April 2012 changes
A number of changes to employment law take effect this month.
On 1 April 2012 the weekly rate of statutory maternity, paternity and adoption pay increased from £128.73 to £135.45.
On 6 April 2012:
- the maximum deposit orders increase from £500 to £1000;
- the maximum costs orders increase from £10,000 to £20,000;
- section 147 of the Equality Act 2010 is amended to confirm that an employee's representative can be an "independent adviser" for the purpose of a compromise agreement;
- the Employment Tribunal rules are amended so that witness statements will ordinarily be read;
- the default position will be that unfair dismissal cases will be heard by a single Judge rather than a full panel; and
- for new employees taken on after this date, the qualification period for unfair dismissal increases to two years.
Employment Case Law
Court of Appeal
Woodcock v Cumbria Primary Care Trust  EWCA Civ 330
A person directly discriminates against another, where they treat them less favourably for a prohibited reason. Section 13(2) of the Equality Act 2010 provides that where the reason is age, there is no discrimination if it can be shown that the treatment was a proportionate means of achieving a legitimate aim. Previous case law, particularly Cross and others v. British Airways plc  IRLR 423, has distinguished between cases where cases where saving cost was the only reason for the treatment ("costs"), and cases where saving cost was one of several reasons for the treatment ("costs plus"). The latter has been said to be lawful, the former unlawful. In a new development of the case law, the Court of Appeal has held that whether an employer was motivated by "costs" or "costs plus" should not be the key question for a Tribunal; the key questions rather should be whether the aim was legitimate and the means proportionate. There are cases, therefore, where an employer's concentration on costs-saving, provided that it was in all the circumstances proportionate, will be lawful. In a case which concerned a very highly remunerated public sector manager, who was dismissed shortly before his fiftieth birthday in order to save considerable expense, the Court found that the conduct of the employer was proportionate, and there was no discrimination. Click here to read the judgment.
Unison, R (on the application of) & Anor v NHS Shared Business Services Ltd & Anor  EWHC 624
The Public Contracts Regulations 2006 provide for minimum standards in public contracting, so that there may be a level playing field between private entities competing for public contracts. The trade union Unison sought to use the Regulations to block the outsourcing of NHS services. Mr Justice Eady held that if the services had not been outsourced, it would be impossible to say who else might have bid for them and whether their bids would have had preferential consequences for Unison members. There were no known candidates who could have expected to present themselves as bidders; nor could the court speculate as to the terms which possibly have been offered to provide the relevant services. Accordingly the union was deemed to lack standing to challenge the outsourcing. Click here to read the judgment.
Employment Appeal Tribunal
Chorley Borough Council v Andrews  UKEAT 0172/11 (31 August 2011)
The burden of proof in discrimination law (section 136 of the Equality Act 2010) derives from European law (Council Directive 2000/78/EC). The common law had prior to the Directive reached a similar position, that if an applicant showed that he had been treated less favourably than others in circumstances which were consistent with discriminatory treatment, the Tribunal should draw an inference that such treatment was on discriminatory grounds, unless the respondent could satisfy the Tribunal that there was an innocent explanation (Chattopadhyay v Headmaster of Holloway School  ICR 132). This principle potentially applies therefore where the "discrimination" is for a reason outside the Equality Act, for example, to penalise trade union activities. In a case which concerned a trade unionist whose post had been made redundant, who had been told early in the process that he would not be redeployed, and who had been given limited practical opportunities to apply for alternative work (and fewer opportunities that rival candidates), the ET concluded that the motive for his treatment was discriminatory. The EAT upheld the ET's reasoning, holding that this was a case where it had been appropriate for the Tribunal to draw inferences as to the Respondent's motives. Click here to read the judgment.
Segor v Goodrich Actuation Systems Ltd  UKEAT 0145/11 (10 February 2012)
Where a claimant withdraws a part of her claim, the Tribunal should not automatically accept withdrawal. Though it is always for the parties to shape their cases and for a Tribunal to rule upon the cases as put before it, a Tribunal must take the greatest care to ensure that if a party during the course of a hearing seeks to abandon a central and important point, that they understand the significance of what is being said, that there is clarity about it, and if they are unrepresented, that they understand some of the consequences that may flow. In a case which turned on the interpretation of the International Trade in Arms Regulations, an American law which prohibited persons of certain nationalities from working on US military projects, and the Claimant was represented by a non-practising barrister who appeared to abandon parts of her claim, the EAT held that there had been insufficient clarity that the claim was in fact withdrawn. The EAT allowed the Claimant to withdraw her concession, and remitted the matter to the Tribunal to determine the Respondent's defence to this part of the claim. Click here to read the judgment.
Notices & coming events
Preparing for battle
Wednesday 25th April at 6pm
Naomi Cunningham will address a Practitioner Group Meeting of the Discrimination Law Association on ''Preparing for battle - a practical talk for claimants and advisors in preparing for complex discrimination hearings', on Wednesday, 25th April at 6pm at the offices of Russell Jones & Walker, 50-52 Chancery Lane, WC2A 1HL