BUPA Care Homes (BNH) Ltd v. Cann; Spillett v. Tesco Stores Ltd; [2006] IRLR 248; EAT
ET Procedure – Statutory Grievance procedure – relationship with “just & equitable” extensions
Both cases before the ET concerned allegations of unfair constructive dismissal and disability discrimination. In the first case, C was a care worker at B’s nursing home. She resigned on 22nd December 2004 and presented an ET claim on 19th March 2005. The ET returned the claim form as containing insufficient details. It was accepted on 11th April 2005. There was a PHR, following which the chairman ruled that the ET had jurisdiction in respect of disability discrimination, but not in respect of constructive dismissal because the resignation letter did not constitute a grievance. The parties cross-appealed. In the second case, S was employed as an assistant at a petrol filling station. She was turned down in May 2004 for an internally advertised position as a wages clerk, allegedly because she had a stammer. She resigned on 8th October 2004, and complained about the matter for the first time at an exit interview. She wrote to T complaining about the non-appointment on 20th November. On 5th January 2005 she presented her ET claim, alleging disability discrimination but stating that her claim was not about dismissal. Following advice from the DRC, she applied to amend her claim by adding claims of constructive dismissal and disability discrimination by reason of the constructive dismissal. At a PHR it was held that the disability discrimination claim was out of time and permission to amend was refused. She appealed. The EAT held both appeals together to consider the effect of the dispute resolution requirements on the pre-existing time limits for presenting claims – in other words, whether s32(4) Employment Act 2002 removed the tribunal’s power to extend time under the “normal” provisions of the ERA, DDA etc. In the BUPA case, an issue arose as to whether the undefined expression “original time limit” in s32(4) EA02 refers only to the primary three-month period in the relevant legislation (as in the definition of “normal time limit” in reg. 15 of the Dispute Resolution Regs), or to that period as extended by the ET on reasonably practicable/just and equitable grounds under that relevant legislation. B argued that the two terms had the same meaning, so that the requirement to bring a grievance expires 4 months after the act complained of and, after that period, no extension of time is possible. C contended that the terms are different and that Parliament should not be taken to have repealed the just and equitable extension provisions by implication. The EAT held that s32(4) did not operate to displace the ET’s discretion to extend time on the reasonably practicable/just and equitable basis. The “original time limit” for the purposes of s32(4)(b) means the time limit provided for in the relevant legislation, which includes the ET’s discretion to consider a complaint made outside the primary limitation period in the defined circumstances (i.e. those justifying an extension on the basis of just and equitable or not reasonably practicable etc). This construction reflects the difference of wording as compared with reg 15 of the Dispute Resolution Regulations. If Parliament wished to restrict the ET’s discretion to extend time it would have said so in EA02.

Commotion Ltd v. Rutty; 13/10/05 (EAT/0418/05); IDS Brief 797 p12; [2006] IRLR 171; [2006] ICR 290; EAT
ET procedure – Statutory Grievance procedure – what constitutes a grievance
Reported in the January and February updates. Now also reported at [2006] ICR 290.

Giles v. Geach & Jones t/a Cornelia Care Homes; 3100720/05; EOR 150 p30; ET
Sex discrimination – indirect discrimination – requirement to work more than 16 hours per week in the office – remedy – increase for failure to comply with statutory grievance procedure
See above (discrimination)

Hammill v. DSG Retail Ltd; 3300308/05; EOR 150 p28; ET
ET procedure – Statutory Grievance procedure – whether solicitor’s letter grievance
ET decision that a solicitor’s letter seeking financial settlement did not amount to a grievance in a claim for sex discrimination and constructive dismissal. It was clear that the letter complained about the actions of a colleague. Provided the facts of the complaint were put to the employer there was no need to go further than that and refer to a specific jurisdiction: all that was necessary was a complaint about something that could, on the facts, be construed as a potential claim within the tribunal’s jurisdiction. A solicitor has authority to make a grievance on behalf of a client. However, the purpose of the legislation was to allow resolution of disputes without the need to go to tribunal. A letter seeking financial settlement rather than an attempt to resolve the dispute within the relationship would not be construed as a grievance. Whilst it could be argued that a settlement was desirable to prevent a tribunal hearing, the legislation was really about resolving the dispute itself on the facts, not about reaching a settlement. Even if marked without prejudice, if the letter had required that the complaint be investigated and adjudicated, then it would have been a grievance notwithstanding that it did not contain the word “grievance”. The grievance needed to be perceived by a reasonable employer as a grievance requesting an investigation and, if necessary, hearing to determine it. That was not complied with in this case and a reasonable employer receiving it would not feel it incumbent upon it to investigate and hold a hearing.
NB This seems an odd decision which flies in the face of the recent EAT decisions on grievances and imposes a rather laboured interpretation on the Dispute Resolution Regs and EA02. It is of note that it was decided before, e.g. Mark Warner Ltd v. Aspland.

Bachnak v. Emerging Markets Partnership (Europe) Ltd; 27/01/06 (EAT/0288/05); IDS Brief 801 p9; EAT
Whistleblowing – allegation that disclosure not made in good faith – burden of proof
B was an investment officer dismissed by E. He claimed unfair dismissal, alleging among other things that he was dismissed as a result of making various protected disclosures about the way in which E was conducting its investment business. B therefore asserted that the dismissal was automatically unfair. The ET rejected the whistleblowing claim, holding that some of the disclosures were not made in good faith and were therefore not protected. In any event, the ET found that there was no link between the disclosures and the dismissal. However, the unfair dismissal claim was upheld on the basis of an unfair procedure, but the ET found that it was not just and equitable to award compensation because of 100% contributory fault. On appeal, B argued inter alia that the burden was on E to show that he acted in bad faith and that the ET had wrongly found there to be a neutral burden. The EAT agreed that the burden was on E to show bad faith (Lucas v. Chichester Diocesan Housing Association), but upheld the ET’s decision based on the findings of fact. The ET’s findings of fact as to B’s motive for the disclosures was open to it.

Birch v. Leeds Metropolitan University; 28/02/05 (1802230/03); IDS Brief 800 p8; ET
Less favourable treatment on basis of part-time status – comparator – test
B was a part-time lecturer for L. She claimed she was treated less favourably than full-time colleagues with regard to terms and conditions of employment. She had to identify a full-time comparator employed by the same employer under the same type of contract and engaged in the same or broadly similar work. B pointed to two comparators and it fell to the ET to determine as a preliminary issue whether they were engaged in the same or broadly similar work. The chairman had regard to the case of Matthews v. Kent & Medway Towns Fire Authority. He concluded that this case did not preclude him from identifying a core activity as one significant factor, for example in this case the core activity was teaching students on the various courses offered by L’s Centre of Language Study. L contended that the work in which an individual is “engaged” means that assigned under that individual’s contract, and that the comparators were contractually obliged to undertake a significantly wider range of job functions than B, so were not engaged on broadly similar work. The chairman rejected this interpretation. The statutory language plainly referred to the work in which a worker is engaged on a practical day-to-day basis, otherwise employers could allocate full-time workers tasks that they are not actually required to do simply to avoid the Regs. The chairman was therefore required to have regard to the work actually done in the relevant period by B and her comparators. B had participated fully in teaching and teaching-related work, alongside her comparators delivering the same courses. It was clear that B could also be allocated additional duties commensurate with her experience, skills and capabilities, a provision broad enough that she could be (and had on occasion been) asked to carry out some of the job functions that L claimed were relevant only to the full-timers. In the chairman’s view, there was no significant difference of practical importance between the work actually done by B and the comparators, and any apparent differences did not impinge on his central conclusion that they were engaged in the same or broadly similar work. Given their similarity of skills and experience, any apparent differences in their work might themselves be evidence of less favourable treatment. Where that is a possibility, less significance should be attached to those differences when considering whether the “broadly similar” test is made out.
Note that the Matthews case has now been heard by the House of Lords: see below.

Matthews v. Kent & Medway Towns Fire Authority; [2006] UKHL 8; IDS Brief 801 p3
Less favourable treatment on basis of part-time status – comparator – test
HL decision that ET erred in finding that part-time firefighters and their full-time colleagues did not work under the same type of contract and were not engaged in broadly similar work for the purposes of the Part-time Workers Regulations. M and others, who were retained (part-time) firefighters who generally had other jobs but spent time on call for operational duties to meet peaks in demand, alleged that they were treated less favourably than full-time colleagues with regard to their terms and conditions of employment, in particular access to pension schemes, arrangements for sick pay and increased pay for additional responsibilities. The tribunal considered whether they could compare themselves against the full-timers. First, it considered whether there was the same type of contract, finding that there were significant differences between the groups, for example the full-timers had a structured shift system of 42 hours with overtime, while the part-timers, other than a weekly commitment of two to three hours, were simply on call for between 84 and 156 hours per week. The tribunal found that the part-timers had an ad hoc demand-led role, making them a very special, anomalous, atypical and possibly unique group of employees and therefore had a different type of contract from the full-timers. The tribunal further found that the two groups were not engaged in the same or broadly similar work, because although at the scene of the fire the job function of all was essentially the same, the full-timers had measurable additional job functions, different entry and probationary standards and different training, leading to material differences in qualification and skills. The ET therefore found that the two groups were not comparable and dismissed the claim. The EAT upheld the decision. The CA concluded that although the two groups worked under the same type of contract, they were not engaged in the same or broadly similar work. The majority of the HL accepted that the different types of contract listed at Reg 2(3) were mutually exclusive, so as both groups were working under a Reg 2(3)(a) contract of employment, the part-timers could not also be under a “different type of contract” under Reg 2(3)(f). The purpose of Reg 2 is simply to provide a threshold to require the comparison between full and part-time workers to take place, and overcoming that hurdle paves the way for a sensible appreciation of what is or is not less favourable treatment under Reg 5. Part-time and full-time employment are inevitably different in a number of ways, but the purpose of the Regs is to secure that part-time employment is treated equitably. If the Reg 2 threshold is too high, the Regs would apply only in the most straightforward situations. Reg 2 does not require that a contract be treated as being of a different type from another just because it provides different terms and conditions: there may be variations and differences within a type, but they have something bringing them together within the same category. The ET also erred in finding that the two groups were not engaged in broadly similar work. The ET had viewed its task as similar to that under the Equal Pay Act, but there is an important difference between the two tests. The Regs contain no reference to “differences of practical importance”. Thus, although the work must be looked at as a whole, the key question is not whether the work done by the two groups is different, but whether it is broadly similar. This is important because the Regs invite a comparison between two types of worker whose work will almost inevitably differ to some extent. Having assessed the differences as having low, medium or high importance, the ET did not assess the weight that should be given to the similarities and address the question whether, notwithstanding the full-timers’ additional job functions, the work was broadly similar. Two important factors are the extent to which the work is exactly the same, and the extent to which the shared work is important to the enterprise as a whole. Where both groups spend much of their time on the core activity of the enterprise, the fact that the full-timers perform additional tasks would not prevent the work being regarded as broadly similar. Failing to assess the matter in this way brings a risk of giving too much weight to differences which are in fact the almost inevitable result of one group being part-time and the other full-time. The case was therefore remitted to the tribunal to reconsider whether the work was broadly similar. As to less favourable treatment, it was observed that it was possible that in some cases a less favourable term might be balanced by a more favourable one so that on an overall view it could not be said that there was less favourable treatment or that any difference was not justified. However, on the facts of this case it was difficult to see how the differently structured pay packages of the two groups could justify, for example, the exclusion from the pension scheme.

New Southern Railway Ltd v. Quinn; 28/11/05 (EAT/0313/05); IDS Brief 798 p3; Daily Telegraph 26.01.06; [2006] IRLR 266; EAT
Sex discrimination – Health & Safety – Demotion during pregnancy
See above (discrimination)

MacCartney v. Oversley House Management; 31/03/06 (EAT/0500/05); IDS Brief 801 p6
Working Time – National Minimum Wage – time spent by care worker on call
M was a care manager for O, a residents’ association for a housing estate for the elderly. O provided her with a flat at the top of one of the buildings on the estate where she could live rent-free. M was required to work 4 days per week providing 24 hour cover on site. Most of her duties were performed between 8am and 6:30pm, but she was required to respond to emergencies, to be available on a mobile phone and to be within a three-minute radius of the site whilst on duty. EAT decision that time spent on call amounted to “working time” and therefore could not be a “rest period” for WTR purposes, even though she was permitted to rest and sleep whilst on call in the flat provided. O was therefore in breach of provisions about rest periods. Decision that it is necessary to take time spent on-call into account when assessing whether national minimum wage has been paid. The EAT had regard to recent ECJ decisions, particularly that of Landeshauptstadt Kiel v. Jaeger.

Thomson v. Health & Safety Executive;20/10/05 (EATS/35/05); [2006] ICR Part 3 “Recent points” pxi; EAT (Scotland)
Holiday pay – carrying forward of holiday after termination – payment – Working Time Regs
T was entitled to 30 days’ leave a year under his contract. At H’s discretion this could be carried forward after termination of employment. T was dismissed. He had taken 16 ½ days’ leave in the current year prior to dismissal, his statutory entitlement being 18 days. T claimed under WTR for payment for leave not taken based on his contractual entitlement. The ET dismissed his claim on the basis that H had not exercised its discretion to carry forward the contractual entitlement and Reg 35 protected only the statutory entitlement. He was only entitled to 1 ½ days’ pay, and he was not entitled to an order as he had been overpaid by more than that amount. The EAT dismissed T’s appeal. The essential issue was whether the WTR had effect so as to entitle the employee to pay in respect of leave not taken based on annual leave entitlement of 4 weeks or based on contractual entitlement to leave. Where an employee left without having taken all the leave to which he was entitled in that leave year, the employer was required to pay compensation in accordance with Reg 14 WTR, and the reason for departure was irrelevant for that purpose. However, that protection and the provisions of Reg 14 clearly applied only to the 4 weeks’ leave. There was nothing in WTR that would render void a contractual provision purporting to limit or exclude any entitlement to leave (or compensation in lieu thereof) in respect of any period beyond the protected 4-week period. Any such exclusion or limitation would therefore survive in relation to such a period. His contract gave him no right to be paid for contractual leave over and above the protected statutory period. It conferred a discretion on H to agree to do so, but that discretion was not exercised in his favour so he had no contractual entitlement to pay for leave not taken.

Balfour Beatty Power Networks Ltd v. Wilcox; [2006] IRLR 258; EAT
TUPE Regulations – whether there was “economic entity” – whether entity was “labour intensive”
W contracted with H for a number of street lighting services, each contract being operated by H as a separate entity with its own supervisor, foreman, employees and administration. Two contracts were a jointing contract and a contract relating to aerial supply. H unsuccessfully bid for the renewal of the contracts. B was awarded the jointing contract and the aerial contract was awarded to I. Neither B nor I treated the change as falling within TUPE. The claimants were employees of H who were not taken on by the new contractors. The ET referred to the decision of Cheesman v. Brewer and held that in both cases there was an economic entity capable of transfer which retained its identity following transfer. In the case of B, the ET found that there would have been a TUPE transfer if the employees had been taken on and that the reason they were not taken on was because of B’s attempt to avoid TUPE. In the case of I, the ET found that the majority of the workers became employed by I, and that the reason the labourers did not transfer was “connected with the attempt to avoid the TUPE Regulations applying”. Before the EAT it was argued inter alia that the ET erred in characterising the entities as “labour intensive”, in that equipment and plant was significantly necessary for the operations, and that the ET wrongly focussed on the fact that material and plant was leased as lessening the significance of the fact that there was no transfer of plant and materials from H to B or I – it was argued that because of the significance of the plant and materials, there could be no transfer without the material and plant being transferred. It was also held that the ET failed to have proper regard to the number of employees transferred. The EAT allowed the appeal in part. The ET did not err in finding that there was an “economic entity” in both contracts. “Economic entity” for the purposes of the EC Business Transfers Directive means an organised grouping of resources which has the objective of pursuing an economic activity, whether the activity is central or ancillary. B said that the jointing contract involved no exclusive right on the part of the contractor to execute the work and no guarantee of work, the contract merely supplementing the principal’s own jointing resources, so that the work was capable of collapsing at short notice and there was “defeasibility”. Whether the test set out in the Directive is met is essentially a question of practicality, and not to be defined by legal constructs other than those implicit in the Directive itself. The Directive is directed towards safeguarding employees’ rights when there is a change of employer. If those working under a contract such as the present did not collectively constitute an undertaking, no matter how long they had worked or how carefully they were organised and structured, then any change of employer would not be subject to TUPE because the underlying contract would not provide the necessary stability. This would defeat the purpose of the Regs and make no practical sense, and would encourage would-be employers wishing to avoid TUPE consequences to ensure that contracts were “defeasible”. The ET did not err in describing the entity as “labour-intensive” where it was agreed that equipment was of importance. The case was not one of an unskilled workforce: workers’ skill and training was relevant. The ET was therefore entitled to conclude that labour played a significant part in the entity. The fact that there was no transfer of materials or plant did not mean that there could be no transfer. Where the transferor chooses to lease equipment rather than own it, it is not of critical importance that the equipment is not transferred if the transferee similarly leases identical equipment. In the aerial supply contract, the ET was entitled to find that a major part of H’s workforce transferred, and that the same work was being carried on by almost the same people with the same objective. However, in the jointing contract, the ET erred, having found that the operation was labour-intensive, in not deciding whether there was a failure by B to take on a major part of the workforce in terms of numbers and skills, when 17 of 23 employees were found placements within H. The ET failed to have clearly in mind the need to balance the undertaking as it was in B’s hands against what it had been in H’s hands to see whether it continued to operate as an undertaking. The matter was remitted to a freshly constituted tribunal.

Flett v. Matheson; [2006] EWCA Civ 53; [2006] IRLR 277; IDS Brief 800 p5; CA
Whether contract of employment exists – Apprenticeship
F worked for M from 2002 as a labourer. In September 2002 he entered into an “individual learning plan” under the modern apprenticeship scheme for the electrical contracting industry, the parties to the learning plan agreement being F, M and a government-funded training provider, J, operating under the Learning and Skills Council and the industry’s Joint Industry Board. The training period was to be 42 months, during which M would pay F, provide work experience and allow access to the training, such training being carried out by J. M dismissed F without notice before the end of his training. He made various ET claims including breach of contract and unfair dismissal. He claimed that, as he was working under a contract of apprenticeship, he was entitled to damages for breach of contract for the period of the training, and losses sustained as a result of not being trained. He therefore claimed over £50,000. If, in the alternative, he was employed under a contract of employment, he was entitled to a week’s notice of termination. The ET concluded that there was neither a contract of employment nor one of apprenticeship. The EAT held that there was a contract of employment but not one of apprenticeship, because the agreement differed from a traditional common law apprenticeship contract in several important aspects, including that the employer bore the obligation to educate and train under a traditional contract. The EAT therefore awarded damages of one week’s wages. The CA allowed the appeal and remitted the matter for further findings of fact, holding that the ET and EAT both erred in holding that F was not employed under a contract of apprenticeship in the circumstances. Such a modern agreement can constitute a common law contract of apprenticeship. The important issue is the nature and duration of the employer’s obligations under the agreement. The fact that the training is provided by a third party is not crucial when analysing those obligations. In the present case, there were the essential features of an apprenticeship. The contract of employment was varied or overlaid by the training arrangements, giving rise to additional obligations on the employer. The learning plan, called an “apprenticeship”, provided for on and off-job training over a lengthy period. What occurred at the workplace formed part of the training. While the employer did not provide the more academic part of the training (and there was an obvious advantage to all parties in this being arranged by a specialist organisation at a college), he was required to give time off for it and to fund the cost of classroom attendance. It was not open to M to dismiss on reasonable notice, subject to making reasonable efforts to find another employer willing and able to continue the training. If those efforts failed, save in certain specified circumstances M’s obligations remained and F could not be dismissed within the training period.

Flett v. Matheson; [2006] EWCA Civ 53; [2006] IRLR 277; IDS Brief 800 p5; CA
Whether contract of employment exists – Apprenticeship
See above (apprenticeships and trainees).

Percy v. Church of Scotland Board of National Mission; Times 16/12/05; Independent 20/12/05; IDS Brief 798 p9; [2006] IRLR 195; [2006] ICR 134; [2006] 2 WLR 353; HL
Whether or not contract of employment exists – Church minister
Reported in the January and February updates. Now also reported at [2006] 2 WLR 353.

Prater v. Cornwall County Council; Independent 28/02/06; Daily Telegraph 02/03/06
Whether or not contract of employment exists – teacher engaged regularly as home tutor by local education authority
P (who brought a test case backed by the NUT) was a teacher in C’s Education Out of Schools Service between 1988 and 1998. C engaged her as a home tutor to teach children unable to attend school. C was under no contractual obligation to offer pupils and she was under no contractual obligation to accept them. However, once she agreed to take on the work she was obliged to fulfil the commitment to that pupil and C was obliged to continue to provide that work until the particular engagement ended. C brought ET proceedings claiming a declaration of written particulars of employment covering 1988 to 1998. She relied on numerous individual teaching contracts during the period and on the continuity provisions of s212 ERA to bridge the gaps. C contended that she had a series of short fixed-term individual engagements, none of which was a contract of service because of the lack of an irreducible minimum of continuing mutuality of obligation. The ET found that P was C’s employee. There was mutuality of obligations during each individual assignment, and in between contracts s212 operated to bridge the gaps. C appealed unsuccessfully to the EAT. The CA said that once a contract for home tuition had been entered into, and while it continued, P was under an obligation to teach and C to pay her for teaching the pupil made available under that contract. Thus each contract was one of service. S212 took care of the gaps and secured continuity. P was entitled to be regarded as an employee.

Dike v. Rickman; Times 07/12/05; IDS Brief 800 p7; High Court (QB)
Tort – negligence – references – reference to sexual harassment in reference
Reported in the January update. Now also reported at IDS Brief 800 p7.

Age discrimination
The final draft regulations on age discrimination were laid before parliament on 9th March and await parliamentary approval. They are due to come into force in October 2006.

Paternity leave
The DTI has launched consultation on proposals to provide for additional paternity leave of up to 26 weeks, some of which may be paid if the mother has gone back to work. The consultation runs until May 2006 with a view to the new rules coming into force in April 2007.

Transfer of Undertakings
The new TUPE regulations will come into force on 6th April 2006.

Race discrimination
The final version of the CRE new statutory Code of Practice on Racial Equality in Employment has been laid before parliament and is due to come into force on 6th April 2006, replacing the existing code. It can be viewed at the Commission for Racial Equality website.

Disability discrimination
The DRC has launched consultation on whether the statutory definition of disability should be widened such that the law protected against discrimination on grounds of impairment, regardless of the level or type of impairment.