Appeal documents cannot be lodged using Dropbox link

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

Can a notice of appeal to the EAT be lodged by sending a link to a Dropbox document?

No, held the EAT in Majekodunmi v City Facilities Management, in a case calculated to charm aficionados of the Postal Rule and its many variants.

The Claimant’s employment tribunal claim had been struck out, and he sought to appeal. On the penultimate day of the 42 day time for appealing, his representative emailed the grounds of appeal and some of the mandatory supporting documents to the EAT. On the last day, instead of sending the remaining documents as attachments to one or more emails, as directed in the relevant EAT guidance (set out in leaflet T440), she sent a link to a zip file on Dropbox.

HHJ Eady agreed with the Registrar that the appeal had not been validly lodged within the 42-day period. The difference between an email attachment and a Dropbox link was clear. In one case, the EAT would have possession of the attachment as soon as it had collected the email - even if it then lost its internet connection. In the other, someone would need to follow the link to an external location and save a copy of the document before the EAT would have possession of it.

Reasonableness of Lay-Off Period

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

Is an express power to lay off subject to an implied term of reasonableness?

No, held the EAT in Craig v Bob Lindfield & Sons.

Mr Craig's employment contract allowed for lay off and short-term working for an indefinite period, without pay. After four weeks lay off without pay, he resigned and claimed that he had been constructively dismissed because the lay off had gone on for longer than a reasonable period.

An employment tribunal followed the decision of Kenneth MacRae v Dawson [1984] IRLR 5 (preferring it over the earlier decision of A Dakri & Co Ltd v Tiffen [1981] ICR 256 to the contrary) and held that there was no term to be implied as to reasonableness so far as the length of lay off was concerned, but that if there had been, the period was not unreasonable in all the circumstances of the case. As there was no repudiatory breach of contract, there was no constructive dismissal.

The EAT (Langstaff P presiding) dismissed the appeal, ruling that there was no implied term as contended for. Dawson should be followed unless obviously wrong, and, since it was later in time, and had expressly considered Tiffin, it was in any event to be preferred.

Langstaff P firmly stated that a contract remains a wage/work bargain. If that bargain provides that there are some circumstances in which no money will be paid, no work done, or both, then the failure of the employer to pay in those circumstances will not be a breach of contract. Further, Parliament had provided a scheme for balancing the rights and interests of employer and employee on those occasions where both were adversely affected by a downturn in business. The Employment Rights Act 1996, s148 provides for a period of lay off or short time working (LOST) during which there is no entitlement to claim a redundancy payment. But, after the period of LOST prescribed by ERA s148(2), an employee can serve a notice claiming a payment. For this additional reason this left no room for the implied term in the employment contract advanced by Mr Craig.

Langstaff P did not rule out (see para 46) a constructive dismissal claim based on the employer's breach of the duty of trust and confidence (for example if the employer's desire to maximize profits resulted in behaviour calculated to damage or destroy the relationship of trust and confidence). But this did not arise in the present case.

Important: Gender Pay Reporting

The Government has published the draft The Equality Act (Gender Pay Gap Information) Regulations 2016.

Now intended to come into force in October 2016 (with the first reports to be published in April 2017), the draft Regulations set out the framework for the new gender pay reporting requirements.  Employers will be required to publish mean and median pay information gleaned from the whole workforce.  They must also publish how many men and women appear in each quartile of pay in the workforce.

The full pay report information must be published on the employer's website every year, and left there for at least three years, and must also upload the information to the Government.  The Government's initial intent is for employers who do not comply to be 'named and shamed', and will review whether civil or criminal penalties for non-compliance should be introduced in due course.

The draft Regulations are open for consultation until 11 March 2016.

View all documents from the Government Equalities Office.

TUPE

Who hates TUPE? Raise your hand now…

In Mustafa v Trek Highway Services, the Employment Appeal Tribunal has ruled on an appeal which was - essentially - a case turning on its own facts.

But it’s a good decision to read if you’re a TUPEphile or suffer from TUPEphobia, as it reviews many well-established TUPE principles in an easy-to-understand way.

Apprenticeship Levy

The Government has published the draft legislation introducing the apprenticeship levy, expected to come into force in April 2017.

The levy is on UK employers to fund new apprenticeships. The levy will be charged at a rate of 0.5% of an employer’s paybill. Each employer will receive an allowance of £15,000 to offset against their levy payment - meaning it won't be payable by employers with a payroll under £3 million.

Spotted the year it's coming in? 2017. So I won't be talking about it at the Employment Law MasterClass 2016. But I will be covering some excellent stuff that you need to know about for this year.
 

Disability Discrimination: Meaning of 'Day to Day' Activities

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

Are 'warehouse operations', such as manually lifting and moving cases of up to 25 kg, 'normal day-to-day activities' for the purposes of disability under the Equality Act 2010?

Yes, held the EAT overturning an employment tribunal's decision in Banaszczyk v Booker.

The Claimant, a picker in a distribution centre, had been found not to be disabled at a preliminary hearing. The Employment Judge, having accepted medical evidence regarding the Claimant's long-term back condition, considered that it did not have a substantial adverse effect on his carrying out 'normal day-to-day activities' as its impact was limited to manual lifting of items of up to 25kg at work, which the Employment Judge regarded as not being a 'normal day-to-day' activity.

The EAT disagreed, noting that the scope of 'normal day-to-day activities' extended to warehouse work (and work generally). So, on the evidence accepted by the employment tribunal, the only conclusion was that the Claimant was a disabled person.

The EAT cautioned against regarding a work rate, such as a warehouse 'pick rate', as an impaired activity, e.g. a target of moving 210 cases per hour, but rather to look at the impairment of the activity itself, e.g. the lifting and moving of cases.

Whistleblowing - Prescribed People

A qualifying disclosure will normally be protected, for whistleblowing purposes, if made to the employer. It will also be protected if made to a 'prescribed person' and is within their remit, and if the information disclosed within it is substantially true.

The Government has updated its list of prescribed persons, to whom a protected disclosure can be made.

Upper Tribunal holds damages for injury for feelings are taxable

Thanks to James English of Hempsons solicitors for preparing this case summary Is a payment in respect of injury to feelings made on the termination of employment subject to tax? Yes, held the Tax and Chancery Chamber of the Upper Tribunal in Moorthy v The Commissioners for Her Majesty's Revenue and Customs. The Claimant was made redundant. He then brought claims of unfair dismissal and age discrimination, which related entirely to his dismissal. By a settlement, the Claimant was paid an ex gratia sum of £200,000 by his employer, who treated £30,000 as tax exempt under s401 of ITEPA 2003 and deducted tax at basic rate from the remainder. In his tax return, the Claimant treated the balance as tax free. HMRC disagreed and issued a closure notice treating an extra £140,023 as taxable income but they did make a concession to treat a further £30,000 as damages for injury to feelings arising from age discrimination, and so not taxable. The Claimant appealed. The First Tier Tribunal held that the balance was taxable. The Claimant appealed again. The Upper Tribunal upheld the decision. Section 406(b) of ITEPA treats a payment "on account of injury to an employee" as not taxable, but that must be a medical condition. 'Injury' is akin to death or disability. It does not include injury to feelings. It applies to payments in connection with the termination of employment, or a change of duties or earnings. The Upper Tribunal noted that there appeared to be an anomalous distinction that compensation for discrimination during employment is not taxable, so that compensation may have to be apportioned between events before and after termination for tax purposes.

Acas Early Conciliation

Thanks to Jamie Anderson of Trinity Chambers for preparing this case summary

Is an employment tribunal prevented from adding a Respondent to proceedings where the Respondent being added is not named on the Early Conciliation certificate?

No, held the EAT in Drake International Systems Ltd and Others v Blue Arrow Ltd.

Having commenced proceedings, the Claimant (a transferee seeking to claim against a transferor) sought to amend the claim to add four subsidiary companies as Respondents.

Upholding the decision to allow the amendment, Langstaff P held that a claim had been properly instituted. The subsequent decision to allow the addition of a Respondent was a case management decision in which the employment tribunal has a discretion to be exercised in accordance with the longstanding principles set out inSelkent Bus Co v Moore [1996] ICR 836.

The case is worth a read as Langstaff P sets out a number of policy considerations underlying the Early Conciliation regime. He concludes by noting that a "happy consequence" of his reasoning is that satellite litigation (as occurred under the now repealed dispute resolution procedures) could be avoided.

National Living / Minimum Wage

The National Minimum Wage (Amendment) Regulations 2016 have been made, and come into force on 1 April 2016.

They make it clear - if there was ever any doubt - that the 'National Living Wage' for over-25 year olds promised by the Government last year is nothing more than a tweak to the minimum wage regulations.

The new minimum wages from 1 April 2016 will be:-

• age 25+ - £7.20ph (the National Living Wage)
• 21-25 - £6.70ph
• 18-21 - £5.30ph
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• apprentices - £3.30ph.

Acas Early Conciliation

Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary

Does an error in the identification of a Respondent in an Acas early conciliation certificate prevent the employment tribunal from accepting a claim?

No, held the EAT in Mist v Derby Community NHS Trust.

The first Respondent was named correctly in the Claimant's ET1, but incorrectly on the Acas EC certificate. The second Respondent, which was joined at a later date, challenged the Claimant's compliance with the EC provisions. HHJ Eady QC rejected the second Respondent's arguments in relation to the EC provisions:

1) s18A ETA 1996 requires a Claimant to provide prescribed information to Acas. This includes the prospective Respondent's name, but not its full legal title. If relevant information is absent Acas may reject the notification or contact the Claimant to obtain any missing information. In this case Acas did not reject the notification and the employment tribunal was entitled to treat the EC certificate as conclusive in terms of the Claimant's compliance with s18A.

2) rule 12(2A) of the ET Rules 2013 provides that an Employment Judge can decide that a claim should not be rejected where there is a difference between the Respondent's details in the ET1 and the EC certificate.

3) as for the application to join the second Respondent, this fell to be considered as a possible amendment to an existing claim and did not require a further EC notification.

EAT Practice Direction

The Employment Appeal Tribunal wishes to remind advocates about the July 2015 Practice Direction.

In particular, advocates' attention is drawn to the section on Notices of Appeal, and the rule that the grounds of appeal should normally be no more than two pages long. The consequences of overly prolix Grounds of Appeal are set out in paragraph 7 of the Practice Direction.

Police Misconduct Panels Immune from Discrimination Claims

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary Can a police officer bring a claim against a Police Misconduct Board for discriminating against her? No, held the Court of Appeal in P v The Commissioner of Police for the Metropolis. The Claimant, a serving Police Officer, suffered post-traumatic stress disorder (PTSD) as a result of an assault suffered at work. Whilst in drink, she was involved in an incident which led to her arrest and dismissal, which she contended arose in consequence of her PTSD. She claimed that, in dismissing her, the Police Misconduct Board discriminated against her by treating her unfavourably for something arising in consequence of her disability, and failing to make reasonable adjustments. The Court of Appeal dismissed the appeal, upholding the decisions of the employment tribunal and EAT that the Police Misconduct Board was a judicial body and therefore enjoyed immunity from suit. This does not, of course, prevent a police officer from bringing a discrimination or whistleblowing claim against their Chief Constable.

Unpaid Awards and Settlements - Penalty Notices

According to a written answer in Hansard, the Government is intending to bring the new 'unpaid award penalties' into force from April 2016.

Contained in the new ss37A-37Q of the Employment Tribunals Act 1996, the Government will issue a 'warning notice' if any awards or settlements remain unpaid. If the monies remain unpaid, then the employer will be subject to a 'penalty notice' of 50% of the outstanding amount, subject to a £100 minimum and £5,000 maximum. The money is payable to the Secretary of State, not the employee.

This is additional to the financial penalty which has been payable in claims presented after April 2014, where 'aggravating features' exist, when a tribunal can order the employer to pay an additional 50% (subject to the same maximum and minimum).

Interim Briggs Report Published

Lord Justice Briggs has published his interim report on the civil courts structure.

In paragraphs 11.8 to 11.18, he tentatively recommends that ETs and the EAT be moved within the civil court structure (rather than staying where they are, described at paragraph 3.63 as "their rather lonely existence", or being moved fully into the Tribunals Service).

Comments are invited on the interim report by the end of February, with a view to the final report being published in July 2016.

Case Management Orders

Thanks to Andrew Smith of Matrix Chambers for preparing this case summary

When may an Employment Tribunal vary a case management order?

Rarely, holds the EAT in Serco Ltd v Wells.

An Employment Judge had made an order listing a preliminary hearing (PH) to consider the claimant's length of service. As the proceedings continued, an agreed list of 96 issues was drawn up for use at the full hearing. A different Judge then considered whether holding the PH was "realistic" given the fact that a 10-day full hearing had already been listed, and revoked the order.

The employer appealed to the EAT. The focus of the appeal was on the meaning of rule 29 of the Employment Tribunal Rules 2013, which provides that a tribunal may "vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice".

In another accessible judgment providing a comprehensive review of the authorities (in this case, those arising from the current and past employment tribunal rules as well as from the Civil Procedure Rules 1998), HHJ Hand QC took a restrictive view of the Tribunal's powers. Put simply, a case management order will not be susceptible to variation or revocation unless "there has been a material change of circumstances since the order was made", "where the order has been based on either a misstatement", or in "rare" circumstances which are "out of the ordinary".

Monitoring Employees' Use of the Internet

Is the right to respect for private life and correspondence breached if employers monitor employees' personal communications at work?

No, subject to reasonableness/proportionality, according to the European Court of Human Rights in Barbulescu v Romania.

Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life.  This was in breach of his employment contract.  His employer, discovering this accidentally, dismissed him.  Mr Barbulescu argued that the Rumanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Rumanian courts were entitled to look at that evidence in deciding whether the dismissal was justified.  The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages.  The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours.

Zero Hour Contracts

At last, some real protection has been introduced for zero hour contract workers.

In force today, The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015 provide that:-
 

• any dismissal of a zero hour contract employee is automatically unfair, if the principal reason is that s/he breached a contractual clause prohibiting him/her from working for another employer
   
• no qualifying period is required to bring such an unfair dismissal claim; and,
   
• it is also unlawful to submit a zero hour worker (note: worker not employee) to detriments if they work for another employer in breach of a clause prohibiting them from doing so.

Territorial Jurisdiction: Seafarers

[Thanks to Benjamin Jones, pupil barrister at Littleton Chambers, for preparing this case summary.]

Do British seafarers employed on ships operating wholly or principally outside of UK territorial waters “ordinarily work in Great Britain under their contracts” for the purposes of s.1 Pensions Act 2008?

In R (Fleet Maritime Services (Bermuda) Limited) v The Pensions Regulator the High Court (Leggatt J) determined that they do if they work from a ‘base’ in Britain, but that this will not be the case if they do not habitually begin and end their tours of duty from a British port.

The Regulator issued the Bermuda-incorporated Claimant with a compliance notice for failing to auto-enrol British-domiciled seafarers regularly working aboard its cruise ships. The Claimant brought a judicial review because its ships operated principally outside of British territorial waters.

The Court concluded that the Lawson v Serco approach to determining a peripatetic worker's ‘base’ for the purposes of unfair dismissal jurisdiction was also applicable to the 2008 Act. The Court further determined that, irrespective of duration aboard, seafarers are, under the 2008 Act, based at the port from which their tours of duty generally begin and end not aboard the ship itself or under its flag state. For the Act to apply some degree of regularity is also required, a single tour cannot establish a base.

Days spent traveling between Britain and foreign ports of embarkation, whilst remunerated, were also properly treated as commuting, not work. As such the Regulator had erred in finding a duty in relation to those of the Claimant’s employees whose tours did not habitually commence from British ports.

New Resources

There are some useful resources, just published, which some practitioners may find interesting/helpful.

First, a House of Commons Briefing Paper on Whistleblowing and Gagging Clauses.  It's remarkably good, particularly on the public interest test.

Second, two Acas Guides - one on conducting workplace investigations, the other on dealing with legal highs in the workplace.