Here is our latest on-line Employment Law newsletter which will assist in keeping you informed of various current employment issues.
If you wish to discuss any of the items covered or any employment related matter feel free to email us or telephone 01684 850750.
A litigant can sometimes find it difficult to elect the forum in which to issue proceedings. Sometimes it can simply be an issue of cost. Litigating in tribunal is less expensive and the findings of fact will bind a higher court. When deciding whether a stay of tribunal proceedings should be granted where claims are issued on similar facts in more than one court, it will be necessary to consider the balance between duplication of court proceedings and the prejudice which might be caused by a stay. In Chorion plc and others v Lane the High Court held that tribunal proceedings should be stayed where there was sufficient overlap between the tribunal and court proceedings. However, it should be remembered that there is no absolute rule that provides that tribunal proceedings should automatically be stayed.
The litigant, Mr Halstead, in Paymentshield Group Holdings Ltd v Halstead had first issued proceedings in an employment tribunal for unfair dismissal and breach of the Working Time Regulations 1998 in respect of holiday pay. Some two months prior to the hearing, Mr Halstead decided to send a letter before action with attached draft particulars of claim to Paymentshield. When Paymentshield sought a stay of the tribunal proceedings, Mr Halstead at first agreed but then changed his mind, intending to fund the more costly High court proceedings with the compensation he expected to win from his tribunal claims. He applied for reinstatement of the tribunal proceedings and two employment judges at first instance agreed with him, agreeing to lift the stay because no High Court proceedings had been issued.
On appeal however, Mr Halstead was unfortunate enough to come before HHJ McMullen who, some nine months earlier, had held in Mindimaxnox LLP v Gover & Another that where proceedings are so similar a tribunal must try not to embarrass the High Court or ‘place it in a straightjacket’ with factual findings. It is thought to be ‘preferable for the tribunal to have the High Court judgment than for the High Court to have the tribunal’s judgment’. Where there is ‘considerable overlap’ of factual matters, then ‘it seems to me that […] it is appropriate to cede to the High Court’.
It is unsurprising then, given that HHJ McMullen had so recently pronounced on this matter, that he followed his own line of reasoning on appeal. Referring to his earlier decision, he noted that it was already established law that where tribunal proceedings overlapped with High Court proceedings, the tribunal proceedings should be stayed. It followed that where a claim had not been lodged in the High Court but a letter before action had been issued in accordance with a CPR Practice Direction, the principle should be extended to stay the tribunal proceedings. HHJ McMullen noted that this is regarded as an important part of the procedures and ‘an important and established part of the court’s practice’. HHJ McMullen found that when balancing the issue of prejudice it was necessary to pay attention to the triangular interests, the effect of a decision by one court upon another. Any constraint on a High Court judge is a public issue. This must be correct. If findings of fact in a lower court bind a High Court judge he will inevitably be constrained in how he reaches his decision.
HHJ McMullen was very clear that a letter before action formed an important part of the CPR and was quite distinct from a scenario where there was just ‘a glint in the Claimant’s eye that he may seek in another forum from the Employment Tribunal to recover substantial amounts […]’.
Litigants coming up before HHJ McMullen might also do well to note his irritation with the misuse of the term ‘draconian’. So displeased was he that he took the opportunity to berate the judge at first instance for his misquote of the Athenian 7th century scholar and ‘law giver’, Draco. For those unfamiliar with the scribe, his laws were notable for their severity in relation to the triviality of the offence.
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(return to top)One of the most difficult issues a transferee employer has to deal with after the transfer of a business to it is when it can make changes to the terms and conditions of staff in the transferred company. TUPE 2006 makes clear that any purported variation of an employment contract will be void if the sole or principal reason for the variation is the transfer itself or a reason connected with the transfer that is not an "economic, technical or organisational reason" (Regulation 4(4)).
This has led to a great deal of caution exercised by transferee employers and their advisors when intending to implement changes. However, the legislation is quite clear. There is no absolute prohibition on changes to terms and conditions in the context of a TUPE transfer unless such changes are solely or mainly by reason of the transfer, or are for a reason connected with the transfer (which is not an economic, technical or organisational reason). On occasion, it can be said that often the sight of the wood is lost for the trees.
The case of Smith & others v Trustees of Brooklands College illustrates this point succinctly. The claimants worked as teaching and learning assistants at Spelthorne College. They worked for 43 out of 52 weeks a year and the salary paid to them was divided accordingly. The salary treated them as having been employed on a full time contract which was deemed to be a 36 hour week although they worked for less. They were not paid in accordance with union guidance and the system of payment did not correspond to anywhere else in the education sector. Spelthorne College then transferred to Brooklands in 2007 by way of TUPE transfer. As part of a general review on pay, the HR director of the merged colleges, Ms Hopkins, noted the irregular rates of pay of the Spelthorne staff and assumed a mistake had been paid. She negotiated with the staff and finally agreed with them in 2010 that their pay should be reduced in a phased process. The Spelthorne staff promptly brought unlawful deductions from wages claims against Brooklands, arguing that the variation to their contracts was void under regulation 4(4).
The EAT agreed with the tribunal judge that the reason for the variation was Ms Hopkins’ genuine belief that the Spelthorne staff had been incorrectly paid and this rate of pay was out of step with the rest of the sector. This belief was not in connection with the transfer. The fact that the transfer facilitated a review was neither here nor there.
HHJ McMullen referred to his own judgment in London Metropolitan University v Sackur in which he stated ‘the tribunal knew exactly what it was to determine: whether there was a connection; and if the connection was the principal reason between the dismissal and the transfer’.
Clearly, chronology is an issue and where a variation takes place very shortly after the date of transfer it is likely to be much harder to show that such a variation is not in connection with the transfer. However, there is no cut off date, no period in time after which an employee is barred from arguing that a change is connected to a transfer so employers need always be on their guard. That said, the longer the gap in time, the more likely it is that any variation to terms is not connected with an earlier transfer.
In this case, HHJ McMullen noted that the judge had correctly assessed the period of time that had elapsed from the transfer to the variation and what was going on in Ms Hopkins’ mind. Although Ms Hopkins got the premise wrong, her reason for making the change was clear and did not fall within regulation 4(4).
HHJ McMullen noted the ECJ decision in Martin v South Bank University and accepted that where the sole reason to vary terms is in effect a wish to harmonise, regulation 4(4) is engaged, but where the sole or principal reason is not connected with the transfer the variation may take effect. The Acquired Rights Directive is intended to safeguard employees’ rights, not give them additional ones.
The decision in Brooklands is a helpful reminder that the ‘but for’ test (‘but for the transfer, the variation would not have happened’) is not appropriate for the application of regulation 4(4). The proper focus should be on what was the reason for the variation. Here the reason was the (erroneous but genuine) belief that the ‘over payments’ were a mistake.
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(return to top)The EAT has given further helpful guidance on determining whether a variation to terms and conditions after a services transfer pursuant to TUPE 2006 falls within the ambit of Regulation 4(4) and Regulation 7(1) (automatically unfair dismissal for a reason connected with the transfer) of TUPE 2006. The decision in Enterprise Managed Services Ltd v Dance is arguably of greater relevance in today’s work environment than that in Smith v Brooklands (above) since it concerns re-tendering between contracting businesses. However, the EAT in Dance follows the same approach as that in Brooklands (unsurprising since the leading judgment was given by HHJ McMullen in both cases).
In this case, Mr Dance and others were employed by Williams which, along with another contractor, Enterprise, provided services to MHS. From around October 2008 meetings were held between MHS and its contractors emphasising, amongst other concerns, budgeting constraints and the requirement that future services would have to be provided at reduced cost but achieve high service performance. Both Williams and Enterprise depended on MHS for the supply of work. In January 2009 Enterprise reviewed terms and conditions for its workers, introducing performance related pay and different hours. These altered terms were accepted by its staff. Williams made no changes but lost the contract and Mr Dance and others transferred by operation of TUPE to Enterprise in April 2009.
Enterprise made it clear from the outset that it would review the inherited business and consult fully over any changes which, in due course, it did. Mr Dance and 20 colleagues did not agree the changes and they were dismissed.
HHJ McMullen, adopting the same approach as in Brooklands, stated that the real issue was whether the dismissals were connected with the transfer. Overturning the tribunal’s majority decision, he agreed with the dissenting employment judge and Enterprise that the change that Enterprise had introduced was driven by the need for productivity, that the changes were necessary before the transfer and were not connected with it. Harmonisation was driven by the success of the productivity changes that pre-dated the transfer. HHJ McMullen stated ‘it seems to us that since it is open to an employer to effect productivity changes in accordance with the ordinary law, this does not become unlawful when there has been a relevant transfer if the reason is connected to that drive for productivity changes’. The EAT remitted the case to a differently constituted tribunal for consideration.
This is of course a very welcome decision for employers engaged in tendering processes. However, it is unlikely that it will always be clear where changes are driven by a need to harmonise in itself or for a reason (such as productivity) which is not connected with the transfer. This decision does not give a green light to contractors to change terms and simply claim these changes were made for productivity/ economic reasons. However if there is a link to earlier reorganisation to streamline the business and make it more effective, it is likely that this decision can be relied on.
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(return to top)Along comes another case to add to the long list of claims against hospital trusts concerning alleged flaws in the disciplinary process. Trusts have very detailed contractual disciplinary procedures, complicated by reviews and the introduction of new and often overlapping procedures consequent to Directions issued by the Secretary of State which have led to a plethora of claims of failure to comply with contractual terms, express or implied. These cases have often assisted more generally in the clarification of tricky legal questions (such as the right to legal representation at disciplinary hearings under human rights legislation).
In Lim v Royal Wolverhampton Hospitals NHS Trust the High Court was asked to consider whether Mr Lim (a consultant anaesthetist) should be granted an injunction preventing a capability hearing from proceeding until an assessment panel of the National Clinical Assessment Service (NCAS) had made a determination as to his performance. The court was asked to determine two questions:
With regard to the first allegation, Slade J ruled that the procedural rules required a reference to the NCAS for it to consider whether an assessment should be carried out and the advice of the assessment panel that no action plan for improvement would have a realistic chance of success before the case manager may decide whether to proceed to a capability hearing. It followed that if a capability hearing were to proceed without such a referral the Trust would be in breach of contract.
With regard to (2), Slade J ruled that even if the wording in the relevant documentation that there should be speedy and fair processes were to be regarded as contractual, the effect of such provisions should depend on the circumstances. The decision in Royal Society for the Prevention of Cruelty to Animals v Crudden could not be relied upon as establishing a rule that delay in disciplinary proceedings necessarily leads to a finding of unfairness in unfair dismissal proceedings. Each case is fact sensitive. So, too, is the application of implied terms to act fairly and without undue delay. On the facts in this case, Mr Lim had been aware of the misconduct allegations and that they had not been dropped. It was simply that other issues had supervened.
Whilst clearly the Trust’s obligation to follow NHS procedures was key to this case, the decision does have wider significance. Where new procedures are introduced it must be made clear that these supersede earlier procedures which should be unequivocally withdrawn to avoid the confusion which may arise where various disciplinary procedures apply. More pertinently in the private sector, it underlines the importance of ensuring that procedures are kept straightforward and non contractual with the right to skip stages. Binding the employer to a contractual policy will tie their hands and lead to the possibility, as in this case, that an employee applies for an injunction preventing an employer proceeding with, say, dismissal or disciplinary proceedings until it has complied with its own contractual processes.
Also noteworthy is the fact that delay in progressing old allegations is not necessarily fatal and is always fact sensitive. In this case the three year old allegations had simply been kept live while other events (the more serious allegation of inappropriate behaviour) had intervened.
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(return to top)The vexed question of what constitutes a ‘reasonable adjustment’ and whether cost can be a factor in the equation has long been a problem for employers when dealing with disabled employees and job applicants. The Equality Act 2010 largely replicates the provisions on ‘reasonable adjustments’ which were previously contained in the Disability Discrimination Act 1995 (DDA). The problem for employers is that the test of reasonableness is objective and is to be determined by a tribunal. Some guidance is provided in the EHRC Employment Statutory Code of Practice (previously contained in the DDA) which sets out a list of factors to be taken into account. However, case law has proved to be helpful to employers in setting out some of the parameters of what may be considered to be reasonable adjustments.
The EAT has now upheld the tribunal decision in Cordell v Foreign & Commonwealth Office which considered the question of to what extent cost can be a factor in the ‘reasonable adjustments’ equation and has helpfully laid down some further guidelines.
Ms Cordell is profoundly deaf and is employed by the Foreign & Commonwealth Office (FCO). When working in London and Warsaw she was provided by the FCO with the support of professional ‘lipspeakers’. She was a very high performer and was invited to work in Kazakhstan, subject to formal procedures which included an assessment of whether and at what cost arrangements could be made to accommodate her disability. At this stage, the FCO realised that the cost of support would be around £250,000 a year, more than five times Ms Cordell’s salary and more than the entire annual cost of employing local staff at the Kazakhstan embassy. It is fair to say that the FCO must have been faced with an uncomfortable conflict of moral decisions. It referred to its ‘Reasonable Adjustments Policy’ under which ‘costly adjustments’ are subject to a specific procedure for assessing reasonableness. This assessment is only made after the offer of a particular post has been made.
The FCO, having applied the policy, decided that the cost was too great and withdrew Ms Cordell’s job offer, resulting in her bringing claims for direct discrimination, disability related discrimination (now replaced in the Equality Act by indirect discrimination and discrimination arising from a disability) and the failure to make reasonable adjustments. The EAT upheld the tribunal’s decision that there was no direct discrimination. It also agreed that the adjustments were not reasonable by reason of excessive cost. Mrs Justice Slade noted, with sympathy expressed to Ms Cordell, ‘there is no objective measure that can be used to balance what are in truth two completely different kinds of consideration – on the one hand, the disadvantage to the employee if the adjustments are not made and, on the other, the cost of making them. The Act requires tribunals to make a judgment, ultimately, on the basis of what they might consider right and just in their capacity as […] and industrial jury’. She went on to say ‘that is not that tribunals should simply stick a finger in the air’. The judgment of what level of cost is reasonable to expect an employer to bear can be informed by a variety of considerations, including
Such considerations are only suggestive or supportive of a position on cost and there is no objective measure for calibrating the value of one kind of expenditure against another.
As Mrs Justice Slade noted ‘the law does not require it to compensate […] misfortune at whatever cost’. The tribunal had approached the issue correctly and it had not been improper for it to take into account comparisons with other costs. This is a useful appellate decision for employers as it offers some guidance on what factors to be considered when weighing up the question of the cost of reasonable adjustments. However, since tribunals are given a large of discretion in determining what is ‘reasonable’ and that they should do what is ‘right and just’ it is likely that future decisions will be hard to overturn on appeal.
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(return to top)Employers have been waiting to see whether the application of the provisions of the Bribery Act 2010 will impact upon the way in which they conduct business, most particularly in respect of corporate hospitality and overseas transactions where it is often considered essential to "smooth the way" in order to do business. The Act has a broad jurisdictional reach as it covers acts which take place outside the UK if the individual or company have a close connection with the UK.
It may then perhaps come as a small relief that the first prosecution under the Act is in connection with conduct that most of us would consider to be inappropriate, even immoral. Mr Munir Patel, a former magistrates’ court clerk, was filmed accepting a £500 ‘bung’ to ensure details of a traffic offence were not entered onto the court’s database. Mr Patel was prosecuted under section 2(1) of the Act which provides that there will be an offence if a person requests, agrees to receive, or accept a financial or other advantage intending that a relevant function or activity should be performed improperly. Mr Patel pleaded guilty and will be sentenced in November.
It therefore remains difficult to predict the line that the CPS will adopt with regard to less obviously heinous breaches of the Act, particularly those carried out in the more regular course of business, such as lavish client entertainment. However, it has set out what the public can expect from the CPS in the Core Quality Standards document published in March 2010.
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(return to top)More confusion on the correct causation test in whistleblowing cases as the Court of Appeal controversially overturns the EAT decision in NHS Manchester v Fecitt. The Court of Appeal has held that section 47B of the Employment Rights Act 1996 (protection from detriment on the ground of a protected disclosure) is infringed if a protected disclosure materially (ie more than trivially) influences an employer’s treatment of an employee who has made a whistle-blowing allegation. It also held that an employer cannot be made vicariously liable under the whistle-blowing legislation for such actions of its employees as one might otherwise argue amount to victimisation. This is because an employer can only be held vicariously liable for the legal wrongs of its employees (see the House of Lords decision in Majrowski v Guys and St Thomas’ NHS Trust). In contrast to discrimination legislation, there is no clear statutory provision which makes it illegal to victimise employees who make protected disclosures.
Revisiting briefly the facts of this case, it concerned three nurses who worked for NHS Manchester and who, in various capacities, raised concerns about the qualifications of a colleague. An investigation disclosed no major concerns but the three nurses did not let the matter drop and caused general dissent among the staff working with them. As a result of what then became a ‘dysfunctional’ working atmosphere, one claimant had her managerial responsibilities removed, one was redeployed and the other, a bank nurse, was given no further work. They brought claims that they had been subjected to a detriment under s47B ERA. Manchester’s response was that the reason for its actions was that it was the ‘only feasible method’ to deal with the dysfunctional working conditions created by the three nurses.
From a layperson’s viewpoint, it can be seen that there was a clear connection between the whistle-blowing and the steps taken by management to deal with the situation which arose in the department. The question at issue however was to what extent did the whistle-blowing allegation itself play a part in that decision? The EAT had adopted the test in discrimination law set out in Igen v Wong (a race discrimination case) that the detrimental treatment must be ‘in no sense whatsoever’ because of a protected characteristic or protected act. This was the requirement imposed by EU law in the Burden of Proof Directive. It disagreed with the test in London Borough of Harrow v Knight and Aspinall v MSI Mech Forge Ltd that the protected disclosure must be the real or core reason for the detrimental treatment.
The Court of Appeal disagreed with the EAT and allowed Manchester’s appeal. In the EAT HHJ Serota had ruled that ‘once less favourable treatment amounting to a detriment has been shown to have occurred following a protected act the employer’s liability […] is to show the ground on which any act or deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment’. This is perhaps not quite the same thing as the test described in the previous paragraph - in any event Elias LJ ruled that the correct test should be that "section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistle-blower."
In any event, the tribunal had been satisfied that the reasons given by Manchester for acting as it did were genuine and demonstrated that the fact that the claimants had made protected disclosures did not influence those decisions. Elias LJ agreed with HHJ Serota's view that ‘once an employer satisfies the Tribunal that he has acted for a particular reason – here, to remedy a dysfunctional situation – that necessarily discharges the burden of showing that the proscribed reason played no part in it’.
Notably, in this case, Public Concern at Work (PCAW) intervened to make submissions on the causation test in order to ensure there was effective protection for whistle-blowers and that the public interest objectives of the whistle-blowing legislation were not watered down by the Court of Appeal. Their submissions were rejected by the Court of Appeal and Elias LJ ruled that their call for words to be added to section 47B ERA went far beyond the legitimate role of the court in construing legislation. Needless to say PCAW were unhappy with the outcome and have called for interested parties to ask the Government to revisit this issue and to provide for greater legal protection for whistle-blowers.
This decision comes at a time when the NHS has announced changes to its constitution (welcomed by PCAW) to be effected in early 2012 aimed at affording greater protection to health staff who raise concerns about patient care. These changes include an expectation that staff should raise concerns at the earliest opportunity, a pledge to support staff and ensuring concerns are fully investigated and adding clarity to the legal protection afforded to staff who raise concerns. PCAW has stated that the proposed changes ‘seem to be a genuine attempt to strike the right balance between supporting individuals who speak up and the responsibilities of organisations’.
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(return to top)A helpful case for employers, but one that should be treated with caution, deals with the issue of whether a dismissal which is purportedly for misconduct can be found to be fair even if the tribunal holds it is for capability and conduct (both potentially fair reasons for dismissal under section 98(2) Employment Rights Act 1996).
It is a common problem for employers whether, faced with an employee’s incompetence or negligence, they should opt for a capability or conduct procedure and/or dismissal. Often, the behaviour in question overlaps both conduct and behaviour. The soundest advice is to cover both bases although, of course, in the case of a capability dismissal it is expected that a different kind of procedure with different expectations and support will be followed. An early EAT decision in Hotson v Wisbech Conservative Club made clear that an employer is not tied to the label he happens to put on particular facts, nor is he prevented from running the two as alternatives. However, it is clearly wise to ensure that both capability and conduct are considered at an early stage to ensure that no argument can be progressed that prejudice has been caused to an employee.
In Screene v Seatwave Ltd, Seatwave was the victim of a large scale fraud and Mr Screene was the unfortunate financial controller who failed to detect the fraudulent transactions. Mr Screene was called to a disciplinary hearing to consider three allegations, the central one being that he ‘failed to identify or address large amounts of cash leaving the German bank account totalling to roughly E1.7m within several weeks’. The next day Seatwave wrote to Mr Screene ‘to confirm the decision to summarily dismiss you on the grounds of Gross Misconduct’. The letter continued: ‘you have been negligent in the completion of your duties as follows […] an absolute failure to complete non UK bank reconciliations leading to significant financial losses for the company’. It concluded: ‘your serious negligence in the performance of your duties […] clearly justifies Summary Dismissal’.
Mr Screene brought unfair dismissal proceedings. In its ET3 Seatwave contended that Mr Screene ‘was dismissed fairly in accordance with section 92(a) Employment Rights Act 1996 on the grounds of capability’. The tribunal found that there had been a fair dismissal and that ‘the dismissal was due to both capability and conduct’. Mr Screene appealed, contending that given that Seatwave had asserted that the reason for dismissal was ‘capability’, the tribunal should not have found the dismissal to be fair on the basis of misconduct. In effect, the tribunal was substituting its own reason.
The EAT, relying on Hotson and also Sutton & Gates (Luton) Ltd v Boxall, found that the decision to dismiss, whether it was for conduct or capability, was grounded on the same set of facts, namely failure by Mr Screene to monitor the German bank account, with the result that a substantial fraud went undetected. There had been some shifting in the label but Seatwave had made clear, in its dismissal letter to Mr Screene, that it was relying on his misconduct. He had suffered no prejudice. Indeed, the tribunal had said: ‘[Mr Screene] did know clearly of the case against him in respect of the main allegation and the possible consequences and accepted this in evidence’.
Of course, this case turns on its facts and the employer did make clear in its letter calling Mr Screene to a hearing, and in its dismissal letter, the precise charge against him. It would have been hard for him to argue that he had been prejudiced by being constrained to answer the wrong charge. Other cases may not be quite so clear cut, however, and it remains good advice to ensure that both capability and conduct are covered where the behaviour in question straddles the two.
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(return to top)There seems to be a never ending stream of cases in tribunal at present deciding whether claims for discriminatory treatment on the ground of philosophical belief should proceed. In our October 2011 newsletter we examined some of the recent case law on the ever shifting limits of what may qualify as a philosophical belief. A Watford employment tribunal has now very lightly put the brakes on.
In Lisk v Shield Guardian Co Ltd, the subject matter was a topical one. Mr Lisk, an ex serviceman, objected when he was asked by his employer, Shield Guardian, to remove his poppy at work and he submitted claims for direct discrimination and harassment on the protected ground of philosophical belief. A pre hearing review was listed to determine whether the ‘poppy incident’ claim should proceed.
Mr Lisk’s argument was that ‘we should pay our respects to those who have given our lives for us by wearing a poppy from All Souls’ Day on 2 November to Remembrance Sunday’. Noble sentiments, but did this qualify as a belief according to the guidelines set out in Grainger Plc v Nicholson? The tribunal judge had no doubt that Mr Lisk presented as a serious minded individual and that he believed he was entitled to wear a poppy and took the wearing of that emblem very seriously. However he took note of Mr Justice Burton’s comments in Grainger that ‘I do not doubt at all that there must be some limit placed upon the definition of philosophical belief for the purposes of the [then] regulations’ when setting out his guidelines.
The tribunal judge noted that it was not a question of whether Mr Lisk’s actions lacked seriousness (which he accepted they did) but a question of the nature of the belief underpinning the wearing of his poppy. This, however admirable, could not be described as a philosophical belief because it lacked the characteristics of cogency, cohesion and importance that were required in Grainger. It could not fairly be described as being a belief as to a weighty and substantial aspect of human life and behaviour.
This decision does pull back a little on some of the more headline-grabbing cases where philosophical belief claims have been allowed to proceed. However it does not really give any further clear guidance to employers as to where the line should be drawn. I suspect the stream of philosophical belief cases will continue to flow.
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