Employment Tribunal Statistics 2008/09

The Employment Tribunal and EAT statistics 2008/09 have been published today.

Key findings:-

• 20% decrease in the number of claims accepted - but if multiple airline (cabin crew) claims are excluded, there is in fact a 4% decrease
• unfair dismissal, redundancy pay and breach of contract claims rose in number. Working time claims, equal pay and sex discrimination fell.
• maximum award (in a race case) - £1,353,432
• 21 age discrimination claims disposed of (average award £8k)
• costs awarded in 367 (0.2%) cases (average costs award £2,470)
• for the first time, the EAT rejected over 50% of all appeals at the sift stage

Default Retirement Age - More Detail

[Thanks to Schona Jolley for writing this case summary, and Declan O'Dempsey (who appeared in the Heyday case) for sending me the decision ]

Judgment was handed down today in the Heyday litigation. Age UK challenged the Default Retirement Age (DRA) of 65 in the Age Regulations arguing that Regulation 30 should be struck down since there was no clear and consistent social policy aim pursued by government. They argued the choice of a DRA at 65 was not proportionate. The EHRC submitted that 70 was the earliest appropriate age for a DRA.

The Government succeeded in respect of Regulation 30, but only just. Although the Court held that Regulation 30 (and a DRA in principle) was both legitimate and proportionate, there were powerful reasons why an age over 65 should have been adopted. Two days before trial the Defendant announced it would review Regulation 30 in early 2010. The Court considered that if there had been no indication of this imminent review it would have granted the application. Likewise, if Regulation 30 had been adopted for the first time in 2009, the application would have been granted.

The Claimants lost on their argument that the Regulation 3 justification test should be struck down for want of clarity since the Court considered the Government had spelled out sufficiently its social policy aims about the integrity of the labour market.

To listen to Daniel Barnett discussing this case on LBC 97.3, click here(allow 30 seconds for the download).

Breaking News: Heyday Decision Out...

The High Court has just handed down its decision in the Heyday appeal, ruling that it is legal for UK law to allow employers to force employees to retire at age 65.

BBC news story here... (and see the history of this litigation here).

Employment Status - Ultra Vires contracts

[Thanks to Chris Milsom of St Philips Chambers for preparing this case summary]

The EAT (Slade J) has handed down its decision in Shrewsbury NHS Trust v Lairikyengban. In upholding the appeal, the EAT ruled that an employment contract renewed in contravention of the NHS Regulations was ultra vires. However, an employee who continues to work under an ultra vires contract of employment is nevertheless entitled to be treated as an employee under the ERA (Eastbourne Borough Council v Foster [2002] ICR 234 applied).

The EAT stated that a failure to renew a fixed-term contract is not in itself sufficient grounds for a redundancy claim where there was no reduction in the overall level of work required to be completed by an employer and there remained a vacancy for a permanent employee. In those circumstances, the ET's decision to uphold a claim for contractual redundancy payment was perverse.

Further, the ET acted erroneously where it determined remedy on the evidence despite a previous agreement between the judge and the parties to conduct a split hearing.

Gordon Brown to fast-track agency workers' rights

[Thanks to emplaw.co.uk for allowing me to use their summary]

Speaking at the TUC annual conference in Liverpool, the Prime Minister has said: "I believe that the fight for fairness must include agency workers and so I pledge... that when parliament returns our new legislative programme will include equal treatment for agency workers".

It presumably follows that Gordon Brown intends to ensure that Britain does not delay implementation in the UK of the EC Agency Workers directive "on temporary agency work" of 19th November 2008). The Directive itself allows until 5th December 2011 for implementation.

See here for more.

Workers can reclaim holidays lost to sickness

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary]

The ECJ has handed down its decision in Pereda, which is authority for the proposition that a period of illness whilst on holiday does not count towards the minimum period of 4 weeks paid annual leave under the Working Time Directive (WTD).

Mr. Pereda, a specialist driver, suffered an accident at work around 14 days before the commencement of his allocated period of 4 weeks annual leave. The injury put him out of action for 6 weeks. His sick leave therefore almost entirely overlapped with his planned holiday but his request for an additional period of annual leave was refused. Under the ECJs ruling his period of sick leave should not have counted towards his holiday time.

The ruling emphasises that there can be no derogations from the entitlement to paid annual leave, the purpose of which is to enable a worker to rest and enjoy a period of relaxation and leisure. By contrast the purpose of entitlement to sick leave is to ensure that he can recover from being ill. Consequently, if a worker decides not to take annual leave during a period of illness, he must be granted a replacement holiday period to ensure that he is not deprived of his entitlement to rest, relaxation and leisure. This principle is likely to apply whether the employee falls sick before or during the actual period of leave.

Click to hear Daniel Barnett discussing this case with David Mellor on LBC 97.3

Avoiding the statutory uplift…

[Thanks to Ed McFarlane of EEF for preparing this case summary]

An interesting case...

The EAT has handed down judgment in the case of Tim Arrow & Sons v Olney, which is authority for the proposition that where a Tribunal award includes an uplift, if the respondent pays the claimant a sum to cover the award before Judgement, the uplift is calculated on the outstanding sum due, rather than the total amount of the award.

This case was decided under the Employment Act 2002, it is likely to have application under the 2008 provisions, given the similarity of the uplift provisions in the two Acts. Conversely, where a reduction is made to an award, by the same reasoning, any advance payment offset against an award would be likely to disregarded in any reduction of compensation. The EAT also overturned an award for loss of statutory rights where the dismissal was inevitable.

Norton Tool and Constructive Dismissal

The Court of Appeal has overturned the EAT (see summary of the EAT decision) in Stuart Peters v Bell, holding that the Norton Tool principle does not extend to constructive dismissal, and so a constructively dismissed employee must give credit for sums earned from other employment during the notice period.

For more detail, I recommend the summary of the Court of Appeal's decision on emplaw.co.uk (who tipped me off about this decision - thank you).

London (East) Tribunal is moving

No more trips to Stratford.

From 30th September 2009, the London (East) tribunal moves to new premises in London E14 (Docklands, near Canary Wharf). The old hearing centre closes for business on 24th September.

Full details here.

New DCSF Guidance on Employing Children

Ever wondered whether Mr Grimes breached health and safety laws when sending Tom up the chimney? Or whether Miss Hannigan breached the Working Time Regulations when forcing Annie to sweep the orphanage floor?

Well, wonder no more. The Department for Children Schools and Family has produced an excellent Guide on Employing Children, covering everything from the types of work children can (and cannot) do, through the number of hours they can be required to work, to specific health & safety requirements. It's a really good guide to print off and keep for future reference.

Costs: Lying Litigants

[Thanks to Will Dobson of Cloisters for providing this case summary]

The EAT in Dunedin Canmore Housing Association v Donaldson has held that it was perverse for the Tribunal to have refused to award costs where the claimant's assertions that she had not disclosed details of her compromise agreement in breach of a confidentiality clause were false.

The Claimant brought proceedings for breach of a compromise agreement, claiming she had not been in breach of a confidentiality clause. The Tribunal rejected her evidence and found she had made disclosures to two people. Nonetheless, it declined to award costs against her as it took the view that it was necessary for her to bring proceedings as the employer had alleged that the claimant had breached the clause.

The EAT disagreed and observed:

• there was no basis for the view that proceedings were 'necessary' or that the claimant had no other alternative but bring proceedings where she knew her assertions were false;
  
  
• the fact that the claimant was a lay person was irrelevant - what mattered was whether she had or had not, in simple human terms, approached the essential factual matters that lay at the heart of her case honestly and reasonably

Because she had not approached the case honestly and reasonably, the EAT reversed the tribunal's decision on costs and ordered the Claimant to pay her ex-employer's legal costs.

This case follows the EAT's earlier judgment in Daleside Nursing Home Ltd v Mathew which held that it was perverse for a Tribunal not to award costs where the central allegation of racial abuse was a lie.

TUPE and Constructive Dismissal (Important Case)

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT has handed down its decision in Tapere v South London & Maundsley NHS Trust, which is authority for the proposition that:

1. post-transfer, the test for whether a substantial change to working conditions - which covers contractual terms - is to the material detriment of a transferred employee, under TUPE 2006 reg 4(9), follows Lord Scott's formulation for detriments in Shamoon, a discrimination case, looking at the impact of the change from the employee's reasonable viewpoint, not by balancing the views of the employee and employer.
   
   
2. transferees cannot use a 'substantial equivalence' argument to defend breaches of pre-transfer terms, except when terms present practical difficulties, like share options. A mobility clause is unchanged upon transfer.

On these facts, changing the place of work, to a transferred employee's detriment, led to a dismissal. The EAT remitted the questions of fairness of the dismissal and redundancy pay to a new tribunal.

Disability Discrimination and Local Government Pensions

[Thanks to Emma Price of 1 Temple Gardens for preparing this case summary]

The Court of Appeal has handed down its decision in Booth v Oldham MBC, an interesting case about 1) the effect of a failed DDA claim on a breach of contract action brought in relation to an employer's decision about pension entitlement and 2) the need for exhaustion of remedies provided by the 1997 Pension Regulations before resort to litigation.

Mr Booth was dismissed in August 2001 on grounds of capability, having been signed off for stress and depression. He brought an ET claim for disability discrimination. Had he been deemed permanently incapable of discharging efficiently his duties of employment because of ill-health or infirmity of mind or body then - under regulation 27 of the Pension Regulations (which govern the Local Government Pension Scheme) - he would have been entitled to additional pension benefits. However, after the ET held that Mr Booth was not a disabled person for the purposes of the DDA 1995, the Council decided not to medically examine Mr Booth to establish if he qualified for those additional pension benefits. Whilst Mr Booth appealed the ET decision (unsuccessfully) he did not avail himself of all of the dispute resolution remedies provided by the Pension Regulations.

Mr Booth brought a breach of contract action several years later, arguing that, had they referred him for medical assessment, he would have satisfied the criteria for ill-health under regulation 27 and he would have been awarded permanent ill-health retirement.

The claim was dismissed by the High Court and, subsequently, by the Court of Appeal. The Court of Appeal held:-

• given the finding of the ET in relation to disability, Mr Booth could not successfully contend that the Council remained under a duty to medically assess him. Lord Justice Thomas stated that there was no need to consider whether a person who is found not to be under a disability under the DDA will always fail to establish permanent incapacity under the Pensions Regulations since there was clear evidence in this case that Mr Booth did not satisfy the latter test.
  
  
• as the Pension Regulations provided dispute resolution machinery by which to challenge the Council's decision, which Mr Booth had not availed himself of, he had no right to bring his claim at all.

Discrimination: Motive of Employer

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary.]

[Listen to Daniel Barnett discussing this case on LBC 97.3]

The EAT (Underhill P) has handed down its decision in Amnesty International v Ahmed, where it upheld the original tribunal's decision that Amnesty was in breach of the RRA 1976 by refusing to appoint a Sudanese woman to the post of Sudanese researcher, on grounds that the organisation would appear to lack impartiality.

In reaching this conclusion the EAT discussed the relationship between James v Eastleigh Borough Council [1990] 2 AC 751 and Nagarajan v London Regional Transport [2000] 1 AC 501, emphasising that the ultimate question in both cases (whether the discrimination is intentional, as in Nagarajan, or simply the unintended result of a benign policy as in Eastleigh) was the ground of the treatment complained of (i.e. the reason why it occurred).

The 'two-stage approach' advocated by Amnesty, applying a 'but for' test as to causation followed by an analysis of the motivation of the discriminator, was rejected. Accordingly, as Amnesty's decision not to appoint the Claimant as a researcher was solely based on her ethnic origins, there had been direct discrimination. Motive was irrelevant.

Industrial Action: Strikes and Ballots

[Thanks to Ed McFarlane of EEF for preparing this case summary.]

The Court of Appeal has handed down its decision in Metrobus v UNITE, which is authority for the propositions that:

• a union is obliged to inform an affected employer of the result of a ballot on industrial action as soon as is reasonably practicable, regardless of whether the ballot supports action or the union decides not to take action.
  
• where affected members are partly covered by 'check off' arrangements, a union is obliged to provide with ballot and strike notices sufficient information to enable an employer to readily deduce the numbers, types and workplaces of 'non-check off' employees by providing lists and figures of affected employees, and an explanation of how they were arrived at, along with details of the 'check-off' employees

The Court rejected arguments that the ballot and notice provisions of TULR(C)A 1992 were so onerous as to be incompatible with ECHR Article 11.

Bias: Peninsula and trenchant comments

[Thanks to Ed McFarlane of EEF for preparing this case summary.]

The EAT (Slade J) has handed down its decision in Peninsula v Rees & ors, which is authority for the proposition that the test for the appearance of a risk of bias can be met where a part-time Employment Judge is closely associated with an advertisement expressing trenchant derogatory views about a group of people, in this case unqualified employment consultants, where one of the parties in the case being heard by the part-time Judge (Peninsula) is a member of that group.

The extent of any actual competition between the Employment Judge's practice and the party (para. 50).

In the joined case of Peninsula v Malik, the EAT held, as between the same party and Employment Judge, that apparent bias might not be established with the passage of time and/or a change in the Judge's status to full-time (para. 56).

If a lay member is recused during a hearing and a party consents to proceeding with a 2 member panel, consent is not vitiated even if the full facts about the remaining panel are not known when consent is given, if there is not, on the facts, the risk of an appearance of bias (para. 58).

Disability Discrimination: Excluded Conditions

[Thanks to Will Dobson of Cloisters for preparing this case summary]

The case of X Endowed Primary School v Mr & Mrs T (transcript not yet up on BAILII, but will in due course will be here) is authority for the proposition that where a disabled person has a protected impairment under the DDA which manifests itself in a form falling within one of the conditions excluded by Regulation 4 of the Disability Discrimination (Meaning of Disability) Regulations 1996, the focus should be on whether any alleged discrimination relates to the excluded condition or to the protected disability or to both.

JT was excluded from the Appellant School for scratching a teacher. He suffers from ADHD (a protected disability) which causes sufferers to act aggressively in certain provocative situations. The School appealed the Special Educational Needs and Disability Tribunal's finding that it had failed to make reasonable adjustments, arguing that the only aspect of JT's ADHD in respect of which there was need to make an adjustment was his tendency to physical abuse of other persons (an excluded condition under the Regulations).

The Equality and Human Rights Commission, supporting JT's parents, argued that the Regulations only applied to free standing conditions and not to consequential symptoms of an impairment. Mr Justice Lloyd Jones rejected this and in so doing preferred Edmund Nuttall Limited v Butterfield (2005) over Murray v Newham CAB (2003), both EAT decisions. The fact that the tendency to physical abuse was a manifestation of a protected disability did not remove it from the Regulations' scope. On the facts, there was a failure to make reasonable adjustments in respect of JT's protected disability.

Claimants may wish to argue that where there is an underlying protected disability and an excluded condition, the issue is one of reasonable adjustments for the protected disability even where any failure to make adjustments causes the excluded behaviour.

Right to Legal Representation at Disciplinary Hearings

The Court of Appeal has handed down its decision in Kulkarni v Milton Keynes Hospital NHS Trust, which:-

a. is authority for the proposition that NHS doctors are entitled to legal representation if is authority for the proposition that NHS doctors are entitled to legal representation if facing charges of misconduct or capability, under the terms of their contract; and,

b. contains clear obiter suggesting that where disciplinary charges are of such gravity that someone might be unable to work in the future if the charges are proved, that person has a free-standing right to legal representation at internal disciplinary hearings under Art 6 of the European Convention on Human Rights.

This latter point has significant implications for all public sector workers, and is consistent with this decision of the High Court earlier in the year.

The solicitors for the Appellant, Radcliffes Le Brasseur, have put together an excellent case summary if you want to learn more about this case

Employment Status - consultation

[Thanks to Professor Anne Redstone, visiting professor at King's College, London, for writing this bulletin]

HM Revenue and Customs have published a consultation document yesterday called 'False Self-employment in Construction”. It proposes deeming workers within the construction industry to be in receipt of employment income for tax and NICs purposes unless at least one of the following criteria are met:

• provision of plant and equipment – that a person provides the plant and equipment required for the job they have been engaged to carry out. This will exclude the tools of the trade which it is normal and traditional in the industry for individuals to provide for themselves to do their job;
  
• provision of all materials – that a person provides all materials required to complete a job; or
  
• provision of other workers – that a person provides other workers to carry out operations under the contract and is responsible for paying them.

Although the proposed new rules will not change the individual's employment status for employment law purposes, the impact of paying PAYE and NICs at an employed level may increase the liklihood of workers taking cases to the tribunal, as they have less incentive to accept self-employed status.

Industrial Action and Dismissals

Thanks to Ed McFarlane of EEF (pictured) for preparing this case summary. Thanks also to John Bowers QC of Littleton Chambers, leading counsel for Gate Gourmet, for telling me the decision had been handed down.

The EAT (Underhill P) has handed down its decision in Sandhu & ors v Gate Gourmet, which is authority for the proposition that:

• dismissal of an employee at work for having taken part in unprotected industrial action, whilst not being automatically fair, is potentially fair for conduct. Simmons v Hoover [1977] ICR 61 is still good law notwithstanding developments in Human Rights and UK/EU law enshrining the right to strike (para. 35). The then-current modified statutory dismissal procedure could be used in cases of unofficial industrial action.
  
• where a trade union official, called in to mediate, takes part in industrial action, that of itself does not mean that the action is approved by the union. The status of the employee at the time of dismissal is the key question, and one of fact.

The EAT also made observations on the operation of issue estoppel where a preliminary finding may impact upon issues determined later in proceedings, and the doctrine is engaged only if findings are necessarily inconsistent (paras. 19-22).