Unfair Dismissal - time limits

The Court of Appeal has handed down its decision in Marks & Spencer v Williams-Ryan. It upheld the tribunal's (and the EAT's) decision that it was not reasonably practicable for Mrs Williams-Ryan to present her unfair dismissal claim within three months, and therefore that she should have an extension of time.

Mrs Williams-Ryan was dismissed. A CAB advised her to exercise Marks & Spencer's internal appeal procedure, but did not tell her to lodge a tribunal claim. Her letter of dismissal told her she could complain to a tribunal, but did not tell her of the three-month time limit.

The internal appeal took 3.5 months (due to M&S's delay), and she lodged her ET complaint four months after the dismissal.

The Court of Appeal, after thoroughly reviewing the authorities on late presentation of claims, held:

although an employee is bound by the negligence of their solicitor (and cannot have time extended for claiming unfair dismissal if the delay is due to the solicitor's negligence), it is less clear that an employee is bound by the negligence of a CAB advisor;however, since the CAB advisor did not even raise the issue of unfair dismissal (let alone give wrong advice on time limits), no issue of negligence arose. The Court of Appeal did not deal with the argument that it was the very failure to raise the issue of unfair dismissal that might be said to be negligent. Nor did the Court of Appeal deal with the fact that M&S had told the employee of the right to claim unfair dismissal (albeit not about the time limit);that being the case, there was no rule of law requiring the tribunal to find that it was not 'not reasonably practicable' for the employee to present her claim within three months, and so the employment tribunal's decision could not be categorised as perverse.

Although this decision is useful for its review of the authorities, practitioners should be cautious about relying on its decision to promote an extension of time if similar facts crop up again. It is an unusual decision and is (as the Court of Appeal say) heavily influenced by the fact that, if M&S had not been guilty of delay in going through its own internal appeal procedure, Mrs Williams-Ryan would undoubtedly have presented her claim within the three month time period.

Territorial Jurisdiction

The Court of Appeal has, today, overturned the EAT's decision in Saggar v Ministry of Defence.

Lt. Col. Saggar was an army officer. He served between 1982 and 1998 (16 years) in the UK. He was then posted to Cyprus for just over three years. During the first year of that posting, he was (allegedly) subjected to acts of race discrimination.

The employment tribunal (and, subsequently, the EAT) held that Lt. Col. Saggar's employment was, at the relevant time, "wholly or mainly outside Great Britain" and therefore the tribunal had no jurisdiction to hear the substantive complaint of race discrimination because of s8 of the Race Relations Act 1976.

The Court of Appeal has overturned this ruling. Mummery LJ (giving the only judgment) held that the correct approach is to look at where the employee is based for his entire period of employment (in this case, 19 years). In that light, the tribunal should then ask, 'was the employment wholly or mainly outside Great Britain?' It has remitted the question to a different tribunal, with a fairly clear steer that a period of three years abroad out of 19 years total service could not be said to be employment 'wholly or mainly' outside Great Britain.

Note that the test for territorial jurisdiction has now changed (see the new s8 of the Race Relations Act 1976, post July 2003). The test is now whether work is done "wholly or partly" in Great Britain (with an additional proviso granting jurisdiction if the employer carries on business in Great Britain and the employee was ordinarily resident in Great Britain when obtaining employment or at any time during employment). Nevertheless, the Saggar decision remains important, as tribunals will need to look at the entire employment period when deciding whether the employee did work 'wholly or partly' in Great Britain.

Saggar v Ministry of Defence

When two wrongs dont make a right...

The Court of Appeal has, today, handed down its decision in the important case of Beart v HM Prison Service.

The case had previously reached the Court of Appeal on liability. This Court of Appeal hearing deals with damages.

Mrs Beart was discriminated against, on grounds of disability, by not relocating her after she suffered from depression. She was then dismissed, on grounds which the tribunal found to be plainly unfair, because of a suspicion that she was working whilst on paid sickleave.

The tribunal awarded a six-figure sum for disability discrimination. The Prison Service appealed (to both the EAT and the Court of Appeal) on the basis that its act of unfair dismissal was an intervening act, and so the damages for loss of earnings arising out of the disability discrimination should stop at the point where the unfair dismissal statutory cap would have been engaged (which was, at the time, £12,000).

The Court of Appeal, upholding the ET and EAT decisions, dismissed this submission in scathing terms (paras. 30 onwards). Rix LJ, giving the leading judgment, said that an employer cannot rely on its own act of unfair dismissal to limit the compensation otherwise payable for disability discrimination. He stated that the Prison Service had committed two discrete wrongs, both of which warranted compensation, in respect of which statute has provided a cap for one but not the other (para. 34).

The ratio of the case is best encapsulated at paragraph 50, where Wall LJ holds:

"I share the puzzlement expressed by Rix LJ at the proposition that an employer...could escape liability for acts of disability discrimination by relying on a further wrong committed against the employee, namely that of unfair dismissal."

Beart v HM Prison Service

Agency Workers - Implied Contracts of Employment

Since Dacas v Brook Street Bureau, tribunals have been finding implied contracts of employment between agency workers and end users on a regular basis. A practical difficulty, however, is that employees often only bring a claim against either end-user or the employment agency.

The Employment Appeal Tribunal has just handed down a decision recommending that tribunals exercise their own power to join parties in order to add as Respondent the other party (either end-user or employment agency). This enables the tribunal to undertake a fuller review of the 'employment' relationship and ensures that the Claimant will not be left without a practical remedy if the other Respondent (i.e. other than the one the Claimant has sued) is found to be the employer.

Astbury v Gist

Holiday Pay for long-term Sick Employees - Commissioners of Inland Revenue v Ainsworth

The Court of Appeal has, today, held that the right to four weeks' statutory paid holiday under the Working Time Regulations 1998 does not continue to accrue whilst an employee is off on long-term sick-leave.

This overturns the EAT's controversial decision in Kigass Aero Components v Brown (2002).

The Court of Appeal also overturned the EAT's decision in List Design v Douglas (2002), which held that non-payment of statutory holiday entitlement amounts to a non-payment of wages (under Part II of the Employment Rights Act 1996) - the importance being that the Claimant can claim back from a number of years if the deductions are part of "a series of deductions or payments". The effect of overruling List Design is that Claimants can only claim under the Working Time Regulations 1998 in respect of the one, relevant holiday year (assuming the statutory three month time limit is met).

Commisioners for the Inland Revenue v Ainsworth


[Thanks to John Bowers QC of Littleton Chambers for telling me this judgment had been handed down]

Unfair Dismissal - Upper Qualifying Age

The Employment Appeal Tribunal has handed down a judgment restating the law on the 'normal retirement age' and comprehensively destroying the attempts of some BA employees to claim age discrimination by the backdoor route of sex discrimination.

In Cross & ors. v British Airways, the EAT (Burton P. presiding) held:the existing law on 'normal' (contrasted with 'contractual') retirement ages was correct;the fact that some employees TUPE transferred to BA from British Caledonian (which had a different retirement age) some 17 years before could not impugn the tribunal's conclusion that the normal retirement age for BA staff had, in effect, harmonised;the approach of looking at several different 'pools', to decide if the retirement policy had disparate impact on one gender, was the correct approach;it is legimitate to take account of cost to the employer when deciding the justification issue in an indirect discrimination claim. Importantly, the EAT distinguished the position of a private company, which is entitled to rely on cost to justify a policy, with that of the state (and its notional 'bottemless purse') which, under EU law, is not permitted to justify an otherwise discriminatory social policy on grounds of cost. The EAT added that the employer cannot rely solely on questions of cost, but can put cost into the balance (along with such other justifications as may exist).

The case does not lay down any new propositions of law, but contains thoughtful analysis and a robust approach to the existing, complex, caselaw surrounding this area.

Cross (& ors.) v British Airways

London (Central) Employment Tribunal

A reminder: from today, London (Central) tribunal moves from Woburn Place to:

Victory House
30-34 Kingsway
London WC2B 6EX
DX: 141420 Bloomsbury 7

Telephone and fax numbers remain the same.

Modern Apprenticeships

A Modern Apprentice is not an 'apprentice' in the traditional sense, so as to fall within the definition of 'employee' in the Employment Rights Act 1996(which, at s203, defines 'employee' as including anybody working under a contract of service or apprenticeship). The traditional apprenticeship involved a fixed period of training, where the apprentice would supply labour and the master would supply training.

However, the 'modern apprenticeship' system (where an individual works for an employer, but is sent out to a college or other training provider for part of the working week to be trained) qualifies as a normal contract of employment and therefore the apprentice obtains employment protection through that route.

Flett v Matheson

Consultation: Sexual Orientation Regulations

The DTI is consulting on a proposed amendment to the Employment Equality (Sexual Orientation) Regulations 2003.

The amendment follows on from the Civil Partnerships Act 2005. It:

• makes it clear that, for the purposes of the Employment Equality (Sexual Orientation) Regulations 2003, the status of a civil partner is comparable to the status of a spouse. The effect is to enable a civil partner who is treated less favourably than a married person in similar circumstances to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations; and,
• prevents an employer justifying less favourable treatment of a civil partner as compared to a spouse in similar circumstances unless he could show that being heterosexual was a genuine occupational requirement of the job.

The consultation also deals with another amendment concerning entitlement to social security and other benefits.

Consultation: Sexual Orientation Regulations

[Thanks to Lucy Baldwinson at Allen & Overy for telling me about this consultation paper]

Bonuses on Maternity Leave

A statutory instrument bringing further sections of the Employment Relations Act 2004 has just been made. The sections come into force on 6th April 2005.

The sections coming into force are (in summary):

Union Recognition

• clarifying how the 'appropriate bargaining unit' is to be determined by the CAC;
• providing for a suitable person to handle communications between the union and the bargaining unit;
• provision for postal voting for workers away from the workplace;
• confirmation that 'pay', for collective bargaining purposes, does not include pensions;
• provisions to speed up the recognition or derecognition process;
• provisions empowering Acas to require information from the parties where it is asked to settle a dispute

Industrial Action

• extending the 'protected period' for lawful official action from eight weeks to twelve weeks;
• new mandatory matters to which a tribunal must have regard when deciding whether an employer has taken reasonable steps to resolve a dispute with the union.

Miscellaneous

• a right for employees not to be dismissed or subjected to a detriment because of being summoned for jury duty;
• amendments to procedures relation to the exercise of functions by the Certification Officer

The Employment Relations Act 2004 (Commencement No.3 and Transitional Provisions) Order 2005 (SI 2005/872)

Employment Relations Act 2004 - Further Commencement Provisions

A statutory instrument bringing further sections of the Employment Relations Act 2004 has just been made. The sections come into force on 6th April 2005.

The sections coming into force are (in summary):

Union Recognition

• clarifying how the 'appropriate bargaining unit' is to be determined by the CAC;
• providing for a suitable person to handle communications between the union and the bargaining unit;
• provision for postal voting for workers away from the workplace;
• confirmation that 'pay', for collective bargaining purposes, does not include pensions;
• provisions to speed up the recognition or derecognition process;
• provisions empowering Acas to require information from the parties where it is asked to settle a dispute

Industrial Action

• extending the 'protected period' for lawful official action from eight weeks to twelve weeks;
• new mandatory matters to which a tribunal must have regard when deciding whether an employer has taken reasonable steps to resolve a dispute with the union.

Miscellaneous

• a right for employees not to be dismissed or subjected to a detriment because of being summoned for jury duty;
• amendments to procedures relation to the exercise of functions by the Certification Officer

The Employment Relations Act 2004 (Commencement No.3 and Transitional Provisions) Order 2005 (SI 2005/872)

Employment Statutes not contractually actionable

The Employment Appeal Tribunal has delivered a powerful judgment demolishing an argument that the rights given to employees under employment statutes can also form the basis of a contractual claim (enabling employees to claim constructive dismissal whenever a statutory right is infringed).

Presiding over the Appeal Tribunal, HHJ McMullen held:

"25. The first issue in the claim...is that there is, as a matter of contract, a right which corresponds in language to the three statutory rights protective trade unionists when they carry out trade union activities. The right of action in contract is not arrived at by reason of any of the conventional tools, such as necessity, business efficacy to make the contract workable or to reflect the intentions of the parties. On the contrary, it is there because the statute provides such a right. In an engaging exchange with the bench, [Counsel] said "as a matter of logic, it must be right. There is no authority on this point" In an equally engaging exchange, Mr Bowers said it must be wrong.

"26. Let us just paint a picture of how this would work if [Counsel] were right. Today, across the road in the Strand, there would be sitting half a dozen courts presided over by judges of the Queen's Bench, determining, for example, whether an employee of a London borough had been discriminated against on grounds of his or her race. Some of these claims would be very old, because the time limit would be not three months but six years. The expertise in deadling with these matters, which is presently in the hands of employment tribunals...would be missing... So would the informal and user-friendly regime in which such claims are heard presently by employment tribunal. Any breach of the Race Relations Act 1976, on this thesis, would be actionable as a breach of contract. There would, of course, be the issue of costs. In a case where there had been racial harassment, one person missing from the drama would be the very perpetrator, since, whereas in an employment t! ribunal such person can be brought in as an aider and abetter, in a breach of contract claim this person would be absent.

"27. That is just a brief snapshot as to why [Counsel's] proposition is wholly misconceived in our judgment. It cannot be right that, as she puts it, the range of rights set out in Professor Peter Walltington's estimable handbook, which takes pride of place on our bench, constitutes a contractual rulebook, actionable at the suit of an employee for every single breach that there is."

HHJ McMullen goes on to make it clear that there are a few exceptions where statutes do lead to the implication of contractual terms.

Doherty v British Midland Airways, EAT 2005

[Thanks to John Bowers QC of Littleton Chambers, who represented British Midland, for informing me of this decision]

ACAS Booklet - Representation at Work

Acas has revised and updated its advisory booklet, 'Representation at Work'. It covers the following topics:

• representation of individuals with personal issues;
• consultation;
• Works Councils;
• collective bargaining;
• workforce agreements;
• joint working groups.

As with all Acas guides, it is a clear, well-written and helpful document.

ACAS Revised Booklet

Important Case on Applications to Amend Notices of Appeal to the EAT

The Employment Appeal Tribunal has, in Khudados v Leggatte & ors, set out the principles to be adopted when it considers an application for permission to amend a Notice of Appeal.

Ms Khudados, a registrar whose career as a nuerosurgeon was not progessing as quickly as she would like, brought and lost a complex sex and race discrimination claim. She presented a Notice of Appeal which contained various clear and self-contained grounds. After the appeal was listed for a preliminary hearing, the Appellant wrote to the Registrar and 'reserved the right' to make amendments to the Notice of Appeal.

The draft amended Notice of Appeal was served four and a half months after the original Notice of Appeal was lodged. It contained 26 new pages containing new allegations of perversity. The effect of the new allegations was to require detailed consideration of the several weeks of testimony, and five lever-arch files of documentation, which had been before the employment tribunal.

At the hearing of the application for permission to amend, the delay was explained on the basis of the extreme complexity of the case (Ms Khudados had represented herself before the employment tribunal and needed to provide detailed explanations to her legal team as to why she was claiming perversity on so many grounds), coupled with the inevitable delay caused by other professional commitments of Counsel involved.

In a very thorough and robust decision, the EAT (HHJ Serota presiding) refused permission to amend and set out the principles the EAT should adopt. They include, at paragraphs 82-87:

• the Practice direction requires applications to amend to be made as soon as the need for amendment is known. This is not an aspiration - it is a requirement. Parties cannot 'reserve' a right to amend;
• the EAT's approach to dealing with time limits on appeals is stricter than that of the Court of Appeal; the EAT has now reduced the average waiting time between presentation of a Notice of Appeal and a final hearing, where no preliminary hearing is required, to between two and three months;
• the EAT takes a strict view of anything that might delay a final hearing, particularly where there has been non-compliance with a rule of the Practice Direction. A crisp point of law related to existing grounds of appeal is more likely to be permitted than wholly new grounds of perversity which raise complex issues of fact;
• the regime in the EAT is still largely 'costs-free', unlike in the Court of Appeal where the Court can compensate a party for delay and cost caused by the other side;
• the merits of the proposed amendments are relevant, in that they must pass a 'reasonable prospect of success' threshold;
• an extension of time is an indulgence.

The EAT specifically rejected the submission that the overriding objective requires a party to be allowed to ventilate any good ground of appeal he may wish to bring.

Khudados v Leggatte & ors.

Working Parents

Acas has just issued its sixth e-Learning Guide, this time on Working Parents.

The course covers:

• Maternity rights and pay
• Paternity leave and pay
• Adoption leave and pay
• Parental leave
• Time off to help dependants and
• The right to request flexible working

You need to register (free of charge) to access the guides.

Acas E-Learning Guides

Vicarious Liability

The Court of Appeal has handed down its judgment in Majrowski v Guy's & St Thomas's NHS Trust, an important case dealing with principles of vicarious liability both generally (for breach of any statutory duty) and in connection with breaches of the Protection from Harassment Act 1997.

General Principle
The Court of Appeal held, unanimously, that employers can be vicariously liable for breaches of statutory duty as well as breaches of common law obligations (subject to the wording of any given statute).

Surprisingly, this point had not been determined in any previous case in England (although dicta in cases such as Lister v Hesley Hall had suggested as such, and there was also a Scottish authority to this effect).

Protection from Harassment Act 1997
The Court of Appeal went on to hold, this time by a majority, that there was nothing in the wording or policy of the Protection from Harassment Act 1997 that prevented an employer being vicariously liable for harassment by its employees, as long as there was a sufficiently close connection with employment.

Implications
This decision means that an employee can sue a (solvent) employer for damages for harassment by a co-worker. 'Harassment' is not clearly defined in the Act, but probably includes workplace bullying or a series of unreasonable instructions.

Thus the employee has a cause of action against the employer which s/he might not previously have had - particularly if the employee has not suffered personal injury, or has suffered personal injury but cannot establish the strict foreseeability test laid down in Sutherland v Hatton and Barber v Somerset County Council, as Claimants are expressly permitted to recover damages for anxiety caused by the harassment under the 1997 Act.

Majrowski v Guy's & St Thomas's NHS Trust

DTI launches consultation on Code of Practice

The DTI has, today, issued a consultation paper on proposed revisions to the Code of Practice on Industrial Action Ballots and Notice to Employers.

The consultation document includes proposals to :

• ensure that the Code reflects the changes to industrial action law which are contained within the Employment Relations Act 2004;
• provide new guidance for unions and employers relating to the information that unions are required to give employers in advance of industrial action ballots and in advance of any subsequent industrial action.

The consultation runs for twelve weeks, ending on 3 June 2005.

DTI Consultation Paper (requires Adobe Acrobat - takes up to 30 seconds to load in)

Interest on Unfair Dismissal Awards

The Employment Appeal Tribunal (Burton P. presiding) has stated that it is legitimate to award interest (as long as it is not described as that) for unfair dismissal.

The accepted position for many years has been that, unlike in discrimination cases, interest is not recoverable for unfair dismissal.

However, the EAT has now held that when assessing such compensation as is 'just and equitable', since tribunals would give discounts for accelerated receipt at 2.5%, it is equally legitimate to give an increase for decelerated receipt at 2.5%.

Burton P. emphasised this was not, technically, interest - although the effect is much the same.

Although it was not an issue that required deciding, it must be that the 'uplift for decelerated payment' element is still subject to the £56,800 statutory cap (i.e. Claimant's do not get £56,800 plus an uplift).

Melia v Magna Kansei

Tackling discrimination and promoting equality - good practice guide for employers

Acas has revised its excellent advisory booklet, 'Tackling discrimination and promoting equality - good practice guide for employers'.

The booklet contains a sample equality policy for those who like to cut and paste, and really helpful checklists on how to avoid discrimination. This is very much a practical guide, not merely a recitation of the law.

ACAS: Tackling Discrimination and promoting Equality

London (Central) is closing down (2)

Whoops! Sorry, that should be 'Victory House', not 'Victoria House'. And an excellent name it is too.

So...

From 18th April 2005, London (Central) employment tribunal will be sitting at:

Victory House
30-34 Kingsway
London WC2B 6EX
DX: 141420 Bloomsbury 7

Telephone and fax numbers remain the same.