Employment Law Bulletin – Issue 163 – 25 February 2014

Tuesday 25 February 2014

Share This Page

Email This Page

Employment News

Regulations published, giving effect to ACAS conciliation and financial penalties
The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014, The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2014, and the Enterprise and Regulatory Reform Act 2013 (Commencement No.5, Transitional Provisions and Savings) Order 2014 have all been published. Under the new regulations, ACAS Conciliation comes into force on 6 April 2014. Claimants will be required to have contacted ACAS and received an early conciliation certificate before issuing a Tribunal claim. In addition, 6 April is also the commencement date for financial penalties, under which a Tribunal may order a penalty for employers who lose and are found to have breached a worker's employment rights, where the breach has one or more aggravating features. The amount of the penalty is equal to 50% of the financial compensation awarded in favour of the Claimant, subject to a minimum of £100 and a maximum of £5,000.

Tribunal President's annual report for 2014
Sir Jeremy Sullivan, Senior President of Tribunals, has published his annual report for 2014. The sections of the report which deal with the Employment Tribunal and the Employment Appeal Tribunal record (amongst other things) that the settlement rate for judicial mediation is 70% (in England and Wales) and 77% (in Scotland), and that there has been a sharp fall in the number of cases requiring lay members.

Changes to European Economic Area (EEA) workers' benefits entitlement
The Department of Work And Pension has introduced new rules for benefits for workers from the EEA. To be classified as a "worker" an EEA migrant will have to show that they have been earning £150 a week for three months. An EEA migrant who has some earnings but does not satisfy the minimum earnings threshold will be assessed against a broader range of criteria to decide whether they should still be considered as a worker or self-employed. An EEA migrant who has a right to reside as a jobseeker is subject to other restrictions. EEA jobseekers must live in the UK for three months and satisfy the Habitual Residence Test before they are entitled to claim income-based Jobseeker's Allowance (JSA), and from 1 April, they will be ineligible for Housing Benefit.

Case Law


Vicarious liability

Cox v Ministry of Justice (Rev 2) [2014] EWCA Civ 132

In claims for personal injury, an employer is vicariously for the act of an employee committed in the course of the employee's employment if there is a sufficiently close connection between the wrongdoing and the employment so that it would be fair and just to hold the employers vicariously liable. As a matter of policy, the employment status of the "employee" may be more widely drawn than is the case in individual employment law, although elements of the same test apply. In a case brought by a catering manager against a prison, regarding an injury caused to the manager by a working prisoner, the Court of Appeal overturned a decision of the High Court that the employer was not liable for the conduct of the prisoner. The prison argued that there was no contractual relationship between prisoner and prison, no intention to create legal relations and no mutuality of obligation. The Court disagreed, finding that the hierarchical structure of the prison and the prisoner's duty to follow the rules of the prison made their situation akin to employment. For the full judgment, click here.

Mohamud v WM Morrison Supermarkets Plc [2014] EWCA Civ 116

In a case concerning the second stage of vicarious liability, i.e. the connection between the wrongdoing and the wrongdoer's employment, the Court of Appeal considered whether a supermarket should be liable for the acts of its employee who left the petrol station where he worked and repeatedly punched a customer in the head, without apparent reason. The wrongdoer was an employee, and the assault happened on the employer's premises, and he was required to interact with customers in the course of his duties. However, the High Court had held and the Court of Appeal upheld its decision, the employee's duties did not involve any element of keeping public order or exercising authority over the customer. There was no element which could bring this Appellant's case within the close connection test so as properly to enable a finding of vicarious liability. For the full judgment, click here.

Discrimination: liability for agent

Kemeh v Ministry of Defence [2014] EWCA Civ 91

In individual employment law, is an employer liable for the discriminatory acts of a third party who is present on its premises as an agent? Section 32(2) (2) of the Race Relations Act 1976 makes an employer liable for anything done by a person as agent for another person with the authority of that person. In a case concerning an army officer racially abused by a third party cook working for another company as its employee on the army's premises, the Court of Appeal held that these facts did not come within the definition of "agent", either in the statute or the common law. The Court accepted that in the right circumstances an employee might be an employee of one employer and an agent of a second, but for this to occur there would need to be compelling evidence that the third party had agreed to be bound by an agency relationship to the main employer. For the full judgment, click here.



Wijesundera v Heathrow 3PL Logistics Ltd & Anor [2013] UKEAT 0222/13

In ordinary contract law, a person may in general not benefit from a contract into which she has entered illegally. While similar principles apply with regards to claims for unfair dismissal, in discrimination law the situation is more complex. The test looks to see whether, on all the facts, and not just simply applying a causation test, the claim is inextricably bound up with the applicant's illegal conduct. So held the Employment Appeal Tribunal (EAT) in reversing the Tribunal's decision to dismiss claims brought by a Sri Lankan woman who had agreed to work for the Respondents, but made it clear she could not do so unless and until she was sponsored by them to do so, so that she had a valid work permit. Prior to her actually commencing work she was seriously sexually assaulted by the Second Respondent. The EAT held that the claim save in respect of dismissal was not so inextricably bound up with the illegality as to be defeated. The EAT in addition went on to consider whether there was an agency relationship between the First Respondent and the Second Respondent, so as to allow the Claimant to bring her claim against each. The EAT considered the circumstances in which an agency relationship might be established and remitted the matter back to the Tribunal for consideration. For the full judgment, click here.

Burden of proof

Solicitors Regulation Authority v Mitchell [2014] UKEAT 0497/12

In discrimination claims, where there are facts from which the Tribunal could decide, in the absence of any other explanation, that an act amounted to discrimination, the Tribunal must hold that the contravention occurred and that the reason for it was discriminatory unless the discriminator shows that they did not discriminate (s136 EA 2010). Mere differential treatment will not be enough to cause the burden to shift, something more is required, but is there enough where there is differential treatment and the Tribunal has disbelieved the evidence of the Respondent's witness? In a case where the Claimant and a male comparator were permitted to work from home on certain days each week to facilitate child care arrangements and the Claimant's right to do so was revoked, the explanation for the Claimant's apparently less favourable treatment was rejected by the Employment Tribunal which went on to find that the reverse burden of proof had come into play. The Employment Appeal Tribunal accepted this reasoning. The finding that the Respondent had given a false explanation for the less favourable treatment constitute "something more" and the Employment Tribunal was accordingly entitled to conclude that the Claimant had suffered discrimination. For the full judgment, click here.


TNS UK Ltd v E A Swainston [2014] UKEAT 0603/12

In a case where an employer determines to dismiss a named employee, and there is still a need for the same amount of work to be done, albeit that it can be done by fewer employees, is there still a redundancy situation? There is, held the Employment Appeal Tribunal, accepting in part a Respondent's appeal where the employer had decided that it could no longer afford to pay for the Claimant's post as a senior manager and had placed her in a redundancy pool of one. The Appeal Tribunal found that the ET had erred in finding that the reason for dismissal was cost rather than redundancy. The EAT however upheld the Tribunal's findings that the dismissal was in any event unfair, since here had been an inadequate consultation which deprived the Claimant of any opportunity to challenge the commercial need for the termination of her position or the accuracy of her performance figures as asserted by the Respondent. There was inadequate time for a proper consultation process, and the decision to terminate the Claimant's post was taken apparently irrevocably prior to any consultation. The matter was remitted for consideration of the Respondent's arguments for a Polkey reduction. For the full judgment, click here.

Employment Law Events

Discrimination Law Association: Homophobia in Football
Doughty Street Chambers, 53-54 Doughty Street, London WC1N 2LS
25 February 2014, 18:00 to 20:00
For more information, click here.

Institute of Employment Rights: Access to Justice
Adelphi Hotel, Liverpool
5 March 2014, 9:30 to 15:45
The speakers will include David Renton of Garden Court Chambers' Employment Team.
For more information, click here.

Institute of Employment Rights: Access to Justice
Unite building, London
19 March 2014, 9:30 to 15:45
The speakers will include David Renton of Garden Court Chambers' Employment Team.
For more information, click here.

Industrial Law Society: Lord Justice Underhill on Reasonableness
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields, London, WC2A 3PE
27 March 2014, 18:30 to 20:00
For more information, click here.

We are top ranked by independent legal directories and consistently win awards.

+ View more awards