Can an employer withdraw a conditional benefit under a compromise agreement when the employee is in breach of his undertakings?
Yes, says the Queen's Bench Division, on the facts in Imam-Sadeque v Bluebay Asset Management.
Mr Imam-Sadeque (I-S) was a highly paid and senior investment manager. He wanted to leave his employer. If he resigned, he would be a "Bad Leaver" for the purposes of a share option scheme. However, he entered into a compromise agreement which would deem him to be a "Good Leaver", and allow him to exercise share options worth £1.7million. But this benefit was conditional on compliance by the employee with promises not to compete or solicit BlueBay's employees.
The employee broke these terms by secretly setting up in competition and poaching an employee. The employer withdrew the benefit on account of these actions.
The High Court held that BlueBay was entitled to do this on account of I-S's repudiatory breach of the agreement, and the shares were forfeited.
Nor was the condition a penalty. All the agreement did was to confer rights on I-S which he would not otherwise have had. The agreement conferred a conditional benefit which simply never accrued because the employee failed to fulfil the condition, namely performance of the agreement on his part. Furthermore this was an agreement struck between sophisticated parties of comparable bargaining power.
In the words of Popplewell J, It would be an "injustice" to BlueBay if the employee could escape his bargain.
Monday, 17 December 2012
Wednesday, 12 December 2012
Volunteers and Discrimination Protection
Do volunteers fall within "occupation" in the Framework Directive so they are entitled to discrimination protection?
No, says the Supreme Court in X v Mid-Sussex Citizens Advice Bureau, upholding the Court of Appeal's decision last year.
The Appellant was an HIV positive CAB volunteer. She alleged that she was 'dismissed' because of her disability.
Lord Mance gave nine reasons for rejecting her appeal:
1. There is no general EU law principle of equality. Protection is only afforded in specific contexts.
2. "Access to occupation" in Article 3(1)(a) concerns "access to a sector of the market rather than particular employment or self-employment".
3. If protection was intended, "occupation" would appear in Article 3(1)(c), dealing with "employment and working conditions".
4. "Occupation" derived from ILO Convention No.111, and the ILO definition i.e. "the trade, profession or type of work performed by the individual, irrespective of the branch of economic activity to which he is attached".
5. The original proposal and impact assessment did not address voluntary activity.
6. The Council of Ministers expressly rejected a proposal to include "unpaid and voluntary work".
7. No enforcement action had been taken for non-inclusion of protection for volunteers.
8. The Appellant and EHRC accepted not all volunteers were protected. But the Directive gave no indication of where to 'draw the line' (offending against legal certainty).
9. Volunteers and workers were not comparable. Hence the assertion that comparable situations ought to be treated comparably did not assist.
The request for a CJEU reference was rejected, as the answer was clear.
No, says the Supreme Court in X v Mid-Sussex Citizens Advice Bureau, upholding the Court of Appeal's decision last year.
The Appellant was an HIV positive CAB volunteer. She alleged that she was 'dismissed' because of her disability.
Lord Mance gave nine reasons for rejecting her appeal:
1. There is no general EU law principle of equality. Protection is only afforded in specific contexts.
2. "Access to occupation" in Article 3(1)(a) concerns "access to a sector of the market rather than particular employment or self-employment".
3. If protection was intended, "occupation" would appear in Article 3(1)(c), dealing with "employment and working conditions".
4. "Occupation" derived from ILO Convention No.111, and the ILO definition i.e. "the trade, profession or type of work performed by the individual, irrespective of the branch of economic activity to which he is attached".
5. The original proposal and impact assessment did not address voluntary activity.
6. The Council of Ministers expressly rejected a proposal to include "unpaid and voluntary work".
7. No enforcement action had been taken for non-inclusion of protection for volunteers.
8. The Appellant and EHRC accepted not all volunteers were protected. But the Directive gave no indication of where to 'draw the line' (offending against legal certainty).
9. Volunteers and workers were not comparable. Hence the assertion that comparable situations ought to be treated comparably did not assist.
The request for a CJEU reference was rejected, as the answer was clear.
Monday, 10 December 2012
Procedural Fairness and Disparity of Treatment
Is it perverse for an employment tribunal not to regard a dismissal as a reasonable response, if misconduct is committed by an employee in a safety critical role?
Yes, says the EAT in SPS Technologies Ltd v Chughtai, overturning a majority tribunal decision.
The Claimant was dismissed after admitting falsifying test data for the Respondent aerospace manufacturer. The employment tribunal found by a majority, the employment judge dissenting, that the dismissal was unfair. The majority held that dismissal was outside the band of reasonable responses, and found disparity of treatment by the employer of the Claimant and his supervisor, after the Claimant asserted that data falsification was 'common practice'. This was not backed up by the employer's thorough investigation.
The EAT held that the majority had fallen into error, having regarded the Claimant's evidence on falsification at tribunal as credible, they had substituted their view for that of the employer as to whether falsification was common practice. A disparity argument fell down as the employer would have dismissed anyone falsifying test data, but it reasonably found that there was no 'common practice' of falsification, so no action was taken against others. and the employer's clear evidence was that anyone falsifying data would be dismissed. The majority's view that the Claimant's dismissal was unfair as it was outside the band of reasonable responses was held to be perverse, with the appeal curing a procedural defect at the dismissal stage.
The EAT also overturned a finding of 30% contribution for conduct and no Polkey reduction, finding - like the employment judge - 100% on both contribution and Polkey.
Yes, says the EAT in SPS Technologies Ltd v Chughtai, overturning a majority tribunal decision.
The Claimant was dismissed after admitting falsifying test data for the Respondent aerospace manufacturer. The employment tribunal found by a majority, the employment judge dissenting, that the dismissal was unfair. The majority held that dismissal was outside the band of reasonable responses, and found disparity of treatment by the employer of the Claimant and his supervisor, after the Claimant asserted that data falsification was 'common practice'. This was not backed up by the employer's thorough investigation.
The EAT held that the majority had fallen into error, having regarded the Claimant's evidence on falsification at tribunal as credible, they had substituted their view for that of the employer as to whether falsification was common practice. A disparity argument fell down as the employer would have dismissed anyone falsifying test data, but it reasonably found that there was no 'common practice' of falsification, so no action was taken against others. and the employer's clear evidence was that anyone falsifying data would be dismissed. The majority's view that the Claimant's dismissal was unfair as it was outside the band of reasonable responses was held to be perverse, with the appeal curing a procedural defect at the dismissal stage.
The EAT also overturned a finding of 30% contribution for conduct and no Polkey reduction, finding - like the employment judge - 100% on both contribution and Polkey.
Equal Pay
[Thanks to Sophia Berry, pupil barrister at Littleton Chambers, for preparing this case summary]
Do pay protection policies breach the Equal Pay Act 1970?
Not necessarily, said the Court of Appeal in Haq v The Audit Commission.
The Court held that the employment tribunal had not erred in law in finding that the Claimants had established a prima facie case of indirect sex discrimination. The employment tribunal was entitled to conclude that the Audit Commission's amalgamation of two administrative roles and its application of a pay protection policy to the affected employees had had a disparate adverse impact on the Claimants.
The employment tribunal's analysis of the objective justification question was, however, wrong in law. The Court of Appeal rejected the tribunal's suggestion that 'red circling' the pay of those employees with higher pay points or assimilating the roles and making the employees with higher points redundant would have constituted a less discriminatory means of achieving the Commission's legitimate aims than the pay protection policy. The EAT was entitled to substitute its own view of the matter for that of the employment tribunal and the majority (Lewison LJ and Sir Mark Waller) therefore dismissed the appeal. Mummery LJ, dissenting, concluded that the question of objective justification should be remitted to the employment tribunal as the EAT had approached it incorrectly.
Mummery LJ's judgment promotes negotiation as a means of saving time, effort and money and achieving better outcomes in equal pay claims. He notes that 30 years of equal pay litigation has not eradicated sex discrimination in pay and that courts may not be the best places in which to end the injustice of workplace discrimination.
Friday, 7 December 2012
Trade Union Rights: Blacklisting
Can an employer refuse to be dictated to about whom to employ without breaking trade union membership discrimination laws?
Yes, said the EAT, on the facts of Miller v Interserve Industrial Services Ltd.
In this case the employer provided labour for "shut-down" projects at oil depots. The business was highly unionised. A full-time trade union official from UNITE pressured the employer to recruit three named employees with a view to their acting as shop stewards. By all accounts the full time official's approach annoyed the employer who regarded the union official as having a combative manner. As a result the employer declined to recruit the individuals concerned.
The employment tribunal found that, as a fact, this was because he resented being bullied by the union and he did not wish to be dictated to about whom to employ. Because of this motivation the employer had not refused to employ the employees because of their trade union membership contrary to section 137(1) of TULR(C)A 1992.
The EAT agreed. The employees were simply caught in the "crossfire" between the employer's manager and the union official. Their non-recruitment did not relate to their trade union membership.
However, the EAT said, the outcome of this kind of case will depend entirely on the assessment of the evidence in each particular case. The EAT would expect this kind of employer's explanation to be scrutinised narrowly. But on this occasion the employer passed the test.
Yes, said the EAT, on the facts of Miller v Interserve Industrial Services Ltd.
In this case the employer provided labour for "shut-down" projects at oil depots. The business was highly unionised. A full-time trade union official from UNITE pressured the employer to recruit three named employees with a view to their acting as shop stewards. By all accounts the full time official's approach annoyed the employer who regarded the union official as having a combative manner. As a result the employer declined to recruit the individuals concerned.
The employment tribunal found that, as a fact, this was because he resented being bullied by the union and he did not wish to be dictated to about whom to employ. Because of this motivation the employer had not refused to employ the employees because of their trade union membership contrary to section 137(1) of TULR(C)A 1992.
The EAT agreed. The employees were simply caught in the "crossfire" between the employer's manager and the union official. Their non-recruitment did not relate to their trade union membership.
However, the EAT said, the outcome of this kind of case will depend entirely on the assessment of the evidence in each particular case. The EAT would expect this kind of employer's explanation to be scrutinised narrowly. But on this occasion the employer passed the test.
Thursday, 6 December 2012
Time Limits: Acts Extending over a Period
[Thanks to Sarah Russell, solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary]
No, it is a one-off event, said the Court of Appeal in Okoro & Anor v Taylor Woodrow Construction & Ors.
The Appellants were engaged through an agency to work for Taylor Woodrow. A dispute arose, and on 7th April 2008, they were told that they were banned from site. Another agency then sent them to the site on 18th April 2008. They were again told that they were banned. The Appellants presented a race discrimination claim regarding the ban on 6th August 2008.
A continuing act can occur where a policy disadvantages a person or group throughout their employment. Time then runs from the date of dismissal. In this case, the ban was held to be a one-off decision, particularly as there was no ongoing relationship between Taylor Woodrow and the Appellants. The case was therefore out of time.
The Court of Appeal noted that if there had been a reconsideration of the original decision, time would have started to run again from the date of the re-consideration.
Monday, 3 December 2012
TUPE settlements and credit against compensatory award
Should a compensatory award be reduced to take into consideration sums received through a settlement with another party?
Yes, says the EAT in Optimum Group Services v Muir.
The Claimant won his unfair dismissal claim in a TUPE scenario against the Appellant, having settled his claim against the second Respondent before the hearing. The employment tribunal declined to reduce the compensatory award to take into account the Claimant's settlement with the second Respondent.
The EAT reduced the compensatory award to take into account the settlement with the second Respondent. Reminding tribunals that the compensatory award is not intended to operate as a 'penalty', the EAT held that it would not be right for a Claimant to make a 'profit' through double recovery; tribunals had no discretion in this matter. A Claimant's loss that has been made good must be taken into account (except where the Norton Tool principle applies to notice pay). The EAT also warned tribunals about taking into account irrelevant factors, such as a 'windfall' to a party, in these circumstances.
The EAT ordered the Claimant to disclose the amount of the settlement, and practitioners may consider it prudent to itemise sums paid for heads of claim if making a settlement in similar circumstances.
Yes, says the EAT in Optimum Group Services v Muir.
The Claimant won his unfair dismissal claim in a TUPE scenario against the Appellant, having settled his claim against the second Respondent before the hearing. The employment tribunal declined to reduce the compensatory award to take into account the Claimant's settlement with the second Respondent.
The EAT reduced the compensatory award to take into account the settlement with the second Respondent. Reminding tribunals that the compensatory award is not intended to operate as a 'penalty', the EAT held that it would not be right for a Claimant to make a 'profit' through double recovery; tribunals had no discretion in this matter. A Claimant's loss that has been made good must be taken into account (except where the Norton Tool principle applies to notice pay). The EAT also warned tribunals about taking into account irrelevant factors, such as a 'windfall' to a party, in these circumstances.
The EAT ordered the Claimant to disclose the amount of the settlement, and practitioners may consider it prudent to itemise sums paid for heads of claim if making a settlement in similar circumstances.
Tuesday, 27 November 2012
Strike-outs and Core Factual Disputes
Where there is a 'crucial core of disputed fact', can a case still be struck out?
Yes - provided evidence is heard on the factual disputes - says the EAT in Eastman v Tesco Stores.
Ms Eastman was a part-time customer assistant. As a result of personal difficulties, she sought and was granted a career break of four years. It was her case that there was an express agreement that she could return to her old job on the termination of the career break. This was denied by Tesco.
In 2012 she attempted to return to her old job but her request was refused. She brought a claim for unfair dismissal and relied on the alleged express agreement to show that her employment continued through the career break. At a PHR, the employment judge heard evidence from Ms Eastman and an employee of Tesco. He concluded there had been no express agreement that Ms Eastman could return to her old job on the termination of the career break. The case was struck out on the basis it had no reasonable prospects of success.
Ms Eastman appealed and contended there had been a misapplication of the law of strike-out. Ms Eastman relied on the proposition that, where there is a crucial core of disputed facts, these are not susceptible to determination other than at a full hearing having heard the evidence. Such a case is not suitable for strike-out.
The EAT noted that an employment judge may take into account oral and documentary evidence at a PHR. Having heard evidence, an employment judge is entitled to resolve a core factual dispute. Having so resolved the factual dispute, the employment judge is entitled to conclude that a claim had no reasonable prospects of success. This case could be distinguished from those cases where no evidence was heard and there remains a crucial core of factual dispute at the PHR stage, such as in Ezias, Balls and Shoebridge.
Yes - provided evidence is heard on the factual disputes - says the EAT in Eastman v Tesco Stores.
Ms Eastman was a part-time customer assistant. As a result of personal difficulties, she sought and was granted a career break of four years. It was her case that there was an express agreement that she could return to her old job on the termination of the career break. This was denied by Tesco.
In 2012 she attempted to return to her old job but her request was refused. She brought a claim for unfair dismissal and relied on the alleged express agreement to show that her employment continued through the career break. At a PHR, the employment judge heard evidence from Ms Eastman and an employee of Tesco. He concluded there had been no express agreement that Ms Eastman could return to her old job on the termination of the career break. The case was struck out on the basis it had no reasonable prospects of success.
Ms Eastman appealed and contended there had been a misapplication of the law of strike-out. Ms Eastman relied on the proposition that, where there is a crucial core of disputed facts, these are not susceptible to determination other than at a full hearing having heard the evidence. Such a case is not suitable for strike-out.
The EAT noted that an employment judge may take into account oral and documentary evidence at a PHR. Having heard evidence, an employment judge is entitled to resolve a core factual dispute. Having so resolved the factual dispute, the employment judge is entitled to conclude that a claim had no reasonable prospects of success. This case could be distinguished from those cases where no evidence was heard and there remains a crucial core of factual dispute at the PHR stage, such as in Ezias, Balls and Shoebridge.
Dismissals involving accumulated warnings
When considering the fairness of a dismissal based on accumulated disciplinary warnings, may a tribunal look behind earlier warnings?
No, says the EAT in Wincanton Group v Stone, unless satisfied that an earlier warning was issued in bad faith or was manifestly inappropriate.
The Claimant (a lorry driver) was dismissed for misconduct after a serious driving accident, on the back of a written warning for different misconduct. The employment tribunal found the dismissal unfair, having considered that the Claimant challenged the earlier warning (here by a tribunal claim) and how it arose, although that warning was found to be valid.
The EAT overturned the finding of unfair dismissal, remitting the case for re-hearing and set out guidance for tribunals dealing with dismissals involving accumulated warnings (paragraph 37).
The overall question is the reasonableness of the employer's act of treating conduct as a reason for dismissal under Section 98(4) ERA, and tribunals should:
take into account the fact of an earlier warning;
take into account any proceedings that may affect the validity of a warning (usually an internal appeal), and consider what weight the employer gave to any challenge before dismissing;
avoid "going behind" an earlier warning by considering its validity, unless satisfied that to do so is appropriate.
But tribunals are not "going behind" a warning by taking into account the factual circumstances that gave rise to it, e.g. considering whether the types of conduct giving rise to an earlier warning and ultimate dismissal were similar or not, and tribunals may consider the particular features of a situation, as well as the consistency of the employer's approach.
No, says the EAT in Wincanton Group v Stone, unless satisfied that an earlier warning was issued in bad faith or was manifestly inappropriate.
The Claimant (a lorry driver) was dismissed for misconduct after a serious driving accident, on the back of a written warning for different misconduct. The employment tribunal found the dismissal unfair, having considered that the Claimant challenged the earlier warning (here by a tribunal claim) and how it arose, although that warning was found to be valid.
The EAT overturned the finding of unfair dismissal, remitting the case for re-hearing and set out guidance for tribunals dealing with dismissals involving accumulated warnings (paragraph 37).
The overall question is the reasonableness of the employer's act of treating conduct as a reason for dismissal under Section 98(4) ERA, and tribunals should:
But tribunals are not "going behind" a warning by taking into account the factual circumstances that gave rise to it, e.g. considering whether the types of conduct giving rise to an earlier warning and ultimate dismissal were similar or not, and tribunals may consider the particular features of a situation, as well as the consistency of the employer's approach.
Unfair Dismissal and Article 8
Does the 'band of reasonable responses' test in unfair dismissal have to be modified where an employee's rights under Article 8 of the European Convention on Human Rights are engaged as a consequence of the dismissal?
No, says the Court of Appeal in Turner v East Midlands Trains.
This case concerned the dismissal of a train conductor for alleged ticket irregularities. The employment tribunal applied the 'band of reasonable responses' test to both the fairness of the employer's investigation, and its ultimate decision to dismiss for the purposes of section 98 (4) of the ERA 1996 and found the dismissal fair.
The question was whether the tribunal was right to do so if Article 8 of the ECHR (right to respect for private and family life) were engaged. The tribunal found that Article 8 was not in fact engaged. But even if it were, and section 98 (4) had to be read compatibly with Article 8 (in accordance with Section 3 of the Human Rights Act 1998), the tribunal considered that (applying X v Y) the 'band of reasonable responses' test is in itself compatible with Article 8.
On appeal to the Court of Appeal the claimant pursued the argument that Article 8 was engaged and therefore the employer's investigation did not satisfy the alleged stricter procedural requirements which the proper protection of Article 8 rights requires. The employer argued that the claimant could not argue that her Article 8 rights had been infringed when she had brought the consequences on herself. That question could not be answered, said the Court of Appeal, until the fairness of the procedures and the proportionality of the sanction have been determined.
However, the 'band of reasonable responses' test which, according to the case law such as A v B, requires a heightened standard to be adopted where the consequences of dismissal are particularly grave, adequately satisfies any Article 8 requirements as to procedure and thereby secures the benefit of the Convention right.
No, says the Court of Appeal in Turner v East Midlands Trains.
This case concerned the dismissal of a train conductor for alleged ticket irregularities. The employment tribunal applied the 'band of reasonable responses' test to both the fairness of the employer's investigation, and its ultimate decision to dismiss for the purposes of section 98 (4) of the ERA 1996 and found the dismissal fair.
The question was whether the tribunal was right to do so if Article 8 of the ECHR (right to respect for private and family life) were engaged. The tribunal found that Article 8 was not in fact engaged. But even if it were, and section 98 (4) had to be read compatibly with Article 8 (in accordance with Section 3 of the Human Rights Act 1998), the tribunal considered that (applying X v Y) the 'band of reasonable responses' test is in itself compatible with Article 8.
On appeal to the Court of Appeal the claimant pursued the argument that Article 8 was engaged and therefore the employer's investigation did not satisfy the alleged stricter procedural requirements which the proper protection of Article 8 rights requires. The employer argued that the claimant could not argue that her Article 8 rights had been infringed when she had brought the consequences on herself. That question could not be answered, said the Court of Appeal, until the fairness of the procedures and the proportionality of the sanction have been determined.
However, the 'band of reasonable responses' test which, according to the case law such as A v B, requires a heightened standard to be adopted where the consequences of dismissal are particularly grave, adequately satisfies any Article 8 requirements as to procedure and thereby secures the benefit of the Convention right.
Continuity of Employment
Are relations between employer and employee 'governed by a contract of employment' for the purposes of continuity after an offer of employment has been accepted, but before the employee has started work?
Yes, says the EAT in Welton v Deluxe Retail Limited.
Mr Welton worked at a shop in Sheffield. When the shop closed, he was dismissed. During the following week, he agreed to accept employment at another shop owned by the same employer in Blackpool. He started work the week after that, and was dismissed a few months later.
Langstaff P held that once the offer of new employment had been accepted, relations between the parties were governed by a contract of employment: it was not necessary for work actually to have started under the contract. That gave Mr Welton sufficient continuous employment to bring his claim.
The President also held (obiter) that Mr Welton had in any event been absent on account of a temporary cessation of work. Mr Welton's final argument - that continuity was preserved during his absence under section 212(3)(c) by an arrangement arrived at after the start of the new employment - failed. Such an arrangement could not be made retrospectively.
The judgment is worth reading in full for its first-principles analysis of the contractual position - especially for anyone who missed the President's ELA Annual Lecture last week.
Yes, says the EAT in Welton v Deluxe Retail Limited.
Mr Welton worked at a shop in Sheffield. When the shop closed, he was dismissed. During the following week, he agreed to accept employment at another shop owned by the same employer in Blackpool. He started work the week after that, and was dismissed a few months later.
Langstaff P held that once the offer of new employment had been accepted, relations between the parties were governed by a contract of employment: it was not necessary for work actually to have started under the contract. That gave Mr Welton sufficient continuous employment to bring his claim.
The President also held (obiter) that Mr Welton had in any event been absent on account of a temporary cessation of work. Mr Welton's final argument - that continuity was preserved during his absence under section 212(3)(c) by an arrangement arrived at after the start of the new employment - failed. Such an arrangement could not be made retrospectively.
The judgment is worth reading in full for its first-principles analysis of the contractual position - especially for anyone who missed the President's ELA Annual Lecture last week.
Right to Legal Representation in Internal Disciplinary
Is it unfair for a Claimant to not be permitted legal representation during an internal appeal hearing?
Not necessarily, says the EAT in Ministry of Justice v Parry, unless the circumstances fall within an exceptional class of case in which the decision to dismiss from employment is also a decision which creates a legal barrier to the employee working again in their chosen profession, such that Article 6 ECHR guaranteed a right of legal representation at a disciplinary hearing.
The Claimant was a District Probate Registrar and had a final written warning for gross misconduct, namely bullying and harassment. Further similar complaints were made within the currency of the warning. The complaints were upheld and the Claimant summarily dismissed. The Claimant asked if she could be represented by solicitors at her appeal. The request was declined but written submissions were prepared and considered by the Respondent.
The EAT had to consider whether legal representation at the appeal was mandated and if so would a dismissal in the absence of such an opportunity be necessarily procedurally unfair. The EAT were referred to a number of authorities which demonstrated that a pragmatic, context-sensitive approach needed to be adopted to determine whether Article 6 was engaged.
The EAT recognised that there was a contractual right to dismiss an employee but in some circumstances this decision could impact on an employee's broader civil rights: whether they could continue to work not simply in their role but in their chosen profession. In these circumstances where the employee's civil rights were engaged the guarantees provided by Article 6 must be observed. This was essential whether or not the decision regarding practice in their chosen profession would be taken at a later date by an external body. If there is a sufficient link between the internal proceedings and the determination of the employee's right to continue in their profession, Article 6 is engaged.
The EAT held that the tribunal did not have sufficient evidence to decide whether Article 6 applied and therefore they were wrong to make the decision. The matter was remitted to a fresh tribunal.
Tuesday, 20 November 2012
Facebook dismissal - court upholds traditional measure of damages
The High Court has handed down judgment awarding just £98 to the Claimant in Smith v Trafford Housing Trust; a breach of contract claim by a Claimant demoted for making comments on Facebook expressing his personal views on gay marriage. This case raises a number of issues:
First, of interest is the reasoning on the factual issue of whether the Claimant had committed misconduct at all. Some of the points may well assist claimants in Facebook cases.
Mr Smith's Facebook wall page identified him as an employee of the Trust. He had 45 work colleagues among his Facebook friends, including at least one who was offended by these comments. His wall was accessible by not just his 201 Facebook friends, but by friends of friends.
In finding that the demotion was a breach of contract, the Court held that:
1) No reasonable reader of Mr Smith's Facebook wall could rationally conclude that what he wrote about gay marriage was posted on the Trust's behalf. This was based on a reading of the wall as a whole, which included posts about sport, food and motor vehicles. It was clear that Mr Smith used Facebook for personal and social, rather than work related purposes.
2) Encouraging diversity in the workforce inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply held opposite views. Such distress or offence is a necessary price to be paid for freedom of speech. Mr Smith's moderate expression of his personal views, on his personal Facebook wall at a weekend out of working hours, could not sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.
3) Facebook had not acquired a sufficiently work-related context in this case to attract the application of the employer's disciplinary policies (even though those policies did to some extent cover conduct outside working hours and on Facebook). The Court distinguished this case from one of a targeted e-mail sent to work colleagues, or a case where work colleagues are invited to the pub for the purpose of religious or political promotion outside work; as Mr Smith's Facebook friends had each made a choice to be his friend on Facebook and so to seek his views.
4) Mr Smith's postings on gay marriage were not, viewed objectively, judgmental, disrespectful or liable to cause upset, offence, discomfort or embarrassment. Nor were the manner and language in which he expressed his views.
Second, it was held that the demotion, as a repudiatory breach of contract, constituted an actual dismissal, even though the employee claimed he had affirmed the employment contract, without waiving his right to damages for breach, by working at the lower grade under protest. Despite Mr Smith's argument that an "unaccepted repudiation is a thing writ in water", it was held that the original contract was at an end as Mr Smith had agreed to work in a different capacity for a greatly reduced salary under a new contract with the Trust. Unfortunately for Mr Smith, this was therefore held to be a case of wrongful dismissal.
Third, damages for wrongful dismissal are limited to financial loss during the contractual notice period, which in this case was just £98 (the difference between earnings in the two jobs for the 12 weeks' notice period). Mr Smith's argument that the latter principle had been undermined by Durham Tees Airport v BMI Baby Ltd and anr did not succeed. As there was no unfair dismissal claim, the financial compensation awarded was very limited. This underlines the importance of bringing one's claim in time in the most appropriate tribunal.
Friday, 16 November 2012
Statutory Dismissal Procedure
Can a Claimant rely upon two letters, one sent before resignation and one after, as a grievance for the purposes of the now defunct statutory dispute resolution procedures?
Yes, says the Court of Appeal in Dolby v Sheffield City Council.
In a trip down memory lane for many practitioners, the Court of Appeal considered the statutory procedures under Part 2, Schedule 2 of the Employment Act 2002 and restored the employment tribunal's judgement that they had jurisdiction to consider a whistleblowing claim.
In May 2008, the Claimant appealed the outcome of a Stage 2 meeting. Several days later, she wrote a further letter which referred to protected disclosures and detriments. In July 2008, before the appeal hearing, she resigned. In August 2008, her solicitors wrote on her behalf, and referred to constructive dismissal.
Overturning the EAT decision, the Court of Appeal (adopting 'now discredited' over 'rebarbative' as their barbed epithet of choice) held that the two letters read together made the nature of the grievance clear. The fact one was sent after a Stage 2 meeting had been convened for an earlier grievance was irrelevant.
Yes, says the Court of Appeal in Dolby v Sheffield City Council.
In a trip down memory lane for many practitioners, the Court of Appeal considered the statutory procedures under Part 2, Schedule 2 of the Employment Act 2002 and restored the employment tribunal's judgement that they had jurisdiction to consider a whistleblowing claim.
In May 2008, the Claimant appealed the outcome of a Stage 2 meeting. Several days later, she wrote a further letter which referred to protected disclosures and detriments. In July 2008, before the appeal hearing, she resigned. In August 2008, her solicitors wrote on her behalf, and referred to constructive dismissal.
Overturning the EAT decision, the Court of Appeal (adopting 'now discredited' over 'rebarbative' as their barbed epithet of choice) held that the two letters read together made the nature of the grievance clear. The fact one was sent after a Stage 2 meeting had been convened for an earlier grievance was irrelevant.
Wednesday, 14 November 2012
Non Compliance with Unless Orders
[Thanks to Simon McCrossan, squatter at New Walk Chambers, for preparing this case summary]
No, says the EAT in Scottish Ambulance Service v Laing.
Upholding the Respondent's appeal, Lady Smith held that an 'Unless Order' made under Rule 13(2) of the employment tribunal rules amounts to a conditional judgment, which will result in the automatic strike out of proceedings in the event of whole or partial non-compliance: "it is not open to a tribunal to revisit its decision that a failure to comply will result in strike out".
In first instance, the tribunal had erred by applying the incorrect test under Rule 18(7) thereby incorrectly exercised its discretion in considering a variety of factors including the degree of compliance, fair notice and previous conduct which led to the eventual refusal (following further interim hearings) to strike out the Claimant's case on the grounds of insufficient particulars. In any event, the EAT held that the Claimant failed to comply with the 'Unless Order' by the compliance date and that documentation considered after this time was not relevant for the purposes of striking out the claim.
Permanent Health Insurance
Can an employee dismissed for ill health sue for damages if he thereby loses benefits under a PHI policy?
Not on the facts in Lloyd v BCQ Ltd, said the EAT.
Mr Lloyd was dismissed because of ill health. One of his claims was that this was in breach of an implied term that the employer would not dismiss him if this had the effect of removing his entitlement to PHI benefit.
In Aspden v Webb's Poultry and Meat (Holdings) Ltd Sedley J (as he then was) held that there was a term implied into the employee's contract that, notwithstanding an express term allowing for termination for prolonged sickness, this would not be exercised if it had the effect of depriving him of his PHI benefit in the absence of any fundamental breach by him. In Reda and another v Flag Ltd however, the Privy Council explained that Aspden was a case with special facts. On the evidence it was found that it had never been the employer's intention to exercise its contractual right of dismissal where to do so would frustrate the employee's entitlement to income replacement insurance. In Lloyd, however, no such background existed. And Mr Lloyd's contract contained an "entire agreement" clause. This was an express term and there was no scope for the implication of a term which contradicted it.
In the alternative, the EAT held that if it were, in a given case, appropriate to imply a term restraining the exercise of the power of dismissal in this context, this could only be actioned where (per the Court of Appeal's view in Briscoe v Lubrizol) the dismissal was "without reasonable and proper cause". In this case, dismissal was for good cause because of the claimant's absence from work and lack of prospect of returning to work.
Finally, in the event, Mr Lloyd had no claim as he received the equivalent of the PHI benefit and had suffered no loss.
Not on the facts in Lloyd v BCQ Ltd, said the EAT.
Mr Lloyd was dismissed because of ill health. One of his claims was that this was in breach of an implied term that the employer would not dismiss him if this had the effect of removing his entitlement to PHI benefit.
In Aspden v Webb's Poultry and Meat (Holdings) Ltd Sedley J (as he then was) held that there was a term implied into the employee's contract that, notwithstanding an express term allowing for termination for prolonged sickness, this would not be exercised if it had the effect of depriving him of his PHI benefit in the absence of any fundamental breach by him. In Reda and another v Flag Ltd however, the Privy Council explained that Aspden was a case with special facts. On the evidence it was found that it had never been the employer's intention to exercise its contractual right of dismissal where to do so would frustrate the employee's entitlement to income replacement insurance. In Lloyd, however, no such background existed. And Mr Lloyd's contract contained an "entire agreement" clause. This was an express term and there was no scope for the implication of a term which contradicted it.
In the alternative, the EAT held that if it were, in a given case, appropriate to imply a term restraining the exercise of the power of dismissal in this context, this could only be actioned where (per the Court of Appeal's view in Briscoe v Lubrizol) the dismissal was "without reasonable and proper cause". In this case, dismissal was for good cause because of the claimant's absence from work and lack of prospect of returning to work.
Finally, in the event, Mr Lloyd had no claim as he received the equivalent of the PHI benefit and had suffered no loss.
ECJ - Age Discrimination and Retirement
Is lowering the compulsory retirement age for judges from 70 to 62 justified age discrimination?
No, says the CJEU in EC v Hungary, because it is not proportionate as regards the objectives pursued.
The amendment gave rise to a difference in treatment based on age between persons within a given profession. The aims of this amendment were legitimate: firstly, standardisation, in the context of professions in the public sector, of the age limit for compulsory retirement; and secondly, the establishment of a 'more balanced age structure' facilitating access for young lawyers to the professions of judge, prosecutor and notary and guaranteeing them an accelerated career.
However, whilst the lowering of the retirement age was appropriate in pursuit of the first aim, it was not necessary considering the interests of those forced to retire early and the fact that the amendment was not gradually staggered. The second aim was not appropriate as the short term effects of vacating numerous posts, which will be liable to be occupied by young lawyers, could not be said to achieve a truly balanced age structure in the medium and long term.
No, says the CJEU in EC v Hungary, because it is not proportionate as regards the objectives pursued.
The amendment gave rise to a difference in treatment based on age between persons within a given profession. The aims of this amendment were legitimate: firstly, standardisation, in the context of professions in the public sector, of the age limit for compulsory retirement; and secondly, the establishment of a 'more balanced age structure' facilitating access for young lawyers to the professions of judge, prosecutor and notary and guaranteeing them an accelerated career.
However, whilst the lowering of the retirement age was appropriate in pursuit of the first aim, it was not necessary considering the interests of those forced to retire early and the fact that the amendment was not gradually staggered. The second aim was not appropriate as the short term effects of vacating numerous posts, which will be liable to be occupied by young lawyers, could not be said to achieve a truly balanced age structure in the medium and long term.
Monday, 12 November 2012
TUPE Service Provision Changes
Under TUPE, what is the interpretation of a contract for a 'single specific event or task of short term duration' for the purposes of determining whether there has been a service provision change?
This issue was addressed by the EAT in Liddell's Coaches v Cook.
Under TUPE, Reg 3(3)(a)(ii) a service provision change is excluded where the client for whom the services are provided intends that the activities concerned are in connection with a single specific event or task of short term duration.
Liddell's had a contract to provide transport for schoolchildren during a limited period when they were 'decanted' from their school. It was just for a year. The evidence was that contracts of this nature were normally awarded for periods of between 3 and 5 years. Did the exclusion apply?
The employment tribunal held that the decant transport contract related to a single specific event and was of short term duration. TUPE did not apply. The EAT agreed with the result. However, Lady Smith took the opportunity to analyse the exclusion. The BIS guidance on TUPE indicates that both a single specific event, and task, must both be of short term duration. Lady Smith disagreed. The phrase could be construed disjunctively. A single specific event spoke for itself. It did not necessarily have to be of "short term duration". An event is an event. It does not require to be qualified by the words: "of short term duration". But in the outcome this did not matter. The tribunal had correctly found that the contract (event or task) was, in this case, of short term duration.
This issue was addressed by the EAT in Liddell's Coaches v Cook.
Under TUPE, Reg 3(3)(a)(ii) a service provision change is excluded where the client for whom the services are provided intends that the activities concerned are in connection with a single specific event or task of short term duration.
Liddell's had a contract to provide transport for schoolchildren during a limited period when they were 'decanted' from their school. It was just for a year. The evidence was that contracts of this nature were normally awarded for periods of between 3 and 5 years. Did the exclusion apply?
The employment tribunal held that the decant transport contract related to a single specific event and was of short term duration. TUPE did not apply. The EAT agreed with the result. However, Lady Smith took the opportunity to analyse the exclusion. The BIS guidance on TUPE indicates that both a single specific event, and task, must both be of short term duration. Lady Smith disagreed. The phrase could be construed disjunctively. A single specific event spoke for itself. It did not necessarily have to be of "short term duration". An event is an event. It does not require to be qualified by the words: "of short term duration". But in the outcome this did not matter. The tribunal had correctly found that the contract (event or task) was, in this case, of short term duration.
Fixed Term Contracts
[Thanks to Michael Reed Employment Legal Officer at the Free Representation Unit for preparing this case summary]
No, held the Court of Appeal in Hudson v Department of Work and Pensions.
The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 say that anyone employed under a succession of fixed-term contracts will become a permanent employee after four years "unless employment on a fixed term contract is objectively justified".
There is an exception for employees on a training / work-experience scheme arranged by the government or funded by the European Community.
In 2006 Ms Hudson began a fixed-term contract under such a scheme at the DWP. This was extended several times until Ms Hudson became a Support Officer in 2009. This was also a fixed-term contract, but not part of a training scheme.
In 2010 Ms Hudson argued that, having worked for more than four years under fixed-term contracts, she was a permanent employee. She was no longer working under a training scheme, so the exclusion did not apply.
The Court of Appeal disagreed, concluding that time worked under a training scheme does not count towards establishing the four year period.
ECJ - Age Discrimination and Retirement
Is lowering the compulsory retirement age for judges from 70 to 62 justified age discrimination?
No, says the CJEU in EC v Hungary, because it is not proportionate as regards the objectives pursued.
The amendment gave rise to a difference in treatment based on age between persons within a given profession. The aims of this amendment were legitimate: firstly, standardisation, in the context of professions in the public sector, of the age limit for compulsory retirement; and secondly, the establishment of a 'more balanced age structure' facilitating access for young lawyers to the professions of judge, prosecutor and notary and guaranteeing them an accelerated career.
However, whilst the lowering of the retirement age was appropriate in pursuit of the first aim, it was not necessary considering the interests of those forced to retire early and the fact that the amendment was not gradually staggered. The second aim was not appropriate as the short term effects of vacating numerous posts, which will be liable to be occupied by young lawyers, could not be said to achieve a truly balanced age structure in the medium and long term.
No, says the CJEU in EC v Hungary, because it is not proportionate as regards the objectives pursued.
The amendment gave rise to a difference in treatment based on age between persons within a given profession. The aims of this amendment were legitimate: firstly, standardisation, in the context of professions in the public sector, of the age limit for compulsory retirement; and secondly, the establishment of a 'more balanced age structure' facilitating access for young lawyers to the professions of judge, prosecutor and notary and guaranteeing them an accelerated career.
However, whilst the lowering of the retirement age was appropriate in pursuit of the first aim, it was not necessary considering the interests of those forced to retire early and the fact that the amendment was not gradually staggered. The second aim was not appropriate as the short term effects of vacating numerous posts, which will be liable to be occupied by young lawyers, could not be said to achieve a truly balanced age structure in the medium and long term.
Subscribe to:
Posts (Atom)
