Indirect Age Discrimination

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary If an employer introduces contractual changes, can those changes themselves be regarded as a provision, criterion or practice (PCP)? Yes, held the EAT in Edie v HCL Insurance. HCL had acquired employees with widely varying employment conditions after a series of transfers. They decided to harmonise their terms of employment by introducing compulsory new contracts; those who refused to sign were dismissed. Ms Edie and others argued that the change put them at a particular disadvantage compared to their younger colleagues, because before the change they had benefited disproportionately from the more valuable contractual rights that were being abolished. HCL relied on ABN Amro Management v RBS to argue that the change could not be a PCP; the PCP was the new contract, which did not in itself disproportionately disadvantage older employees. The EAT distinguished ABN v RBS, relying on the difference between a mere change between two inherently non-discriminatory policies (as in ABN) on the one hand; and the imposition of a choice between accepting new terms and being dismissed on the other. But the claim still failed, because the EAT also upheld the employment tribunal's finding that the operation of the PCP was justified.

HHJ Jeremy McMullen QC 1948 - 2015

Employment law practitioners will be saddened to learn of the death of His Honour Judge Jeremy McMullen QC, who has passed away after a period of illness. HHJ Jeremy McMullen was a resident judge of the Employment Appeal Tribunal, sitting there from 2001 and being promoted to senior circuit judge in 2006.  He sat as a deputy High Court Judge, and was vice-president of the Industrial Law Society and the Employment Law Bar Association. Before elevation to the Bench, he was an official and legal officer of the General & Municipal Workers' Union (now GMB), and a barrister at Old Square Chambers. He retired in 2013, but maintained strong contacts with the employment law community and his many friends and colleagues at the Bar and on the Bench.

Employment Status

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

Was an unremunerated director both an employee and a worker?

Yes, held the Court of Appeal, on the facts in Stack v Ajar-Tec.

Agar-Tec had three shareholders, who were each directors, one of whom was the Claimant, Mr Stack. He had no written employment contract. He also had other business interests. But for three years he devoted approximately 80% of his time on the company's business. It was common ground that he was never paid and never pursued payment. And there was no provision in the company's accounts reflecting liability to pay him.

But the Employment Judge, applying the indicia of a contract of service to be found in Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance [1968] 2 QB 497, held that there was an express agreement that Mr Stack would do work for the company and it was an implied term that he would (eventually) be paid for what he did. He therefore concluded Mr Stack was an employee. It was unnecessary to decide separately the issue of whether he was a worker, but an analysis of the relevant factors brought the Employment Judge to the conclusion that he was. The EAT reversed the decision of the employment tribunal on the basis that it was wrong to find an express contract of employment on the basis of an implied term that Mr Stack should be paid for remuneration. In its view the arrangement lacked agreed consideration.

The Court of Appeal reversed the EAT, reinstating the employment judge's decision. The company was incorporated essentially by three promoters, each agreeing to bring different things to the venture. And it was in the nature of the agreement that Mr Stack accepted some obligation to work for the company. In this particular case it was not fatal to the existence of a concluded contract that the three promoters failed expressly to agree a term concerning remuneration.

The process of contract formation may be partly express and partly by implication. Here, given the way the three directors dealt with each other, a term for remuneration could be implied in order to give business reality to the transaction and create enforceable obligations between parties dealing with each other in circumstances in which one would expect that business reality, and those enforceable obligations, to exist.

State Immunity

Thanks to Grahame Anderson of Littleton Chambers for preparing this case summary

Is a member of service staff at a foreign diplomatic mission to the UK able to bring proceedings in this jurisdiction against the employing state to assert UK employment rights?

In some cases yes, held the Court of Appeal in Benkharbouche and Janah v Sudan and Libya.

The Appellants worked as service staff in the Sudanese and Libyan embassies in London. Between them, they brought claims for unfair dismissal, arrears of pay, race discrimination, harassment and claims in relation to the national minimum wage and Working Time Regulations 1998.

The Court of Appeal held that the blanket immunity from claims provided by section 16(1)(a) of the State Immunity Act 1978 went beyond the UK's obligations in public international law. ApplyingHolland v Lampen Wolfe [2000] 1 WLR 1573, if section 16(1)(a) had been a mere implementation of international law obligations, there could have been no question of a violation of Article 6 of the Human Rights Act 1998.

The Court examined a number of treaties to which the UK is party and customary international law, and concluded that a blanket ban was not required in international law and did not fall within any margin of appreciation. It was not a proportionate means of achieving a legitimate aim: attempts in the case law to justify similar bans related to the legitimate aim of implementing international law obligations. Section 16(1)(a) is therefore incompatible with the Human Rights Act. The remedy was a declaration of incompatibility.

The Court of Appeal came to the same conclusion on SIA section 4(2)(b) which bars claims where the claimant is not habitually resident in the UK.

The Court of Appeal agreed with Langstaff P in the EAT that the immunity also violated Article 47 of the EU Charter ("Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal") which, enshrining a general principle of EU law, was directly effective against the Respondents. The Appellants could therefore proceed in their claims "guaranteed by the law of the Union": claims under the WTR 1998, and claims for racial discrimination and harassment.

Redundancy: Meaning of 'Establishment'

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Does the EU Collective Redundancies Directive 98/59 require that the numbers of employees dismissed across an employer’s various establishments be aggregated to see if the thresholds for protection under the Directive are met? No, says Advocate General Wahl in Usdaw & Wilson v Woolworths and others, giving the preliminary opinion on the reference to the ECJ from the Court of Appeal in the Woolworths case (summarised here), which was heard along with the Northern Irish industrial tribunal case of Lyttle v Bluebird and a Spanish case, Cañas v Nexea. The judgment looked at the alternative methods for implementing collective redundancies under Article 1 (a) (i) or (ii). The Court of Appeal referred two questions from the ‘Woolworths’ case, the first whether the phrase in the Directive ‘at least 20’ dismissals referred to dismissals over the employer’s establishments, or the number in each establishment, and if it did refer to each establishment, what was meant by ‘establishment’? The Advocate General noted (para. 61) ‘…that directive does not require — nor does it preclude — aggregating the number of dismissals in all the employer’s establishments for the purposes of verifying whether the thresholds set in Article 1(1)(a) are met...”and noted that ‘…It is for the Member States to decide, where appropriate, to increase the level of protection… …provided that, on every occasion … it would be more favourable to the workers made redundant…’. The Advocate General recommended answering that the meaning of ‘establishment’ in the Directive was the same under Article 1 (1) (a) (i) and (ii) and ‘…that concept denotes the unit to which the workers made redundant are assigned to carry out their duties, which it is for the national court to determine…’. The Advocate General recommended not answering the Court of Appeal’s second question regarding redundant employees of insolvent companies being able to claim against the UK government for not implementing the Directive properly, without suggesting that was the case. This opinion is not binding on the full ECJ, which should rule on the questions later in the year.

Affirmation and Sickness

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Does an employee who might claim constructive dismissal affirm the contract by claiming sick pay whilst off sick?

Not necessarily, held the EAT in Colomar Mari v Reuters.

The Claimant was a systems support analyst. She resigned after 19 months after going off sick with stress, anxiety and depression. An employment tribunal had rejected the Claimant's assertion that she had been too ill to resign sooner and dismissed the complaint on the basis of affirmation.

The EAT dismissed the appeal, the employment tribunal had correctly applied the law to the facts, with affirmation being a mixed question of law and fact, the decision was not perverse.

Whilst the EAT noted 'What can be safely said is that an innocent employee faced with a repudiatory breach is not to be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period whilst protesting about the position' the judgment stood on the facts found by the employment tribunal.

The EAT noted a previous authority, Hadji v St Luke's Plymouth, including the principle that an employment tribunal may find affirmation if an employee calls on the employer to perform its obligations under the contract. The employment tribunal found that the Claimant had done so, by accepting contractual sick pay, and requesting PHI amongst other factors.

The employment tribunal dealt with affirmation as a preliminary issue, without making findings of fact, but assuming that the Claimant had shown a fundamental breach of contract. The EAT indicated that this should be regarded as an exceptional course, in nearly all cases which go to a full hearing, it is better to determine the issues.

National Minimum Wage

The draft National Minimum Wage Regulations 2015 have been published. They consolidate the existing 28 (that's right - 28 - here's the proof) separate statutory instruments dealing with the national minimum wage since it was first introduced in 1999. It's an important piece of social legislation. But don't read it unless you have to!

Appeals against Dismissal

Thanks to Chesca Lord of Cloisters for preparing this case summary

Where an employer decides that an appeal against dismissal should succeed, is communication of the decision necessary to revive the contract?

No, held the EAT in Salmon v Castlebeck Care, upon an appeal succeeding there are no further steps that are needed in order to revive the contract. 

Mrs Salmon was dismissed for gross misconduct prior to a TUPE transfer. After the date of the transfer, the transferring HR Director decided that her dismissal was unsafe. She did not communicate that decision or make any direction as to reinstatement, but directed an employment consultancy to negotiate a settlement (although this never actually occurred).

The EAT, allowing Mrs Salmon’s appeal, held that once an appeal against dismissal under a contractual appeal procedure has been upheld, the contract is automatically revived. There is no need for a separate reinstatement decision or communication of that decision. The situation was not analogous to that in which an employee is notified of a dismissal (in which case communication is necessary for the decision to be effective).

Mrs Salmon was therefore employed immediately before the transfer and entitled to pursue her claim against the transferee as per G4S Justice Services (UK) v Anstey.

Tribunal Adjournments - BIS consultation

BIS has issued a consultation document, seeking views on new legislation restricting adjournments in employment tribunals.

The proposals are:-

1. if a party has already been granted two adjournments (for whatever type of hearing, preliminary or final), it will not be allowed a third adjournment.

2. if a request for an adjournment is made less than seven days before the hearing, it will not be granted.

3. BUT (1) and (2) will not apply if (a) exceptional circumstances apply; (b) both parties agree the adjournment and the tribunal believes it is desirable to facilitate a settlement; or (c) the adjournment is requested for a reason beyond the party's control (eg an administrative error by the tribunal, or late disclosure of documents by the other side). In such a situation, the postponement may be granted but a new rule will require the tribunal to consider whether a costs order should be made.

The consultation closes on 12th March 2015.

Changes to Acas Early Conciliation Form

Acas has, today, revised its Early Conciliation notification form (both online and hard copy versions). The changes are:- 1. a new field so the Claimant can include contact details of their representative (if s/he has one). If the Claimant gives details of a representative, Acas will contact the representative directly. 2. the employer address lookup facility has been removed, as it was proving difficult for Claimants to give the correct legal identity of their employer. So Claimants now have to input the correct address manually.

Redundancy - Meaning of Place of Employment

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

When employees lost the benefit of free parking near their homes, was this a place of work redundancy?

No, held the EAT in EXOL Lubricants v Birch.

The Claimants were employed as delivery drivers using HGVs. They lived in Manchester but the depot they had to attend to load up was situated in Wednesbury. Their employment contracts also stipulated that their place of employment was Wednesbury. Because of the cost of commuting, EXOL agreed to make available secure parking for the employees' HGVs in Stockport, near their homes. They would then drive from their homes to Wednesbury and the journey to and from Stockport was treated as part of their working day, for which they were paid.

A time came when the company could no longer afford to pay for the secure parking in Stockport and so they gave notice to terminate this arrangement. The employer sought to argue that there was a fair reason for dismissal, namely redundancy, on the basis that Stockport was the Claimants' place of work rather than Wednesbury. It therefore argued that the employer had ceased to carry on business in the place where the employee was employed. The employment tribunal rejected this proposition. The employees' place of work was not Stockport, but Wednesbury, because that was where their working day began and ended. The EAT agreed.

The proper test in determining where the employee is employed for the purposes of the redundancy provisions of the ERA is as follows. First, it is proper (but by no means conclusive) to have regard to a contractual provision. Secondly, it is appropriate to consider, depending on the facts of the case, any connection the employee may have with a depot or head office. Here, the employees' contractual place of work was at Wednesbury and, secondly, they had a close connection with the Wednesbury depot. There was therefore no redundancy situation at Wednesbury because the job and the need for people to do it remained. As the employer advanced no other potentially fair reason for dismissal, the dismissals were unfair.

Employment Tribunal Fees

The House of Commons Library has produced a superb briefing note on employment tribunal fees.

It sets out, impartially and dispassionately, the impact of fees and the various arguments for and against fees in employment tribunals. It also summarises the various legal challenges to the fees regime. This is a document worth reading.

Caste discrimination

Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this week.
 
Is caste protected under the Equality Act?

Sometimes, held the EAT in Chandhok v Tirkey - but only where caste is part of a protected characteristic, usually ethnic origin.

Ms Tirkey was a migrant worker from India employed by Mr and Mrs Chandhok as a nanny. She alleged that she had been mistreated by them, in part, because she was from a lower caste.

Mr and Mrs Chandhok argued that this aspect of her claim should be struck out because caste was not a protected characteristic under the Equality Act.

The EAT, upholding the employment tribunal's decision, disagreed. Caste is not a freestanding protected characteristic. But elements of caste identity may form part of an individual's ethnic origin, particularly where caste is determined by descent or contains an identifiable ethnic identity. Therefore caste discrimination may be protected as a form of race discrimination. These factual matters are ones for the employment tribunal deciding any individual case.

Practitioners will also be interested in President's Langstaff's remarks on the importance of employment tribunal's resolving the pleaded case in the ET1 & ET3 - and not allowing themselves to be diverted into deciding allegations that are only put forward in other documents, such as witness statements (see paragraphs 16-18).

Unfair dismissal - geographic jurisdiction

Thanks to Sheryn Omeri of Cloisters for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this week.

Can an employee who returns to Australia, at her own request, but who continues to work for a UK company, bring an unfair dismissal claim?

Yes, held the EAT in Lodge v Dignity & Choice in Dying.

The Claimant was an Australian citizen employed jointly by both Respondents. After having commenced her employment at the Respondents' only office, on Oxford Street, London, her mother became ill and she sought to return to Australia.

The Claimant put forward a proposal to the Respondents whereby she would continue in her role as Head of Finance remotely from Australia using the VPN. The Respondents agreed to this proposal which operated from 2009 until the Claimant's resignation in 2013. The Claimant sought to bring claims for unfair dismissal and subjection to detriment for having made a protected disclosure. The employment tribunal held that she could not.

On appeal, HHJ Peter Clark adopted the approach of the EAT inFinancial Times Ltd v Bishop which had been approved by Lord Hoffmann in Lawson v Serco. HHJ Clark held that although, unlike Mr Bishop, the Claimant had not been posted overseas, the examples given by Lord Hoffmann in Serco, were just that.

The EAT was particularly impressed by the fact that all of the work the Claimant did from her computer in Melbourne was for the Respondents' benefit, that the Respondents had not disputed the Claimant's contention that she had no right to bring a claim in Australia and that a grievance she had raised while in Melbourne had been dealt with in London.

The EAT concluded that the Claimant did not lose her right to bring her claims in England simply because, instead of working as a physical employee in the Oxford Street office, she continued to do so as a virtual employee from Australia.

Public (and press) access to witness statements

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this week.

If an employment tribunal decides to exclude part of a witness statement under Rule 43, is that part excluded from public inspection under Rule 44?

Yes, held the EAT in Compass Group plc v Guardian News and Media Limited. At a preliminary hearing in a whistleblowing case, the parties agreed to deal with only two of five preliminary issues, leaving other issues for a final hearing. The parties agreed to 'excise' parts of the Claimant's statement dealing with 'whistleblowing' matters irrelevant to that hearing, and the Employment Judge read the excised statement. It was unclear whether the Employment Judge made an order under Rule 43 to exclude the 'excised' parts of the Claimant's statement from evidence (and public inspection under Rule 44), or whether he simply decided not to pay them any attention. A reporter for the Guardian asked to inspect the parties' entire witness statements, the Employment Judge agreed.

The EAT remitted to the Employment Judge for reconsideration as to whether he had excluded the 'excised' parts of the statement under Rule 43 or decided to pay no attention to them. The EAT noted that "what is required for inspection to be precluded by Rule 44 is simply that an order or decision has been made that parts of a witness statement should not be admitted in evidence", whereas, if an employment tribunal decides to pay no attention to parts of an admitted statement, those parts would be open to public inspection.

Therefore, parties contesting whether statements (or parts of them) should be excluded from evidence and public inspection should seek (or oppose) orders under Rule 43 to that effect.