Stop press provides up-to-the-minute news on key cases that have not yet been reported elsewhere on XpertHR. Click a case title to go straight to a case or scroll down the page to view the full list.

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Decisions:
R (on the application of The Incorporated Trustees of the National Council on Ageing v Secretary of State for Business, Enterprise and Regulatory Reform
Date added: 23 September 2008 Tribunal/court: Advocate General's opinion
Topics: age discrimination legislation | default retirement age
The Advocate General has said that UK legislation permitting employers to dismiss employees aged 65 or over if the reason for dismissal is retirement can, in principle, be justified under the Framework Directive.

Industrial & Commercial Maintenance Ltd v Briffa
Date added: 17 September 2008 Tribunal/court: EAT Status: appeal allowed
Topics: working time | holiday | notice periods
The Employment Appeal Tribunal has held that a contractual term can override the requirement in the Working Time Regulations 1998 that employers give employees notice of holiday dates that is double the amount of time to be taken.

Adey-Jones v O’Dowd
Date added: 9 September 2008 Tribunal/court: EAT Status: appeal allowed
Topics: unfair dismissal | compensatory award | loss of earnings
The Employment Appeal Tribunal has considered the approach tribunals should take when calculating loss of earnings in unfair dismissal cases.

Maley v Royal Mail Group Ltd
Date added: 4 September 2008 Tribunal/court: EAT Status: appeal allowed
Topics: statutory grievance procedures | disability discrimination | dismissal
The Employment Appeal Tribunal has stressed that the statutory grievance procedures do not apply in cases where the dispute results in the employee's dismissal.

Radecki v Kirklees Metropolitan Borough Council
Date added: 18 August 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: unfair dismissal | effective date of termination
The Employment Appeal Tribunal (EAT) has held that the removal of an employee from the payroll while he was suspended and negotiating a compromise agreement did not terminate his employment.

Hart v Chief Constable of Derbyshire Constabulary
Date added: 13 August 2008 Tribunal/court: Court of Appeal Status: application refused
Topics: disability discrimination | duty to make reasonable adjustments
The Court of Appeal has refused leave to appeal against an Employment Appeal Tribunal decision that the duty to make reasonable adjustments for the disabled does not require employers to dilute the standards that have to be met before an individual can do a job.

Redcar & Cleveland Borough Council v Bainbridge and Equality and Human Rights Commission and other appeals
Date added: 5 August 2008 Tribunal/court: Court of Appeal Status: appeal allowed in part
Topics: equal pay | pay protection | justification
The Court of Appeal has held that arrangements to protect the pay of predominantly male groups after a job evaluation scheme were discriminatory and could not be justified.

Beck v London Borough of Camden and another
Date added: 23 July 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: employment status | agency worker
The Employment Appeal Tribunal, applying the Court of Appeal decision in James v London Borough of Greenwich, has held that an agency worker was not an employee of an end user.

Burrow Down Support Services Ltd v Rossiter
Date added: 17 July 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: national minimum wage | time work | time sleeping
The Employment Appeal Tribunal has upheld an employment tribunal decision that an employee who was allowed to sleep for much of his shift, but had to deal with anything untoward that might arise, was entitled to be paid the national minimum wage for the whole shift.

Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn
Date added: 17 July 2008 Tribunal/court: ECJ Status: ECJ judgment
Topics: race discrimination | recruitment | public statement
The European Court of Justice has held that an employer's public statement of a discriminatory recruitment policy is direct discrimination contrary to the Race Directive (2000/43/EC).

HM Prison Service and others v Ibimidun; Ibimidun v HM Prison Service and others
Date added: 10 July 2008 Tribunal/court: EAT Status: appeal allowed
Topics: race discrimination | victimisation | unfair dismissal
The Employment Appeal Tribunal has held that an employee who was dismissed when he brought tribunal proceedings in order to harass his employer, rather than to receive compensation, was not protected by the victimisation provisions of the Race Relations Act 1976.

Clyde Valley Housing Association Ltd v MacAulay
Date added: 21 May 2008 Tribunal/court: EAT Status: appeal allowed
Topics: modified grievance procedure | compliance with step one
The Employment Appeal Tribunal has held that a letter from an employee’s solicitors setting out the types of grievance that the employee has, without giving any specifics about the acts complained of, is not sufficient to satisfy step one of the modified grievance procedure.

Chief Constable of Lincolnshire Police v Weaver
Date added: 21 May 2008 Tribunal/court: EAT Status: appeal allowed
Topics: disability discrimination | duty to make reasonable adjustments
The Employment Appeal Tribunal has held that a tribunal erred in looking at the case from only the employee's perspective when deciding whether or not an adjustment is reasonable under the Disability Discrimination Act 1995.

Riley v First Choice Homes Oldham Ltd
Date added: 15 May 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: statutory grievance procedures | modified procedure | basis for grievance
The Employment Appeal Tribunal has upheld an employment tribunal decision that the modified statutory grievance procedure applied, and as the employee had failed to identify the basis of her claim in the step-one letter she had failed to comply with the procedure.

R (on the application of Bapio Action Ltd and another) v Secretary of State for the Home Department and another
Date added: 8 May 2008 Tribunal/court: House of Lords Status: appeal dismissed
Topics: NHS employers | international medical graduates | training posts
The House of Lords has held that it was unlawful for the Department of Health to issue guidance to NHS employers that doctors from outside the European Economic Area (EEA) should be appointed to training posts only if there were no suitable candidates from within the EEA to fill them.

Department for Work and Pensions v Sutcliffe
Date added: 5 February 2008 Tribunal/court: EAT Status: appeal allowed
Topics: ordinary maternity leave | remuneration | sick pay
The Employment Appeal Tribunal has held that an employee who was sick during her ordinary maternity leave was not entitled to be paid contractual sick pay during that period.

Epstein v Royal Borough of Windsor and Maidenhead
Date added: 29 January 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: unfair dismissal | disparate treatment
The Employment Appeal Tribunal has held that, in the circumstances of the case, the issue of disparate treatment did not arise when an employee was dismissed but another was not disciplined.

HM Revenue and Customs v Stringer and others
Date added: 25 January 2008 Tribunal/court: Advocate-General's opinion
Topics: long-term sick leave | annual leave | holiday pay
The Advocate-General has said that workers who are on long-term sick leave should continue to accrue statutory annual leave, but that they should not be able to take this paid leave during the period of the sick leave.

Laval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet
Date added: 3 January 2008 Tribunal/court: ECJ Status: ECJ judgment
Topics: European Union | industrial action | free movement of services
The European Court of Justice (ECJ) has held that industrial action by a trade union in Sweden to prevent a Latvian company from paying low wages to workers posted from Latvia could not be justified.

International Transport Workers' Federation and another v Viking Line ABP and another
Date added: 14 December 2007 Tribunal/court: ECJ Status: ECJ judgment
Topics: European Union | industrial action | free movement of services
The European Court of Justice (ECJ) has held that the right to take industrial action can override the free movement of services in some circumstances, for example when the action is necessary to counter a serious threat to jobs or working conditions.

Cooper and others v Isle of Wight College
Date added: 12 December 2007 Tribunal/court: High Court Status: claim upheld
Topics: strike action | deduction from wages | calculation
The High Court has held that an employer could deduct only 1/260^th of salary from employees' pay in respect of a one-day strike, and not 1/228^th, which discounted paid holiday.

Dombey v University of Brighton
Date added: 10 December 2007 Tribunal/court: EAT Status: appeal allowed
Topics: Teachers' Pension Scheme | implied duty to inform employee of benefit
The Employment Appeal Tribunal has held that an employment tribunal should have considered whether or not an employer had breached the implied duty of trust and confidence by not informing an employee of a pension benefit to which she was entitled.

Venniri v Autodex Ltd
Date added: 4 December 2007 Tribunal/court: EAT Status: appeal allowed
Topics: unfair dismissal | statutory procedures | tribunal's obligation to consider
The Employment Appeal Tribunal has held that, in unfair dismissal cases, employment tribunals should consider the applicability of, and compliance with, the statutory dismissal and disciplinary procedures.

Her Majesty's Commissioners for Revenue & Customs v Rinaldi-Tranter
Date added: 27 November 2007 Tribunal/court: EAT Status: appeal allowed
Topics: national minimum wage | apprentices | meaning of 'worker'
The Employment Appeal Tribunal has held that a trainee in the second year of a learning agreement was entitled to the national minimum wage.

New ISG Ltd v Vernon and others
Date added: 23 November 2007 Tribunal/court: High Court Status: application dismissed
Topics: transfer of undertakings | objection to transfer
The High Court has held that an employee's resignation two days after he had been informed that he was being transferred was a valid objection to the transfer.

Hammond v International Network Services UK Ltd
Date added: 19 November 2007 Tribunal/court: High Court Status: appeal dismissed
Topics: harassment | breach of statutory duty | vicarious liability
The High Court has held that, in order to succeed in a claim under the Protection from Harassment Act 1997, an employee must show that there was 'an element of real seriousness' to the harassment.

Decisions

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R (on the application of The Incorporated Trustees of the National Council on Ageing) v Secretary of State for Business, Enterprise and Regulatory Reform

age discrimination legislation | default retirement age

The Advocate General has said that UK legislation permitting employers to dismiss employees aged 65 or over if the reason for dismissal is retirement can, in principle, be justified under the Framework Directive.

The National Council on Ageing, which operates under the names Heyday and Age Concern, is arguing before the European Court of Justice (ECJ) that the default retirement age in the Employment Equality (Age) Regulations 2006 (SI 2006/1031) is incompatible with the Framework Directive. The default retirement age allows employers to retire individuals at 65 or over.

Giving his opinion in advance of the ECJ ruling, the Advocate General said the following:

• The Framework Directive permits member states to introduce legislation providing that a difference in treatment on grounds of age does not constitute discrimination if it is a proportionate means of meeting a legitimate aim within the meaning of the Directive. However, member states do not have to define the kinds of differences in treatment that may be justified by means of a list or other measure that is similar in form and content to the list in the Directive.
  
• The rules in the UK permitting employers to dismiss employees aged 65 or over if the reason for dismissal is retirement can, in principle, be justified under the Directive. The rules can be justified if they are objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market and it is not apparent that the means put in place to achieve that public interest aim are inappropriate and unnecessary for the purpose.

The opinion is not binding on the ECJ, which is expected to make a final ruling in late 2008 or early 2009. All tribunal claims of age discrimination relating to default retirement under the Employment Equality (Age) Regulations 2006 have been halted pending the ECJ's decision.

Case transcript of R (on the application of The Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (on the ECJ website)

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Industrial & Commercial Maintenance Ltd v Briffa EAT/0215/08 & EAT/0216/08

working time | holiday | notice periods

The Employment Appeal Tribunal (EAT) has held that a contractual term can override the requirement in the Working Time Regulations 1998 (SI 1998/1833) that employers give employees notice of holiday dates that is double the amount of time to be taken.

Mr Briffa's employer gave him one week's notice on 10 August 2007, stating that his employment would end on 17 August 2007. However, it invoked a contractual term that provided that, if an employee is not required to work a notice period, he or she should be regarded as being on holiday during that period. Mr Briffa was not therefore required to work his notice period. He later brought a claim for outstanding holiday pay.

An employment tribunal found that the requirement did not comply with reg.15 of the Working Time Regulations 1998 and that Mr Briffa was entitled to four days' holiday pay. Regulation 15 requires that an employer must give notice of holiday dates that is "double the amount of time to be taken". Mr Briffa should have been given eight days' notice of the four days' holiday that he was being required to take.

The EAT overturned the decision. The tribunal had overlooked the fact that the requirement in reg.15 can be "varied or excluded by a relevant agreement". The contractual term that an employee could be required to take holiday during his or her notice period was a relevant agreement that overrode reg.15.

The EAT went on to stress that the policy behind the Working Time Regulations 1998 is to ensure that workers take sufficient holiday with pay. The employer was entitled to require Mr Briffa to work his week's notice, but instead it gave him the week off. The purpose behind the Working Time Regulations 1998 had been satisfied in this case.

Case transcript of Industrial & Commercial Maintenance Ltd v Briffa (Microsoft Word format, 50K) (on the EAT website)

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Adey-Jones v O’Dowd EAT/0098/08

unfair dismissal | compensatory award | loss of earnings

The Employment Appeal Tribunal (EAT) has considered the approach tribunals should take when calculating loss of earnings in unfair dismissal cases.

Mrs O'Dowd was responsible for the day-to-day running of a care home. Concerns were raised about her management and she was accused of stealing from vulnerable adults in the home. There were police and social services investigations and Mrs O'Dowd was dismissed after an internal disciplinary process. After a period of unemployment, she took a temporary job but, after six weeks, she fell ill and was unable to work. She eventually decided to follow a different career path.

An employment tribunal found that the disciplinary process had been seriously mismanaged and that the dismissal was unfair. It awarded Mrs O'Dowd compensation for her loss of earnings during the period that she was too ill to work, because this was at least in part caused by the employer.

The EAT remitted the issue of compensation back to the employment tribunal. The award of compensation for loss of earnings should not be determined using an 'all or nothing' approach, but by assessing the percentage likelihood that the underlying condition might have prevented the individual from working in any event. The tribunal must also determine what proportion of the illness was a result of the employer's actions and what proportion was a result of the actions of other parties, in this case the police and social services.

Case transcript of Adey-Jones v O’Dowd (Microsoft Word format, 60K) (on the EAT website)

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Maley v Royal Mail Group Ltd EAT/0232/08

statutory grievance procedures | dismissal | disability discrimination

The Employment Appeal Tribunal (EAT) has stressed that the statutory grievance procedures do not apply in cases where the dispute results in the employee's dismissal.

In cases where the statutory grievance procedures apply, before bringing a claim the employee must commence the procedure by putting the complaint in writing and sending it to the employer (Employment Act 2002, section 32(2)). The employee must then wait 28 days before bringing the claim. However, the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) provides that the statutory grievance procedures do not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

Mr Maley was frequently off work suffering from chronic dermatitis. There was medical evidence that his condition could be alleviated by providing him with a cotton uniform. The employer did not act on this evidence and Mr Maley was dismissed in a letter dated 11 July 2007, with the reason cited as an unsatisfactory attendance record. He was given 12 weeks' notice, with his employment ending on 15 October 2007.

Mr Maley lodged a claim for unfair constructive dismissal on 25 October 2007, but later sought to amend it to include disability discrimination in the claim, stating that the employer's "failure to make reasonable adjustments resulted in my dismissal". The employer argued that Mr Maley could not bring the disability discrimination claim because he had not submitted a grievance about a failure to make reasonable adjustments, which in this case was a failure to provide a cotton uniform. The employment tribunal agreed with the employer and refused to allow the disability discrimination claim to be added, on the grounds that Mr Maley had not complied with the standard grievance procedure.

The EAT overturned the employment tribunal's decision, on the basis that the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) applied. In this case, there was no freestanding grievance that did not have the dismissal at the heart of the complaint. Mr Maley was arguing that the failure to make reasonable adjustments resulted in dismissal. There was no separate claim for failure to make reasonable adjustments. Had Mr Maley not been dismissed, there would have been no tribunal claim.

The case was therefore remitted to the employment tribunal for the the disability discrimination claim to be considered.

Case transcript of Maley v Royal Mail Group Ltd (Microsoft Word format, 62K) (on the EAT website)

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Radecki v Kirklees Metropolitan Borough Council EAT/0114/08

unfair dismissal | effective date of termination

The Employment Appeal Tribunal (EAT) has held that the removal of an employee from the payroll while he was suspended and negotiating a compromise agreement did not terminate his employment.

Mr Radecki, who was a teacher, was suspended on full pay after concerns were raised about his performance and his relationships with colleagues. A disciplinary hearing was suspended while a compromise agreement to terminate his employment was negotiated. A draft compromise agreement was put together stating that employment would 'terminate by mutual consent on 31 October 2006'. It was expressed to be 'without prejudice' and 'subject to contract'. On 31 October 2006, Mr Radecki was removed from the payroll, although the agreement had not been finalised. He informed his employer on 22 February 2007 that he was unhappy with the terms of the agreement. His employer wrote back to him in a letter dated 5 March 2007 asserting that his employment had terminated on the date he was removed from the payroll. Mr Radecki lodged a claim for unfair dismissal on 7 March 2007.

An employment tribunal had to decide whether or not his claim had been lodged within the time limit for bringing an unfair dismissal claim (ie within three months of the effective date of termination). The tribunal decided that the effective date of termination was 31 October 2006, the date on which Mr Radecki was removed from the payroll. His claim was therefore made out of time.

The EAT disagreed. It said that the draft agreement was subject to contract and there was no agreement on 31 October 2006 to terminate Mr Radecki's employment. It was true that he was not attending work, was not being paid and had not been called in to a disciplinary hearing. But these circumstances were all consistent with him being on suspension and seeking a settlement. It was by no means clear that all the elements of the employment relationship had been severed on 31 October 2006.

Therefore, the 5 March 2007 letter was the first unequivocal statement that the employment relationship had been terminated and this was his effective date of termination. As a result, the claim was made in time.

Case transcript of Radecki v Kirklees Metropolitan Borough Council (Microsoft Word format, 80K) (on the EAT website)

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Hart v Chief Constable of Derbyshire Constabulary [2008] EWCA Civ 929 CA

disability discrimination | duty to make reasonable adjustments

The Court of Appeal has refused leave to appeal against an Employment Appeal Tribunal (EAT) decision that the duty to make reasonable adjustments for the disabled does not require employers to dilute the standards that have to be met before an individual can do a job.

Ms Hart was engaged as a probationary police constable from May 2001. She suffered serious spinal injuries in two road traffic accidents in 2002. The Police Regulations 2003 allow for officers' employment to be ended at any time during the probationary period if it is considered that they are not physically or mentally suited to perform their duties. Ms Hart was not able to demonstrate an ability to carry out certain tasks where there was a real risk of confrontation, which was one of the requirements that had to be met before she could successfully complete her probationary period. For this reason, her probationary period was extended several times and her employment was then terminated in July 2006.

The EAT agreed with an employment tribunal's decision that Ms Hart's employer did not have to make adjustments to the standard required to enable her employment to be confirmed. The EAT said that the duty placed on employers is to make reasonable adjustments that might facilitate the disabled person's ability to demonstrate that he or she has met the required standards.

The Court of Appeal has now refused an application to appeal against the EAT decision. It said that training and experience in confrontational situations is an irreducible minimum in the qualification for a police officer and that Ms Hart, through no fault of her own, was unable to achieve it. In those circumstances, it was not open to the employer to make an adjustment that would have the effect of waiving the strict requirement that an individual must be fit physically and mentally to perform the duties of a police constable.

Case transcript of Hart v Chief Constable of Derbyshire Constabulary (on the BAILII website)

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Redcar & Cleveland Borough Council v Bainbridge and Equality and Human Rights Commission and other appeals [2008] IRLR 776 CA

equal pay | pay protection | justification

The Court of Appeal has held that arrangements to protect the pay of predominantly male groups after a job evaluation scheme were discriminatory and could not be justified.

Two councils carried out job evaluations that led to some posts, predominantly filled by men, being downgraded. The councils introduced pay protection for a specified period for the staff whose posts were being downgraded. Female staff brought equal pay claims in which they argued that they should be entitled to the benefit of pay protection.

In Redcar & Cleveland Borough Council v Bainbridge and others [2007] IRLR 91 EAT, the Employment Appeal Tribunal (EAT) said that the discriminatory treatment could not be justified. However, in Middlesbrough Borough Council v Surtees and others [2007] IRLR 869 EAT, the EAT said that the treatment could be justified.

Considering both EAT decisions, the Court of Appeal held that, in principle, pay protection arrangements that are discriminatory can be justified. The two-stage process is to ask:

• Are the arrangements discriminatory?
  
• If so, can the arrangements be objectively justified?

The Court of Appeal went on to say that the employer's knowledge and motives are irrelevant when considering the first question. They are relevant factors only in relation to the second question.

On the facts of these two cases, the discriminatory treatment could not be justified.

Case transcript of Redcar & Cleveland Borough Council v Bainbridge and Equality and Human Rights Commission and other appeals (on the BAILII website)

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Beck v London Borough of Camden and another EAT/0121/08

employment status | agency worker

The Employment Appeal Tribunal (EAT), applying the Court of Appeal decision in James v London Borough of Greenwich, has held that an agency worker was not an employee of an end user.

The London Borough of Camden uses agency workers to provide a home care service to residents who need special assistance. Mrs Beck began working for the London Borough of Camden in October 1999. After a few weeks, her work was praised and she was given her own rota. She continued working for the Borough until February 2006, when she applied for a new position. A criminal record check revealed a police caution for assault and Mrs Beck was told that she would no longer be able to work for the it. She brought claims for unfair dismissal and breach of contract.

In a judgment given in May 2007, an employment tribunal found that Mrs Beck's claims could not proceed, as she was not an employee of the London Borough of Camden. Her appeal against the decision was stayed pending the outcome of the Court of Appeal decision in James v London Borough of Greenwich [2008] IRLR 302 CA, which was given in February 2008.

The EAT found that the tribunal was entitled to find that there was a genuine agency arrangement. In James, the Court of Appeal said that employment tribunals should imply a contract of employment between an agency worker and an end user only on the grounds of necessity (for example, in order to expose sham arrangements). There should be very limited scope for successful appeals where the correct test of necessity has been applied by an employment tribunal, as it was in this case.

Case transcript of Beck v London Borough of Camden and another (Microsoft Word format, 55K) (on the EAT website)

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Burrow Down Support Services Ltd v Rossiter EAT/0592/07

national minimum wage | time work | time sleeping

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an employee who was allowed to sleep for much of his shift, but had to deal with anything untoward that might arise, was entitled to be paid the national minimum wage for the whole shift.

Mr Rossiter worked for Burrow Down Support Services Ltd between November 2001 and July 2006. He attended work from 10pm to 8am, two nights a week. His job involved ensuring the security of the premises and monitoring health and safety. Apart from a quarter of an hour for a handover and an hour to help with breakfasts he could sleep, except where his duties required him to be awake, for example if he needed to investigate noises or deal with anything untoward. He was paid £20 per night for being present, with a separate payment made for when he was awake and working. An employment tribunal upheld his claim that Burrow Down had breached its obligation to pay the national minimum wage. Burrow Down appealed.

It was accepted that Mr Rossiter fell within the category of someone doing time work, which is defined in reg.3 of the National Minimum Wage Regulations 1999. The issue was whether he should have been paid the national minimum wage for the whole of the shift, including the time that he was asleep. Under reg.15 of the Regulations time work includes time when “a worker is available at or near a place of work for the purpose of doing time work and is required to be available for such work”. Regulation 15 is subject to reg.15(1A), which states that where a worker can sleep at work and is provided with sleeping facilities, time during the hours that the worker is permited to use the facilites should “only be treated as being time work when the worker is awake for the purpose of working”.

The EAT referred to British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002] IRLR 480 CA and Scottbridge Construction Ltd v Wright [2003] IRLR 21 CS. In Scottbridge the Court of Session rejected an argument by the employer that a period when the employee was asleep should not be treated as time work. Burrow Down argued that these cases were decided under a pre-amended version of reg.15 and therefore no longer applied. It was argued that previously the sleeping at work provision that is now in reg.15(1A) was stated to be an exception, whereas this was no longer the case. However, the EAT disagreed. By reg.15(1) beginning “subject to paragraph 1A” it was clear that reg.15(1A) qualifies the effect of reg.15(1). It does not qualify the definition of time work in reg.3 and has no impact on periods of actual work. Scottbridge and British Nursing still applied. Mr Rossiter was at work for the whole of his shift, and, like the claimant in Scottbridge, he had to deal with anything that arose during his shift, even if he was able to sleep. This was not a case where he was deemed to be at work while only available to work. Therefore, neither reg.15(1), nor reg.15(1A) was engaged. Scottbridge should be followed and Mr Rossiter should be paid the national minimum wage for the whole of his shift.

Case transcript of Burrow Down Support Services Ltd (Microsoft Word format, 61.5K) (on the EAT website)

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Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 ECJ

race discrimination | recruitment | public statement

The European Court of Justice (ECJ) has held that an employer's public statement of a discriminatory recruitment policy is direct discrimination contrary to the Race Directive (2000/43/EC).

Belgian newspapers published interviews with a director of a door-fitting firm that was advertising vacancies. The director was reported to have said that his firm would not recruit persons of Moroccan origin because customers did not trust them, although he later denied that he had made the statements.

The Belgian anti-discrimination body Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (CGKR) brought proceedings seeking a declaration that the employer had contravened Belgian legislation that implemented the Race Directive. The CGKR also asked the court to make an order that the employer end its discriminatory recruitment policy.

The court held that the public statements in question did not constitute acts of discrimination. They were merely evidence of potential discrimination, in that they indicated that persons of a certain racial or ethnic origin would not be recruited by the employer if they decided to apply. The CGKR had neither claimed nor demonstrated that the employer had ever actually turned down a job application on grounds of the applicant's racial or ethnic origin. On appeal, a number of questions were referred to the ECJ, including whether or not a public statement of a discriminatory recruitment policy constitutes direct discrimination contrary to the Race Directive.

The ECJ found that the Directive's objective of fostering conditions for a socially inclusive labour market would be hard to achieve if its scope were limited to those cases in which an unsuccessful candidate for a post, considering that he or she was the victim of direct discrimination, brought legal proceedings against the employer. The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, a practice that is clearly likely strongly to dissuade certain candidates from applying and hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of the Race Directive. The existence of such direct discrimination does not depend on the identification of an individual who claims to have been the victim.

The ECJ went on to say that, while Article 7 of the Race Directive requires member states to make legal procedures available to individuals who consider that they have suffered discrimination, these are only minimum requirements. The Directive does not preclude member states from introducing or maintaining more favourable provisions. More favourable provisions could be the right for associations with a legitimate interest in ensuring compliance with the Directive, such as the CGKR, to bring legal or administrative proceedings to enforce the obligations resulting from the Directive in the absence of an identifiable complainant. However, it is solely for national courts to assess whether or not national legislation allows such a possibility.

Public statements by which an employer lets it be known that it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy that is directly discriminatory within the meaning of the Race Directive. It would then be for that employer to prove that there was no breach of the principle of equal treatment, for example by showing that its actual recruitment practices do not correspond to those statements.

Case transcript of Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (on the ECJ website)

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HM Prison Service and others v Ibimidun; Ibimidun v HM Prison Service and others EAT/0408/07 & EAT/0517/07

race discrimination | victimisation | unfair dismissal

The Employment Appeal Tribunal (EAT) has held that an employee who was dismissed when he brought tribunal proceedings in order to harass his employer, rather than to receive compensation, was not protected by the victimisation provisions of the Race Relations Act 1976.

Mr Ibimidun, a black man of Nigerian origin, worked for the Prison Service. During his employment, he brought various claims, some of which succeeded, but some of which were dismissed as having no reasonable prospect of success. Costs orders totalling £6,750 were made against him in relation to his claims. When Mr Ibimidun was dismissed, an employment tribunal upheld his claim that he had been victimised contrary to the Race Relations Act 1976, section 2 and unfairly dismissed.

The EAT overturned the tribunal's decision. In order to succeed in his victimisation claim, Mr Ibimidun had to show that he had been less favourably treated by reason of the fact that he had done the protected act of bringing tribunal proceedings. In this case, the reason for the less favourable treatment was not simply that Mr Ibimidun had brought a tribunal claim, but that he had brought it with the sole purpose of harassing the Prison Service and some of its employees. The Race Relations Act 1976, section 2 is designed to protect bona fide claims, not claims brought with a view to harassing the respondents.

The EAT also disagreed with the tribunal's unfair dismissal finding. The employer had a genuine belief that it had a potentially fair reason for dismissal, namely Mr Ibimidun's conduct in bringing tribunal proceedings with the sole purpose of harassing the employer and its employees. In addition, the employer, after investigating the issue, had reasonable grounds for its belief.

Case transcript of HM Prison Service and others v Ibimidun; Ibimidun v HM Prison Service and others (Microsoft Word format, 101K) (on the EAT website)

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Clyde Valley Housing Association Ltd v MacAulay [2008] IRLR 616 EAT

modified grievance procedure | compliance with step one

The Employment Appeal Tribunal (EAT) has held that a letter from an employee’s solicitors setting out the types of grievance that the employee has, without giving any specifics about the acts complained of, is not sufficient to satisfy step one of the modified grievance procedure.

The modified grievance procedure applies where the employment has already ended and the parties have agreed in writing that it should apply. In addition, the employer must have been unaware of the grievance before the employment ceased, or aware of the grievance but in circumstances where the standard grievance procedure was not commenced or completed before the employment ended. Step one of the two-step procedure provides that the employee must set out the grievance and the basis for it in writing and send the statement or a copy of it to the employer.

Ms MacAulay resigned and claimed constructive dismissal and disability discrimination. The parties agreed that the modified grievance procedure would be followed. Her statement of grievance was contained in a letter from her solicitors that was sent to the employer’s solicitors. The letter stated that Ms MacAulay had been treated in an ‘oppressive, unfair and degrading manner’ by her employer. The letter included claims that she had been ‘harassed and intimidated’; that she had been subjected to a ‘wholly unjustified and oppressive disciplinary investigation’; and that the employer had taken ‘no account or made any adjustment because of [her] disability’.

The employer’s solicitors sought clarification as to what acts the grievances were based on, but received no reply. They wrote to the employee’s solicitors stating that they could not investigate her grievances without further information. An employment tribunal subsequently allowed Ms MacAulay’s claims to proceed.

The EAT overturned the decision. It said that the letter did not meet the basic requirement of the modified grievance procedure that the employee send something in writing to the employer setting out both the grievance and the basis for it. The statement must contain the answers to the essential questions that one would expect to arise in the grievance, namely ‘Who? What? Where? When? Why?’. A series of assertions as to how the acts, conduct and events complained of can be characterised, without any specifics, is not sufficient.

Case transcript of Clyde Valley Housing Association Ltd v MacAulay (Microsoft Word format, 92K) (on the EAT website)

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Chief Constable of Lincolnshire Police v Weaver EAT/0622/07

disability discrimination | duty to make reasonable adjustments

The Employment Appeal Tribunal (EAT) has held that a tribunal erred in looking at the case from only the employee's perspective when deciding whether or not an adjustment is reasonable under the Disability Discrimination Act 1995.

Mr Weaver is a police officer. In 2000, he began to develop health problems and was placed on restricted duties. He was diagnosed with a nerve condition that affected his mobility. In 2001, he applied for a vacancy at police headquarters. He was selected for the position, which involved investigating offences related to road safety speed cameras. The job is one that is suitable for an individual on restricted duties.

Mr Weaver completed 30 years’ service in 2006, making him eligible for the employer’s ‘Thirty+ Retention Scheme’. This scheme is designed to encourage experienced staff to stay in the police force. It permits employees who pass 30 years’ service to take their lump sum pension benefit immediately and pay no further pension contributions, but to remain in employment on favourable terms. Decisions on entry into the scheme are made on the business considerations of each case.

The employer, which had tight finances and a number of staff on sick leave and restricted duties, turned Mr Weaver’s application down. The decision was made on the basis that his post was one that could be done by officers on restricted duties. The employer considered it important to keep open posts that could be undertaken by officers on restricted duties.

An employment tribunal upheld Mr Weaver's claim in relation to the employer’s failure to make the reasonable adjustment of allowing him to join the scheme.

The EAT disagreed. The tribunal had failed to take into account the wider implications of making the adjustment. In particular, it failed to have regard to the operational considerations that dictated the employer’s decision not to allow Mr Weaver into the scheme. For example, questions of finance are material to whether or not an adjustment is reasonable when there are a number of disabled people who are seeking, or may in future be seeking, to take advantage of a particular benefit.

The EAT said that, in this case, the adjustment was not reasonable because encouraging Mr Weaver to remain in employment when he would otherwise have retired would tie up a job that was suitable for officers on restricted duties.

Case transcript of Chief Constable of Lincolnshire Police v Weaver (Microsoft Word format, 91K) (on the EAT website)

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Riley v First Choice Homes Oldham Ltd EAT/0051/08

statutory grievance procedures | modified procedure | basis for grievance

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that the modified statutory grievance procedure applied, and as the employee had failed to identify the basis of her claim in the step-one letter she had failed to comply with the procedure.

Mrs Riley left her employment in August 2006. In January 2007 she wrote to First Choice stating that her letter, which concerned equal pay, was a step-one grievance letter. She requested that First Choice confirm whether use of the modified statutory grievance procedure was appropriate. First Choice wrote back agreeing to the use of the modified procedure and requesting more information about her equal pay comparators, stating that the process would be more meaningful if the information was supplied. However, the information was not forthcoming. Mrs Riley submitted her equal pay claim to the employment tribunal. The comparators were different from those set out in the step-one letter. It appears that Mrs Riley later changed her mind about the modified procedure being the appropriate procedure.

To bring her claim Mrs Riley first had to comply with the statutory grievance procedures. For the modified procedure to apply the parties must agree to its use in writing. Mrs Riley argued that First Choice's agreement was conditional on the receipt of further information and that a conditional agreement was not an actual agreement, so the modified procedure did not apply. The employment tribunal and EAT disagreed. The employer's letter included an unconditional acceptance that the modified procedure would apply.

The issue then was whether Mrs Riley had met its requirements. Under the modified procedure the employee must identify in the step-one letter not only the grievance but also the basis for it. Under the standard procedure the employee must inform the employer of the basis of the grievance before the meeting, but this does not need to be done in the step-one letter. In this case, although the basis of some claim had been identified in the step-one letter, it was not the same or a substantially similar claim as that lodged with the tribunal. Sufficient information to enable the employer to address the grievance had not been provided. Therefore Mrs Riley had failed to comply with the modified procedure and the tribunal had no jurisdiction to hear her equal pay claim.

Case transcript of Riley v First Choice Homes Oldham Ltd (Microsoft Word format, 74K) (on the EAT website)

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R (on the application of Bapio Action Ltd and another) v Secretary of State for the Home Department and another [2008] UKHL 27 HL

NHS employers | international medical graduates | training posts

The House of Lords has held that it was unlawful for the Department of Health to issue guidance to NHS employers that doctors from outside the European Economic Area (EEA) should be appointed to training posts only if there were no suitable candidates from within the EEA to fill them.

Historically, there have not been enough junior doctors from within the EEA to fill all of the training posts in the UK, so it had been necessary to use international medical graduates from elsewhere, in particular India. From 2003, the easiest way for international medical graduates to gain entry into the UK was through the highly skilled migrant programme, which gave limited leave to remain in the UK for up to five years to non-EEA nationals who were able to show that they could obtain employment and support themselves, after which they were eligible to apply for indefinite leave to remain.

When steps were taken in 2005 to increase substantially the number of students graduating in medicine in the UK, the Department of Health became concerned that international medical graduates would deny employment to domestic medical graduates. It therefore issued guidance on 13 April 2006 advising NHS employers that only those international medical graduates whose limited leave extends beyond the period of the post on offer should be considered in the same way as EEA nationals. Those whose limited leave will expire before the end of the post on offer should be offered the post only if there are no suitable candidates in the resident labour market.

The British Association of Physicians of Indian Origin (Bapio) challenged the guidance, on the grounds that it introduced a new requirement that international medical graduates entering under the highly skilled migrant programme had to pass that went beyond the requirements set out in UK immigration rules. The Court of Appeal, overturning a High Court ruling, held that the issuing of the guidance had been unlawful.

The House of Lords agreed with the Court of Appeal. The Department of Health has powers under the National Health Service Act 1977 to issue guidance to employers within the NHS on the employment on staff, which, although not binding, is ordinarily followed. However, the ‘resident labour market’ test introduced by the guidance had the effect of introducing a new term into the highly skilled migrant programme that had not been formally authorised under UK immigration rules. Access to the highly skilled migrant programme would be impeded because the guidance introduced a new rule affecting the ability of international medical graduates to obtain employment and support themselves.

Case transcript of R (on the application of Bapio Action Ltd and another) v Secretary of State for the Home Department and another (on the UK Parliament website)

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Department for Work and Pensions v Sutcliffe EAT/0319/07

ordinary maternity leave | remuneration | sick pay

The Employment Appeal Tribunal (EAT) has held that an employee who was sick during her ordinary maternity leave was not entitled to be paid contractual sick pay during that period.

The Employment Rights Act 1996, section 71 entitles employees on ordinary maternity leave to the benefit of all the terms and conditions of employment that would have applied but for their absence, save for 'remuneration'. The Maternity and Parental Leave etc Regulations 1999, regulation 9 provides that only sums payable to an employee by way of wages or salary are to be treated as remuneration.

Mrs Sutcliffe joined the Department for Work and Pensions in April 2006. She went off sick and was paid sick pay for June and July 2006. She then commenced maternity leave from 1 August 2006, but was not paid contractual sick pay. An employment tribunal upheld her claim that the failure to pay her sick pay while on maternity leave was an unlawful deduction of wages.

On appeal, the EAT held that the entitlement to remuneration is excluded during maternity leave. 'Remuneration' includes sick pay and therefore Mrs Sutcliffe had no entitlement to it. The maternity leave policy of the Department for Work and Pensions was incorporated into her contract and it reflected the statutory position with regard to remuneration.

Case transcript of Department for Work and Pensions v Sutcliffe (Microsoft Word format, 78K) (on the EAT website)

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Epstein v Royal Borough of Windsor and Maidenhead EAT/0250/07

unfair dismissal | disparate treatment

The Employment Appeal Tribunal (EAT) has held that, in the circumstances of the case, the issue of disparate treatment did not arise when an employee was dismissed but another was not disciplined.

Mr Epstein, a lifeguard at a swimming pool, was dismissed for a gross error of judgment in failing to realise that a user of the pool was in difficulty. The employment tribunal held that the dismissal was fair. Mr Epstein's appeal was on the issue of disparate treatment. Another lifeguard, Mr Reid, had also been on duty, and was not disciplined. It was argued there had been no proper consideration of the disparity of treatment. Therefore the employer's actions and the tribunal's decision were wrong.

The EAT referred to Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 EAT. In that case the EAT said that there were limited circumstances where the treatment of another employee in parallel circumstances may be relevant, such as where the evidence might support an argument that a dismissal was not reasonable. In Harrow London Borough v Cunningham [1996] IRLR 256 EAT the EAT highlighted the need for the employment tribunal to consider whether the employer's differential treatment of employees was irrational. The EAT in this case pointed to the importance of satisfying the statutory test under the Employment Rights Act 1996, section 98, namely, whether the dismissal was fair in the circumstances of the individual employee's case.

The EAT held that the employment tribunal had been entitled to reach the decision it did. The tribunal had found that disparity was not an issue because it was satisfied that the employer had carried out an adequate investigation and reached a reasonable conclusion that Mr Reid had not been in a position to see the swimmer in difficulty. In any event, the tribunal had concluded that any failings by Mr Reid did not excuse Mr Epstein's actions.

Case transcript of Epstein v Royal Borough of Windsor and Maidenhead (Microsoft Word format, 80K) on the EAT website

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HM Revenue and Customs v Stringer and others

long-term sick leave | annual leave | holiday pay

The Advocate-General has said that workers who are on long-term sick leave should continue to accrue statutory annual leave, but that they should not be able to take this paid leave during the period of the sick leave.

The case of Commissioners of Inland Revenue v Ainsworth and others [2005] IRLR 465 CA (as it was known before the English courts) concerned two situations. Mrs Khan was on indefinite sick leave and asked for 20 days' paid holiday during her sick leave. She claimed that she was entitled to take annual leave and to be paid for it under the Working Time Regulations 1998. Mr Ainsworth, Mrs Kilic and Mr Thwaites were dismissed while they were on long-term sick leave. They were absent from work throughout the leave year in which they were dismissed. They claimed that the Working Time Regulations 1998 entitled them to an allowance in lieu of the holiday that they had accrued but not taken.

The Court of Appeal held that Mrs Khan could not take statutory annual leave during a period in which she was on sick leave and consequently not obliged to work. In relation to Mr Ainsworth, Mrs Kilic and Mr Thwaites, the Court of Appeal found that they were not entitled to compensation on termination of employment.

On appeal, the House of Lords decided that the case raised issues of interpretation of the Working Time Directive and referred these to the European Court of Justice (ECJ). It asked whether or not a worker on indefinite sick leave is entitled to designate a future period as paid annual leave, and if such a worker is entitled to take paid annual leave during a period that would otherwise be sick leave. In addition, it questioned whether or not the statutory minimum period of paid annual leave can be replaced with an allowance in lieu on termination of employment, in circumstances in which a worker has been absent on sick leave for all or part of the leave year in which the employment relationship is terminated.

The Advocate-General has now given her opinion in advance of the ECJ decision, which is expected later in 2008.

In relation to the first question, the Advocate-General's opinion was that the existence of the right to paid annual leave should not depend on a worker's fitness for work and therefore a worker rendered incapable of work through illness retains a right to annual leave under the Working Time Directive. It follows that the worker is entitled to designate a future period of paid annual leave. However, he or she may not take this leave during a period in which he or she is on sick leave.

In relation to a payment on termination, the Advocate-General said that a worker is entitled to a compensatory payment as a replacement for leave that has been acquired but not taken due to illness. This is also the case where the worker is on sick leave for all or part of the leave year in question. In assessing the amount of this entitlement, it is necessary to ensure that the amount of the allowance in lieu that the worker receives is equivalent to that of his or her normal pay.

A second Advocate-General opinion on long-term sick leave, in the German case Schultz-Hoff v Deutsche Rentenversicherung Bund, has not been translated into English. However, it has been reported that the opinion was given that a worker on long-term sick leave must be able to take the annual leave when he or she returns to work, even if that only occurs in the following leave year.

Case transcript of HM Revenue and Customs v Stringer and others (on the ECJ website)

Case transcript of Schultz-Hoff v Deutsche Rentenversicherung Bund (on the ECJ website)

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Laval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet and others [2008] IRLR 160 ECJ

European Union | industrial action | free movement of services

The European Court of Justice (ECJ) has held that industrial action by a trade union in Sweden to prevent a Latvian company from paying low wages to workers posted from Latvia could not be justified.

Latvian construction company Laval Un Partneri Ltd was hired to build a school in Sweden. The Swedish Building Workers' Union put pressure on the company to sign the Swedish collective agreement on wages and conditions for the construction sector, but it refused and kept its workers under Latvian conditions, paying them lower wages. The union put Laval under a blockade and it went into liquidation after the construction work had been halted for some time. The Swedish Labour Court asked the ECJ whether or not the EU principle of free movement of services precludes such collective action.

The ECJ decided that the principle of free movement of services precluded the trade union from attempting by means of collective action to force a provider of services established in another member state to enter into negotiations with it on the rates of pay for posted workers.

In principle, industrial action can be justified in cases where the public interest of protecting workers prevails. The blockading of sites by a trade union aimed at ensuring that posted workers have their terms and conditions of employment fixed at a certain level falls within the objective of protecting workers.

However, the union's action in this case could not be justified. The demands made exceeded the extent of the protections provided to workers under the Posted Workers Directive and the minimum legal requirements under Swedish law. In other words, a union can take industrial action only to achieve minimum terms and conditions that are prescribed by law.

Case transcript of Laval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet (on the ECJ website)

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International Transport Workers' Federation and other v Viking Line ABP and another [2008] IRLR 143 ECJ

European Union | industrial action | free movement of services

The European Court of Justice (ECJ) has held that the right to take industrial action can override the free movement of services in some circumstances, for example when the action is necessary to counter a serious threat to jobs or working conditions.

Viking Line APB attempted to have a Finnish ferry reflagged to Estonia, so that it could employ a cheaper Estonian crew. The International Transport Workers' Federation (ITWF) and the Finnish Seamen's Union (FSU), faced with the possible threat to Finnish seamen's jobs, proposed industrial action to try to prevent the reflagging. The Court of Appeal in the UK held that the High Court had been wrong to grant injunctions preventing the trade unions from taking industrial action (Viking Line ABP and another v International Transport Workers' Federation and another [2006] IRLR 58 CA).

A reference was made to the ECJ asking whether or not workers' rights, such as the right to take industrial action, trump European Union rules on the free movement of services and non-discrimination on grounds of nationality.

The ECJ ruled that a restriction in the free movement of services may, in principle, be justified by an overriding reason of public interest, such as the protection of workers, provided that it is established that the restriction is suitable for ensuring the legitimate objective pursued and does not go beyond what is necessary to achieve that objective.

This is because the European Union has a social purpose as well as an economic one. The rights on free movement must be balanced against the objectives pursued by social policy, which include improved living and working conditions, proper social protection and dialogue between management and the workforce.

The case now returns to the Court of Appeal, which will decide the matter by applying this ruling to UK legislation.

Case transcript of International Transport Workers' Federation and another v Viking Line ABP and another (on the ECJ website)

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Cooper and others v Isle of Wight College [2008] IRLR 124 HC

strike action | deduction from wages | calculation

The High Court has held that an employer could deduct only 1/260^th of salary from employees' pay in respect of a one-day strike, and not 1/228^th, which discounted paid holiday.

The employees took part in a one-day strike for which the employer deducted a day's pay calculated at 1/228^th of the annual salary. The employer's reason for using the formula of 1/228 was that the deduction should be based on its loss arising from the employees' withdrawal of their labour. This would necessarily be greater than the amount that would actually have been paid to the employees. The formula of 1/228 discounted paid holiday (as well as weekend days) because the value of employees' services was provided only on working days even though wages for their services were paid during holidays.

The employees argued in the High Court that the deduction should have been based on 1/260^th of annual salary (which took account of weekends only) and that the maximum that should have been deducted was what would otherwise have been paid to them.

Referring to Miles v Wakefield Metropolitan District Council [1987] IRLR 193 HL, the High Court held that the correct test was to determine whether the employee could sue for withheld wages rather than looking at what the overall loss to the employer, as a result of the strike action, was. The High Court held that the employer was not entitled to deduct 1/228^th of the salary. The correct amount was 1/260^th.

Case transcript of Cooper and others v Isle of Wight College on the BAILII website

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Dombey v University of Brighton EAT/0172/07

Teachers' Pension Scheme | implied duty to inform employee of benefit

The Employment Appeal Tribunal (EAT) has held that an employment tribunal should have considered whether or not an employer had breached the implied duty of trust and confidence by not informing an employee of a pension benefit to which she was entitled.

Professor Dombey worked part time for a number of years in the 1970s at the University of Brighton, but was not a member of the Teachers' Pension Scheme. She later joined it and remained a member until her retirement in 2004.

The Teachers' Pension Scheme allows employees who have not been members of the scheme to buy into it for any lost years during which they were not members. This process is called 'PAY' (past added years). In Professor Dombey's case, she would have been able to gain six years' additional pensionable service if she had paid £12,000. Under the PAY process, her employer would have contributed a further £24,000.

Professor Dombey made an equal pay claim on the grounds that she was not a member of the Teachers' Pension Scheme and was not allowed into it during the 1970s. An employment tribunal found that her claim was out of time.

Professor Dombey made a second claim based on the House of Lords ruling in Scally and others v Southern Health and Social Services Board and others [1991] IRLR 522 HL. In that case, the House of Lords found that there can be circumstances where an employer is under an implied obligation to notify its employees of any contractual rights that they have that are dependent on their taking some sort of action. The employment tribunal did not consider this claim, which was set out in an incomplete form by Professor Dombey, who represented herself at the tribunal.

The EAT held that this contractual claim should be remitted to be considered by the tribunal. The result of the decision in Scally is that, where a valuable benefit exists in the employment relationship, an employer is under a duty to make it known to the employee. It is under a particular duty where the benefit is limited in time. Professor Dombey's claim is that the PAY process existed, it provided a valuable benefit if she chose to take advantage of it, and she was not notified about it.

Case transcript of Dombey v University of Brighton (Microsoft Word format, 46K) (on the EAT website)

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Venniri v Autodex Ltd EAT/0436/07

unfair dismissal | statutory procedures | tribunal's obligation to consider

The Employment Appeal Tribunal (EAT) has held that, in unfair dismissal cases, employment tribunals should consider the applicability of, and compliance with, the statutory dismissal and disciplinary procedures.

Mr Venniri, a paint sprayer, was dismissed by Autodex Ltd on grounds of misconduct. A disciplinary hearing was held at which dismissal was confirmed, but he received nothing in writing prior to the hearing. The employment tribunal held that the dismissal was fair. On appeal, Mr Venniri argued that the tribunal's reasons for its decision were inadequate, and, in particular, that there was no finding on whether the statutory dismissal and disciplinary procedures had been completed. Under the Employment Rights Act 1996, section 98A(1), dismissal is automatically unfair if one of the statutory dismissal and disciplinary procedures applies but the employer has not complied with it. Step one of the standard procedure requires the employer to set out in writing the alleged conduct, characteristics or circumstances leading it to contemplate dismissal or disciplinary action, to send a statement or copy to the employee, and to invite him or her to a meeting to discuss the matter.

When invited by Order of the EAT to say how it had dealt with this issue the tribunal replied that, although he was not given a letter specifically setting out the complaint against him, Mr Venniri was fully aware that there was to be a disciplinary hearing and what the allegations were. Therefore the dismissal was not automatically unfair and it was reasonable. Mr Venniri argued that, among other things, the tribunal should have considered the law in relation to the standard disciplinary and dismissal procedure. He also argued that step one was not satisfied. Autodex argued that Mr Venniri could not bring the question of whether the dismissal was automatically unfair to the appeal as this argument had not been brought previously.

The EAT held that in every unfair dismissal case the tribunal should consider whether the statutory procedures applied, whether there had been non-completion of the procedures, and whether this was due to the employer's failure. A claimant did not need to raise this explicitly - the tribunal should have the matter in mind where it had not already been conceded. The tribunal should regard section 98A(1) as an issue and deal with it in its reasons. In this case Mr Venniri had not conceded on this point, he had included the relevant procedures in his tribunal bundle with a star against step one and had complained in his witness statement that he had had nothing in writing before the hearing. He was not raising a fresh point of law and could raise the matter on appeal. The dismissal was automatically unfair and the appeal was allowed.

Case transcript of Venniri v Autodex Ltd (Microsoft Word format, 71.5K) on the EAT website

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Her Majesty's Commissioners for Revenue & Customs v Rinaldi-Tranter EAT/0486/06

national minimum wage | apprentices | meaning of 'worker'

The Employment Appeal Tribunal (EAT) has held that a trainee in the second year of a learning agreement was entitled to the national minimum wage (NMW).

Mrs Rinaldi-Tranter operated a hairdressing business. She entered into a learning agreement with Neath Port Talbot County Borough Council and Education and Learning Wales to provide a training placement for Miss Fulcher. Mrs Rinaldi-Tranter, described in the agreement as 'the employer', was required to 'employ the learner…to the completion of an agreed individual learning plan…to provide…the experience, facilities and training necessary to achieve the objectives…specified in the individual learning plan…'. Miss Fulcher, described as 'the learner' was committed to 'be employed (where appropriate) and work for the employer to the best of her ability…'. The words 'non-employed' were inserted above 'where appropriate'. This signified that under the apprenticeship programme learners were considered to be insufficiently skilled to be useful until they reached level three of the NVQ and became employed. The agreement took effect from 21 January 2002 until 4 April 2004 when Miss Fulcher qualified at level two and became an employee. During this period she worked 35 hours and was paid £50, per week. She was given simple tasks, told to 'watch and learn' and shown various techniques. An enforcement notice was issued by Her Majesty's Revenue & Customs (HMRC) for non-payment of the NMW.

The National Minimum Wage Act 1998 requires employers to pay the NMW to anyone 'who has entered into or works under…a contract of employment, or any other contract…to do or perform personally any work or services…' (section 54(3)). A contract of employment includes a contract of apprenticeship. Under the National Minimum Wage Regulations 1999, workers in the first 12 months of a contract of apprenticeship do not qualify for the NMW. It was agreed that between 21 January 2002 and 21 January 2003 Miss Fulcher did not qualify for the NMW, and from 5 April 2004 she was an employee and therefore did qualify. It was disputed whether the NMW was payable for the period between 21 January 2003 and 4 April 2004. The employment tribunal set aside, in part, the enforcement notice. It held that up to 4 April 2004 Miss Fulcher did not work under a contract of employment. The fact that she was paid £50 per week did not establish any mutuality of obligation between the parties. The purpose of the learning agreement was not that Miss Fulcher should be employed, but that she learn as an apprentice. The agreement did not impose an obligation to provide or perform work. HMRC appealed.

The EAT held that the learning agreement did impose an obligation on the employer and trainee. There did not need to be an express term for the employer to pay wages to the trainee. The fact that Miss Fulcher was given some tasks 'to keep her occupied' rather than to benefit the business did not impact on whether she was a worker under the 1998 Act. The question was whether the trainee performed work for the employer, not whether other staff might otherwise have carried out the tasks or the business made a profit out of the trainee. The EAT held that work was performed for the business and that Miss Fulcher was a worker under the 1998 Act. Therefore HMRC's appeal was allowed.

Case transcript of Her Majesty's Commissioners for Revenue & Customs v Rinaldi-Tranter (Microsoft Word format, 80.5K) on the EAT website

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New ISG Ltd v Vernon and others [2008] IRLR 115 HC

transfer of undertakings | objection to transfer

The High Court has held that an employee's resignation two days after he had been informed that he was being transferred was a valid objection to the transfer.

Mr Vernon worked as part of the sales team at ISG Ltd. He had a restrictive covenant in his contract of employment that prevented him from canvassing work from clients of ISG Ltd for a period of 12 months after termination of employment. ISG Ltd became insolvent and was bought by New ISG Ltd, a subsidiary of UK Rail Services Ltd. Mr Vernon received limited information prior to the transfer, hearing only rumours about several potential buyers. ISG Ltd did not inform and consult with employee representatives about the transfer. Mr Vernon was informed that he had been transferred to New ISG Ltd and, because he did not want to work for the new employer, he resigned two days later.

The issue for the High Court was whether or not New ISG Ltd could enforce the restrictive covenant against Mr Vernon to prevent him from contacting its customers. This turned on whether or not his resignation constituted a valid objection under the Transfer of Undertakings (Protection of Employment) Regulations 2006. Regulation 4(7) provides that a contract of employment does not transfer where the employee informs the transferor or the transferee that he or she objects to becoming employed by the transferee. If the objection was valid, Mr Vernon never worked for New ISG Ltd and it could not enforce the covenant.

The High Court held that the objection was valid. In a case such as this where the employee did not know the identity of the new employer prior to the transfer, to deny the objection would undermine the fundamental freedom of the employee to choose his employer. The legislation does not prescribe the form that the objection must take and the case law, for example the decision in Hay v George Hanson (Building Contractors) Ltd [1996] IRLR 427 EAT, shows that a liberal approach should be taken.

Case transcript of New ISG Ltd v Vernon (on the BAILII website)

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Hammond v International Network Services UK Ltd [2007] EWHC 2604 HC

harassment | breach of statutory duty | vicarious liability

The High Court has held that, in order to succeed in a claim under the Protection from Harassment Act 1997, an employee must show that there was 'an element of real seriousness' to the harassment.

Mr Hammond claimed that clinical depression that he had suffered had been caused by harassment at work. He brought a claim under the Protection from Harassment Act 1997, section 2(1). He claimed that the harassment by two of his supervisors included: excluding him from a team meal; not giving him a password to use an application on his computer; shouting at him for being late in front of other employees; unfounded allegations of lack of interest in his work and unsuitability for a particular project that led him to be transferred; a refusal to give him necessary training; and telephone calls threatening his job security. His claims for unfair dismissal and race discrimination failed.

Referring to the House of Lords decision in Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL, the High Court said that, in order to establish harassment under the Protection from Harassment Act 1997, there must be harassment that has 'an element of real seriousness'. The actions must be calculated in an objective sense to cause alarm and distress and must be capable of being objectively judged to be oppressive and unreasonable. Irritating, annoying and upsetting conduct, such as shouting and swearing by a supervisor, will not necessarily be a breach of the Act.

The High Court found that the matters complained of in this case did not happen or, if they did, they were trivial or could be traced back to reasonable operational decisions taken by the employer. The allegations of harassment were not therefore established on the facts and, even if they were, they did not have the element of seriousness required to bring them within the Act.

Case transcript of Hammond v International Network Services UK Ltd (on the BAILII website)

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Cases on appeal

Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld
Seldon v Clarkson Wright and Jakes
Commissioners for Her Majesty's Revenue and Customs v Annabels (Berkeley Square) Ltd and others
New ISG Ltd v Vernon and others
McClintock v Department of Constitutional Affairs
Levenes Solicitors v Dalley
Fairbrother v Abbey plc
Bloxham v Freshfields Bruckhaus Deringer
Heyday's legal challenge to default retirement age
Madarassy v Nomura International plc
Commerzbank AG v Keen
British Airways plc v Starmer
HM Revenue and Customs v Stringer and others (previously known as Commissioners of Inland Revenue v Ainsworth and others)

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Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld

employment status | director and majority shareholder

The President of Employment Tribunals has directed that all claims about the employment status of individuals who are a director and majority shareholder of a company should be stayed, pending the outcome of the Court of Appeal decision in Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld. The case is being heard on 3 and 4 December 2008.

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Seldon v Clarkson Wright and Jakes

age discrimination | partners | compulsory retirement

An employment tribunal held that the compulsory retirement of a partner in a law firm was a proportionate means of achieving the legitimate aims of ensuring that associates had the opportunity to become a partner after a reasonable period and maintaining the friendly culture of the firm by avoiding confrontation with underperforming partners who were close to retirement. The Employment Appeal Tribunal has heard an appeal.

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Commissioners for Her Majesty's Revenue and Customs v Annabels (Berkeley Square) Ltd and others

national minimum wage | tips | whether included

The employer is appealing the Employment Appeal Tribunal decision that tips and service charges distributed by troncmasters did not count towards the national minimum wage.

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New ISG Ltd v Vernon and others

transfer of undertakings | objection to transfer

The High Court held that an employee's resignation two days after he had been informed that he was being transferred was a valid objection to the transfer. The case now moves to the Court of Appeal.

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McClintock v Department of Constitutional Affairs

religion or belief discrimination | objection to ruling on same-sex couple adoptions

A Christian Justice of the Peace is appealing against the Employment Appeal Tribunal's rejection of his claim for religion or belief discrimination. He argued that his employer's refusal to excuse him from adjudicating on any case that might lead to the adoption of a child by a same-sex couple was discriminatory.

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Levenes Solicitors v Dalley

unfair dismissal | inconsistent sanctions

The Court of Appeal is to consider the Employment Appeal Tribunal's decision that an employee was fairly dismissed in circumstances where other employees had not been dismissed for the same disciplinary offence in the past.

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Fairbrother v Abbey plc

constructive dismissal | grievance procedures | range of reasonable responses

A Court of Appeal decision is expected. The Employment Appeal Tribunal had held that, in the context of a constructive dismissal claim, the question that should be asked is whether the employer's actions during the grievance procedure fell within the range of reasonable responses.

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Bloxham v Freshfields Bruckhaus Deringer

age discrimination | pension scheme | justification

In this employment tribunal decision, it was held that changes to a law firm's pension scheme that discriminated on the grounds of age were justified. The claimant, Mr Bloxham, has decided not to appeal against the tribunal's decision. The respondent, Freshfields, has also said that it will not be pursuing the claim that it had lodged to recover a portion of its costs.

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Heyday's legal challenge to default retirement age

age discrimination legislation | default retirement age | reference to ECJ

The High Court has finalised the questions to be referred to the European Court of Justice (ECJ) in Heyday's legal challenge to the default retirement age introduced by the Employment Equality (Age) Regulations 2006.

The case has been brought by the National Council on Aging, which operates under the names Heyday and Age Concern. It believes that the inclusion of the default retirement age, which allows employers to retire individuals at 65 or over, in the Regulations makes them incompatible with the Framework Directive.

In relation to national retirement ages and the scope of the Directive, the questions are:

(1) Does the scope of the Directive extend to national rules that permit employers to dismiss employees aged 65 or over by reason of retirement?

(2) Does the scope of the Directive extend to national rules that permit employers to dismiss employees aged 65 or over by reason of retirement where they were introduced after the Directive was made?

(3) In the light of the answers to (1) and (2) above:

(a) were the Employment Rights Act 1996, sections 109 and/or 156, and/or

(b) are the Employment Equality (Age) Regulations 2007, regulations 7 and 30, when read with Schedules 8 and 6 of the Regulations,

national provisions laying down retirement ages within the meaning of Recital 14?

On the issue of the justification defence in cases of direct discrimination, it is asked:

(4) Does Article 6(1) of the Directive permit member states to introduce legislation providing that a difference of treatment on grounds of age does not constitute discrimination if it is determined to be a proportionate means of achieving a legitimate aim, or does Article 6(1) require member states to define the kinds of differences of treatment which may be so justified, by a list or other measure that is similar in form and content to Article 6(1)?

And this question is asked about the test for the justification of direct and indirect discrimination:

(5) Is there any, and if so what, significant practical difference between the test for justification set out in Article 2(2) of the Directive in relation to indirect discrimination, and the test for justification set out in relation to direct age discrimination at Article 6(1) of the Directive?

The ECJ heard the case on 2 July 2008 and the Advocate-General's opinion was given on 23 September 2008. A final ruling is expected in late 2008 or early 2009.

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Madarassy v Nomura International plc

discrimination | burden of proof

The House of Lords has announced that it has refused leave to appeal the Court of Appeal's decision in Madarassy v Nomura International plc [2007] IRLR 246 CA.

In this sex discrimination case, the Court of Appeal applied the two-stage process for determining whether discrimination has occurred that was set out in Igen Ltd (formerly Leeds Careers Guidance) and others v Wong and other cases [2005] IRLR 258 CA.

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Commerzbank AG v Keen

implied term | discretionary bonus | unfair contract term

The House of Lords has refused an application for leave to appeal the Court of Appeal's decision that, in order to show that an employer has breached a discretionary bonus term, the employee must demonstrate that the employer exercised its discretion irrationally or perversely.

The Court of Appeal held that Mr Keen had failed to show that Commerzbank had acted irrationally or perversely when determining the amount of a bonus payable to him in 2003 and 2004 and that the bank had been entitled to rely on a contractual term requiring an employee to be in employment at the date of payment when it refused to pay a bonus for 2005.

It also held that the Unfair Contract Terms Act 1977, section 3 does not apply to employment contracts.

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British Airways plc v Starmer

right to request flexible working | indirect sex discrimination

British Airways has withdrawn its appeal against the Employment Appeal Tribunal (EAT) decision that a refusal to permit a female pilot to halve her working hours amounted to indirect sex discrimination.

After the birth of her daughter Mrs Starmer, a pilot for British Airways, applied to halve her working hours under the statutory right to request flexible working. Although British Airways permitted a 25% reduction in hours, it rejected her request for a 50% reduction because Mrs Starmer did not satisfy its requirement for pilots to have completed at least 2,000 flying hours before being able to reduce their hours to this level. Mrs Starmer brought a claim of indirect sex discrimination on the basis that more women than men would be likely to wish to work part time. The EAT agreed with the tribunal's finding that British Airway's practice was indirectly discriminatory.

Making the announcement that it was dropping the appeal, British Airways said that Mrs Starmer had been able to maintain high standards of performance, even though she was having less flying time than was required under the company's rules.

British Airways added that, in the future, pilots in similar circumstances would be allowed to reduce their hours, subject to conditions.

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HM Revenue and Customs v Stringer and others (previously known as Commissioners of Inland Revenue v Ainsworth and others)

source/reason for inclusion - Abbey legal

statutory holiday pay | long-term sick leave

The House of Lords has now determined the questions to be referred to the European Court of Justice (ECJ) in HM Revenue and Customs v Stringer and others (previously known as Commissioners of Inland Revenue v Ainsworth and others).

They are:

(1) whether Article 7(1) of the Working Time Directive means that a worker on indefinite sick leave is entitled to (i) designate a future period as paid annual leave and (ii) take paid annual leave, in either case during a period that would otherwise be sick leave;

(2) if a member state exercises its discretion to replace the minimum period of paid annual leave with an allowance in lieu on termination of employment under Article 7(2) of the Directive, whether Article 7(2) imposes any requirements or lays down any criteria as to whether the allowance is to be paid or how it is to be calculated in circumstances in which a worker has been absent on sick leave for all or part of the leave year in which the employment relationship was terminated.

No question has been referred about whether a holiday pay claim must be brought under the terms of the Working Time Directive/Working Time Regulations 1998, or whether it could be brought as a deduction from wages claim, thus enabling the worker to claim more years of holiday pay arrears. The House of Lords also suggested to the ECJ that it would be appropriate to consider the questions together with a reference from the German court that covers similar issues. All cases that are currently stayed pending the decision from the House of Lords will now have to await the ECJ's ruling.

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