The DTI has published an extensive report (121 pages!) as a result of a survey of tribunal users in 2,700 cases.
Some examples of the findings:
• 5% of Applicants had made previous applications to a tribunal. 56% of employers had not faced a claim before;
• 7% of sex claims are brought by men. 15% of race claims are brought by white people;
• 82% of employers said written statements of terms and conditions had been issued. Only 60% of employees agreed;
• solicitors were consulted (for advice, albeit not necessarily representation) by 63% of employers and 49% of employees;
• 62% of employees who settled their cases said they definitely or probably would not have settled without ACAS involvement;
• nearly 2/3rds of employees report stress as a result of their claim, and 16% of employees withdrew their case because of stress;
• 4% of employers have a policy of always going to a hearing, irrespective of costs or merits;
• 21% of employers had made changes to their procedures as a result of the case.
Perhaps most interestingly, public sector employees:
• bring over double the number of discrimination claims as private sector employees;
• are more likely to withdraw their cases;
• are less likely to settle their cases (one might speculate that is because of the employer's approach); and,
• are less likely to succeed at a full hearing that a private sector employee.
The full report can be seen here (Adobe Acrobat required).
Thursday, 28 February 2002
Tuesday, 26 February 2002
Amendments to Part-Time Workers Regulations
The government has today announced two amendments to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
First, the requirement that a part-time fixed-term worker must be compared with a full-time fixed-term worker, rather than a full-time permanent contract worker, will be removed. This is because the distinction may encourage less favourable treatment of fixed-term workers, and thus is contrary to the EC Fixed Term Workers Directive.
Second, the two-year backdating limit for pension schemes in regulation 8(8) will be removed, so as to comply with the House of Lord's judgment in Preston v Wolverhampton Health Authority (which was handed down in February 2001!).
For further information, click here.
First, the requirement that a part-time fixed-term worker must be compared with a full-time fixed-term worker, rather than a full-time permanent contract worker, will be removed. This is because the distinction may encourage less favourable treatment of fixed-term workers, and thus is contrary to the EC Fixed Term Workers Directive.
Second, the two-year backdating limit for pension schemes in regulation 8(8) will be removed, so as to comply with the House of Lord's judgment in Preston v Wolverhampton Health Authority (which was handed down in February 2001!).
For further information, click here.
Friday, 22 February 2002
Bennett v London Borough of Southwark
The Court of Appeal has, yesterday, handed down its decision in Bennett v London Borough of Southwark. Its flavour can best be gleaned from the opening words of Ward LJ, namely "This case fills me with despair" or the conclusion of Sedley LJ, namely the case is "both inexorable and deeply depressing".
Facts
Mrs Bennett, who is black, brought a race claim against Southwark in 1994. It was listed for 10 days in 1996, and then for a further 8 days in 1997. At the start of the resumed hearing, Mrs Bennett's lay representative applied for an ajournment on the grounds of Mrs Bennett's ill-health. The tribunal refused, on the grounds that the case had been very lengthy, she had already given evidence and her representative was capable of cross-examining in her absence.
The representative repeated the adjournment application and, when it was refused again, told the tribunal "If I was a white barrister I would not be treated in this way" and "If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position".
The tribunal decided to recuse itself, without giving the parties the opportunity to comment. The case was subsequently struck out on the grounds of scandalous conduct of proceedings.
Issues
Whilst the list of issues was quite lengthy, the pertinent ones are:
1. ought the tribunal have recused itself?
2. is the Applicant to be fixed with her representative's conduct?
3. was the (subsequent) tribunal right to strike out the claim for the scandalous conduct of proceedings?
Decision
1. the tribunal should not have recused itself. Its first course of conduct should have been to attempt to defuse the situation, perhaps by a short adjournment or simply by ignoring the allegation. At the very minimum, the tribunal should point out the consequences of the statement to the representative (i.e. a possible recusal) and invite him to withdraw it. Even if the statement is not withdrawn, a tribunal should be very cautious about adopting a course which involves wastage of significant costs and time. As Ward LJ put it:
"In getting on their high horse, [the tribunal] fell off the judgment seat."
2. an Applicant is not necessarily fixed with her representative's conduct. Whilst there is a presumption of agency, "a principal can always prove a want of actual authority, and I do not believe that the advocate's ostensible or implied authority, large as it is, extends (at least in the absence of ratification) to abusing the judicial process."
3. the subsequent tribunal was wrong to strike out the claim for scandalous conduct of proceedings. 'Scandalous' means, in this context, "the misuse of the privilege of legal process in order to vilify others [or] giving gratuitous insult to the court". Further, when deciding whether to strike out on this ground, one must look at the conduct of the entire proceedings, not just an isolated two sentences.
Accordingly, despite it being "a deeply unsatisfactory result", the Court of Appeal remitted the entire claim for a fresh hearing before a new tribunal.
To see the full judgment, click here.
Facts
Mrs Bennett, who is black, brought a race claim against Southwark in 1994. It was listed for 10 days in 1996, and then for a further 8 days in 1997. At the start of the resumed hearing, Mrs Bennett's lay representative applied for an ajournment on the grounds of Mrs Bennett's ill-health. The tribunal refused, on the grounds that the case had been very lengthy, she had already given evidence and her representative was capable of cross-examining in her absence.
The representative repeated the adjournment application and, when it was refused again, told the tribunal "If I was a white barrister I would not be treated in this way" and "If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position".
The tribunal decided to recuse itself, without giving the parties the opportunity to comment. The case was subsequently struck out on the grounds of scandalous conduct of proceedings.
Issues
Whilst the list of issues was quite lengthy, the pertinent ones are:
1. ought the tribunal have recused itself?
2. is the Applicant to be fixed with her representative's conduct?
3. was the (subsequent) tribunal right to strike out the claim for the scandalous conduct of proceedings?
Decision
1. the tribunal should not have recused itself. Its first course of conduct should have been to attempt to defuse the situation, perhaps by a short adjournment or simply by ignoring the allegation. At the very minimum, the tribunal should point out the consequences of the statement to the representative (i.e. a possible recusal) and invite him to withdraw it. Even if the statement is not withdrawn, a tribunal should be very cautious about adopting a course which involves wastage of significant costs and time. As Ward LJ put it:
"In getting on their high horse, [the tribunal] fell off the judgment seat."
2. an Applicant is not necessarily fixed with her representative's conduct. Whilst there is a presumption of agency, "a principal can always prove a want of actual authority, and I do not believe that the advocate's ostensible or implied authority, large as it is, extends (at least in the absence of ratification) to abusing the judicial process."
3. the subsequent tribunal was wrong to strike out the claim for scandalous conduct of proceedings. 'Scandalous' means, in this context, "the misuse of the privilege of legal process in order to vilify others [or] giving gratuitous insult to the court". Further, when deciding whether to strike out on this ground, one must look at the conduct of the entire proceedings, not just an isolated two sentences.
Accordingly, despite it being "a deeply unsatisfactory result", the Court of Appeal remitted the entire claim for a fresh hearing before a new tribunal.
To see the full judgment, click here.
Monday, 18 February 2002
EC Agency Workers Directive
According to this morning's lead article in the Financial Times, and to BBC Radio, the EC is drawing up a Directive to grant agency workers - including 'temps' - equal rights to pay and pensions as normal employees.
This will prevent employers offering less favourable terms to those whom they hire using employment agencies as an intermediary.
It was not clear from the news reports whether unfair dismissal rights will also be extended to agency workers (thus reversing decisions such as Montgomery v Johnson Underwood and Hewlett-Packard v O'Murphy). However, since the ECJ has already held unfair dismissal rights to be part of 'pay' for the purposes of Article 141 (Seymour-Smith), it seems entirely possible that the government will be compelled to extend unfair dismissal rights to agency workers using its powers under the Employment Relations Act 1999.
The draft Directive was, apparently, due to be published on 27th February. According to the FT, it has been delayed, probably until March.
To see the FT story, click here.
This will prevent employers offering less favourable terms to those whom they hire using employment agencies as an intermediary.
It was not clear from the news reports whether unfair dismissal rights will also be extended to agency workers (thus reversing decisions such as Montgomery v Johnson Underwood and Hewlett-Packard v O'Murphy). However, since the ECJ has already held unfair dismissal rights to be part of 'pay' for the purposes of Article 141 (Seymour-Smith), it seems entirely possible that the government will be compelled to extend unfair dismissal rights to agency workers using its powers under the Employment Relations Act 1999.
The draft Directive was, apparently, due to be published on 27th February. According to the FT, it has been delayed, probably until March.
To see the FT story, click here.
South Ayrshire Council v Morton Equal Pay Act Comparators
The Court of Session has handed down its decision in the seminal Equal Pay case of Soith Ayrshire Council v Morton, upholding the decision of the employment tribunal and the EAT.
Facts
Ms Morton was the headmistress of a Scottish primary school. Primary school teachers (who, statistically, are mostly female) are paid less than secondary school teachers (who, statistically, are mostly male). She brought a claim under the Equal Pay Act 1970, citing a male headmaster of a secondary school as one of her comparators. The headmaster was employed by a different education authority (one of 32 in Scotland). However, terms as to pay are negotiated nationally, not by each education authority separately, and bind all the educations authorities.
Issue
Could an employee from another education authority be used as a comparator under the Equal Pay Act 1970?
Decision
Yes. Following the reasoning of the ECJ in Defrenne v Sabena, the scope of an enquiry under the Equal Pay Act 1970 need not always be confined to the Claimant's own workplace, or to his own employer. Where collective bargaining units exist, any employee who falls within that collective bargaining unit may relied upon as a comparator.
The decision is available from the Court of Session website, here.
[Thanks to Stuart Neilson of McGrigor Donald, solicitors for Ms Morton, for notifying me of this decision]
Facts
Ms Morton was the headmistress of a Scottish primary school. Primary school teachers (who, statistically, are mostly female) are paid less than secondary school teachers (who, statistically, are mostly male). She brought a claim under the Equal Pay Act 1970, citing a male headmaster of a secondary school as one of her comparators. The headmaster was employed by a different education authority (one of 32 in Scotland). However, terms as to pay are negotiated nationally, not by each education authority separately, and bind all the educations authorities.
Issue
Could an employee from another education authority be used as a comparator under the Equal Pay Act 1970?
Decision
Yes. Following the reasoning of the ECJ in Defrenne v Sabena, the scope of an enquiry under the Equal Pay Act 1970 need not always be confined to the Claimant's own workplace, or to his own employer. Where collective bargaining units exist, any employee who falls within that collective bargaining unit may relied upon as a comparator.
The decision is available from the Court of Session website, here.
[Thanks to Stuart Neilson of McGrigor Donald, solicitors for Ms Morton, for notifying me of this decision]
Wednesday, 13 February 2002
Court of Appeal - Pensions Decision
The Court of Appeal has handed down its judgment in Quirk v Burton Hospital NHS Trust.
It upholds the distinction in the approach to men and women in occupational pension schemes, holding that, under Article 141 of the Treaty of Amsterdam:
• a claim can be brought under the Equal Pay Act 1970, giving effect to Article 141, in all cases where different rules are applied to men and women for access into an occupational pension scheme (irrespective of dates); but,
• claims relating to the calculation of the level of benefits under a pension scheme can only be calculated with reference to pensionable service after 17th May 1990 (the date of the decision in Barber v Guardian Royal Exchange).
The full decision can be seen here.
It upholds the distinction in the approach to men and women in occupational pension schemes, holding that, under Article 141 of the Treaty of Amsterdam:
• a claim can be brought under the Equal Pay Act 1970, giving effect to Article 141, in all cases where different rules are applied to men and women for access into an occupational pension scheme (irrespective of dates); but,
• claims relating to the calculation of the level of benefits under a pension scheme can only be calculated with reference to pensionable service after 17th May 1990 (the date of the decision in Barber v Guardian Royal Exchange).
The full decision can be seen here.
Thursday, 31 January 2002
NEW EAT DECISIONS
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.
LAWAL v NORTHERN SPIRIT LTD.
(Lindsay J., 15th January 2002)
Resolving the issue of the 5 well-known employment QCs who sit as part-time judges in the EAT. According to the EAT, there is no bias (or appearance of bias) if an EAT lay member who has sat with such a QC in his/her capacity as presiding judge, then sits in a case where that presiding judge appears as Counsel.
PHOTIS & ors. v DTI & ors.
(Lindsay J., 6th December 2001)
Applicants to statutory judicial offices cannot bring claims to employment tribunals under the Race Relations Act 1976 or the Disability Discrimination Act 1995. In particular, three unsuccessful applicants for posts as lay-members of employment tribunals and social security tribunals were not permitted to bring employment tribunal claims for race or disability discrimination, because they did not fall within the jurisdictional limits of the Acts. Their only remedy was for Judicial Review.
SAMUEL v LONDON BOROUGH OF LEWISHAM.
(HHJ Peter Clark, 29th November 2001)
A conduct dismissal can be fair even if the employer wrongly labelled the conduct as 'gross misconduct'. In other words, it is still possible for an employer to act reasonably in dismissing for conduct even when the employee has not committed a repudiatory breach of contract.
NETHERCOATS (PROJECTS) LIMITED v SMITH.
(HHJ Levy, 12th November 2001)
The employer's representative wrongly conceded that the limit on the compensatory award was £50,000 (when, because of the date of termination, it might have been £12,000). The EAT held that it was an error of law for the tribunal to proceed without formally determining the effective date of termination, despite the formal concession as to the maximum award having been made, and remitted the case.
BERRY v GB ELECTRONICS LTD.
(HHJ Reid, 17th October 2001)
A profoundly deaf employee was one of seven members of staff dismissed due to redundancy at a meeting. No consultation or warning had occurred. Because of his deafness (which amounted to a disability), he understood that he had been dismissed, but did not understand that others had also been dismissed or that the reason was redundancy. The EAT held that the employer's duty to make reasonable adjustments entailed "having him interviewed separately at the same time, by someone who was capable of communicating with him in a proper manner" and therefore there existed "discrimination in the manner of his dismissal". The EAT added:
"It would be hoped that that declaration will make other employers aware of the need for appropriate and sympathetic treatment of other persons suffering from similar types of disability to Mr Berry at the time of their dismissal. "
LAWAL v NORTHERN SPIRIT LTD.
(Lindsay J., 15th January 2002)
Resolving the issue of the 5 well-known employment QCs who sit as part-time judges in the EAT. According to the EAT, there is no bias (or appearance of bias) if an EAT lay member who has sat with such a QC in his/her capacity as presiding judge, then sits in a case where that presiding judge appears as Counsel.
PHOTIS & ors. v DTI & ors.
(Lindsay J., 6th December 2001)
Applicants to statutory judicial offices cannot bring claims to employment tribunals under the Race Relations Act 1976 or the Disability Discrimination Act 1995. In particular, three unsuccessful applicants for posts as lay-members of employment tribunals and social security tribunals were not permitted to bring employment tribunal claims for race or disability discrimination, because they did not fall within the jurisdictional limits of the Acts. Their only remedy was for Judicial Review.
SAMUEL v LONDON BOROUGH OF LEWISHAM.
(HHJ Peter Clark, 29th November 2001)
A conduct dismissal can be fair even if the employer wrongly labelled the conduct as 'gross misconduct'. In other words, it is still possible for an employer to act reasonably in dismissing for conduct even when the employee has not committed a repudiatory breach of contract.
NETHERCOATS (PROJECTS) LIMITED v SMITH.
(HHJ Levy, 12th November 2001)
The employer's representative wrongly conceded that the limit on the compensatory award was £50,000 (when, because of the date of termination, it might have been £12,000). The EAT held that it was an error of law for the tribunal to proceed without formally determining the effective date of termination, despite the formal concession as to the maximum award having been made, and remitted the case.
BERRY v GB ELECTRONICS LTD.
(HHJ Reid, 17th October 2001)
A profoundly deaf employee was one of seven members of staff dismissed due to redundancy at a meeting. No consultation or warning had occurred. Because of his deafness (which amounted to a disability), he understood that he had been dismissed, but did not understand that others had also been dismissed or that the reason was redundancy. The EAT held that the employer's duty to make reasonable adjustments entailed "having him interviewed separately at the same time, by someone who was capable of communicating with him in a proper manner" and therefore there existed "discrimination in the manner of his dismissal". The EAT added:
"It would be hoped that that declaration will make other employers aware of the need for appropriate and sympathetic treatment of other persons suffering from similar types of disability to Mr Berry at the time of their dismissal. "
Tuesday, 22 January 2002
Fixed Term Employee Regulations
Following extensive consultation, the government has published a second draft of the Fixed-Term (Prevention of Less Favourable Treatment) Regulations 2002 and has commenced a period of further consultation.
The Regulations are designed to give effect to the EC Fixed Term Workers Directive, which must be implemented by 10th July 2002. Unsurprisingly, the proposed date for UK compliance is 10th July 2002!
The latest draft is similar to the original, although some tweaking has taken place. The draft Regulations confer the following rights:
• a right for fixed-term employees (note: 'employees', not 'workers') not to be treated less favourably than a comparable permanent employee, unless objectively justified. This does not require like-for-like pro rata entitlements - provided the fixed-term employee's contractual rights are, as a whole, at least as favourable as the permanent employee's, objective justification is deemed to be made out.
• an obligation on employers to advertise permanent vacancies in such a way as is reasonably likely to come to the fixed-term employee's attention;
• a right to receive a written statement of reasons for treatment, if the employee believes less favourable treatment has occurred;
• provision that any dismissal for seeking to enforce these rights is automatically unfair;
• provision that a fixed-term contract will be converted to a permanent contract upon the next renewal/extension if the employee has been employed on a fixed-term contract for over four years (unless the employer can demonstrate an objective justification for continued fixed-term employment). This period can be varied by collective agreement, and the employee can demand a statement that the employment has converted to a permanent basis. The four-year period starts running from the date the Regulations commence (ie fixed-term time before 10th July 2002 does not count as part of the four-years);
• the ability to enter into redundancy payment waiver agreements will be abolished.
Further information, and the draft Regulations, can be obtained here.
The Regulations are designed to give effect to the EC Fixed Term Workers Directive, which must be implemented by 10th July 2002. Unsurprisingly, the proposed date for UK compliance is 10th July 2002!
The latest draft is similar to the original, although some tweaking has taken place. The draft Regulations confer the following rights:
• a right for fixed-term employees (note: 'employees', not 'workers') not to be treated less favourably than a comparable permanent employee, unless objectively justified. This does not require like-for-like pro rata entitlements - provided the fixed-term employee's contractual rights are, as a whole, at least as favourable as the permanent employee's, objective justification is deemed to be made out.
• an obligation on employers to advertise permanent vacancies in such a way as is reasonably likely to come to the fixed-term employee's attention;
• a right to receive a written statement of reasons for treatment, if the employee believes less favourable treatment has occurred;
• provision that any dismissal for seeking to enforce these rights is automatically unfair;
• provision that a fixed-term contract will be converted to a permanent contract upon the next renewal/extension if the employee has been employed on a fixed-term contract for over four years (unless the employer can demonstrate an objective justification for continued fixed-term employment). This period can be varied by collective agreement, and the employee can demand a statement that the employment has converted to a permanent basis. The four-year period starts running from the date the Regulations commence (ie fixed-term time before 10th July 2002 does not count as part of the four-years);
• the ability to enter into redundancy payment waiver agreements will be abolished.
Further information, and the draft Regulations, can be obtained here.
Monday, 14 January 2002
Increase in Limits for Tribunal Awards
The annual increase in tribunal awards has been announced, pursuant to section 34 of the Employment Relations Act 1999.
The important changes are:
• compensatory award for unfair dismissal - from £51,700 to £52,600;
• basic award for unfair dismissal - from £240pw to £250pw;
The other increases are set out in the statutory instrument, the Employment Rights (Increase of Limits) Order 2002, which can be seen here.
The increases have effect where the 'appropriate date' (which, for unfair dismissal claims, is the effective date of termination) is on or after 1st February 2002.
[Thanks to James Carmody of Bolt Burdon for notifying me of these changes]
The important changes are:
• compensatory award for unfair dismissal - from £51,700 to £52,600;
• basic award for unfair dismissal - from £240pw to £250pw;
The other increases are set out in the statutory instrument, the Employment Rights (Increase of Limits) Order 2002, which can be seen here.
The increases have effect where the 'appropriate date' (which, for unfair dismissal claims, is the effective date of termination) is on or after 1st February 2002.
[Thanks to James Carmody of Bolt Burdon for notifying me of these changes]
Monday, 7 January 2002
NEW EAT DECISIONS
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.
MORGAN v STAFFORDSHIRE UNIVERSITY
(Lindsay P., 11th December 2001)
Practical guidance from the EAT about evidence required to prove mental impairment under the Disability Discrimination Act 1995. Very useful decision, but two points in particular warrant mention. First, Applicants are warned in clear terms that a complaint of 'stress' is not enough - the EAT sets out three methods of proving a recognised psychiatric illness, and says that a catch-all complaint of 'stress' is insufficient. Second, the EAT warns tribunals about forming an impression of the Applicant because of his conduct in the witness box (because of the catch-22 situation of tribunals penalising an inarticulate witness because he cannot explain his level of impairment properly, and penalising an articulate witness because he is thought to be too articulate to be suffering from an impairment!).
JONES & others v 3M HEALTHCARE & others
(Lindsay P., 11th December 2001)
Another chapter in the saga of whether Applicants can claim for post-termination discrimination. This conjoined appeal involved three cases of disability discrimination (including Kirker v British Sugar). The EAT held that the DDA 1995 does not permit a claim to be brought based upon allegations of discrimination occurring after dismissal. The decision is useful in that it contains a first-class summary of all the decisions on this point to date (including those under the SDA 1975 and RRA 1976), and is a concise, readable decision in an area frequently encumbered with precisely the opposite.
MORGAN v STAFFORDSHIRE UNIVERSITY
(Lindsay P., 11th December 2001)
Practical guidance from the EAT about evidence required to prove mental impairment under the Disability Discrimination Act 1995. Very useful decision, but two points in particular warrant mention. First, Applicants are warned in clear terms that a complaint of 'stress' is not enough - the EAT sets out three methods of proving a recognised psychiatric illness, and says that a catch-all complaint of 'stress' is insufficient. Second, the EAT warns tribunals about forming an impression of the Applicant because of his conduct in the witness box (because of the catch-22 situation of tribunals penalising an inarticulate witness because he cannot explain his level of impairment properly, and penalising an articulate witness because he is thought to be too articulate to be suffering from an impairment!).
JONES & others v 3M HEALTHCARE & others
(Lindsay P., 11th December 2001)
Another chapter in the saga of whether Applicants can claim for post-termination discrimination. This conjoined appeal involved three cases of disability discrimination (including Kirker v British Sugar). The EAT held that the DDA 1995 does not permit a claim to be brought based upon allegations of discrimination occurring after dismissal. The decision is useful in that it contains a first-class summary of all the decisions on this point to date (including those under the SDA 1975 and RRA 1976), and is a concise, readable decision in an area frequently encumbered with precisely the opposite.
Thursday, 3 January 2002
NEW EAT DECISIONS
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.
BESTWAYS v MOFFATT
(Lord Johnston, 1st November 2001)
An example of the EAT awarding costs against a party who withdrew an appeal a few days before the hearing. Of interest is the EAT rejecting the argument that lodging an appeal with a view to negotiating a settlement is itself unreasonable or vexatious conduct:
"we recognise as legitimate for an appeal to be taken with a view to achieving a compromise in cases where both sides may reflect their respective weaknesses in achieving such a compromise."
HODES v MARKS & SPENCERS
(HHJ Reid, 1st November 2001)
The Applicant, a senior manager at Marks & Spencers, was selected for early retirement and given a retirement package of £151,000 under a discretionary early retirement scheme. The employment tribunal gave credit for this amount to the Respondent when calculating the compensatory award. The EAT held it was right to do so - the ultimate test is what is 'just and equitable' and it would not be just and equitable to ignore the discretionary payment of £151,000. To this extent the EAT distinguishes Parry v Cleaver, which provides that pension benefits should be ignored for the purpose of calculating personal injury compensation, on the basis that this was a discretionary rather than a contractual payment.
TAYLOR v BARKLAND (UK) LTD
(Lord Johnston, 27th November 2001)
When awarding future losses of earnings, a tribunal must state the reason for the period it selects. In this case, the tribunal awarded six months' future loss of earnings without saying why it selected this period. The failure to give reasons was an error of law and the case was remitted to the same tribunal.
CHIEF CONSTABLE OF WEST YORKSHIRE POLICE v VENTO
(Wall J., 4th December 2001)
The saga continues. After succeeding on liability (following a well-known appeal), Mrs Vento was awarded £166,000 for future loss of earnings, £50,000 for injury to feelings, £15,000 aggravated damages, £9,000 for personal injury and £18,000 interest (total: £258,000). The police force appealed. The EAT held that the tribunal had given inadequate reasons for departing from statistical evidence as to the implausibility of a woman remaining in the West Yorkshire Police Force, and set aside the award for loss of earnings. It also held that the £50,000 injury to feelings and £15,000 aggravated damages awards were so excessive as to be unreasonable, and substituted awards of £30,000 and £5,000 respectively.
SHWKY v HERITAGE CARE
(HHJ Peter Clark, 6th December 2001)
The unrepresented Applicant appealed on the grounds he had not had a fair hearing from the tribunal chairman. The EAT rejected his account of what happened at the hearing, and said:
"We would add this. The passing of the Human Rights Act should not be seen as a licence for unruly litigants to misbehave before Employment Tribunals and to then use the appeal process in order to obtain a second bite of the cherry. Speaking for ourselves we shall scrutinise closely any attempt to do so. It is our experience generally that Tribunals sometimes face a difficult task in controlling proceedings in a way which is fair to both parties. Where there are exceptions we shall not hesitate to say so; otherwise, we do not regard it as being part of our function to undermine the need for Tribunals, on occasions, to robustly maintain their judicial authority."
In the bulletin headed 'Miriki v General Council of the Bar' dated 28th December 2001, I wrongly referred to the decision in Anya v University of Oxford as a House of Lords' decision. In fact, it was a decision of the Court of Appeal.
BESTWAYS v MOFFATT
(Lord Johnston, 1st November 2001)
An example of the EAT awarding costs against a party who withdrew an appeal a few days before the hearing. Of interest is the EAT rejecting the argument that lodging an appeal with a view to negotiating a settlement is itself unreasonable or vexatious conduct:
"we recognise as legitimate for an appeal to be taken with a view to achieving a compromise in cases where both sides may reflect their respective weaknesses in achieving such a compromise."
HODES v MARKS & SPENCERS
(HHJ Reid, 1st November 2001)
The Applicant, a senior manager at Marks & Spencers, was selected for early retirement and given a retirement package of £151,000 under a discretionary early retirement scheme. The employment tribunal gave credit for this amount to the Respondent when calculating the compensatory award. The EAT held it was right to do so - the ultimate test is what is 'just and equitable' and it would not be just and equitable to ignore the discretionary payment of £151,000. To this extent the EAT distinguishes Parry v Cleaver, which provides that pension benefits should be ignored for the purpose of calculating personal injury compensation, on the basis that this was a discretionary rather than a contractual payment.
TAYLOR v BARKLAND (UK) LTD
(Lord Johnston, 27th November 2001)
When awarding future losses of earnings, a tribunal must state the reason for the period it selects. In this case, the tribunal awarded six months' future loss of earnings without saying why it selected this period. The failure to give reasons was an error of law and the case was remitted to the same tribunal.
CHIEF CONSTABLE OF WEST YORKSHIRE POLICE v VENTO
(Wall J., 4th December 2001)
The saga continues. After succeeding on liability (following a well-known appeal), Mrs Vento was awarded £166,000 for future loss of earnings, £50,000 for injury to feelings, £15,000 aggravated damages, £9,000 for personal injury and £18,000 interest (total: £258,000). The police force appealed. The EAT held that the tribunal had given inadequate reasons for departing from statistical evidence as to the implausibility of a woman remaining in the West Yorkshire Police Force, and set aside the award for loss of earnings. It also held that the £50,000 injury to feelings and £15,000 aggravated damages awards were so excessive as to be unreasonable, and substituted awards of £30,000 and £5,000 respectively.
SHWKY v HERITAGE CARE
(HHJ Peter Clark, 6th December 2001)
The unrepresented Applicant appealed on the grounds he had not had a fair hearing from the tribunal chairman. The EAT rejected his account of what happened at the hearing, and said:
"We would add this. The passing of the Human Rights Act should not be seen as a licence for unruly litigants to misbehave before Employment Tribunals and to then use the appeal process in order to obtain a second bite of the cherry. Speaking for ourselves we shall scrutinise closely any attempt to do so. It is our experience generally that Tribunals sometimes face a difficult task in controlling proceedings in a way which is fair to both parties. Where there are exceptions we shall not hesitate to say so; otherwise, we do not regard it as being part of our function to undermine the need for Tribunals, on occasions, to robustly maintain their judicial authority."
Correction to Previous Bulletin
In the bulletin headed 'Miriki v General Council of the Bar' dated 28th December 2001, I wrongly referred to the decision in Anya v University of Oxford as a House of Lords' decision. In fact, it was a decision of the Court of Appeal.
Friday, 28 December 2001
IR35 Decision - Court of Appeal
The Court of Appeal has handed down its decision in the IR35 case, Professional Contractors' Group v Inland Revenue.
Background
In 1999, the government decided to prevent individuals, who would otherwise be classified as employees, from obtaining the financial advantages of self-employment by setting up one-man service companies and hiring out their services. This decision became known as 'IR35', the number of the Inland Revenue circular setting out the changes (which were enacted in three tranches, coming into effect on 6th April 2000).
The Professional Contractors' Group brought an application for judicial review, challenging the legislation as being contrary to European Law. On 2nd April 2001, Burton J. dismissed the application, holding the IR35 legislation to be lawful (see bulletin of that date).
The Professional Contractors' Group appealed.
Decision
The Court of Appeal upheld Burton J.'s decision, holding the IR35 legislation to be lawful. It rejected arguments that the legislation was anti-competitive or inhibited freedom of movement, and refused to refer the matter to the ECJ.
Of interest is Robert Walker LJ's comments about the confusing distinction between employment and self-employment, and his floating the possibility of recognising a middle status reflecting the "no-man's land between Schedule D and Schedule E, rather than insisting on the gulf which exists in theory (but, not always, in practice)..." (decision, para 54).
The full decision can be seen here.
Background
In 1999, the government decided to prevent individuals, who would otherwise be classified as employees, from obtaining the financial advantages of self-employment by setting up one-man service companies and hiring out their services. This decision became known as 'IR35', the number of the Inland Revenue circular setting out the changes (which were enacted in three tranches, coming into effect on 6th April 2000).
The Professional Contractors' Group brought an application for judicial review, challenging the legislation as being contrary to European Law. On 2nd April 2001, Burton J. dismissed the application, holding the IR35 legislation to be lawful (see bulletin of that date).
The Professional Contractors' Group appealed.
Decision
The Court of Appeal upheld Burton J.'s decision, holding the IR35 legislation to be lawful. It rejected arguments that the legislation was anti-competitive or inhibited freedom of movement, and refused to refer the matter to the ECJ.
Of interest is Robert Walker LJ's comments about the confusing distinction between employment and self-employment, and his floating the possibility of recognising a middle status reflecting the "no-man's land between Schedule D and Schedule E, rather than insisting on the gulf which exists in theory (but, not always, in practice)..." (decision, para 54).
The full decision can be seen here.
Thursday, 27 December 2001
Miriki v General Council of the Bar
The Court of Appeal has handed down its decision in Miriki v General Council of the Bar (21st December 2001).
Facts
Mrs Miriki was employed by the Bar Council. She was off work during a period when her department within the Bar Council was being reorganised, due to a combination of maternity leave and contracting malaria whilst on holiday in Nigeria. The Bar Council were unable to contact her during the consultation period, and eventually informed her of her redundancy during a meeting when she returned.
She claimed unfair dismissal and race discrimination. The employment tribunal held the dismissal had been fair, on grounds of redundancy, and dismissed the race claim. The EAT overturned the decision. It permitted various grounds to be argued at the substantive appeal which were wider than those permitted at the preliminary hearing. The Bar Council appealed.
Decision
The Court of Appeal held it was inappropriate for the EAT to allow arguments on wider grounds than those permitted at a preliminary hearing, subject to the EAT's case management powers to make limited departures from those grounds (which did not happen). The proper course for an Applicant who wished to raise further grounds was to appeal to the Court of Appeal.
Whilst obiter, of significant importance is the Court of Appeal's further departure from the House of Lord's controversial decision in Anya v University of Oxford (which provided that employment tribunals have to consider all allegations of race discrimination raised by Applicants, no matter how historical or peripheral, because they might be material to a decision whether to draw an inference of race discrimination). The Court of Appeal stated:
"Anya was a very different case...Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings of every pirce of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint."
The full decision can be seen here.
Facts
Mrs Miriki was employed by the Bar Council. She was off work during a period when her department within the Bar Council was being reorganised, due to a combination of maternity leave and contracting malaria whilst on holiday in Nigeria. The Bar Council were unable to contact her during the consultation period, and eventually informed her of her redundancy during a meeting when she returned.
She claimed unfair dismissal and race discrimination. The employment tribunal held the dismissal had been fair, on grounds of redundancy, and dismissed the race claim. The EAT overturned the decision. It permitted various grounds to be argued at the substantive appeal which were wider than those permitted at the preliminary hearing. The Bar Council appealed.
Decision
The Court of Appeal held it was inappropriate for the EAT to allow arguments on wider grounds than those permitted at a preliminary hearing, subject to the EAT's case management powers to make limited departures from those grounds (which did not happen). The proper course for an Applicant who wished to raise further grounds was to appeal to the Court of Appeal.
Whilst obiter, of significant importance is the Court of Appeal's further departure from the House of Lord's controversial decision in Anya v University of Oxford (which provided that employment tribunals have to consider all allegations of race discrimination raised by Applicants, no matter how historical or peripheral, because they might be material to a decision whether to draw an inference of race discrimination). The Court of Appeal stated:
"Anya was a very different case...Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings of every pirce of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint."
The full decision can be seen here.
Thursday, 13 December 2001
Discrimination Legislation
The government has, today, published its consultation document on legislation required to comply with the EC Equal Treatment Framework Directive. This requires the UK to introduce legislation prohibiting discrimination on grounds of age, religion or belief, and sexual orientation within the fields of employment and training.
It will also require the extension of some of the provisions of the Race Relations Act 1976 and the Disability Discrimination Act 1995 - the most important one being the removal of the 15-employee 'small employer' exemption.
The government is also considering introducing a single 'Equality Commission' (to replace the EOC, CRE and DRC).
The government summary very kindly points out that the cost of the new legislation will only be £157 per employer, whereas the benefits could amount to up to £567million.
The consultation period finishes at the end of March 2002.
For further information, and a copy of the consultation paper, click here.
It will also require the extension of some of the provisions of the Race Relations Act 1976 and the Disability Discrimination Act 1995 - the most important one being the removal of the 15-employee 'small employer' exemption.
The government is also considering introducing a single 'Equality Commission' (to replace the EOC, CRE and DRC).
The government summary very kindly points out that the cost of the new legislation will only be £157 per employer, whereas the benefits could amount to up to £567million.
The consultation period finishes at the end of March 2002.
For further information, and a copy of the consultation paper, click here.
Wednesday, 12 December 2001
Sex Discrimination (Amendment) Bill 2001
The Sex Discrimination (Amendment) Bill 2001 was laid before the House of Lords earlier today.
If enacted, it will extend anti-discrimination legislation in connection with the provision of goods and services to private member clubs, but it will continue to permit wholly single-sex clubs.
It will also permit discrimination in sporting activities where a prize of over £1,000 is offered (ie a similar prize need not be offered to competitors of the other gender).
The Bill can be seen here.
If enacted, it will extend anti-discrimination legislation in connection with the provision of goods and services to private member clubs, but it will continue to permit wholly single-sex clubs.
It will also permit discrimination in sporting activities where a prize of over £1,000 is offered (ie a similar prize need not be offered to competitors of the other gender).
The Bill can be seen here.
Tuesday, 4 December 2001
Dignity at Work Bill 2001
The Dignity at Work Bill 2001 has been introduced in the House of Lords.
It provides that all employees "shall have a right to dignity at work", and that a dignity clause shall be implied into all contracts of employment.
It prohibits harassment, bullying and any conduct which causes the employee "to be alarmed or distressed", including:
• behaviour on more than one occasion which is offensive or abusive;
• unjustified criticism on more than one occasion;
• punishment imposed without reasonable justification; or,
• changes in the duties or responsibilities of the employee to the employee's detriment without reasonable justification.
The right applies to contract workers as well as employees.
The Bill provides for complaints to be brought before an employment tribunal. The tribunal can make a declaration, a recommendation or order compensation (including damages for injury to feelings).
There is a statutory defence that can be made out if:
• the employer has in force a 'Dignity at Work Policy' and has taken reasonable steps to enforce it;
• the acts complained of are repudiated by the person in charge of the policy within 3 days of complaint ('repudiated' is not defined, but it is stated to include a repudiation in writing to the employee and to any other employees who witnessed or knew of the act complained of); and,
• the employer takes all steps reasonably necessary to remedy any loss suffered by the complainant.
The Bill will also amend section 95(1)(c) of the Employment Rights Act 1996 (the section defining constructive dismissal), to provide that breach of the implied dignity clause can amount to constructive dismissal.
The Bill can be seen here. I am offering odds on the Bill failing to be enacted due to lack of parliamentary time!
It provides that all employees "shall have a right to dignity at work", and that a dignity clause shall be implied into all contracts of employment.
It prohibits harassment, bullying and any conduct which causes the employee "to be alarmed or distressed", including:
• behaviour on more than one occasion which is offensive or abusive;
• unjustified criticism on more than one occasion;
• punishment imposed without reasonable justification; or,
• changes in the duties or responsibilities of the employee to the employee's detriment without reasonable justification.
The right applies to contract workers as well as employees.
The Bill provides for complaints to be brought before an employment tribunal. The tribunal can make a declaration, a recommendation or order compensation (including damages for injury to feelings).
There is a statutory defence that can be made out if:
• the employer has in force a 'Dignity at Work Policy' and has taken reasonable steps to enforce it;
• the acts complained of are repudiated by the person in charge of the policy within 3 days of complaint ('repudiated' is not defined, but it is stated to include a repudiation in writing to the employee and to any other employees who witnessed or knew of the act complained of); and,
• the employer takes all steps reasonably necessary to remedy any loss suffered by the complainant.
The Bill will also amend section 95(1)(c) of the Employment Rights Act 1996 (the section defining constructive dismissal), to provide that breach of the implied dignity clause can amount to constructive dismissal.
The Bill can be seen here. I am offering odds on the Bill failing to be enacted due to lack of parliamentary time!
Monday, 3 December 2001
Launch of Age Positive Website
The government has launched an Age Positive website to provide practical help for employers and individuals, as part of a major publicity drive in the run-up to the new anti- age discrimination laws that must be introduced by December 2006.
The website has a 'Games' section, which allows you to test whether you are guilty of age stereotyping!
The government has also published its assessment of the voluntary Code of Practice on Age Diversity in Employment. According to the government statistics:
• 25% of older people believe that they have been discriminated against;
• 90% of people believe that employers discriminate on grounds of age;
• about 30% of employers are aware of the Code of Practice;
• the use of age as a criterion in recruitment has reduced to 13%
A copy of the full press release is available here.
The website has a 'Games' section, which allows you to test whether you are guilty of age stereotyping!
The government has also published its assessment of the voluntary Code of Practice on Age Diversity in Employment. According to the government statistics:
• 25% of older people believe that they have been discriminated against;
• 90% of people believe that employers discriminate on grounds of age;
• about 30% of employers are aware of the Code of Practice;
• the use of age as a criterion in recruitment has reduced to 13%
A copy of the full press release is available here.
Tuesday, 20 November 2001
New Cases
CONTENTS
1. ECJ Opinion - Maternity Benefits
2. New EAT Cases
________________________________________
1. ECJ Opinion - Maternity Benefits
The Advocate General has provided his opinion in C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij. At present, it is available in French, German and Dutch only.
According to the Federation of European Employers, he has advised the ECJ that is lawful for an employer to offer subsidised childcare to female employees in preference to male employees. They state that "in an extensive and frequently convoluted rationale, [Advocate-General] Alber sets aside the views of the European Commission which clearly opposed such a measure as not constituting legitimate positive action under the 1976 Equal Treatment Directive." The case now goes to the ECJ for a final decision sometime next year.
________________________________________
2. New EAT Decisions
These cases unreported (although some may be reported in due course). The transcripts were posted today on the EAT website.
MILLS v LONDON BOROUGH OF HILLINGDON
(Lord Johnstone, 18th October 2001)
In order for the duty to make reasonable adjustments under the Disability Discrimination Act 1995 to bite, the disabled employee needs to establish that an "arrangement made by or on behalf of an employer" places him at a substantial disadvantage. The EAT considers that the word "arrangement" envisages positive steps taken by the employer, and an arrangement cannot arise by means of an omission. Thus the failure to pay a disabled employee his sickpay through administrative error was not capable of amounting to an arrangement, and thus not capable of triggering the duty to make reasonable adjustments.
PROSPECT CARE SERVICES v CURTIS
(Lindsay J., 6th November 2001)
A further gloss on the Court of Appeal's decision in Anya v University of Oxford (see bulletin 24/3/01) - although the EAT takes pains to insist it is following Anya and not limiting its application. Anya provided that in discrimination cases, the employment tribunal must examine every issue raised by an Applicant, and make findings of fact on each of them. However, this case states that the tribunal does not need to go through every allegation raised by the applicant, when the issues raised are "otiose".
FLEXIBLE WORK FOR PARENTS
As foreshadowed in vague (and it seems, somewhat inaccurate) reports in the Sunday papers, the government has today announced its new proposals to help parents work more flexibly - primarily to allow working parents to work part-time. The proposals will apply to parents of children under 6 years old (and to parents of disabled children under 18 years old).
According to this afternoon's DTI press release, the proposals will operate in the following way:
"- The employee makes a written request to their employer, which is followed up by a meeting. The employer should make a practical business assessment on how the flexible working can be arranged. It is estimated, on the basis of current practice, that 80% of requests will be settled at this meeting.
"- If a request cannot be accepted, the employer must fully explain the business reasons in writing. The employee can appeal a negative decision using dispute resolution and ultimately go to an employment tribunal. Estimates, based on current practice, suggest that only 1% of requests will end up at a tribunal."
A copy of the full press release is available here.
According to this afternoon's DTI press release, the proposals will operate in the following way:
"- The employee makes a written request to their employer, which is followed up by a meeting. The employer should make a practical business assessment on how the flexible working can be arranged. It is estimated, on the basis of current practice, that 80% of requests will be settled at this meeting.
"- If a request cannot be accepted, the employer must fully explain the business reasons in writing. The employee can appeal a negative decision using dispute resolution and ultimately go to an employment tribunal. Estimates, based on current practice, suggest that only 1% of requests will end up at a tribunal."
A copy of the full press release is available here.
Monday, 19 November 2001
Age Equality Commission Bill 2001
The Age Equality Commission Bill 2001, a private member's Bill introduced in the summer, has now been published on the internet.
It proposes the establishment of an Age Equality Commission, whose duties shall be to advise the government on matters relating to age discrimination, assess the impact of (but not draft) legislation prohibiting age discrimination, and prepare guidelines for eliminating age discrimination.
To see the Bill, click here.
It proposes the establishment of an Age Equality Commission, whose duties shall be to advise the government on matters relating to age discrimination, assess the impact of (but not draft) legislation prohibiting age discrimination, and prepare guidelines for eliminating age discrimination.
To see the Bill, click here.
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