Employment Law Bulletin – Issue 126 – 14 May 2012

Monday 14 May 2012

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Employment news

Protests against austerity
Protests against public sector cuts on 10 May saw roughly 400,000 public sector workers strike, as well as a demonstration by up to 30,000 police officers, and unofficial stoppages by prison officers. Click here for more information

Call for evidence still open
The government's call for evidence on compensated no-fault dismissals remains open until 8 June 2012. Click here for more information.

Genetic discrimination
The Human Genetics Commission has called for legislation to outlaw discrimination on grounds of genetics. Click here for more information.

Employment Case Law

Court of Appeal

Collective grievances

Birmingham City Council v Akhtar & Ors [2012] EWCA Civ 585
Under the provisions of the now-repealed statutory dispute resolution procedures, all claims save for unfair dismissal could only be heard by the Tribunal if they were brought under either the "ordinary" or the "modified" grievance procedures. Under the former, the prospective claimant was obliged first to send the employer a letter of grievance. Under the latter, the grievance letter was required to be a fuller document, setting out the "basis" of the claim (i.e. the essential reasons why the claimant held the grievance in sufficient detail to enable the employer to respond: City of Bradford Metropolitan District Council v Pratt [2007] IRLR 192, link here. Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provided, in addition, for what the courts have since termed "collective grievances": i.e. where a representative wrote to the employee naming two individuals on behalf of whom grievances are brought, there was deemed compliance with the grievance procedure, and no need to set out the claim's basis. In a long-running equal pay case, brought by claimants represented by the GMB and Unison trade unions, the Court of Appeal has had to consider whether regulation 9 was satisfied where the trade union did not expressly invoke the collective grievance procedure, and did not appear to have intended to follow it, and where the requirements of neither the ordinary nor the modified procedures had been met. The Court of Appeal held that the only requirements of a collective grievance were those set out in the Regulations, and these were satisfied, and accordingly the Tribunal did have jurisdiction to hear the claim. For the full judgment, click here.

Employment Appeal Tribunal

Fixed-term employees

Hudson v The Department For Work And Pensions [2012] UKEAT 0397/11
Where an employee has been engaged for four years or more on fixed-term contacts, and her employment is extended, the Tribunal has jurisdiction to issue a declaration that the employee is now a permanent employee (regulation 8, Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002). This declaration cannot be sought by an employee who is a trainee (regulation 18, FTR). But what should be done where the employee was and is no longer a trainee, and, in particular, is such an employee required to wait until 4 years after their original training position has elapsed? The EAT has addressed these question in the context of a claimant who was employed via a civil service scheme akin to the New Deal. In a considered judgment, which turned on the precise words of the Regulations, Recorder Luba found that although a person who was presently employed as a trainee, could not invoke the Regulations, there was nothing in the Regulations excluding a former trainee from invoking the four-year rule, even where some of their qualifying four years had been on work experience. Permission was granted to appeal the decision to the Court of Appeal. For the full judgment, click here.

Brennan & Ors v Sunderland City Council & Ors [2011] UKEAT 0286/11
Until recently, it was the ordinary practice of the Employment Tribunal, in discrimination cases where fault was found against more than one Respondent, to apportion liability between them. This practice has recently been disapproved by the EAT (London Borough of Hackney v Sivanandan [2011] ICR 1374). What should be done however where a Respondent seeks to apportion liability to another party, including potentially a person who is not party to the proceedings? In an equal pay case which the claimants had initially brought both against the employer and the union, and the union had settled, Mr Justice Underhill (in his last case as outgoing President of the EAT) has held that there is no power in the employment statutes for a Respondent to bring a contribution claim. This decision is of considerable significance, as if the case had been determined differently, it is likely that such claims would in due course have become commonplace, not merely in discrimination claims, but in other situations where the employer disputed vicarious liability for the acts of his employees. For the full judgment, click here.

Notices & coming events

Human Rights in the Employment Context
Thursday 31 May 2012 from 18:30 to 20:00

A Garden Court Chambers seminar providing practical guidance on the use of Articles of the Convention in employment law cases. Click here for more information.

Justice Equality 2012 Conference
Tuesday 26 June 2012

The conference takes place at The Hatton, 51-53 Hatton Garden, London EC1N 8HN with speakers including Robin Allen QC and the Hon. Mrs. Justice Cox. More details here.


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