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Employment case law update: February 2013

R (on the application of T) (Appellant) v (1) Chief Constable Of Greater Manchester (2) Secretary Of State For The Home Department (3) Secretary Of State For Justice (Respondents) & (1) Liberty (2) Equality And Human Rights Commission (Interveners) [2013] EWCA Civ 25, 29 January 2013

T and W sought to appeal rulings justifying statutory schemes permitting the disclosure of cautions and other offences to potential employers. At the age of 11, T had received two warnings from the police in connection with stolen bicycles. At the age of 17, those warnings were revealed by an enhanced criminal record certificate (ECRC) when he applied for a job and again two years later when he applied for a university course. At the age of 16, W had received concurrent sentences of five years and four years detention respectively for offences of manslaughter and robbery. As she wanted to serve in the army, she sought judicial review of the statutory scheme on the basis that it prevented her convictions from ever being regarded as spent and was therefore incompatible with art 8.

The Court of Appeal held that neither the disclosure provisions of the Police Act 1997 nor the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 were compatible with the European Convention on Human Rights 1950 art 8, as they imposed a blanket statutory regime requiring disclosure of cautions held on the police national computer which was disproportionate and went beyond the legitimate aims of protecting employers and vulnerable individuals. In T's case, the disclosure of the warning on an ECRC interfered with his art 8(1) rights because it involved the disclosure of sensitive personal information which was an aspect of his private life and because that disclosure was liable to affect his ability to obtain employment and to form relationships with others. The requirement for disclosure of all convictions and cautions relating to recordable offences was disproportionate. However, at paragraph 73, it was held that Parliament was entitled to take the view that some offences were so serious that they should never be regarded as "spent". That was not a blanket policy: it discriminated between offences which were very serious and those which were not. On that basis, W's application was refused.

There are two recent cases on contracts of employment of interest:

Societe Generale London Branch v Geys [2012] UKSC 63, 19 December 2012

The Supreme Court considered the question whether a repudiation of a contract of employment by the employer which took the form of an express and immediate dismissal automatically terminated the contract, or whether the normal contractual rule that the repudiation had to be accepted by the other party applied equally to that situation. The Supreme Court confirmed the principle that a party's repudiation of a contract of employment did not automatically terminate the contract. The contract would only be terminated if and when the other party elected to accept the repudiation.

West London Mental Health Trust v Chhabra [2013] EWCA Civ 11, 25 January 2013

The Court of Appeal held that an NHS trust had been entitled to treat admitted breaches by a doctor of patient confidentiality resulting from reading notes and discussing patients whilst on public transport as gross misconduct and to refer the matter for a disciplinary hearing. The doctor could not insist on the issue being dealt with under the trust's "fair blame" procedure, because although that provided an alternative way of dealing with mistakes that had been openly acknowledged by the perpetrator, it had never been intended as a means of weakening accountability for serious offences, of which breach of confidentiality was one.

Three recent cases on employment status are of note:

Hudson v Department for Work and Pensions [2012] EWCA Civ 1416 , 7 November 2012

H had worked for the Department under a series of successive fixed-term contracts. The first, a one-year contract, ran from April 2006 and had been offered pursuant to a Government training scheme. That contract was extended twice, first in April 2007 and then again in April 2009. In October 2009, H applied for, and secured in open competition, another post within the Department on an 18-month fixed-term contract. In April 2010, when she had worked for the Department for four continuous years, she sought confirmation that, pursuant to reg 8 of the Regulations, she had become a permanent employee. The Court of Appeal held that the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 reg 18 excluded from the scope of reg 8 any period of employment under a fixed-term contract awarded under a Government training scheme, regardless of when the scheme began or ended. Thus, an employee could not count such periods when calculating the length of his continuous employment for the purposes of reg 8.

X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59, 12 December 2012

The Supreme Court ruled that the activities of a volunteer advice-worker did not constitute an "occupation" for the purposes of Directive 2000/78 art 3(1)(a). Such a volunteer thus fell outside the scope of the disability discrimination protection provided by the Directive and by the Disability Discrimination Act 1995.

Quashie v Stringfellow Restaurants Ltd [2012] EWCA Civ 1735; 21 December 2012

The Court of Appeal held that the nature of the contractual obligations between a nightclub and a lap dancer, who worked for the club on a rota basis, were not such as to render it a contract of employment. It was properly inferred from the evidence that the club was under no obligation to pay the lap dancer, that the lap dancer negotiated her own fees with clients, took the risk that she might be out of pocket, received back from the club only monies received from clients after deductions, had received no sick or holiday pay and had accepted that she was self-employed by conducting her affairs on that basis.

O’Brien v Ministry of Justice [2013] UKSC 6

The appellant, Mr O’Brien, a retired barrister who also had sat as a recorder, challenged his lack of entitlement to a judicial pension. The Ministry of Justice had maintained that he was an “office holder” rather than a “worker” under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. In 2010 the Supreme Court referred the matter to the CJEU as domestic law could not be readily disentangled from EU law on the issue. The CJEU’s preliminary ruling stated that it was for the Supreme Court to decide on the worker issue, and provided guidance for the Court to follow.

The Supreme Court unanimously allowed the appeal. The CJEU’s preliminary ruling had clarified that the term “worker” in the Framework Agreement was used to draw a distinction from the self-employed; and it was held that the work a recorder undertakes is of a different character to that of a self-employed person, no self-employed person would subject themselves to the rules for appointment and removal of recorders, and the way recorders work is organised for them is in common with all other part-time judges. In relation to the objective justification issue, the Court held that the aims of the Ministry of Justice amounted to nothing more than blanket discrimination and the policy could not be objectively justified.

Turner v East Midlands Trains [2012] EWCA Civ 1470, 16 November 2012 is a recent decision on unfair dismissal.

T had worked for E and its predecessors for 12 years as a train conductor. Conductors were issued with ticket machines. The machines sometimes produced faulty tickets which could not be sold to customers. Conductors were obliged to return such tickets at the end of their shift. Statistics showed that during a 36-week period T had issued 132 faulty tickets; other conductors had issued 20 or less. T argued that her dismissal had damaged her reputation and breached Article 8 ECHR.

The Court of Appeal held at paragraphs 52 to 56 that the band of reasonable responses test provided a sufficiently robust, flexible and objective analysis of all aspects of a dismissal decision to ensure compliance with the procedural safeguards required by the European Convention on Human Rights 1950 art 8.

The band of reasonable responses test did not simply apply to the question of whether the sanction of dismissal was permissible: it applied to all aspects of the dismissal process, including whether the procedures adopted by the employer were adequate. If dismissal for misconduct damaged the employee's opportunity to take up further employment in the same field, or involved an allegation of immoral or criminal conduct, then a reasonable employer should have regard to the gravity of those matters when determining the nature and scope of the appropriate investigation.

Hunter v McCarrick [2012] EWCA Civ 1399, 30 October 2012  is a recent transfer of undertakings case of note.

The Court of Appeal held that the Transfer of Undertakings (Protection of Employment) Regulations 2006 reg 3(1)(b) was to be construed on a straightforward and common sense application of the statutory language. So construed, it meant that in order for a service provision change to take place, the activities carried out before and after the transfer had to be carried out for the same client.

The Court considered the working time provision in Williams v British Airways plc [2012] UKSC 43, 17 October 2012.

W was a pilot employed by BA. According to their terms of employment, pilots received a fixed annual sum by way of remuneration plus a Flying Pay Supplement (FPS) and a Time Away from Base allowance (TAFB). The purpose of the TAFB was to replace meal allowances and other sundry expenses. The FPS and the TAFB varied according to the time spent flying.

Pilots were required to take paid annual leave under the Regulations, which implemented Directive 2000/79 (the Aviation Directive). The payment to be made in respect of annual leave was based on the fixed annual sum only and did not take account of the two supplementary payments.

Before an employment tribunal, W established that she was entitled to FPS and TAFB as well as the fixed annual sum as part of her paid annual leave. The Supreme Court referred questions as to the interpretation of annual leave to the ECJ, who ruled that, under Directive 2003/88 (the Working Time Directive) art 7 and clause 3 of the European Agreement annexed to the Aviation Directive, a pilot was entitled, during his annual leave, not only to his basic salary, but also to (i) all the components intrinsically linked to the performance of his employment contract which were included in his remuneration; and (ii) all the elements relating to his personal and professional status as an airline pilot. It was for the national court to assess into which of those categories any payment fell, based on "an average over a reference period" which was "judged to be representative".

The Supreme Court held that it was for the employer to choose, within reasonable parameters, a representative reference period for the assessment of a worker's total remuneration in order to determine his paid annual leave for the purposes of the Civil Aviation (Working Time) Regulations 2004 reg 4.

Failing such a choice, the employer could not complain if a court or tribunal took its own view of what was a representative period in the case of an individual employee.

There have been two recent cases of interest on equal pay:

The Supreme Court held in Birmingham City Council v Abdulla [2012] UKSC 47, 24 October 2012 that the High Court would not be required, under the Equal Pay Act 1970 s 2(3), to strike out a claim in respect of the operation of an equality clause if the claimant failed to provide a reasonable explanation for her failure to present her claim in time to the employment tribunal. For the purpose of s 2(3), a claim in respect of the operation of an equality clause could never "more conveniently be disposed of" by the tribunal if it would there be time-barred.

Haq v Audit Commission [2012] EWCA Civ 1621, 6 December 2012

The Court of Appeal held that the Employment Appeal Tribunal had been wrong to overturn an employment tribunal's decision that significant pay disparities between male and female employees resulting from the employer's application of a pay protection policy upon a re-structuring exercise amounted to a prima facie case of indirect discrimination. However, the EAT had been entitled to substitute its own decision that the pay protection policy had a legitimate aim because the tribunal had directed itself incorrectly in that respect.

Charles v Kuehne & Nagel, Appeal No. UKEAT/0363/12/SM,17 October 2012 is a recent decision on disability discrimination and late amendments of claim .

C brought a claim for unfair dismissal and the particulars set out allegations that he had been unfairly selected for redundancy and that he had been directly discriminated against because of his disability. The tribunal allowed his claim to be amended to include only those particulars that sought to clarify C's claims for unfair dismissal and direct discrimination, but refused to allow those relating to N failing to make reasonable adjustments, harassment, and indirect discrimination. The EAT held that it was not appropriate to allow an employee who had been made redundant to amend the particulars of his claim for unfair dismissal in circumstances where the proposed amendments raised fresh allegations with no causal link to his selection for redundancy and were made out of time. The fact the claim related to disability discrimination was not reason in itself to permit the fresh claim to be made out of time.

Finally, there have been four recent decision on race discrimination:

Pasab Ltd t/a Jhoots Pharmacy v Woods [2012] EWCA Civ 1578, 24 October 2012.

W, who was a white Irish Muslim, worked as a trainee pharmacist for P. She was told at a meeting of the possibility of disciplinary action and W allegedly stated that P was "a little Sikh club which only looked after Sikhs". She was dismissed for poor timekeeping and a failure to follow procedures. The CA held that the Employment Appeal Tribunal had been correct to dismiss a complaint of victimisation where it was found that the reason for dismissal was not that the employee had done a protected act but that the employer had characterised a comment by the employee as racist.

Okoro v Taylor Woodrow Construction [2012] EWCA Civ 1590, 4 December 2012.

The Court of Appeal held that an employer's ban on a certain group of agency workers being engaged on its site was a one-off act which was "the act complained of" for the purposes of the Race Relations Act 1976 s 68(1). It terminated the relationship between the employer and the contract workers, and a complaint brought more than three months after the imposition of the ban was therefore out of time.

Bijlani v Stewart, Fenwick, Powell and Wiseman [2012] UKEAT/0228/11/RN, 20 December 2012

B, a barrister considered that her practice had not flourished as she had been subjected to direct discrimination, victimisation and harassment contrary to the Race Relations Act 1976 and the Disability Discrimination Act 1995, and she brought claims consisting of 32 complaints.

Complaint 8 concerned the alleged failure to prevent, abate or condemn the racist conduct of three clerks in chambers in 2000 and against one of the clerks in separate incidents in 2004 and 2006. The tribunal held in relation to that complaint, that for there to have been a detriment under the 1976 Act, there had to be some factor operating on the mind of the decision-maker, whether consciously or unconsciously, which related to the person alleging the detriment, or at least a specific defined group of which she was a member. That feature was absent in B's case and therefore, none of the decisions relating to the handling of those episodes constituted detrimental treatment of B.

It held that the decision not to dismiss the clerks was not taken on grounds of race. Complaint 9 alleged a failure to provide equal opportunities training for the clerks from the outset of their employment onwards, to monitor their conduct and performance or to appoint an equal opportunities officer and or committee in chambers. The tribunal found that although management over the period in question fell short of best practice the explanation for the way in which those matters was handled overall was not in any sense targeted at B or black and ethnic minority members and did not include any element of detrimental treatment of B on grounds of race.

Complaint 10 concerned the appointment of the three clerks as B's clerks. The tribunal held that that there was no basis to conclude that B was consciously or unconsciously, given any of those clerks as an act of detrimental treatment on grounds of race, related to a disability or by way of victimisation. The tribunal dismissed all the complaints. Permission to appeal was granted only in relation to complaints 8, 9 and10. The EAT held that an Employment Tribunal had not erred in dismissing complaints of race discrimination by a barrister against successive heads of chambers and a senior clerk at chambers where she was a tenant and in holding that the actions complained of were not taken on the grounds of race.

Hackney London Borough Council v Natasha Sivanandan & Ors [2013] EWCA Civ 22

S had applied for two posts with a body (H) which had been set up by the local authority and the Commission for Racial Equality. The interview panels consisted of members of H's executive committee and an employee (W) of the local authority. S had previously been a member of H's executive committee and had successfully brought proceedings against it for racial discrimination. When she was not selected for either post, she brought victimisation claims against H's director and the panel members as primary discriminators, and against H, its executive committee and the local authority as being vicariously liable for the primary discriminators. The Court of Appeal held that an employment tribunal's decision not to apportion the compensation payable between the parties was legally correct, although for the reason that the tribunal had no power in law to make an apportionment rather than because there was no case for apportionment on the instant facts (see paras 81-84, 88-89, 101 of judgment).