginalised due to concerns about the accuracy of information being disclosed to investors/potential investors in relation to the Respondent's performance and prospects. The Claimant similarly expressed concerns about the prospect of the Respondent meeting performance targets and in particular, the goal of achieving 10,000 new retail locations. Shortly after this, he was dismissed for fraudulent expenses claims. The Employment Tribunal ('ET') dismissed the complaints of automatic unfair dismissal and ordinary unfair dismissal, but found that the Claimant had been subjected to certain detriments for making a protected disclosure. The detriments complained of included 'side-lining' the Claimant at work, making enquiries into his expenses claims and referring to the results of those enquiries to a disciplinary hearing. The EAT followed Cavendish Munro v Geduld and upheld the finding that the Claimant had disclosed "information" during the investigation, rather than express a personal opinion on a business strategy and that the information disclosed was sufficient to constitute a potential breach of legal obligation on the Respondent's part, i.e., whether misleading information had been provided to investors/potential investors. In the EAT's view, the legal obligation in issue was apparent to all involved as a matter of common sense. Therefore, the ET was entitled to find that there had been a qualifying whistleblowing disclosure. However, the EAT held that the ET failed to demonstrate how it concluded that the protected disclosure materially influenced the Respondent's treatment of the Claimant because there was no finding of fact in respect of any of the detriments that the individuals involved had any knowledge of the protected act. The final issue for consideration by the EAT was whether the ET's departure from the agreed list of issues constituted a breach of the rules of natural justice. The EAT found that "re-casting" of the claim had occurred and that the decision to add a further detriment to the list of agreed issues obliged the ET to permit the parties to make further representations.

Vicarious Liability (assault on customer)

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Was a supermarket vicariously liable for an assault by a petrol station assistant on a customer?

No, held the Court of Appeal, on the facts in Mohamud v Morrison Supermarkets.

In March 2008, a customer visited a Morrison's supermarket and petrol station in Small Heath in Birmingham. The customer entered the service kiosk and asked a Morrison's employee, Mr Khan, if it was possible to print off some documents which were stored on a USB stick that the customer was carrying. Mr Khan responded in an abusive fashion including racist language. He then proceeded to follow the customer into his car, punch him to the head, and then subjected him to a serious attack involving further punches and kicks whilst the customer was curled up on the petrol station forecourt.

The customer sued Morrison, claiming it was vicariously liable for its employee's actions. The trial judge held it was not.

The Court of Appeal agreed. The question was whether there was a sufficiently close connection between the wrongdoing (the assaults) and the employment so that it would be fair and just to hold the employer vicariously liable.

The trial judge had, however, found that the assault had taken place at a time when Khan's supervisor had told him not to follow the customer out of the premises. It was found that for "no good or apparent reason" Khan had carried out the attack "purely for reasons of his own".

As such, these acts were beyond the scope of Khan's employment. The case could be distinguished from cases involving vicarious liability where the employee's duties included exercising authority and keeping order (such as a night club doorman). Mr Khan's duties included no element of keeping order over customers.

Reasonable Adjustments and Time Limits

Thanks to Ed McFarlane of Deminos HR for preparing this case summary If, having refused to make a reasonable adjustment for a disabled employee, an employer has a policy, which is not of itself discriminatory, to keep its refusal under review, does the tribunal time limit run from the refusal? No, holds the EAT in Jobcentre Plus v Jamil, holding that the discriminatory act extended over a period, so the Claimant had brought her claim in time. The disabled Claimant worked at a Job Centre and had been refused a reasonable adjustment of a transfer to another workplace closer to home. On the facts, if time ran from the decision to refuse a transfer, the claim would have been out of time, but not if the refusal was a continuing act or state of affairs. The EAT rejected an assertion based on Cast v Croydon College, a Court of Appeal decision, that a continuing act required that the policy of the employer (the post-refusal review) itself had also to be discriminatory (which it was not), holding that the focus should be on the law as derived from statute. In considering whether there is conduct extending over a period, the EAT cautioned against focusing on the word 'policy' and found reference to a 'continuing state of affairs' helpful in considering whether conduct extends over a period. Here, the continuing duty to make reasonable adjustments did so, it has to be fulfilled "on each day that it remains a duty".

Discrimination and Illegal Contracts

Thanks to Vanessa James of SA Law for preparing this case summary Can a Claimant who is illegally working in the UK bring a claim for sexual harassment against her unlawful employers? Yes, holds in the EAT in Wijesundera v Heathrow Logistics. Ms Wijesundera, a Sri Lankan national, informed the Respondents that she required a work permit. She commenced employment before this was obtained and knew that she was working unlawfully. The permit was obtained one year later. She was subsequently dismissed and brought a claim for sexual harassment, allegations of which occurred during the period of unlawful employment. The EAT considered whether Ms Wijesundera could bring a claim for sexual harassment even though she was working illegally. In making its decision, the EAT maintained that this was not a case like Vakante v Governing Body of Addey and Stanhope School, in which detriments complained of entirely depended on there being a contract of employment and upon its terms. The EAT applied the principles of Hall v Woolston Hall and held that the claim for sexual harassment, save for Ms Wijesundera's dismissal, was not so inextricably bound up with the contract of employment or the illegality as to be defeated by the defence. This means employers relying on the normally straightforward illegality to end a contract now have to be conscious of this context and ensure that background is also fully considered before dismissal to understand the full picture in terms of risk.

New President of Employment Tribunals

The Ministry of Justice has announced the appointment of Judge Brian Doyle (currently regional judge for NW England) as the new President of Employment Tribunals for England and Wales with effect from 1st April 2014. He replaces Judge David Latham, who has retired.  The President of Employment Tribunals in Scotland remains Judge Shona Simon.

Collective Redundancy Consultation: Woolworths Case

Last month, the well-known USDAW v Woolworths case (in which HHJ McMullen held that the words 'in one establishment' should be ignored for the purpose of deciding whether collective consultation obligations are triggered by 20 or more people being made redundant within 90 days), was referred by the Court of Appeal to the Court of Justice of the European Union (CJEU). The Court of Appeal's decision is now available online here.

Discrimination: Burden of Proof

Thanks to Jasvir Kaur of Squire Sanders for preparing this case summary

Was a witness's lack of veracity capable of being the 'something more' beyond difference in gender to reverse the burden of proof?

Yes, held the EAT in The Solicitors Regulation Authority v Mitchell.

Mrs Mitchell had her work-from-home arrangements revoked after her children started school. She raised a grievance, which was rejected. Her comparator was Mr Singh; he was employed in the same role, and allowed to work from home to care for his ill son.

The SRA claimed he wasn't a valid comparator as his arrangement was a permanent change to his contract and he had a large commute. Mrs Mitchell didn’t need to work from home and other members of the team wanted to work flexibly.

The tribunal found she had established a prima facie case and accordingly, the burden of proof had shifted. The Tribunal found the explanation for the treatment was inadequate (based on her manager’s oral evidence which lacked credibility) and inferred discrimination.

The SRA appealed on the grounds that evidence of unreasonable treatment coupled with a different protected characteristic was not sufficient without 'something more' to reverse the burden of proof. The EAT found a false explanation by the witness for the treatment can constitute 'something more' and, therefore, the tribunal could infer discrimination.

Senior President of Tribunal's Annual Report

Thanks to Laurie Anstis of Boyes Turner for preparing this case summary

The Senior President of Tribunals has published his annual report for 2014.

The sections dealing with the Employment Appeal Tribunal and Employment Tribunal start at page 63. Some notable points from the reports of the respective Presidents are:
 

• Appeals to the EAT are down by 1/3rd following the introduction of fees (page 63)


• Presidential guidance on case management in the employment tribunals in England and Wales is “imminent” (page 66)


• Judicial mediation in the employment tribunal has a success rate of over 70% (pages 68 & 72), and


• ”It may well be that the role of the non legal members [in employment tribunals in England and Wales] needs to be reviewed.” (page 68)

Early Conciliation

The Employment Tribunals (Early Conciliation : Exemptions and Rules of Procedure) have been published, confirming that Early Conciliation will come into force on 6th April 2014.  Under the new rules, Claimants will need to contact Acas before issuing a tribunal claim, albeit there is no obligation to actually engage in conciliation.

The procedure is much simpler than that suggested by the draft Regulations issued last summer.  More to follow in due course...

Separately, another SI confirms that the financial penalty regime will also begin on 6th April 2014.

Fee Shifting in the EAT

Thanks to James English of Samuel Phillips solicitors for preparing this case summary

Should an unsuccessful Respondent in an Employment Appeal Tribunal case pay the £1,600 issue and hearing fees incurred by the successful Claimant?

Normally yes, holds the EAT, in Portnykh v Nomura.

Having dealt with an interlocutory appeal, the EAT had to consider whether or not it should order the Respondent to pay all or part of the Claimant's fees. Rule 34A(2)(a) gives the EAT a discretion to do so if the appeal is successful in full or in part.

The EAT considered a number of factors, including the fact that the appeal was a highly arguable matter in a difficult area, that it was an interlocutory or case management issue rather than a full merits hearing, and that the Claimant had not behaved in a helpful or co-operative way. Nonetheless, the EAT concluded that the Claimant's appeal had succeeded, that an appellant of a substantive judgment should be in no better position, and that the Claimant's conduct had not influenced the conduct of the appeal.

However, the costs order was made conditional on the Appellant's application for fee remission (the outcome of which was not yet known) being unsuccessful.

This resonates with the recent judgment in the Unison judicial review, where the court noted that a successful Claimant would normally expect to recover fees from the Respondent before the employment tribunal.

Discrimination: Liability for Agents

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary In the field of discrimination, will an employee of an independent contractor be an agent of a third-party employer simply because they carry out work on behalf of the third party? Ordinarily not, holds the Court of Appeal in Kemeh v Ministry of Defence. The appellant was employed by the Army as a cook in the Falkland Islands garrison. The Ministry had contracted with a third party to provide facilities management services at the garrison; that third party had in turn sub-contracted with a fourth party for the provision of catering services. The appellant was subjected to two directly discriminatory remarks, one by his Ministry-employed line manager and another by a butcher employed by the fourth party. The Ministry accepted liability for the line manager's comment but denied it in respect of the butcher. The Court of Appeal (Elias LJ giving the lead judgment) upheld the EAT's earlier decision to dismiss the claim in respect of the fourth-party employee, determining that it would not normally be appropriate to label such individuals as agents of the ultimate employer. To be accurately described as such they would require a degree of authorisation beyond the carrying out of work; there would need to be "very cogent evidence" showing that the tasks that person carried out as an employee were also being performed as an agent. In relation to the comment made by the appellant's line manager, the employment tribunal had awarded £12,000 as compensation for injury to feelings. The EAT overturned that award as being manifestly excessive. Elias LJ agreed with the EAT on this point, reminding us that although each case will be fact-specific it would not normally be appropriate for one-off remarks to merit awards above the lower band of the Vento guidelines.

Tribunal Fees: Judicial Review Result

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Was the imposition of fees for Claimants to bring Employment Tribunal proceedings unlawful? No, holds the High Court in The Queen on the Application of Unison v Lord Chancellor (Moses LJ and Irwin J), turning down the Union’s judicial review application against the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (the ‘2013 Order’). However, there is some scope for the fees regime to be reconsidered as its impact becomes apparent. There were four challenges to the lawfulness of the 2013 Order. (1) The requirement to pay fees as a condition of access to the Employment Tribunal and Employment Appeal Tribunal violates the principle of effectiveness since it will make it virtually impossible, excessively difficult, to exercise rights conferred by EU law; (2) The requirement violates the principle of equivalence since the requirement to pay fees or fees at the levels prescribed means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions; (3) That in reaching the decision to introduce the new fees regime and in making the 2013 Order the defendant acted in breach of the Public Sector Equality Duty, and (4) That the effect of the 2013 Order is indirectly discriminatory and unlawful. All challenges were dismissed: (1)  Having considered the impact of the fees regime on various hypothetical Claimants with a range of income and capital at their disposal, the High Court held (para. 40) that the fees regime provided ‘…sufficient opportunity even for families on very modest means…’ and noted that ‘…Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult…’ The Court noted that a hearing fee might be due before exchange of statements, and said that it expected that a ‘full exchange of information’ would be encouraged by a Tribunal before a hearing fee is due (para. 27), which might help Claimants assess the likelihood of success. (2) In respect of the equivalence issue, the High Court considered whether the fees regime was comparable to non-Employment Tribunal claims, including a Human Rights claim in the County Court. The Court noted that the cost regimes were different and that free ‘early claim’ conciliation with ACAS would be available for ET claims (from April 6th 2014), and that it is expected that successful ET Claimants will recover their fees, and held that the principal of equivalence was not breached. (3) The Public Sector Equality Duty was not breached, there had been consultation over the level of fees and the fee remission scheme could offset adverse impacts arising from fees. The Court noted that the Public Sector Equality Duty is a continuing one (para. 69) and if the introduction of fees has a ‘…damaging effect on the fundamental obligation of the Lord Chancellor and government, to eliminate, so far as humanly possible, discrimination against those with relevant protected characteristics and advance equality of opportunity, then the Lord Chancellor will have to take such steps as are necessary by adjusting the regime…’. (4) The Indirect Discrimination challenge focused on the impact of the higher fees for Type B claims (Equal Pay) than Type A claims, and a disparate impact on the group affected (i.e. women). The Court felt that a Judicial Review was not the appropriate way to resolve evidential issues over adverse impacts but was prepared to accept as a general proposition that women earn less than men, and so went on to consider the objective justification for Type B fees, and found itself unable to reach a conclusion (para. 88). The Court decided, noting the duty under the Equality Act on the Lord Chancellor, to wait and see and to ‘…hold the Lord Chancellor to account should his optimism as to the fairness of this (fee) regime prove unfounded…’ (para. 89). The door may be open to future challenges, if not to the fees in principle, then the level of fees and of Type B fees in particular.  Meanwhile, Unison has issued a press release announcing it intends to appeal to the Court of Appeal.

Newsflash: Unison JR against Tribunal Fees Unsuccessful

The administrative court has dismissed Unison's judicial review application challenging the introduction of fees for bringing employment tribunal claims. More follows...

TUPE: Harmonisation of terms

Thanks to Nathaniel Caiden of Cloisters for preparing this case summary.

Does Berriman v Delabole Slate (1985) apply if a ‘TUPE’ dismissal was part of a wider cost saving plan? Yes
Can an employee be ‘re-engaged’ if still employed by the employer? Yes

The Court of Appeal in the TUPE case of Hazel & anor v Manchester College has answered the above two questions in the affirmative. The facts of the case can be found in the previous bulletin reporting the EAT decision.

Since Berriman v Delabole Slate (1985) it has been clear that in the TUPE context dismissals as a result of ‘harmonisation’ do not amount to “economic, technical organisation reason entailing changes in the workforce”. Accordingly, these dismissals would be automatically unfair dismissals under TUPE 2006.

In Hazel & anor v Manchester College the employer tried to get around Berriman by arguing that the dismissal of the employees was not because of harmonising contracts in isolation but rather part of overall cost saving strategies which included workforce changes in the form redundancy. However, the Court of Appeal gave this argument relatively short shrift stating that in relation to these individual employees the principal reason for the dismissal was refusal to accept the new ‘harmonised’ terms, this was connected with the TUPE transfer, and this following Berriman is not a reason “entailing changes in the workforce”. So, the collective context could not circumvent the protection of TUPE that applies to individual contracts of employment.

Interestingly, the employer also appealed the re-engagement remedy aspect by arguing that this remedy was not available as the employees had moved onto the ‘new’ contracts (ie still employed by the same employer) and so the tribunal had no jurisdiction to order them to be ‘re-engaged’ under the terms of the ‘old’ contracts. The Court of Appeal rejected this and accepted the employees’ argument that the employer’s argument confused “termination of the contract employment” with “termination of the employment relationship”. Although there was still an “employment relationship” the ‘old’ contract of employment had been terminated.

The case was decided under the 2006 TUPE Regulations - it is unclear whether the slight change in the wording of TUPE introduced by last month's amendments will lead to a different result going forward.

Collective Redundancy Consultation

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary In light of the CJEU’s decision that terminating an employment relationship between a UK national and a non-member state did not fall within the scope of the Collective Redundancies Directive, should domestic law be interpreted on the basis that Parliament cannot have intended to impose any obligations that were not required by the Directive? No, held the Court of Appeal in Nolan v USA. Ms Nolan worked at a US Army base in the UK which closed down. Her employer, the USA, failed to comply with the collective consultation obligations set out in TULCRA. On reference to the CJEU, it determined that dismissals by non-member state employers fell outside the scope of the Directive. Before the Court of Appeal, the USA argued that Government policy was that when transposing an EU directive into domestic law to generally avoid going beyond the minimum requirements imposed by that directive. On that basis, it reasoned, TULCRA must be construed on the basis that Parliament cannot have intended to confer any rights, or impose any obligations, that were not required by the Directive. The Court of Appeal rejected this argument on the basis that in this case the draftsmen made a deliberate choice not to reproduce the terms of the Directive. It was hoped that the Court would address the apparent inconsistency between English and EU law on whether an employer needs to consult on the underlying business decision which gave rise to a proposed collective redundancy as oppose to merely about the consequences of that decision ('the Fujitsu question'); however, that matter will be determined at a future date.

Constructive Dismissal and the Johnson exclusion zone

Thanks to David Leslie of Lyons Davidson for preparing this case summary

Does the Johnson exclusion zone apply in a case of constructive dismissal based on fundamental breach in the redundancy process where the Respondent has withdrawn notice of dismissal as a result of the Claimant's appeal, but the Claimant then resigns? No, holds the EAT in Gebremariam v Ethiopian Airlines.

Ms Gebremariam was given notice that she was to be dismissed as redundant. Following her appeal, the Respondent withdrew notice of dismissal. Ms Gebremariam resigned arguing that the Respondent's conduct in the redundancy process was in breach of the implied term of mutual trust and confidence.

The Employment Tribunal found that although the redundancy process breached trust and confidence, following the successful appeal, that breach could no longer be relied upon.

Ms Gebremariam appealed. The Respondent cross-appealed, arguing that following Johnson v Unisys, a breach of contract cannot be relied upon, to bring a claim for constructive dismissal, if it occurs in relation to the dismissal process.

The EAT disagreed, finding that Ms Gebremariam resigned in response to acts that occurred before the dismissal took place.

The EAT commented further that "the Johnson exclusion zone applies to common law claims for damages which conflict with the statutory jurisdiction as to unfair dismissal". It therefore did not apply where the Claimant was pursuing the statutory claim of unfair dismissal.

The case has been referred back to the Employment Tribunal to reconsider certain findings including that, in effect, the Respondent cured the breach by withdrawing notice of dismissal, apparently contrary to the principle in Buckland v Bournemouth University.