Gender Victimisation: Burden of Proof

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT (Underhill P) has handed down its decision in Pothecary Witham Weld v Bullimore, which is authority for the proposition that the reverse burden of proof provisions in section 63A of the Sex Discrimination Act 1975 do apply to victimisation, unlike cognate provisions in section 54A of the Race Relations Act 1976, which have a different wording.

Section 63A of the 1975 Act was held not to be ultra vires because, although the Equal Treatment Directive does not require Member States to protect against victimisation, it is an important part of UK discrimination law and so the Secretary of State was entitled to maintain consistency by applying the Burden of Proof Directive to victimisation as well.

It was also observed that the cases of Chief Constable of West Yorkshire v Khan [2001] IRLR 830 and Derbyshire v St. Helens Metropolitan Borough Council [2007] IRLR 540 are cases of a very particular type, where the employer has taken action in order to protect his position in current litigation. In most cases, the complexities addressed in these cases simply do not arise and it will suffice for tribunals to follow the guidance in Nagarajan v London Regional Transport [1999] IRLR 572.

Injury to Feelings

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The EAT (Underhill P) has handed down its decision in Taylor v XLN Telecom, which is authority for the proposition that, in a discrimination claim, a claimant is entitled to recover for any injury to feelings and/or personal injury attributable to the discriminatory act (such as a racially-motivated dismissal) without having to prove that the injury resulted from actual knowledge of the discrimination. The decision is likely to have a significant impact on the assessment of injury to feelings and health in indirect discrimination cases.

In this case, the Tribunal had found that the dismissal of the Claimant, who is black, had been unfair and constituted unlawful (racially-motivated) victimisation. However, they had declined to make an award of injury to feelings or psychiatric injury because his distress arose from the manner of his dismissal rather than any knowledge of the discrimination that he had suffered. The Tribunal therefore found that they were bound by the observation of Lawton LJ in Skyrail Oceanic Ltd v Coleman [1981] ICR 864 that "any injury to feelings must result from the knowledge that it was an act of discrimination which brought about a dismissal..."

On appeal, the EAT held that the observations of Lawton LJ had been misunderstood: there was no requirement to prove knowledge of the act of discrimination whether the claim was for injury to feelings or to health. The Claimant could therefore recover damages for any proven psychiatric injury (or injury to feelings) irrespective of what he knew or did not know about the motivation of his employer's decision to dismiss. The claim has now been remitted to the Tribunal to determine the appropriate level of any such award.

Discrimination Time Limits

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The Court of Appeal has handed down its decision in Aziz v FDA, which is authority for the proposition that, in considering whether separate incidents form part of "an act extending over a period" within section 68(7)(b) of the Race Relations Act 1976, one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents.

In this case, the Claimant had made allegations about three union officials failing to provide support over three different periods. While there was a prima facie case for saying that there was a continuing act of discrimination throughout each period, the Tribunal was entitled to find that they could not be joined to form a single continuing act, even though the Claimant alleged that the three individuals had been instructed by the Respondent to act in the way that they did.

Although the Claimant was unsuccessful, the Court thought that there was force in her submission that Kingston Upon Hull City Council v Matuszowicz [2009] IRLR 288, which says that a failure to make reasonable adjustments is an omission rather than an act, was of only limited assistance to this case, which concerned race rather than disability discrimination.

Paternity Leave

[Thanks to www.emplaw.co.uk for allowing me to summarise their article. For the full text of the original article, please click here ]

The House of Lords has approved various draft regulations pertaining to the new right to paternity leave. The most important is the Additional Paternity Leave Regulations 2010, which specify that additional paternity leave will be for a maximum of 26 weeks and minimum of 2 weeks, that it must not start until at least 20 weeks after the birth or placement for adoption and must end not later than 12 months after the birth or placement for adoption, and that it may only be taken in multiples of complete weeks.

The regulations are due to come into force on 6th April 2010 but will have effect only in relation to children whose expected week of birth (or matching for adoption) begins on or after 3rd April 2011.

Under the regulations fathers will be entitled to up to six months additional paternity leave provided the mother has returned to work, thus giving parents the option of dividing a period of paid leave entitlement between them. To the extent that additional paternity leave is taken during the mother's 39 week maternity pay period it will be paid leave, paid at the same rate and in the same way as Statutory Maternity Pay (which increases in April 2010 to £124.88 per week from the currrent £123.06). Parents will be required to 'self certify' by providing details of their eligibility to their employer. Employers and HMRC will both be able to carry out further checks of entitlement if necessary.

Turbulent Priests

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

The Court of Appeal has handed down its decision in Maga v Roman Catholic Church , which is authority for the proposition that an employer may be liable for acts of an employee where there is a sufficiently close connection between the tortfeasor's usual functions and tortious deeds, in this case, child abuse, even when the victim came into an abusive priest's orbit from a non-work background, expanding on Lister v Hesley Hall Ltd. (HL).

Lord Neuberger MR noted the special role of a priest, who is "never off duty" and that this priest's role, obliging him to befriend non-Catholics, and working with youths, had afforded him the opportunity to groom his victim, by involving the Claimant in activities such as Church discos, and washing the priest's car, had thereby drawn him into an abusive relationship.

On the sordid facts, there was a sufficiently close connection between employment and the abuse to make it fair and just to hold the employer liable, even if there was no fault on the employer's part.

Stress at Work

[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The Court of Appeal has handed down judgment in Connor v Surrey County Council, an unusual 'stress at work' claim where the Court considered the edge between the Council's private law duties and its public law functions.

The Court of Appeal upheld the finding that the Council had been negligent towards a former headteacher in failing to establish an interim executive board of school governors (pursuant to the School Standards and Frameworks Act 1998 ss 14 and 16A). The Council had contended that this failure lay wholly in the field of their public law functions, and as such was not justiciable as particulars of negligence in a private law action for damages.

The Court held that the law will, in an appropriate case, require the duty-ower to fulfil his pre-existing private law duty by the exercise of a public law discretion, but only if that may be done consistently with the duty-ower's full performance of his public law obligations. The Council's appeal failed, but the Court sounded a note of caution; the facts of this particular case had made it more than the tip of the iceberg, and nothing in this case remotely resembles a precedent for others in the future to build private law claims out of what may be sensitive and difficult decisions of public authorities.

Summary Dismissal: Failure to Obey Instructions

[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Dunn v AAH Ltd, which is authority for the proposition that where an employee has so undermined the trust and confidence at the heart of a contract of employment, an employer should no longer be required to retain the employee in his employment, but should be entitled to accept that the contract for employment has been repudiated in its essence; the employer in such circumstances is permitted to terminate the contract.

In this case an employee had failed to follow instructions to report on problems of risk within the operations of his company to group headquarters in Germany; this neglect meant that he had denied the group headquarters the opportunity to assess the risk for themselves. The Court held that the employee had been properly dismissed for gross misconduct.

Grievances and Equal Pay

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The EAT (Underhill P) has handed down its decision in Brett v Hampshire County Council, which is authority for the proposition that in equal pay, each claim by reference to a different comparator is a different claim. Where the Claimant in her grievance under the modified procedure had identified four jobs but had in her eventual claim identified two of those jobs but also two which were different, she was entitled to pursue her claim in so far as it relied on comparison with the jobs identified in her grievance.

Male Claimants advancing "piggyback" claims did not have to make that fact explicit in order to satisfy the requirement of regulation 9(1)(a) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The grievance was sufficiently "set out" if it was "necessarily implicit". A grievance, once withdrawn could only be reinstated in writing.

This case dealt with a number of points arising out of the application of section 32 Employment Act 2002 in the context of equal pay claims.

Ministers of Religion / Meek

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

The EAT has handed down Judgment in the case of MacDonald v Free Presbyterian Church of Scotland which is authority for the proposition that in determining employment status for Ministers of Religion, an Employment Tribunal was entitled to have regard to the historic background and ethos of the Respondent, in particular its tradition of "independence from the state and the Civil Magistrate" and that employment status of Ministers would be inconsistent with the Church's beliefs.

The EAT held that to determine whether Employment Tribunal reasons are properly framed for the Meek test and Rule 30 (6):

It is enough if an ordinary picture is painted; a "painting by numbers" picture will do even if incomplete so long as it has the main colours and the onlooker can tell what it is a picture of. It does not need to have the detail, subtlety and qualities of, say, Michaelangelo's "Last Judgment".

Time Limits for Appealing

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

The EAT (HHJ Serota) has handed down its decision in Tasneem v Dudley Hospitals, which is authority for the proposition that the presumption that an Employment Tribunal Decision is sent to the parties on the date recorded on it is rebuttable, if an Appellant shows that a decision was posted later, the time limit for appealing runs from the later date.

On the facts, the EAT accepted, on unchallenged evidence, that the Judgment was probably posted two days after the date recorded.
Accordingly, the 42 day time limit had not expired when the notice of appeal was lodged. The envelope containing the Judgment was not available, and there was no contrary evidence from the Respondent or Tribunal.

The EAT acknowledged the risk of unscrupulous Appellants seeking to evade strict appeal time limits by alleging late posting of Decisions, and called for the Employment Tribunals to maintain postal logs to show when Decisions actually leave the Tribunals.

Parties wary of appeals from 'last-minute Lucy' litigants might consider keeping the envelopes when Decisions arrive for proof of the date of sending.

Collective Consultation

[Thanks to Michael Duggan of Littleton Chambers for providing this case summary]

The EAT (HHJ Richardson) has handed down its decision in Shanahan Engineering v UNITE, which is authority for the proposition that even where there are special circumstances which mean that it is not reasonably practicable for the normal 30 day collective consultation period under s188(1A) of TULR(C)A 1992 to be complied with, this will not relieve the employer of its actual consultation obligations under sub-sections 188(2)(4) which can still be carried out in a shorter period of time.

Shanahan was instructed to alter its work practices by the end of the day on 1st May 2008 pursuant to a clause which was common in the engineering industry whereby the main contractor could order the sub-contractor to stop work. This meant an immediate reduction in the workforce and the triggering of the collective consultation provisions. Shanahan applied agreed redundancy criteria but it was found by the ET that there was no consultation which could have taken place over 2-3 days so that 90 day protective awards were ordered.

The EAT upheld the Tribunal judgment that special circumstances existed in relation to the 30 day time period but that it had been reasonably practicable for Shanahan to carry out consultation in accordance with the requirements of section 188(2) and 188(4) of TULR(C)A 1992. However, the Tribunal had erred in simply awarding a 90 day protective award as there were mitigating factors and the case was remitted to the Tribunal on this issue.

The case is of some important for the construction industry as the above is a common situation.

Constructive Dismissal

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

The Court of Appeal has handed down its decision in Buckland v Bournemouth University, which is authority for the proposition that:

i) the correct test when an employer is said to have committed a fundamental breach on contract of employment is a unitary one and not a "range of reasonable responses" test;

ii) an employer who has committed a fundamental breach cannot "cure" it whilst the employee is considering whether to treat it as a dismissal.

The Claimant, a Professor in archaeology at the Defendant University, resigned claiming constructive unfair dismissal after exam papers he had marked were subject to re-marking by the chairman of the board of examiners. After the re-mark and before the resignation, an Inquiry set up by the Defendant University vindicated the Claimant and criticised the marking procedures in place.

The ET held that the re-mark amounted to a fundamental breach on contract and that the Inquiry did not "cure" the breach.

The EAT rejected the University's contention that the correct test for repudiatory breach of contract by an employer was a reasonable range of responses test, commending a return to settled authority and an objective test and upholding this part of the ET's decision. However, the EAT found that the breach had been "cured" by the Inquiry.

The Court of Appeal upheld the EAT's findings as to the correct test to be applied for repudiatory breach, endorsing its conclusions and reasoning but allowed the appeal against the EAT's decision that the breach had been cured. Once a breach has been done, it cannot be undone.

Introduction into employment law of the principle that where there has been a fundamental breach, that is curable and cured, an innocent party loses the option of acceptance of repudiation could only be done on grounds capable of extension to other contracts. There was no justification for this.

Also of note in this case, Lord Justice Jacob concluded with a criticism of "Ping pong", the practice of sending cases back to the tribunal or court below as anything other than a last resort, noting that it generally serves litigants badly, prolongs things and increases costs.

Aiding and abetting discrimination

[Thanks to James Bickford Smith of Littleton Chambers for providing this case summary]

In May & Baker Ltd t/a Sanofi Aventis Pharma v Okerago the EAT (HHJ Birtles) has considered the meaning and application of sections 32 and 33 of the Race Relations Act 1976 for the in overturning a finding that a Respondent employer was liable for the discriminatory acts of an agency worker. During the 2006 World Cup the agency worker had told the Claimant to "go back to her own country". The Tribunal found that the Respondent's failure to investigate this incident adequately, and its reaction to the Claimant's subsequent grievance, meant that it had "aided" the agency worker within the meaning of s. 33. The Respondent had "been complicit in allowing an environment to continue where such conduct could take place". The EAT made the following findings as to section 33:

• All the conduct of the Respondent complained of post-dated the World Cup incident. As a person cannot aid another to do something which the second person has already done, liability under s. 33 could not be based on that conduct.
• "In any event, allowing an environment where particular conduct could take place does not amount to aiding that conduct. Merely allowing an environment to exist does not amount to the relationship of "co-operation or collaboration" referred to in Anyanwu" (Anyanwu and Another v Southbank Students' Union and Southbank University [2001] IRLR 305). Nor could it amount to "knowingly" aiding that conduct.
• The tribunal failed to ask itself the question that assuming the employer aided the contract worker to do an act, would that act be unlawful if done by the worker? The agency worker's act was not unlawful in itself, and the employee had no claim against the agency worker; therefore even if the employer aided the worker's act, it would not have aided an act made unlawful by the RRA.

As to s.32, the Tribunal had failed to address the questions of employment status properly. There were no factual findings to support a conclusion that an employment or agency relationship existed between the worker and the employer. The Tribunal set aside the relevant part of the Tribunal's judgment and substituted a decision that the allegation of direct discrimination be dismissed.

Variation Clauses

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

The EAT (Silber J) has handed down its decision in Bateman v Asda Stores, which is authority for the proposition that a broad contractual right to alter terms and conditions of employment in line with business needs can, even if contained in a Company Handbook, permit an employer to make unilateral changes to contractual terms, including rates of pay and hours of work, without the need for the express consent of employees, provided that the changes are properly implemented and the employer acts in line with the implied duty to maintain trust and confidence.

The power to amend can extend beyond the right to alter non-contractual policies to cover making changes to terms of the contract without further consent.

On the facts, Asda acted properly in harmonising terms and conditions of employment for a small proportion of staff who refused to agree to a new pay structure.

Constructive Dismissal

[Thanks to Kathleen Donnelly of Henderson Chambers for providing this case summary]

The EAT (Lady Smith) has handed down its decision in Aberdeen City Council v McNeill, which is authority for the proposition that if an employee is in breach of the implied duty of trust and confidence at the time of resignation, he/she is not entitled to terminate the contract on the basis that the employer has breached that term.

On the facts of the case, the EAT held that the Tribunal had failed to consider all of the Claimant's acts of misconduct together, which included sexual harassment, intoxication at work and lying to his employer, and in minimising the seriousness of the Claimant's misconduct the Tribunal had reached a perverse conclusion.

The EAT was particularly critical of the Tribunal's approach to excusing the Claimant's behaviour, including speculation by the Tribunal that a person who seems drunk to one person may be "displaying mere exuberance", and the suggestion that sexual banter is an inherent feature of all friendships. The EAT revoked the judgment of the Tribunal and dismissed the Claimant's claim for constructive dismissal on the basis that the Claimant was himself in material breach of the implied duty of trust and confidence.

Dress Codes and Religious Discrimination

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

The Court of Appeal has ruled in Eweida v British Airways that by adopting a staff dress code which forbade the wearing of a visible neck adornment and so prevented the Appellant, Mrs Eweida, from wearing a small, visible cross with her uniform, British Airways did NOT indirectly discriminate against Mrs Eweida on the grounds of her religion.

The Court of Appeal rejected the submission that one individual person could be the subject of indirect discrimination, and noted that if a solitary employee could be indirectly discriminated against, this could, on a wide view, place an impossible burden on employers to anticipate and provide for what may be parochial or even facetious beliefs in society at large. The Court upheld that, for a finding of indirect discrimination, some identifiable section of a workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which the Claimant shares.

The Court also found that, on the footing on which the claim had been advanced, namely disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, the employment tribunal's findings of fact had shown that BA's staff dress code and the ban on a visible neck adornment, was a proportionate means of achieving a legitimate aim.

Equal Pay

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

The Court of Appeal has handed down its decision in Gibson v Sheffield City Council, which is the latest case relating to whether or not UK law is consistent with EU law in matters of equal pay.

The Claimants, female care workers, successfully appealed against the Tribunal's decision that the council did not have to show objective justification for a bonus paid predominantly to male manual workers over a 40-year period on the basis that it was due to an historical productivity incentive which could not be applied to care work in the same way. This despite the finding that the bonus scheme predominantly benefited male workers and that care work was stereotypically 'women's work'.

On appeal the council relied upon the Court of Appeal case of Armstrong v Newcastle upon Tyne NHS Hospital Trust [2006] IRLR 124, as authority for the proposition that, once it had been shown that the reason for the bonus was not 'tainted with sex', it was not necessary to show objective justification. The Claimants contended that Armstrong had been wrongly decided and relied upon the ECJ case of Enderby v Fenchay Health Authority [1993] IRLR 591 to argue that, given the evidence of significant disparate impact (and therefore indirect discrimination), the burden should have passed to the employer to show objective justification for the bonus.

The Court of Appeal rejected the claimants' submission that the relevant passages in Armstrong were obiter or per icuriam. However, the Court found unanimously that, on the facts, the burden had shifted to the council to show objective justification in the light of the statistical evidence showing the disparately adverse effect of the scheme on women's work. The matter was therefore remitted to the Tribunal to consider whether the bonus scheme can be objectively justified.

Equal Pay - Potter v North Cumbria NHS Trust

I have received the following announcement from Naomi Ellenbogen and Andrew Clarke QC of Littleton Chambers, which will be of interest to those involved with equal pay litigation and which I reproduce below.

The Judgment of the EAT (Nelson J) in Potter v North Cumbria Acute Hospitals NHS Trust [2009] IRLR 176 has been the subject of an Order by Consent of the Court of Appeal (attached), allowing the appeal by the Appellant Trust which we represented. (Please note that, following the withdrawal of claims by Ms Potter, and a change to the Trust’s name, this appeal is now known as North Cumbria University Hospitals NHS Trust v Fox & Others.) Without any announcement, practitioners in this area might otherwise assume that the EAT’s Judgment is the final word on the relevant issue.

You may recall that Potter/Fox is the leading multiple in the mass NHS equal pay litigation, being litigated in the North East. For the purposes of the particular PHR giving rise to this appeal, the parties had agreed with the Tribunal a list of interrelated preliminary issues, to be determined sequentially, testing the validity of various comparisons as a matter of domestic and European law. These issues had arisen as a result of the identity of the Claimants’ and comparators’ respective employers from time to time and the respective sources of their terms and conditions.

It was common ground between the parties that, for claims which did not fall within the ambit of section 1(6) of the EPA 1970, the Claimants were required to demonstrate that the differences in pay were “attributable to a single source” i.e. a “body which is responsible for the inequality and which could restore equal treatment” (see the ECJ in Allonby v. Accrington & Rossendale College C-256/01 [2004] IRLR 224 at para. 46). In that context, one of the issues to be determined (“B4”) was framed in the following terms:

“If the claimant is employed on Whitley Council terms and conditions and the comparator is employed on local terms and conditions, or vice versa, [whether or not employed by the same employer] do Whitley Council terms and/or the Secretary of State for Health constitute a “single source”?”

Issue B4 therefore raised the closely related questions as to whether either Whitley Councils or the Secretary of State could provide the required “single source” of the terms and conditions of employment of both the Claimant and a particular comparator where:

1. One of the two employees was on Whitley Council terms and the other on local terms; and

2. Either (1) both were employed by the same employer, or (2) each was employed by a different employer.

Issue B4 was entirely overlooked by the ET in its Judgment. Whilst accepting that fact, the EAT held that such omission was immaterial because, at the date of claim, all Claimants were on Whitley Council terms and the relevant comparators either were or had been on such terms at a point in the past. It held that, in accordance with MacCarthys v Smith [1980] IRLR 210, ECJ, historical comparisons were permissible as there is no requirement for contemporaneous employment. In all cases of common employment, the Trust was, as found in the context of an earlier issue, the single source. The EAT’s finding (if any) as to the position where there was no common employment was unclear and/or inconsistent with its earlier findings.

The Trust’s appeal was limited to Issue B4. Before the Court of Appeal (but not below), the Secretary of State for Health was joined as an intervener. Allowing the appeal, the Court of Appeal has made an Order by Consent substituting the EAT’s finding as to issue B4 with an Order that the Trust was not the single source for any of those comparisons in which the Claimant and her comparator(s) were never in common employment.

The explanation which all parties to the appeal put before the Court of Appeal in explaining the form of Order sought, was as follows. On the EAT’s view, Whitley Council was merely the mechanism for determining pay adopted by each Trust rather than the source of the relevant employee’s terms and conditions: the employing Trust was the single source of terms and conditions for the purposes of the comparisons in which such a source was required. The fact that historical comparisons are permissible is irrelevant in this context. A Claimant in the employ of the Appellant Trust can rely, as a comparator, upon employees of that Trust whose employment ceased before hers began. She cannot rely upon employees of a different employer as comparators unless their terms and conditions of employment came from the same source. The fact that their respective terms are derived, in each case, from Whitley Council terms, does not establish that single source, given the EAT’s other findings.

Potter has been the subject of three EAT decisions and will visit the Court of Appeal again in April 2010, on appeal from the EAT (Slade J. [2009] IRLR 900). We therefore thought it might be helpful to identify the particular issues the subject of the attached Order.

DDA and ET1s

[Thanks to Kathleen Donnelly of Henderson Chambers for providing this case summary]

The EAT (Slade J) has handed down its decision in Baker v Metropolitan Police, concerning issues of procedure and approach in a discrimination / victimisation claim. The EAT held as follows:-

• The Tribunal did not err in its finding that the ET1 did not include a claim for disability discrimination. Although a technical approach to the question of whether a particular claim is raised in an ET1 is inappropriate, in this case whilst the Claimant had ticked the box marked "Disability" he did not thereafter make a recognisable complaint of disability discrimination.
• The Tribunal did err in refusing to hear the Claimant's application to amend the ET1, which was made in the course of closing submissions. The lateness of the application was just one factor to be considered and the Tribunal should have considered the balance of injustice to the parties.
• In respect of the approach to the victimisation claim, the Tribunal did not err in introducing characteristics relevant to the reason why the Respondent acted as it did at the comparative stage of the test. In any event the decision to dismiss the victimisation claim was plainly and unarguably right.

Agency Workers

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

The Court of Appeal has handed down its decision in Muschett v HM Prison Service, where the Court considered whether the relationship of the Appellant, an agency worker, with HM Prison Service had developed into that of an 'employee', within the meaning of both section 230(1) of the ERA 1996 and the wider test in discrimination law, in particular that of section 78 of RRA 1976.

Where contractual terms are clear, as they were in this case, by an analysis of the elements of control, personal performance and mutuality of obligation in the work carried out by the Appellant (applying the Court of Appeal's decision in James v LB Greenwich [2007] IRLR 168), there is no need to imply a contract of employment. The application of the ERA test confirmed the Appellant was not an employee.

Further, because the Appellant had no contractual obligation to HM Prison Service to do any work for them, and because there was no contract between him and HM Prison Service, he had no contract for service in the context of section 78 of the RRA 1976: he was not an 'employee' applying the discrimination law test.