Arthur v. Northern Ireland Housing Executive & another;29/06/07 NICA 25; IDS Brief 841 p.12; Northern Ireland CA

Disability discrimination – reasonable adjustments – dyslexia – additional time to complete pre-interview aptitude tests

A, who suffers mild to moderate dyslexia, applied to N for a post as a graduate management trainee. N had 15 posts on offer and received 770 applications. After an initial sift it decided to reduce 446 applications to a pool of 60 to 70 for interview by using psychometric testing. N used an external organisation, S, to administer the tests. Before the tests A telephoned S about his disability. It was agreed that he would be given an additional 20% of time to complete the test. A scored 98 in the tests. Only those scoring 117 or above were invited to interview. A brought an ET claim alleging that N had failed in its duty to make reasonable adjustments to prevent him being placed at a substantial disadvantage on account of his disability. A relied on the fact that N’s own code of practice on employing people with disabilities provided that “testing will only be applied to disabled candidates where appropriate” and that “tests will be used as a source of information for the panel but not as a shortlisting device for applicants with disabilities”. The ET noted that this code was not drawn to S’s attention and had not been applied in relation to A’s application. The ET heard evidence from 2 clinical psychologists. S’s expert considered that 3 options would have been appropriate for A: allowing him to go forward to interview without sitting the test, testing him and offering him an interview regardless of his score, or using the test for shortlisting. Both experts agreed that it would have been possible to modify the tests so as to suit A, although A’s expert expressed concern that modification could compromise the validity of the test. The experts also agreed that A’s score was in keeping with his academic ability. A’s expert considered that the most appropriate option would have been going straight to the interview stage without any test, although this would have given A a “differential boost”. The ET concluded that the adjustments made had put A on the same footing as non-disabled candidates so that he did not suffer any substantial disadvantage. It pointed out that there was no obligation to treat A more favourably than non-disabled candidates to the extent of excusing him the test. As for the failure to implement the code of practice, the ET noted that it might be possible to draw an inference from that failure. However, it was satisfied that it was inappropriate to draw an inference in this case, because the issue was not whether there was a breach of the code but whether there was a breach of the statutory duty. N had taken such steps as were reasonable in the circumstances and the facts of the case suggested that no further adjustments were required. On appeal A argued that if N had applied its own policy the tests would not have been used as a shortlisting device and any disadvantage caused by his dyslexia would have been removed altogether. He relied on Archibald v. Fife Council and asserted that the duty to make reasonable adjustments may require treating the disabled employee more favourably than others. He also argued that the ET erred in its approach to the burden of proof as set out in Igen v. Wong which had suggested, inter alia, that an inference of discrimination may be drawn from any failure to comply with a relevant code of practice. A’s appeal was rejected. As to the burden of proof, it was held that the tribunal did not err in law by failing formally to go through the two-stage approach set out in Igen. It was clear from the decision that the tribunal correctly considered whether N had fulfilled the duty placed upon it to take such steps as were reasonable to prevent the psychometric test from placing A at a substantial disadvantage in comparison with the non-disabled. The tribunal did not misdirect itself as to the significance of N’s code of practice. It correctly stated the issue as being one of breach of statutory duty to make adjustments rather than breach of N’s policies. Although the code provided for possible adjustments, the adjustments which N in fact made placed A on the same footing as the other candidates. As A was no longer at a substantial disadvantage, there was no further duty to follow the code of practice.

Baldwin v. Brighton & Hove City Council; [2007] ICR 680; Current Law Nov para 136; EAT

Sex discrimination – constructive dismissal – transsexual undergoing gender reassignment – trust & confidence – test for assessing employer’s conduct

See below (Unfair Dismissal)


Bloxham v. Freshfields Bruckhaus Deringer; IDS Brief 840 p.5; 2205086/06; ET

Age discrimination – pension scheme – justification for direct discrimination

This case concerned a defence of justification to an allegation of direct discrimination on grounds of age. B was a partner of F. He planned to retire in March 2007 at the age of 55. F’s partners were remunerated on a “lockstep” basis, being awarded a share of annual profits depending on points accrued. New partners were awarded 20 points and accrued a further 2.5 points per year of service, to a maximum of 50. Partners also acquired pension points at 0.5 per year to a maximum of 10. Pension points entitled partners to continue to participate in the profit share once retired. During B’s time as a partner the pension scheme underwent several changes. At the material time, partners could retire on full pension at 55. From 50 to 55 they could take early retirement provided that the Partnership Council agreed and subject to a reduced accrued entitlement: if they retired at 54 there would be a 20% reduction, at 53 a 25% reduction etc. Partners retiring at age 50 to 53 had the option of retiring but deferring payment of benefits for a number of years, at which point a discounted pension would be paid depending on the age to which they had postponed payment: a 53-year-old partner could defer payment for a year, thereafter receiving benefits subject to a discount of 20% rather than 25%. By 2002 it was apparent that the pension scheme required amendment to tackle “intergenerational unfairness” by which current pensioners received a greater level of benefits than current active partners could expect to receive on retirement. The profits paid to active partners under the profit share scheme and the pension benefits paid to retired partners came from the same finite profits fund. This had the effect that the growing number of pensioners caused a greater proportion of the funds to be used to pay retired partners rather than to contribute to the profits of younger, active partners. There was a rule of the scheme that no more than 10% of the fund could be paid out in retirement benefits: this contributed to the unfairness. Projections suggested that the cap would be hit in around 2018, following which the value of pension points would decline. Active partners would therefore suffer a double disadvantage, having paid uncapped pensions to retired partners, but themselves only ever having the prospect of a capped pension on retirement. A new pension scheme came into effect in May 2006. This provided for significantly less generous benefits than the earlier version of the pension scheme. In order to ameliorate the effects on members who would be close to retirement when the new scheme came into effect, there were transitional arrangements providing that partners aged between 50 and 55 on 30th April 2006 would be permitted to retire until 31st October 2006 on the same terms to which they would have been entitled under the old scheme (including the reductions for early retirement and the deferral option in respect of discounts). B turned 54 in March 2006 and took early retirement on 31st October 2006. He took advantage of the transitional arrangements. He brought a claim of age discrimination. His argument was that, had he been 55 on 30th April 2006, he would have been able to retire with full benefits under the old scheme. Because he was only 54 on that date, he could only take 80% of his rights under the old scheme. This, he said, was less favourable treatment on grounds of age. He argued that the rule by which 50 to 53 year olds, but not 54 year olds, could defer payments and receive benefits at a lesser discount from a later date, amounted to less favourable treatment of him than of those aged between 50 and 53.

The ET considered first whether it was less favourable treatment on grounds of age to apply the 20% discount to B’s pension. F argued that the difference in treatment was on grounds not of age but of the old scheme having closed in April 2006. B’s detriment resulted from the more limited rights he accrued at that date rather than his age. A person over 55 who remained with the firm after the same date would also have lost his rights under the old pension scheme. It was the inevitable consequence of closing the old scheme that those whose rights had not fully accrued by the cut-off date would be adversely affected. The ET rejected that argument, holding that B had established that, compared with a 55-year old in the same scheme, he had been less favourably treated, on grounds of his age, by the transitional arrangements. The ET acknowledged F’s point that such a finding would mean that employers would have to consider the effect on employees of different age groups whenever considering a change to a pension scheme or employment policy. However, that did not entitle the ET to interpret the Regulations contrary to reason. If an event occurs by reference to a specific date which, by reason of their age, has a more disadvantageous effect on some than on others, the employer may have to justify that disadvantage to avoid a finding of discrimination. The ET then considered whether the treatment was a proportionate means of achieving a legitimate aim. F’s aim in reforming the pension scheme was to provide for a more sustainable pension arrangement and to reduce the intergenerational unfairness to younger partners under the old scheme. B accepted that this was a legitimate aim but argued that the failure to consider removing the 20% discount in the transitional arrangements was not legitimate. The ET rejected this argument. Removing that discount would, in the context of profit-sharing from a finite pot, have resulted in unfairness to some other group. That was a legitimate argument against removing the discount as part of the transitional arrangements. The next question was that of proportionality. The ET found that F comfortably passed this test, having particular regard to the following factors: the reforms were aimed at addressing an issue where it had been recognised that younger age groups were becoming increasingly disadvantaged. Disapplying the discount in the transitional arrangements would have improved the position of people in B’s situation – this group already being protected by the transitional arrangements – at the expense of other age groups. In the context of the aim of the reforms, this would have been unfair and perverse. Even after lengthy and thorough consultation, a less discriminatory alternative was not put forward. The reforms were agreed by a 2/3 majority of the partners. Further, partners retiring under the transitional arrangements were offered consultancies, which would have alleviated the effects of the reforms on them. B had been offered such a position but had rejected it. There was therefore objective justification of the application of the 20% discount to B.

The ET also rejected B’s claim about his inability to defer and that this put him at a disadvantage as regards 50 to 53 year olds. Although those in that group could benefit from the provisions, a partner in that age range could not put himself in a better position than B. For example, a partner retiring at 52 and seeking to take a discount of only 20% would have to defer for 2 years the drawing of a pension, and only at that point would he or she be in receipt of the same pension as B. This was a material difference between B and the comparator group and therefore was not a like-for-like comparison. In any event, B was not treated less favourably than the comparator group – arguably he was more favourably treated.

F also attempted unsuccessfully to argue that the ET did not have jurisdiction over the claim. B also failed in a claim of indirect discrimination. 

British Medical Association v. Chaudhary; [2007] EWCA Civ 788; [2007] IRLR 800; [2007] ICR Part 11 “recent points” p. xxvi; Current Law Nov para 148; CA

Race discrimination – indirect discrimination – victimisation

Reported in the 01.11.07 update. Now also reported in the ICR and Current Law.

Cosgrove v. Northern Ireland Ambulance Service; [2007] IRLR 397; Current Law Nov para 139; CA(NI)

Disability discrimination – meaning of “impairment” – skin disease – disfigurement

C successfully applied for a post as an “emergency ambulance person” with N. He attended a pre-employment medical. It was held that he suffered from such severe psoriasis as to render him unfit for the post. The concern was expressed to be that his condition could be aggravated by exposure to irritants in the course of his employment, there was a risk of cross-infection for patients, and C would be at a substantially increased risk of infection. He brought ET proceedings for unfair dismissal. His claim was dismissed: the ET found that the element of his skin condition which led to employment being refused was not the disfigurement (within the meaning of Sched 1 para 3(1) of the Act), but the likelihood that his condition would become infected or cause cross-infection. On appeal, C argued that, since N had accepted that he was DDA disabled, the tribunal erred in going beyond that conclusion. It should have found that C was treated less favourably because of his disability and then examined whether N could make out justification. C’s appeal was dismissed. In order to fall within the DDA, a disability had to be severe enough to cause a substantial and long-term adverse effect on ability to carry out normal day-to-day activities, or to consist of a severe disfigurement. The latter provision reflected the increased consideration that should be accorded to persons refused employment or disadvantaged at work on account of their appearance. In the present case, the refusal of employment was unrelated to C’s disfigurement – it was grounded in the risks to himself and others that would arise from his employment in that particular post. The impairment referred to in para 3(1) related solely to a condition of disfigurement, not to one of which one aspect was disfigurement. In order to fall within para 3(1) the impairment would be one which related solely to cosmetic appearance. That was not the case here.

Coulombeau v. Enterprise Rent-a-Car (UK) Ltd; 2600296/06; EOR 171 p.30; ET

Sex discrimination – pregnancy – dismissal due to adoption plans – remedy

C, then aged 21, joined E as a graduate trainee in June 2004. In late 2004 she learned that she could not bear children. She embarked on the process of adoption. She made good progress at work and had an “excellent” appraisal in December. In June 2005 she was promoted to assistant manager at the Grantham branch. That month she received the “employee of the month” award and had a second “excellent” appraisal. She was featured in E’s graduate recruitment brochure. In July she topped E’s “assistant manager matrix”. In September she moved to a larger branch in Nottingham by way of “lateral promotion”. This branch was known to be “very busy and troubled” with staffing problems. Prior to her arrival £1,200 had gone missing from the cash box and later that year the branch manager was given a final written warning. In October, E brought disciplinary proceedings against C in respect of 3 allegations including misuse of a fuel card from the Grantham branch and alteration of junior employees’ time sheets. At the second stage of the proceedings, at which time a senior manager H became actively involved, further charges were introduced in respect of alleged misconduct regarding a competition in late 2004 and alleged overcharging of a customer in September 2005. In November 2005 C was dismissed for gross misconduct. H was aware of C’s plans to adopt and commented to a colleague words to the effect that “She’ll be no bloody use to me then”. C lost her internal appeal against dismissal. The ET considered the charges levelled against C. It found that the dismissal was unfair and that H got involved in the disciplinary hearings in order to ensure she was dismissed, and orchestrated her dismissal because he saw her as likely to need time off for adoption purposes, including ultimately adoption leave. This made the dismissal automatically unfair and discrimination. The ET took account of the background evidence of treatment of other female employees as well as C. It found that, despite having an excellent procedure on sexual harassment, E was reluctant proactively to investigate complaints of sexual harassment raised by female employees and there was a discriminatory climate in the East Midlands offices when dealing with complaints by women against me. The ET found on the facts that C was treated less favourably than 2 male comparators who were not dismissed despite more serious disciplinary charges (sexual harassment and misconduct involving falsification) against them. The award included £12,500 for injury to feelings, taking into account that the dismissal impacted on C’s adoption plans. As a result of losing her job she put the final stages of her plans on hold until she had found new employment and been there long enough to secure the support of her employer. This was considered a serious injury to feelings justifying an award at the higher end of the middle Vento band.

Court v. Dennis Publishing Ltd; IDS Brief 840 p.8; 2200327/07; ET

Age discrimination – redundancy – selection on grounds of age – inferences

D publishes a wide range of magazines and is divided into 4 divisions. C had been employed by D since 1989. He was Promotions Director with responsibility for creative solutions (a form of advertising) within the Motoring Division. The only other division to have a creative solutions team (consisting of 5 people) was the Lifestyle Division. In an exercise to increase profit and reduce cost, D decided to create a centralised team for selling creative solutions across all 4 divisions. In September 2006 D invited O to head the new team, without informing C of this fact. In October 2006 C attended a meeting with the Director of Advertising. The meeting was ostensibly to discuss possible new clients, but instead C found himself being informed that D was going to make him redundant. After the meeting he was handed a letter (prepared before the meeting) confirming that his employment would terminate on 31st October, that he was not required to work out his notice, that D had been unable to find him alternative work, and that his redundancy package was £30,000. At that time C was 55. His duties were distributed among the members of the new creative solutions team. O commenced work for D on the day that C’s employment terminated. C’s solicitors wrote to D submitting a grievance that he had been unfairly dismissed and discriminated against on grounds of age. The grievance was rejected at first instance and on appeal. The ET found s98A unfair dismissal – D conceded that it had failed to follow the SDP. The ET also found s98 unfair dismissal. Although the reduction in numbers within the creative solutions team meant a genuine redundancy situation and a potentially fair reason for dismissal, the dismissal was unfair because of D’s procedural failings. There was no warning to C that he was at risk of redundancy, there was a failure to draw up selection criteria or to include the 5 Lifestyle Division creative solutions employees in the pool, and there was a failure to consider alternative employment. Further, D breached C’s contract by failing to follow its own redundancy procedure. The ET then considered the age discrimination claim. C had to show less favourable treatment on grounds of age than that afforded to others. The correct comparators were the employees in the Lifestyle Division creative solutions team. The ET concluded that there were various factors from which an inference of age discrimination could be drawn. First, D’s owner had written a book in 2006 entitled “How to Get Rich”. This set out the view that young people are good for business because they can be underpaid for a short while before having to be paid the market rate. The book included comments that “by the time talent is in its late forties or early fifties, it will have become very, very expensive” and that it is unwise to “leave senior employees in any job too long”. Although D’s owner did not take an active role in the day-to-day running of the company and did not play an active part in the restructuring or the dismissal, the ET held that the philosophy espoused in his book, which had been read by the managers who did take those decisions, had infected the culture within the company. Second, the employees in the Lifestyle Division team were all at least 20 years younger than C. Whilst the ET pointed out that a prima facie case is unlikely to be made out simply because of a difference in age and a difference in treatment, this was a situation where there was an imbalance of numbers. By analogy, if one male and one female apply for a post, the failure of one of them to be appointed cannot make a prima facie case, but if there are five females and one male and the male is appointed, there could be an inference of discrimination. The same reasoning applied here. Third, O was 22 years younger than C. This reinforced the ET’s view of D’s philosophy. C’s dismissal could be properly viewed as “clearing out the old guard”. Fourth, notes made by a manager prior to the appeal hearing referred to correcting the assumption that age was the only factor for C’s dismissal. This, in the ET’s view, implied that age was indeed a factor. In the absence of an explanation unrelated to age, the ET found that the claim succeeded. C failed to establish a case of indirect discrimination on the facts.

Evans v. Lloyds TSB Asset Finance Division Ltd; 1602666/06; EOR 171 p.29

Sex discrimination – pregnancy – whether capability grounds genuine reason for dismissal

E worked as a car sales negotiator from December 2005. She underwent training and then, from January 2006, was subject to a 3-month probationary period with targets specified in her contract. The contract referred to various company procedures including a pregnancy and maternity leave policy. In Jan and Feb 06 her manager, V, described her job performance as “great” and “excellent”. In March she discovered an unplanned pregnancy, which caused her concern because of the possibility of cystic fibrosis, which had led to the termination of an earlier pregnancy. After a brief spell in hospital, she returned to work and told V and the sales manager, B, about the situation. She had a further 6 days off during March to undergo hospital tests. She failed to reach her targets for March and her probationary period was extended by a month. In April V (allegedly at B’s request) asked if she intended to continue the pregnancy if the tests showed that the baby had cystic fibrosis. She was shocked but replied that she would. In April E worked long hours to try to meet her targets. She fell short of 2 expected sales. Her probationary period was extended by a further 2 months. She did not meet her targets in May and June. In July she was dismissed with pay in lieu of notice for failure to meet her targets. She raised a grievance about treatment in respect of her pregnancy. This was rejected. The investigating officer (B’s line manager) found that L was not made sufficiently aware that E’s pregnancy was high risk. L only thought it necessary to carry out a risk assessment once E had submitted her form MATB1 issued by a doctor or midwife, which she had not yet done. The ET found that L was required to carry out a generic risk assessment without waiting for the form, though was not required to take relevant action until notified in writing. Written notification was given on 6th April. The assessment should not be concerned purely with physical work stations, but also the risk of stress caused by imposing targets. Such an assessment would probably have resulted in some reduction of targets, as had happened on a previous occasion when a male employee’s targets were adjusted due to illness. On the facts, the decision to extend the probationary period in April was found by the ET to be on grounds of pregnancy not capability. By then E had been off for 3 days with pregnancy-related complications. Despite stress and uncertainty, she missed the targets by only a small margin and performed better than many colleagues at what was traditionally a quiet time of year. The nature of V’s enquiry about her continuing pregnancy also persuaded the ET that L was concerned about the possible effects of pregnancy on E’s performance. E’s claims of sex discrimination and unfair pregnancy-related dismissal. The ET concluded on a provisional basis that the injury to feelings award should fall in the middle band of Vento.

HM Prison Service v. Johnson; [2007] IRLR 951; EAT

Disability discrimination – reasonable adjustment – when duty applies

J was a prison psychologist employed at HMP Frankland – her first job following completion of her training. From the outset, her managers were concerned about her performance. She also received some hostile treatment at the hands of some colleagues. The consequences of this were, she believed, poorly handled by managers. She had two substantial periods of sickness absence, at least partly anxiety-related, in 2003. In February 2004 she commenced a further period of sickness absence from which she was never to return. Initially she had an adjustment disorder. This developed into a more severe psychiatric illness. H dismissed her in January 2005 and rejected her internal appeal in July 2005. J brought ET proceedings alleging unfair dismissal and disability discrimination. When J applied for work with H, she disclosed 2 significant physical disabilities. One was a series of connected arthritic problems in the neck, lower back and left shoulder, attributed by her to a fall in 1996, and one was a problem with her right knee attributed by her to an accident in 2002. Following her appointment she was provided with a special chair and other equipment. Orthopaedic evidence showed no organic basis for symptoms of the persistence and severity of which she complained, and her pain and physical symptoms were attributable to psychosomatic overlay. The medical evidence indicated that at the time her employment commenced, J was not suffering from a disability for DDA purposes, but that she subsequently developed a mental illness of sufficient severity to constitute a disability. At the time of recruitment she had not disclosed any psychiatric history. The ET found that J was unfairly dismissed and automatically unfairly dismissed. It also found disability discrimination in a number of respects, including her ultimate dismissal. H appealed. The EAT allowed the appeal and remitted various issues to a fresh tribunal. For DDA purposes, the disability to which the reason for the treatment relates must be a disability from which the claimant is in fact suffering, so that in principle a reason for acting relating to disability A is not caught if the employee is in fact suffering from only disability B. In this case, the ET erred by regarding the fact that J had been treated badly as dispositive of the question whether her disability (or something related to it) was, or was in part, the reason for that treatment. If it was not then, however reprehensible the treatment, it was not DDA discrimination. The ET was entitled to find that H’s handling of the problems which arose during J’s employment was characterised by a high degree of incompetence and insensitivity. However, a general finding that H behaved badly went nowhere. The individual acts and omissions complained of had to be considered on a stage by stage basis, judging each complaint in the context of the situation as it was at the relevant date. Taking such an approach, it was arguable that H’s acts and omissions in the earlier part of the period constituted failure to make reasonable adjustments. Whether they actually did so depended on a careful assessment of what H knew or ought to have known after September 2003 about the nature and extent of J’s disability and of what it was reasonable and practicable for H to do in the light of that knowledge. The ET failed to conduct the necessary assessment. However, there came a time, at the latest in November 2004, after which the situation was arguably irretrievable. After that, the opportunity to make reasonable adjustments had passed and dismissal was unquestionably justified (Post Office v. Jones). The fact that this irretrievability might have been caused or contributed to by H’s earlier failings did not mean that their acts and omissions after that point could not be justified. The discrimination alleged had to be assessed by reference to the state of affairs at the time in question. The fact, if proved, that the irretrievable situation and consequential dismissal were caused by earlier failure to make adjustments could enable J to recover compensation for them as consequences of those earlier breaches. If the failures in the earlier period gave rise to DDA liability, they did so as breaches of the duty to make reasonable adjustments. There was no basis in the ET’s findings of fact to treat them as s3A discrimination. S3A was only engaged where the disability was related to the employer’s reason for acting in the manner complained of. S4A is in principle the appropriate route for findings of liability against employers who failed to address the problems of disabled employees, even where the failures were found to be culpably negligent.

Hospice of St Mary of Furness v. Howard; [2007] IRLR 944; EAT

Disability discrimination – impairment – ET procedure

H was director of nursing for M. She was dismissed in November 2004. She asserted that at the material time she was disabled by a back condition and the dismissal was in breach of various provisions of the DDA. There was a preliminary issue as to whether she was disabled. M did not accept her assertion as to her medical condition and the genuineness of her complaint was in issue. M asserted that if there was a condition it was not such as to cause more than occasional minor symptoms and any complaint of anything more serious was not genuine or not attributable to a genuine physical condition. H’s case was principally (though not exclusively) that her impairment was attributable to a spinal disease called Scheuermann’s disease which she had suffered between the ages of 14 and 25. There was a consent order for the instruction of a joint medical expert. The expert said, inter alia, that H had a history of intermittent attacks of back pain and a precise diagnosis had never been established, but her symptoms were genuine and, when acute, markedly disabling. Further questions were put to the expert. M then instructed a consultant orthopaedic surgeon who provided a report based only on the documents. M indicated that it wished to have H examined by this consultant orthopaedic surgeon and to obtain its own full medical report, and made an application to that effect. The ET chairman concluded that this would not assist the tribunal any further than the joint expert had done, and there was no good reason for the parties to bear the possible delay, anxiety and expense of the further report when the consultant orthopaedic surgeon’s view did not differ greatly from that of the joint expert. M appealed. The EAT allowed the appeal. It was an error not to allow M to instruct and call its own medical expert. The authorities indicated that it is not necessary for a claimant to establish the cause of an alleged physical impairment, but where there is an issue as to the existence of a physical impairment, it is open to a respondent to seek to disprove it, including by seeking to prove that the alleged impairment is not genuine, or is mental rather than physical. In this case, the chairman failed to address the second of these principles. He seemed to be of the view that the joint expert’s evidence could not be successfully undermined because it was not necessary to establish the cause of the physical impairment. However, he failed to take into account that the alleged absence of any demonstrable cause for the physical impairment could be regarded as undermining the strength of the assertion that there was, and supporting M’s case that there was not, such a physical impairment.

Ingram v. Spring Technology Staffing Services Ltd; 1302680/06; EOR 171 p.27; ET

Sex discrimination – pregnancy – selection for redundancy on grounds of pregnancy

S was an IT recruitment company with 750-800 UK employees. I was its data services co-ordinator, based in the Birmingham office, from 2001. During 2003 a manager, M, commented to I that children were the no. 1 priority for working mothers. At that time, I began to take on additional responsibilities. In Feb 05 a female part-time employee at risk of redundancy was not offered work on I’s team because, as I agreed, her hours would be difficult to accommodate. In May 05 M nominated I for S’s Group Leadership Programme (undertaken by 10% of S’s workforce). In June I moved into a new role with greater responsibilities. She undertook this role for the north of the country. A colleague, Mo, undertook a virtually identical role for the south of the country. Both retained their former job titles. In August 05, I informed M that she was pregnant. Rumours began to circulate in October that the data services team was to be axed. However, I was not concerned as she had moved into a wider role and felt secure. In December, M told her that, because of the introduction of a new software package, the data services team was no longer required and her role was redundant. No selection pool was drawn up because S took the view that the data services team comprised only I and one other employee. During the consultation period I (who wished to work part-time) asked about a job in S’s finance department. She was told that this and another potential role were full-time. M did not respond to I’s query about whether the roles could be done part-time. I was dismissed for redundancy in Jan 2006 along with the other member of the data services team. The ET found that she was dismissed within a few months of announcing her pregnancy and against a backdrop of a culture within S which was not supportive of women with childcare responsibilities or who wanted to work part-time. This attitude to women was widespread and not restricted to M. A former employee gave evidence to the effect that, with the tacit approval of M, she had at various times actively condoned the non-recruitment of women with childcare responsibilities or part-time workers. The ET did not accept that I was genuinely dismissed for redundancy, and noted that she had previously been viewed as a multi-skilled high-flier within S, but when a redundancy situation arose S made very little effort to retain her. Mo was not considered for redundancy – instead I was selected on the basis of the role she had been appointed to in 2001, notwithstanding that it had started to expand from 2003. The ET found sex discrimination and automatically unfair pregnancy dismissal, as well as indirect discrimination by the restriction of possible alternative jobs to full-time applicants.

Kiiski v. Tampereen kaupunki; C-116/06; IDS Brief 841 p.16; ECJ

Sex discrimination – maternity rights – refusal to interrupt parental leave for maternity leave – EC law

K was a teacher. She gave birth to a child in 2003. In accordance with Finnish law, she arranged to take 10 months’ (unpaid) childcare leave (effectively parental leave) from August 2004 to June 2005. However, before the start of that leave period she found that she was pregnant again. She therefore tried to amend the end date of her child-care leave to December 2004 so that thereafter she could benefit from paid maternity leave. T refused her request on the ground that the applicable collective agreement only allowed the dates and duration of childcare leave to be altered on unforeseeable and justified grounds, including the serious illness or death of a child or of the other parent, or divorce, but not a new pregnancy. K began her childcare leave as originally agreed, but later made a further request to interrupt that leave in January 2005 and to take maternity leave from that date. T refused that request again. She brought a claim against T alleging that she had suffered discrimination because of her new pregnancy. T claimed that K’s request was refused not because of her pregnancy but because, under the collective agreement and Finnish case law, pregnancy was not a ground capable of justifying an interruption to childcare leave. The Finnish court referred questions to the ECJ for a preliminary ruling. The ECJ first considered whether the refusal to change the dates of the childcare leave amounted to direct or indirect discrimination contrary to Article 2 of the Equal Treatment Directive. Parental leave impacted on an employer’s business and might necessitate the recruitment of a replacement. Therefore national courts could attach stringent conditions to requests to alter leave dates. Having said that, events occurring after the grant of leave that made it impossible for the employee to look after the child under the conditions originally envisaged should be taken into account. The collective agreement only recognised certain events as bringing about an unforeseeable and fundamental change in the conditions of childcare justifying an alteration of the leave dates. However, pregnancy was comparable with such events. In the final weeks of pregnancy and the period following childbirth, a woman faced changes that prevented her from looking after her first child. That had to be regarded as a situation restricting the achievement of the purpose of parental leave and consequently as a justified ground for altering the agreed period. Case law provided that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment was objectively justified. The collective agreement treated pregnancy (a condition affecting only women) differently from comparable justified grounds, and therefore discriminated directly on grounds of sex contrary to Article 2 of the Equal Treatment Directive. Next the ECJ considered whether T’s refusal to allow K to interrupt her parental leave was also in breach of the Pregnant Workers Directive because its effect was to prevent her from taking up her paid maternity leave. Although K was on childcare leave, she was a “pregnant worker” within the meaning of the PWD. ECJ case law had established that a period of leave guaranteed by EC law cannot affect the right to take another period of leave guaranteed by EC law (Commission v. Luxembourg ECR I-3067). T’s decision had deprived K of the rights attaching to maternity leave in breach of Articles 8 and 11 of the PWD.

Martin v. Lake House Estate Ltd; 310227/06; EOR 171 p.28; ET

Sex discrimination – pregnancy-related dismissal – sham redundancy selection

L operates for the benefit of the family of the pop star “Sting”. M started to work for the company as a sous-chef in 1997, working primarily at the family’s main residence near Salisbury but also at another home in London. In the absence of Mrs S, M reported directly to the family’s personal assistant, H. In 2000 she was promoted to head chef. In 2001 a permanent sous-chef, J, was appointed and M’s hours were reduced by agreement from 5 to 4 days per week, with one weekend off in 4. In August 2004 M informed H that she was pregnant. She had some health problems during pregnancy, some of which were attributed by her GP to long hours. L was unsympathetic. In February 2005 M was informed that she would receive only SMP, although a nanny had previously been retained on full pay during maternity leave. While M was on maternity leave the family sent her 8 tulips for her 40th birthday. In the past she had received lavish presents. On M’s two visits to the house with her baby son, Mrs S said words to the effect that mothers should be at home with their children and not working. In December 2005 M attended a meeting with H and L’s financial officer to discuss future working arrangements. She said that her husband could provide childcare when she worked at the Salisbury house but that she would need notice when required to be in London so that she could make childcare arrangements. The notes of the meeting inaccurately reported that she would be unable to work in London. In March 2006 L informed M that as a result of the family spending more time in London, either M or J would have to be made redundant unless matters could be otherwise resolved. A similar letter was sent to J, but M’s contained an extra paragraph which referred to legal action taken against a former chauffeur to obtain a freezing injunction and gagging order. M viewed this as a threat against her. At a further meeting, L’s finance officer refused to accept that M’s previous work pattern could continue, although he conceded that a chef was required in Salisbury for 4 days a week including weekends. M’s return to work was deferred until April. She was then presented with a “redundancy assessment” in which she scored 21 out of 27 and J scored 23. M queried several aspects of the assessment but was dismissed for redundancy with effect from April and was not informed of her right to appeal. The ET found on the facts that the whole redundancy process was a sham to try to cover up the fact that the dismissal was directly linked to pregnancy and the taking of maternity leave. Many of the selection criteria were irrelevant, incapable of objective assessment or assessed unfairly in relation to M as compared with J. For example, the criterion of “value” was wholly inappropriate given the fact that the family maintained an opulently extravagant lifestyle and never discussed issues of cost, value or wastage with M, instead giving her a free hand with menu selection and placing emphasis on quality without financial constraint. Various factors persuaded the ET that the dismissal was discriminatory. These included the attitude of Mrs S during and after M’s pregnancy. The ET found that, by refusing to pay full pay during maternity leave and effectively snubbing M on her 40th birthday, L sought to goad her into resigning. Her attempts to return to work were frustrated and were consistent with a decision having been taken to prevent her returning. The ET found unfair dismissal, sex discrimination and automatically unfair pregnancy-related dismissal.

McDougall v. Richmond Adult Community College; [2007] IRLR 771; [2007] ICR 1567; EAT

Disability discrimination – whether disabled – mental impairment – recurrent condition

Reported in the 01.11.07 update. Now also reported in the ICR.

McClintock v. Department for Constitutional Affairs; 31/10/07; EAT/0223/07; EAT

Religion or belief discrimination – judicial office – objection to adoption by same-sex couple

M was a practising Christian who served as a Justice of the Peace in Sheffield. He sought to be excused from having to adjudicate upon any case which might lead to the adoption of a child by a same-sex couple. D refused his request, reminding him of his judicial oath and of his duty to adjudicate upon any case which came before him. M resigned and brought ET proceedings claiming that D’s treatment of him amounted to direct discrimination, indirect discrimination and harassment on grounds of his religion or belief. The ET dismissed his claim. As to direct discrimination – at no stage did M make it plain that his objection was underscored by any conscientious or religious convictions – instead, he refused to carry out his duties because he regarded the placement of children with same-sex couples as a “social experiment” which treated children “as guinea pigs”, and said that he did not consider this to be in the children’s best interests and needed more information about adoption by same-sex couples to dispel his doubts. The Regs were therefore not engaged. As to indirect discrimination, it was a PCP imposed by D that magistrates honour the judicial oath. However, everyone to whom that PCP applied would have been treated in exactly the same way, regardless of their religious beliefs. Even if the PCP had adversely affected M because of his beliefs, this was objectively justified. D was entitled to require M to carry out the full duties of his office in accordance with his judicial oath. As to harassment, D had treated M courteously and with consideration throughout. The ET also found that Article 9 was not engaged. M appealed to the EAT in respect of the finding that there was no indirect discrimination. The EAT dismissed M’s appeal. The EAT reviewed the necessary elements of an indirect discrimination claim. There must be a PCP which disadvantages those holding beliefs falling within the scope of the Regs. The claimant must personally be disadvantaged for that reason. The respondent must be unable to justify the PCP objectively. The EAT noted that there was an error of law in the ET’s finding that the PCP applied equally to everyone. The very concept of indirect discrimination is based on the assumption that that is the case. Nevertheless, even if the PCP disadvantaged individuals by reason of their religious or philosophical beliefs – and there was no evidence that it did – M could not show that he had himself been disadvantaged for that reason. The ET clearly found that M did not put his objections on the basis of such a belief – mere ethical or conscientious objection was not sufficient. Even if the PCP had disadvantaged M and others sharing his religious beliefs, his claim would still fail. Any indirect discrimination would be objectively justified as being a proportionate means of achieving a legitimate aim. D was fully justified in insisting that magistrates, regardless of their moral or other principled objections, apply the law of the land as required by their oath. Even though D had in the past made exceptions with respect to particular cases, there was no legal obligation to make an exception in all cases to cater for religious or other philosophical beliefs. The EAT also rejected the argument that M should have been able to recuse himself on the grounds that his views might give rise to an appearance of bias. Recusal for apparent bias occurs where the parties have a reasonable suspicion (e.g. from financial interests or, exceptionally, where a judge has expressed strong views on an issue) that the judge might not be able to conduct the trial fairly and impartially. That was different from the instant situation where M was refusing to apply a law because of a moral objection. Here, the judge would be expected to put his personal views to one side and there would be no reason why the parties should not trust him to do so. It could not conceivably be the function of an ET to express a view that JPs could or should ignore a law passed by Parliament on the ground that it was apparently inconsistent with other statutory provisions. A claim under Article 9 would be bound to fail. There was ECJ authority that, where a party voluntarily places himself in a position where a conflict arises between his religious or philosophical beliefs and the duty imposed by an employment or office it is not, in general, an infringement of Article 9 to insist on compliance with the duties. In any event, given the findings on objective justification, the EAT would almost inevitably, if required to do so, have found that the justification defence under Article 9.2 applied in this case.

Oyarce v. Cheshire County Council; [2007] ICR 1693; EAT

Race discrimination – victimisation – burden of proof – whether reverse burden applies

O was a residential social worker at a home operated by C. She was rejected for the position of group leader. She claimed race discrimination against C and a senior manager. She subsequently withdrew that claim. Later still she resigned and accepted a position as a social worker at a different establishment, 2 months after a white male colleague had been made acting group leader. She presented a new complaint in which she complained that, by failing to consider her for the group leader post and giving it to a less well qualified white male, C had treated her less favourably on racial grounds. She also claimed that it was an act of victimisation by the senior manager, her earlier claim being the protected act. The ET upheld both claims, but did not accept that her resignation was due to the discriminatory treatment, finding that she resigned not because of the discriminatory treatment but because the new position was better paid and advanced her career. There were cross appeals. In respect of the victimisation claim, the employer contended that the ET wrongly applied the reverse burden of proof to that claim. O’s appeal was dismissed. It was essentially a perversity point and would only succeed where an overwhelming case was made out that the ET reached a decision which no reasonable tribunal could have reached on a proper appreciation of the evidence and the law. The ET was entitled to conclude on the evidence that the new post was better paid and advanced O’s career and that this was the reason for her decision to change job. C’s cross-appeal was allowed. The provision in art. 8 of the relevant EC Directive about the reverse burden of proof referred specifically to direct or indirect discrimination and was not concerned with the obligation in respect of victimisation, which was governed by art. 9. The provisions in s54A RRA reflected that distinction. The introduction of a reverse burden of proof for some but not all acts of discrimination did not involve a reduction in the existing level of protection but an enhancement in respect of some manifestations of discrimination, whilst leaving others much as they were. The reverse burden did not apply to victimisation claims and the ET erred in deciding the claim on that basis instead of applying the common law approach. 

Palacios de la Villa v. Cortefiel Servicios SA; C-411/05; [2007] IRLR 989; Times 23/10/07; IDS Brief 840 p.3; ECJ

Age discrimination – compulsory retirement age – EC law

P was born in 1940 and worked for C as an organisational manager. In July 2005 he was notified of automatic termination of his contract on the grounds of him reaching the compulsory retirement age of 65 provided for in a collective agreement governing the terms and conditions of his employment. He considered that this was dismissal and commenced proceedings in Spain. He asked for the retirement provision to be declared null and void on the basis that it was in breach of his fundamental rights, in particular not to be discriminated against on grounds of age (the dismissal being based solely on him reaching 65). C submitted that the dismissal was in accordance with a collective agreement and a transitional provision governing such agreements, and was not incompatible with EC law. The transitional provision said that clauses in collective agreements providing for dismissal on retirement age were lawful provided that it was ensured that the workers in question had completed the minimum period of contributions and satisfied the other requirements in social security legislation for entitlement to a retirement pension. The matter was referred to the ECJ for a preliminary ruling on the issue of whether the principle of equal treatment precludes a national law rendering compulsory retirement clauses lawful, where such clauses require solely that the individual has reached normal retirement age and fulfils the conditions set out in social security legislation for entitlement to a state pension. If so, does the principle of equal treatment require the national court not to apply the transitional provision. The ECJ ruled that the prohibition on age discrimination must be interpreted as not precluding national legislation such as that in issue here, pursuant to which compulsory retirement clauses in collective agreements are lawful where they provide as sole requirements that workers must have reached national retirement age and fulfilled the conditions for entitlement to a state pension, so long as (a) the measure (though based on age) is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and (b) the means put in place to achieve that aim of public interest do not appear to be inappropriate and unnecessary for the purpose. In this case, the domestic legislation established a difference in treatment directly based on age. The question of justification therefore arises. The transitional provision, placed in context, was aimed at regulating the national labour market, in particular for the purposes of checking unemployment. The legitimacy of this aim could not reasonably be called into question. Competent authorities at national, regional or sectoral level must have the possibility available of altering the means used to attain a legitimate aim of public interest, for example by adapting them to changing circumstances in the employment situation of the member state concerned. It is for the competent authorities of the member state to find the right balance between the competing interests. However, it is important to ensure that the national measures laid down in that context do not go beyond what is appropriate and necessary to achieve the aim being pursued. It is not unreasonable for the authorities of the member state to take the view that a measure such as this may be appropriate and necessary in order to achieve a legitimate aim in the context of national employment policy, promoting full employment by facilitating access to the labour market. Further, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age limit set out. Moreover, the relevant domestic legislation allows the social partners to opt, by collective agreements and therefore with considerable flexibility, for application of the compulsory retirement mechanism so as to take due account not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question. The legislation was not incompatible with the Equal Treatment Directive.

Paterson v. Commissioner of Police of the Metropolis; [2007] IRLR 763; [2007] ICR 1522; EAT

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

Reported in the 01.11.07 update. Now also reported in the ICR.

South Tyneside Metropolitan Borough Council v. Anderson; [2007] EWCA Civ 654; [2007] ICR 1581; [2007] IRLR 715; Current Law Nov para 144; CA

Equal Pay – sex discrimination – whether same employment

See below (Pay).

Treasury Solicitor’s Department v. Chenge; [2007] IRLR 386; Current Law Nov para 149; EAT

Race discrimination – work experience

C unsuccessfully applied for a place on T’s vacation placement scheme, which was intended to provide work experience to those wishing to pursue a legal career by allowing them to shadow Government lawyers. Those who took part were not paid but received expenses and might subsequently apply successfully to go onto T’s legal trainee scheme, for which they would be paid. The ET found that the scheme amounted to training within the meaning of RRA, but that if it did not, it amounted to “other facilities connected with such training” (such training being the subsequent legal trainee scheme). That second alternative finding was not canvassed during the hearing. T argued that it was misconceived, and that work experience or work placements such as the vacation placement scheme did not help fit the participant for employment and were not training for the purposes of RRA. The EAT dismissed the appeal. On the facts of this case, taking part in a course could not be said to amount to facilities in connection with some subsequent course if it was the latter course, rather than the former one, which was the training. However, the scheme did constitute training within the meaning of s13 RRA. The scope of s13 was delimited by the 1989 amendment to RRA, which was in turn prompted by the case of Daley v. Allied Suppliers in which it was found that a work experience scheme was covered by the definition of training. Further, s78(1) RRA defined training as including any form of education or instruction. On the facts that included T’s vacation placement scheme. A detailed analysis of the syllabus of a scheme was not required in order to decide whether or not it constituted a training scheme. Neither was it helpful to look at the length of the course, although there was a difference between a visit or tour of premises on the one hand, and a course in which those taking part were learning something on the other. The fact that other statutes and directives specifically brought work experience within the definition of training did not affect the definition in s78 RRA. They simply spelled out what could be included in training and did not specifically bring work experience within the definition of training for the purposes of that particular piece of legislation when it would otherwise fall without such a definition. There was no principled reason why RRA should not apply to work experience or a work placement. Something which was purely an educational visit might fall within a different category, but this scheme was not such a visit. The ET was correct to find that it fell within s13.

Williams v. University of Nottingham; [2007] IRLR 660; Current Law Nov para 141; EAT

ET procedure – jurisdiction – employee of British university working abroad – disability discrimination – unfair dismissal

See below (ET procedure).

Wilson v. Thamm; 1700502/06; EOR 171 p.29; ET

Sex discrimination – pregnancy – redundancy selection not genuine

T owned 3 veterinary surgeries. W was a veterinary surgeon employed at one of them for 8 hours per week. In December 05 she notified T that she was pregnant. In a telephone conversation in January 06 T informed her that she was dismissed (she had less than one year’s service at that point) and that a letter confirming that was in the post. The letter said that financial constraints, including the freezing of his bank account, had forced him to downsize. The next day T e-mailed another vet, B, asking him whether he would agree to work part-time for 3 months and full-time from June. He said that B could carry on working another 5 years or so until retirement age. The ET found that the facts supported neither T’s contention that the dismissal was for redundancy nor his assertion of W’s gross misconduct raised at the ET hearing. There were financial pressures, but the bank account was not frozen and at the time of the dismissal T was seeking to recruit another vet. He had not explored with W whether she was able to work in either of his other practices – previously she had been reluctant to do so but the ET found that she might have agreed as an alternative to dismissal. The ET concluded that the dismissal was because of pregnancy and was therefore automatically unfair and was sex discrimination. The award included £7,500 for injury to feelings.

Camden Primary Care Trust v. Atchoe; [2007] EWCA Civ 714; [2007] ICR Part 12 “recent points” p.xxvii; CA

Pay – unlawful deductions – ET procedure – procedural fairness – authority relied upon by ET not drawn to attention of parties

See below (Pay).

Ezsias v. North Glamorgan NHS Trust; [2007] EWCA Civ 330; [2007] 4 All ER 940; CA

ET procedure – striking out for no reasonable prospects – whistleblowing case – approach

E was a surgeon employed by N. He was summarily dismissed. He brought ET proceedings alleging that the dismissal was automatically unfair because it was for the reason that he had made protected disclosures. There was factual dispute between the parties. N’s case was that the reason for the dismissal was that E was responsible for a breakdown of relationships within his department and within N such that the employment relationship could not continue and was fairly terminated. There was a PHR in July at which N sought a deposit order (available in circumstances of “little reasonable prospect of success”). In the “judgment” the chairman stated that in his opinion, E’s contentions had “no reasonable prospects of success” and that the matter would be re-listed to consider the issue of means and/or N’s application for a striking out order. He added that the principal reason for dismissal was not the making of a protected disclosure but was SOSR, the claim based on PIDA had no reasonable prospects of success, and was bound to fail in that “any reasonable tribunal will find that the public interest disclosure was not the principal reason for the dismissal”. A PHR was listed in September. At that hearing the chairman referred to the earlier judgment and noted that there was a clerical error in that it should not have been described as a judgment. She then struck out E’s claim on the basis that it had no reasonable prospects of success. E appealed, inter alia alleging actual or apparent bias. The EAT duly sought the chairman’s comments. She described the earlier document as “an interim opinion on the deposit application to the effect that the case had not merely little but no reasonable prospect of success”. The EAT held that the September PHR was vitiated by apparent but not actual bias on the part of the chairman, and in any event that the case was not appropriate for strike out under rule 18(7). N appealed. The CA dismissed the appeal. (1) The explanation of the chairman of the September PHR acquitted her of actual predetermination, but it did not displace the perception which any fair-minded and informed observer would have formed, namely that there was a real possibility that she had a concluded view or closed mind regarding E’s prospects of success. (2) Only in an exceptional case would an ET claim be struck out as having no reasonable prospects of success when the central facts were in dispute. It was an established general rule in discrimination cases that they should be determined only after hearing the evidence as the questions of law involved were often highly fact-sensitive. Whistleblowing cases had much in common with discrimination cases, and a similar public interest consideration. The same or a similar approach to strike-out applications should be adopted. In this case there was a crucial core of disputed fact not susceptible to determination other than by hearing and evaluation of the evidence. It was an error of law for the chairman to have determined otherwise.

Hamilton v. GMB (Northern Region); [2007] IRLR 391; Current Law Oct para 127; EAT

Unjustifiable discipline – suspension from holding office – appearance of bias – ET procedure – whether union member of tribunal should have recused herself

See below (Trade Unions)

Lake v. British Transport Police; [2007] EWCA Civ 424; Current Law Nov para 147; CA

Whistleblowing – protected disclosure – ET proceedings following statutory appeals procedure – jurisdiction – immunity from suit

See below (Detriments).

Middlesbrough Borough Council v. Surtees & others (No. 2); [2007] IRLR 981; IDS Brief 841 p.10; EAT

Equal pay – ET procedure – expert evidence

See below (Pay).

Mowels v. Vox Displays Ltd; 24/07/07 (EAT/122/07); [2007] ICR Part 12 “recent points” p.xxvi; EAT

ET procedure – time limits – statutory grievances – breach of contract claims

M was dismissed. His solicitors then sent a grievance to his employers alleging unlawful deductions from wages. The grievance was rejected and M brought ET proceedings for breach of contract. The ET dismissed the claim (made outside the 3-month time limit), holding that the Reg 15 extension provisions did not apply to a breach of contract claim. The EAT allowed M’s appeal by consent. The SGP applied to a breach of contract claim in certain circumstances and applied to the present case so as to extend time. Sections 31 and 32 related to different matters, but neither was relevant to the provisions of Reg 15. The bar to jurisdiction in s32 applied only to jurisdictions listed in Schedule 4, not to those listed in Schedule 3 (which included breach of contract). A failure to comply with the SGP would therefore bar a constructive unfair dismissal but not an actual unfair dismissal (which was covered by the SDP). Regulation 6 showed that the SGP applied to claims under either Schedule 3 or Schedule 4. The complaint here was not about dismissal but about failure to make payments, so Reg 6(5) did not apply (as it would, for example, to a wrongful dismissal claim). The above interpretation was further supported by the insertion into the 1994 Extension of Jurisdiction Order of article 7(ba) at the same time as the 2004 Regs came into force.

Muschett v. London Borough of Hounslow; Khan v. London Probation Service; Ogbuneke v. Minster Lodge & others; Tallington Lakes Ltd v. Reilly & another; EAT 06/08/07 (0281/07, 0285/07, 0400/07, 1870/06); IDS Brief 840 p.10; EAT

EAT procedure – extension of time to appeal – principles

The 4 cases were then considered on their merits. In the first, M lodged the written reasons and Notice of Appeal 4 days before the deadline. The judgment itself, however, was lodged 3 days late because M, acting in person and claiming inexperience in these matters, had misplaced it and did not realise that it was required in addition to the written reasons. He had delayed lodging his Notice of Appeal whilst awaiting the outcome of his application to review the ET decision. The EAT noted that M had previously been involved in other EAT proceedings, so his claim of inexperience was less than frank and coloured the EAT’s view of him as a litigant in person. It was not accepted that M did not understand that the judgment was necessary, or that he had misplaced it. Further, it was noted that parties are advised when the judgment is sent out not to delay lodging an appeal pending a review. Even if that was a valid reason to delay, he had still had a fortnight after receiving the review decision in which to submit the necessary materials. Extension refused. In the second, K asserted that he was presented by depression and related medical conditions from presenting his appeal earlier (it was 159 days out of time). The only medical certificate produced covered a 2-week period 5 months after the deadline. It was during that 2-week period that K had actually drafted the Notice of Appeal, and he had been sufficiently well the month before that to assist a friend with her ET claim. Extension refused. In the third, O’s English was very poor and she required an interpreter in all proceedings. She indicated an intention to appeal very early after receiving the judgment, but did not use the correct form or lodge the right documents. A valid Notice of Appeal together with all relevant papers was not lodged until 34 days after the deadline. The judge found that the individual sections of the 42-day period were all excused respectively by the fact that an appeal of sorts was put in, O was awaiting an appointment with a law centre, and had that appointment within the deadline. She acted promptly in seeking legal advice, and given her inexperience and language difficulties, it was reasonable for her to depend on the adviser’s expertise. The reason a valid notice was not lodged in time was attributable to the adviser’s failure to realise that the appeal would be out of time unless immediate action was taken. This happened because of the adviser’s difficulty in understanding O and the history of her claim. She should not be disadvantaged by her adviser’s failure and it could not be said that the substantive case was without merit. Extension granted. In the fourth, there was no explanation for T’s lodging of the appeal 225 days out of time and no grounds whatsoever were disclosed for the exercise of the discretion. Extension refused.

Secretary of State for Health & another v. Rance & others; EAT 0060/06 & others, 04.05.07; IDS Brief 838 p.7; Current Law Nov para 143; EAT

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

Reported in the 01.11.07 update. Now also reported in Current Law. 

Sterling Developments (London) Ltd v. Pagano; [2007] IRLR 471; Current Law Nov para 142; EAT

ET procedure – Unlawful deduction of wages – Chairman sitting alone

P claimed unlawful deduction from wages. A notice of claim informed both parties that the case would be heard by a chairman sitting alone. That notice invited both parties to apply for a hearing before a full tribunal but neither party did so. A CMD was held at which both parties were represented by solicitors. A notice of hearing stated that the case would be heard by a full tribunal, however the case (at which S was unrepresented) was heard by a chairman sitting alone. Neither party took any point on the constitution of the tribunal at the time. The chairman decided that S deducted wages unlawfully. On appeal S contended that it was unaware that it could object to the case being heard by a chairman sitting alone and that it had been a serious procedural irregularity to have proceeded in that manner. S’s appeal was dismissed. The question whether a hearing was before a chairman alone or a full tribunal was a matter for judicial rather than administrative decision. It should be routine for a chairman conducting a CMD to inform parties as to the appropriate composition of the tribunal. A simple explanation of the respective merits of the two modes of hearing should be given to the parties, particularly if unrepresented. The parties should be invited to make submissions on the issue and the chairman should rule on those submissions and record the decision in the CMD order. Where there was no CMD, the notice of hearing should clearly state the trial mode and invite parties expressly to make representations. In either of those situations there would be a judicial decision susceptible to appeal. If no appeal was brought and the final hearing went ahead, it could not be challenged on a point of law related to the mode of hearing. In this case, it was not an error of law for the chairman not to have dealt with the composition issue in the absence of a challenge by either party. Gladwell v. Secretary of State for Trade & Industry applied. The case was entirely suitable for a chairman alone as the principal issue was one of construction of the contract of employment and the factual enquiry was limited. It was not perverse to proceed.

Todd (t/a Hygia Professional Training) v. Cutter; 13/07/07 (EAT/63/07); [2007] ICR Part 11 “recent points” p.xxv; EAT

Unfair dismissal – remedy – contributory fault – evidence – EAT procedure – fresh evidence

See below (Unfair dismissal).

Williams v. University of Nottingham; [2007] IRLR 660; Current Law Nov para 141; EAT

ET procedure – jurisdiction – employee of British university working abroad – disability discrimination – unfair dismissal

U set up a campus in Malaysia over which it exercised academic control. The day-to-day activities there were run by a Malaysian company (M). Most of the staff there were recruited by M. However, some academic staff were recruited or employed by U to work there. W was employed by U specifically for the purpose of taking up a post in Malaysia. Difficulties arose in W’s relationships with certain colleagues in Malaysia. U terminated his secondment and said he would have to return to the UK to work. He did not do so and invoked U’s grievance procedure. He was permitted to remain in Malaysia while his grievances were considered. Before the grievance procedure was completed he resigned and continued to live in Malaysia. He brought unfair dismissal and disability discrimination claims against U in the UK. The ET dismissed his claims as being outside the jurisdiction of the tribunal. In doing so, the ET applied the approach of Lord Hoffman in Lawson v. Serco, holding that W’s employment was not for the purpose of U’s business in the UK but was for the separate and distinct business carried on by M in Malaysia, therefore there was no jurisdiction in the unfair dismissal claim, and that W had not brought himself within s68(2A)(b) for the purposes of the DDA claim. W argued that the tribunal misdirected itself in deciding that, in applying s68(2A)(b), it should approach the question on the basis that the words of s68(2A)(b) [“work … for the purposes of the business carried on at the establishment”] meant the same as the phrase used in Lawson [“for the purposes of a business carried on in Great Britain”]. He also argued that the ET misconstrued the factual situation, failing to recognise the impact of the fact that, by the time he resigned, his secondment to Malaysia had terminated and his contract required him to work in the UK. He also argued that even if Lord Hoffman’s approach was appropriate for both the unfair dismissal and the DDA claims, the ET erred in concluding that he did not satisfy the requirement that he worked for the purposes of a business carried on in Great Britain or that his work was for the purposes of a business carried on at an establishment in Great Britain. The EAT dismissed his appeal. (1) Lord Hoffman’s phraseology was strikingly similar to the statutory language used in anti-discrimination legislation. It would be extraordinary if he had intended that the same words should be given different meanings depending on the context in which they were used. It would be even more extraordinary where all the phrases were being used in the context of complaints made in relation to employment matters before the same statutory tribunal and where both types of complaint were being run in parallel in the same proceedings. Lawson applied. (2) The ET had made it clear that, had W returned to the UK, his situation might have been different. He did not do so, and U accepted that. To rely on a contractual requirement for W to work in the UK, ignoring the fact that U had waived that requirement for the time being, would be to approach the matter on the basis of contractual entitlement, which Lord Hoffman had made clear was inappropriate in respect of unfair dismissal and which was wholly consistent with s68(2A) DDA. (3) The ET’s evaluation of the facts could not be faulted. It was entitled to find that W’s work was for the purpose of M’s separate and distinct business, not for U, notwithstanding that there were necessary consequential benefits to U from the work performed by W and others for M in Malaysia.

Wolff v. Kingston upon Hull City Council; 07/06/07 (EAT/631/06); [2007] ICR Part 12 “recent points” p.xxv; EAT

ET procedure – costs – unreasonable conduct – unfair dismissal – compensation

W was held to have been constructively unfairly dismissed. He secured alternative employment very quickly at an equivalent salary. He was awarded a basic award plus £250 for loss of statutory rights even though he had been in his new employment for over a year. An award of costs was made against him on the ground that he was unreasonable in persisting with a claim for re-engagement and rejecting a settlement offer of £1,000. The cross-appeals were dismissed. It was accepted that W acted in good faith throughout in the sense that he was honestly pursuing the remedy he sought from the outset. However, he was not entitled, merely because he had claimed re-engagement and succeeded in his claim of unfair dismissal, to pursue a remedy of re-engagement long after it had become blindingly obvious that this was not remotely practicable. Further, it had been spelled out to him on 2 occasions why his entitlement to a basic award was limited to 12 months. In those circumstances, it was understandable that the ET concluded that, by insisting on pursuing those twin tracks, W conducted the litigation unreasonably thus enabling the ET to exercise its discretion to award costs. As to the cross-appeal, K argued that because W had remained in new employment for over a year he had accrued statutory protection against unfair dismissal and loss of statutory rights had ceased to be a head of actual demonstrable loss. The EAT held that the compensatory award was to be such sum as was just and equitable in all the circumstances. It had to have regard to the loss sustained by the employee but was not confined to what could be demonstrated to be financial loss. The conventional award of a relatively modest sum under that head reflected the fact that it was not necessarily the result of any precise arithmetical calculation. The mere fact that W had retained his new employment for 12 months, and so restored his statutory protection, did not necessarily mean that he had suffered no loss in the meantime. There was the fact that he had been under the shadow of being dismissed without statutory protection for 12 months. In addition, the amount of statutory protection in terms of the calculation of the basic award was very much a reflection of the period of time spent in the employment from which he was unfairly dismissed. Accordingly, there would always be a deficit in relation to the calculation of the basic award which would accrue in the event of a subsequent unfair dismissal from subsequent employment. There was therefore no reason why conceptually and in accordance with s123 ERA, the ET erred in making the conventional award of £250 in respect of loss of statutory rights in the compensatory award.

Yarrow v. Edwards Chartered Accountants; 08/06/07 (EAT/116/07); [2007] ICR Part 11 “recent points” p.xxviii; EAT

Wages – unpaid salary – disputed calculation – party not attending – ET procedure

Baldwin v. Brighton & Hove City Council; [2007] ICR 680; Current Law Nov para 136; EAT

Sex discrimination – constructive dismissal – transsexual undergoing gender reassignment – trust & confidence – test for assessing employer’s conduct

B worked for BH as a Lesbian Gay and Bisexual Community Safety Development Officer. He started on a temporary contract in January 2001. The principal purpose of his job was to work with the local Lesbian and Gay Community Safety Forum. His contract was extended to 2003 to allow him to apply for a new post working within the forum. In 2002 he began to identify as a transsexual and started the process of female to male gender reassignment. In December 2002 he assisted in a complaint against the chair of the forum (M) involving allegations that M was “transphobic”. M had been appointed to sit on the interview panel for the post which B was to apply for. In January 2003 B decided not to attend the interview and resigned. He indicated that his resignation was because the post he had intended to apply for was inferior to his current post. He brought ET proceedings for sex discrimination on the ground that he was undergoing gender reassignment and constructive dismissal (based on breach of the implied term of mutual trust and confidence). The ET found that BH had no knowledge of B’s gender reassignment. His claims were dismissed, save for one of his allegations of sex discrimination. That claim related to M’s appointment. The ET found that this did not amount to discrimination because, inter alia, M had not discriminated against B and his presence on the panel had not deterred B from attending the interview. B’s allegations of breach of trust and confidence were held unfounded. B appealed, arguing that if he had attended the interview he would have been less favourably treated by M, whom he believed to be a transphobe, than an actual or hypothetical comparator. B’s appeal was dismissed. The EAT held that the tribunal was entitled to find that M did not discriminate against B on the ground of his transsexualism since, on a proper reading of s2A SDA, the mere fact that M had agreed to be on the interview panel did not mean that he had treated B any less favourably than a comparator. B’s argument on this issue could only succeed if BH was aware of B’s gender reassignment and nevertheless selected M to be on the panel. As to the constructive dismissal claim, in order to show a breach of the implied term of trust and confidence it was sufficient to show conduct which, objectively considered, was likely seriously to undermine the relationship between employer and employee. It was not necessary to show that the conduct of the employer was intended, as well as likely, to destroy the relationship of trust and confidence. It seemed that Lord Steyn’s use of the words “calculated and likely” instead of “calculated or likely” in Malik v. BCCI was an error of transcription, since he clearly intended to adopt the Woods v. WM Car Services formulation. In this case, M’s appointment to the interview panel could not be described as such conduct because of the tribunal’s finding that BH did not have the requisite knowledge.

Cex Ltd v. Lewis; 10/08/07 (EAT/13/07); [2007] ICR Part 11 “recent points” p.xxv; EAT

Unfair dismissal – compensation – statutory dismissal procedure – appropriate uplift

The ET increased unfair dismissal compensation by 10% on the basis that C’s failure to follow the SDP was due to ignorance of the law rather than deliberate disregard. L appealed on this issue. His appeal was dismissed. EA02 gave a broad discretion to decide on the appropriate reduction or increase between 10% and 50% on the basis of what was regarded as just and equitable in the circumstances of the individual case. The ET’s decision whether there should be an uplift of more than the basic 10%, and if so by how much, was not confined by statute beyond the use of the words “if it considers it just and equitable in all the circumstances to do so”. Parliament did not specify any particular consideration to which the ET should have regard, and the discretion was not confined by authority. The ET had to base its decision on the facts and its assessment, judgment and discretion. The decision should not rightly be subject to attack on appeal, as with other areas where the ET had power to decide what was just and equitable. There was a parallel, albeit inexact, between this jurisdiction and the ET’s jurisdiction to find whether there was contributory fault or a Polkey issue, and it has been held that the appellate courts should be slow to interfere in these areas. It was open to the ET to regard as relevant the culpability of the party which failed to comply, and in assessing culpability to differentiate between deliberate flouting of statutory requirements and ignorance of them. An employer who was ignorant of the requirements would not escape the consequences of his ignorance in that there would be a finding of automatically unfair dismissal and in most circumstances an uplift of at least 10%. Whilst the general principle was that employers should inform themselves of the relevant law, it would be wrong in principle to lay down a rule that no distinction could ever been made between errors out of ignorance and deliberate non-compliance. The ET was in no doubt about the nature and scale of C’s failures, and they found that ignorance was not the only factor affecting what had occurred. It was also a case of muddle and confusion, and the ET was entitled to take that into account. The view which the ET took of culpability was a matter for the ET. The comparative newness of the statutory requirements was also potentially relevant. There may have been no express evidence as to why C was ignorant of the procedures, but by the time the ET made its decision it would no doubt have had to consider other cases in which the SDP had arisen and would, on the basis of its own experience, have been in a position to judge the extent or otherwise to which the newness of the statutory requirements had been seen to be affecting employers and employees. The decision was open to the ET on the material before it.

Gab Robins (UK) Ltd v. Triggs; [2007] IRLR 857; [2007] ICR 1424; Current Law Oct para 119; EAT

Unfair dismissal – constructive dismissal – mutual trust and confidence

Reported in the 01.11.07 update. Now also reported in the Current Law October Digest at para. 119.

McLaughlin v. Governor of the Cayman Islands; [2007] UKPC 50; [2007] 1 WLR 2839; PC

Dismissal from public office – unlawful dismissal – appropriate compensation

M was employed from 1989 in various and increasingly senior scientific posts in the Government Service of the Cayman Islands. In 1998 he was notified that the governor, on advice from the Public Service Commission, had approved his retirement on the basis that his office would be abolished from April 1999. He was given 3 months’ salary in lieu of notice. This decision was taken without following statutory procedures for the compulsory retirement of public officers in order to facilitate economies etc. M brought judicial review proceedings which led, on appeal, to a finding that the decision to dismiss him and the purported dismissal were void, but there was no order for reinstatement. The matter was then remitted to the court of first instance for damages to be assessed. M claimed full arrears of salary and pension contributions from the date of the purported dismissal to the hearing. However, the judge held that after the passage of a reasonable time [1 year] from the appellate decision, M, not having taken any further steps to secure reinstatement, should have accepted that his contract had been repudiated. He was therefore entitled to damages representing salary and pension up to November 2003. There were cross-appeals. On appeal it was held that the declaration that the dismissal was “void” meant no more than that it was “unlawful” and had ended his tenure, and that damages fell to be reassessed on that basis. M appealed to the Privy Council. His appeal was allowed. If a public authority purported to dismiss the holder of a public office in excess of its powers or in breach of natural justice or unlawfully, that dismissal was, as between the public authority and the office holder, null, void and without effect. The consequence of this was that the office holder remained in office and entitled to remuneration for so long as he remained ready, willing and able to render the appropriate services, until his tenure was terminated by resignation or lawful dismissal. In this case, ever since the appellate decision M had been ready, willing and able to serve if and when permitted to do so, the expression “void” was apt and clear, the change of language to “unlawful” did not alter the legal result that the dismissal was without legal effect. There was no analogy with wrongful dismissal (where a dismissal might be unlawful but none the less effective). M was therefore entitled to salary and pension contributions from April 1999 until such time as he resigned or his tenure was lawfully terminated.

Optical Express Ltd v. Williams; [2007] IRLR 936; IDS Brief 841 p.15; EAT

Redundancy payments – offer of alternative employment – trial period – constructive dismissal

See below (Redundancy).

Sandhu v. Jan de Rijk Transport Ltd; [2007] EWCA Civ 430; [2007] ICR 1137; Current Law Nov para 154; CA

Unfair dismissal – whether employment terminated

S was summoned to a meeting with J’s managing director (H) and senior director of operations. H opened the meeting by informing S that he was to be dismissed. By the end of the meeting, it was agreed that S would remain employed for 4 months, would retain the use of his company car for 2 months and would keep his mobile telephone for a short period. On the day of the meeting the parties signed a letter which began “We hereby agree that we terminate your contract as per 01-04-03”. The ET concluded that although the situation started off as a dismissal by H’s statement, in fact S left because he had negotiated favourable terms, and therefore found that there was a resignation rather than a dismissal. S appealed, contending that the ET misdirected itself as to the proper test to be applied in determining whether there was a resignation or a dismissal. S’s appeal was allowed. It was plain that the ET had misdirected itself in law when it decided that the case was “on all fours” with Sheffield v. Oxford Controls Co Ltd and Crowley v. Ashland (UK) Chemicals Ltd. The case was wholly different from both. It was striking that there were no authorities in which an employee was held to have resigned because resignation had occurred in the same discussion in which the question of dismissal was raised. The reason was that resignation, as the authorities indicated, implied some form of negotiation or discussion and a genuine choice by the employee. In this case, S was dismissed. It simply could not be argued that he was negotiating freely. He was not warned that the purpose of the meeting was to dismiss him and had neither advice nor time to reflect. He had done his best on his own to salvage what he could from the inevitable fact that he was going to be dismissed. That was the antithesis of free, unpressured negotiation. Further, the terms which he obtained could not be said to be particularly favourable. The letter signed on the day was consistent with dismissal rather than resignation.

Software 2000 Ltd v. Andrews; [2007] ICR 825; Current Law Nov para 153; EAT

Unfair dismissal – Polkey – potentially relevant evidence – realistic risk of redundancy

S faced economic difficulties and proposed redundancies. It implemented a system for selection based on ACAS recommendations but with additional categories added. The assessment of candidates was left to managers, although managers were not told how to approach the assessment or given any fuller explanation of what the criteria involved. A and others were selected as they were among