Fees in the EAT

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

When may an appellant recover the fees paid to have an appeal heard in the EAT?

It depends on the circumstances of the case, held the EAT inLook Ahead Housing v Chetty.

The two employees at the centre of this appeal had won their claims of race discrimination and unfair dismissal against their employer, the appellant. The employer then presented an appeal to the EAT in respect of the employment tribunal's judgment on remedies. All of the contested elements of the appeal were rejected, but one element was allowed by consent. The employer then applied for an order that one of the employees pay half the £400 EAT lodging fee and £1,200 hearing fee.

The EAT (Langstaff J) rejected the employer's contention and gave very clear guidance on this matter. Firstly "and most obviously"  an appellant who fails on every point should not recover their appeal fees. In cases where an appeal succeeds in part, recovery and the amount recovered will depend on the individual case and in such circumstances it may be appropriate to order part-recovery. The key question is "whether it was necessary to incur the expense in order to bring the appeal" (paragraph 53).

If reasonable steps could have been taken to avoid having to bring the appeal, such as by applying for reconsideration or by seeking the agreement of the other party, it may not have been necessary to do so and the test would not be satisfied

Redundancy during Maternity Leave

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Can an employer arrange a redundancy process so as to determine when it is obliged to offer a suitable alternative vacancy to a redundant employee on maternity leave? No, held the EAT in Sefton Borough Council v Wainwright. The Claimant was on maternity leave, and in a pool of two managers, the other male, facing redundancy as their roles were combined. The Council gave the combined role to the other manager ahead of her, making her dismissal automatically unfair under the Employment Rights Act. The EAT rejected the Council's distinctions between processes leading to 'displacement' or 'redeployment', and 'redundancy'. For the purposes of Regulation 10 of the Maternity and Parental Leave Regulations, requiring employers to offer redundant employees on maternity leave suitable alternative employment, it was not for the employer to determine when the redundancy arose, the statutory definition of redundancy should be used, otherwise the protection of Regulation 10 could be undermined if employers abused their position to determine how redundancy processes run. However, the EAT found that the employment tribunal erred in concluding that the breach of Regulation 10 in failing to offer the new post to the Claimant meant that it had committed maternity discrimination under S18 of the Equality Act. The employment tribunal had not fully considered the reason why the Claimant was not offered the alternative job, it was not inherently discriminatory to offer the job to a candidate better qualified than the Claimant. The matter was remitted to the same employment tribunal for reconsideration. The EAT also ordered the Claimant to pay only part of the hearing fee award to the Council, exercising its discretion, as the appeal was only partly successful.

Acas Early Conciliation

Acas has published the first six months' figures showing how early conciliation is working. Key figures:-
 

• over the first six months, it has conciliated in 37,000 cases (of which about 1,000 were multiple claims, covering about 8,000 potential Claimants)
• 3% of early conciliation requests came from the employer
• 10% of employees reject the offer of early conciliation once they have submitted the EC Form
• similarly, 10% of employers decline to participate in early conciliation when Acas contacts them
• preliminary indications show that 18% of early conciliations resulted in a COT3. Of those that did not result in settlement, over 2/3rds did not progress to a tribunal claim (but bear in mind there is some time lag built into this as an employee will have at least a month to bring a claim, and they might not have done so during the survey period)

For more information, see Darren Newman's blog post on this.

ET shouldn't research evidence/arguments on Wikipedia

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Should an employment tribunal conduct its own enquiries into evidence (for example, on Wikipedia during an adjournment)? No, held the EAT in East of England Ambulance Service v Sanders. After hearing evidence on a preliminary point relating to disability, the employment tribunal researched a point on the internet before informing the parties of their research. The Respondent asked that the employment tribunal recuse itself, which was refused. The Employment Judge asked leading questions of the Claimant about her condition. The EAT upheld the Respondent's appeal and remitted the case. The EAT considered Rule 41 noting "Rule 41 does not, in our view, allow a Tribunal to make enquires on its own behalf into evidence which was never volunteered by either party". An employment tribunal may ask questions of those before it, but to elicit evidence: "not the evidence which the Tribunal wishes to hear but the evidence which the witness wants to give, as best the Tribunal can understand it". The EAT advised employment tribunals that "In assisting one party, it should be cautious not to cross the line between impartiality (which it must maintain) and acting as an advocate (which it must never do)...". The EAT noted that there was the risk of an appearance of bias arising from the position in which the employment tribunal had put itself, and noted that criticisms of the Respondent's cross-examination was of matters that the employment tribunal was entitled to control. The EAT also made general observations on the importance of parties highlighting relevant passages in authorities bundles.

Reimbursement of EAT Fees by Respondent

Thanks to James Medhurst of Employment Law Advocates for preparing this case summary

Is there a presumption that the successful Appellant in an appeal will recover the £400 issue fee and £1,200 hearing fee from the unsuccessful Respondent?

Seemingly not, given the EAT's decision in Old v Palace Fields Primary Academy.

The Claimant was a teacher who had been dismissed after being accused of encouraging the bullying of one of her pupils.  The employment tribunal found the dismissal was fair.  The EAT found two (minor) faults in the tribunal's reasoning and the case remitted back to the same employment judge.

However, the EAT did not make an order for recovery of the £400 issue fee and ordered only half of the £1,200 hearing fee to be repaid. It said that it had a wide discretion as to recovery of fees and that the Claimant had only been "partially successful" because the case had been remitted back to the same Employment Judge.

Judicial Review not normally appropriate in employment cases

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

Is judicial review a mechanism for examining employment practices?

On the face of the Court of Sessions' decision (Lords Essie's lead judgment) in Gray v Watson, generally no.

Mr Gray, managing director of Braid Logistics UK (BULK) and shareholder its parent company Braid Group, had a contract providing for summary dismissal.

The Group's board of directors met and appointed a committee, including First and Second Respondent, to investigate Mr Gray's alleged misuse of an expense account. He was not invited to the meeting.

The Second Respondent suspended Mr Gray and the first issued disciplinary proceedings. The Second Respondent then summarily dismissed Mr Gray, offering the right of appeal to the remaining Respondents, temporarily appointed as directors of BULK.

The Petitioner applied to strike down suspension, disciplinary proceedings and dismissal and to restrain the remaining Respondents from further action on the grounds that the committee's appointment was procedurally flawed and the Respondents' apparent bias.

Applying West v Secretary of State for Scotland, the Court dismissed the petition.

The Respondents' use of powers were as agents of BULK, there was no tripartite relationship. Furthermore, they were not exercising quasi-judicial functions.

Finally, supervisory jurisdiction was available only in absence of other remedy. Reference to final decision on appeal in the contract was to the internal process, not excluding judicial jurisdiction. Remedy lay in employment law so supervisory jurisdiction could not be invoked.

Holiday Pay: Government announces taskforce

Following this morning's important ruling on holiday pay, Business Secretary Vince Cable has announced he is setting up a new taskforce to assess the impact of the ruling.

Although the press release uses the neutral language "assess the possible impact", this tweet from the BIS Press Office does rather give the game away...


Plus (according to the press release) the members of the taskforce consist of seven employer's organisations, but no unions, law centres or employee organisations.  No prizes for guessing what they're going to recommend...

Important Case: Holiday Pay

The Employment Appeal Tribunal has, this morning, handed down judgment in Bear Scotland v Fulton (and conjoined cases).

Key points:-

1.  workers are entitled to be paid a sum of money to reflect normal non-guaranteed overtime as part of their annual leave payments

2.  that applies only to the basic 4 weeks' leave granted under the Working Time Directive, not the additional 1.6 weeks under regulation 13A of the Working Time Regulations

3.  claims for arrears of holiday pay will be out of time if there has been a break of more than three months between successive underpayments (subject to the reasonable practicability test)

4.  travel time payments, which exceed expenses incurred and so amount to additional taxable remuneration, should also be reflected when calculating holiday pay.

The Employment Appeal Tribunal refused to grant a reference to the Court of Justice of the European Union, but gave permission to appeal to the Court of Appeal (stating that ground 3 was the most significant point for the Court of Appeal to consider).

Work placements - discrimination

Thanks to James Medhurst of Employment Law Advocates for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Does an employment tribunal have jurisdiction to hear a discrimination claim about a work placement which is part of a university course?

No, held the EAT in Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust.

The Claimant was a student at Birmingham City University, studying for a diploma in mental health nursing. She undertook a vocational placement with the Trust as part of her course. She was a single mother and, because of her childcare responsibilities, was unable to comply with the shift patterns of the placement, leading the Trust to withdraw it. She claimed indirect sex discrimination.

Claims for discrimination in the provision of vocational training usually fall within the jurisdiction of the employment tribunal. However, section 56(5) of the Equality Act provides an exception where that training is provided through a university which "has the power to afford access" to that training. The EAT held that this provision should be construed widely and so the fact that it was the Trust which terminated the placement did not mean that the University did not have such a power.

It follows that the claim falls within the educational provisions in Part 6 of the Equality Act and has to be pursued in the county court.

Discrimination - meaning of 'employee'

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Does UK discrimination law meet the requirements of EU law in protecting employees?

Yes, held the Court of Appeal (unanimously) on the facts in Halawi v WDFG UK Ltd, upholding the decisions of the ET and the EAT.

The Appellant worked through her own company as a beauty consultant in a duty-free shop at Heathrow. The company managing the premises removed her airside pass. She claimed that this amounted to a discriminatory dismissal by her 'employer'.

On the employment tribunal's findings of fact, with no contract between the Appellant and Respondent, the Appellant failed to satisfy two key tests for employment with the Respondent under EU law. She had not agreed personally to perform services for the putative employer, even having a right of substitution with the shop owner, which was exercised. Furthermore, she was not controlled by the Respondent, which had no control over how the Appellant worked beyond its right to restrict her access to the workplace, so there was no subordination, a key element of employment in EU law (para. 4).

The Court of Appeal echoed the EAT's concerns over the ramifications of the judgment as leaving the Appellant with no remedy if there had been discrimination, but recognised that it was bound to so find on the facts, and rejected a request for a reference to the ECJ.

Striking out

Thanks to Sarah Fitzpatrick of Collingwood Legal for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Can a claim for unfair dismissal due to whistleblowing be struck out without hearing the evidence as to the reason for dismissal?

That would very rarely be appropriate where the reason for dismissal is the central dispute between the parties, held the EAT (Langstaff P) in Romanowska v Aspirations Care Limited.

The Claimant worked in a care home and was dismissed following an incident during which she allegedly used inappropriate physical force with a resident. At the disciplinary hearing prior to the dismissal the Claimant raised complaints about the care home's use of Agency staff. At a PHR the Employment Judge held that the Claimant's complaints may be capable of being a public interest disclosure yet proceeded to strike out her whistleblowing claim as having no reasonable prospects of success. The Claimant appealed.

The EAT held there was a real dispute of fact and to know what was in the mind of the employer at the time of dismissal (and thus what the principal reason for dismissal was) it was necessary for the employment tribunal to hear and evaluate evidence. The Employment Judge had made an error of law, the appeal was allowed and the case was remitted to a fresh employment tribunal.

Injunctions during notice period

Thanks to Grahame Anderson of Littleton Chambers for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Where a departing employee expresses unwillingness to work out the life of his contract (as distinct from post-termination restrictions) and the employer does not, therefore, continue to pay him, is the employee entitled to treat the contract as at an end such that injunctive relief to enforce the duty of loyalty may not be granted?

No, held the Court of Appeal (Underhill, Longmore and Gloster LJJ) in Sunrise Brokers LLP v Rodgers.

The employer was an inter-dealer broker; the employee was a derivatives broker. Midway through the life of his employment contract, the employee informed the employer that he wanted to leave immediately and would not continue to work. That is what he did. The employer stopped paying him.

The contract was terminable on 12 months' notice from him and contained provision for Garden Leave and post-termination restrictions.

On appeal it was accepted that:

(1) The employer was entitled to elect whether or not to accept the employee's repudiation, or to keep the contract alive. Since it chose to keep it alive, the employee remained an employee for the remaining period of his contract.

(2) Since an employee's right to remuneration depended on his being willing to work, the employee was not entitled to terminate the contract because of failure to pay.

The Court of Appeal rejected the grounds of appeal before it. They all went to the Judge's discretion to grant injunctive relief. Two key points are:

(1) It declined to go behind the Judge's finding that it was not demonstrated before him that the failure to pay would mean that the employee was, in reality, compelled to return to work for the employer or face "idleness and starvation". Employees must lead cogent evidence to this effect.

(2) The employee argued that the presence of a set-off clause between the Garden Leave clause and post-termination restrictions meant that the employer only needed 6 months of protection. As a matter of fact, the employee had had no client contact (etc) for more than 6 months. It was entitled to no further protection. The Court of Appeal decided that the Judge was entitled to have regard to what would have happened if the employee had in fact given the notice required under his contract.

Actors as workers

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Were actors working under a profit share agreement 'workers' for the purposes of employment legislation?

Not necessarily, held the EAT on the facts in MacAlinden v Lazarov and others.

Five actors were hired to appear in a play. They were recruited on an 'actor's contract' which remunerated them by way of a profit share. The play gained critical success but did not produce a profit. The Claimants received nothing.

On the termination of their engagement they pursued claims to the employment tribunal for payment of the national minimum wage and holiday pay. They could only succeed if they were 'workers' as defined in the relevant legislation. The Employment Judge determined that they were workers. He considered that the Claimants undertook to perform work personally. And he found that there was a sufficient degree of mutual obligations for the Claimants to be workers.

On appeal, the Respondent contended that the Employment Judge had not properly considered whether the actors were carrying out a profession or a business undertaking so that the other party to the contract was a client or a customer, this being the exception to the definition of a worker.

The EAT agreed. On the witness evidence, there was some indication at least that the actors concerned were people who were embarking on a professional business undertaking. They appeared to be actively marketing their services as an independent person to the world in general rather than being recruited to work for any individual as an integral part of that individual's operations.

In this case the Employment Judge had not applied the statement of principle set out by Langstaff J in Cotswold Developments Construction Limited v Williams to the effect that the focus must be on whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer), on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, on the other. The matter was remitted to a fresh employment tribunal.

Teachers - disciplinary procedures

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Can a teacher be disciplined by a local authority rather than her school?

Yes, held Mr Justice Supperstone in Davies v Haringey LBC.

The Claimant was employed by Haringey at a Community School for 8 years until she was elected as an NUT official. For the next 14 years she continued to be paid as a teacher of the School whilst doing the NUT task full time until she was suspended by Haringey for alleged breaches of their Code of Conduct.

The Claimant asked the High Court to rule that she could only be disciplined by the Governors of her School. Haringey however said that since the Claimant was employed by them she could be disciplined by them as well as by the School. The Judge held that whilst Governors had disciplinary powers over staff working in their School since the Claimant had not in practice worked at the School for 14 years it was Haringey which had disciplinary powers over her.

Reasonable adjustments

Thanks to James Medhurst of Employment Law Advocates for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Does an employment tribunal deciding a reasonable adjustments case have to identify the 'step' for the purposes of section 20(3) of the Equality Act 2010?

Yes, held the EAT in General Dynamics v Carranza.

The Claimant suffered from stomach adhesions. He received a final written warning in September 2011 following 206 days of sickness absence in three years, mainly caused by his disability. He was dismissed in December 2012 after a further three months of sickness, not related to his disability. A majority of the employment tribunal found that the Respondent ought to have disregarded the final written warning and so there had been a failure to make reasonable adjustments.

The EAT overturned the decision and held that the employment tribunal had failed to identify a 'step' which the employer could have taken. It doubted that the mental process of disregarding a warning is such a step, although formally revoking a warning might be. In any event, it also rejected the conclusion that this adjustment would have been reasonable.

The EAT said that it would have been easier to analyse the case as one of discrimination arising from disability because it was not really about taking practical steps to prevent disadvantage. Had the case been put that way it would have been doomed to failure because the dismissal of the Claimant was a proportionate means of achieving the legitimate aim of consistent attendance at work.

ACAS guidance on shared parental leave

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

ACAS has published a detailed guidance note on the new shared parental leave rules, together with supporting material including standard letters and a policy document. These documents are available for download here.

Polkey deductions

Thanks to Grahame Anderson of Littleton Chambers for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Was an employment tribunal's failure explicitly to identify those factors that led it to a percentage Polkey reduction an error of law?

Yes, held the EAT in Contract Bottling Limited v Cave and McNaughton.

The Claimants were made redundant pursuant to an unfair selection process. The employment tribunal reduced their compensation on the basis of a 20% Polkey reduction. In the EAT, Langstaff P reiterates core Polkey principles. An employment tribunal's role is to engage with evidence (speculative albeit) to determine the chance of a fair dismissal taking place at some point in the future. Here, the employment tribunal 'rather plucked a figure in the air'. Unsurprisingly, that is not a safe approach.

Points to note:

(1) Where an employment tribunal does set out a reasoned connection between the evidence available to it as to the likelihood of fair dismissal "there can be no legitimate ground for criticising a particular percentage unless it is manifestly less than or more than the percentage which might have seemed proper".

(2) A purely mathematical approach will rarely be sufficient. Where, as in this case, 4 out of 10 pooled employees were in the event made redundant, it is not enough to give 40% as the percentage.

Following the President's example, employment tribunals would be well advised to identify all of those factors that might increase the chance of a fair dismissal, and all of those that decrease it, in order to come to a reasoned figure. This is art, not science.

Duty of care in instigating disciplinary proceedings

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Can an employer be liable to an employee for breach of contract and/or negligence in initiating disciplinary proceedings without undertaking due enquiry?

Not on the facts of Coventry University v Mian held the Court of Appeal.

In this case Dr Mian was a senior lecturer employed by Coventry University. She was alleged to have written a reference about Dr Javed, her former colleague, for the benefit of Greenwich University. The reference was misleading and inaccurate and overstated the colleague's qualities and qualifications.

Dr Mian denied sending the reference in question. But a search of her computer showed drafts which were very similar. Dr Mian's case was that she was guilty of stupidity and naivety but not complicity. Dr Javed had sent Dr Mian draft references (containing the misleading information), which she had saved into her "H" drive. She had sent a shorter reference, she said, but had not saved it.

Soon after Dr Mian submitted a sickness certificate and the disciplinary hearing went ahead in her absence. At the end of the day the University dismissed the allegations against Dr Mian. Dr Mian did not return to work and she brought proceedings alleging breach of contract and/or negligence leading to personal injury. The trial Judge held in her favour.

In the Court of Appeal it was held that the Judge had identified the correct test to apply to the decision whether to commence disciplinary proceedings. This was whether the decision was "unreasonable" in the sense that it was outside the range of reasonable decisions open to an employer in the circumstances. This required an objective assessment and one that was not to be made with the benefit of hindsight.

Here the Judge was misled in eliding the question of whether it was reasonable of the University to institute disciplinary proceedings and whether, in the end, the allegations made against Dr Mian were true. The decision of the trial Judge was reversed and the University was not in breach of its duty of care.