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Decisions:
Shanahan Engineering Ltd v UNITE the Union
Date added: 15 March 2010 Tribunal/court: EAT Status:appeal dismissed
Topics: redundancy | collective consultation | protective award
The Employment Appeal Tribunal (EAT) has held that, even where “special circumstances” existed in a collective redundancy situation, the employer was not totally relieved from its obligations to consult with the affected employees. However, the EAT allowed part of the appeal by remitting the matter of the protective award back to the tribunal.

Malone and others v British Airways plc
Date added: 15 March 2010 Tribunal/court: High Court Status: claim denied
Topics:breach of contract | incorporation of collective agreements | injunctions
The High Court has held that provisions regarding minimum crew complements, contained in collective agreements, were not legally incorporated into employees’ contracts of employment, and those employees could not rely on them. It also held that, in any event, an injunction sought by the employees to restrain British Airways from crewing planes other than in accordance with that collective agreement could not possibly be justified.

Rayment v Ministry of Defence
Date added: 10 March 2010 Tribunal/court: High Court Status: claim allowed
Topics: protection from harassment | damages
The High Court has awarded damages for injury and distress under the Protection from Harassment Act 1997.

Darnton v Bournemouth University
Date added: 8 March 2010 Tribunal/court: EAT Status: penalty given
Topics: information and consultation | reasonable excuse | amount of penalty
The Employment Appeal Tribunal has set the penalty for an employer's failure to comply with the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) at £10,000.

Buckland v Bournemouth University Higher Education Corporation
Date added: 4 March 2010 Tribunal/court: Court of Appeal Status: appeal allowed
Topics: constructive dismissal | “range of reasonable responses” test | curing repudiatory breaches
The Court of Appeal has held that the “range of reasonable responses” test is not appropriate for deciding whether or not there has been a repudiatory breach of contract in constructive dismissal cases and an employer cannot cure a repudiatory breach of contract before an employee decides to resign.

Bateman and others v Asda Stores Ltd
Date added: 2 March 2010 Tribunal/court: EAT Status: appeal dismissed
Topics: contracts of employment | variation of contract | unilateral variation
The Employment Appeal Tribunal has held that an employer can reserve the right to vary employees' contracts unilaterally. Although varying a contractual term without notice or consultation can amount to a breach of the implied term of mutual trust and confidence, it was not asserted that there had been such a breach in this case and the employer's unilateral variation of a pay regime was therefore valid.

Gibson and others v Sheffield City Council
Date added: 2 March 2010 Tribunal/court: Court of Appeal Status: appeal allowed
Topics: equal pay | defence | genuine material factor
The Court of Appeal has held that an employment tribunal was wrong to find that a pay differential between male street cleaners and female carers, which had been caused by a productivity bonus given to the cleaners that was not appropriate for the carers due to the nature of the work, was not tainted by sex.

City of Edinburgh Council v Dickson
Date added: 23 February 2010 Tribunal/court: EAT Status: appeal allowed in part
Topics: unfair dismissal | disability discrimination | diabetes
The Employment Appeal Tribunal has upheld an employment tribunal decision that an employee was unfairly dismissed for viewing pornography at work during a “hypoglycaemic episode” brought on by diabetes when he behaved wholly out of character and after which he had no recollection of what he had done. However, it overturned the tribunal decision that the dismissal amounted to disability discrimination.

Keane v Investigo and others
Date added: 17 February 2010 Tribunal/court: EAT Status: appeal dismissed
Topics: age discrimination | whether detriment | applications not genuine
The Employment Appeal Tribunal has upheld an employment tribunal finding that a job applicant did not suffer age discrimination when her applications were not genuine.

Parkwood Leisure Ltd v Alemo-Herron and others
Date added: 3 February 2010 Tribunal/court: Court of Appeal Status: appeal allowed
Topics: transfer of undertakings | collective agreements | pay increase after transfer
The Court of Appeal has restored an employment tribunal decision that a transferee was not bound by the terms of a pay increase made under a collective agreement that was incorporated into the contracts before the transfer, where the increase was made under an agreement reached after the transfer in which the transferee played no part.

Kücükdeveci v Swedex GmbH & Co
Date added: 1 February 2010 Tribunal/court: ECJ Status: ECJ judgment
Topics: age discrimination | notice periods | length of service
The European Court of Justice has held that a German law excluding employment before the age of 25 when calculating statutory notice periods based on length of service is contrary to the Employment Framework Directive (2000/78/EC).

Patel v Oldham Metropolitan Borough Council and another
Date added: 29 January 2010 Tribunal/court: EAT Status: appeal allowed
Topics: disability discrimination | meaning of disability | concurrent conditions
The Employment Appeal Tribunal has considered whether or not a disabled employee with two related impairments that she suffered concurrently but that individually did not last 12 months each qualify for protection under the Disability Discrimination Act 1995.

(1) Duncombe and others (2) Fletcher v Secretary of State for Children, Schools and Families
Date added: 27 January 2010 Tribunal/court: Court of Appeal Status: appeal upheld
Topics: fixed-term contracts | territorial jurisdiction | European law rights
The Court of Appeal has held that an employee who was employed under a series of fixed-term contracts and whose contract was terminated could bring a claim of unfair dismissal despite the fact that he was employed to work outside Great Britain. Territorial limitations to unfair dismissal rights should be modified where necessary to enable a right emanating from European law to be enforced.

Prison Officers Association and others v Gough and another
Date added: 18 January 2010 Tribunal/court: EAT Status: appeal dismissed
Topics: employment status | two employers
The Employment Appeal Tribunal has upheld an employment tribunal decision that an individual was an employee of a union, even though he was also employed by another employer. Employees can be employed by two employers at the same time, provided that the jobs are compatible with each other.

Wolf v Stadt Frankfurt Am Main
Date added: 15 January 2010 Tribunal/court: ECJ Status: ECJ judgment
Topics: age discrimination | age limit in recruitment | genuine occupational requirement
The European Court of Justice has held that a German law restricting applicants to the fire service to individuals under the age of 30 is permissible as a genuine occupational requirement.

Petersen v Berufungsausschuss Für Zahnärzte Für Den Bezirk Westfalen-Lippe
Date added: 15 January 2010 Tribunal/court: ECJ Status: ECJ judgment
Topics: age discrimination | age limit in recruitment | protection of health
The European Court of Justice has held that a maximum age limit of 68 for dentists to work in the German health service is potentially legitimate.

Chief Constable of Lincolnshire Police v Caston
Date added: 14 January 2010 Tribunal/court: Court of Appeal Status: appeal dismissed
Topics: tribunal procedure | extension of time limits | disability discrimination
The Court of Appeal has criticised an employment tribunal’s suggestion that tribunals should adopt a “liberal” approach when considering whether or not to extend the time limit for lodging a claim.

Garrett v Lidl Ltd
Date added: 12 January 2010 Tribunal/court: EAT Status: appeal dismissed
Topics: disability discrimination | duty to make reasonable adjustments | change of place of work
The Employment Appeal Tribunal has held that an employer complied with its duty to make reasonable adjustments for disabled employees when it moved an employee to another location where the adjustments could be more easily made.

National Society for the Prevention of Cruelty to Children v Dear
Date added: 12 January 2010 Tribunal/court: EAT Status: appeal allowed
Topics: unfair constructive dismissal | disciplinary sanction | monitoring following offence
The Employment Appeal Tribunal has held that the monitoring of an employee who was disciplined for breaching his employer's procedures was a legitimate management instruction and not a disciplinary sanction.

Smith v Oxfordshire Learning Disability NHS Trust
Date added: 9 December 2009 Tribunal/court: EAT Status: appeal dismissed
Topics: national minimum wage | sleep-in payment | allowances
The Employment Appeal Tribunal has held that a sleep-in payment was not an allowance for the purpose of the national minimum wage. Therefore it should not be excluded from the calculation of the hourly rate paid by the employer.

Hamilton House Medical Ltd v Hillier
Date added: 30 November 2009 Tribunal/court: EAT Status: appeal dismissed
Topics: national minimum wage | basic rate of pay | night work
The Employment Appeal Tribunal has held that the national minimum wage relates to a worker's basic rate of pay, even if he or she normally works only at night at an enhanced rate.

Metropolitan Police Commissioner and others v Eioyaccu
Date added: 20 November 2009 Tribunal/court: EAT Status: appeal allowed
Topics: unfair dismissal | reasonable investigation | mental capacity
The Employment Appeal Tribunal has held that an employer had not been required to investigate further the mental health of an employee whom it dismissed for gross misconduct.

Meerts v Proost NV
Date added: 27 October 2009 Tribunal/court: ECJ Status: ECJ judgment
Topics: parental leave | dismissal | pay in lieu of notice
The European Court of Justice has held that pay in lieu of notice given to a worker who is dismissed without notice during part-time parental leave should be calculated on the basis of his or her full-time salary.

Henderson v Connect (South Tyneside) Ltd
Date added: 14 October 2009 Tribunal/court: EAT Status: appeal dismissed
Topics: unfair dismissal | some other substantial reason | third-party pressure to dismiss
The Employment Appeal Tribunal has held that an employer fairly dismissed an employee when a client refused to have him carry out work for it.

Edozie v G4S Security Services (UK) Ltd and another
Date added: 30 September 2009 Tribunal/court: EAT Status: appeal dismissed
Topics: race discrimination | reverse burden of proof | discrimination of the ground of colour
The Employment Appeal Tribunal has held that the reverse burden of proof applies to claims of unlawful race discrimination on the ground of colour.

B and C v A
Date added: 16 September 2009 Tribunal/court: EAT Status: appeal allowed
Topics: sex discrimination | lack of disciplinary process | not gender motivated
The Employment Appeal Tribunal has overturned an employment tribunal finding that an employer was motivated by an employee's gender when it failed to follow its disciplinary process when it dismissed him, following an allegation of rape made against him. The EAT held that, although tribunals must be alive to the fact that stereotypical views of male and female behaviour exist, there must be evidence for a tribunal to conclude that an employer has been motivated by those views.

Manor Oak (PMG) Ltd v Kelly
Date added: 7 August 2009 Tribunal/court: EAT Status: appeal allowed
Topics: unfair dismissal | misconduct | investigation | admission of guilt
The Employment Appeal Tribunal has held that an employer did not unfairly dismiss an employee when it failed to investigate in detail the nature of his misconduct in circumstances where he had admitted his guilt.

Fareham College Corporation v Walters
Date added: 15 July 2009 Tribunal/court: EAT Status: appeal dismissed
Topics: disability-related discrimination | reasonable adjustments | comparators
The Employment Appeal Tribunal has held that, in a claim of disability-related discrimination, and where the employer had failed to make a reasonable adjustment, the employment tribunal's failure to carry out a comparative exercise according to London Borough of Lewisham v Malcolm did not invalidate its decision that there had been less favourable treatment for a reason related to the employee's disability.

Decisions

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Shanahan Engineering Ltd v UNITE the Union EAT/0411/09

redundancy | collective consultation | protective award

The Employment Appeal Tribunal (EAT) has held that, even where “special circumstances” existed in a collective redundancy situation, the employer was not totally relieved from its obligations to consult with the affected employees. However, the EAT allowed part of the appeal by remitting the matter of the protective award back to the tribunal.

Shanahan Engineering Ltd employed 145 employees to work on the construction of two heat recovery steam generators at a site that was being constructed by Alstom. Due to various practical difficulties on the site, it was agreed between Shanahan and Alstom that the generators would be constructed one after the other, rather than in parallel. This meant a reduction in Shanahan employees required on the site. Alstom directed that the change should be implemented within a few days. Shanahan made 50 employees in total redundant, and due to the sudden nature of the redundancy situation, did not carry out collective consultation with the affected employees. Shanahan argued that the special circumstances of the situation rendered it not reasonably practicable to consult collectively.

The employment tribunal agreed with Shanahan that there were special circumstances and that, as a result, it was relieved from its obligations to consult at least 30 days before the first dismissal took effect. However, this did not relieve it from its obligations to consult altogether. The tribunal held that the employer could have carried out some consultation, notwithstanding that this may have lasted only two or three days. The tribunal therefore ordered Shanahan to pay the redundant employees a maximum protective award of 90 days. Shanahan appealed the tribunal’s decision.

The EAT upheld the tribunal’s decision and dismissed the appeal. The EAT concluded that, while the tribunal had found special circumstances to exist which rendered it not reasonably practicable to consult with the employees at least 30 days in advance, it remained reasonably practicable to consult. The EAT referred to the aim of the legislation that there should be consultation with a view to agreeing whether or not the employees should be dismissed for redundancy, how many employees should be dismissed and when, and what should be done to mitigate the consequences of dismissal. The EAT remitted the matter of the protective award back to the tribunal and directed it to consider whether the special circumstances could potentially be a mitigating factor.

Case transcript of Shanahan Engineering Ltd v UNITE the Union (on the EAT website)

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Malone and others v British Airways plc [2010] EWHC 302 HC

breach of contract | incorporation of collective agreements | injunctions

The High Court has held that provisions regarding minimum crew complements, contained in collective agreements, were not legally incorporated into employees’ contracts of employment, and those employees could not rely on them. In any event an injunction sought by the employees, to restrain British Airways (BA) from crewing planes other than in accordance with that collective agreement, could not possibly be justified.

In 2009, BA determined that cost savings were needed to ensure financial viability, and after failing to reach agreement with Unite, the representative for cabin crew, made changes that November that included reducing cabin crew complements on aircraft. These changes caused resentment among cabin crew, and three of them duly sought redress in the High Court, both as individual claimants and as representatives of their cabin crew colleagues.

The three claimants alleged that collective agreements between BA and the relevant unions, which contained provisions regarding minimum cabin crew complements, had been incorporated into their (and their colleagues’) contracts of employment; and that by reducing complements below these levels, BA was therefore in breach of contract. The claimants sought an injunction to prevent BA from continuing to use lower levels of cabin crew than the levels provided for in the collective agreements.

The High Court held that the terms of the collective agreements regarding cabin crew complements had not been incorporated into the claimants’ contracts of employment, and the claimants could not legally enforce them. It found insufficient evidence of a mutual intention (from the parties to the collective agreements) to give the relevant provisions legal enforceability by individual employees, and that the provisions were not “apt” for incorporation in any event.

The High Court also held that, even if it was wrong about the breach of contract claim, the injunction sought by the claimants could not possibly be justified. Of particular importance to the court’s decision to deny the injunction was that BA’s unchallenged evidence identified a “quite exceptional burden faced by BA in terms of cost, planning and reorganisation in the event of a permanent injunction, sufficient indeed to jeopardise prospects of financial recovery”.

As regards the other contracts of employment for cabin crew, put forward by the claimants in their capacity as representatives, the High Court found nothing that would lead to incorporation of the collective agreements into them. It also held that, even if the collective agreements had been incorporated into those contracts, BA would – in respect of contracts of employment made after 1994 – have been able to rely on a clause that allowed it to make “reasonable changes” to any terms of employment.

Case transcript of Malone and others v British Airways plc (on the BAILII website)

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Rayment v Ministry of Defence [2010] EWHC 218 HC

protection from harassment | damages

The High Court has awarded damages for injury and distress under the Protection from Harassment Act 1997.

Ms Rayment joined the Territorial Army as a volunteer in 1987 and remained a member until February 2003. In May 2003, she became a civilian employee and was promoted to the position of driver for the Commanding Officer of the Honourable Artillery Company (HAC) in March 2004. There were a number of issues surrounding her employment and she had periods of sickness absence. She was discharged in June 2005. She brought a claim in the High Court for damages under the Protection from Harassment Act 1997 and/or negligence, in relation to the period January 2004 to June 2005 while she was employed at the HAC. She claimed that she was subjected to bullying, victimisation and harassment in the form of persistent, offensive, abusive, intimidating, bullying, humiliating and insulting behaviour and that she had suffered psychiatric damage, namely an adjustment disorder, which resulted in loss of employment. Under s.1(1) of the 1997 Act, it is unlawful to pursue a course of conduct that amounts to harassment of another. Doing so is an offence and, under s.3, may be subject to civil proceedings by the victim, which may lead to an award of damages for anxiety and financial loss resulting from the harassment. Under s.7, "harassment" includes alarming the person or causing him or her distress. The "course of conduct" must involve conduct on at least two occasions.

The High Court referred to Veakins v Kier Islington Ltd [2010] IRLR 132 CA, in which the Court of Appeal held that, since Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL, courts have had to consider whether or not the conduct complained of is "oppressive and unacceptable" as opposed to merely unattractive, unreasonable or regrettable. The High Court also considered the analysis of the Act in Hammond v International Network Services UK Ltd [2007] EWHC 2604 HC (in which the High Court referred to Green v DB Group Services (UK) Ltd [2006] IRLR 764 HC) that, to establish harassment there must be conduct that:

• occurs on at least two occasions;
• is targeted at the claimant;
• is calculated in an objective sense to cause alarm and distress; and
• is objectively judged to be oppressive and unreasonable.

The High Court in the present case held that a number of incidents relied on by Ms Rayment to support her claim did not satisfy the test of conduct that was "oppressive and unacceptable" as identified in Veakins. It found that there were faults on both sides and that she was a challenging employee whose attitude and conduct frustrated those who worked with her. However, there were incidents that did satisfy the "oppressive and unacceptable" test:

• In May 2004, Ms Rayment’s appointment was rescinded and she was told to repay a month’s wages (although this was later reversed). The High Court found that an administrative error was wrongly used in an attempt to get rid of her.
• Ms Rayment was issued with a final written warning in February 2005 for her poor suitability for the role, which referred to her "disruptive influence … apparent predilection to seek reprisal for any apparent wrongdoing … and continued absence". The Court found this unfair and unjust. Her absence was certificated and she had rightly sought redress for complaints.
• Her final discharge as she had not returned to work and had sought to redress a complaint.
• The display of pornographic photographs in the restroom, given that Ms Rayment was the only full-time driver using the room and this action could be seen as being directed at her.

It was agreed by the doctors giving evidence for both parties that Ms Rayment had a pre-existing vulnerability to developing a psychiatric disorder. The High Court held that a panic attack in March 2004, and the period of stress and anxiety that followed, amounted to a recurring psychiatric disorder and did not result from any action by the employer. However, the events of May 2004, the issue of the final written warning and the discharge caused injury and distress. The restroom photographs caused distress. Referring to the Ministry of Defence’s medical evidence, the Court assessed damages on the basis that the first three incidents would exacerbate her existing depressive illness to a mild or moderate depression for nine months, and awarded £5,000. It awarded £500 for distress due to the photographs. It also awarded special damages of £1,060.

Case transcript of Rayment v Ministry of Defence (on the BAILII website)

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Darnton v Bournemouth University EAT/0391/09

information and consultation | reasonable excuse | amount of penalty

The Employment Appeal Tribunal (EAT) has set the penalty for an employer's failure to comply with the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) at £10,000.

Mr Darnton made a valid request for Bournemouth University to begin the information and consultation process under the Information and Consultation of Employees Regulations 2004, triggering the procedure for negotiating an information and consultation agreement. The employer began the election of negotiating representatives and entered into negotiations with those representatives with a view to concluding an information and consultation agreement.

Under the Regulations, the negotiations must last no longer than six months, beginning no later than three months after the initial request was made. The time limit can be extended by agreement between the employer and a majority of the negotiating representatives. The employer proceeded on the basis that the request had been made on 29 November 2007 and that it had until 29 August 2008 to conclude the agreement or agree an extension. The employer believed that an extension was agreed before 29 August 2008.

However, the Central Arbitration Committee (CAC) later found that the date of the request was in fact 8 November 2007, meaning that the information and consultation agreement was not effective. The employer continued to operate the arrangements introduced under the invalid agreement on a “shadow” basis, with the intention of replacing them with the fallback procedure once the representatives had been elected. The CAC also decided that the extension agreed before 29 August 2008 was not valid, rejecting the employer's argument that there had been an “implicit agreement” with the negotiating representatives that the negotiations would continue beyond that date. The CAC said that an agreement for an extension has to be clearly identified and must be for a specified period.

The case went to the EAT to consider the amount of the penalty for the employer's breach of the Regulations. The employer argued that it had a reasonable excuse for the failure and that, pursuant to reg.22(7), no penalty notice should be issued. It argued that it had formed "a genuine and reasonable view, having taken legal advice" that the date of Mr Darnton's request was 29 November 2007 and that the extension of the time limit for negotiations to end had been implicitly agreed.

The EAT found that these reasons did not constitute a reasonable excuse and went on to impose a £10,000 penalty. It acknowledged the lack of case law in this area, with Amicus v Macmillan Publishers Ltd [2007] IRLR 885 EAT being the only other appeal decision (in which £55,000 was awarded). The EAT said that it should make a broad evaluation of all the relevant considerations, which in this case included that:

• the employer's breach was not deliberate and was due to a mistake about the date of the employee's request and a misguided view that it had secured an extension to the information and consultation negotiations; and
• the employer had not begun to run the default procedures but had at least been running the invalid agreement on a “shadow” basis.

These factors meant that the penalty should be towards the bottom end of the scale.

Case transcript of Darnton v Bournemouth University (Microsoft Word format, 70K) (on the EAT website)

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Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121 CA

constructive dismissal | “range of reasonable responses” test | curing repudiatory breaches

The Court of Appeal has held that the “range of reasonable responses” test is not appropriate for deciding whether or not there has been a repudiatory breach of contract in constructive dismissal cases and an employer cannot cure a repudiatory breach of contract before an employee decides to resign.

Professor Buckland, who worked at Bournemouth University, marked exam papers that were second checked by a second marker to ensure consistency. In 2006, Professor Buckland failed 14 students, a high number of failures but results that were later confirmed by a second marker. The results were further checked and confirmed by the board of examiners. However, the leader of the course chose to have the papers remarked without consulting Professor Buckland. Although a subsequent inquiry vindicated Professor Buckland’s original marks, he resigned and claimed constructive dismissal.

The employment tribunal confirmed that Professor Buckland had been constructively dismissed, on the ground that not consulting him on the remarking of the papers had destroyed the relationship of trust and confidence that is implicit in contracts of employment. In addition, the tribunal said that the subsequent inquiry had not cured the original breach.

However, the Employment Appeal Tribunal (EAT) overturned the tribunal decision on the ground that the subsequent inquiry had cured the original breach. Professor Buckland appealed to the Court of Appeal, which was also asked to consider whether or not the “range of reasonable responses” test is appropriate for deciding whether or not there has been a repudiatory breach of contract in constructive dismissal cases.

The Court of Appeal said that there was no authority to support the EAT’s assertion that a repudiatory breach can be remedied in constructive dismissal cases. The Court of Appeal said that, while this could create injustice, it could not justify “releasing the contents of this Pandora’s box into contract law”.

The Court of Appeal also approved the EAT's four-stage summary of the correct test to establish constructive dismissal, holding that the "range of reasonable responses" test has no place in deciding whether or not there has been a repudiatory breach of contract. The test for establishing constructive dismissal is objective. Although reasonableness is a factor that tribunals may take into account in finding a repudiatory breach, it is not a legal requirement.

Case transcript of Buckland v Bournemouth University Higher Education Corporation (on the BAILII website)

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Bateman and others v Asda Stores Ltd EAT/0221/09

contracts of employment | variation of contract | unilateral variation

The Employment Appeal Tribunal (EAT) has held that an employer can reserve the right to vary employees' contracts unilaterally. Although varying a contractual term without notice or consultation can amount to a breach of the implied term of mutual trust and confidence, it was not asserted that there had been such a breach in this case and the employer's unilateral variation of a pay regime was therefore valid.

A number of the employer’s staff were employed on an old pay structure and the employer wished to bring their pay in line with its newer system. Some employees had their contracts of employment changed unilaterally, with the employer relying on a provision in its staff handbook that it could review, revise or amend the handbook to “reflect the changing needs of the business”. Ms Bateman and around 700 other employees whose contracts of employment were amended brought claims for unlawful deductions from wages.

The employment tribunal found that, while the employer would ordinarily be required to obtain the employees’ consent before making the variation, an employer may reserve the contractual power to vary the terms of a contract of employment without consent by reserving the right to do so unilaterally. This principle was established in Wandsworth London Borough Council v D'Silva and another [1998] IRLR 193 CA. The tribunal did say that there could be arguments that the employer acted so unreasonably or capriciously as to make the variation a breach of the implied trust and confidence between the employer and employee, but that this was not argued in the present case. Therefore, the employer was entitled to vary the contracts of employment unilaterally.

The EAT agreed. The words in the staff handbook were "clear and unambiguous" and allowed the employer to introduce new policies without the prior consent of employees. The EAT did not accept the argument that most of the employees were not well-educated or even literate or numerate and could not conceivably have intended or expected that the effect of their terms of employment would be to give their employer unilateral discretion to reduce their pay, change their hours of work or cut holidays. In addition, the EAT noted that the argument that the variation amounted to a breach of the term of trust and confidence had not been raised in the employment tribunal and so it could not be considered during the appeal.

Case transcript of Bateman and others v Asda Stores Ltd (Microsoft Word format, 98K) (on the EAT website)

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Gibson and others v Sheffield City Council [2010] EWCA Civ 63 CA

equal pay | defence | genuine material factor

The Court of Appeal has held that an employment tribunal was wrong to find that a pay differential between male street cleaners and female carers, which had been caused by a productivity bonus given to the cleaners that was not appropriate for the carers due to the nature of the work, was not tainted by sex.

Care workers brought a claim for equal pay comparing themselves to street cleaners. The employer argued that it had a genuine material factor defence under s.1(3) of the Equal Pay Act 1970. It said that the differences in pay were due to a productivity bonus that was paid to the cleaners that would not have been appropriate for carers. The employment tribunal accepted that this was the reason for the differences in pay.

The Employment Appeal Tribunal applied the principle set out in Armstrong and others v Newcastle upon Tyne NHS Hospital Trust [2006] IRLR 124 CA that an employer does not have objectively to justify a pay practice if it can show that, despite the statistics showing that it has an adverse impact on women, the reasons for the practice are not sex-tainted. The EAT held that it was therefore open to the tribunal to find that the difference in pay was not sex-tainted and as a result there was no need objectively to justify the pay differential.

However, the Court of Appeal disagreed. It said that Armstrong did not apply in this case. The tribunal had made the mistake of believing that an explanation for differences in pay that suggest that there is no direct discrimination is enough to show that the pay practice is not sex-tainted. This ignores the possibility that there may be indirect discrimination. The effect of the productivity bonus was discriminatory and the sexual taint is present. The impossibility of applying the productivity bonus to women's work is genuine but that does not remove the sexual taint from the operation of the scheme. The scheme has a disparate adverse effect on women's work as compared with men's work. It must be justified objectively if the employer is to be successful in defending the case. The opportunity to justify is a sufficient protection for employers in such circumstances. The case should be remitted to the employment tribunal to give the employer the opportunity to attempt such justification.

Case transcript of Gibson and others v Sheffield City Council (on the BAILII website)

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City of Edinburgh Council v Dickson EATS/0038/09

unfair dismissal | disability discrimination | diabetes

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an employee was unfairly dismissed for viewing pornography at work during a “hypoglycaemic episode” brought on by diabetes when he behaved wholly out of character and after which he had no recollection of what he had done. However, it overturned the tribunal decision that the dismissal amounted to disability discrimination.

Mr Dickson, who was a community worker at the City of Edinburgh Council, had suffered from type 1 diabetes for over 30 years, with his condition having been poorly controlled in recent years. His manager received a complaint from a youth club organiser that children in the youth club and the adults accompanying them had seen him viewing pornography in the council’s public computer suite. Mr Dickson argued at a disciplinary hearing that he had no recollection of the incident but, if it had happened, it must have been caused by his diabetic condition and it had happened during a hypoglycaemic episode. His argument was rejected and he was dismissed for misconduct, a decision that he failed to have overturned in an appeal hearing. Mr Dickson brought claims for unfair dismissal and disability discrimination.

The employment tribunal found that Mr Dickson had been unfairly dismissed because the employer had made no attempt to investigate his claim that diabetes had caused his behaviour. The employment tribunal ordered that he should be reinstated. The employment tribunal also found that the dismissal constituted direct disability discrimination and that, even if it had not been direct discrimination, it would have been disability-related discrimination. It awarded Mr Dickson £25,000.

The EAT agreed that the dismissal had been unfair. It applied the test set out in British Home Stores Ltd v Burchell [1978] IRLR 379 EAT for considering whether or not a decision to dismiss an employee for misconduct is unfair. The three questions to be asked are:

• Did the employer genuinely believe that the employee was guilty of misconduct?
• Did the employer have reasonable grounds for that belief?
• Did the employer carry out as much investigation into the matter as was reasonable in the circumstances?

The EAT said that the employer had satisfied only the first part of the test. The employer did not have reasonable grounds for believing that Mr Dickson was guilty of misconduct because it had not considered his explanation that his behaviour had been caused by a medical condition. In addition, the employer had not carried out a proper investigation. For example, it had not sought medical advice on Mr Dickson’s medical condition.

The EAT went on to uphold the employment tribunal decision to reinstate Mr Dickson. It rejected the employer’s argument that it was impractical for him to be reinstated. The EAT agreed with the tribunal that Mr Dickson had a previously unblemished work record; had good relationships with colleagues; and may not have been responsible for his actions.

However, the EAT overturned the employment tribunal finding of disability discrimination. It criticised the assertion by the tribunal that, even if the dismissal had not been direct discrimination, it would in any event have been disability-related discrimination. The House of Lords decision in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL removed for all practical purposes the differences in scope between direct disability discrimination and disability-related discrimination. This is because the House of Lords defined the comparator as a person whose case was in all respects identical to that of the claimant but who was not disabled. On that basis, less favourable treatment would, in practice, be established only where the disability constituted the ground for the treatment, ie in a case of direct discrimination. Therefore, it is now “practically impossible” for the one of these two types of claim to succeed where the other would not.

The EAT then asked the “reason why” question. In other words, it asked whether or not the employer’s failure to take Mr Dickson’s case seriously was “on the ground that” he was a diabetic. In cases of direct discrimination or disability-related discrimination, it has to be decided what was influencing the mind of the decision maker. The EAT saw no reason to suppose that the fact that Mr Dickson is a diabetic influenced the employer’s thinking about the disciplinary issue in this case. The fact that an employer treats a disabled person unreasonably, even in a matter related to a disability, does not necessarily mean that it has done so because the person is disabled.

Case transcript of City of Edinburgh Council v Dickson (Microsoft Word format, 139K) (on the EAT website)

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Keane v Investigo and others EAT/0389/09

age discrimination | whether detriment | applications not genuine

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal finding that a job applicant did not suffer age discrimination when her applications were not genuine.

Ms Keane, a 51-year-old accountant with a number of years’ experience, applied for at least 20 positions that were clearly advertised as being for a recently qualified accountant with limited experience. As soon as it became apparent that she was not being interviewed for a post she served a questionnaire under reg.41 of the Employment Equality (Age) Regulations 2006 (SI 2006/1031) and commenced employment tribunal proceedings for age discrimination, under reg.21 (relating to age discrimination by employment agencies). At the employment tribunal the respondents argued that Ms Keane did not genuinely want any of the positions for which she had applied, but that she had applied to make a point about age discrimination and to achieve settlements. It was conceded by both parties that, if the tribunal found that Ms Keane had not made genuine applications and was not interested in the positions, she had not suffered a detriment if she was not put forward for them. Nor would she have suffered a disadvantage if the advertisement gave rise to potential indirect age discrimination. The employment tribunal found that there was no direct or indirect discrimination. However, Ms Keane’s claim also failed because her applications had not been genuine. The tribunal held that the claims were misconceived and an abuse of process and awarded costs against her. Ms Keane appealed. She applied to withdraw the concession she had made in the employment tribunal. One of the arguments that she advanced was that there is no direct authority under the 2006 Regulations to suggest that an application must be genuine before a statutory disadvantage can be suffered.

The EAT pointed out that the definition of discrimination in reg.3 requires less favourable treatment of the claimant. Indirect discrimination requires disadvantage. These are referred to together as “detriment”. The EAT held that an applicant who is not considered for a job in which he or she is not interested could not be said to suffer a detriment. Ms Keane sought to rely on Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 ECJ, in which the European Court of Justice held that a finding of direct discrimination in relation to recruitment under the Race Directive (2000/43/EC) was not dependent on the identification of someone claiming to be a victim. However, the EAT in the present case held that the reasoning in Centrum did not apply to this case and did not consider the possibility of candidates who did not want the job in the first place. That an application must be genuine before an individual could suffer a statutory disadvantage was self evident. Therefore, the concession made in the tribunal was correct and should not be withdrawn.

The EAT also held that the tribunal finding that Ms Keane’s applications were not genuine was not perverse. If the decision was that claims were made with an ulterior motive, the award on costs was also sound. The appeal was dismissed.

Case transcript of Keane v Investigo and others (Microsoft Word format, 102K) (on the EAT website)

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Parkwood Leisure Ltd v Alemo-Herron and others [2010] EWCA Civ 24 CA

transfer of undertakings | collective agreements | pay increase after transfer

The Court of Appeal has restored an employment tribunal decision that a transferee was not bound by the terms of a pay increase made under a collective agreement that was incorporated into the contracts before the transfer, where the increase was made under an agreement reached after the transfer in which the transferee played no part.

The employees were originally employed by the London Borough of Lewisham. In 2002, they were transferred under the TUPE legislation to CCL Ltd. In 2004, they were TUPE transferred to Parkwood Leisure Ltd. Under their contracts of employment with Lewisham, they were paid in accordance with collective agreements negotiated with the National Joint Council for Local Government Services (NJC). After the first transfer, CCL increased the transferred employees' pay in line with the NJC pay settlements between 2002 and March 2004. However, Parkwood, which took no part in the collective negotiations, did not make pay awards reflecting the agreed NJC increases. The employees complained to an employment tribunal that Parkwood had made unauthorised deductions from their wages. They argued that TUPE protected their terms and conditions of employment on transfer to CCL, and thereafter to Parkwood. Parkwood contended that it was not obliged to increase the transferred employees' pay in accordance with the relevant collective agreements negotiated from time to time. The tribunal held that the collective agreement in force from 2001 was comprehensively renegotiated and revised in 2004. At that point, it said, the old agreement expired, and was replaced by the new agreement. Thereafter, Parkwood was no longer bound by the collectively agreed pay terms.

The employees appealed to the Employment Appeal Tribunal (EAT) (Alemo-Herron and others v Parkwood Leisure Ltd [2009] IRLR 322 EAT), relying on the EAT decision in Whent and others v T Cartledge Ltd [1997] IRLR 153 EAT. In Whent, the EAT held that, following a TUPE transfer, the terms of the collective agreement incorporated into the transferred employees' contracts will bind the transferee, even if it withdraws from collective participation and is not party to the negotiation. The employer argued that Whent had been superseded by the European Court of Justice (ECJ) decision in Werhof v Freeway Traffic Systems GmbH & Co [2006] IRLR 400 ECJ. The ECJ based its decision on what is now art.3(3) of the Acquired Rights Directive (2001/23/EC). This provides that, following a transfer, the transferee shall continue to observe the terms of a collective agreement until such time as it is terminated or expires, or a new collective agreement comes into force. It further provides that member states can limit the continued application of a collective agreement following a transfer to a period of one year. Accordingly, the ECJ held that the transferee, which was not a member of the negotiating body, was not bound by a fresh collective agreement reached after the transfer. It agreed with the employer that the clause in the employment contract referring to collective agreements was “static” and that only the collective agreement in force at the time of the transfer applied. The ECJ disagreed with the employee’s argument that the clause was “dynamic”, and could refer to collective agreements concluded after the date of the transfer.

The EAT in the present case noted that the ECJ in Werhof had relied on (what is now) art.3(3) of the Directive, but that this provision limiting the applicability of collective agreements had not been transposed into the TUPE legislation. The EAT held that member states are free to introduce legislation that is more favourable to the workers within its scope than the relevant Directive. The TUPE Regulations had done just this. Accordingly, neither this part of the Directive nor Werhof was helpful in determining the case. The tribunal remained limited by the earlier case law, ie Whent, and should have concluded that the employer was bound by the fresh collective agreement. Parkwood appealed to the Court of Appeal.

The Court of Appeal held that, according to Werhof, art.3(1) of the Directive (under which the transferor’s rights and obligations arising under the contract or employment relationship transfer to the transferee) does not require a dynamic interpretation to circumstances such as those in Werhof, where there is a contractual clause for terms to be fixed by reference to a collective agreement negotiated from time to time. Instead, a static interpretation of the transferee's obligations in this regard is required. The Court of Appeal disagreed with the employees’ argument that TUPE imposes a dynamic obligation on transferees (although without Werhof this argument might have been supported). TUPE does not expand the rights in the Directive. Decisions such as that in Whent were wrong under an interpretation of TUPE that should be favoured following Werhof. The Court of Appeal allowed Parkwood's appeal and restored the employment tribunal decision.

Case transcript of Parkwood Leisure Ltd v Alemo-Herron and others (on the BAILII website)

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Kücükdeveci v Swedex GmbH & Co Case C-555/07 ECJ

age discrimination | notice periods | length of service

The European Court of Justice (ECJ) has held that a German law excluding employment before the age of 25 when calculating notice periods based on length of service is contrary to the Employment Framework Directive (2000/78/EC).

Ms Kücükdeveci had worked at Swedex GmbH & Co since she was 18, but was dismissed in 2006 when she was aged 28. German law meant that the service she had completed before she reached 25 was disregarded when deciding her statutory notice period. She was entitled to the notice period for only three years' service. Ms Kücükdeveci claimed before the German Labour Court that this was age discrimination contrary to the Employment Framework Directive. The German Labour Court made a reference to the ECJ.

The ECJ accepted that the German rules on notice periods treated employees who start a job before they are 25 less favourably under the Employment Framework Directive. The ECJ went on to consider whether or not the less favourable treatment is objectively justified. It pointed out that that the referring court had said that the aim of the national legislation is to afford employers greater flexibility in personnel management by alleviating the burden on them in respect of the dismissal of young workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility. However, the ECJ said that the legislation is not appropriate for achieving that aim, since it applies to all employees who joined the undertaking before the age of 25, whatever their age at the time of dismissal. The legislation affects young employees unequally, in that it affects young people who enter active life early after little or no vocational training, but not those who start work later after a long period of training.

Case transcript of Kücükdeveci v Swedex GmbH & Co (on the ECJ website)

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Patel v Oldham Metropolitan Borough Council and another EAT/0225/09

disability discrimination | meaning of disability | concurrent conditions

The Employment Appeal Tribunal (EAT) has considered whether or not a disabled employee with two related impairments that she suffered concurrently but that individually did not last 12 months each qualify for protection under the Disability Discrimination Act 1995.

Mrs Patel was a teacher. She suffered from mild myelitis (inflammation of the spinal cord) between February and December 2005, resulting in three periods of absence from work of 28, 18 and 66 days. By January 2006, Mrs Patel had developed another, medical condition myofacial pain syndrome (painful muscular trigger points), and she was absent from work from 5 October 2006 for 141 days. She was dismissed by reason of incapability on 30 April 2007.

Mrs Patel brought a claim for disability discrimination, which was rejected by the employment tribunal. An individual must have a physical or mental impairment that has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities. Generally, “long term” means has lasted or is likely to last for at least 12 months or for the rest of the life of the person affected. The employment found that, on Mrs Patel’s own evidence, there were two periods when she suffered from a physical impairment that had a substantial adverse effect on her ability to carry out normal day-to-day activities, but each period did not last for 12 months nor could be said to be likely to last for at least 12 months.

The EAT first noted that the grounds on which the appeal proceeded meant that it could not consider whether or not the two impairments should be considered as one. It may be that in another case two closely related sequential impairments (such as myelitis and myofacial pain syndrome) could be regarded as a single impairment and its duration calculated accordingly. However, this appeal should be considered on this basis that Mrs Patel suffered from two different consecutive impairments.

The EAT decided that the effect of an illness or condition likely to develop or which has developed from another illness or condition forms part of the assessment of whether or not the effect of the original impairment is likely to last or has lasted at least 12 months. The employment tribunal erred in failing to consider whether or not Mrs Patel’s secondary myofascial pain syndrome had developed from her myelitis in determining whether or not the duration of the effects of these two different impairments were to be aggregated for the purposes of deciding whether or not they were long-term. The case should be remitted to the tribunal to consider this issue.

Case transcript of Patel v Oldham Metropolitan Borough Council and another (Microsoft Word format, 70K) (on the EAT website)

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(1) Duncombe and others (2) Fletcher v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1355 CA

fixed-term contracts | territorial jurisdiction | European law rights

The Court of Appeal has held that an employee who was employed under a series of fixed-term contracts and whose contract was terminated could bring a claim of unfair dismissal despite the fact that he was employed to work outside Great Britain. Territorial limitations to unfair dismissal rights should be modified where necessary to enable a right emanating from European law to be enforced.

Mr Duncombe was employed by the Secretary of State for Children, Schools and Families (the Department), under a series of fixed-term contracts, to work as a teacher in a school in Germany for children of staff working in European Community institutions. According to his offer letter, the law of choice and jurisdiction was English law. The Department terminated his employment in compliance with a rule, known as the “nine-year rule”, established under the Schools Convention and school staff regulations, under which teaching posts were subject to a maximum of nine years’ duration. Mr Duncombe claimed unfair dismissal and wrongful dismissal.

Under reg.8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (2002 SI 2002/2034), where an employee has been continuously employed on successive fixed-term contracts for four years or more, he or she automatically achieves permanent status, unless there is an objective reason justifying a further renewal for a fixed term. Employees who have achieved permanent status under reg.8 may bring claims of unfair dismissal under s.94(1) of the Employment Rights Act 1996 if their contract is terminated. The 2002 Regulations implement the Fixed-term Workers Directive (99/70/EC). The key issue was whether Mr Duncombe was employed under a fixed-term contract with an objectively justified nine-year duration or the 2002 Regulations converted his previous contracts into a permanent contract, entitling him either to continue working or to claim unfair and wrongful dismissal on termination.

The employment tribunal and Employment Appeal Tribunal (EAT) agreed that the Department could not objectively justify the nine-year rule. The 2002 Regulations and the Directive prevailed over the Schools Convention and staff regulations. However, the employment tribunal held that Mr Duncombe could not bring a claim for unfair or wrongful dismissal because the 2002 Regulations have no extra-territorial application to convert the fixed-term contract into a permanent contract. The Regulations were subject to the same implied territorial limitations applied in Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Ltd and others [2006] IRLR 289 HL, in which the House of Lords gave guidance on deciding whether or not an individual is employed in Great Britain. If the employee is not actually working in Great Britain there must be a sufficiently strong connection with an employer based in Great Britain. The tribunal held that Mr Duncombe did not fall within any of the exceptions to territorial jurisdiction outlined in Serco. Therefore his claim could not proceed. The EAT rejected Mr Duncombe’s appeal in relation to unfair dismissal, but allowed his appeal in relation to wrongful dismissal, on a ground established in Bleuse v MBT Transport Ltd and another [2008] IRLR 264 EAT. In Bleuse, an employee who was not based in Great Britain was able to pursue a claim for unpaid holiday pay because the right to paid annual leave under the working time rules implements a directly effective European right that domestic courts must seek to enforce. Mr Duncombe appealed against the finding on unfair dismissal. The Department appealed against the finding on wrongful dismissal.

The Court of Appeal upheld the tribunal and EAT decisions in relation to objective justification. That the Department had no choice in the matter of the nine-year rule did not excuse it from having to justify it. The Court of Appeal dismissed the Department’s appeal in relation to Mr Duncombe’s wrongful dismissal claim. The Court held that the Serco principles do not limit the territorial scope of the 2002 Regulations in relation to contract issues. It held that the Regulations apply to all relevant contracts governed by English law (which was chosen by the parties to govern Mr Duncombe’s contract), regardless of where they are performed. There was no express provision in the Regulations or the contract itself limiting its territorial application. Therefore, his fixed-term contract was converted into a permanent one. However, if the Serco principles do apply to the Regulations, the Bleuse principle also applies to rights arising from the Directive and the Regulations.

In relation to the unfair dismissal claim, the Court of Appeal said that the Serco principles do apply to unfair dismissal claims. The tribunal was correct to find that Mr Duncombe did not fall within the territorial exceptions in Serco. However, his appeal succeeded on the Bleuse principle. The principle of the effectiveness of EC law is fundamental and requires that the territorial limitations imposed by domestic legislation on unfair dismissal rights should be modified where necessary to enable a right derived from European law to be enforced. Mr Duncombe’s right, under Regulations made to implement a Directive, for his fixed-term contract to become permanent, was not effective if he was dismissed when the fixed-term contract expired. If he had no remedy because he worked outside Great Britain, he would have no remedy for the denial of a right derived from European law. His appeal was allowed.

Case transcript of (1) Duncombe and others (2) Fletcher v Secretary of State for Children, Schools and Families (on the BAILII website)

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Prison Officers Association and others v Gough and another EAT/0405/09

employment status | two employers

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an individual was an employee of a union, even though he was also employed by another employer. Employees can be employed by two employers at the same time, provided that the jobs are compatible with each other.

Mr Gough was employed by the prison service. The issue in the case was whether or not he was an employee of the Prison Officers Association (POA), a union, at the same time. He was elected as a national executive officer (NEO) on the POA’s national executive committee. As well as receiving a salary from the prison service, he received an annual payment known as a "miscellaneous expenditure grant" of £14,000 per annum from the POA. This payment was in addition to expenses and was subject to tax and national insurance.

Mr Gough’s duties as an NEO took up 15% of his time and were allied to other duties of an NEO of assisting members of the POA in relation to their employment, such as in disputes, grievances and disciplinary matters. At times, other duties occupied almost 85% of his time. NEOs could be subject to a disciplinary process if they failed to protect and promote the best interests of the membership. They were also obliged to carry out duties allocated by the Chairman or General Secretary, and were answerable to full-time officers.

The employment tribunal referred to the factors set out in 102 Social Club & Institute Ltd v Bickerton [1977] ICR 911 EAT for deciding whether or not the secretary of a members’ club might be an employee, namely:

• whether a payment was an honorarium or salary;
• whether or not the payment was fixed in advance;
• whether or not the arrangements conferred a right to payment;
• the size of the payment;
• whether the individual exercised the functions of an independent office or was subject to control and orders;
• the extent and weight of the duties performed; and
• the description of the payment in the minute or resolution authorising it, and its treatment in the accounts for tax and national insurance purposes.

Applying these factors to the present case, the employment tribunal held that Mr Gough was an employee of the POA. He worked full time in return for a not insubstantial payment, which was fixed in advance. There was a degree of control and mutuality of obligation and the range of duties went beyond, and were not defined by, the constitution. The POA appealed.

The EAT held that Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] IRLR 983 CA makes clear that it is possible for an individual to have two jobs at the same time, provided that they are compatible with each other. The EAT rejected the POA’s argument that the employment tribunal had referred to the importance of the arrangement with the prison service but had not dealt with this issue. The tribunal had considered the arrangement and found that Mr Gough was an employee of the prison service with a full salary, pension and terms and conditions, but that he was released to the POA to carry out the required duties. However, this did not resolve the issue. The critical issue was the relationship between Mr Gough and the POA, which the tribunal had considered. The fact that the prison service paid Mr Gough was not relevant to establishing whether or not he was an employee of the POA. The appeal was dismissed.

Case transcript of Prison Officers Association and others v Gough and another (Microsoft Word format, 70K) (on the EAT website)

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Wolf v Stadt Frankfurt Am Main Case C-229/08 ECJ

age discrimination | age limit in recruitment | genuine occupational requirement

The European Court of Justice (ECJ) has held that a German law restricting applicants to the fire service to individuals under the age of 30 is permissible as a genuine occupational requirement.

Mr Wolf applied for a job in the fire service in Frankfurt, but his application was rejected because he had reached the age of 30. He brought a claim in the German Administrative Court arguing that this restriction was contrary to the prohibition on age discrimination in the Employment Framework Directive (2000/78/EC). The German court asked the ECJ for a ruling on whether or not the fire service's age restriction is contrary to the Directive.

The ECJ said that member states can provide that a difference in treatment based on a characteristic such as age does not constitute discrimination where, by reason of the nature of occupational activities, that characteristic is a genuine and determining occupational requirement. This is provided that the objective is legitimate and the requirement is proportionate.

The ECJ went on to say that the proper functioning of the emergency services is a legitimate aim. The preamble to the Employment Framework Directive states that emergency services are not required to recruit individuals who do not have the capacity to carry out the range of functions that they may be called upon to perform. The German Government had submitted unchallenged evidence that the work of the fire service is characterised by its "physical nature". The ECJ concluded that the possession of "especially high physical capacities" could be regarded as a genuine occupational requirement to be a fire-fighter. It accepted evidence submitted by the German Government showing that certain physical capacities diminish with age and that workers in the fire service over the age of 45 generally carry out less physical activities.

The ECJ decided that an age restriction of 30 is proportionate. The recruitment of individuals at an older age would mean that too many fire-fighters could not be assigned to the more physical activities. An official recruited before the age of 30 who follows a training programme lasting two years can be assigned to those duties for a minimum of 15 to 20 years. By contrast, if he or she is recruited at the age of 40, that period will be a maximum of 5 to 10 years.

Case transcript of Wolf v Stadt Frankfurt Am Main (on the ECJ website)

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Petersen v Berufungsausschuss Für Zahnärzte Für Den Bezirk Westfalen-Lippe Case C-341/08 ECJ

age discrimination | age limit in recruitment | protection of health

The European Court of Justice (ECJ) has held that a maximum age limit of 68 for dentists to work in the German health service is potentially legitimate.

The German Government has an age limit of 68 for the accreditation of dentists to work in the German national health service. Ms Petersen, who had been providing dental treatment since 1974, reached the age of 68 in 2007. She was told that she could no longer practice dentistry from the end of the calendar quarter in which she reached the age of 68. She challenged this decision before the German Administrative Court, which referred the issue of the legality of the age limit under the Employment Framework Directive (2000/78/EC) to the ECJ.

The German Government argued before the ECJ that the age limit should be allowed under art.2(5) of the Employment Framework Directive, which provides an exemption for national laws that are necessary for the protection of public health.

The ECJ identified ensuring the competence of dentists and maintaining the financial stability of the system as legitimate aims. It went on to consider whether or not having an age limit is a proportionate means of achieving these aims. In relation to ensuring the competence of dentists, the rule could not be proportionate because it applied only to dentists working in the public sector and excluded those in the private sector. However, in relation to maintaining the financial stability of the system, the use of the age limit could be proportionate because it is a means of limiting the increasing number of dentists working within the German national health service. It would be a matter for the German court to decide which of these aims were being pursued.

The ECJ also held that the German Government could have an alternative defence under art.6(1) of the Employment Framework Directive. The age limit could be an "appropriate and necessary" means of sharing out of employment opportunities among the generations within the dentistry profession. This might be the case if there are an excessive number of dentists or a latent risk that such a situation will occur, but this would again be a matter for the national court to decide.

Case transcript of Petersen v Berufungsausschuss Für Zahnärzte Für Den Bezirk Westfalen-Lippe (on the ECJ website)

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Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 CA

tribunal procedure | extension of time limits | disability discrimination

The Court of Appeal has criticised an employment tribunal’s suggestion that tribunals should adopt a “liberal” approach when considering whether or not to extend the time limit for lodging a claim.

Ms Caston made a claim for disability discrimination on 28 March 2008, which was outside the normal three-month time limit for bringing discrimination claims. An employment tribunal chose to extend the time limit under para.3(2) of part 1 to sch.3 of the Disability Discrimination Act 1995, finding that it was just and equitable to do so because of Ms Caston’s mental health problems. In doing so, the tribunal referred to a passage in the Employment Court Practice 2007 (ECP 2007) publication, which states that “in practice employment tribunals and the appellate courts have adopted a liberal approach to the extension of time”. The Employment Appeal Tribunal said that, while the ECP 2007 did not accurately state the law, the employment tribunal had been entitled to extend the time limit on the facts of this case.

The Court of Appeal agreed. It said that the question that must be asked is whether or not there is material on which the employment tribunal can rely to exercise its discretion to extend the time limit. In this case, there clearly were facts relating to Ms Caston’s mental health that allowed the tribunal to find that an extension of time was just and equitable. Asking the question whether or not the decision was “liberal” is at best a distraction, at worst misleading.

The Court of Appeal went on to note that the ruling in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434 CA neatly summarises the position. The Court of Appeal in that case said that it is important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to hear a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify a failure to exercise the discretion. In fact, a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The exercise of discretion is the exception rather than the rule. Similarly, an appellate court may not allow an appeal against the tribunal's refusal to consider an application out of time in the exercise of its discretion merely because it would have formed a different view.

Case transcript of Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 CA (on the BAILII website)

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Garrett v Lidl Ltd EAT/0541/08

disability discrimination | duty to make reasonable adjustments | change of place of work

The Employment Appeal Tribunal (EAT) has held that an employer complied with its duty to make reasonable adjustments for disabled employees when it moved an employee to another location where the adjustments could be more easily made.

Mrs Garrett was a manager in Lidl's Woolwich store. She has fibromyalgia syndrome, which causes pain, fatigue and muscle stiffness. The employer made various adjustments to her work, including allowing her to take breaks when needed. Following a risk assessment and further discussions, the employer decided that Mrs Garrett could no longer cope at the busy Woolwich store and proposed that she be moved to the training store in Welling, where it felt that it would be easier to accommodate the adjustments that she needed. Mrs Garrett said that she wanted to remain in Woolwich, but was eventually convinced to return to work at the Welling store. She claimed that the employer had not complied with its duty to make reasonable adjustments for disabled employees. She also claimed that she had been harassed and victimised by various managers.

An employment tribunal dismissed Mrs Garrett's claims. It found that the Woolwich store had a high turnover of customers, which made taking breaks difficult. The pressures at the Welling office were less and so it was easier to make adjustments there than in the Woolwich office, where the changes were not practical. The tribunal also noted that the distance for Mrs Garrett to travel to the new store was not significant and she had a mobility clause in her contract of employment that required her to work in different stores. Therefore, the employer had complied with its duty to make reasonable adjustments. The employer also dismissed Mrs Garrett's harassment and victimisation claims.

Although the EAT remitted Mrs Garrett's harassment and victimisation claims to the employment tribunal, it rejected her appeal on the duty to make reasonable adjustments. The tribunal had correctly asked itself whether or not the adjustments could have been made at Mrs Garrett's existing place of work. While there is nothing to stop a large employer from making adjustments by finding an employee an alternative place of work, it makes good industrial sense for it to consider whether or not those adjustments could be made at the existing place of work. However, the EAT did not consider it unreasonable for this employer to conclude that the adjustments could best be achieved by a move to another place of work, particularly as Mrs Garrett had a mobility clause in her contract of employment and had in the past worked at several of the employer's stores.

Case transcript of Garrett v Lidl Ltd (Microsoft Word format, 123K) (on the EAT website)

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National Society for the Prevention of Cruelty to Children v Dear EAT/0553/08

unfair constructive dismissal | disciplinary sanction | monitoring following offence

The Employment Appeal Tribunal (EAT) has held that the monitoring of an employee who has been disciplined for breaching his or her employer's procedures was a legitimate management instruction and not a disciplinary sanction.

Mr Dear, who had over 30 years' experience as a social worker, worked at the NSPCC doing three shifts per week on its national helpline. Accurate record keeping is very important in child protection and helpline workers are required carefully to record and log calls. When Mr Dear received a call about a distressed child, he made a note in his notebook (which was handed in to a manager at the end of each shift), but failed to state the date or sign the entry. In addition, Mr Dear's handwriting was illegible. He also did not complete the required "child at risk" form because the caller had said that the police had already been informed.

Mr Dear was disciplined, with a recorded oral warning being placed on his file for six months. Management had concerns about Mr Dear's record keeping and so required him to have all general calls (ie calls where the caller seeks general advice but does not have information that a particular child is at risk) signed off by a manager. It also required him to confirm the legibility and accuracy of his notebook with a manager at the end of each shift. Mr Dear was upset at having to do this. After some discussion, he raised a grievance but later resigned and claimed unfair constructive dismissal. An employment tribunal agreed that he had been unfairly dismissed.

The EAT overturned the employment tribunal decision, saying that the tribunal had fallen into the trap of substituting its own views on what it would have done, rather than considering how a reasonable employer would have acted.

In this case, the tribunal was wrong to find that the employer's performance requirements were a disciplinary sanction when they were in fact put in place to secure compliance with proper procedures. When an employer has failed to follow proper procedures, it is normal for an employer to require monitoring. This is not regarded as a sanction but as a legitimate management discussion. Monitoring to ensure that proper procedures are followed is particularly important in fields of employment involving protection of the public. As a result, it was wrong for the tribunal to conclude that the employer's conduct was calculated to destroy or seriously damage the employer and employee's relationship of trust and confidence.

Case transcript of National Society for the Prevention of Cruelty to Children v Dear (Microsoft Word format, 94K) (on the EAT website)

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Smith v Oxfordshire Learning Disability NHS Trust EAT/0176/09

national minimum wage | sleep-in payment | allowances

The Employment Appeal Tribunal (EAT) has held that a sleep-in payment was not an allowance for the purpose of the national minimum wage. Therefore it should not be excluded from the calculation of the hourly rate paid by the employer.

Mr Smith was employed by Oxfordshire Learning Disability NHS Trust in a residential home. He worked 15 hours per week, for which he was paid a salary equivalent to an hourly rate that exceeded the national minimum wage. Under his contract of employment, he was at times required to sleep in at the home. He was paid a sleep-in payment equivalent to £2.70 per hour. Mr Smith resigned and brought a claim in relation to, among other matters, the national minimum wage. The employment tribunal dismissed his claim. He appealed.

The question for the EAT was how the salary and the sleep-in payment should be taken into account for the purpose of calculating whether or not the Trust had paid the national minimum wage. Under reg.14 of the National Minimum Wage Regulations 1999 (SI 1999/584), the hourly rate paid during a pay reference period is determined by dividing the total payments made (in accordance with reg.30) in the pay reference period minus any reductions under regs.31-37, by the number of hours worked in the pay reference period. In most cases the pay reference period is one month. It was agreed by both parties that the sleep-in hours should be taken into account in calculating the number of hours worked during a month. However, the Trust maintained that the sleep-in payment should be included in the calculation of the sums paid, whereas Mr Smith argued that it should be excluded. Under the Trust’s method, the average hourly rate did not go below the national minimum wage, whereas if the payment was excluded the average hourly rate fell below the minimum rate.

Under reg.31(1)(d) of the Regulations, reductions to be subtracted from the payments made include "an allowance other than an allowance attributable to the performance of the worker in carrying out his work". "Allowance" is defined in reg.2(1) as "any payment paid by the employer to a worker attributable to a particular aspect of his working arrangements or to his working or personal circumstances that is not consolidated into his standard pay". Mr Smith argued that the sleep-in payment was an allowance under reg.31(1)(d). The EAT had to consider whether or not the payment was an allowance under the Regulations and, if it was, whether or not it was "attributable to the performance of the worker in carrying out his work". The EAT held that the key phrase (in reg.2(1))  in deciding whether or not a payment was an allowance was "a particular aspect", which indicates an intended distinction between an allowance for doing the basic job, and an allowance attributable to some other element over and above, or distinct from, the basic job. The EAT referred to Aviation & Airport Services Ltd v Bellfield [2001] All ER (D) 164 (Mar) EAT, in which the EAT approved the government guidance on the Regulations at the time, which described allowances as "special allowances over and above standard pay ... [for] performing special duties over and above a worker’s normal duties". Taking this approach, the sleep-in payment was not an allowance. Instead it was the only payment for performing the sleeping-in duty and separate from other enhancements that Mr Smith received. This conclusion was also supported by Burrow Down Support Services Ltd v Rossiter EAT/0592/07. Therefore the appeal was dismissed.

However, in case it was wrong in its decision, and the payment was an allowance, the EAT also considered whether or not the payment was "attributable to the performance of the worker in carrying out his work" (in which case it would be excepted from the rule on allowances). Mr Smith maintained that this meant an allowance for good performance, whereas the Trust argued that it meant an allowance for actual tasks done. The EAT referred again to Bellfield in which the EAT held that a weekly allowance payable to employees subject to full attendance in a given week was not "attributable to the performance of the worker in carrying out his work". The EAT in this case pointed out that the wording in the regulations was not "performance of the work" but "performance of the worker", which suggested the quality of the work. Therefore if the sleep-in payment was an allowance it would not fall within the exception to the meaning of allowances, and would not need to be taken into account in calculating the wage paid.

Case transcript of Smith v Oxfordshire Learning Disability NHS Trust (Microsoft Word Format, 94.5K) (on the EAT website)

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Hamilton House Medical Ltd v Hillier EAT/0246/09

national minimum wage | basic rate of pay | night work

The Employment Appeal Tribunal (EAT) has held that the national minimum wage relates to a worker's basic rate of pay, even if he or she normally works only at night at an enhanced rate.

Mrs Hillier was a care assistant who worked for Hamilton House Medical Ltd. She had for some time done only night work, which was paid at time and one-third from Monday to Friday and time and two-thirds on Saturdays and Sundays. Her basic hourly rate of pay under her original contract of employment was £4.3829, while her payslips for the years 2000 to 2002 showed a basic hourly rate of £4.8581, together with enhanced rates for weekday nights and weekend nights. Hrs Hillier was paid £5.01 per hour when she occasionally attended daytime training. By February 2008, Mrs Hillier was in fact paid £6.67 per hour for working during weekday nights, something that the employer queried with her in a letter in which it said that she should have been paid £6.477 for night working on Monday to Friday and £8.0969 for night working on Saturday and Sunday.

An employment tribunal found that, for the relevant period of 2005 to 2008, the employer was in breach of the National Minimum Wage Regulations 1999 (SI 1999/584). Mrs Hillier's basic rate of pay (on which the enhanced rate was based) was £5.01 per hour in relation to weekday nights and £4.8581 per hour in relation to weekend nights. This was less than the minimum rate that applied at the time. The employment tribunal rejected the employer's contention that her basic rate of pay was £6.67. Mrs Hillier's night rate could not be considered the final figure for national minimum wage purposes.

The EAT agreed. If the employer was correct, a worker's pay entitlement in any pay reference period would change depending on whether she actually worked during the day for even an hour or worked entirely on nights and weekends, which would be a surprising result and would introduce inconsistency into the minimum wage calculation. The philosophy of the National Minimum Wage Regulations 1999 is that a worker's basic minimum wage before overtime enhancement or other allowances should not fall below the statutory minimum and it would be completely contrary to the purpose of the legislation if that obligation could be avoided simply because a worker chooses to work those hours when she would be in receipt of some enhancement. The relevant amount is the lowest payable during the reference period, which must be the minimum sum due under the contract of employment.

Case transcript of Hamilton House Medical Ltd v Hillier (Microsoft Word format, 52K) (on the EAT website)

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Metropolitan Police Commissioner and others v Eioyaccu EAT/0023/09

unfair dismissal | reasonable investigation | mental capacity

The Employment Appeal Tribunal (EAT) has held that an employer had not been required to investigate further the mental health of an employee whom it dismissed for gross misconduct.

Mr Eioyaccu was a police community support officer. In March 2005, Camden Council complained that he had introduced himself to a member of council staff as a police officer and said that aliens were beaming messages into the heads of residents via satellite dishes. He had asked for the dishes to be removed. The officer investigating this incident formed a view that Mr Eioyaccu was affected by “mental health issues”. However, the conclusion of his referral to the occupational health service was that he had “a few eccentricities” but was not suffering from mental or physical ill health. He did not attend a psychiatrist’s appointment for which he was referred.

There were further incidents involving Mr Eioyaccu that resulted in no formal action. On 31 May 2007 the manageress of a clothing store made a complaint that he had entered the store and acted in a lewd and inappropriate manner towards her and other female staff. He was suspended on full pay. There followed a complaint from an assistant of another shop that he had frequently visited the shop and behaved in a way described as “sleazy” towards female staff. Mr Eioyaccu declined an occupational health referral, saying that he was in good health. In the disciplinary investigation, Mr Eioyaccu denied the allegations and also voiced his suspicions that there was a secret society, linked to stonemasons, in the area. He wrote a letter complaining that this and an earlier investigation had fallen short of the standards of fictional characters of Edgar Allan Poe. The HR practice manager who carried out the investigation judged that he was affected by some form of personality disorder but as he had dismissed as unnecessary two earlier attempts to refer him to occupational health, there was no alternative but to take disciplinary action. He was dismissed for gross misconduct on 19 November 2007. One of the complainants was called Ms Pinero and in his appeal letter Mr Eioyaccu argued that the whole episode was designed by someone from the police station as a play in the style of Arthur Wing Pinero. In the course of an investigation into a grievance he raised in the meantime, he rejected remarks from the investigating inspector that he was paranoid and should consult a doctor. Mr Eioyaccu did not attend the appeal, which was dismissed.

Mr Eioyaccu’s unfair dismissal claim was upheld, although claims of discrimination and victimisation were not. The employment tribunal held that, among other matters, the Metropolitan Police had failed to take reasonable steps to establish Mr Eioyaccu’s state of mind at the time of the alleged misconduct and that it had not considered whether or not to suspend him medically. The Metropolitan Police appealed, arguing that the tribunal had substituted its own standards of what it would have done during the investigation for the standards of a reasonable employer. The crucial issue was whether or not the misconduct was committed, rather than Mr Eioyaccu’s mental capacity. Previous attempts to refer Mr Eioyaccu to occupational health or for psychiatric evaluation had either failed or led to no further action.

The EAT agreed. It held that the tribunal had “stepped into the shoes of the employer”. The employer was entitled to conclude that serious misconduct, namely sexual harassment, had taken place by an employee in a responsible and high profile position, and it did not need to explore further Mr Eioyaccu’s mental health. The appeal was allowed. Even if the EAT was wrong about the tribunal decision on reasonable investigation, Mr Eioyaccu had contributed to his dismissal. Therefore, if the tribunal had been correct to find unfair dismissal, the compensatory award should have been reduced by 75%.

Case transcript of Metropolitan Police Commissioner and others v Eioyaccu (Microsoft Word format, 69K) (on the EAT website)

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Meerts v Proost NV Case C-116/08 ECJ

parental leave | dismissal | pay in lieu of notice

The European Court of Justice (ECJ) has held that pay in lieu of notice given to a worker who is dismissed without notice during part-time parental leave should be calculated on the basis of his or her full-time salary.

Ms Meerts was employed by Proost NV. From 18 November 2002, her hours were cut in half as a result of parental leave, which was due to end on 17 May 2003. However, Ms Meerts was dismissed with immediate effect on 8 May 2003, subject to the payment of compensation for dismissal equal to 10 months’ salary calculated on the basis of the salary that she was receiving at the time, which was reduced by half because of the equivalent reduction in her working hours. She challenged the amount of that compensation for dismissal before the Belgian Labour Court, claiming that Proost NV should be ordered to pay compensation for dismissal calculated on the basis of the full-time salary that she would have been receiving if she had not reduced her working hours in connection with parental leave. On appeal, the Belgian Court of Cassation referred the issue to the ECJ.

The ECJ held that the framework agreement on parental leave, which was implemented across the EU by the Parental Leave Directive (96/34/EC), gives workers the right to full-time salary. Clause 2.6 of the agreement on parental leave states that rights acquired or in the process of being acquired by the worker on the date on which parental leave starts are to be maintained as they stand until the end of parental leave. It is intended to cover all the rights and benefits, whether in cash or in kind and whether derived directly or indirectly from the employment relationship, to which the worker is entitled from the employer at the date on which parental leave starts.

Clause 2.7 of the framework agreement on parental leave does allow member states to determine the status of the employment contract during parental leave. However, this is without prejudice to the protection of the rights in clause 2.6. National legislation that would result in the rights flowing from the employment relationship being reduced in the event of parental leave could discourage workers from taking such leave and could encourage employers to dismiss workers who are on parental leave rather than other workers. This would run directly counter to the aim of the framework agreement on parental leave, one of the objectives of which is to make it easier to reconcile working and family life.

Therefore, the framework agreement precluded the situation under Belgian law where a worker whose contract is terminated without statutory notice has his or her pay in lieu of notice determined on the basis of current salary.

Case transcript of Meerts v Proost NV (on the ECJ website)

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Henderson v Connect (South Tyneside) Ltd EAT/0209/09

unfair dismissal | some other substantial reason | third-party pressure to dismiss

The Employment Appeal Tribunal (EAT) has held that an employer fairly dismissed an employee when a client refused to have him carry out work for it.

The employer provides transport services to community and voluntary groups. Mr Henderson was employed as a minibus driver, taking disabled children to school. The service was provided under a contract with South Tyneside Metropolitan Borough Council. Under the terms of the agreement, the council had an absolute right to veto the employment of particular individuals in providing the service. While Mr Henderson had passed the initial criminal record check, the council became aware of allegations that he had been involved in the sexual abuse of his two young nieces. The matter had been investigated by the police, but Mr Henderson had not been prosecuted. The South Tyneside Safeguarding Children Board reviewed the case and came to the conclusion that Mr Henderson could no longer work with children. As there were no other roles for him, the employer decided that it had no option but to dismiss him.

An employment tribunal found that the dismissal was fair. The employer had dismissed Mr Henderson because of third-party pressure, which comes within the category of "some other substantial reason" and is a potentially fair reason for dismissal. It was reasonable for the employer to dismiss Mr Henderson as the council was allowed to veto employees working with children and the employer had no choice in this case. It had done everything that it reasonably could in the circumstances, appealing the decision and looking into Mr Henderson's situation.

The EAT agreed. In cases of third-party pressure to dismiss, the client is under no obligation to behave fairly towards the employee and, if it does act unfairly, this does not necessarily make it unfair for the employer to dismiss the employee. If the employer has done everything that it reasonably can to avoid or mitigate the injustice brought about by the client's stance – for example, by trying to get the client to change its mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair. The outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer.

Case transcript of Henderson v Connect (South Tyneside) Ltd (Microsoft Word format, 86K) (on the EAT website)

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Edozie v G4S Security Services (UK) Ltd and another EAT/0124/09

race discrimination | reverse burden of proof | discrimination of the ground of colour

The Employment Appeal Tribunal (EAT) has held that the reverse burden of proof applies to claims of unlawful race discrimination on the ground of colour.

Mr Edozie, who is black and of Nigerian ethnic origin, brought a claim of direct race discrimination against his employer, G4S Security Services (UK) Ltd, in relation to a number of posts for which he applied but was unsuccessful. The tribunal found that his claim was of discrimination on the ground of colour. Therefore s.54A of the Race Relations Act 1976 did not apply. Section 54A applies where the complaint is that the employer has discriminated unlawfully "on grounds of race or ethnic or national origins” and provides that where the claimant proves facts from which the tribunal could conclude that the employer has committed a discriminatory act, the tribunal is required to uphold the complaint unless the employer provides an adequate non-discriminatory explanation for the treatment (the reverse burden of truth). Instead the tribunal adopted the approach set out in King v The Great Britain-China Centre [1991] IRLR 513 CA, maintaining that the burden of proof was on the claimant although the tribunal could draw inferences of discrimination from the facts. The tribunal did not infer discrimination from the evidence and dismissed Mr Edozie’s claim.

Case transcript of Edozie v G4S Security Services (UK) Ltd and another (Microsoft Word format, 82.5K) (on the EAT website)

B and C v A EAT/0503/08

sex discrimination | lack of disciplinary process | not gender motivated

The Employment Appeal Tribunal (EAT) has overturned an employment tribunal finding that an employer was motivated by an employee's gender when it failed to follow its disciplinary process when it dismissed him, following an allegation of rape made against him. The EAT held that, although tribunals must be alive to the fact that stereotypical views of male and female behaviour exist, there must be evidence for a tribunal to conclude that an employer has been motivated by those views.

A female employee (X) of a local authority (B) alleged to the chief executive (C) that a male employee (A) had raped her six weeks earlier, which she claimed was the culmination of a series of incidents of sexual harassment. C knew X well and he believed her. X said that she did not wish to make a formal complaint but she agreed to let C speak informally to the police for advice. The police told C that there were reasonable grounds to arrest A on suspicion of rape. (Although he was subsequently arrested, A was notified later that no further action would be taken.) C was advised by solicitors that he could suspend A and institute B's disciplinary procedure. He was apparently also advised that, if he believed X, he could dismiss A immediately, for gross misconduct. C told A that he was summarily dismissed for reasons set out in a letter, which he handed to A and which stated that C believed that A had “in all probability, raped and sexually, physically and mentally assaulted, harassed and abused [X]”. The letter acknowledged that the normal disciplinary process had not been followed but maintained that, if it had, C would expect A to categorically deny the allegations and C would have to decide whether or not to believe X. The letter stated that C accepted what X had told him. Therefore the only available action was instant dismissal on the ground of gross misconduct.

A brought claims for unfair dismissal, wrongful dismissal and sex discrimination to the employment tribunal. His claim for wrongful dismissal succeeded but the tribunal did not have jurisdiction to hear his unfair dismissal claim due to his insufficient service. The tribunal upheld the claim of direct sex discrimination. It held that if the case had involved a female aggressor and a male victim, C would not have instantly dismissed the aggressor but would instead have suspended her and followed B’s disciplinary process. The reason A was denied the disciplinary process was because C feared that there would be further violence and C would not have had such a fear if the alleged aggressor had been female.

The EAT upheld B and C’s appeal against the tribunal finding of sex discrimination. The EAT held that there was no evidence to infer that C’s fear that A might be violent was based on his gender, or that C would have treated a female aggressor differently. That C might be influenced by a stereotype of male violence was only speculative. Although tribunals need to be alert to the existence of stereotypical views of male and female behaviour, there must be evidence in a case to conclude that the reputed discriminator has been motivated by such a stereotype, which was not the case here. The EAT acknowledged that A had been unfairly treated but stated that it must resist the temptation to remedy his inability to bring an unfair dismissal claim by allowing a claim for sex discrimination for which there was no basis.

Case transcript of B and C v A (Microsoft Word format, 98.5K) (on the EAT website)

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Manor Oak (PMG) Ltd v Kelly EATS/0070/08

unfair dismissal | misconduct | investigation | admission of guilt

The Employment Appeal Tribunal (EAT) has held that an employer did not unfairly dismiss an employee when it failed to investigate in detail the nature of his misconduct in circumstances where he had admitted his guilt.

Mr Kelly was a service technician at a garage. The employer issued him with a final written warning arising out of the incorrect wiring of an engine to a van. He was advised that the written warning would remain on his record for 12 months. Three months later, he passed a car during its MOT test when it should in fact have failed. It was found at a disciplinary meeting that the car should have failed its MOT as a result of a fault that had arisen from repairs that Mr Kelly had made to the car. He was dismissed on the ground of negligence. He appealed, accepting responsibility for the damage to the car but arguing that the dismissal was an extreme response because he had been a long-serving employee and his negligence was not deliberate. His appeal was unsuccessful.

An employment tribunal found that the dismissal was unfair. The tribunal's reasons included that the employer had not carried out as much investigation as was reasonable because it did not take time to clarify the nature of the defect.

The EAT overturned the decision. Mr Kelly made clear admissions accepting responsibility for having caused the defect in the car, not noticing the defect and having certified it as passing its MOT test when he should have failed it. These were acts of misconduct. In these circumstances, the onus was discharged from the employer of showing that it genuinely believed that the employee had committed misconduct, that it had reasonable grounds on which to hold that belief and that it had carried out a reasonable investigation before reaching its conclusion. Once the admissions were made by the employee in response to the employer's questioning of him, it plainly was not required to take its investigations any further. It was, in particular, not required to investigate the seriousness of the defect.

Case transcript of Manor Oak (PMG) Ltd v Kelly (Microsoft Word format, 103K) (on the EAT website)

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Fareham College Corporation v Walters EAT/0396/08, 0076/09

disability-related discrimination | reasonable adjustments | comparators

The Employment Appeal Tribunal (EAT) has held that, in a claim of disability-related discrimination, and where the employer had failed to make a reasonable adjustment, the employment tribunal's failure to carry out a comparative exercise according to London Borough of Lewisham v Malcolm did not invalidate its decision that there had been less favourable treatment for a reason related to the employee's disability.

Ms Walters was employed as a lecturer by Fareham College Corporation. She developed a condition known as “plantar fasciitis”, which caused pain in her feet and affected her mobility. She also had fibromyalgia. She was off sick from 20 February 2006 until her dismissal on 7 September 2006. Among other claims, she brought a claim of disability discrimination. She claimed that the college had failed to make reasonable adjustments in refusing her a phased return to work. She also claimed disability-related discrimination in relation to her dismissal. Under s.3A(1) of the Disability Discrimination Act 1995 “a person discriminates against a disabled person if, for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified”. Discrimination also occurs if there is failure to comply with the duty to make reasonable adjustments (s.3A(2)). Section 4A concerns the duty to make reasonable adjustments in relation to employment and states that “where a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect”.

The employment tribunal upheld Ms Walter's claim. In relation to reasonable adjustments, it held that the college had refused Ms Walters a phased return to work and that this refusal amounted to a “provision, criterion or practice” that placed her at a substantial disadvantage when compared to a non-disabled person. The college had failed to take the necessary steps to consider reasonable adjustments and was therefore in breach of its duties under s.4A of the Act. In relation to the claim of disability-related discrimination, the tribunal found that the less favourable treatment was the dismissal, which could not be justified, and the reason for this treatment related to her disability.

The college appealed. It argued that the tribunal had failed to consider the issue of the comparator in relation to the failure to make reasonable adjustments (ie whether or not the college’s refusal of a phased return to work placed Ms Walters at a substantial disadvantage in comparison with non-disabled persons), as set out by the EAT in Environment Agency v Rowan [2008] IRLR 20 EAT. The college argued that the duty to make adjustments is not a general duty but is limited to taking steps necessary to prevent the provision, criterion or practice from having the effect of placing the disabled person at a substantial disadvantage compared to non-disabled persons. In Rowan the EAT had held that tribunals considering reasonable adjustment claims should consider, among other matters, “the identity of non-disabled comparators (where appropriate)”. The EAT in this case held that the words “where appropriate” showed that the EAT in Rowan recognised that it is not always necessary to identify non-disabled comparators. The college’s like-for-like comparison with another employee who had been dismissed after a nine-month absence was misplaced in the context of a reasonable adjustments complaint. Ms Walters did not need to show that someone who did not have a disability, but whose circumstances were otherwise the same, would have been treated differently. The provision, criterion or practice identified by the tribunal was the college’s refusal to permit Ms Walters a phased return to work because it found this problematic and considered it to be an unacceptable adjustment. Therefore she was required to resume her duties in full. The comparator group was employees who were not disabled and were able to attend work and who were therefore not liable to dismissal on grounds of disability. As Ms Walters was unable to do her job because of her disability, she could not comply with the criterion and was liable to dismissal, placing her at a substantial disadvantage compared to other non-disabled employees. The EAT agreed with the tribunal reasoning on this point.

In relation to disability-related discrimination, the college argued that the tribunal had failed to consider the treatment of a non-disabled comparator, in accordance with the House of Lords judgment in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL (which was decided after the tribunal decision in this case). The EAT agreed with the tribunal’s observation that it was difficult in this case to separate the failure to make reasonable adjustments from the decision to dismiss. Therefore, it also agreed with Ms Walter’s argument that the tribunal finding on this issue added nothing to the case as the dismissal was itself an unlawful act of disability discrimination due to the college’s failure to make reasonable adjustments. This was why the tribunal had found it self-evident that Ms Walters was treated less favourable than others. The tribunal’s failure to carry out a comparative exercise as required by Malcolm had no impact on the circumstances it identified. The EAT found that the tribunal was correct to find that the college’s failure to make reasonable adjustments rendered it impossible for it to justify its treatment of Ms Walters. The appeal was dismissed.

Case transcript of Fareham College Corporation v Walters (Microsoft Word format, 213K) (on the EAT website)

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Cases on appeal

Prowse-Piper v Anglian Windows Ltd and others
Tariq v The Home Office
EBR Attridge Law LLP (formerly Attridge Law) and another v Coleman
West London Mental Health NHS Trust v Sarkar
Chief Constable of West Yorkshire Police and others v Homer
Gibb v Maidstone and Tunbridge Wells NHS Trust
The United States of America v Nolan
Wooster v The Mayor and Burgesses of the London Borough of Tower Hamlets
Hartlepool Borough Council v Llewellyn and other appeals
British Airways plc v Williams

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Prowse-Piper v Anglian Windows Ltd and others

sex discrimination | pregnancy | redundancy

The Employment Appeal Tribunal (EAT) held that the employment tribunal had failed to deal with the question of whether or not Anglian Windows’s failure to consider an alternative role for Ms Prowse-Piper (rather than make her redundant) was a further fact of discrimination. Anglian Windows’s appeal against the EAT decision will be heard by the Court of Appeal in March.

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Tariq v The Home Office

tribunal procedure | national security proceedings | human rights

The Court of Appeal is hearing Mr Tariq's appeal against the Employment Appeal Tribunal (EAT) decision that rule 54 of the Employment Tribunals Rules of Procedure (which relates to national security proceedings, and allows evidence to be withheld from a claimant) is incompatible with art.6 of the European Convention on Human Rights (which provides the right to a fair hearing). The appeal will be heard in March.

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EBR Attridge Law LLP (formerly Attridge Law) and another v Coleman

disability discrimination | association with a disabled person

EBR Attridge Law is seeking permission to appeal against the Employment Appeal Tribunal (EAT) decision that the Disability Discrimination Act 1995 should be construed so as to prohibit associative discrimination - that is, discrimination against a person who is not disabled on the grounds of his or her association with a disabled person. In 2005 Ms Coleman resigned and brought a claim based on her employer’s alleged discrimination against her on account of her son’s disability. The hearing is listed to take place on 25 March 2010.

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West London Mental Health NHS Trust v Sarkar

unfair dismissal | gross misconduct | fair procedure

The Court of Appeal is hearing Mr Sarkar’s appeal against the Employment Appeal Tribunal (EAT) decision that his dismissal was fair. Before dismissing Mr Sarkar, the NHS Trust had decided to begin mediation to address his misconduct. The EAT found that the employment tribunal incorrectly focused on this decision, rather than the legal test for unfair dismissal. The appeal is due to be heard at the start of February 2010.

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Chief Constable of West Yorkshire Police and others v Homer

age discrimination | indirect discrimination | degree requirement

The Court of Appeal is hearing Mr Homer’s appeal against the Employment Appeal Tribunal (EAT) decision that his employer’s requirement that employees on its highest pay grade needed to have a degree. The EAT found that this requirement imposed no particular disadvantage on employees within the age bracket of 60 to 65. The appeal is due to be heard in late February 2010.

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Gibb v Maidstone and Tunbridge Wells NHS Trust

compromise agreement | compensation package

The Court of Appeal will hear Ms Gibb’s challenge against the High Court’s decision that her compromise agreement was unenforceable because the NHS trust had acted outside its powers in agreeing to an “irrationally generous” compensation payment. The appeal is due to be heard in mid-March 2010.

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The United States of America v Nolan

collective redundancies | consultation over reasons

The Court of Appeal is hearing the employer’s appeal against the tribunal and Employment Appeal Tribunal’s decisions that, by failing to consult on the reason for the closure of a US Army base, it was in breach of the collective redundancy legislation. The appeal is due to be heard at the end of March 2010.

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Wooster v The Mayor and Burgesses of the London Borough of Tower Hamlets

redundancy | age discrimination

The Employment Appeal Tribunal (EAT) held that Mr Wooster’s employer committed direct age discrimination when it made him redundant at the age of 49 to avoid paying an early retirement pension that he would be entitled to if he left employment when he was aged 50 or over. The Court of Appeal is hearing the employer’s appeal at the end of May 2010.

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Hartlepool Borough Council v Llewellyn and other appeals

equal pay | male colleague of successful female claimant | "piggyback" claim

The Court of Appeal is hearing an appeal against the Employment Appeal Tribunal ruling that a man can bring a "piggyback" claim comparing himself with a female colleague doing like work, work rated as equivalent or work of equal value who has herself succeeded in an equal pay claim.

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British Airways plc v Williams

holiday pay | basic pay | flying allowances

The House of Lords is hearing a challenge to the Court of Appeal decision that British Airways was not in breach of statutory holiday pay requirements when it calculated pilots' paid annual leave by reference to their basic salary rather than what they would expect to earn when flying allowances were added.

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Note: Some of these case summaries are based on information provided by Claire Birkinshaw, Abbey Legal Services.