Equal Pay - Injury to Feelings

The EAT (Burton P. presiding) has handed down judgment holding that damages for non-pecuniary loss (i.e. injury to feelings, aggravated damages etc.) cannot be recovered in Equal Pay Act claims, unlike in Sex Discrimination Act claims.

The EAT, noting the absence of a specific provision allowing awards for injury to feelings in the Equal Pay Act 1970, emphasised that an Equal Pay claim is based on contract, whereas a discrimination claim is based on a statutory tort. Thus the quantification of damages follows a different approach.

City of Newcastle upon Tyne v Allen

ACAS Leaflets

Acas has updated a number of information leaflets, all available from its website. They are:

• Communicating with your Employees
• Contracts of Employment
• Controlling Labour Turnover
• Dealing with Grievances
• Discipline at Work
• Induction Training
  

They are available now on the Acas 'What's New' page, although will be moved elsewhere on the Acas website in due course.

Acas 'What's New' page

Late Response Forms

In a decision described by Burton P. as "a matter of some considerable importance", the EAT has given guidance on how ETs should deal with Response Forms which are lodged late.

In Blake Envelopes v Cromie, the Response Form was due to be served by midnight on 11th November (28 days after the Claim Form was sent out). It was faxed to the tribunal 44 minutes late. A letter two days later provided an explanation (apparently printing problems, which is marginally better than 'the dog ate it'!) as to why it was lodged just out of time. The letter requested a 44 minute extension of time for presenting the Response Form.

The tribunal rejected the application for an extension of time, on the grounds that the new rules (r. 4(4)) states that the request for an extension MUST be made within the 28 days.

Further, the tribunal did not actually issue default judgement (the rules say it MAY, not MUST, issue default judgment against a Respondent who does not serve a Response). Therefore the Respondent was unable to apply to set aside the default judgment.

The EAT held that it would be absurd (my word, not theirs) if an employer was left unable to defend a claim in these circumstances.

Burton P. held that it is open to a tribunal in these circumstances to review its decision not to allow the Respondent to take part in the proceedings, and as a concomitant part of that review, it can decide to admit the Response Form late (para 22).

Burton P. also gave guidance for the factors to take into account when deciding whether to admit the Response Form late (paras. 28-29) and, exercising the EAT's power to substitute a decision, ordered that the 44 minute late Response Form should be accepted.

Blake Envelopes v Cromie

Compromise Agreements

The Court of Appeal has overturned the EAT's decision in Hinton v University of East London, holding that it is necessary for a compromise agreement to expressly specify the cause of action being settled in order to be effective.

Mr Hinton had raised (amongst other things) a claim under s47B of the Employment Rights Act 1996, claiming he was subjected to a detriment for making a protected disclosure.

He entered into a compromise agreement. The agreement started with a recital stating that he was agreeing to compromise all his claims. It then went on to list various causes of action but, probably through error in the drafting, did not refer expressly to a s47B claim.

The employment tribunal held that his s47B claim had not been compromised under a valid compromise agreement, so he could bring his claim. The EAT disagreed, holding that the recital at the beginning covered all claims, and the list was simply illustrative rather than exhaustive.

The Court of Appeal reinstated the ET's decision. Mummery LJ (giving the leading judgment) stated that a compromise agreement must specify the particular statutory claim being compromised or - at the very least - the factual basis of the claim (para. 22). A general 'catch-all' recital was insufficient as it did not make it clear what the "particular proceedings" (the wording from s203) being compromised were.

Hinton v University of East London CA 2005

Agency Workers

Yet another case on agency workers...

The Court of Appeal has, today, upheld a tribunal's findings that an agency worker was not employed by the agency.

Mr Bunce worked through an employment agency called Skyblue. The contract stated he was not an employee, and that there was no mutuality of obligation. The tribunal found the lack of mutuality of obligation was fatal and, even if not, the agency did not exert sufficient day-to-day control to make him an employee.

This finding was attacked by Mr Bunce on two grounds.

First, he argued that there was a series of short-term contracts, even if there was no mutuality of obligation under an overriding 'umbrella' contract. The Court of Appeal held that there was, in theory, the possibility of a series of separate contracts which, taken together, might give rise to sufficient continuity of employment to bring a claim. But where the express contract contained sufficient detail to set out the obligations for the worker (eg pay rate, obligation to follow instructions from the end-user client etc.), then there was no room to imply a series of second, additional, contracts (paras. 21-24).

Second, he argued that the fact that the contract provided that he should follow the instructions of the end-user was, in itself, sufficient control to give rise to an employment relationship. He argued that the agency had day-to-day control, but delegated it to the end-user. The Court of Appeal rejected this argument, holding that the correct approach is to look at the amount of day-to-day control the agency exerts in practice rather than in theory (paras. 27-29)

Accordingly, the Court of Appeal upheld the finding that Mr Bunce was not the employee of the agency.

Thanks to John Bowers QC of Littleton Chambers, who successfully represented the agency, for notifying me of this decision.

Bunce v Postworth Ltd t-a Skyblue CA 2005

Tribunal Claim Forms

Under the new Procedural Rules, employment tribunal Claim Forms must contain certain matters, inlcuding "details of the Claim".

The EAT has held that it is sufficient to identify the statutory right that it is alleged has been breached (in that case, the Claim Form just said 'flexible working' but provided no other relevant details).

HHJ Prophet, overturning the tribunal's refusal to admit the claim, held that the test is "...whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment rights which falls within the jurisdiction of the Employment Tribunal" (para. 15).

He went on to make it clear that 'details of the claim' was not the same thing as 'particulars of the claim', and if a chairman thought that the claim was insufficiently particularised, the correct approach is to order further particulars rather than refuse to admit the claim.

Grimmer v KML Cityhopper

Equal Pay - Michelle Alabaster v DWP

The Court of Appeal has, this morning, handed down its decision in Alabaster v DWP.

Last year in this case, the ECJ held that Article 141 required any pay rise awarded to a pregnant woman between the beginning of the pay reference period and the end of maternity leave should be included when the amount of maternity leave is calculated - whether or not the payrise is backdated to the period covered by the reference pay.

The Court of Appeal has now concluded the drama by stating that s1 of the Equal Pay Act 1970, insofar as it requires a pregnant woman to cite a male comparator, should be disapplied (meaning that no comparator is needed if it can be shown that the reason for not paying the pay increase is because of the woman's pregnancy). This adopts the House of Lords's approach in Webb v EMO Cargo.

The Court of Appeal declined to make any ruling, since it became unnecessary once the need for a comparator was disapplied and Mrs Alabaster could win her claim under the EqPA, on whether the 3 month time limit for claiming unlawful deductions under the Employment Rights Act 1996 offended EU law.

As one would expect, this is a complicated decision. But after eight years, and a trip to the ECJ, Mrs Alabaster has recovered her £204.53. It's always nice for the DWP to maintain its firm grasp of the concepts of proportionality.

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