Equal Pay

The EAT has held (overturning previous caselaw) in Walton Centre for Neurology v. Bewley that a woman's successor in a job cannot be used as a comparator for the purposes of an equal pay claim, either under the Equal Pay Act 1970 or Article 141 of the EC Treaty.

Elias P. accepted the Appellant's submission that the 1970 Act does not permit a comparison with a woman's successor because the statute envisages a specific person contemporaneously employed with whom a comparison can be made.

However, this was not determinative of the appeal because it was necessary to consider whether the Act should be read in accordance with EU law.

Having examined the case-law at some length, the EAT decided that comparison with a successor is not permitted under EU law either. The logic behind comparison with a successor was the same as that behind allowing a hypothetical comparator; in essence, it is an exercise in speculation as to what would have happened if they had been employed contemporaneously. This is not consistent with the structure of the Equal Pay legislation, which requires comparison with an actual comparator and not a hypothetical comparator.

Michael Duggan's Case Index

Michael Duggan of Littleton Chambers has published the latest edition of his excellent case index. He has made it available to all - download it here.

NOTE: it is a large file - please try again later if it does not download immediately

New EAT Practice Direction

The Employment Appeal Tribunal has issued a new (2008) Practice Direction dealing with EAT procedure, replacing the previous (2004) Practice Direction in its entirety. It came into force yesterday.

Download it here. Note that it is a large (3Mb) document, and the EAT website may have trouble coping if too many people try to download it simultaneously. If it doesn't work, try again later.

[Thanks to John Bowers QC of Littleton Chambers for telling me about this]

Implied Duty to Provide Work

Thanks to Saul Margo of Outer Temple Chambers, who appeared for the successful employee, for writing this case summary.

The EAT, in St Ives Plymouth Limited v Haggerty, has considered whether the expectation of being given work, resulting from the practice over a period of time, can of itself constitute a legal obligation to provide some work or to perform the work provided, even where there is no duty to undertake any particular work offered or a minimum amount of work.

In a majority decision, Elias P, presiding, held that the practical commercial consequences of not providing work on the one hand or of not performing it on the other could crystallise over time into legal obligations.

The EAT relied upon the majority reasoning of the Court of Appeal in Nethermere v Gardiner but considered the impact on that Judgment of Lord Irvine’s observations in Carmichael that no terms could be implied by business efficacy unless and until the relationship itself was contractual. It was held that in Carmichael there was no express rejection of the reasoning of the majority in Nethermere and that the reasoning of the Court of Appeal should not be taken to have been overruled. The appeal was dismissed.

Compromise Agreements - Court of Appeal

[Thanks to Anthony Johnson of 1 Temple Gardens for providing this case summary]

In Collidge v. Freeport plc, handed down last week, the Court of Appeal unanimously upheld the High Court's decision that it was a condition precedent of the Respondent's liability to perform its obligations under a Compromise Agreement that the Claimant was not in breach of a term included in that agreement to the effect that he had not previously committed any repudiatory breaches of his contract of employment that would have entitled the Respondent to terminate his employment.

Counsel for the Claimant argued in the Court of Appeal that the Respondent had elected not to treat the Claimant's repudiatory breach as bringing the agreement to an end, or at least not before his right to payment had accrued. However, all three judges rejected this construction of the agreement. Tuckey LJ, giving the lead judgment, said that it was a carefully drafted agreement, and that its construction was put beyond doubt when its context was considered. Sedley LJ said that the proverbial officious bystander "would have thought the parties were pulling his leg" if told that Claimant's purported construction of the agreement was the correct one.

Agency Workers

The government, TUC and CBI have today agreed a deal which will see agency workers in the UK receive equal treatment after 12 weeks' employment.

Details can be seen on the government press release or BBC news item.

Unified Tribunals Service

The Ministry of Justice has today announced that the new Unified Tribunals Service will be going live on 3rd November 2008.

Employment tribunals (and the EAT) will remain separate from the unified system, but closely associated with it (whatever that means).

More details here.

Redundancy: unreasonable refusal of suitable alternative

HHJ Peter Clark, in the EAT, has handed down a decision for those fighting over redundancy payments.

In Commission for Healthcare Audit & Inspection v Ward, the EAT considered the overlap between the suitability of alternative employment, and the (un)reasonableness of a refusal of that suitable job.

They held that a tribunal is entitled to have regard to the degree of suitability when deciding whether the employee's refusal is reasonable. In other words, where the new job offer is overwhelmingly suitable it may be a little easier for the employer to show that a refusal by the employee is unreasonable than if the suitability was a more borderline decision.

Disability Discrimination

Thanks to Louise Jones of 1 Temple Gardens for providing this summary.

In Lincolnshire Police v Weaver, the EAT reaffirmed that employers can have regard to factors outside those of an individual employee when deciding whether an adjustment is reasonable under the DDA 1995.

As a police officer of over 30 years’ experience, the Claimant was entitled to apply to a ‘Thirty+ Retention Scheme’, which allowed a pension to be claimed, but the individual’s employment to carry on favourable terms.

The Claimant’s disability had taken him from the role of a fully operational officer to an office-based post, which was essentially a post of restricted duties, before he became eligible for the Scheme. The way in which the Respondent applied the Scheme to him was such that, as an officer on restricted duties, he was not permitted access to the Scheme, as his departure might enable another officer to take up that post.

Elias P. held that the tribunal approached the ‘reasonable adjustment’ question incorrectly, as it did not take into account the wider implications of making the adjustment (which in the instant case meant admitting the Claimant onto the Scheme).

The tribunal was under an obligation, the EAT said, to engage with the wider operational objectives of the Respondent and, in particular the desire to liberate posts for restricted officers. Indeed, the wider approach was one suggested by paragraph 5.42 of the Disability Rights Commission Code of Practice: Employment and Occupation [2004]. Further, the tribunal had erred in having regard to the fact that the Respondent had deliberately adopted a policy which operated to the disadvantage of disabled people. The EAT found this could not be a relevant consideration.

Modified Grievance Procedure

This summary was prepared by, and is reproduced with permission of, www.emplaw.co.uk

Yet another case concerning the statutory dispute procedures which, as pointed out by Lady Smith in the Scottish EAT in Clyde Valley Housing Association v McAulay, "have provoked a sea of negative comment of Pacific rather than Caspian proportions".

Ms MacAuley resigned from the Clyde Housing Association, claiming constructive dismissal and disability discrimination. It was agreed that the modified statutory procedure, set out in Employment Act 2002, applied, and so Ms MacAuley's solicitors wrote to Clyde setting out a number of allegations. Clyde sought clarification of exactly what acts and conduct of theirs it was that Ms MacAuley was referring to. These were not forthcoming, so they wrote to say that, as a result, they had been unable to address the grievance. An employment tribunal held that the grievance procedures had been complied with, and Ms MacAuley won her case. Clyde appealed.

The EAT confirmed that the tribunal could not entertain the claim unless Ms MacAuley had sent something in writing to Clyde which set out her grievance and the basis for it. This is a threshold condition. The written statement must "contain the answers to the essential questions that one would expect to arise in a grievance, namely: 'Who? What? Where? When? Why?'" The fact that further details could come to light during litigation, or indeed that there could be financial penalties for failing to fully comply with the procedures, does not remove the tribunal's need to consider that written statement alone and be satisfied that it meets these certain minimum requirements. The letter in this case simply made assertions, and did not meet the basic requirements. The appeal was allowed and the tribunal's order set aside - so the claim was dismissed.

Uplifts to Awards

The EAT, sitting in Scotland, has handed down a controversial decision on uplifts to the compensatory award (McKindless Group v McLaughlin).

The employer admitted breach of the statutory dismissal proceedings, and defended on quantum only. The tribunal awarded a 50% uplift. Overturning this, and substituting a 10% uplift, the EAT stated that:

• a tribunal cannot award more than a 10% uplift in the absence of evidence on the reason(s) for breach of the statutory dismissal procedure (para. 13); and,
• a tribunal is not entitled to take into account the way in which the employer subsequently conducted the litigation (para. 26)

Both of these conclusions are open to question. As to the first, if correct, it would mean an employer who deliberately flouts the procedures and then takes no part in the proceedings could not be subjected to more than a 10% uplift, whereas a well-meaning but ignorant employer who tries to explain his error could be subject to a greater award. The approach is also not reflected in the practice of tribunals (certainly, in my experience) up and down the country.

As to the second conclusion, this does not flow from the wording of the statute. Certainly, a breach of the statutory procedures is the trigger for an uplift, but nothing in s31 of the 2002 Act confines the tribunal to the degree of, or motive for, breach of the procedures when assessing what level of uplift is 'just and equitable'.

Tony Blair, Jehovah's Witnesses and Delusional Litigants

What do Tony Blair and the Jehovah's Witnesses have in common? Well, according to the Claimant in Johnson v Edwardian International Hotels, they conspired with his employer to dismiss him from his job as a hotel kitchen porter.

The tribunal, which suspected that the Claimant was "delusional", invited the Official Solicitor to investigate whether the Claimant had sufficient mental capacity to litigate his claim.

The Claimant appealed. Underhill J., sitting alone, held that:-

• the employment tribunal rules make no provision for the tribunal to appoint a litigation friend. Such a power cannot be implied (para. 11);
• there is, in law, a presumption that a party has mental capacity (para. 12).

Taken together, these mean that tribunals should be very wary of investigating a party's mental capacity. Underhill J. stated that tribunals are required to deal with "delusional" allegations under their general case management powers. If the case is misconceived, it can be struck out. However, even if the case is not misconceived, it may still be struck out if the party suffering from possible mental incapacity conducts the proceedings in a way which renders the case unmanageable (paras. 13-14)

Conversely, this means that Respondents may be exposed to vexatious or misconceived allegations which a tribunal may be reluctant to strike out. On the other hand claimants who are genuinely mentally ill will be exposed to costs sanctions where the claim or at least some of the allegations are or may be a product of their illness.

Perhaps unsurprisingly, the EAT did not deal with the Claimant's ground of appeal which asserted that he had - in fact - won his claim and been awarded compensation by the tribunal, and that the tribunal order which arrived through the post was "a forgery" (para. 4)

Consultation: New Acas Code on Discipline and Grievance

Acas has launched a consultation on its proposed revised Code of Practice on Discipline and Grievance.

Under proposed changes to employment law due to take place in April 2009, a failure to follow the Code does not, in itself, make a person or organisation liable in proceedings. However, tribunals will be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with any provision of the Code.

The new draft Code is very short. You can see it here. The consultation period closes on 25th July 2008.

Statutory Dismissal Procedure: Extensions of Time

The Court of Appeal has held by a 2:1 majority in Towergate London Marketing v. Harris that a claimant was entitled to an extension of time in accordance with Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in circumstances where she had filed a 'grievance', but not an 'appeal' letter, within the original three months' time limit.

The tribunal decision, holding that at the date the limitation period expired, she did not have reasonable grounds for believing that a disciplinary procedure was being followed within the meaning of Regulation 15(1), was overturned.

Keen LJ, in the majority, stated that whereas to an employment lawyer there is clearly a distinction between a 'grievance' and an 'appeal', "one does not expect an employee to have a ready grasp of these arcane mysteries". Most employees do not have ready access to skilled legal advice; it is, therefore, important that the courts avoid an unduly technical approach. He felt that from the wording of the Regulation was clear that the claimant's belief did not have to be that a statutory procedure was being followed, merely that a procedure was being followed.

Wilson LJ agreed, saying that an employee can have a grievance in accordance with the use of the word in common parlance. It is not objectionable or misconceived for the claimant to write a letter to her employer stating that she had a 'grievance', when she meant to say she had an 'appeal'.

Ward LJ, dissenting, was of the opinion that, looking at the matter objectively, a reasonable employer would construct the letter to mean what it clearly and plainly said, i.e. that it was a grievance about action the employer had taken. It was too late for the claimant to bring such a complaint because she had already been dismissed. She should have exercised her right to appeal if she wanted to make such a complaint to the tribunal.

Intimidation of Litigants

Last week we heard about the Respondent whose Response was struck out for threatening the Claimant in the tribunal car park. This week, things get even closer to home - a Respondent threatened a Claimant, using unpleasant and intimidating language, outside the lifts at the Southampton tribunal (see para. 6 of the judgment).

The employment tribunal held that such threats could not amount to an actionable case of victimisation, as they were so closely connected with the hearing that judicial proceedings immunity applied. The EAT overturned this, holding that conversations outside the lift did not form any part of the juducial proceedings (para. 15).

Separately, the EAT held that conduct intended to deter a Claimant from enforcing his statutory employment rights would be sufficient closely connected with the employment relationship to amount to a (potentially) unlawful act by an employer within the meaning of the discrimination legislation (para. 14).

Strike Out: Intimidatory Conduct

The EAT has held, in Force One Utilities v Hatfield, that it is appropriate to strike out a Response when the employer's main witness threatens the Claimant at the tribunal.

The Respondent's main witness threatened and swore at the Claimant in a car park near the tribunal (see paras. 7-9). The EAT held that:

• once intimidation of this kind has occurred, it will be a very exceptional case where it can be said that a finding that no fair trial is possible is perverse (para. 28);
• a possible exception is where the intimidation happens very late in the trial, when a fair hearing may well remain possible (para. 31).

TUPE: Who does the thinking?

Thanks to Anthony Johnson of 1 Temple Gardens for preparing this case summary.

In Dynamex Friction v. Amicus, the Court of Appeal held that in TUPE cases, when determining whether the reason for a dismissal was transfer-related or an economic reason, it has be the person who took the decision whose thought process is subject to analysis.

In this case, as the company were in administration, it was the administrator’s decision that came under the microscope. The Tribunal had found as a fact that he had to dismiss the employees because he had no money with which to pay them; it had to be said that was an economic reason. Although a purchaser of the business was subsequently identified a week later, there was no evidence to suggest that the administrator dismissed the staff in order to have a better prospect of selling the business. Accordingly, the employees were not dismissed 'immediately before' the TUPE transfer for the purpose of the 1981 Regulations.

So far so good: however, matters were complicated by an allegation that the administrator's mind had been affected by the "Machiavellian machinations" of the American managing director who had the day-to-day running of the business. It was alleged that the administration had essentially been stage-managed, using the administrator as an "unwitting tool" for the business to be regained via an alternative investment vehicle without having to incur various liabilities.

The Court of Appeal held that, even taking these allegations as proven and at their highest, they would not impact upon its decision. The Shrewsbury ET had found as fact that there was no collusion between the administrator and the director. Ward LJ said that the crucial question was "whose decision was it?" Once it was established that it was the administrator's independent decision, nothing done by the director or anyone else could be said to have any bearing on why he did what he did.

Fixed Term Workers: ECJ decision may cause chaos for employers

Thanks to Katherine Apps of Littleton Chambers for writing this case summary

The ECJ has handed down judgment in Impact v Minister for Agriculture and Food (Ireland). The case is important both for its ruling on the substantive law and particularly on how Claimants can protect their EC law rights in national Employment Tribunals. The ECJ holds:-

• Non-discrimination rules in the Fixed Term Workers Directive have direct effect, meaning they can be enforced directly irrespective of the national laws (para 59-68).
• Abuse by use of successive fixed term contract rules do not have direct effect, but national law should be interpreted consistently with the Directive if at all possible (para.80 and para. 104). The ECJ sets out in terms what is 'possible' and holds that retroactive effect must be given to the Irish legislation.
• The principle of non discrimination against fixed term workers extends to pension entitlements: This has the potential to cause chaos for employers which treat fixed term employees differently for pension purposes, or exclude them altogether from their pension scheme. As Article 4(2) has been held to have direct effect this ruling will be of particular concern to public bodies. It should also be noted that the extent of indirect effect through the duty of consistent interpretation could potentially significantly affect private employers as well.
• Employees must be able to bring claims based on EC law in the Employment Tribunal: The ECJ held that where national legislation implementing EC law provides for a specialist court jurisdiction (here the Irish Labour Court, which is similar to the Employment Tribunal system), European law requires that that tribunal have the power to hear and determine disputes arising directly from that European legislation. It is not sufficient for Claimants to have recourse separately to the County Court/ High Court (paras 37-55); the tribunal must have jurisdiction to hear the complaints.

Unfair Dismissal: Burden of Proof

In Kuzel v Roche, handed down this morning, the Court of Appeal has comprehensively analysed the operation of the burden of proof in unfair dismissal claims. The EAT decision was considered in the Employment Law List bulletin 8/3/07.

Noting "how worked up lawyers can get about something like the burden of proof", Mummery LJ sought to resolve the dispute about who has to show the reason for dismissal in a case where there are rival reasons put forward by each side, one of them being the making of protected disclosures.

Urging that the issue needs to be seen in the context of Part X of the ERA 1996, it was held that it was clearly for the employer to show that it had a (potentially fair) reason for dismissing the employee. When an employee positively asserts a different reason such as whistleblowing the burden of proof does not pass to him or her; whilst the employee must produce some evidence supporting the positive case, the employee does not bear the burden of proving that the dismissal was for that reason.

It is sufficient for the employee to challenge the evidence produced by the employer to show that the reason advanced by him for the dismissal and to produce some evidence of a different reason. As Mummery LJ stated, "An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was."

[Thanks also to Nick Hanning of RWPS Law, and to John Bowers QC of Littleton Chambers (who acted for the Respondent), for telling me about this case]

ACAS: New advice on depression at work

Acas has, today, issued new advice to employers on how to spot signs of depression in the workplace. This comes in anticipation of Depression Awareness Week.

It coincides with the publication of Acas's new booklet on Health, Guide and Wellbeing (warning: large file!), which includes sample checklists and policies.