Barlow v. Badrick t/a Cut and Dry Barbers Shop; 1302167/05; EOR 152 p.25; ET
Sex discrimination – pregnancy – summary dismissal
ET decision that there was summary dismissal which amounted to sex discrimination and unfair dismissal when an employee at a small barber shop was told to get her things together and leave when she told her employer she was pregnant. When asked why he was sacking her, the employer said that he could not be bothered with “all that maternity stuff”, that B would be more trouble than she was worth, and “Don’t bother to sue me; it will be your word against mine”.

Booth v. Network Rail Infrastructure Ltd; 1801322/05; EOR 152 p.27; ET
Sex discrimination – recruitment and selection – contradictory reasons
ET decision that contradictory positions taken by N as to its reasons for not appointing B to a particular position in a reorganisation gave rise to a clear inference for the purpose of a prima facie case. N failed to offer any cogent explanation to discharge the reverse burden. Finding of sex discrimination.

Brash-Hall v. Getty Images Ltd; Telegraph 18/05/06
Unfair dismissal – sex discrimination – remedy – severance payment
See below (unfair dismissal).

Busby v. Connect Personnel Ltd; 1101068/05; EOR 152 p.26; ET
Sex discrimination – pregnancy – demotion after pregnancy announced
ET decision that C (a recruitment consultancy) discriminated on grounds of sex when it demoted a branch manager to the position of consultant after she announced her pregnancy. C’s evidence that the demotion was on grounds of performance was considered by the ET to be “unconvincing”. Although this was a fundamental breach of contract, a constructive dismissal claim was not made out on the evidence.

Cheshire and Wirral Partnership NHS Trust v. Abbott & others; The Times 10/05/06; CA
Sex discrimination – indirect discrimination – comparators – appropriate pool
A and others were domestics at 2 of C’s hospitals. They claimed indirect sex discrimination because they received no bonus although porters at the same hospital were paid bonuses for work said to be of equal value. The porters were predominantly male and the domestics predominantly female. However, bonuses were also paid to caterers, more of whom were women, but the claimants excluded them from the comparator group. That was held to be arbitrary and contrary to the principles in Enderby v. Frenchay Health Authority (C-127/92). The CA held that when choosing the group of “advantaged” employees as comparator, the whole advantaged group should be chosen where possible. A section of that group should not be arbitrarily excluded, as a comparison between the claimant group and a larger comparator group is likely to be more reliable statistically. Thus, logic demanded that the claimants compared themselves with the entire pool of workers who received the advantage denied to them, in other words the porters and caterers taken together. On the statistics, however, there was still a prima facie case of indirect sex discrimination.

Clarke & Others v. Redcar & Cleveland Borough Council; Wilson & Others v. Stockton-on-Tees Borough Council; [2006] IRLR 324; EAT
ET Procedure - Conciliated settlements & compromise agreements – Sex Discrimination – Equal Pay
See below (ET procedure)

EB v. BA; [2006] EWCA Civ 132; [2006] IRLR 471; CA
Sex discrimination – transsexuals – shifting burden of proof – evidence
E was from 1997 a principal in the financial services group of B (a management consultancy business). In 2000 she went male to female gender reassignment. In 2001 she was selected for redundancy and dismissed, purportedly on the basis of her monthly billings at a time of downturn. E claimed that she could not bill because she was not allocated work on the grounds of her gender reassignment, and that this amounted to discrimination, as a result of which she was dismissed. The ET dismissed the claim of discrimination on the evidence. The EAT allowed E’s appeal and remitted the case to a freshly-constituted ET. The tribunal erred in finding that E was not discriminated against in the redundancy selection. It was wrong to hold that the burden of proof did not shift to B in relation to the period between E’s transition to a female role (April 00) and her surgery (November 00). It found that there was no significant reduction in her billability during that period. However, she was only assigned to 3 projects at proposal stage during that period. The ET should have found that the burden shifted in respect of the period from May 2000 to dismissal, during which period E worked on only 3 projects out of over 200. B had to justify this fact and the non-selection for proposed projects. If there is discrimination, one is likely to see it in a failure to involve the employee at the proposal stage. By concentrating on billability, the tribunal did not analyse adequately the pre-November 2000 situation or the nature and quality of the work undertaken by E following reassignment (during which time she was only allocated to one new client). If E’s evidence was accepted, it would be wrong to assume that the reassignment had no impact. On the facts, B could only discharge the burden of proof by way of detailed analysis of the projects to which E was not assigned. Without that analysis, it was very difficult to see how B could justify the paucity of allocation of work over such a long period. Once the burden had shifted, the consequences of the absence of documents from B could only be adverse to B. The failure was not E’s and deprived B of the opportunity to rebut the prima facie case against it. Employers should not be able to escape the provisions of s63A SDA by leaving it to the employee to prove her case. It is important to bear in mind the objectives of s63A at the pre-hearing and hearing stages. If the employer simply adopts a stance of “you prove it”, claimants challenging large corporations, particularly with limited or no means, face a great disadvantage, rendering the reverse burden of proof of little or no use.

Ennever v. Metropolitan Police; 07/03/06 (EAT/51/06); [2006] ICR Part 5 “Recent points” p.xiii; EAT
ET procedure – claim form – amendment – discrimination – type of discrimination – protected disclosure
See below – ET procedure.

Griffiths-Henry v. Network Rail Infrastructure Ltd; 2200451/05 & 3201416/05; EOR 153 p.28; ET
Sex and race discrimination – subjectivity in redundancy selection – direct discrimination
ET decision that redundancy process tainted by subjectivity, leading to findings of race and sex discrimination. G had proven facts from which it could be concluded that there was discrimination in the absence of an adequate explanation, in that G (a black female) had not been selected as a successful candidate in the redundancy process when 5 white men were. Although the selection criteria were objective, the process was tainted by subjectivity and N failed to discharge the reverse burden to show that the process was not tainted by discrimination. G succeeded in her discrimination and unfair dismissal claims.

Hayzelden v. Williams; 1100217/05; EOR 152 p.26; ET
Sex discrimination – pregnancy – advertisement posted after dismissal – inference
ET decision that it was appropriate to infer from matters including the timing of the dismissal and an advert shortly thereafter seeking a replacement with “no children”, that H’s dismissal was due to pregnancy and was sex discrimination.

High Quality Lifestyles Ltd v. Watts; 10/04/06 (EAT/0671/05); IDS Brief 806 p.3; EAT
Disability discrimination – direct discrimination – comparators – HIV
In considering direct discrimination, DDA s3A(5) requires comparison with an actual or hypothetical comparator “whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person”. W was an HIV positive care worker for H, who provided specialist services to service users with learning disabilities and autistic spectrum disorders. On promotion to acting shift leader, W told H that he was HIV positive and gave permission for a report to be obtained from his doctor. The doctor stated that “the risk of onward transmission of HIV from occupational exposure is very small”. H told W that it would be carrying out a risk assessment but that it was highly likely that he would be considered high risk and dismissed. He was suspended. The risk assessment was carried out but not specifically in respect of W’s condition. The assessor noted that H’s employees frequently sustained bites and injuries from service users, often resulting in broken skin, and that there was a high risk that this could lead to transmission of HIV and other infectious diseases. However, his conclusion was at odds with the then current Department of Health guidance on HIV infected health care workers, which stated that the risk of transmission was “theoretical” and that care workers should not be prevented from working with patients simply because of a risk of a broken skin injury. H told W that in the light of the risk assessment his position was untenable, and dismissed him, later dismissing his appeal. He claimed disability-related discrimination under s3A(1), direct discrimination by dismissal under s3A(5) and failure to make reasonable adjustments. The ET, when considering his direct discrimination claim, constructed a hypothetical comparator who was in exactly the same position as W but for his HIV positive status. It found that such a person would not have posed any risk of transmission, and as that was the reason for dismissal, and there was a causal link between that risk and W’s HIV status, there was less favourable treatment. The EAT had to consider whether the correct hypothetical comparator should also have been someone posing the risk of a communicable life-threatening disease. The EAT considered that the word “including” in the definition of the comparator meant that the relevant circumstances are wider than just abilities. In this case, the tribunal correctly assumed the same abilities, skills and experience. However, it failed to impute an attribute (whether by way of medical condition or otherwise) which carried the same risk of causing illness or injury to others as W’s condition did. Only by imputing such a characteristic could the tribunal properly compare the two and consider whether the comparator would also have been dismissed. If they would, the logical conclusion would be that W was not treated less favourably on ground of disability. The finding of direct discrimination was therefore set aside. However, the findings of failure to make reasonable adjustments and disability-related discrimination were upheld.

Hoyland v. Asda Stores Ltd; [2006] CSIH 21; IDS Brief 804 p.6; Court of Session
Equal pay – sex discrimination – bonus
See below (Pay).

Mannell v. Clinton Cards plc; 2304416/04; EOR 152 p.25; ET
Sex discrimination – pregnancy – risk assessment
ET decision that C’s failure to carry out a specific risk assessment in respect of the pregnancy of M (a store manager) caused her to resign and was direct discrimination on grounds of sex. M, who had no understanding of what was required, was instructed to do the assessment herself and it was then lost and not acted on. Had C acted properly the assessment would have revealed that M was undergoing a high-risk pregnancy and suffering from work-related stress relating to various conditions of her employment. It would then have acted to alleviate the risk to her pregnancy caused by working conditions and M would not have felt compelled to resign. The failure was a detriment and was discrimination and gave rise to constructive dismissal.

Miles v. Gilbank; [2006] EWCA Civ 543; IDS Brief 806 p.7; CA
Sex discrimination – fostering and encouraging discriminatory culture – manager’s liability
EAT decision reported in the December, January and February updates. G was a senior hair designer and trainee manager in a hairdressing salon. There was a friendly atmosphere until she informed M, the salon manager and majority shareholder, that she was pregnant. G brought a claim of sex discrimination against the salon and M personally in respect of events that followed. The ET found that the company conducted no risk assessment and made no adjustments to working practices to accommodate G’s condition, inter alia still requiring her to administer bleach. G was ignored and there were unsympathetic remarks. The ET concluded that there was an inhumane and sustained campaign of bullying and discrimination by M and other managers which was targeted, deliberate, repeated, consciously inflicted and showed a total lack of concern for G’s welfare or the life or her unborn child. The company was liable the actions of M and others, and M was personally liable for her own discriminatory acts and those of others which she had aided and abetted. The ET awarded the maximum possible for injury to feelings (£25,000) and made M and the company jointly and severally liable for this and for unpaid maternity pay. M appealed on the basis that the award was manifestly excessive and that the joint and several award was an error. The EAT dismissed the appeal. On appeal to the CA, M added the ground that the finding of her liability for the acts of others was an error. The CA dismissed the appeal. In respect of liability for others, the court had regard to Anyanwu v. South Bank Student Union which held that “aids” in the RRA should be given its plain and ordinary meaning. The ET had, consistently with this approach, identified various acts of unlawful discrimination by other managers. M consciously fostered and encouraged within the salon a discriminatory culture which targeted G and made it clear to the other managers by her own conduct and her approach to complaints that the treatment was acceptable. She could have ended the discrimination but encouraged it. The ET was entitled to find that she was liable (Sedley LJ reached the same conclusion by different reasoning). The CA held that the award of £25,000 for injury to feelings was justified and not excessive.

New Southern Railway Ltd v. Quinn; 28/11/05 (EAT/0313/05); IDS Brief 798 p.3;Daily Telegraph 26.01.06; [2006] IRLR 266; [2006] ICR 761; Current Law May 06 para182; EAT
Sex discrimination – Health & Safety – Demotion during pregnancy
See reported in the February update Also reported in the March update. Now also reported at [2006] ICR 761 and Current Law May 06 para 182.

Obu v. The Salvation Army UK Territory; 2302868/05; EOR 153 p.29; ET
Sex discrimination – lack of flexibility due to childcare commitments – dismissal
ET decision that a male employee dismissed in part because of his lack of flexibility due to childcare commitments amounted to sex discrimination. O was employed to implement and support a payroll system, which might require flexibility in case of emergencies. The ET found that O proved facts from which it could be concluded that he was subjected to sex discrimination. Although he mentioned at interview that he had a young child, he was not asked about childcare responsibilities. It was inferred from the evidence about S’s attitude to women with childcare responsibilities that S would have asked those questions of a woman. S provided no explanation as to why it did not explore with O whether there was a way of meeting its requirements and dealing with his childcare responsibilities. Had he been a woman, S would have done this and could have found a way of dealing with emergencies, since this was not a problem in other departments with potential emergencies, in some of which women with childcare responsibilities worked. Discrimination therefore contributed to the decision to dismiss. However, the ET concluded that O would still have been dismissed on the basis of lack of communication skills, so compensation was limited to that for injury to feelings.

Owers v. Devon Fire and Rescue Service; 1700941/05; EOR 153 p.30; ET
Sex discrimination – comparison with treatment of female complainant
ET decision that a male firefighter was treated less favourably than a female colleague who had made complaints about him. After the complaint, the two were separated and restrictions were put in place to avoid contact. O complained that his colleague breached those in an attempt to provoke a further incident and manufacture a further complaint. No steps were taken to investigate this complaint. The personnel officer said in evidenc ethat had O been a woman the matter would have been handled differently. O brought a grievance which was not investigated. O agreed to mediation as a means of resolving his colleague’s complaint but this was not pursued by D. The ET concluded that the treatment afforded to O was less favourable compared with the comparator complainant. Any complaint by her was investigated, whereas O’s complaint was not. An inference could be drawn that the less favourable treatment was attributable to gender and D did not discharge the reverse burden of proving that it did not discriminate.

Rose v. Royal Mail Group plc; 2301339/05 & 2301869/05; EOR 153 p.29; ET
Sex & race discrimination – dismissal excessive response to conduct
ET decision that dismissal of a black female for abusive behaviour towards a manager was an excessive response and was discriminatory on grounds of sex and race. On the facts a prima facie case was made out and RM’s explanation was unsatisfactory to disprove sex or race as factors in the dismissal. The penalty was excessive in all the circumstances as a response to a first disciplinary charge. The dismissal was unfair and amounted to discrimination.

Royal Liverpool Children’s NHS Trust v. Dunsby; [2006] IRLR 351; EAT
Disability discrimination – justification – unfair dismissal – capability – health
D was a staff nurse caring, often one-to-one, for critically ill children. She was dismissed on grounds of her sickness absence record. R followed its 4-stage sickness absence procedure. By the time of dismissal, D had been on sick leave for 38% of her working time over the previous year, for various reasons. She had been seen by occupational health professionals, who had reported that the absence was essentially due to problems in her personal life. D, however, claimed that some absences were due to migraines caused by gynaecological problems, which would not recur because of a change of medication. The ET assumed that the gynaecological problems amounted to a disability and concluded that D had been unfairly dismissed for a reason related to disability. Two relevant absences related to the migraines caused by medication. If these had been ignored on the basis that they related to a disability, then D would not have reached Stage 4 by June 2004 and would not have been dismissed. The ET went on to conclude that the decision to dismiss was not justified because but for the disability-related absences D would not have been at risk of dismissal. The ET also upheld the unfair dismissal claim on the basis that it was not reasonable to include disability-related absences as part of the “totting-up” process leading to dismissal. The EAT allowed R’s appeal and remitted the matter to a freshly constituted tribunal. The ET erred in finding that the decision to dismiss could not be justified. The DDA does not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or partially on grounds of disability-related ill health. An employer may take into account disability-related absence when operating a sickness absence procedure. It is rare for a sickness absence procedure to require that such absences be disregarded. Whether or not an employer acts unlawfully by counting those absences will generally depend on whether or not the employer is justified in so doing. In this case, the ET failed to consider justification. It is not an answer merely to say that the dismissal was because the employee was absent on disability-related grounds: that is simply the starting point. The ET also erred in finding that the dismissal was unfair. There is no absolute rule that an employer operating a sickness absence procedure acts unreasonably by including disability-related absences in a totting-up review process or as part of a reason for dismissal on grounds of repeated short-term absence.

Secretary of State for Trade & Industry v. Rutherford (No 2), Same v. Bentley; [2006] UKHL 19; [2006] ICR 785; The Times 08/05/06; IDS Brief 805 p.3; HL
Unfair dismissal – Upper age limit – Sex discrimination – indirect discrimination
See below (unfair dismissal)

Serco Ltd v. Redfearn; [2006] EWCA Civ 659; IDS Brief 807 p.5; CA
Race discrimination – elected BNP councillor working with people of Asian origin – dismissal – whether decision to dismiss was racial discrimination – racial considerations
R was employed by S in the Bradford area as a driver for children and adults with disabilities. 70-80% of the passengers and 35% of S’s workforce were of Asian origin. R was a BNP member and was a candidate in local elections in May 2004. Following a newspaper article identifying him as a candidate, S received representations from union and workforce expressing concerns about R’s continued employment. He was dismissed on health and safety grounds. S was concerned that R’s public membership of the BNP would jeopardise passenger and employee safety and harm its reputation. At the time of his dismissal, R was engaged only in transporting mail, not passengers, and had less than a year’s continuous employment. He claimed direct and indirect race discrimination. The ET had regard to Showboat Entertainment Centre Ltd v. Owens where it was held that “on racial grounds” can cover “any reason for an action based on race, whether it be the race of the person affected or others”. It concluded that that authority did not apply because it was concerned with a case where employees were asked to carry out a discriminatory act by an employer. In any event, the ET found that R was dismissed on health & safety grounds. As to indirect discrimination, the ET found that S applied a discriminatory reason (that to be employed, R must not be a BNP member) but that S was justified by the need to protect health and safety of passengers, staff and property. The EAT allowed R’s appeal. The definition of “on racial grounds” in Showboat did apply and could not be construed narrowly as the ET did. Having concluded that the dismissal was on health & safety grounds, the ET failed to ask itself the crucial question of whether racial grounds (broadly defined) had a significant influence on the decision to dismiss. Further, the ET had not indicated the evidence on which it relied in finding the indirect discrimination justified. The EAT ordered that the claims should be remitted. The CA, however, allowed S’s appeal and held that the ET was correct to distinguish R’s case from the Showboat cases. To hold, as R contended, that “on racial grounds” covers any case in which the less favourable act is significantly informed by racial considerations, attitudes or associations even if the race is that of a third party, was wrong in principle and inconsistent with the policy of race relations legislation. S’s decision to dismiss clearly involved racial considerations, but R was no more dismissed “on racial grounds” than an employee dismissed for racially abusing an employer, colleague or customer. The CA also rejected the argument that because R was dismissed on the basis of BNP membership, which was confined to white people, he was dismissed because he was white. He was dismissed because of BNP membership. The dividing line of colour or race was not made by S but by the BNP itself. S would have applied the same approach to a member of a political party confining its membership to black people. R could not credibly bring a race claim by relying on the decision of his own chosen political party to limit its membership to white people. R had failed to provide the ET with a case on which it could properly make a finding of indirect discrimination, so it was unnecessary to express a view on the justification issue raised by R.

Smith v. Churchill Stairlifts plc; [2005] EWCA Civ 1220; [2006] ICR 524; Current Law May 06 para 170; CA
Disability discrimination – Reasonable adjustments – justification
S had lumbar spondylosis, causing difficulties with walking and lifting. He applied to C for a position as a salesman, explaining his disability when he applied. The job entailed demonstrating radiator cabinets in clients’ homes. C offered S a place on a training course. If he completed it successfully he would be employed as a salesman. C later decided that salesmen would be required to transport a full-sized sample cabinet as a sales aid and that S would be unable to do this. It withdrew the offer of a training place. It refused to grant S’s requests for a trial period on a commission-only basis, or to use as a sales aid a modified and lighter cabinet which he had made. S claimed disability discrimination. The ET found that the duty to make reasonable adjustments did not arise because the requirement to carry the cabinet did not place S at a substantial disadvantae because the majority of the population would have found it difficult. If the duty had arisen, the ET said that it would have concluded that C failed to make a reasonable adjustment in the form of a trial period selling by other means. In respect of direct discrimination, the ET found that although S was treated less favourably, the requirement to carry the cabinet was for a material and substantial reason and therefore justified. The ET dismissed S’s appeal. The CA upheld S’s appeal. In considering the issue of whether there was a disadvantage and the duty to make adjustments arose, the ET erred in confining the relevant “arrangements” to the requirement to carry the full-sized cabinet. It should have included as part of those arrangements the fact that the offer of a training place was susceptible to withdrawal if the job applicant was, or was believed to be, unable to carry the cabinet. Only after properly identifying the “arrangements” could one proceed to consider whether they placed S at a disadvantage and identify the proper comparator. Since the relevant arrangements included susceptibility to withdrawal of the offer, the appropriate comparators were the others admitted to the training course. Clearly S was at a substantial disadvantage compared with them. The duty arose. Whilst the test of reasonableness of a given step is objective, and ultimately the ET’s view of what is reasonable is what matters, the burden is on the employer to show justification and the ET has to consider whether its reason is material and substantial. Something which might otherwise be justifiable under s5 could still result in a failure to make adjustments under s6. Thus the ET was correct in accepting the commercial justification under s5, but also finding that it would have been a reasonable adjustment under s6 to allow sales by different methods on a trial basis. A decision that C discriminated was substituted for the ET’s finding.

South East Essex College v. Abegaze; [2006] ICR 468; Current Law May 06 para 180; EAT
Race discrimination – ET procedure – just and equitable extension – discrimination after the employment relationship has ended
See reported in the April update. Now also reported at Current Law May 06 para 180.

Southampton City College v. Randall; [2006] IRLR 18; Current Law May 06 para 169; EAT
Disability discrimination – reasonable adjustments – creation of new post – whether reasonable adjustment – necessity of assessment of what adjustments are required
Reported in the January update. Now also reported at Current Law May 06 para 169.

Stec & others v. UK; Times 26/05/06; ECHR
Sex discrimination – Art. 14 ECHR – reduced earnings allowance & retirement allowance – link to state pension ages – discrimination
The applicants all complained about sex-based differences in eligibility for earnings-related benefits payable to employed or formerly employed people who suffered impaired earning capacity from work-related illness (reduced earnings allowance and retirement allowance). Before 1986 these benefits were still payable after retirement age, concurrently with the state pension. After 1986, cut-off ages were imposed which were the same as those for the state pension scheme (65 for men, 60 for women). The ECJ ruled that this was not incompatible with EC law. The applicants complained to the ECHR that the scheme was discriminatory on grounds of sex and in breach of their human rights, relying on articles 1 & 14. The ECHR held that the policy decision to stop paying the benefits to those who would otherwise have retired from paid employment, and to link that to state pensionable age, pursued a legitimate aim and was reasonably and objectively justified. The question was whether the underlying difference in the state pensionable age scheme was acceptable under Art. 14. Having considered the original reasons, history and current position in respect of the differential state pension ages, the ECHR held that the difference continued to be reasonably and objectively justified until such time that social and economic changes removed the need for special treatment for women. The UK’s decisions as to the precise timing and means of putting right the inequality were not manifestly unreasonable. There was no violation of Arts 1 & 14.

Taylor v. OCS Group Ltd; Telegraph 08/06/06; CA
Unfair dismissal – fairness of proceedings – appeal – review – disability discrimination
See below (unfair dismissal).

Tippey v. GSPK Circuits Ltd; 1801885/05; EOR 153 p.31; ET
Sex discrimination – assumption that female employee at fault
ET decision that an employer who assumed that a female employee was at fault in a row with her team leader, who had formed an attachment to her, and therefore gave her a written warning subjected her to discrimination on grounds of sex. The man was only given a warning when managers recognised that they were acting inconsistently. T was treated less favourably and G’s explanation was unsatisfactory. There was sex discrimination and this led to constructive dismissal.

White v. Micklewrights Structures Ltd; 1305008/04; EOR 152 p.24; ET
Sex discrimination – pregnancy – company in administration – failure to offer position in new company carrying out same business
ET decision that an employee on maternity leave when her employer went into administration was subjected to sex discrimination when she was not offered a position with a new company carrying out the same business with the same directors and premises and all workforce (albeit fewer) derived from former employees. On the evidence the company’s reasons for selecting another employee were “disingenuous”, that W had proved facts from which an inference of discrimination could be drawn and that M had failed to discharge the burden upon it.

Woodward v. Corus Hotels plc & Rushton; 1800398/05; EOR 153 p.30; ET
Sex discrimination – questions about children at interviewET decision that C discriminated against W by asking questions at interview about children when considering her for the post of receptionist. W was asked whether she had children. When revealing that she was a single parent she was asked about the consequences for childcare of her working shifts and was told of employees with children who had left. She was asked about the arrangements she would make. No formal assessment was made of her aptitude for the post and the tasks were not explained to her. She was told to be realistic about the consequences of the post on her personal life and that she would be contacted but should stop looking for jobs. She heard nothing further. It was concluded that a hypothetical male would not have been questioned along these lines and that there were facts from which an inference of discrimination could be made, making out a prima facie case. C’s explanation for the failure to appoint did not amount to cogent evidence of an absence of discrimination and the interview questions and failure to appoint amounted to direct discrimination. W was awarded £5,000, reduced to £4,000 on appeal at the EAT, in respect of injury to feelings. This was even though W had sought a lower award: the ET was of the view that a lower award would be regarded as minimal by C, would diminish respect for the SDA and would allow C to continue its discriminatory practices without addressing the circumstances. Although it was a one-off incident, it had a permanent implication for W’s aspirations to enter or return to the job market.

Arnold Clark Automobiles Ltd v. Stewart; 20/12/05; EAT(S)/52/05; [2006] ICR Part 5 “Recent points” p.xiv; EAT
ET procedure – Statutory grievance procedure – what constitutes grievance – without prejudice letter before action by from solicitors
S’s solicitor wrote a purportedly “without prejudice” letter to A, stating an intention to commence tribunal proceedings if settlement could not be reached in relation to claims of constructive dismissal, breach of contract and failure to consult under TUPE. The letter detailed the claims and quantified loss. The ET chairman held that although it was not expressly stated to be a grievance, the letter complied with s32 EA02. A’s appeal was dismissed by the EAT. While the drafting of Reg 6(1) of the Dispute Resolution Regs was poor, the meaning was obvious, namely that the first condition for applicability of the Regs was that the employee had a complaint about action taken or contemplated by his employer in relation to him. Otherwise, the applicable legal principles were simple. In the present case, they gave rise to 2 questions: if S’s solicitor, rather than S, intimated a grievance, was that sufficient to comply? If the written intimation was a letter before action threatening a claim in the absence of settlement and finishing with the words “without prejudice”, was that sufficient to comply? In relation to the first question, there was no good reason why the normal rules of agency should not apply such that a letter from a solicitor would comply. In relation to the second, regard was had to the judgment of Shergold v. Fieldway Medical Centre. There was nothing to present the written grievance being aggressive or being contained in a letter threatening proceedings if demands were not met. Accordingly, the letter was not prevented from being effective to comply with the Regs. The use of the words “without prejudice” did not prevent the letter being viewed as a statement of grievance for the purposes of s32.

BUPA Care Homes (BNH) Ltd v. Cann; Spillett v. Tesco Stores Ltd; [2006] IRLR 248; IDS Brief 802 p8; [2006] ICR 643; Current Law May 06 para 184; EAT
ET procedure – Statutory grievance procedure – relationship with “just & equitable” extensions
Reported in the March and April updates. Now also reported at [2006] ICR 643 and Current Law May 06 para 184.

Butlins Skyline Ltd & another v. Beynon; 20/02/06 (EAT/0042-0045/06); IDS Brief 804 p.11; EAT
ET Procedure – failure to use prescribed response form – rejection – whether “decision” capable of review
B claimed sex discrimination and unfair dismissal. BS presented a prescribed response form within the time limit. However, the Secretary rejected it on the basis that it was not presented on the prescribed form because the boxes on the form were of the wrong size and therefore the ET could not scan the form into its computer system. BS was therefore only able to take limited part in the proceedings. BS sought a review under rule 34. A chairman rejected the review application on the basis that the rejection of the response was not a “decision” and not subject to review. BS appealed to the EAT. The EAT considered the procedural background: a response not made on the prescribed form is automatically rejected by the Secretary as in the present case. If it is made on the correct form, the Secretary considers whether it contains all the required information and was presented within the time limit and if it fails on either point, refers it to the chairman for a reassessment of whether it is valid. If the chairman rejects it under rule 6(2), that decision is capable of review under rule 34. No equivalent provision exists where the Secretary rejects the response under rule 6(1) for failure to use the correct form. In the view of the EAT, because rule 6(6) specifically provides for a review where a response is rejected by a chairman, rule 34(1)(a) must have contemplated some other situation in which a review would arise, namely a decision by the Secretary not to accept it. “Decision” in rule 34(1)(a) did not refer solely to a judicial decision. In any event, this was a sensible and just interpretation of the Rules in line with the overriding objective. Rule 34(1)(a) should be construed as giving a right of review where there has been an allegedly erroneous rejection under rule 6(1) by a Secretary. Rule 9 involved no separate decision, but simply describes the effect of the rejection. The EAT further observed that the Secretary’s decision not to accept was also capable of appeal. However, where both review and appeal are available on a procedural issue, review should be chosen as it is speedier, less cumbersome and less expensive. Parties should be discouraged from appealing against procedural errors when such errors can be corrected by review. BS’s appeal was allowed. Further, the discretion on review could only be exercised in favour of BS. The EAT could see nothing wrong with the size of the boxes. There was no requirement in the rules as to the nature or size of text inserted on the form. The Secretary was not entitled to reject the form on the basis that the manner of insertion of the information caused the boxes to be the wrong size.

Canary Wharf Management Ltd v. Edebi; [2006] IRLR 416; [2006] ICR 719; EAT
ET Procedure – Statutory Grievance Procedures – What constitutes grievance – letter –  Unfair dismissal – Disability Discrimination
E was a security officer. He wrote to C complaining that exposure to traffic fumes in his work had brought on an asthma attack. The next month he wrote stating that C had refused reasonable adjustments to his job and should act under the DDA. The following year he sent a lengthy letter to C raising various complaints about his working conditions and the effect these were having on his health. He did not mention his asthma but did refer to his having previously raised issues relating to his health. He subsequently resigned and brought claims of constructive dismissal, disability discrimination and unlawful deduction from wages. C contended that he had not raised a statutory grievance for the purposes of s32 EA 02 in respect of his DD and wages claims. It was conceded that he had raised a grievance for the purposes of his unfair dismissal claim. The chairman held that the letter of March 2005 also raised grievances in relation to the other claims and that those claims should be allowed to go forward. In respect of the DD claim, he held that the letter indicated “that the claimant is attempting to raise a claim of less favourable treatment on health grounds. He is grieving on the effects of his job on his health as well as on the health of his colleagues … That can be construed as a claim for disability discrimination”. C appealed. The EAT allowed the appeal. The ET erred in holding that the letter amounted to the raising of a grievance under the DDA such as to meet the requirements of s32. The only requirement is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the ET. That must not be approached in a technical way. It would be wrong to require the grievance to be made in an unduly legalistic or technical manner. At the same time, it must not be forgotten that an employer who receives a grievance and is at fault in failing to take matters further is at risk of paying additional compensation if the claim succeeds. He cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged. The objective of s32 can fairly be met if an employer, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised. If the statement cannot in context fairly be read even in a non-technical and unsophisticated way as raising the grievance which is the subject-matter of the ET complaint, then the ET cannot hear the claim and there is no overriding interest of justice which can be invoked to save it. Although there is no maximum time limit prior to lodging an ET claim in which the grievance has to be raised, the act of raising a complaint months or years before the ET claim will not necessarily constitute raising a grievance for s32 purposes. The grievance must be extant, and if it can no longer properly be said to be outstanding, perhaps because it has been dealt with satisfactorily or the employee has not pursued it in circumstances where it may properly be inferred that he no longer wishes to have it determined, then it will be necessary to raise it again. That is not to say that earlier communications are to be ignored: they will sometimes be part of the context in which a later statement is made, and in some circumstances the later statement can only fairly be understood by reference to earlier correspondence. In the present case, the ET was justified in focusing solely on E’s final letter. Although he pointed out in that letter that he had raised issues relating to his health going back some 9 months, the time scale was extensive and no specific reference was made to the detail of the earlier complaints. It was an error to conclude that the letter raised a complaint of disability discrimination. The references to health problems could not be said to have fairly raised, even in a non-technical and unsophisticated way, an issue which C could reasonably understand had arisen under the DDA. He did not specifically identify any failure to make adjustments or less favourable treatment. This was a generalised complaint about adverse consequences to health of C’s conduct.

Clarke & Others v. Redcar & Cleveland Borough Council; Wilson & Others v. Stockton-on-Tees Borough Council; [2006] IRLR 324; EAT
ET Procedure - Conciliated settlements & compromise agreements – Sex Discrimination – Equal Pay
C and W brought equal pay claims against their local authority employers comparing themselves with men in predominantly male-dominated occupations. The claims concerned the employers’ implementation of the 1997 local government single status (“Green Book”) agreement, which was intended to eliminate differences in pay and bargaining structures as between manual and white collar workers using a structure based on job evaluation and equal pay principles. In both cases, the local authorities had not yet implemented the Green Book agreement but was anticipating doing so shortly. In both cases, union negotiations led to a scheme for compensation and compromise agreements were reached and implemented by way of COT3 agreements. In C’s case, the agreement stated that it was in “full and final settlement of all claims the employee has brought or could bring against the employer in connection with the terms of the contract of employment”, and the covering letter said that if the offer was accepted and the COT3 signed, the employee would “give up any statutory right to challenge any equal pay claim you think you have … at an employment tribunal”. C entered into the agreement but then presented an equal pay claim. The ET held that the COT3 agreement was valid to contract out of equal pay and sex discrimination claims, was not void for unconscionable conduct by the employers, and had been affirmed by cashing the cheque. In W’s case, the ET again held that the COT3 agreement precluded a subsequent claim, even though at the time of acceptance, the claimants “were not aware of the possibility that they could receive a more substantial amount if the case was taken to a tribunal and they were successful”. The EAT held that the ET did not err in holding that the agreements reached through an ACAS officer precluded the equal pay claims. Section 77 SDA does not apply to a contract settling an equal pay claim where this is made with the assistance of a conciliation officer. Where the parties make a contract following any attempt by an ACAS officer to promote a settlement, then the contract is made with the assistance of that officer. A contract made with the assistance of ACAS is by definition made pursuant to an endeavour by an ACAS officer to promote settlement for the purposes of s18 ETA 1996. If there is a dispute over whether a settlement is effective for the purposes of s77 SDA, then attention is drawn to what the officer has done, and whether this corresponds to the functions which a conciliation officer has a power to discharge. In determining whether the conciliation officer exercised her functions in order to effect a valid s77 conciliation contract, the following principles apply: (a) the officer has no responsibility to ensure that the terms of the settlement are fair to the employee; (b) the expression “promote a settlement” must be given a liberal construction; (c) the officer must never advise as to the merits of the case; (d) it is not for the tribunal to consider whether the officer correctly interpreted the duties: it is sufficient that he intended and purported to act under the Act; (e) if the officer acts in bad faith or adopts unfair methods when promoting a settlement, the agreement may be set aside and not operate so as to bar proceedings. Nothing in Hennessy v. Craigmyle & Co Ltd is to be taken as suggesting that the officer should advise on the merits of the proposed compromise: ACAS’s view of its function has always been that its officers do not do so. Neither does the officer give legal advice on the meaning of any form of words chosen. The officer’s advice is limited to the fact that the signing of the agreement precludes proceedings in an ET on a subject within the scope of the words of the COT3. The ET did not err in finding that the ACAS officers complied with their statutory duties so as to produce effective COT3 settlements, notwithstanding that they fell short of ACAS best practice by not recommending that the employees seek independent legal advice if unclear as to their rights. It was plainly wrong to suggest that the officers were under a duty to give advice, evaluate the claims and ensure that the employees understood the nature and extent of all their potential claims.

Ennever v. Metropolitan Police; 07/03/06 (EAT/51/06); [2006] ICR Part 5 “Recent points” p.xiii; EAT
ET procedure – claim form – amendment – discrimination – type of discrimination
E’s ET1 alleged discrimination and ticked all boxes in Section 6 of the form except that for sexual orientation. She claimed that on return to work after a career break she was subjected to race discrimination, that attempts to resolve the grievance internally made matters worse, and that after 3 years’ sick leave the discrimination continued. She later sought leave to add complaints, arising from the same facts, of victimisation and detriment following a protected disclosure, following the making of grievances. The chairman refused her application to amend. The EAT allowed her appeal. In order to decide whether the victimisation complaint was a new claim, it was necessary to look at the ET1 (see Ali v. Office of National Statistics [2005] IRLR 201). If a claimant ticks any of the boxes in section 6(1) but gives no details in section 6(2), she has to be taken as alleging discrimination in whatever form discrimination can take, albeit that she would be required to give particulars. If, on the other hand, she gives details in section 6(2) of the form, the details would identify the type of discrimination alleged. If the details did not include discrimination, that would be a new claim and leave to amend would be required. In deciding whether the details in section 6(2) included a victimisation claim, it was necessary to look at the language E used in the context that she was not a lawyer and wrote the content herself. The crucial words were “I have tried to resolve my grievance informally but this has made [the] situation worse”. This could only mean that the discriminatory treatment got worse as a result of the grievance, which was an allegation of victimisation. It was not a new claim and she did not need leave to amend. The PIDA claim was a new claim only in the sense that a new label was being applied to the claim of victimisation already made. Following Selkent Bus Co Ltd v. Moore, this would not therefore be subjected to scrutiny on the basis of time limits and by rejecting it on the basis of limitation the chairman had adopted the wrong approach and should instead have looked at the general principles governing amendments. It might be that the PIDA claim would add little to the victimisation claim, but it would not involve proof of facts over and above those required to prove the victimisation claim and M would suffer no relevant prejudice if the claim was allowed to proceed. Leave would be granted to amend to include the PIDA claim.

Hart v. English Heritage (Historic Buildings and Monuments Commission for England); [2006] ICR 655; EAT
ET procedure – Statutory grievance procedures – relationship with time limits – amendments – whether ruling amounts to “order” – power to reconsider
H was a trade union branch secretary. In April 2004 EH gave him notice of redundancy to take effect in October. In June 2004 he brought sex and race discrimination claims and stated in the details of his complaint that he felt his redundancy selection was because of his union activities. The next day he raised an internal grievance alleging redundancy selection on grounds of union activities and race. He repeated that grievance on 4th October 2004 just prior to dismissal. In March 2005, at a case management hearing, H applied to add claims of unfair dismissal under s98 and by reason of union membership, and race and sex discrimination arising out of the dismissal. The chairman decided that the dismissal-related claims should be treated as fresh claims which appeared to be out of time and should therefore be the subject of a PHR. H sought a review of that decision in the interests of justice, on the basis that his dismissal-related complaints were already within the original claim. The review was refused by a chairman on the basis that she had no jurisdiction to review her earlier decision. At the PHR a different chairman refused H’s application to review the previous chairman’s decision, which he took to be a decision that the claims fell outside the original claim, and rejected the unfair dismissal claims on the ground that it was reasonably practicable to present in time. H appealed, arguing that both chairmen had power to review the case management decision and, had they done so, would have found that the unfair dismissal claims had been made in the original claim and that the grievance in October 2004 extended time. The EAT allowed H’s appeal. The first chairman’s decision was not a decision susceptible to review under rule 34(1), because it was not a refusal to accept a claim but a decision that the new matters should be treated as fresh claims. However, that did not prevent the decision being reconsidered under the general powers to manage proceedings under rule 10. “Order” in rule 10 should be construed so as to cover all decisions taken by an ET in the proper exercise of its case management powers, save where subject to the review procedure in rules 33 and 34. Accordingly the decision was one which could be treated as an aspect of case management and revisited. While in theory there was no limit to the number of times a case management decision could be revisited, in practice it would be extremely rare to revisit an order unless there had been a change of circumstances In an exceptional case reconsideration could be justified where a party wished to argue a potentially significant point not advanced at an earlier hearing. Had the chairmen been asked to reconsider the first decision under rule 10, they would have been entitled to do so as the parties and chairman had proceeded on the assumption that the claim of unfair dismissal for union activities had not been made. Had the matter been reconsidered, the claim would have been permitted to proceed as all the elements had been pleaded, and the appropriate course was therefore to amend the original order by adding the claim of unfair dismissal by reason of union activities. H’s original grievance was made before the dispute resolution regs came into force. Merely repeating a complaint already made did not amount to a fresh grievance, so the regs did not apply so as to extend the time limit. Moreover, under reg 18(a) the regs only applied to a dismissal where the employer first contemplated dismissing after 1st October 2004.

Khan v. Heywood & Middleton Primary Care Trust; [2006] IRLR 345; [2006] ICR 543; EAT
ET procedure – costs – withdrawal of claims
K claimed that H discriminated on grounds of race when his application for a position on H’s professional executive committee was unsuccessful. In the ET3, H denied discrimination and also asserted that the position was not that of an employee so there was no jurisdiction. K withdrew his claim and the ET closed the file. However, K then sought advice from the Bury Racial Equality Council, who wrote on his behalf to the ET seeking to set aside the notice of withdrawal and list the matter for a PHR. H applied for dismissal of the withdrawn claim and sought a costs order against K. The chairman decided that rule 25 does not provide for a withdrawal notice to be set aside and therefore dismissed the application and ordered K to pay H’s costs of £1,294.79. The EAT concluded that the chairman did not err in dismissing K’s application to set aside his notice of withdrawal. An ET has no jurisdiction to set aside a notice of withdrawal of a claim: if this was intended, then the rules would have included an express provision to that effect. No such right is to be implied into the last sentence of rule 25(4). That sentence merely conveys that if a withdrawn claim is dismissed, then the claimant cannot start a further claim based on the same cause of action, whereas (by inference) mere withdrawal will not preclude this. Paragraph 25(4) is concerned only with the success or failure of an application by a respondent for dismissal of a withdrawn claim.

Madhewoo v. NHS Direct; 01/03/06, EAT/30/06; [2006] ICR Part 5 “Recent points” p.xvi; EAT
ET procedure – statutory dismissal & disciplinary procedure – time limits – transitional provisions
M’s unfair dismissal claim was presented more than 3 but less than 6 months after dismissal. A chairman dismissed it as out of time on the basis that the extension under the Dispute Resolution Regs did not apply because N first contemplated dismissal before those Regs came into force and therefore Reg 18 (transitional provisions) applied. The EAT dismissed M’s appeal. The critical issue for the chairman was whether N contemplated dismissal before 1st October 2004. On the evidence, the head of HR and a senior manager first discussed the case on 26th August 2004, but N did not know that his conduct (as opposed to capability) was under review or that dismissal was a possibility until 25th October. The test of when dismissal was first contemplated is subjective, not objective. What is contemplated by an employer is what is in his mind. An element of communication to the employee is not to be imported into the plain wording of regulation 18(a) as to when dismissal was first contemplated. It was not correct that the relevant date was that of actual or imputed knowledge by the employee. The identity of the employer for the purpose of the relevant contemplation would include the senior manager who carried out the investigation and determined that a disciplinary hearing would take place at which that manager would be pressing for a decision to dismiss. The fact that it was a different (HR) manager who later wrote the letter which constituted step 1 of the statutory procedure did not prevent the first senior manager being treated as the employer.

NSM Music Ltd v. Leefe; [2006] ICR 450; Current Law May 06 para 176; EAT
ET procedure – response presented out of time – effect – right to reasons
Reported in the April update. Now also reported at Current Law May 06 para 176.

South East Essex College v. Abegaze; [2006] ICR 468; Current Law May 06 para 180; EAT
Race discrimination – ET procedure – just and equitable extension – discrimination after the employment relationship has ended
Reported in the April update. Now also reported at Current Law May 06 para 180.

Verdin v. Harrods Ltd; [2006] ICR 396; [2006] IRLR 339; CA
ET procedure – withdrawal of claim to pursue civil proceedings – dismissal – abuse of process
Reported in the April update. Now also reported at [2006] IRLR 339.

West Yorkshire Magistrates’ Court Service v. Smith; 19/12/05; EAT/436/05; [2006] ICR Part 5 “Recent points” p.xv; EAT
ET procedure – oral and written reasons – submissions
An ET heard S’s unfair dismissal claim on the agreed basis that the only issue was whether dismissal was within the range of reasonable sanctions. The ET gave brief oral reasons upholding S’s claim on the basis that no reasonable employer would have regarded the conduct as gross misconduct and that dismissal was not appropriate. W requested written reasons, at which stage the ET suggested a further hearing. At the further hearing the parties were assured that the earlier judgment was not final and made submissions as to whether the belief that the conduct amounted to misconduct was reasonable. Having heard those submissions, the ET upheld the claim on the basis that W could not reasonably have believed in the misconduct and that dismissal was not appropriate. W’s appeal was dismissed. It was clear at the 2nd hearing that the ET were seeking further submissions on a point it now considered relevant to its decision but which was now considered relevant. It gave the parties an opportunity to address it on that point. W submitted that there was a breach of natural justice because the ET reached its decision at the first hearing on a different basis from that argued, without the opportunity for evidence and argument, and this was not cured by the second hearing because the tribunal had already reached a clear decision: it should have proceeded by way of review. However, there was no indication that the ET made up its mind on the issue of reasonable belief in misconduct before inviting the parties to address it on that issue at the reconvened hearing. It was unfortunate that only after giving oral reasons in favour of S did the tribunal realise that there was another relevant issue. However, it had jurisdiction to act as it did and acted fairly and properly. It had not reached a clear decision on that issue. Although the power to take such a course should be used carefully and sparingly, there was no error of law or lack of natural justice or unfairness in this case. A review would have offered no real benefit compared with the course taken. There was no error of law in the substantive decision.  

Alexander v. Bridgen Enterprises Ltd; [2006] IRLR 422; EAT
Unfair dismissal – statutory disciplinary procedures – failure to follow – automatically unfair dismissal – redundancy – fairness – consultation and selection – remedy
A and others were employed by B as welders. B decided to make 10 of its welders redundant as part of a reorganisation made for financial reasons. The employees were informed of the situation at meetings. Selection was made by the welding manager following criteria and guidelines drawn up by HR. A and others were advised that they were at risk of redundancy. At a meeting, they were then informed of the criteria but not the detailed guidelines. At a further meeting they were informed that they had been selected for redundancy and were told of the packages on offer and given their scores, but were not given any opportunity to comment on their own particular assessments. They appealed against selection. Just before the appeal, their representative was provided with the selection criteria and guidelines and shown the marks of all the employees considered, but with no names, so no idea who received which marks. The appeals failed. The employees contended that they were unfairly dismissed, both by reason of automatically unfair dismissal and under s98(4) ERA. B relied on the “Polkey-reversal” provisions of s98A(2). The ET held that B complied with the statutory disciplinary procedure, and that the dismissals were not unfair under s98(4) notwithstanding that it was critical of the way in which the assessments were carried out. It went on to find that even if the dismissals were unfair, there was a chance of 100% that the employees would have been dismissed in any event. It did not in terms address the allegations of failure to consult or the Polkey-reversal point. The EAT allowed the appeal by the employees and substituted a finding that the dismissals were unfair and that the employees were entitled to a basic award. The ET erred in holding that B complied with the SDP. The duty on an employer is to provide the ground for dismissal and the reasons why he relies on that ground. The purpose of the procedure is to seek to prevent the matter going to an ET if possible by allowing internal resolution. In order to achieve that purpose, the information must be at least sufficient that the employee can give a considered and informed response to the proposed decision to dismiss. The SDP is not concerned with reasonableness of the grounds, or the basis of the grounds, but on what the employer is proposing to do and why he is proposing to do it. Step 1 of the SDP requires no more than a statement of the issue in broad terms so that the employee is aware that he is at risk of dismissal and why. This accords with the approach adopted in relation to the SGP. Step 2 requires information as to the basis for the grounds set out in the statement – i.e. the matters which have led the employer to contemplate dismissal for the stated grounds. This information can be given orally. There is no need to provide detailed evidence, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story – the fundamental elements of fairness must be met. In a redundancy dismissal, Step 2 requires an explanation of why the employer is considering dismissing that particular employee. This involves information as to why the employer considers that there is a redundancy situation and also why that employee is being selected. There therefore needs to be notification of the selection criteria used and of the assessment of the employee, so that he has an opportunity to make representations as to whether the criteria are justified and appropriate and also, more importantly, as to whether the marking given to him is arguably unjust, and why, in any respect. It is not necessary for SDP purposes, however, to provide the assessments of other employees. Although failure to do so may in certain circumstances render the dismissal unfair under general unfair dismissal law, the question at the SDP/automatic unfairness stage is what information is so basic that failure to provide it falls foul of the minimum procedural standards with which any employer ought to comply in a redundancy situation. In the present case, B did not comply. A was not given his own assessment until he was leaving the meeting, by which time his fate was already decided. That was too late to comply with Step 2. The benefit of the SDP was lost. Therefore the dismissals were automatically unfair and A was entitled to a minimum basic award of 4 weeks’ pay under s120(1A). However, on the evidence the ET was entitled to conclude that the dismissal was 100% certain to take effect at the same time even if proper procedures were used. There would therefore be no compensatory award. The EAT further observed that if the matter had fallen to be considered under s98(4), B could have relied on s98A(2). The effect of that provision is that if an employer fails to comply with a procedure which should have been carried out, that will not render the dismissal unfair if the employer shows that there would have been a dismissal anyway even if that fair procedure had been adopted. The reference to “a procedure” means any procedure which the ET considers in fairness the employer ought to have adopted: it is not limited to cases where the employer fails to comply with his own (written or unwritten) procedure. S98A(2) applies to all procedures, in the sense of the steps which an employer ought to take before deciding to dismiss. Those steps will vary depending on the reason for the dismissal. There is no magic in the word “procedure” and no justification for seeking to redefine some steps which would naturally be described as “procedural” (e.g. the duty to consult) as “substantive” merely because they are said to provide important safeguards for the employee. All procedural requirements are important for employees. However, the tribunal must have some proper evidential basis for a conclusion that the outcome would have been the same: a mere assertion is insufficient. It is also arguably implicit in s98A(2) that the employer must show that the dismissal would have occurred at the same time if appropriate procedures were adopted: otherwise an employee who is plainly prejudiced by the failure to follow fair procedures (in that he would have remained in employment for longer) would be unable to recover compensation at all and the employer would benefit from his own wrongdoing. The EAT further observed that in the light of s98A(2), Polkey now has only limited application. It is still relevant where, as in this case, the dismissal is automatically unfair because of failure to follow the SDP. It is also relevant to reduce compensation where the SDP has been complied with but the dismissal is unfair under s98(4) and the employer can show, on the balance of probabilities, that there is a chance of less than 50% that the employee might have been dismissed (i.e. s98A(2) does not bite).

Brash-Hall v. Getty Images Ltd; Telegraph 18/05/06
Unfair dismissal – sex discrimination – remedy – severance payment
While B was on maternity leave G informed her that her job would cease to exist following restructuring. She was offered a different job or a severance package but refused both. She resigned claiming constructive dismissal and sex discrimination. Those claims were upheld. The ET found as a fact that following a genuine restructuring B would have been offered a particular job and would have rejected it. It went on to consider whether she would have been entitled to a statutory redundancy payment, concluding that she would not having been offered suitable alternative employment. She was awarded compensation for loss of one week’s maternity pay and benefits and loss of three months’ pay and benefits from the time she would have returned to work, and an award for injury to feelings. The ET did not go on to consider what, if any, severance package would have been offered to B in any event. The question was whether it erred in not awarding the severance package which she said would have been awarded to her on becoming redundant. She asserted that in order to put her in the position she would have been in if G had not acted unlawfully by dismissing her, she should receive full pay and benefits up to the date that redundancy would have taken place and the severance package which G would have made available. G argued that the package was subject to the signing of a severance agreement and her willingness to sign had not been addressed in evidence. The CA held that B was entitled to succeed to the extent of sex discrimination compensation being increased to reflect the pay and benefits she would have received up to redundancy, less the period already awarded by the ET. However, the enhanced severance package was conditional on the signing of the agreement and B had not proved, or sought to prove, entitlement. The ET was inadvertently misled into considering something not relevant to the case by focusing not on the package that would have been offered to B, but on entitlement to a statutory redundancy payment.

Cross & another v. British Airways plc; [2006] EWCA Civ; Independent 18/05/06; IDS Brief 807 p.3; CA
Transfer of Undertakings – provisions about retirement age – unfair dismissal
See below (transfer of undertakings).

G4S Justice Services (UK) Ltd v. Anstey & another; 30/03/06 (EAT/0698/05); IDS Brief 806 p.5; EAT
Transfer of Undertakings – internal appeals – effect of reinstatement – liability of transferee
See below (transfer of undertakings).

Judge v. Crown Leisure Ltd; [2005] EWCA Civ 571; [2005] ICR Part 7 “Recent points” p.xxi; [2005] IRLR 823; IDS Brief 792 p.7; Current Law May 06 para 166; CA
Constructive dismissal – terms of contract – pay – tribunal procedure
Reported in the July, October and January updates. Now also reported at Current Law May 06 para 166.

Knapton and others v. ECC Card Clothing Ltd; 07/03/06 (EAT/0664/05); IDS Brief 806 p.9; EAT
Unfair dismissal – compensatory award – deduction to reflect receipt of early pension payments – failure to award for lost life assurance – whether correct
K was dismissed by E in April 2004. K then took early receipt of pension payments under his final salary pension scheme. This did not affect the value of his pension “pot”. He lost his life assurance by reason of the dismissal. He successfully claimed unfair dismissal in the ET. In assessing the compensatory award, the ET refused to award in respect of the lost life assurance: as the insured risk (death) had not occurred K had suffered no loss, and had not bought replacement cover in the meantime. However, the ET awarded future loss of life cover from the date of the remedies hearing based on the market rates for buying such insurance. The ET reduced K’s loss from date of dismissal onwards to reflect the early pension payments. It regarded these as analogous to incapacity and sickness benefits, which were recoupable, since K would not have received the payments but for the dismissal. K appealed to the EAT. The EAT held that the tribunal erred in comparing occupational pension payments to benefits. It should have compared them to insurance payments, which were not recoupable. The pension pot represents a protected fund of deferred or saved wages on which K was entitled to draw early or later depending on the necessities of post-dismissal life. It had regard to Smoker v. LFCDA (decided on common law principles), which decided that pension benefits did not fall to be deducted from damages because they were the fruit, through insurance, of money set aside in the past in respect of past work. Moreover, the pension payments were collateral benefits which were additional to contractual benefits and would have been paid in any event on or after termination of employment. They did not fall to be offset against compensation. Pension monies did not fall to be deducted from compensation regardless of whether the claim was in contract or tort, related to a contributory or non-contributory scheme, or to an occupational or private pension scheme. The same was true whether one followed common law principles or the “just and equitable” principles of s123 ERA. The ET’s decision in respect of life assurance monies was correct.

Land Securities Trillium Ltd v. Thornley; [2005] IRLR 765; IDS Brief 795 p.9; Current Law May 06 para 167; EAT
Unfair (constructive) dismissal – Contract terms – Redundancy – remedies
Reported in the October and January updates. Now also reported at Current Law May 06 para 167.

Langley v. Burlo; [2006] IRLR 460; [2006] 2 All ER 1104; Times 03/04/06; EAT
Wrongful dismissal – unfair dismissal – compensation – pay during notice period – statutory sick pay – approach
B was employed by L as a nanny. Her contract was terminated following a heated discussion about a salary increase. Shortly before this B had been involved in a car accident and had been unable to work for 4 months. The contract of employment provided that L would pay sickness benefit in accordance with statutory sick pay legislation. B’s claims of wrongful and constructive dismissal succeeded. The ET awarded wrongful dismissal damages of 8 weeks’ full pay. The unfair dismissal award did not include any sums in respect of the notice period as that period had been taken into account in the wrongful dismissal award. On appeal, L contended that the ET erred in awarding full pay during the notice period because of the contractual term limiting pay to SSP if unable to work due to illness. B cross-appealed that she was nevertheless entitled to full pay during the notice period as unfair dismissal compensation in accordance with Norton Tool Co v. Tewson. The EAT allowed the appeal and dismissed the cross-appeal, substituting a wrongful dismissal award equivalent to 8 weeks’ SSP. The ET had erred in awarding wrongful dismissal damages on the basis of full wages notwithstanding that B would have been unable to work for the whole of the notice period and, under her contract, would be paid only SSP. The contract term was clear and there was no basis for saying that it did not apply to the notice period. It could not be said that B was entitled to full pay by reason of s88 ERA, even if at common law she was only entitled to SSP. S88 did not apply because, in accordance with s87(4), the contractual notice was at least 1 week more than the statutory minimum notice. Further, B was not entitled to full pay during the notice period as unfair dismissal compensation. Although, following Norton, it remains good industrial relations practice to make a full payment in lieu of notice to an employee who will be absent sick during the notice period, the principle in that case is no longer a legitimate juridical basis for awarding full compensation for the notice period. It is not consistent with the analysis of s123 ERA by the House of Lords in Dunnachie v. Kingston upon Hull City Council to allow compensation for failure to comply with good industrial relations practice, where that gives a greater sum than would flow from the loss resulting from the dismissal itself.

Mason v. Governing Body of Ward End Primary School; [2006] IRLR 432; EAT
Unfair dismissal – statutory disciplinary procedures – failure to follow – automatically unfair dismissal – redundancy – fairness – consultation and selection – remedy
M was a learning centre support manager for a 3 year fixed period. G decided to close the centre following a review and M was dismissed by reason of redundancy on expiry of the fixed term. Neither M nor her union was consulted prior to dismissal. The ET found that there was a failure to follow a fair procedure, but that there were no suitable alternative jobs available and therefore that the outcome would have been the same even with formal consultation. Therefore s98A(2) applied and the dismissal was fair. Even if the dismissal was procedurally unfair, there would be a 100% reduction on Polkey principles. The EAT held that the ET erred in holding that s98A(2) applied so as to render the dismissal fair notwithstanding the failure to consult. Section 98A(2) applies where there is a procedure, written or unwritten, contractual or non-contractual, contained in an agreement or policy which relates to dismissal of employees and which has not been followed. It includes disciplinary procedures which are not contractually binding and procedures established by custom and practice (e.g. “last in first out” in redundancy). Section 98A(2) does not apply to breaches of the SDP. S98A(1) makes a dismissal in such circumstances automatically unfair. It is not open to an employer to contend that dismissal would have occurred notwithstanding breach of those requirements. Section 98A(2) does not apply to general criticism of procedure based upon assertions of failure to comply with the standards of a reasonable employer (whether as exemplified in the ACAS Code of Practice or not). The ACAS code contains important and authoritative advice on handling disciplinary matters but is not itself a “procedure”. The words “by itself” in s98A(2) mean that it does not apply where there is a breach of a specific procedure accompanied by more general criticisms deriving fro the Code or from standards of a reasonable employer. Therefore s98A(2) reverses the Polkey doctrine [that procedural unfairness makes a dismissal unfair but operates to reduce compensation where the dismissal might/would have occurred absent that procedural failing] to a limited extent only. A finding under s98A(2) is to be made on the balance of probability. If on that test an employee would have been dismissed on a scale of 51 to 100%, then s98A(2) makes the dismissal fair and no compensation is awarded. It is therefore now inappropriate to award compensation reduced by more than 50%. In the present case, however, s98A(2) did not apply. No specific procedure was identified by G or by the tribunal. The criticisms were that the employer failed to reach reasonable standards, and did not specifically focus on G’s procedures. In any event, the dismissal occurred before 1st October 2004 and s98A(2) should not have been considered. A finding that M was unfairly dismissed would be substituted. The ET was entitled to conclude that, applying Polkey principles, the compensatory award fell to be reduced by 100%. It was clear that there was a genuine redundancy situation and that even if M was consulted she would still have been dismissed. However, the ET should have considered the date on which that would have occurred and the matter would be remitted to the ET for that to be considered.

Perkin v. St George’s Healthcare NHS Trust; [2005] EWCA Civ 1174; [2006] ICR 617; CA
Unfair dismissal – some other substantial reason – breakdown in relationship with colleagues – unfounded attack on honesty of colleagues – Polkey – contribution
P was G’s director of finance. G’s chairman expressed her desire to see him leave his post. P was asked to resign but refused to do so and presented a grievance. G started disciplinary proceedings against him, raising issues as to his management style and ability to represent G. At an investigatory meeting P attacked the honesty and integrity of G’s chief executive. The chairman chaired a disciplinary hearing, despite P objecting to this, and in the course of that hearing P pursued his attack on the chief executive and accused another witness of lying. He was dismissed, primarily because of difficulties in his relationships with service centre chairmen and external agencies, but also because G felt that his conduct at the disciplinary hearing would have led to his dismissal anyway. P claimed unfair dismissal. G asserted that dismissal was for conduct and/or some other substantial reason, namely behaviour giving rise to a breakdown in his relationships with senior staff and inappropriate manner and style of work. The ET found that the disciplinary procedure was unfair but that P contributed 100% to his dismissal and would not have retained his job if there was a fair procedure. P appealed. The EAT and then the CA dismissed his appeal. Although an employee’s personality cannot in itself amount to a potentially fair reason for dismissal, it can manifest itself in such a way that his actions constitute a potentially fair reason. A breakdown in confidence between an employer and one of its senior executives, for which the latter is responsible and which potentially or actually damages operations or renders it impossible for senior executives to work as a team, can amount to some other substantial reason and result in a fair dismissal subject to s98(4). The tribunal was entitled to conclude that there was a potentially fair reason for dismissal and that, notwithstanding the unfairness of the procedure adopted, the manner of P’s conduct at the disciplinary hearing was such that an independent and fairly conducted hearing would also have resulted in dismissal and that P had contributed 100% to his dismissal. The CA observed that it was extraordinary that someone in the chairman’s position could think it right to chair the internal disciplinary hearing herself when she had, only days before, made it clear that she wanted P dismissed.

Royal Liverpool Children’s NHS Trust v. Dunsby; [2006] IRLR 351; EAT
Disability discrimination – justification – unfair dismissal – capability – health
See above (discrimination)

Secretary of State for Trade & Industry v. Rutherford (No 2), Same v. Bentley; [2006] UKHL 19; [2006] ICR 785; The Times 08/05/06; IDS Brief 805 p.3; HL
Unfair dismissal – Upper age limit – Sex discrimination – indirect discrimination
R & B were male employees dismissed when over 65. The ET disapplied s109(1)(b) ERA (upper age limit) in so far as it precluded the claim on the ground that the upper age limit provisions had a disparate impact on men which could not be objectively justified and was contrary to the principle of equal pay in Art 141. The EAT allowed an appeal by the Secretary of State on the basis that, in considering disparate impact, the ET should have taken into account the entire workforce to which the age limit provisions applied, and considering that pool there was no disparity of impact. The CA dismissed the appeals. The HL dismissed the appeals and upheld the EAT decision, with slightly different reasoning as between their Lordships. (Lords Scott and Rodger, Baroness Hale) Art. 141 sought to ensure equal pay for men and women in the same position in the workforce doing equal work. The appropriate group for comparison comprised all those still in the workforce at age 6. As the provisions of s109 applied to the same proportion of women in that group as men, there was no indirect sex discrimination. (Lord Walker) The pool comprised all those employed persons on whom the 1996 act conferred rights. Comparing those proportions of men and women in that group advantaged by the cut-off age, there was no significant disparity. (Lord Nicholls) Within the group of those not adversely affected by the cut-off age there was no significant disparity between men and women. Although a higher proportion of men than women remained in employment after age 65, the ratio of about 1:1.4 in a group comprising only about 1.2% of the workforce was insufficient to establish the degree of disparity necessary to establish that the legislation had an adverse impact on a substantially higher proportion of men than women.

Taylor v. OCS Group Ltd; Telegraph 08/06/06; CA
Unfair dismissal – fairness of proceedings – appeal – review – disability discrimination
T was a database programmer/analyst for O, part of a large group of companies. He was profoundly deaf. He gained remote access to another colleague’s computer terminal and obtained confidential information about staff salary levels, in breach of O’s policy on computer access. His manager suspended him and disciplinary proceedings were commenced. There was a disciplinary meeting at which T was not represented and did not fully understand what was happening because of his deafness. Following the meeting he was dismissed and appealed internally. At the appeal O provided an interpreter for part of the hearing only. The ET found that T was unfairly dismissed because he was unable to participate effectively in the process leading to dismissal, particularly at the first hearing, and the appeal had not rectified the defects. The ET found that O had not discriminated on grounds of disability by dismissing, but had failed to make arrangements to prevent his deafness putting him at a serious disadvantage at the disciplinary hearing. The EAT upheld the decision that the appeal hearing fell short of what was required to correct the earlier defect. It also allowed T’s cross-appeal on the ground that one of the reasons for dismissal was on account of his disability. O’s appeal was allowed by the CA. There was no rule of law that only an appeal which amounted to a rehearing was capable of curing earlier defects and that a review could never do so. The question whether defects had been cured at a second hearing did not depend on whether the second hearing could be categorised as a rehearing or a review and the ET should not attempt such a categorisation. The tribunal had to consider the fairness of the overall process when considering s98(4). If the first hearing was defective, the appeal would have to be comprehensive for the whole process and the dismissal to be found fair. It would be advisable for the case of Whitbread v. Mills not to be cited in future. The tribunal should not, under s98(4), consider procedural fairness separately from other issues such as the reasons for dismissal. In the present case the ET had fallen into the trap of deciding that the dismissal was unfair because the appeal was only by way of review. The EAT had failed to correct that error. The case would be remitted for rehearing by a differently constituted tribunal. The ET was further correct to dismiss T’s claim that he was dismissed for a reason related to disability. This was not said to have affected O’s mind. T’s inability (because of his deafness) to explain his conduct might have contributed to his dismissal. But that was not the issue under direct discrimination (s5(1)). The issue was whether O had a disability-related reason in mind when dismissing T. There was no evidence of this and it was never suggested.

Willow Oak Developments Ltd (trading as Windsor Recruitment) v. Silverwood & others; [2006] ICR 55; [2006] IRLR 28; IDS Brief 798 p.10; Current Law May 06 para 183; EAT
Unfair dismissal – reasons for dismissal – refusal to sign new contract containing restrictive covenant – SOSR – whether reasonableness of covenant relevant
See reported in the January update. See reported also in the February 2006 update. Now also reported at Current Law May 06 para 183.

Flett v. Matheson; [2006] EWCA Civ 53; [2006] IRLR 277; IDS Brief 800 p5; [2006] ICR 673; CA
Whether contract of employment exists – Apprenticeship
See reported in the March update. Now also reported at [2006] ICR 673; CA

Dike v. Rickman; Times 07/12/05; Current Law May 06 para 172; High Court (QB)
Tort – negligence – references – reference to sexual harassment in reference
Reported in the January update. Now also reported at Current Law May 06 para 172.

Euro London Appointments Ltd v. Claessens International Ltd; Times 02/06/06; CA
Employment Agency – Contract with client – condition for refund – whether penalty
CA decision that in a contract between an employment agency and its client, a clause introducing a condition precedent that, in order to qualify for a refund under the contract, the client had to have paid the agency’s fee within 7 days did not impose an obligation on the client and was not a penalty clause. The condition precedent and the requirement to pay the agency fee within 7 days of invoice were not interdependent so as to bring the condition precedent into the rule against penalties.

Cable & Wireless plc v. Muscat; [2006] EWCA Civ 220; IDS Brief 802 p5; The Independent 15/03/06; [2006] IRLR 354; Times 10/04/06; CA
Whether contract of employment exists – agency worker – implied contract
See reported in the April update. Now also reported at [2006] IRLR 354 and Times 10/04/06.

Cornwall County Council v. Prater; [2006] EWCA Civ 102; Independent 28/02/06; Daily Telegraph 02/03/06; IDS Brief 802 p11; [2006] IRLR 362; [2006] 2 All ER 1013; [2006] ICR 731; Current Law May 06 para 168; CA
Whether or not contract of employment exists – teacher engaged regularly as home tutor by local education authority
See reported in the March 2006 update. See reported also in the April 2006 update. Now also reported at [2006] IRLR 362, [2006] 2 All ER 1013, [2006] ICR 731 and Current Law May 06 para 168.

Younis v. Trans Global Projects Ltd & another; 02/12/05 (EAT/0504/05); IDS Brief 806 p.11; EAT
“Worker” for WTR purposes – “Employment” for RRA purposes – “employee” for unfair dismissal purposes – consultancy
Y undertook work on a consultancy basis for T, a company involved in construction and engineering projects. He entered into a written agreement to introduce T to contacts with a view to securing work for T, and T would provide Y with leads to follow. He was paid a daily rate plus reasonable expenses, together with an agreed percentage of the gross value of any contract secured by him or a bonus to be negotiated. When the arrangement was terminated Y brought ET claims and issues of jurisdiction arose. The ET found that during the relationship Y had pursued a number of leads supplied by T and had taken certain steps on his own initiative. He had also pursued his own business (which was not precluded by the agreement). He was not subject to any control in the way he did his work. He was allowed to use a self-contained office at one of T’s sites. From the outset of the arrangement he had submitted monthly invoices of £3,200, which were paid even though the agreement provided only for £100 per day when on duty for T. He received no holiday pay and was not entitled to sick leave. The tribunal found that he was never under a duty to carry out a particular task and T was under no obligation to supply him with leads, so the relationship lacked mutuality of obligation as well as the minimum level of control for a contract of employment. The EAT held that Y was under an obligation to introduce T to his contacts. As far as T was concerned the opportunity to work on those introductions was unlimited during the three year term of the agreement. The agreement to pay a daily rate when performing that function did not detract from the open-ended nature of the opportunity. Looking at the factual matrix overall, the necessary mutual obligations existed for there to be a contract for services and Y therefore fell within the broader definition of “worker” under the WTR and “employment” under the RRA, although he was not an “employee” for ERA purposes and the ET was correct in its conclusion on all the relevant factors that the contract was not one of service. The ET erred in deciding that it did not have jurisdiction to hear the WTR and RRA claims.