Issue 52 - 11th August 2008

Monday 11 August 2008

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EUROPEAN COURT OF JUSTICE

Disability discrimination

Coleman v Attridge Law Case C-303/06
The prohibition of direct discrimination and harassment laid down in Directive 2000/78 EC (Equal treatment in employment and occupation)is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).

COURT OF APPEAL

Age discrimination

Johns v Solent SD Ltd [2008] EWCA Civ 790
Claims for age discrimination based on same issues raised in the Heyday case pending in the European Court of Justice, where Age Concern is challenging the validity of parts of the Employment Equality (Age) Regulations 2006 and, in particular, Regulation 30, on the basis that it is not compliant with Article 2 of the Directive, should be stayed pending the outcome of that case. The Court of Appeal criticised the fact that the strike out application was conducted over the telephone.

Equal pay

Redcar & Cleveland Borough Council v Bainbridge & Ors, Middlesbrough Borough Council v Surtees [2008] EWCA Civ 885
There was no legal error in the decision of the Tribunals in finding that the Respondents. were not entitled to rely on their pay protection schemes either as a valid GMF defence under section 1(3) Equal Pay Act 1970 to an equal pay claim or as objective justification of unequal pay. The Tribunal did not err in rejecting separate collective bargaining arrangements as a valid GMF defence in the Middlesbrough case. In advancing equal value claims against Redcar under 1(2)(c) of the 1970 Act, the Claimants were not relying on the same cause of action as in their RAE claims against Redcar under section 1(2) (b) and they were not prevented from advancing their equal value claims by the doctrines of res judicata, merger or election. Further, a JES which complies with the 1970 Act does not have retroactive effect so as to entitle the Claimants to rely on a person of the opposite sex, who is RAE under the JES, as a comparator for the purposes of an RAE claim for a period prior to the implementation of the JES.

British Airways v Grundy [2008] EWCA Civ 875
The Court of Appeal upholds the Tribunal's decision that the pay disparity between support and full-time cabin crew was not justified.

Sex discrimination

Allen & ors v GMB [2008] EWCA Civ 810
The concept of proportionate means of attaining a legitimate aim is not narrow and a number of different actions may each be part of the means of achieving the aim. In the present case the means were not just the balance that was struck in a deal with the Council, but included the methods used to persuade the employees to settle claims for equal pay for less than they were worth or not to bring claims, which were characterised as "manipulation". The fact that other means may have left the employees in the same position was a issue for remedy not liability. Further, the fact that something amounts to less favourable treatment (but not unlawfully so) does not in itself exclude the possibility that it is also the application of a PCP.

Time limits

Beasley v National Grid [2008] EWCA Civ 742
Section 111(2) Employment Rights Act 1996 imposes a harsh regime. The Tribunal had not erred in finding that it had been reasonably practicable to present the claim in time even though it was late by only 88 seconds.

Statutory disciplinary and dismissal procedure

Selvarajan v Wilmot & ors [2008] EWCA Civ 862
The issue of non-compliance with a general requirement of the statutory dismissal procedure, such as unreasonable delay, is only relevant to cases where has not been completion, and the matter to be decided is who is responsible for the non-completion. Where there has been completion of the procedure, even with unreasonable delay, it is not relevant.

EMPLOYMENT APPEAL TRIBUNAL

Extension of time for appeal

Lewald-Jezierzka v Solicitors-in-Law Ltd UKEAT/PA/0336/05/ZT
Without sufficient medical evidence to show that the Claimant was unable to pursue her claim, an application for an extension of time to lodge an appeal after a lengthy delay would not be allowed.

Bost Logistics Ltd v Gumbley & ors UKEATPA/0013/08/JOJ
The rule in Consignia v Sealy that a if a claim is sent by first class post, following CPR 6.7, in the ordinary course of post it will deemed to be delivered on the second day after it was posted, and if it does not the Tribunal may decide it was not reasonably practicable to present the claim in time, does not apply in the EAT.

Abiola v North Yorkshire County Council & ors UKEATPA/0113/08/DM
Where there is one Claimant and multiple claims against multiple Respondent's, and where there is a single judgment dealing with all claims, the decision on which are all to be appealed, then the Rules require that all ET1s and ET3s should be submitted within the required timeframe. In the present case the Claimant in person put in only two of the ET1s and when he called the EAT a member of staff said his paperwork was "all right". The full paperwork was submitted three days later. In such exceptional circumstances the time limit for appeal would be extended.

Extension of time for bringing a claim

Mrs M Averns (on behalf of Mr Averns deceased) v Stagecoach Warwickshire UKEAT/0065/08/DA
The Tribunal had found that given the death of the Claimant, it had not been reasonably practicable to make the claims within the relevant time limits, however it had erred in finding that the Claimant's wife had not acted reasonably and promptly thereafter or that it was not just and equitable to extend time as it had failed to take into account her ignorance of the fact that the estate could bring a claim.

Chairman alone

John Lamb Partnership Ltd v Parfett UKEAT/0111/08/JOJ
Under section 4(3) of the Employment Tribunals Act 1996 an Employment Judge may sit alone when determining a claim in which the Respondent was debarred from taking part under rule 9 of the Employment Tribunal Rules ("the procedural rules").

Evidence

Howes v Hinkley & Bosworth Borough Council UKEAT/0213/08/MAA
The advice of a solicitor was protected by legal advice privilege. There was no evidence he was not acting in his capacity as a solicitor at the time. Subsequent limited reference to the content of the advice did not amount to a waiver.

Decisions

English v Royal Mail Group Ltd & Warburton UKEAT/0027/08//MAA
A Tribunal whose decision simply repeated the closing written submissions of one party and ignored those of the other party, and in doing so did not make a clear distinction between submissions and findings of fact, had failed to comply with the requirements of due process and of Rule 30(6) the procedural rules.

Employment status

Autoclenz Ltd v Belcher & ors UKEAT/0160/08/DA
The Tribunal had erred in finding that the Claimants were employees (following Consistent Group Limited v Kalwak [2008] EWCA Civ 430), but not that they were workers (following Byrne Bros (Framework) Ltd v Baird [2002] IRLR 96) for the purpose the Working Time Regulations 1998 and the National Minimum Wage Regulations 1999.

Statutory disciplinary and dismissal procedures

London United Busways Ltd v Salim UKEAT/0514/07/JOJ
In the circumstances the Tribunal had erred in finding that the Claimant had been given insufficient time to consider his response before the Step 2 meeting took place. The evidence was that neither the Claimant nor his union officer complained of the short timescale, nor asked for the matter to be postponed, and in fact confirmed that they were ready to go ahead with the hearing.

Wilf Gilbert (Staffs) Ltd v Bunn UKEAT/0547/07/ZT
Suspension without pay is a disciplinary sanction falling within the 2004 Regulations and therefore the statutory procedures apply with respect to Step 1. The only statutory sanction for failure to follow the procedure is an uplift to any award which the Claimant could prove he was entitled to as a result of such a suspension. In the present case an entitlement to payment of wages during the suspension period was claimed. Under the staff handbook the Respondent was permitted to suspend without pay only in an appropriate case. Whether or not this was a term of the contract, the Tribunal had not erred in finding that in any event the Respondent had not behaved appropriately in its decision to suspend without pay. Pay for the period was therefore unlawfully deducted. The Tribunal should then have gone on to consider the amount properly payable and whether to uplift the award.

Statutory grievance procedures

Procek v Oakford Farms Ltd UKEAT/0049/08/DA
The fact that the employee had expressly stated in his grievance letter that the grievance was informal did not stop it meeting the requirements of the statutory procedures and therefore the Tribunal had erred in finding that it did not have jurisdiction to hear the claim.

Unlawful deduction from wages

British Library & ors v Kaur & ors UKEAT/0177/08/DM
Where the Claimants were off work sick but refusing to send in sick notes in breach of the employer's policy and not cooperating with grievance procedures, they were not willing or able to work and therefore the failure to pay them was not an unlawful deduction from wages.

Sarti (Sauchiehall Street) Ltd v Polito UKEATS/0049/07/MT
The Tribunal does not have jurisdiction to decide whether the Claimant was entitled to SSP and therefore whether it was unlawfully deducted. The jurisdiction to decide that matter lies with the Board of the Inland Revenue.

Damages for breach of contract

Global Crossing (UK) Telecommunications Ltd v Jones UKEAT/0145/08/JOJ
Applying Shove v Downs Surgical plc [1984] IRLR 17, in assessing damages for breach of contract the Tribunal is required, first to assess what the employee would have received had the contract been performed ie by way of salary and other benefits, net of tax, where tax was payable. However, the tax regime has to be taken into account so that the sum which the employee receives as damages, in his hand, is sufficient to enable the employee to discharge any tax liability that he may have to the Inland Revenue in respect of the sum awarded. Therefore, the calculation involves taking the first £30,000, tax free under Section 148, and deducting it from the net figure to which the Tribunal has come and then on the balance of that figure, grossing that figure up in order to ascertain what the tax bill is likely to be that the employee will face, having received that sum in his hands.

Constructive dismissal

Atlantic Air Ltd v Hoff UKEAT/0602/07/ZT
An employee's acceptance of an employer's repudiation of the contract of employment need not be communicated to the employer. An unequivocal overt act which is inconsistent with the subsistence of the contract may be sufficient, without any concurrent manifestation of intent directed to the other party. State Trading Corporation of India Limited v M Golodetz Ltd [1989] 2 Lloyd's Rep 277 applied. However, in the present case there was no such unequivocal act until the Claimant's representative's wrote to the Respondent.

Claridge v Daler Rowney Ltd UKEAT/0188/08/CEA
Following Abbey National plc v Fairbrother [2007] IRLR 320, even where the Tribunal concluded that in its view the employer has acted unreasonably, that is not of itself necessarily enough to establish a constructive dismissal. In a case like this where the alleged breach results from a course of conduct, the question is whether the conduct fell outside the range of reasonable responses. In relation to grievance procedures, Fairbrother was not in conflict with W A Goold (Pearmark) Ltd v McConnell & Ors [1995] IRLR 516. A hearing will be sufficiently prompt if in all the circumstances a reasonable employer could have conducted the procedure as the Respondent employer did. Further, the grievance procedure must be looked at as a whole and should not be broken down into stages.

Unfair Dismissal

Williams v Cheshire Fire & Rescue UKEAT/0621/07/ZT
The fact that the Respondent submitted that the dismissal was for capability (health) or other substantial reason did not oblige the Tribunal to accept that analysis. The Tribunal was entitled to find that the reason was conduct in failing to comply with attendance requirements, before it went on and considered the totality of the circumstances in deciding whether the dismissal was within the reasonable band of responses available to the Respondent. Further, the Tribunal did not err in finding in the circumstances that time off for "work related stress" was not an "in-service injury" and therefore could not be discounted.

Continuing Act

Kingston upon Hull City Council v Matuszowicz UKEAT/0409/07/CEA
A decision not to transfer the Claimant to other employment as a reasonable adjustment was an omission made when the decision was taken which had continuing effect, and not a continuing act. It was not argued or pleaded that there were reviews of that decision at a later date. The claim was therefore out of time.

Age discrimination

Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd UKEAT/0156/08/RN
The Claimant was excluded by the terms of a voluntary redundancy scheme because he had reached the age of 60. There were tapering provisions in place between the ages of 57-60. When the scheme was originally introduced it was compulsory to retire at 60, but later the retirement age was changed to 65. The scheme was not amended in the light of that. The Claimant submitted that the scheme directly discriminated against him on grounds of age. The appeal was upheld as the Tribunal had failed to analyse the aims of the scheme nor the issue of proportionality.

MacCulloch v Imperial Chemical Industries Ltd UKEAT/0119/08/RN
The Claimant's claim of age discrimination in relation to Respondent's redundancy scheme was dismissed. The EAT allowed the appeal, holding that while the Tribunal had identified certain legitimate aims which the scheme was designed to achieve, there had been no proper attempt to determine whether the means adopted were proportionate to those aims, having regard to the significant detriment suffered by the claimant. The EAT sets out the approach to justification where there direct discrimination.

Disability discrimination

Ministry of Defence v Hay UKEAT/0571/07/CEA
The Tribunal had not erred in finding that on the evidence presented the Claimant was disabled. While the diagnosis of TB was a significant issue, the Claimant had also referred to his clinical history and although the expert did not include this in his opinion, the Tribunal were entitled to have regard to it as constituting impairments.

Equal pay

Sodexo v Gutridge & ors UKEAT/0024/08/RN
The effect of Powerhouse is that the six month time limit runs from the date of transfer itself for all equal pay claims which derive from the equality clause with the transferor, at least with respect to alleged breaches by the transferor. This is so whether liability for breach transfers pursuant to TUPE or not. In the present circumstances the claim would be out of time. However the claimants could enforce their equal pay claims insofar as they related to the failure by the transferee to honour their contracts.

Race discrimination

Olasehinde v Panther Securities Ltd UKEAT/0554/07/ZT
The making of exaggerated and distorted allegations of harassment by the employer, even when eventually the denials were accepted and no sanction was imposed, could constitute a detriment.

Advance Security UK Ltd v Musa UKEAT/0611/07/JOJ
There was no unfairness to the Respondent by the Tribunal chair in clarifying for the Claimant in person the relevant racial group on which he was relying. However the Tribunal had erred in considering the wrong decision-maker. It had also erred in finding a prima facie case without considering the Respondent's explanation and in failing to attribute to the comparator the defective passport supplied by the Claimant.

Commissioner of Police for the Metropolis v Virdi UKEAT/0598/07/MAA
The Tribunal erred in its finding of victimisation as it was based on a finding, integral to its reasoning, for which there was no evidence. Further, failure to provide evidence on the promotion process did not in the circumstances justify inferences of victimisation. Inferences of discrimination from a failure to provide relevant evidence may be justified in some cases if the Tribunal concludes that the employer is being evasive because he knows that the evidence in question would support the claim of discrimination. General "shoddiness" is not sufficient.

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