Age Discrimination

In Seldon v Clarkson Wright & James, a firm of solicitors had a provision in their Partnership Agreement which required partners to resign at 65 (although they could be kept on by agreement). The claimant alleged that this was age discrimination.

The Employment Tribunal found that although the provision constituted direct age discrimination, it was justified. In part this was found on an assumption that performance tails off at around this age. The claimant appealed on various grounds, and the Equality & Human Rights Commission was permitted to make representations as interveners.

The EAT dismissed all the grounds save one, namely that the assumption that performance dropped off at 65 was not supported by any evidence and involved stereotyping. In principle, such a rule could be justified, but it was not justified in this case. The case was remitted to the same Tribunal to consider whether the need to achieve the other legitimate aims was sufficient to justify the rule.

In his judgment, Elias P. made the following observations:-

• the test with respect to direct age discrimination is not fundamentally different to that which applies to the other forms of discrimination. Nothing in domestic law nor the Directive requires a different test;
• there is no basis for Tribunals to direct themselves that it is only in very exceptional cases that direct age discrimination should be permitted - "it must apply the normal principles of legitimate aim and proportionality";
• the fact that, at the time when the rule was agreed upon the firm gave no thought to age discrimination or its justification, does not prevent it from justifying that rule now;
• the fact that the partners consented to the rule originally may be a factor to consider, but it does not automatically make it justified;
• for a partnership to seek to conduct matters so as to achieve "a congenial relationship amongst the partners" is a perfectly legitimate aim - "the equality laws are not designed to determine for companies what might be appropriate objectives"

[Thanks to Tom Croxford of Blackstone Chambers, who acted for the Respondent, for telling me about this case. Thanks also to www.emplaw.co.uk for allowing me to reproduce their summary of the EAT's key observations]

Homophobic Banter

The Court of Appeal has, today, overturned the EAT's decision in English v Thomas Sanderson Ltd. (see bulletin 20/2/08 for EAT decision).

By a majority, the Court of Appeal held that the Sexual Orientation Regulations 2003 DO protect a heterosexual man who is repeatedly tormented by homophobic banter (including names such as “faggot”) when (a) he is not gay, (b) he is not perceived or assumed to be gay by his tormentors, and (c) he accepts that they do not believe him to be gay. The banter arose purely because he had attended a boarding school and lived in Brighton.

The judgment of Laws LJ, who dissented, is twice as long as the combined judgments of Sedley LJ and Lawrence Collins LJ, who allowed the appeal. The judgments make very interesting reading.

[Thanks to Marcus Pilgerstorfer for telling me about this case. He has written an excellent summary of it, which appears on the Old Square Chambers website]

Time limits in the EAT

We all know the strict Abdelghafar rule against extending the 42-day time limit for appealing to the EAT. But what about the 28-day time limit that an Appellant has to apply for a r3(10) hearing if his/her appeal is rejected under r3(7)? Is it the strict Abdelghafar approach? Or the more relaxed approach the the EAT takes for, for example, lodging bundles of authorities or skeleton arguments?

This has now been decided by Underhill J. in Echendu v Morison Supermarkets. He holds that the strict Abdelghafar approach applies, so the 28-day time limit cannot be extended unless exceptional reasons apply (para 20).

He also holds that the 28-day period starts running from the date the r3(7) Notice is sent out, not the day it is received by the parties. Since the rule 3(7) Notice is not normally sealed by the EAT, the sensible rule of thumb is to assume that the letter is sent out on the date on the Notice itself, although that could be rebutted by other evidence (eg the postmark on the envelope) - paras. 13-15.

[Thanks to Dale Martin of Littleton Chambers, who successfully acted for the Respondent, for telling me about this case]

Restricted Reporting Orders

The EAT has, in Tradition Securities & Futures SA v Fariad, held that a restricted reporting order (‘RRO’) prohibiting the naming of the Claimants in relation to allegations of sexual misconduct can be varied in order to permit naming of those Claimants, notwithstanding that the previous RRO had been varied so as to permit reporting of the Claimant’s other discrimination claims against the alleged perpetrators.

In reaching this conclusion, Underhill J stated:

• an application to vary a RRO is governed by the principles in Hart v English Heritage (2006), namely a Tribunal should only vary a case management order where there is a material change of circumstance or some other exceptional reasoning justifying reconsideration.
• the Claimants’ change of position that they no longer wished to have the protection of the RRO was sufficient reason to justify reconsideration by the Tribunal.
• in principle, if the naming of the Claimants was likely to lead to identification of the alleged perpetrators by members of the public, it was open to the Tribunal to draft the RRO so as to prohibit such identification.
• on the facts of the case, it was not established that the identification of the Claimants was likely to identify the alleged perpetrators. Crucially, no identifying detail had been published in relation to the other discrimination claims and would almost certainly not be published in the future because the press would be aware that such publication would in practice lead to the alleged perpetrators’ identification in relation to the sexual misconduct allegations.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this summary]

Annual Increase in Compensation Limits

The annual increase in compensation limits has just been published (for dismissals and other trigger events occurring after 1st February 2009). The key increases are:

• compensatory award: £63,000 to £66,200
• a 'week's pay': £330 to £350
• maximum redundancy payment: £9,900 to £10,500

Full details here.

Allen v GMB - House of Lords refuses permission

The House of Lords has refused permission to appeal in the important case of Allen v GMB (for the Court of Appeal's decision, see bulletin 16/7/08).

The Court of Appeal restored the employment tribunal's finding that the GMB had indirectly discriminated against female union members by recommending acceptance of a 'single status' pay deal which grossly underestimated the compensation which should be due to female equal pay Claimants. Although the objective of securing a fair single status pay deal was legitimate, the means used by the union to secure the deal (including grossly misleading the female back-pay claimants) meant that they had not pursued proportionate means of achieving that pay deal.

It is likely that - subject to time limit issues - large numbers of discrimination claims by female workers against their trade unions, complaining of the way in which their rights were treated in negotiations with their local authority employers, will now follow.

[Thanks to Alex Robson of Littleton Chambers for telling me about this]

New edition out today...

The fourth edition of the Law Society Handbook on Employment Law, which I co-write with Henry Scrope, is out today.

If you fancy buying a copy (£59.95), the best place is via Amazon.co.uk (who don't charge the normal £4 or £5 for postage, although they offset this generosity by charging a £2 'sourcing fee').

Reviews of Previous Edition

• For an all-embracing, authoritative introduction to all major aspects of employment law, the Law Society's Employment Law Handbook is hard to beat."

Employment Lawletter

• "It strikes the right balance between detail and overview. If one was looking for that swift answer then this book will provide one.

ELA Briefing

Illegality

Elias P. has held, in Blue Chip Trading Ltd v Helbawi, that a breach of conditions imposed by a student working visa was not sufficient to render the whole employment contract illegal so as to a defeat a claim under the National Minimum Wage Act 1998. Mr Helbawi worked longer hours than was permitted by his visa during term-time. Notwithstanding that the breach was “flagrant and deliberate” and indeed a criminal offence, Elias P held, on the facts of this case, that part of the contract was legal and could be severed from the illegal part:

• the breach of the conditions was not a complete bar to Mr Helbawi doing any work at all. His visa allowed him to do particular work at certain times (Vakante v Governing Body of Addey and Stanhope School distinguished)
  
• Mr Helbawi could, subject to liability, recover with respect to those weeks where he was not working in excess of the number of hours permitted by his visa
  
• when exceeding the number of hours permitted to work under the terms of the visa, Mr Helbawi was knowingly doing the very thing he was forbidden from doing.

Accordingly, he would not be allowed to recover in respect of these weeks as to allow otherwise would involve the court condoning the illegality

Minimum Wage - Restaurant Tips

The government has, this morning, launched a consultation on proposed amendments to the minimum wage legislation.

Currently, where tips and gratuities are given directly to workers by customers and are retained by the workers without any other party being involved, they cannot count towards NMW payment. Where service charges, tips, gratuities and cover charges, are paid by the employer to the worker via the payroll then the tip can count towards national minimum wage pay (currently £5.73ph for adults).

The government proposes to amend the legislation so that tips can never count towards payment of the minimum wage. It will also require restaurants to make it clear how they distribute tips so that customers know where their money is going.

According to the Press Release issued at 8am this morning, the consultation paper is due to go up here. But the link isn't working at the time of sending this bulletin.

Incapacity Benefit and Compensation

In the conjoined appeals of Telindus Ltd v Brading and Sheffield Forgemasters International Ltd v Fox, the EAT (Silber J presiding) held that the mere fact a claimant received incapacity benefits for a period did not preclude him from recovering compensation for loss of earnings during the same period (subject to the rule against double recovery).

In each case, the claimant was dismissed, and the dismissal was held to be unfair and discriminatory. The Employment Tribunals awarded compensation for earnings which the claimants would have received had they not been unfairly dismissed or discriminated against, including in each case a period during which the claimant received incapacity benefit. The employers contended that the receipt of incapacity benefit should have prevented the tribunal from awarding damages for loss of earnings, because under the relevant statutory benefits scheme eligibility for incapacity benefits depended on a person being “incapable of work”; and unless that incapacity was itself attributable to the respondent’s unlawful conduct, the claimant should not be awarded damages in respect of that period.

The EAT held that statutory the definition of “incapable of work” was a deeming provision which applied only for the purposes of the benefits system, and observed that many people who satisfy this test might still, as a matter of fact, be able to work.

It did not follow therefore that a person incapable of working for purposes of the benefits scheme must be regarded as unable to earn during the period of incapacity.

Tribunal bias

City & County of Swansea v Honey is a rare example of the EAT assenting to a bias appeal. The judgment contains comments of some importance to the probity of wing members sitting on cases involving employers in the same area of industry as the member.

The Employment Tribunal found that Mr Honey, a senior legal executive with Swansea Council, had been automatically unfairly dismissed and awarded him the statutory maximum compensation. After judgment but before the remedies hearing, the employer discovered that the Union wing member was a District Secretary of the RMT and had been involved in the representation of taxi drivers in a campaign against the local authority employer to restrict numbers of taxi licences and held a "thoroughly negative" view of the local authority as an organisation. This did not relate to the parties involved in the Employment Tribunal hearing who were unknown to him.

The employer argued apparent bias. The EAT was strongly critical of the failure of both the Employment Judge and the member to recognise that this was a plain case of apparent bias, both before trial and at a subsequent review application.

The EAT commented (in particular at paragraph 35) that if a wing member has had any contentious dealings with an employer or has articulated criticism of an employer, this must be declared to the parties and will probably satisfy the test of apparent bias, even where, as in the immediate case, the individuals involved in the Employment Tribunal claim were unknown to the member.

Statutory Grievances and Equal Pay Claims revisited

In three conjoined appeals under the name Arnold & ors v Sandwell MBC, the EAT has revisited the question of what detail is necessary to identify “the complaint” in a grievance concerning the Equal Pay Act 1970.

Departing from the EAT decision in Highland Council v TGWU, Elias P held that the information in a grievance can be minimal and need state no more than that the claim is a claim under the Equal Pay Act 1970. Elias P reasoned as follows:

• it is implicit in an Equal Pay Act grievance that the complaint is that a comparable employee man doing equal work is receiving more than she is and ought not to be
• a restrictive construction of “the grievance” may deny Claimants (often litigants in person) an opportunity to bring their claims, an outcome wholly inconsistent with the objective of the Dispute Regulations
• once notified of the grievance, an employer can initiate further discussion to find out more about the complaint
• even if the bare statement of grievance suffices, a Claimant who provides no more will be subject to a sanction at any remedy stage. This was a significant consideration in Elias P’s reasoning and such that, in part, persuaded him to depart from the Highland Council decision (para. 65/75).

We are now faced with two conflicting EAT decisions on the proper construction of the Dispute Regulations, a predicament that influenced Elias P in granting the employers permission to appeal.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]

New Acas Code on Disciplinary and Grievance Procedures

The eagerly awaited revised Acas Code of Practice on Disciplinary and Grievance Procedures has been published this afternoon. It comes into effect on 6th April 2009, when the statutory dismissal and grievance procedures are abolished. An unreasonable failure by an employer to follow the Code will result in a tribunal having the power to increase any award by up to 25%.

It can be downloaded from Acas's website. The current version has the word 'draft' stamped all over it as it is awaiting approval by parliament - but this should be a formality.

Age Discrimination

The EAT has, in Live Nations (Venues) UK Ltd v Hussain, given some guidance as to conduct which may justify a finding of age discrimination:

• an employer that genuinely believes employee 'A' is guilty of age discrimination against employee 'B', and dismisses employee 'A' for that reason, cannot be said to be discriminating against employee 'A' on the grounds of his or her age
• an unjustified or unreasoned belief that an employee has ageist tendencies may render a dismissal unfair, but it does not justify an inference that the reason for the dismissal is the employee's age
• if an employee's dismissal for suspected ageism justified an inference of age discrimination by the employer, it might restrict an employer in dealing with a suspected discriminator for fear that they would be found to be discriminating
• reference to an employee being 'too old to change' could, in an appropriate case, provide some basis for inferring age discrimination.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]

Religious Discrimination

The EAT has held, in Saini v All Saints Haque Centre, that Regulation 5(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 will be breached not only where an employee is harassed on the grounds that he holds certain religious beliefs but also where he is harassed because someone else holds certain religious beliefs.

In reaching this conclusion, the EAT reasoned that:

• regulation 5(1) requires conduct “on grounds of religion or belief” and as such, does not require the unwanted conduct to be on the grounds of the employee’s own religious beliefs.
• such an interpretation is consistent with the aims and intention of the EC Framework Directive and with the judicial interpretation of the Race Relations Act 1976, which is similarly engaged where there is discriminatory conduct on the grounds of someone else’s race.
• to use an employee in any manner in the implementation of a discriminatory policy is caught if the effect on the employee falls within any of the descriptions set out in paragraph 5(1)(b). The circumstances need not be confined to those where an employee has been instructed to act in a discriminatory fashion.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]

Age Discrimination

In Chief Constable of West Yorkshire Police v Homer, the EAT held that a requirement that an employee had to have a law degree to be entitled to graded at a higher pay scale did not put a 61-year old employee at a particular disadvantage on the grounds of his age, even though he could not have obtained a degree (studying part-time) before he retired.

The EAT (Elias P. presiding) reasoned:

• the requirement of a law degree was not something required only of those over a certain age. Nor was it in principle more difficult for an older person to obtain the qualification that it was a younger person.
• whilst the Claimant could not materially benefit from any law degree he might obtain, that was because his working life was limited by his age. The EAT described such a disadvantage as "the inevitable consequence of age; it is not a consequence of age discrimination" (para 39), drawing an analogy with an employee who complained that a universal payrise was discriminatory because he, being closer to retirement, had less time than younger colleagues to enjoy it.

The decision need not however spell all doom and gloom for Claimants. Had Mr Homer been able to establish the requisite disadvantage, the EAT stated that it would have upheld the tribunal's finding that any age discrimination was not justified as the requirement was not a proportionate means of achieving the recruitment and retention of appropriately qualified staff.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this case summary]

Working Time Regulations - Rest Breaks

In Commissionaires Management v Hughes, a case dealing with several aspects of rest breaks under the Working Time Regulations 1998, the EAT has held:-

• that an employee is only entitled to one rest break once he has worked more than six hours; he is not entitled to a subsequent rest break if he works for twelve hours (paras. 15-16)
• where a rest break cannot be taken at the correct time, a proper compensatory rest break must be offered. It is not enough to say that an employee can rest between shifts (paras. 25-29)
• a claim can only be brought in respect of rest breaks for the three month period before presentation of a claim (six months if the statutory grievance applies). The concept of 'continuing breaches' to enable further backdating does not apply here (para. 42)

Stress at Work Claims

The Court of Appeal has handed down its decision in Dickens v O2 plc, dismissing O2’s appeal against the trial judge’s finding that O2 was liable for stress induced personal injury suffered by one of its employees.

Whilst purporting to apply the guidance given in Hatton v Sutherland, the Court's application of that guidance to the facts before them arguably indicated that the requirements of reasonable foreseeability, breach and causation may not be as difficult for claimants to satisfy as a strict reading of Hatton may have suggested.

• In relation to reasonable foreseeability, it was sufficient that the employee had previously complained about the stress of her job, had been coming into work late on a regular basis, and had told her line manager that she did not know how long she could keep going before she would become ill;
• In relation to breach of duty, O2 ought to have sent its employee home pending urgent investigation by occupational health, even in circumstances where she had not been signed off sick by her GP. The Court held that the mere suggestion of confidential counselling was not an adequate response to a situation where an employee was complaining of severe stress;
• In relation to causation, the Court inferred a sufficient causal connection between the breach and the illness, finding the series of failings by O2 to address her problems had materially contributed to her illness.
• In relation to apportionment, the Court indicated that there should be no across the board percentage reduction to damages for the contribution to the illness made by non-tortious causes, doubting the correctness of Hale LJ’s remarks in Hatton on this point.

[Thanks to Bruce Gardiner of 2 Temple Gardens, who acted for the Defendant, for providing this case summary]

Names of all ET Respondents to be published

The Information Commissioner's Office has ruled that the identity of all Respondents to employment tribunal cases has to be disclosed by the Department for Business, Enterprise and Regulatory Reform (BERR), the government department responsible for tribunal policy, under a Freedom of Information Act request.

The ICO Press Release states that "The new ruling by the Information Commissioner’s Office paves the way for the material to be released routinely once again." Details of parties to tribunal cases previously appeared in a Register, but this ceased in 2001 following concerns that commercial organisations targeted parties (including represented parties) offering to represent them in tribunal cases.

To view the Decision Notice, click here. Note that this decision is concerned with the identity of Respondents only; not Claimants. Far stronger privacy arguments will exist in connection with the identity of Claimants.

Age Discrimination - ECJ Judgment

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

The ECJ has held, in Bartsch v Bosch, that where there is no link with Community law, it is not mandatory for a Member State to apply the prohibition against age discrimination.

Mrs Bartsch, a German national, was 21 years younger than her husband, a former BSH employee. Under their pension policy, although spouses were normally entitled to pension payments, upon his death, she was not so entitled, as BSH had a guideline that they would not make payments if the widow/widower was more than 15 years younger than the former employee. Mr Bartsch died before Germany had implemented the EC Equal Treatment Framework Directive 2000/78, and BSH imposed their guideline against Mrs Bartsch.

Mrs Bartsch challenged this in the German labour courts unsuccessfully, but the Landesarbeitsgericht (Higher Labour Court) made a reference to the ECJ: was the prohibition under Community law of discrimination on the ground of age is mandatory where the allegedly discriminatory treatment contains no link with Community law? It was also significant that the guideline had been implemented by BSH before Germany had implemented Directive 2000/78; the time-limit for implementation had yet to expire.

The Court distinguished Mangold [2005], where the national rules in question were a measure specifically implementing a directive, so the national measure had fallen within the scope of Community law. The difference in the index case was that the guidelines at issue do not correspond to measures transposing Community provisions.

The Court held that neither the Equal Treatment Framework Directive, nor Article 13 EC, enable a situation such as Mrs Bartsch’s to be brought within the scope of Community law. The kind of scheme in question was not covered by the legal framework of the Directive or Article 13.

[Thanks also to Katherine Apps of Littleton Chambers for telling me about this case]