Employment Law Bulletin – Issue 161 – 28 January 2014

Tuesday 28 January 2014

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Employment Law News

98 South-West workers on industry blacklist

Blacklisted engineer Dave Smith is next month speaking at the South West TUC's health and safety conference in Exeter.

Dave Smith lost his job after leading a series of on-site health and safety campaigns at work, earning him the reputation as a trouble-maker in the eyes of his employers. As a result, he was put on the industry blacklist - an illegal list held by bosses containing the names of at least 98 people in the South West - and was unable to find work for ten years. To read more, click here.

Employment Case law

Employment Appeal Tribunal

Brighouse Group Holdings Ltd v Mr S Bourne EAT 0098/13 & EAT 0099/13

Practice and Procedure | Postponement or stay

The Respondent's solicitors made an application for an adjournment of a hearing on the grounds that the Respondent's managing director was unable to attend due to a business commitment. The precise nature of the commitment was not revealed to the Employment Tribunal (ET). On the day before the hearing, an employment judge refused the application, expressly stating that the application could be renewed if appropriate at the hearing. The Respondent did not attend, and the hearing proceeded in their absence.

It was argued on appeal to the Employment Appeal Tribunal (EAT) that the employment judge erred in law in refusing the application and that the hearing ought in any event to have been adjourned. Dismissing the appeal, the EAT found that the employment judge, when refusing the application for an adjournment, had applied the correct legal test and there was no error of law in proceeding with the hearing the following day. To download the judgment, click here.

Mr K Budgen v (1) Mr A Smith (2) Ministry of Justice And Others EAT 0308/12 & EAT 0309/12

Age Discrimination | Comparators

The Claimants were employed by the Respondent as civil servants. They were members of the Principal Civil Service Pension Scheme. The Respondent operated a compensation scheme whereby a lump sum was payable in respect of loss of office to the Claimants, who were leaving their posts on a voluntary basis. The amount payable depended on whether the Claimants were eligible to take a pension earned during employment with Respondent as at the date of termination, with no actuarial reduction. If so, the sum payable was six months' salary. Other employees, who left before being entitled to pension immediately with no reduction, would be paid a lump sum equivalent to a maximum of 21 months' salary, depending on the length of time between termination and their entitlement to full pension. The Claimants argued that entitlement to pension was dependent on their having reached the age of 60, which both had. They compared themselves to other employees, members of the same pension scheme, who were leaving, and who were younger and so were receiving higher compensation payments. At a Pre Hearing Review as to the preliminary point of whether the Claimants were in the same or not materially different circumstances to the comparators, the ET decided that they were in materially different circumstances and dismissed the claim.

Upholding the appeal, the EAT found that the ET had erred in law. The circumstances of Claimants and comparators were not materially different. The difference between them was age, which is the protected characteristic. Age therefore cannot found the difference between Claimant and comparator. The case was remitted to the same Tribunal to proceed to the second question of objective justification. To download the judgment, click here.

Mr D Smith v (1) Carillion (Jm) Ltd (2) Schal International Management Ltd EAT 0081/13

Contract of Employment | Whether established

It is a prerequisite of the right not to have action short of dismissal taken against you by your employer, either by reason of your trade union or health and safety activities (under the Trade Union and Labour Relations (Consolidation) Act 1992 section 146, and the Employment Rights Act 1996) that there is a contract between you and the employer. The requirement (of having a contract) also applied when the protection under TULR(C)A section 146 was extended by amendment with effect from 1 October 2004 to "workers" after the material dates in the instant case.

In deciding whether such a contract is to be inferred in a tripartite agency agreement the test of whether it is necessary before implying such a contract continues to be applicable where the facts would be equally explicable without the implication of such a contract.

So held the EAT in dismissing this appeal by the claimant holding The Employment Tribunal did not err in finding on the facts before them that no contract between the Claimant and the Respondent end-user existed. The claimant was represented by David Renton of Garden Court Chambers. To download the judgment, click here.

Mr M Naeem v The Secretary Of State For Justice EAT 0215/13

Indirect Race Discrimination | Justification

Until 2002 the only chaplains employed by the Prison Service were of the Christian faith. Since then, chaplains of other faiths have been recruited. The pay scale applicable to the post of chaplain reflects, among other things, length of service.

The Claimant was appointed in 2004 as a Muslim chaplain. His claim of indirect discrimination on grounds of race and/or religion or belief was dismissed by the ET. The EAT having satisfied itself that, although the Claimant had been subject to a provision, criterion or practice (PCP) which had put him at a particular disadvantage, the employer had established the PCP was a proportionate means of achieving a legitimate aim.

The Claimant appealed on the ET's ruling on "justification" and the Respondent cross-appealed on whether the ET had been wrong to include, in the "pool" of comparators, the pre-2002 chaplains.

In upholding the cross-appeal and dismissing the appeal by the Claimant, the EAT found that the Tribunal had erred in including pre-2002 chaplains. Their circumstances were materially different to those of subsequent chaplains. The Claimant had been treated in exactly the same way as any chaplain, of whatever race or religion, appointed at the same time as him.

Further, and, in relation to the appeal, although the ET had erred in determining that the employers had established 'proportionate means' (because it had failed to consider obvious alternatives), the appeal failed in light of the success of the cross-appeal. The claimant was represented by Catrin Lewis of Garden Court Chambers. To read the full judgment, click here.

Mr A Fadairo v Suit Supply UK Lime Street Ltd EAT 0282/13

Practice and procedure | Admissibility of evidence

The ET made a case management decision preventing the Claimant from relying on an email which was ruled to be confidential and the subject of legal advice privilege. The Claimant appealed against that decision on various grounds. His main submissions were that (1) the email had been disclosed to him before litigation began, deliberately and not inadvertently; (2) the email was no longer confidential as between the Respondent and him even if it remained confidential as against others; and (3) the ET had been wrong to direct itself that it did not have a discretion to permit the use of the email in the proceedings, since it should have conducted a balancing exercise weighing competing interests.

In dismissing the appeal the EAT held: (1) It had been common ground before the ET that the disclosure of the email had been inadvertent. The Claimant had not challenged evidence to that effect which was before the ET nor had he sought to adduce any other evidence. The ET was entitled to make that finding on the basis of the material before it and there was no perversity challenge in any event. It was not open to the Claimant now to submit that the disclosure had in fact been deliberate and not inadvertent; (2) The email was clearly still confidential as against the Claimant; (3) Although there was a discretion in certain circumstances to refuse a case management order of this type (by way of analogy with the equitable jurisdiction of the High Court to restrain a breach of confidence where a document was the subject of legal advice privilege), it was not broad enough to encompass a general weighing up of competing interests, including balancing the interest in confidentiality and the interest in establishing the truth in litigation. The Employment Tribunal was right in reaching its decision to that effect. To download the judgment, click here.

Employment Law Events

Newcastle: Struck out
David Renton of Garden Court Chambers is giving a talk on the changes to the Employment Tribunal system
University of Northumbria
30 January 2014,18:00 to 19:30
CPD: 1.5 Hours
For more information, click here.

Employment Lawyers' Association Lecture: A Shared Platform with John Cridland, Director-General of the CBI and Frances O'Grady, General Secretary of the TUC
Tuesday 4 February, London, 19:00 - 20:00
CPD: 1 Hour
For more information, click here.

The Industrial Law Society: Toleration in the workplace
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields, London, WC2A 3PE
February 11 2014, 18:30 -20:00
CPD: 1.5 Hours
For more information, click here.

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