Acayo-Anywar v. Birmingham Art & Music Ltd & Page;20/03/07 (1306501/06); EOR 170 p.30; ET

Race discrimination

From February 2005 A worked for B at the Medicine Bar, initially as a bar assistant/waitress and later as a supervisor. She was the only black Afro-Caribbean supervisor. Her manager, P, was less friendly towards her than other staff, particularly supervisors. In July 2006 he accused her wrongly of stealing from the till. He had not checked with the assistant manager, who had taken the money to pay a bill for B. He did not apologise to A. A, using B’s normal procedures, booked a night off as leave. P rostered her to work that night and was “actively hostile” when she sought to discuss the matter. He promptly removed another employee from the rota in similar circumstances, and allowed another employee to take evening leave without having booked it. A was outraged and crossed her name off the rota. She then received a text message from P telling her to drop off her keys. She was unsure whether she had been dismissed and entered a management meeting to ask one of the director/owners what was happening about her employment. He left the matter to P, who clarified that her employment had ended, ostensibly because she had gone “AWOL” for several days many weeks ago. A did not recall this, and neither did others, but P ignored her requests for details. She appealed but received no response. The respondents did not participate in the proceedings. On the facts, and given P’s previous treatment of her, the tribunal was satisfied that the dismissal was an act of race discrimination by both respondents. A was awarded £9,000 for loss of earnings and £4,500 for injury to feelings, including a 50% uplift for breach of statutory procedures.

Adekunle v. Metropolitan Police Authority & Lister; 27/10/06 (2202957/05); EOR 170 p.29; ET

Race discrimination

A was a lawyer of Nigerian origin. She worked for the Metropolitan Police Service from 2001. In 2004 she was seconded to M as a professional standards assistant. L was her manager. In 2004 A sought embryo donation surrogacy in Nigeria. This was supported by the assisted conception unit at King’s College Hospital in London. Pressing medical considerations required early treatment and matters moved very swiftly when A arrived in Nigeria for 2 weeks’ leave in June 2005. Her Nigerian gynaecological consultant notified M that she would be absent from June to August because she was undergoing a medical procedure. Her consultant in London also wrote to M explaining that she was due to have medical treatment during her absence. L was suspicious and was concerned that A was being treated in 2 different places. She spoke to the Nigerian consultant’s assistant and made note of two references to “fertility nurse”. She later spoke to the London consultant and noted that she had been given the impression that A was not being treated in the UK. In August, M informed A that a temporary member of staff had been engaged in her absence, that she was required to attend a return-to-work interview on her return and that her secondment arrangements would need to be reviewed. At the RTW interview an HR officer commented that the letter from the Nigerian consultant “could have been written by anyone”. L added that the letter still did not specify what was wrong. She asked A for further details and A would only state that she had undergone a gynaecological procedure. Further concerns were raised at the interview, for example as to whether the absence was self-certified or authorised by a doctor, and whether the medical letters amounted to a medical certificate. Later that day A was told that she would have to attend a further RTW interview and to provide a doctor’s certificate. This she did. L later sent an e-mail to the MPS saying that it would need to determine whether the absence was adequately certified and whether procedures had been breached. She said that M had not explored whether this was an emergency or planned procedure but that M was now aware that the procedure was undertaken in Nigeria and not the UK. In a further letter to the MPS she indicated that consideration was being given to termination of the secondment. In October A chose to be redeployed back to the MPS. The ET considered the hypothetical comparator of an employee of different race or nationality on secondment to M and seeking similar fertility treatment in the NHS in England. Various factors suggested less favourable treatment on racial grounds. Direct enquiries about the absence were only made after seeing letters which showed that treatment was taking place in Nigeria. M was suspicious that A had misled it. However, A had taken proper steps to keep M informed and had ensured that doctors had written the appropriate letters. The ET rejected M’s assertion that they were justified in their concern that A might have been in breach of her duties as an employee, and also rejected M’s assertion that any employee in the same circumstances would have received the same treatment. The facts strongly suggested that the “Nigerian dimension” was a prominent feature in M’s minds. The decision to consider terminating the secondment, the making of enquiries of the clinic in Lagos and the report to the MPS of possible abuse of sickness procedures were all direct race discrimination. A was awarded £11,000 (£10,000 from M, £1,000 from L) for injury to feelings. There was a recommendation that the document recording suspected abuse of sickness procedures be removed from A’s personnel file and any other relevant records within 7 days, and that both respondents should provide written apologies to A within 14 days for having suspected her of dishonesty for racial reasons.

Akinde v. Look Ahead Housing & Care Ltd; 08/01/07 (3200047/05 & 3200290/05); EOR 170 p.27; ET

Race discrimination

A was black and of Nigerian origin. She worked for L as a night-cover worker from 1988. In 2004 a colleague, F, on duty with A in the canteen, left at 7:30 am to wake a resident on instructions from the team leader. In his absence a male resident, D, verbally abused 2 agency workers in the canteen. A intervened. She was racially abused by D. She responded with an inappropriate verbal retort which led D to believe she had insulted his mother. He lunged at her with a plastic knife and threatened to damage her car. A was shaken and reported the incident to the deputy manager that morning. D complained and A was accused of breaching L’s code of conduct. At the disciplinary hearing her representative queried whether it was a breach of L’s personal safety at work policy to leave A working alone in the canteen. The panel took the view that A had “allowed” F to leave, upheld the misconduct allegation and concluded that a final written warning was appropriate. However, A had already received a final written warning for an unrelated matter, so she was dismissed. Action against D was recommended. The internal appeal concentrated on the fact that A allowed F to leave the canteen and did not radio for assistance, upholding the dismissal. D was later disciplined for verbal racial abuse and the threat of physical harm. A claimed race discrimination. The ET found that L did not take the issues of the racial abuse and physical threats suffered by A seriously. The incident was only investigated following D’s complaint, not A’s. No contemporaneous action was taken against D and L later failed to inform A of the disciplinary action taken against D. L failed to consider whether she had been provoked into acting uncharacteristically by the racial abuse. The ET questioned whether dismissal was the appropriate sanction. A was purportedly dismissed for breaching the code of conduct. However, the ET found that the alleged breach of safety policy became the “main issue” at both hearings, despite the fact that no other staff members were questioned about this. A hypothetical white comparator would have been treated more favourably. The ET found direct discrimination and awarded £10,000 for injury to feelings. This was a serious act of discrimination, perpetuated by more than one manager throughout the disciplinary process, and resulting in A losing a job she had held for 26 years.

Allaway v. Reilly & another; [2007] IRLR 864; EAT

Sex discrimination – liability of employers and principals

R was a sub-officer of Lothian & Borders Fire Brigade. He brought ET proceedings claiming unfair dismissal and sex discrimination. Following a PHR, the claim was directed at his employer, L, and against their fire master, A, as an individual. A sought a PHR to determine whether it was appropriate for him to be an individual party. R accepted that A was at all material times acting in the course of his employment. By the time of the PHR, R had lodged an amendment giving particulars of his claim including numerous actions on the part of A. The ET rejected A’s contention that the amendment should be refused and the claim dismissed against him. In particular, R had given sufficient notice of the claim in his original ET1 and the amendment gave further notice of it. A relevant claim against A was advanced. A appealed, contending that R had failed to set out any proper basis upon which he, A, might be liable in terms of ss41 & 42 of the SDA and that the proposed amendment took the claim no further. The EAT held that the ET was entitled to allow the amendment and allow the claim against A to proceed. If a fellow employee does an act in the course of his employment which has the effect of discriminating against the claimant on grounds of sex, and that is a result which can be concluded to have been within his reasonable knowledge at the time of carrying out the act, the requirements of s42(1) are met. It is not necessary for the individual to intend or be motivated by discrimination. It is enough that, on the evidence, a conclusion can be drawn that discrimination as a probable outcome was within the scope of his knowledge at the time. I would not need to be at the forefront of, or specifically addressed in, his mind. It is enough that it can properly be concluded in the circumstances that it was within the knowledge that was possessed by the alleged discriminator. Inevitably, whether or not it can be concluded that the act was done “knowingly” will depend on the facts and circumstances of the particular case. It is not correct to say that the legislation places primary liability with the employer: that ignores the words “as well as” in s41. A claimant is entitled to include an individual respondent in order to call the discriminator to account. In the present case the pleadings (including the amendment) made it clear that the case was one in which R asserted that he could prove enough as regards the “knowingly” requirement under s42 to discharge the initial burden on him. Detailed notice was given of the factual matters he relied on in pointing to a decision in his favour on that issue. Whilst the task facing R might not be an easy one, that was not to say that he had not done what was required of him at the present stage of proceedings. To prevent him from trying to establish his case would be unjust, and the issue was fact sensitive.

Sex discrimination – dismissal – personal relationship – jealousy – whether on grounds of sex – appropriate comparator

B was a solicitor in a small practice. A was initially a secretary/receptionist and later his personal assistant. They commenced a relationship. B supported A financially, paying for her to undertake university studies in addition to her work at the office. A formed a “regular association” with another student, M, whilst continuing her relationship with B. B saw A and M together and dismissed her the same day. A claimed unfair dismissal and sex discrimination. The ET found that the dismissal was “driven by jealousy or the discovery of A’s relationship with [M]” and was both procedurally and substantively unfair. It also held that the dismissal amounted to sex discrimination because she would not have been dismissed but for the fact that she was a woman. B appealed in respect of the finding of sex discrimination. The EAT allowed his appeal. In determining whether A was discriminated against, the crucial question should have been why did she receive the less favourable treatment. That question cannot be answered by a “but for” test alone (Chief Constable of West Yorkshire Police v. Khan). Instead, the ET must examine the reason or motive, conscious or subconscious, for the treatment. The ET found that the dismissal was driven by jealousy or the discovery of the relationship with M. She was therefore dismissed because of the breakdown of the relationship with B, not because of her sex. That being the case, it was simply not open to the ET to go on to find that she was less favourably treated on the ground of her sex. The error may well have been compounded by the ET’s failure to carry out a comparison between the treatment of A and the way a man would have been treated. Although it is not an error of law to fail to construct an hypothetical comparator in a sex discrimination case, it is vital that a proper comparison be made, given that the advancement of a non-discriminatory reason will almost inevitably involve the assertion that someone of the opposite sex would have been treated in the same way. SDA s5(3) requires that the relevant circumstances of the claimant and the comparator must be the same or not materially different. The correct comparison here was therefore with a homosexual male employer and employee. On the ET’s findings, such an employee would have received exactly the same treatment – i.e. the employer, driven by feelings of jealousy, would have dismissed him on discovery of the apparent infidelity.

Blundell v. Governing Body of St Andrew’s Catholic Primary School and another; [2007] ICR 1451; EAT

Sex discrimination – maternity leave – whether returning to “same job”

B taught in a primary school. She brought proceedings against A claiming less favourable treatment on grounds of pregnancy. She said that attempts, when she informed the head teacher that she was pregnant, to persuade her to accept “floating duties” rather than being assigned to a particular class was to her detriment. She alleged that the head became unfriendly towards her and failed to consult her as to her preference for class allocation for the forthcoming year while she was away on maternity leave. When she returned she was given a different class to teach. She contended that this meant that she did not return to the job in which she was employed before her absence. The ET dismissed her claim, finding that the head teacher’s attitude was unrelated to pregnancy but was because the reception class would be disrupted, that even if B had been consulted that would not have been determinative of the class she was allocated so there was no detriment, and that as B was employed as a teacher rather than as a teacher of a particular class, she was contractually required to teach any class allocated to her and there was no breach of the provisions about returning. B’s appeal was allowed in part by the EAT. Treatment was not on the ground of sex if it was on some other ground which was not gender specific. It was important for the ET to make proper findings of fact from which to draw inferences. In this case, the tribunal made such findings so as to enable it to draw the inference that the cause of the head teacher’s behaviour was the announcement of sudden impending disruption to a class. However, the failure to consult, although there was no certainty that B would have been allocated the class of her choice, was nevertheless a detriment and less favourable treatment on grounds of sex, in that B lost her opportunity of putting forward her choice and possibly securing her preferred class. The contract was not definitive in considering whether an employee had returned to the same job for the purposes of the Regs. The phrase “in accordance with her contract” in the definition of “job” in Reg 2(1) qualified only the nature of the work B was required to do, not the capacity or place in which she was employed. The level of specificity with which “nature”, “capacity” and “place” were addressed was likely to be critical and should be determined as a question of fact by the ET, having regard both to the purpose of the legislation and to the fact that the Regs themselves provide for exceptional cases. Where, as here, a position was variable, a tribunal was not obliged to freeze time at the precise moment B took maternity leave, but could have regard to the normal range within which variation previously occurred. The post to which B returned was the same post, if the level of specificity was properly to be regarded as “teacher” and was, as found by the tribunal, within the normal range of variability which B could reasonably have expected.

British Medical Association v. Chaudhary; [2007] EWCA Civ 788; [2007] IRLR 800; CA

Race discrimination – indirect discrimination – victimisation

C was a member of B. He qualified in India and then came to the UK in 1987 to be a senior house officer. He became an FRCS and in 1991 obtained a diploma in urology. In 1991 he was offered a post as registrar in urology at North Manchester General Hospital. Between 1982 and 1994 the post was listed as recognised by the FRCS as providing acceptable training. He expected to progress in due course to a senior registrar post and eventually to the status of consultant. From the mid 1990s there was a new training scheme. The grade of specialist registrar replaced the previous grades of registrar and senior registrar. There was a transitional period, during which doctors in training who were eligible for the new SPR grade were transferred to it, advised how much more training they would be expected to undertake, placed in a training position and given a national training number. The transitional period for trainee urologists ran from April 1996 to January 1997. By the start, C was a locum senior registrar in urology in Portsmouth. He had also been granted indefinite leave to remain in the UK. Whilst in that post, he sought to gain transition to the new SPR grade. In his view he satisfied the relevant requirements and conditions for entry, but his application was rejected on the basis that his Manchester post did not have the appropriate approval. C enlisted the support of the BMA in challenging the decision. Some time later, he raised allegations of racial discrimination against regulatory medical bodies and persons responsible for affecting his progress through the new system. He brought two sets of ET proceedings alleging race discrimination. The BMA refused to support those proceedings. He then brought proceedings against the BMA alleging direct and indirect discrimination and victimisation. The ET found against him on direct discrimination but upheld the indirect discrimination and victimisation claim. The EAT upheld those findings on appeal. It found that the BMA had applied a PCP that in order to be supported in claims of race discrimination, a member of the BMA had not to be alleging race discrimination by the various medical regulatory bodies. A considerably smaller number of Asian members could comply and C could not comply. A number of instances where B had failed to support C’s claims were tainted by indirect discrimination. There was victimisation by refusing to reconsider whether one of the sets of proceedings was worthy of support at a time when, and on the basis that, C had made allegations of race discrimination against B for not supporting his claims against others. B appealed. C cross-appealed against the rejection of his direct discrimination claim. The CA allowed the appeal. There was an unusual feature of the case which contained an element of paradox or inconsistency, in that the ET was not prepared to hold that the refusal to support C was on grounds of race, but was prepared to infer indirect discrimination by the imposition of a condition that the BMA would not support race discrimination claims against certain regulatory bodies. The ET never got to grips with the issues and analysed the evidence to see whether B’s explanation for refusing support was valid and reasonable and should be accepted. The crucial question, which the ET did not ask or answer, was whether C had a case on race discrimination against any of the proposed respondents which was worthy of B’s support. Without such an analysis, the ET was not in a position to reject B’s explanation for its refusal, or to draw an inference that its collective mind was subconsciously closed to the possibility of bringing such a claim. When the established facts were analysed, it was clear that B had sound reasons for believing that C had been dealt with according to the rules and that there was no basis for suspecting that the decision was tainted by direct or indirect discrimination. In the absence of any evidence of difference in treatment between C and another doctor, that was reasonable. Some difference of treatment was required before any inference of racial discrimination could arise and before any burden passed to B to show that its actions were not on grounds of race. It was not enough merely to say that it looked as though C had been treated unfairly and, as he was Asian, that the difference had to be race discrimination. It was fair to say that the fact that C, an Asian doctor, appeared to have been discriminated against might well give rise to a duty to investigate the possibility of discrimination, but if enquiries revealed that he was treated according to the rules that applied equally to everyone there would be no case on direct discrimination. Overall, the findings of fact on which the ET based its conclusion that B had a closed mind towards C’s claims were made without adequate analysis of the evidence. When the evidence was analysed, the ET’s essential findings of fact were perverse and without foundation. They formed the foundation for the inference of the imposition of a PCP. As the findings were perverse, the inference drawn from them was unsustainable. The decision on victimisation was also wrong in law. It is clear from the HL decision in St Helens Metropolitan Borough Council v Derbyshire that a person does not discriminate if he takes the impugned decision to protect himself in litigation. In the present case, B had not refused to reconsider because of the accusation but in order to protect its position. It followed that there was no victimisation. The CA also observed that, having regard to the decision in Rutherford v. Secretary of State for Trade and Industry (No. 2), the appropriate pool in this case was all members of B who wanted B’s advice and support for bringing claims of race discrimination. No member of that pool could comply with the PCP imposed. Accordingly there was no comparative disadvantage or advantage for any racial group and no indirect race discrimination against members of C’s racial group.

Race discrimination – Rules of evidence – privilege – without prejudice communications referred to at grievance hearing about discrimination allegations – admissibility in proceedings for victimisation

The ET ruled as a preliminary issue that evidence of “without prejudice” discussions that had taken place with V and others was admissible in V’s victimisation claim against B. The parties cross-appealed. The WP discussions took place in connection with claims of race discrimination which V had earlier brought against B. After those claims were brought, B issued a newsletter in which it stated that it would defend its reputation against unfounded allegations of discrimination “especially when they are accompanied by unwarranted demands for money”. V formed the view that this concerned him and amounted to victimisation and lodged internal grievances. B appointed a panel of council members to hear the grievances. After hearing evidence of the settlement discussions in relation to the race discrimination claims, the panel recommended that the grievances be dismissed. V issued ET proceedings and referred in a witness statement to what had been said during the settlement discussions. B’s responses included references to the grievance hearing and attached copies of the grievance panel’s report. The ET and EAT ruled that B had waived privilege at the grievance hearings in respect of the WP discussions. B argued that this was wrong. V argued in a cross-appeal that, even if B had not waived privilege by its conduct of the grievance hearings, it had done so when, in responding to the victimisation claim, it relied on the grievance hearing and appended the report. B’s appeal was dismissed; V’s cross-appeal allowed. The EAT was justified in concluding that there was a bilateral waiver of privilege in respect of the WP negotiations. In most cases, where an internal grievance hearing took place in the usual way there would be no question of waiver if the parties mentioned matters covered by the WP privilege. However, this case had particular and unusual circumstances: the grievance hearing was in effect a trial of the victimisation issue by an independent panel and both parties had given or called evidence of the previous negotiations, thereby bilaterally waiving privilege. By referring to the WP discussions in the ET1 and witness statement, V had made it plain that he intended, unless prevented, to waive privilege. By pleading its response as it did and attaching the grievance report to the ET3, B made it plain that it too intended to waive privilege. Had B applied to amend its pleading shortly after filing it, the application might have had a good chance of success. However where, as here, an application to amend had not yet even been made and where the application to withdraw reference to the WP discussions would have a radical effect on the proceedings, it was far too late for B to retrieve the situation.

Department of Constitutional Affairs v. Jones; [2007] EWCA Civ 894; IDS Brief 839 p.5; CA

ET time limits – disability discrimination – whether just and equitable to extend time – reluctance by Claimant to admit that depression amounted to a disability

See below (ET procedure).

Equal Opportunities Commission v. Secretary of State for Trade & Industry, sub nom. R (on the application of Equal Opportunities Commission) v. Secretary of State for Trade and Industry; [2007] EWHC (Admin) 483; [2007] 2 CMLR 49; Current Law Digest Sept 07 p.69; High Court

Sex discrimination – harassment – pregnancy discrimination – interpretation of new UK statutory provisions – EC law – Directive 2002/73

E sought judicial review of the Sex Discrimination Regs 2005, which had amended the SDA in order to implement the 2002 equal treatment directive. E argued that the new amendments did not properly implement the Directive for the following reasons: (1) the new s4A(1) impermissibly imported causation by the words “on the grounds of her sex”; (2) the new s4A(1) wrongly required that the unwanted conduct had to be on the ground of the complainant’s sex; (3) the new s4A(2) inappropriately imported an objective test into the definition of harassment; (4) the Regs failed to introduce liability on employers for discrimination by third parties; (5) the Regs impermissibly introduced the requirement for a comparator to establish discrimination on grounds of pregnancy, and as it was not intended that there would still be a remedy for complaints of discrimination by reference to pregnancy or maternity leave under s1 in parallel with the new right, the new section offended against the principle of regression by reducing the protection previously available; (6) the new s6A(7) excluded claims for discrimination during compulsory maternity leave arising from deprivation of a discretionary bonus and s6A(3) & (4) placed a substantial limit on discrimination claims that could be made in respect of the additional maternity leave period. E’s application was granted. As to the various issues: (1) It was the court’s duty to construe statutes and regulations so as to render them compliant with the relevant Directive. However, in this case it was not appropriate to do so because of the degree of reading down or transposition that would be required to render the provisions compliant. Alternatively, it was not possible to do so because such extreme application of the requirement to interpret national legislation in accordance with Directives would not be effective or sensible because of the need for clarity, certainty or comprehensibility. Section 4A(1)(a) should be recast so as to eliminate the issue of causation. (2) There could be harassment of a woman if the effect of denigratory conduct directed towards another party (not necessarily a woman), related to sex, but not of a sexual nature, had the effect of creating a humiliating or offensive environment for her. The new s4A(1) would have to be read down to produce that result and accordingly should be amended. (3) Under discrimination law before the amendment the test was properly to be regarded as objective. Therefore no issue of regression arose. (4) So long as s4A was framed in terms of unwanted conduct engaged in “on the ground of her sex” by the employer it was difficult, if not impossible, to see how an employer could be held liable for knowing failure to take steps to prevent harassment by third parties that created an offensive working environment. Section 4A(1) should be recast to allow for such a claim. (5) Section 3A should be recast so as to eliminate the statutory requirement for a comparator who was not pregnant or on maternity leave. (6) Section 6A should be recast so as to provide that discrimination claims that had previously been available should not be excluded.

GMB v. Allen & others; [2007] IRLR 753; EAT

Sex discrimination – objective justification – proportionality – indirect discrimination

A and others were members of G employed by Middlesborough Metropolitan Borough Council (M). In 1997 there was a national collective agreement (the Green Book agreement) between public service trade unions and local authority employers. This was intended to replace various sets of terms and conditions applicable to different categories of local authority employees with one new set which applied to grades 1 to 6 of all employees of local authorities. The process of integration into a single pay structure was known as the move to single status. The agreement provided for devolution of pay scales and pay rates to local level. One of its aims was to eradicate gender-based pay inequalities. In order to achieve this, it provided that the fixing of local pay rates should be preceded by a job evaluation study in each local authority. M carried out such a study and brought in new terms with effect from 1st April 2004. Inevitably, some jobs were rated higher and some lower than under the old structure and thereby rendered some employees liable to a reduction in pay. Traditionally, in such circumstances the union would seek to secure pay protection over a limited period for such workers.

In this case many female employees, some union members, sought to contend that they had been the subject of past sex discrimination. Their interests would be served by pressing those historic equal pay claims and seeking to secure the backdating of pay up to six years to redress past discriminatory wrongs. As against that, G had to seek to provide pay protection for those who would otherwise have had their pay reduced following the implementation of the single status agreement, and to improve future pay for all members. G also had to have regard to the fact that M did not have unlimited resources. G chose to prioritise those needing protected pay and achieving equality for the future, rather than maximising back pay claims. This was very much in response to pressure from its membership. An agreement was reached with M. The effect was that of those with potential historic equal pay claims, some received what was in effect little more than 25% of the potential value of the back pay claim, and others nothing at all. G encouraged members to accept the offer, and told the relevant individuals that the offer was the best that could be achieved, emphasising that lengthy legal proceedings could lead to a loss of jobs. It told members that if they accepted the offer, they would forfeit their right to litigate. It advised them to take independent legal advice. A and others brought proceedings claiming that G discriminated against them (directly, indirectly and by way of victimisation) in the way in which it dealt with their claims. The ET dismissed the direct discrimination claim, but found G liable for indirect discrimination and certain acts constituting victimisation by reason of the fact that the women had sought to litigate their equal pay claims. The practice identified as indirectly discriminatory was that of agreeing to back-pay settlement in order to release money for future pay and pay protection, which was found to disadvantage a group consisting predominantly of women and to be unjustifiable. G appealed.

The EAT allowed the appeal and substituted a finding that there was no unlawful discrimination. The ET had failed to analyse carefully what was required to establish objective justification. The question is whether the means to achieve the objective are proportionate to that objective, not whether the actions of the union are otherwise lawful or achieved without negligence, or in a morally acceptable way. The issue is not whether G has conducted itself appropriately, but whether the difference in treatment can be justified as a proportionate response to a legitimate objective. Whether the objective might be achieved using unlawful, even dishonest, practices does not necessarily mean that the means are disproportionate once it is established that the aim itself is legitimate. Here a PCP was imposed which had an adverse impact on one sex when compared with the other. The PCP was clearly sex tainted because the losers and winners had their roots in earlier discrimination. G was not using its negotiating pressure equally for the benefit of all, but was deliberately adopting a practice which focused on a characteristic which itself divided the membership into predominantly male and female groups. That was the inevitable effect of the policy given that, for reasons connected to gender and not mere chance, women were in the lower paid jobs with equal pay claims. The ET was therefore entitled to find disparate impact. However, once it was accepted that the objective was legitimate, then it was difficult to see how it could be alleged that the means were inappropriate. The practice under consideration involved determining priorities. In truth, there were no different means of achieving that objective. In so far as the means involved giving greater weight to the interests of those seeking back pay, they simply changed or distorted the objective. The object of the practice was to give as much emphasis as possible to the interests of those who lost out on the new job evaluation scheme. The legitimacy of that objective was not disputed. G might have misled some members into accepting the priorities without a full understanding of what was involved (and in particular, what they were personally sacrificing). However, that was not to suggest that other more proportionate means could have been used. Rather, it was to say that had the union acted properly, that objective might not have been reached at all and some other objective would have to have been adopted. As far as victimisation was concerned, there was no less favourable treatment by reason of A and others having lodged ET claims. On the contrary, G simply sought to ensure that all were treated equally favourably by M whether they had commenced litigation or not. The fact that A and others were affected by that reminder from G did not amount to victimisation.

McDougall v. Richmond Adult Community College; [2007] IRLR 771; EAT

Disability discrimination – whether disabled – mental impairment – recurrent condition

M had a history of mental health problems dating back to the mid 1990s, including two periods of compulsory detention under the Mental Health Act in 2001 and 2005. In April 2005 (prior to the second period of detention) she successfully applied for a position as a database assistant with R. The offer was subject to satisfactory medical clearance. The offer was later withdrawn on the basis that such clearance was not available. She claimed breach of contract and disability discrimination. The finding in her favour on the breach of contract claim was not appealed. In respect of disability discrimination, the ET found that M had a persistent delusional disorder and a schizo-affective disorder, that these were clinically well recognised and that she had an impairment, however that she was not disabled because the impairment did not have a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. M appealed arguing, inter alia, that compulsory detention under the MHA was conclusive evidence of substantial adverse effect, and that her condition was of such severity (in particular, because she suffered from delusions) as to qualify under the DDA. She contended that her condition was long-term, and an issue arose as to whether the ET erred in failing to have regard to the fact that a relapse occurred after the date of the acts complained of. The EAT allowed M’s appeal. Satisfaction of the conditions for compulsory detention is not necessarily satisfaction of the test under the DDA. The principle in Bwllfa applies to the DDA [having regard to facts occurring after the events which form the basis of the claim]. The ET has to take a practical approach to assessing disability. It is unattractive and possibly inoperative for them to be expected to ignore the reality of what has occurred so as to found judgment on what might have occurred. In this case, in the light of the severity of the mental condition, which had required detention, M plainly had a mental illness. Her conditions clearly constituted impairments in her ability to understand (in the sense that a person who did not understand the real world was deluded). The ET erred in failing to apply the Bwllfa principle. The very nature of M’s diagnosis made it logical to regard the condition as likely to recur. A condition which was persistent was by definition not finite, sporadic or intermittent. In April 2005 it was a feature of the present condition that it was likely to recur. It followed that M’s condition was a substantial impairment having a substantial and adverse long-term effect.

Middlesbrough Borough Council v. Surtees & others; [2007] IRLR 869; EAT

Equal pay – sex discrimination – indirect discrimination – justifiability

See below (pay)

Nortey v. Comet Group plc; 31/01/07 (2303484/06); EOR 170 p.28; ET

Race discrimination

N is black and originates from Ghana. He worked for C as a sales adviser from 1989. He had a staff discount card. The rules about that card placed no upper limit on its use but stated that it could not be used for purchases not for his own use or benefit or a genuine gift for him or for a member of his immediate family. C’s disciplinary policy provides for suspension on basic pay where a manager feels that an investigation would be jeopardised if the person under investigation were still at work. N was suspended following concerns about his use of the discount card. He was not told why a suspension was considered necessary, and C, in breach of its disciplinary procedure, did not provide facts or information to support the allegation. The disciplinary hearing focused on N’s discount purchases and alleged “irregular” multiple purchases. N explained that he sent the items to his brothers in Ghana for distribution among his family. 60% (90 of 129) of the items were clearance lines offered to N by his manager. N admitted lending his card to a colleague in breach of the rules, and buying items for his cousins whom he, wrongly, thought amounted to members of his immediate family in the rules. His card was withdrawn on the basis that it was a discretionary benefit which he had abused by excessive use and purchases for his cousins. After the hearing the chair of the hearing was informed of an allegation that N had used threatening behaviour to a colleague. He denied the allegation. He was again suspended, became ill and remained off work until his resignation the following year. He claimed constructive dismissal and race discrimination. The ET found that the card was a contractual rather than discretionary benefit, and that the reasons relied upon for withdrawal were not justified within the scheme rules. There was some ambiguity in the words of the scheme such that the purchases for N’s cousins did not necessarily breach the rules. A white manager who had made 102 discount purchases had not been investigated or disciplined despite having made sufficiently numerous purchases to make them comparable. Although it was reasonable for C to investigate the allegation of threatening behaviour, both suspensions were imposed without proper consideration of whether suspension was called for under C’s procedure. There were 2 historical incidents not raised as actual complaints because they were out of time. The first concerned a grievance raised by N in 2001 after a manager called him a “black bastard”, referred to him as “thick”, “fool” and “idiot” and committed a minor assault on him. Managers had closed ranks to protect the manager in question at the time. On a later occasion N had been unjustly accused of theft together with an employee described as “a black man”. C’s explanation for the treatment, namely that N had misused his discount card, was rejected in the light of the tribunal’s interpretation of the rules. The card was withdrawn on racial grounds. N’s race discrimination claim was upheld and he was awarded £12,000 for injury to feelings and over £35,000 for constructive dismissal.

Odimba v. Cambridge Educational Associates; 18/10/06 (2200385/05); EOR 170 p.30; ET

Race discrimination

O is a black African of Nigerian nationality. She worked by C as a catering and facilities manager from 2002 to 2005. She had no prior experience of facilities management and C accepted that she would require training. Her first and only appraisal was in July 2004. It identified perceived weaknesses in communication, particularly in writing. P, her line manager, warned her in December 2004 that he was considering capability proceedings against her for “repeated failures to produce basic documentation relating to the delegation of facilities budgets”. Although “business English” had never been specifically mentioned, P recommended such a course, run by a local university. O was surprised and offended to note that the courses were aimed at students with English as a second language, to improve language skills rather than report-writing ability. She raised a grievance complaining of race discrimination and resigned in February 2005. C argued that the course was intended to improve report-writing and letter-writing skills and that the offer of training could not be a detriment. The ET agreed with O that the course was for people who spoke English as a second language. The ET found that O was fluent and idiomatic in her use of English and concluded that a suggestion that she attend such a course had undermined her proficiency. A white comparator would not have been asked to attend such a course and O had been subjected to race discrimination. She was awarded £3,500 for injury to feelings.

Paterson v. Commissioner of Police of the Metropolis; [2007] IRLR 763; EAT

Disability discrimination – whether disabled – normal day-to-day activities – dyslexia

P joined the police in 1983. Following a number of promotions, by 2004 he was a chief inspector. In 2004 he discovered that he had dyslexia. He had taken examinations at various stages of his career. He contended that his dyslexia rendered him disabled and that he had been discriminated against on that ground and that there was a failure to make reasonable adjustments, particularly to the processes for determining whether he might be promoted to superintendent. He contended that those adjustments made were insufficient. A preliminary issue arose as to whether he was disabled. The ET had 2 experts’ reports. These noted that P had performed poorly on certain tests. The first report categorised his impairment as “mild dyslexia”. The second found greater severity, and recommended that P be allowed an additional 25% time at each stage of the selection process (which had in fact been done). The ET accepted the evidence in the first report and dismissed the claim, holding that P was not disabled. There was no substantial disadvantage; any adverse effects of his impairment were minor. There was a substantial disadvantage with respect to carrying out the promotion examination but that was not a normal day-to-day activity, and with reference to the ordinary average norm of the population as a whole he was not disadvantaged, albeit that he was when compared with his non-dyslexic colleagues. The EAT allowed P’s appeal and substituted a finding that he was disabled. Carrying out an assessment or examination is properly to be described as a normal day-to-day activity. Reading and comprehension are themselves such activities. The meaning of the term encompasses activities which are relevant to participation in professional life. Appropriate measures must be taken to enable an employee to advance his employment. The effect of P’s disability may adversely affect promotion prospects, so it must be said to hinder participation in professional life. The only proper approach to establishing whether the disadvantage is substantial is to compare the effect of the disability on the individual: considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than might be expected taking a cross-section of the population, then the effects are substantial. Once the ET accepted that P was disadvantaged to the extent of requiring 25% extra time to do the assessment, it inevitably followed that there was a substantial adverse effect on normal day-to-day activities.

Thorpe v. DSG Ltd; 05/06/07 (3302382/04); EOR 170 p.26; ET

Race discrimination

T is black British and was employed by D for some years, first as a warehouse assistant and later as a merchandiser. There was ill-feeling between him and an Indian employee, N. There were several incidents where T alleged racial abuse by N, including the use fo the word “black” in a racially derogatory way. T complained of racial abuse by N to his manager, A. A said he was busy and did not deal with the complaint. A had taken T under his wing but found that he was always complaining and attributing unpleasant incidents to the fact that he was black. A admitted that he did not register or process many of T’s complaints. Another incident related to a request by T for extraordinary leave to deal with family matters abroad. Although he made his written application within the time limit, he received no response. When he chased the matter with HR, it transpired that an HR officer had taken his application home. She did not return it until the day before he was supposed to discuss the matter with management. Management failed to process the request although there was still enough time, so that T had to travel abroad without knowing whether or not he would receive full pay. T asked the area manager of D’s HR department for advice about pursuing a grievance about race discrimination. She failed to guide him accurately through the procedures and the tone of her letters was unhelpful. She was similarly unhelpful in relation to his later suspension and disciplinary proceedings and made no obvious progress in dealing with his complaints about alleged salary deductions. Following another incident of racial abuse from N, T physically assaulted N and was dismissed for gross misconduct. He claimed race discrimination, racial harassment and unfair dismissal. The ET found that T’s treatment by N, and various other individuals (excluding A who was “well motivated” towards him) amounted to persistent racial abuse amounting to a continuing course of action. The direct RD claim therefore succeeded but the harassment and unfair dismissal claims failed. The grounds for rejecting the harassment claim were that, although there was racial abuse, the conduct did not have the purpose of violating dignity or creating an intimidating, hostile, degrading or humiliating environment. T was clearly irritated by D’s conduct. He knew he was being discriminated against but dealt with it robustly. T was awarded £7,000 for injury to feelings – the lower end of the middle Vento band, taking account that the damage done to him was not substantial. He did not crumple and did not fall apart.

Barnetson v. Framlington Group Ltd & another; [2007] EWCA Civ 502; [2007] 1 WLR 2443; [2007] ICR 1439; CA

Rules of evidence – privilege – without prejudice discussions – negotiations over disputed contract terms – admissibility in proceedings for breach of contract in relation to the disputed terms

See below (Civil Proceedings)


Basingstoke Press Ltd (in administration) v. Clarke; [2007] IRLR 588; Current Law Digest Sept 07 p.70; EAT

ET procedure – jurisdiction – Statutory Grievance Procedures – time limits – calculating 28 day period

C lodged a grievance about B’s conduct on 7th October 2005. His claim form was presented on 3rd November alleging constructive dismissal. B was debarred from presenting a response but had sent letters to the tribunal making it clear that it wished to defend the claim. C’s claim was upheld by a chairman sitting alone. B appealed. There was an issue as to whether 28 days had passed between the presentation of the grievance and of the claim. There was a further issue as to whether the chairman was entitled to sit alone on the case. B’s appeal was allowed. 28 clear days are required to have elapsed under EA02. C’s claim was therefore presented 2 days early. This went to jurisdiction. A mere assertion on the claim form that the SGP had been complied with and the 28 days elapsed would not allow the claim to survive if the limit had not in fact been adhered to – it would merely give the regional secretary power to accept the claim. The matter should be looked at more carefully once before the chairman or tribunal, particularly when it was the subject of an application. A chairman could sit alone on an unfair dismissal claim when the claim was not resisted. B had not resisted the claim in the legal sense, because B had been ordered to take no part in the proceedings. Resisting had to come from the right to resist, which included the situation where one party had been ordered to take no part in the proceedings.

Beasley v. National Grid Electricity Transmissions; EAT 0626/06 (06.08.07); IDS Brief 839 p.11; EAT

ET procedure – time limits – unfair dismissal – claim 88 seconds late

B was dismissed on 7th February 2006 and immediately sought legal advice about a possible unfair dismissal claim. His solicitor advised him that any claim had to be presented within 3 months of termination, but suggested that time might be extended by virtue of application of the statutory grievance procedure. On 5th May 2006 the Tribunals Service advised B that the SGP did not apply to his dismissal and he had to comply with the 3-month time limit, by then due to expire at midnight the following day. B’s solicitor advised him to present the claim immediately. On 6th May B e-mailed his ET1 to the Tribunals Service at 11:44 pm. One minute later, the e-mail was returned to him because it was incorrectly addressed (he had typed “jsi.gov.uk” instead of “gsi.gov.uk”). At 11.57 B sent a test message (without the claim form) to the correct address. He sent the ET1 at midnight and it was received by the Tribunals Service 88 seconds after midnight. A chairman heard the time limit point as a preliminary issue. He concluded that it was reasonably practicable to present the claim timeously. B sought a review of that decision. The application was rejected. B then appealed to the EAT. His appeal was dismissed. The EAT had regard to the CA decision in Marks & Spencer plc v. Williams-Ryan. The critical factors in determining reasonable practicability were: the state of B’s knowledge relating to the right to make an unfair dismissal claim and the need to do so within 3 months; the steps taken by him to ensure that the claim was in time; and any impediments preventing him from bringing the claim within this period. The chairman had considered all 3 factors and had correctly decided that B knew on 5th May that the time limit would expire the following day. The chairman had taken account of the problems B had encountered using the Adobe Acrobat format and reading the correct e-mail address. He had also found that B could have sent the ET1 in time together with the test message. Finally, the chairman had considered whether the incorrect advice given at an early stage and computer difficulties had amounted to an impediment. B argued that the chairman should have taken into account the fact that by the time he was told of the applicable time limit, he had only one day in which to present his claim. However, he did not put this argument before the ET and the chairman did not err in not considering it. The chairman had considered all relevant factors and the decision that it was reasonably practicable to present in time was legitimately open on the facts. Although the EAT sympathised with B, the delay was a mere 88 seconds and no prejudice was caused to N, these factors were ultimately immaterial because of the reasonable practicability of timeous presentation.

Brunel University v. Vaseghi, sub nom. Brunel University v. Webster; [2007] EWCA Civ 482; [2007] IRLR 592; Current Law Digest Sept 07 p.71; CA

Race discrimination – Rules of evidence – privilege – without prejudice communications referred to at grievance hearing about discrimination allegations – admissibility in proceedings for victimisation

See above (Discrimination)

Department of Constitutional Affairs v. Jones; [2007] EWCA Civ 894; IDS Brief 839 p.5; CA

ET procedure – time limits – disability discrimination – whether just and equitable to extend time – reluctance by Claimant to admit that depression amounted to a disability

J was the chief executive of the North Wales Magistrates’ Courts Committee (N). In July 2004 he was suspended from work following allegations of serious financial irregularities. Soon afterwards he was diagnosed with anxiety and depression. In October he broke his ankle. N held an investigation interview which J was unable to attend because of his medical condition. A disciplinary meeting was arranged for November. This was postponed because both J’s doctor and a doctor instructed by N advised that J was too ill to attend. The hearing was rescheduled for January 2005. Shortly beforehand, the same 2 doctors confirmed that J remained unfit to attend. By this stage he was suffering from severe depression. However, his request for an adjournment was refused and the hearing took place in his absence. J was dismissed for gross misconduct with effect from 1st March 2005. His appeal failed. N subsequently reported J to the Law Society and his home was raided by the police with his wife and children present. In April 2005 J presented various claims against D (to whom N’s responsibilities had passed in March 2005) to the ET, including one for unfair dismissal. In July 2005 he submitted a further claim for disability discrimination. This was 5 weeks after the 3-month time limit. There was a preliminary issue as to whether J should be granted an extension of time in respect of the disability discrimination claim. The chairman considered a variety of factors. He expressed himself “puzzled” that J had not brought a timeous claim despite his wife (a solicitor), union and solicitors all advising him as early as January 2005 that they considered his depression amounted to a “disability”. However, J’s evidence was accepted that the reason for not presenting his claim in time was a reluctance on his part to accept that he was so mentally ill as to be disabled. In January 2005 his doctor had advised him that he would recover following further treatment. At the time of presenting his other claims he had therefore refused to accept that his illness was long-term. However, by July 2005 his condition had not improved and he had finally accepted that he was disabled. The chairman also considered that N had made no secret of its wish to complete the disciplinary procedure before its powers transferred to D on 31st March. It had therefore proceeded in J’s absence. This had led to the dismissal which set the time limit running at a time before J was prepared to admit to himself or others that he had a disability. Had the meeting been postponed until J was fit to attend, it was likely that he would have presented a claim well within time. In the circumstances the chairman was prepared to grant an extension of time. The EAT upheld the ET’s decision. D appealed to the CA. In particular, D contended that it was perverse to extend time when J had ignored medical and legal advice and made a deliberate decision not to bring a DDA claim at the same time as his other claims. If the fact that J was not prepared to accept that he was disabled could amount to an exceptional reason, it would open the door to other delayed claims and be contrary to the interests of justice. The CA rejected the appeal. The chairman had not failed to take relevant matters into account. In particular, he had considered the s33 Limitation Act checklist (as modified by the EAT in British Coal Corporation v. Keeble). The chairman had been entitled to conclude in the circumstances that the factors of promptness of action, and of seeking professional advice, once J knew of the facts giving rise to the cause of action were not pertinent. As to perversity, the chairman was entitled to exercise his discretion as he did given the combination of circumstances present. There is an additional factor in DDA cases which does not apply in others – namely the requirement that the impairment has lasted, or is likely to last, 12 months. In J’s case those 12 months did not expire until after the claim was brought. He therefore had to predict the likely duration of the condition. He could of course have regard to medical advice. However, he was a mature individual with a responsible job and had cited reasons why he did not want to admit that he was disabled, and the chairman had concluded that that was the real reason for the delay. Second, N had hurried the disciplinary process and thereby advanced the date of dismissal and therefore the date by which J had to decide whether he had a disability. The chairman had correctly identified and explained this factor. Furthermore, D had itself contested that J had a disability. This made it more difficult for D to assert that it was unreasonable for J not to acknowledge his mental illness. The chairman was also entitled to consider the series of misfortunes which J had suffered, such as the police raid, broken ankle and hearing in his absence. These had affected his mental state, thereby making it more likely to be just and equitable to grant a modest extension. The chairman exercised his discretion properly. The CA emphasised that it did not intend to lay down a general principle that a person with mental health problems is entitled to delay as a matter of course in bringing a claim. There were clearly exceptional circumstances warranting an extension in this case.

Sage (UK) Ltd v. Bacco; Times 11/10/07; EAT

EAT procedure – law reports to be included in list of authorities in bundle

When lodging copies of authorities with the EAT for the purposes of an appeal, parties should ensure that where cases had been reported, those reports were copied in the bundle of authorities. It helped the EAT, when pre-reading a case, to refer to the headnote of an authority. It was not a sensible use of time to read through the entire judgment in order to assimilate the basic facts and holdings in the case. It was also useful to the readers of EAT judgments to see precise references to passages in the earlier cases cited. That was often helped by references to the relevant law report.

Secretary of State for Health & another v. Rance & others; EAT 0060/06 & others, 04.05.07; IDS Brief 838 p.7; EAT

EAT procedure – point of law conceded or not taken below – administrative error

These appeals concern the “Preston litigation” involving around 60,000 equal pay claims lodged in the mid-1990s mostly by female part-time workers excluded from occupational pension schemes. A special procedure has been adopted in the ET whereby when claims are lodged, respondents submit schedules indicating which claims they contend should fail and conceding liability in others. The claimants in the disputed claims are then asked to show reasons why they should succeed. If the ET deems such reasons inadequate, the claims are struck out. The appeals were in 4 test cases representing 120 appeals arising out of some 11,000 claims against the NHS. In each case the NHS Pensions Agency initially indicated that it conceded the entitlement to retrospective pension access in relation to certain periods of employment. Judgment was given accordingly. Some weeks later, as a result of a routine audit, the NHS discovered that, through administrative error, concessions had been made in respect of some periods which should have been disputed. Reviews were sought of the judgments entered. In each case, the error concerned the issue of time limits under the Equal Pay Act.

In the case of R, the review was sought on the basis that the NHS had failed to notice that time ought to have run from a different date rendering the claim out of time. The review application was made 3 weeks beyond the 2 week limit for such applications. The chairman refused the application on the basis that a review would jeopardise the requirement of finality in litigation, and N should not be allowed belatedly to withdraw from a considered succession.

In the case of C, the review was sought on the basis that the NHS had failed to spot a point that there was an interruption to the stable employment relationship, triggering the time limit and rendering the claim out of time. The application for review was made 3 weeks after judgment was entered. That review was considered and rejected.

In the case of W, the application for review was on the basis that time should have started to run at an earlier stage, thus rendering the claim out of time. The review application was refused on the basis that it was made out of time and that N had “admitted part of the claim”.

In the case of M, the application for review was on the basis that N had failed to spot a point that there was an interruption to the stable employment relationship, triggering the time limit and rendering the claim out of time. The review was considered and the earlier decision confirmed on the basis that the change of jobs in question was a promotion rather than a change of employment, so time had not started to run.

On N’s appeal, the EAT considered whether, and in what circumstances, it might consider points of law not taken, or conceded, before the ET. The case of Jones v. Governing Body of Burdett Coutts School (CA) was considered. The guiding principles were identified from that case thus:

The EAT noted that it was necessary to go beyond these principles to deal with the specific facts in these appeals. Other factors were listed as being relevant to the exercise of the discretion. These included the short periods between the concession or judgment and N’s attempt to correct its error, the fact that N’s change of position was as a result of administrative error in a small number of cases amongst thousands rather than being a forensic or tactical decision, the fact that N had made a genuine attempt to raise the matter on review, and the fact that the claimants had not given up any part of their claims in exchange for the concession. In the cases of R, W and C, N’s case was also bolstered by the fact that there had been no examination of the merits of the claims. They had been dealt with according to administrative measures directed by a chairman, rather than by a full examination of their merits. Accordingly, in those three cases the discretion would be exercised and N released from its concessions. In M’s case, however, the chairman had conducted a review of the substantive merits at a review hearing. This appeal was withdrawn by N during the course of the hearing and it was acknowledged by the EAT that this was the correct course and that N would not have been allowed to take the new point in this appeal. The EAT then considered substantively whether the time limit point should succeed in respect of R, W and C. R and W had had gaps in their employment histories such that more than 6 months had passed by the time their claims were presented. In the light of the documentary evidence, C had taken up different work and was therefore also out of time. In all 3 cases, the declarations of entitlement to pension scheme access were set aside.

Airbus UK Ltd v. Webb; [2007] ICR 956; Current Law Digest Sept 07 p.70; EAT

Unfair dismissal – disciplinary procedure – expiry of past warnings

The ET decided that W was unfairly dismissed. A appealed. W was summarily dismissed after being found when watching television when, according to A, he should have been working. Other members of staff accused of doing the same thing were not dismissed but were given a final warning. W was dismissed because he had a prior disciplinary record: he had been found washing his car when he should have been working and had been issued with a final written warning. However, that warning had been expressed to last for 12 months and had expired about 3 weeks before the later incident. As the decision to dismiss depended on the taking into account of the expired warning, the ET concluded that it should be treated as unfair (Thomson v. Diosynth Ltd). A argued that Diosynth could be distinguished or was wrong and ought not to be followed. A asserted that it was a well-established interpretation of the ERA that tribunals should consider all the circumstances when deciding whether a dismissal was fair, and should eschew the adoption of rigid rules. The appeal was dismissed. The arguments were finely balanced. However, it would be inappropriate to dissent from earlier decisions of the EAT, and particularly undesirable to part company with a decision of the Inner House of the Court of Session thus giving rise to different law in Scotland from that in England & Wales on this issue. The EAT was not bound by decisions of the Inner House, but pragmatic good sense would suggest that it should ordinarily follow them, even when there might be narrow grounds for distinguishing the Scottish case. Diosynth could technically be distinguished, because it was not concerned with an employer choosing to be lenient (as here). However, if A’s submission on the point was correct, the distinction between the situation where the employer could consider an earlier warning and where he could not would become a fine and to some extent arbitrary one. Even if the ET had not been strictly bound by Diosynth, it had applied a very modest, and entirely logical, extension of the principle enunciated by the court in that case. Moreover, the general thrust of Diosynth, and of the EAT decisions in William Grant & Sons Ltd v. Devlin and UK Coal Mining Ltd v. Raby was that where, but for the expired warning, the dismissal would not have occurred, that dismissal was unfair. On balance, those authorities tended to establish that the tribunal was obliged, rather than merely entitled, to ignore expired warnings. The tribunal’s decision was in line with those authorities. The lesson for employers was to take care when giving warnings, particularly final warnings, to tailor them to the particular circumstances.

Enfield Technical Services Ltd v. Payne; Grace v. BF Components Ltd; [2007] IRLR 840; EAT

Contract of employment – agreements with the effect of depriving the Revenue – illegality

See below (Contract of employment).

Gab Robins (UK) Ltd v. Triggs; [2007] IRLR 857; [2007] ICR 1424; EAT

Unfair dismissal – constructive dismissal – mutual trust and confidence

G were chartered loss adjusters. T was a secretary/personal assistant to two investigators at G’s Romford office. From 2001 one of those investigators raised with his manager, B, a problem with the excessive workload borne by T. In 2003 T collapsed at home and was signed off work with stress by her doctor. The 2 investigators continued to raise the matter with B, but T remained overworked, putting in long hours without extra pay. T also found that B’s treatment of her amounted to bullying (for example by shouting at her down the phone). In September 2004 T returned from 2 days’ sick leave to receive a telephone call from B during which he shouted at her. She decided she had had enough, left the office and did not return. Her doctor signed her off sick, initially with stress and later with anxiety and depression. G agreed to pay her full sick pay until 5th November. On 20th December she raised a grievance about long-term bullying by B and overwork. After no reply she sent a reminder. She then received a reply which raised two issues: payment of company sick pay and her relationship with B. A meeting was arranged at her home in January 2005. She outlined the history of her complaint. G wrote to her offering her half pay from 5th November to 28th Feb 2005, with SSP from 1st March. An informal meeting with B prior to T’s return to work was proposed in order to try to resolve their differences. T replied stating that G had disregarded her grievance about B. She terminated her contract of employment and said she would be bringing ET proceedings. The ET upheld her complaint of constructive dismissal and awarded her full salary from the date of dismissal for such period as the ET determined. G appealed on two issues: whether the ET was wrong in its approach to the question whether there was a repudiatory breach of trust and confidence by the conduct of the grievance; and whether the ET erred in holding that T suffered recoverable loss following termination. The EAT upheld the finding that T was unfairly dismissed. Reference was made to Waltham Forest London Borough Council v. Omilaju. (1) The final straw did not need to be of the same quality as the previous acts relied upon as a cumulative breach of trust and confidence, but it must, when taken in conjunction with those previous acts, contribute something to the breach and be more than utterly trivial. (2) Where, following a series of acts amounting to a breach, an employee continues in employment thus affirming the contract, he cannot subsequently rely on the earlier acts if the final straw is entirely innocuous. (3) The final straw, viewed alone, need not be unreasonable or blameworthy conduct on the part of the employer or of itself amount to a breach of contract. However, it will be an unusual case where the final straw consists of conduct which, viewed objectively as reasonable and justifiable, satisfies the final straw test. (4) An entirely innocuous act cannot be a final straw, even if genuinely (and subjectively) but mistakenly interpreted by the employee as destructive of trust and confidence. In a true final straw case the range of reasonable responses test has no application to the employer’s conduct of a grievance procedure where that conduct is the final straw relied upon.

Applying those principles in this case, the overwork and bullying relied on by T amounted cumulatively to a breach of trust and confidence as at September 2004. Thereafter she remained in employment whilst off sick, thereby affirming the contract. However, G’s failure to carry out an adequate and proper investigation into her grievances contributed materially to the earlier acts so as to amount cumulatively to a breach of the implied term. The conclusion as to the recoverable loss of post-termination earnings was also correct. In the present case T’s ill-health was to be regarded as a consequence of the dismissal leading to loss of earnings which would otherwise have been received at the full rate from G. This loss was attributable to action taken by G.

Greenwood v. Whiteghyll Plastics Ltd; EAT 0219/07 (06.08.07); IDS Brief 839 p.10; EAT

Unfair dismissal – some other substantial reason – third party pressure to dismiss

W employed G to carry out shop fittings at various stores. For some time, G worked at stores owned by M, one of W’s major customers. M made 3 complaints about G’s standard of work, and subsequently told W that G was no longer an acceptable representative and was banned from working in M’s stores. W was unable to find alternative work for G due to lack of “spare capacity”. W had recently made 9 other employees redundant. W dismissed G after a disciplinary hearing, and upheld the dismissal on internal appeal. G claimed unfair dismissal. The ET noted that M was a much large company than W and was in a position to dictate who and what was acceptable to it. As a result, W had very little choice other than to dismiss in the light of M’s complaints, unless there was alternative work available away from M’s stores. W had investigated alternatives but found none available. In the circumstances, W had dismissed for SOSR and had acted reasonably in doing so. G appealed to the EAT, relying on Dobie v. Burns International Security Services (UK) Ltd as authority that, whilst third party pressure is capable of justifying dismissal, in such circumstances a very important factor in assessing reasonableness will be whether there will be injustice to the employee, and the extent of that injustice. The employer will usually be expected to consider length of service, work record and the difficulty the employee may face in finding other employment before taking the decision to dismiss. G argued that neither W nor the tribunal had given consideration to the extent of the injustice he had suffered. The EAT accepted G’s submissions. There was no evidence before the ET demonstrating that W had considered the nature and extent of any injustice to G. Similarly, the ET had erred in failing to consider this matter. It may well have been the case that, had the ET considered any injustice to G, it would have decided that it made no difference to the decision to dismiss. On the other hand, the injustice might have been so severe (and the EAT thought it worthy of note that the ET made no finding criticising G’s work or capability) that W should have reorganised its business so as to enable G to take another job within the company. In the absence of evidence that the ET considered the issue of injustice, the finding that the dismissal was fair could not stand. The appeal was allowed and the matter remitted to a different tribunal.

McAdie v. Royal Bank of Scotland; [2007] EWCA Civ 806; IDS Brief 838 p.10; [2007] IRLR 895; CA

Unfair dismissal – incapacity – employer causing incapacity – reasonableness

M worked for R from 1983 and was promoted over the years to a senior position. In 1995 she suffered a period of ill health and opted for a less stressful, part-time position. In 2003 she was asked to transfer to a different branch. She did so reluctantly, after making formal complaints to S (the manager arranging the transfer) and S’s manager G. M believed that she had been displaced from her post by an employee from another branch. After the transfer, G arranged a meeting to discuss the situation. M found the meeting itself positive, but there was a delay in supplying her with the interview notes, which she regarded as incomplete. There was then a telephone conversation between M and G during which M considered G to be “extremely intimidating and bullying”. M complained in writing but received no response for a month, and was not satisfied with that response. Her health deteriorated and she was off work sick from September 2003. In November, she raised a formal grievance complaining about the transfer, the inadequate notes and the manner of the telephone conversation. Her grievance was dismissed. There was a stage 2 grievance during which a director upheld the earlier decision. In June 2004 R initiated its long-term sickness absence procedure in respect of M. In November M was diagnosed by occupational health with “severe adjustment order” arising from alleged workplace issues including harassment. The OH advice was that recovery was only likely if the workplace issues were resolved. There was a meeting in December. It was recorded that M had said several times that she was not able to consider any form of return to work. She was dismissed with 12 weeks’ notice and her internal appeal failed. She claimed unfair dismissal. The ET upheld her claim. The reason was capability and was potentially fair. However, M’s incapacity had been caused by R’s handling of the grievance. The ET took this into account and found that no reasonable employer would have dismissed in these circumstances because no reasonable employer would have found themselves in these circumstances. R appealed. The EAT allowed the appeal, finding that the ET had erred in focussing on R’s fault in causing the illness rather than the reasonableness of the dismissal in all the circumstances. M appealed. The CA upheld the EAT’s decision and declared itself in complete agreement with, and reluctant to add to, the EAT’s reasoning. The issue was whether R’s fault in causing the incapacity took the dismissal outside the range of reasonable responses. There had previously been conflicting EAT authority. LFCDA v. Betty held that an employer’s responsibility for incapacity was not a factor to be taken into account in determining reasonableness of dismissal. Later decisions in Edwards v. Governors of Hanson School and Frewin v. Consignia plc held that Betty overstated the position and that the cause of the incapacity was a factor to be taken into account, but that an employer could not be precluded from ever effecting a fair dismissal by reason of having caused the incapacity. The EAT, endorsed by the CA, followed the decisions in Edwards and Frewin. Although the ET was entitled to take into account the fact that R caused M’s incapacity, it erred in finding that dismissal was outside the range of reasonable responses. It should have considered whether it was reasonable for R to dismiss in the circumstances in which it found itself. If it had asked that question, it could only have found that dismissal was in fact the only option. M had no prospect of recovery and had stated that she would never be able to return to work. Given those facts, M was in the “impossible position” of having to argue before the CA that R, as a matter of law, was simply unable to dismiss her fairly. For the reasons given by the EAT that was plainly unsustainable.

Smith v. Michelin Tyre plc; Dundee ET 04.07.07 (100726/07); IDS Brief 839 p.12; ET

Unfair dismissal – conduct – breach of workplace smoking policy – reasonableness

Barnetson v. Framlington Group Ltd & another; [2007] EWCA Civ 502; [2007] 1 WLR 2443; [2007] ICR 1439; CA

Rules of evidence – privilege – without prejudice discussions – negotiations over disputed contract terms