Issue 56 - 24th November 2008

Monday 24 November 2008

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COURT OF APPEAL

Equal Pay

Blackburn & Anor v Chief Constable of West Midlands Police [2008] EWCA Civ 1208
The special priority payment scheme which was paid to those who work the 24/7 rotating shift pattern had a disparate impact on women and put them at a particular disadvantage when compared with men. However the scheme was objectively justified as the EAT had found, overturning the Tribunal decision.

EMPLOYMENT APPEAL TRIBUNAL

Territorial jurisdiction

Halliburton Manufacturing and Services Ltd v Ravat UKEATS/0012/08/MT
The Claimant was taken on by the Respondent, a UK company in the business of providing tools, services and personnel to the oil industry. He worked in Libya, on operations which were part of the business of an associated German company. The Tribunal erred in finding that it had jurisdiction to hear the claim for unfair dismissal. It wrongly applied a test of "substantial connection" rather than the criteria inherent in the principles identified in Lawson v Serco Ltd [2006] ICR 250. The fact that the parties had agreed that UK law applied to the contract and reassured him on this point were not relevant considerations as they could not by agreement extend the territorial scope of statutory rights.

State immunity

Mauritius Tourism Promotion Authority v Wong Min UKEAT/0185/08/LA
The Tribunal had not erred in its refusal to review its decision that state immunity did not apply. The Respondent had failed to take any part in proceedings relating to jurisdiction even though it was sent an unambiguous letter by the Tribunal explaining to the Authority precisely what it had to do if it wished to challenge the Tribunal's jurisdiction. Even if the Tribunal had been wrong the EAT found that there could have been strong grounds for arguing that the Respondent had in any event by its actions chosen to waive immunity by taking steps in the substantive proceedings.

Bias

City & Council of Swansea v Honey UKEAT/0030/08/RN
In the circumstances there was a plain case of apparent bias where one of the Tribunal lay members was District Secretary of the RMT Trade Union and, at the time of all relevant hearings in the case, was involved in that capacity in a dispute with the Respondent regarding its licensing of taxi cabs. He had criticised the Respondent openly, in writing and in a press statement and was reported by the local press as having 'blasted' the Respondent's report on the matter as 'extremely biased' and as having shown 'very poor leadership and inefficiency'.

Costs

Centrica Storage Ltd & Lewis Silkin LLP (a firm) v Tennison UKEAT/0336/08RN
The Tribunal erred in making a wasted costs order against the Respondent's solicitors. The Tribunal had failed to give appropriate notice to enable proper consideration and representation to be made by the solicitors. In any event the Tribunal was wrong to make an order in respect of witness expenses when there was no evidence that any payments had been made.

Unegbu v Newman Stone Ltd UKEAT/0157/08/ZT
The Claimant had withdrawn his claim shortly after the Response was filed. The Respondent sought costs on the basis of allegations that the Claimant was a serial litigator who had been indulging in pure speculation, and secondly that the health problems he had suggested as a reason for withdrawal were either bogus or not as serious as he was making out. At a hearing where no evidence was called a costs award was made against the Claimant. The EAT held that the Tribunal had erred in making the award. Withdrawal of proceedings alone was an insufficient basis for such an order. McPherson v BNP Paribas [2004] 3 All ER applied.

Statutory grievance procedure
European Credit Management Ltd v Hosso UKEAT/0240/08/RN
The Tribunal erred in finding that the Claimant had fulfilled the requirements of the modified grievance procedure with respect to her subsequent claim for equal pay in relation to bonus payments. The Step 1 letter had only mentioned basic pay and share options and it was not permissible to read all other aspects of remuneration into the word "pay".

Weare v HBOS plc UKEAT/0300/08/JOJ
In the circumstances of the case the Claimant had fulfilled the requirements of Step 1 of the statutory grievance procedures in relation to the making of protected disclosures. Seen in context the various stages of the disciplinary procedure were not separate actions. Once the claimant had alleged that the disciplinary proceedings were being initiated because he had made protected disclosures then that allegation continued to apply to all subsequent stages of the process. There was therefore no need for a separate and distinct grievance raised with respect to each stage of the disciplinary procedure.

Hurst & ors v Suffolk Mental Health Partnership UKEAT/0332/08/RN
In a number of appeals heard together, the EAT held that the minimum requirement necessary when raising a statement of grievance in relation to an equal pay claim is for the Claimant to indicate that he or she is pursuing an equal pay claim. Further details may be needed to comply with the requirement to provide the basis of the claim. However if the grievance states that the complaint is an equal pay complaint, a claim form which reflects that fact will suffice whether the details of the claim are provided or not. If the Respondent does not raise the issue of compliance with the statutory procedures in the Response form, it ought to be raised by way of application to amend. Permission to appeal given.

Step In Time Ltd V Fox & Hunter UKEATS/0031/08/MT
The EAT reiterated that in cases of constructive dismissal the employee does not have to mention in the grievance letter that he or she will resign, as resignation is not part of the grievance. The grievance relates to the conduct of the employer which causes him to resign. In this case the essential complaint was victimisation. While the ET1 could not constitute a grievance, the particular matters identified in the claim form simply provided the details of the alleged victimisation. In the normal way that would be information that an employee would be expected to give at stage two of the grievance procedure. It would not be a matter that would be required at stage one.

Illegality

Blue Chip Trading Ltd v Helbawi UKEAT/0397/08/LA
The Claimant was in breach of the conditions imposed as a term of his student visa by working longer hours in term time then he could lawfully work. In a claim for failure to pay the National Minimum Wage the EAT held that the part of the contract was lawful and could be severed from the unlawful part as, unlike the case of Vakante v Governing Body of Addey and Stanhope School [2005] ICR 231, there was no complete bar to the employee doing any work at all. The Claimant was allowed to do the particular work at certain times. Therefore the Claimant could recover with respect to the periods out of term time and at other times when there were no restrictions on his hours, but he could not recover with respect to the periods during term time when he was knowingly infringing the hours requirement.

Effective date of termination

Gisda Cyf v Barratt UKEAT/0173/08/ZT
Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor avoided opening and reading it, the effective date of termination is when the letter is read by the employee, not when it arrives in the post.

Working time

The Corps of Commissionaires Management Ltd v Hughes UKEAT/0196/08/CEA
Under the Working Time Regulations 1998 where a worker is excluded from the provisions and regulation 24 applies the worker is entitled to one period of rest for however long he works in excess of six hours. The Tribunal has to adopt a two-stage approach in which it has first to be decided if the Claimant's case was such that it was not possible for objective reasons to grant such an equivalent period of compensatory rest. If it was possible, the Claimant would be entitled to an equivalent period of compensatory rest, if not, then the Respondent will have to afford the claimant such protection as may be appropriate in order to safeguard their health and safety. Further, a claim can only be made in respect of a prescribed period of three months from the time when the Claimant should have been given a compensatory rest period unless extended by use of the statutory grievance procedure.

Employment status

Muschett v Prison Service UKEAT/0132/08/LA
The Claimant who was supplied to work for the Respondent by an agency did not have a contract of employment with the Respondent. Neither was he a worker for the purposes of s78 Race Relations Act 1976 ("RRA") nor was he employed by the agency for the purposes of the contract worker provisions under s7 RRA.

East Living Ltd v Sridhar & TSG Services Ltd UKEAT/0476/07/RN
The Tribunal had erred in finding that the Claimant was employed by the end-user. Applying James v Greenwich LBC [2008] ICR 545, the circumstances whereby the Claimant's services were provided to the end-user by an agency were adequately explained by the express contractual arrangements.

Bath Spa Experience t/a Il Toco d'Italia v Lamarina UKEAT/0144/08/LA
The Tribunal had not erred in finding that the Claimant was an employee. She was a waitress who was one of the Respondent's core staff working several shifts per week. Tax was deducted from her pay, and she received paid holiday. The requisite control and mutual obligation to provide and accept work existed. Although there had been a six week period during her employment when no work was provided it was still open to the Tribunal on the facts to find that the Claimant was an employee.

Unfair dismissal

Ashraf v Metropolitan Police Authority UKEAT/0205/08/CEA
There was insufficient similarity between the alleged comparators for there to be any unfairness in the disparate treatment of the Claimant.

Ali v Birmingham City Council UKEAT/0313/08/CEA
The Claimant had made his intention to resign clear and had been given time to reflect. In the circumstances therefore the Tribunal was correct to hold that this was a valid resignation and that the Claimant could not bring himself with one of the exceptions to the general rule in Southern v Franks Charlesly [1981] IRLR 278.

Norris v Great Dawley Parish Council UKEAT/0266/08/JOJ
The Tribunal had erred in finding that fact that the Claimant had agreed previous changes to her contract meant the employer could insist that she no longer work from home one day per week. In the circumstances this was a fundamental breach of contract.

Whistleblowing

Hibbins v Hesters Way Neighbourhood Project UKEAT/0275/08/DA
Section 43B (1) Employment Rights Act 1996 describes the wrongdoer as "a person" and thus includes all legal persons without being limited to the employer.

Age discrimination

Chief Constable of West Yorkshire Police and others v Homer UKEAT/0191/08/RN
A requirement that to be graded at the top grade, and to receive the higher salary linked to that grade, an employee had to have a law degree was not indirect age discrimination. Although the Claimant's age (61) meant he was not able to obtain a degree before he retired, unlike younger workers who would be able to do so, this was a consequence of the fact that his working life was limited and therefore his age, but it was not age discrimination. Further, the ACAS guidance should not be read as meaning that concrete evidence is always necessary to establish justification. Justification may be established in an appropriate case by reasoned and rational judgment. What is impermissible is a justification based simply on subjective impression or stereotyped assumptions.

Live Nation (Venues) UK Ltd & ors v Hussain UKEAT/0234/08/RN
The Tribunal erred in holding that an unjustified belief that the Claimant himself had ageist tendencies along with the belief that he was using age to his advantage was evidence from which it could infer that the dismissal was on grounds of age. Although a belief that the Claimant was too old to change his ways could, in an appropriate case, provide some basis for inferring age discrimination, in this case there was no evidence as such to justify that conclusion.

Religious discrimination

Saini v All Saints Haque Centre & ors UKEAT/0227/08/ZT
Regulation 5(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 will be breached not only where an employee is harassed on the grounds that he or she holds certain religious or other relevant beliefs but also where he or she is harassed because someone else holds certain religious or other beliefs.

Eweida v British Airways plc UKEAT/0123/08/LA
The Claimant claimed indirect discrimination on the basis that she was a Christian who was not allowed to wear a small silver cross visible over her uniform due to the Respondent's policy of requiring jewellery to be worn concealed by the uniform. The Claimant accepted that the visible wearing of the cross was a personal decision and not required by scripture or as an article of faith. The Tribunal had held that there was no discrimination because there was no evidence that a group of Christians were put at a particular religious disadvantage when compared with non-Christians. The EAT dismissed the appeal. In order for indirect discrimination to be established under the relevant regulations there must be evidence of group disadvantage and the onus is on the Claimant to prove this. It must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group.

Equal pay

Baxter v Middlesborough Borough Council UKEAT/0282/08/CEA
Documents consisting of or relating to a desktop job evaluation exercise carried out by the Respondent in 2004 were subject to litigation privilege and could be withheld by from disclosure. This was not a case where the documents formed part of a sequence some of which had been disclosed such that it would be unfair for only partial disclosure to be permitted.

McMaster & Ors v Perth &Kinross Council UKEATS/0026/08/MT
The Claimants, who had been home helps, were successful in their applications to become social care officers on a reorganisation of the home care service in 2005. The EAT held they were employed on new contracts after this time, albeit they had not signed any agreement and 80% of the work was the same, and therefore the time limit with respect to equal pay claims in their former jobs ran from that date.

Compensation

Sheffield Forgemasters International Limited v Mr A M Fox UKEAT/0143/08/MAA
In the circumstances the Tribunal had not erred in holding that the Claimants were entitled to be compensated for the earnings which they would have received had they not been unfairly dismissed or discriminated against even though during that period they were also receiving incapacity benefit . The mere fact that an individual has obtained incapacity benefit does not in itself show that he or she might not have been able to do any work and earn money. The Tribunal must consider the relevant work tests and look at the circumstances when deciding whether or not they could have earned any money during the relevant period.

Commissioner of the Inland Revenue v Millar UKEATS/0003/08/MT
In dismissing the appeal from the Tribunal decision that there had been an unfair dismissal and disability discrimination the EAT emphasised that in assessing unfair dismissal compensation the Tribunal must apply a Polkey analysis and assess the likelihood of the Claimant remaining in employment even had proper procedures been complied with. A similar exercise should also be applied when assessing the loss flowing from the disability discrimination.

EMPLOYMENT ACT 2008
The Employment Act 2008, which includes the repeal of the statutory dispute resolution procedures in sections 29 to 33 and Schedules 2 to 4 Employment Act 2002 and s98A Employment Act 1996 was given Royal Assent on 13 November 2006. These provisions are likely to come into effect on 6 April 2009. The Act also includes provisions in relation to the National Minimum Wage and Employment Agencies.


CODE OF PRACTICE

Acas's revised Code of Practice: Disciplinary and Grievance Procedures, taking into account the abolition of the statutory grievance and disciplinary procedures, has been approved by the Secretary of State for Business, Enterprise and Regulatory Reform. It will now be put before Parliament for its approval until which time it will remain a draft on the ACAS site. The Code is due to come into effect on 6 April 2009.


NATIONAL MINIMUM WAGE

The government is consulting on changes to minimum wage rules relating to the treatment of mandatory and non mandatory service charges, tips, gratuities and cover charges in payment of the National Minimum Wage. The consultation closes on 16 February 2009.

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