Stop press provides up-to-the-minute news on key cases that have not yet been reported elsewhere on XpertHR. Click a case title to go straight to a case or scroll down the page to view the full list.

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Decisions
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Decisions:
Step in Time Ltd v (1) Fox and (2) Hunter
Date added: 19 November 2008 Tribunal/court: EAT Status: appeal dismissed in part
Topics: tribunal claim | previous claim form | whether grievance raised
The Employment Appeal Tribunal has held that an employment tribunal was wrong to rely on previously submitted tribunal claim forms as statements of grievance, when deciding whether or not it had jurisdiction to hear constructive dismissal claims.

Blackburn and another v Chief Constable of West Midlands Police
Date added: 12 November 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: equal pay | like work | justification
The Court of Appeal has held that paying bonuses to employees who worked night shifts did not constitute sex discrimination.

European Credit Management Ltd v Hosso
Date added: 12 November 2008 Tribunal/court: EAT Status: appeal allowed
Topics: modified grievance procedure | compliance with step one
The Employment Appeal Tribunal has held that an employee who raised a grievance about her "pay" did not satisfy step one of the modified grievance procedure in relation to a complaint about her level of bonus payment.

Live Nation (Venues) UK Ltd v Hussain and other appeals
Date added: 31 October 2008 Tribunal/court: EAT Status: appeal allowed
Topics: age discrimination | dismissal | ageist attitudes
The Employment Appeal Tribunal has held that a 55 year old was not discriminated against when his employer dismissed him for displaying ageist attitudes towards two younger managers.

Ali v Birmingham City Council
Date added: 31 October 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: unfair dismissal | unequivocal resignation | later withdrawal of resignation
The Employment Appeal Tribunal has held that an employee's unambiguous resignation will be found not to be effective only in exceptional circumstances.

Chief Constable of West Yorkshire Police v Homer
Date added: 29 October 2008 Tribunal/court: EAT Status: appeal allowed
Topics: age discrimination | promotion | degree requirement
The Employment Appeal Tribunal has overturned an employment tribunal decision that an employer discriminated against an employee who was close to retirement when it required him to complete a law degree before he could be promoted.

Chagger v Abbey National plc and another
Date added: 24 October 2008 Tribunal/court: EAT Status: appeal allowed
Topics: race discrimination | burden of proof | colour
The Employment Appeal Tribunal has held that the reverse burden of proof does apply to claims of discrimination on the grounds of colour under the race discrimination legislation.

Dickins v O2 Plc
Date added: 22 October 2008 Tribunal/court: Court of Appeal Status: appeal dismissed
Topics: stress | employer negligence | damages
The Court of Appeal has upheld a county court decision to award damages for psychiatric injury due to excessive work-related stress.

Svenska Staten Genom Tillsynsmyndigheten I Konkurser v Holmqvist
Date added: 21 October 2008 Tribunal/court: ECJ Status: ECJ judgment
Topics: Insolvency Directive | activities in another member state
The European Court of Justice has held that, for the purposes of the Insolvency Directive (80/987/EC), an undertaking from one member state can be regarded as having activities in another member state if it has a stable economic presence there. It does not need to have a branch or fixed establishment in that member state.

Community Integrated Care Ltd v Smith
Date added: 16 October 2008 Tribunal/court: EAT Status: appeal allowed
Topics: unfair dismissal | investigation | admission of wrongdoing
The Employment Appeal Tribunal has held that an employee's admission of gross misconduct limited the need for a detailed investigation by her employer prior to dismissal.

Adey-Jones v O’Dowd
Date added: 9 September 2008 Tribunal/court: EAT Status: appeal allowed
Topics: unfair dismissal | compensatory award | loss of earnings
The Employment Appeal Tribunal has considered the approach tribunals should take when calculating loss of earnings in unfair dismissal cases.

Maley v Royal Mail Group Ltd
Date added: 4 September 2008 Tribunal/court: EAT Status: appeal allowed
Topics: statutory grievance procedures | disability discrimination | dismissal
The Employment Appeal Tribunal has stressed that the statutory grievance procedures do not apply in cases where the dispute results in the employee's dismissal.

Hart v Chief Constable of Derbyshire Constabulary
Date added: 13 August 2008 Tribunal/court: Court of Appeal Status: application refused
Topics: disability discrimination | duty to make reasonable adjustments
The Court of Appeal has refused leave to appeal against an Employment Appeal Tribunal decision that the duty to make reasonable adjustments for the disabled does not require employers to dilute the standards that have to be met before an individual can do a job.

Beck v London Borough of Camden and another
Date added: 23 July 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: employment status | agency worker
The Employment Appeal Tribunal, applying the Court of Appeal decision in James v London Borough of Greenwich, has held that an agency worker was not an employee of an end user.

Burrow Down Support Services Ltd v Rossiter
Date added: 17 July 2008 Tribunal/court: EAT Status: appeal dismissed
Topics: national minimum wage | time work | time sleeping
The Employment Appeal Tribunal has upheld an employment tribunal decision that an employee who was allowed to sleep for much of his shift, but had to deal with anything untoward that might arise, was entitled to be paid the national minimum wage for the whole shift.

Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn
Date added: 17 July 2008 Tribunal/court: ECJ Status: ECJ judgment
Topics: race discrimination | recruitment | public statement
The European Court of Justice has held that an employer's public statement of a discriminatory recruitment policy is direct discrimination contrary to the Race Directive (2000/43/EC).

HM Prison Service and others v Ibimidun; Ibimidun v HM Prison Service and others
Date added: 10 July 2008 Tribunal/court: EAT Status: appeal allowed
Topics: race discrimination | victimisation | unfair dismissal
The Employment Appeal Tribunal has held that an employee who was dismissed when he brought tribunal proceedings in order to harass his employer, rather than to receive compensation, was not protected by the victimisation provisions of the Race Relations Act 1976.

Decisions

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Step in Time Ltd v (1) Fox and (2) Hunter EATS/0031/08

tribunal claim | previous claim form | whether grievance raised

The Employment Appeal Tribunal (EAT) has held that an employment tribunal was wrong to rely on previously submitted tribunal claim forms as statements of grievance, when deciding whether or not it had jurisdiction to hear constructive dismissal claims.

Mrs Hunter and Mrs Fox wrote letters to their employer raising a number of concerns. Grievance hearings took place. They both brought claims in the employment tribunal for unlawful deductions from wages. Mrs Fox also complained that she had been victimised, harassed and bullied and that her hours had been cut. Mrs Hunter subsequently raised a complaint of victimisation, and an issue about sick pay, with the employer. She resigned and brought another tribunal claim, this time for unfair constructive dismissal. Mrs Fox also resigned and lodged a second claim, for unfair constructive dismissal, reproducing the allegations relating to victimisation made in her first claim. The employment tribunal held that it had jurisdiction to hear the claims for unfair constructive dismissal. It held that the employees had raised the issues in the first claim forms, thereby complying with stage one of the statutory grievance procedure, as necessary for the claims to be heard. The employer appealed.

Referring to Gibbs t/a Jarlands Financial Services v Harris EAT/0023/07, the EAT agreed with the employer that the employment tribunal had erred in relying on the earlier claim forms as relevant statements of grievance. However, the EAT rejected other arguments put forward by the employer. The employer argued that, as neither employee had stated that she was leaving in response to her complaint before submitting a resignation letter, the claims lodged had not been properly foreshadowed in the earlier grievance. This was rejected on the grounds that an employee's resignation is not part of the grievance but is his or her response to the conduct giving rise to the grievance. The employer's argument that there were matters identified in the claim that were not referred to in the statements of grievance was also rejected. The fact that detailed matters were raised for the first time in the claim form did not bar the employment tribunal from hearing the claim. There is a distinction between identifying the nature of the grievance (as required under stage one), and its basis (of which the employer must be informed before the grievance hearing).

Finally, the employer argued that the grievances had been resolved by the time of the claims, therefore the claims could not relate to the same complaints as the grievances. This was rejected by the EAT in relation to Mrs Hunter. Her grievance had not been resolved. Therefore the appeal was dismissed in relation to her and she could pursue her claim. With regard to Mrs Fox, the issue was whether or not her claim could be related back to her original grievance letter. The employment tribunal had not considered whether this letter, read alone, could amount to a relevant grievance. The matter was referred back to the tribunal to consider. The appeal succeeded in relation to Mrs Fox. Whether or not she was able to have her constructive dismissal claim heard would depend on the outcome of the referral.

Case transcript of Step in Time Ltd v (1) Fox and (2) Hunter (Microsoft Word format, 80K) (on the EAT website)

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European Credit Management Ltd v Hosso EAT/0240/08

modified grievance procedure | compliance with step one

The Employment Appeal Tribunal (EAT) has held that an employee who raised a grievance about her "pay" did not satisfy step one of the modified grievance procedure in relation to a complaint about her level of bonus payment.

The modified grievance procedure applies where the employment has already ended. Step one of the two-step procedure provides that the employee must set out the grievance and the basis for it in writing and send the statement or a copy of it to the employer.

Ms Hosso resigned from her job as a cleaner and made a complaint about unfair payments of share options and her levels of pay generally when compared with her male comparators in the company. When her equal pay complaints came before an employment tribunal, she sought to claim that her bonus payments had also been discriminatory. The tribunal found that her grievance was essentially that she received less remuneration overall than her comparators and so it could consider her claim about bonus payments.

The EAT overturned the tribunal's ruling. The tribunal should have given a natural, not legal, reading when considering what Ms Hosso meant by "pay". The EAT anticipated that, if it asked a civil service employee what his or her pay is, the answer that would be given would be gross or net pay. To suggest that Ms Hosso's grievance contained an inquiry about all pay and benefits gave too sophisticated a reading to it. Otherwise, any time an employee raised a grievance about "pay", the employer would be obliged to consider every aspect of pay in its wider definition. This would include overtime pay, sickness pay, pensions, holiday pay, unsocial hours and clothing allowance, standby payments, attendance allowance, performance-related payments, productivity payments, health insurance and provision of company car.

Therefore, the employment tribunal could not hear Ms Hosso's complaint about bonus payments.

Case transcript of European Credit Management Ltd v Hosso (Microsoft Word format, 81K) (on the EAT website)

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Blackburn and another v Chief Constable of West Midlands Police [2008] EWCA Civ 1208 CA

equal pay | like work | justification

The Court of Appeal has held that paying bonuses to employees who worked night shifts did not constitute sex discrimination.

The claimants were female police officers who received less pay than their male comparator for doing like work, as a result of a bonus that he was paid for working night shifts. The claimants were not able to work night shifts because of their childcare responsibilities.

The Employment Appeal Tribunal (EAT) overturned the employment tribunal decision that the employer was in breach of the Equal Pay Act 1970. The EAT found that there is nothing in the Equal Pay Act 1970 that requires an employer to treat women as though they have carried out work that they have not done. It is not a function of the Act to compensate those who have childcare responsibilities for the economic disadvantages that they suffer.

The Court of Appeal agreed. It found that the case was a straightforward one and the EAT's decision correct. The employer had the legitimate aim of rewarding employees who did night work. It was difficult to see how that objective would be furthered if employees who did not do night work were paid the same amount.

Case transcript of Blackburn and another v Chief Constable of West Midlands Police (on the BAILII website)

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Live Nation (Venues) UK Ltd v Hussain and other appeals EAT/0234/08, EAT/0235/08 & EAT/0236/08

age discrimination | dismissal | ageist attitudes

The Employment Appeal Tribunal (EAT) has held that a 55 year old was not discriminated against when his employer dismissed him for displaying ageist attitudes towards two younger managers.

Mr Hussain worked as a front-of-house manager at the Hippodrome Theatre in Bristol. He had disputes with the younger, female general manager and the assistant manager about his performance appraisals. The managers later complained about Mr Hussain's aggressive behaviour towards them, leading to his dismissal for gross misconduct.

An employment tribunal found that Mr Hussain had been discriminated against on the grounds of his age. It said that the employer would not have taken the same action against a younger man.

The EAT overturned the tribunal's finding of age discrimination. The fact that an employer has genuinely formed the view that an employee is guilty of racism or sexism and dismisses him or her for that reason does not provide any evidence that the reason for the dismissal is sex or race, even if the employer’s perception is unjustified or misguided. The position is in principle no different in relation to ageism. An unjustified or unreasoned belief that the employee himself has ageist attitudes may render a dismissal unfair, but it does not begin to justify an inference that he has been dismissed by reason of his age.

Case transcript of Live Nation (Venues) UK Ltd v Hussain and other appeals (Microsoft Word format, 81K) (on the EAT website)

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Ali v Birmingham City Council EAT/0313/08

unfair dismissal | unequivocal resignation | later withdrawal of resignation

The Employment Appeal Tribunal (EAT) has held that an employee's unambiguous resignation will be found not to be effective only in exceptional circumstances.

Mr Ali was upset and tendered his written resignation. His employer gave him 30 minutes to think about his decision, but he continued to insist that he wished to resign. Four days later, he attempted to withdraw his resignation, claiming that he had been "stressed out and couldn't think straight". His employer refused to let him withdraw his resignation. Mr Ali brought an unfair dismissal claim but this was rejected by the employment tribunal. It found that he had not been dismissed, but had resigned. His resignation was unambiguous and the employer was entitled to accept his words at face value.

The EAT agreed. There was no evidence that Mr Ali had acted in the heat of the moment when he gave his resignation and the employer was entitled to think that it was genuinely intended. It had given Mr Ali a "cooling off" period and he persisted in his desire to resign after being given an opportunity to reflect. He did not seek to withdraw his resignation until four days later. During this period his positive conduct and his failure to inform the respondent otherwise indicated clearly to the employer that he wished to resign.

Therefore, Mr Ali had resigned and was not dismissed. His unfair dismissal claim failed.

Case transcript of Ali v Birmingham City Council (Microsoft Word format, 78K) (on the EAT website)

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Chief Constable of West Yorkshire Police v Homer EAT/0191/08

age discrimination | promotion | degree requirement

The Employment Appeal Tribunal (EAT) has overturned an employment tribunal decision that an employer discriminated against an employee who was close to retirement when it required him to complete a law degree before he could be promoted.

Mr Homer was in his 60s and worked as a legal adviser with the police national legal database, having had 30 years’ experience as a police officer. He applied for promotion to a higher pay grade. His employer turned down the application, even though he was very experienced, on the grounds that he did not meet its “essential” requirement that he hold a law degree or similar qualification. The employer offered to finance Mr Homer in taking a part-time degree course, but he turned down the opportunity as he felt that it would be too onerous to have to study on a part-time basis and he intended to retire at 65 anyway, at which point he would not have completed the degree.

An employment tribunal found that Mr Homer had been indirectly discriminated against on the grounds of his age. It accepted his argument that discrimination occurred because employees in the age group of 30 to 59 were able to complete a law degree before the employer’s normal retirement age of 65, while employees aged 60 to 65 did not have time to do a law degree before they retired.

The EAT disagreed. There was no basis for concluding that there was any particular disadvantage that affected employees falling within the age bracket of 60 to 65. The employer treated all employees without a degree in precisely the same way. They had to acquire a degree before being eligible for the promotion, whatever age they were. It was not any more difficult for an older person to obtain the qualification. The financial disadvantage resulting from the degree requirement was the inevitable consequence of age, not a consequence of age discrimination.

The EAT pointed out that Mr Homer had not advanced the argument that requiring a degree was in itself indirect age discrimination on the grounds that the growth in higher education has resulted in significantly more younger than older workers being in possession of a degree. That would have raised a different case.

Case transcript of Chief Constable of West Yorkshire Police v Homer (Microsoft Word format, 73K) (on the EAT website)

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Chagger v Abbey National plc and another EAT/0606/07

race discrimination | burden of proof | colour

The Employment Appeal Tribunal (EAT) has held that the reverse burden of proof does apply to claims of discrimination on the grounds of colour under race discrimination legislation.

Mr Chagger, who is of Asian origin, successfully claimed before an employment tribunal that he had been discriminated against on the grounds of race in relation to his redundancy. He said in his witness statement that he had been discriminated against on the grounds of his colour. On appeal, the employer argued that the tribunal had incorrectly applied the reverse burden of proof under s.54A of the Race Relations Act 1976 to a case of discrimination on the grounds of colour. Section 54A states that where the complainant proves facts from which the tribunal could conclude that the respondent has committed a discriminatory act, the tribunal is required to uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment.

The EAT allowed the appeal on the basis that it was clear from submissions during the hearing that Mr Chagger was claiming discrimination on the grounds of race, colour and ethnic origins, so s.54A did apply. However, the EAT went on to address the issue of whether or not the reversal of the burden of proof under s.54A applies in cases of discrimination on the grounds of colour.

The EAT took an opposing view to the one taken by the EAT in Okonu v G4S Security Services (UK) Ltd EAT/0035/07, where it was found that the reverse burden of proof does not apply to claims of discrimination on the grounds of colour or nationality under the race discrimination legislation, and that s.54A had created a two-tier approach to the burden of proof in race discrimination cases. The EAT said that, because s.54A implemented the Race Equality Directive (2000/43/EC), the key issue is the intended effect of the Directive. The Directive is designed to make discrimination on the basis of racial or ethnic origin unlawful. It is very hard to conceive of a case of discrimination on the ground of colour which cannot also be properly characterised as discrimination on the ground of race or ethnic origin. Therefore, the ECJ "would not give even the time of day" to a submission that a claim of discrimination on the grounds of colour did not attract the operation of the Directive. That being the position in EU law, s.54A must be construed so far as possible to give effect to that position.

Case transcript of Chagger v Abbey National plc and another (Microsoft Word format, 62K) (on the EAT website)

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Dickins v O2 Plc [2008] EWCA Civ 1144 CA

stress | employer negligence | damages

The Court of Appeal has upheld a county court decision to award damages for psychiatric injury due to excessive work-related stress.

Ms Dickins worked for O2 Plc from 1991. In March 2001 it was noted by her managers that work “had taken its toll on her”. She suffered from irritable bowel syndrome and had counselling arranged by her doctor. She transferred to another job in August 2001 but did not receive the expected training and support. She was exhausted, even after a short holiday in March 2002. She asked to move to a less stressful job, explaining her difficulties. Her manager asked her to wait three months. She had a meeting with another manager on 23 April and asked for six months off work, saying that she was “stressed-out” and drained. She said that she did not know how long she could carry on without going off sick. The manager advised her to contact the employee counselling service. In May 2002 she said that she was still feeling stressed, and that she was already having counselling. She repeated her request for six months off work, described her symptoms, and said that she would need to go off sick sooner or later. It was agreed that she would be referred to occupational health. Although a referral was made, nothing further was done. In June she was signed off by her doctor as unfit to work due to anxiety and depression. She remained off sick until her employment was terminated in November 2003. She brought a claim for damages against O2.

The county court found O2 liable for psychiatric injury negligently caused by excessive stress in the course of employment, and awarded damages of £109,754, apportioned by 50%. O2 appealed.

The Court of Appeal addressed the four strands of O2’s appeal. In relation to “reasonable foreseeability” the Court of Appeal held that the county court was correct to find that O2 had had a clear indication of Ms Dickins’ impending illness. The meeting of 23 April had made clear that she was under extreme stress but her managers had done nothing about it. It was correct to take the whole background into account when considering what the employer’s reactions should have been on 23 April. Regarding “breach of duty” the county court had not disregarded the offer of counselling. Although it was held in Sutherland v Hatton [2002] IRLR 263 CA that an employer that provided a confidential advice and counselling service was unlikely to be in breach of duty, merely suggesting that Ms Dickins seek counselling was insufficient. The county court was right to find that an immediate referal to occupational health, and sending her home would have been beneficial. Once she had told the manager about her condition some responsibility passed to the employer. Hatton did not mean that all responsibility for making the decision about whether or not to carry on working rested with the employee. With regard to “causation”, the finding that the breach of duty made a material contribution to Ms Dickins’ illness was inevitable. It would be perverse to find that the employer’s failure to address her problems had not materially contributed to her illness. Finally, the issue of “apportionment” was addressed. The county court decision to apportion damages across the board in light of Hatton was understandable. However, the Court of Appeal expressed doubts (in obiter) about the appropriateness of doing so. O2’s appeal was dismissed.

Case transcript of Dickins v O2 Plc (on the BAILLI website)

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Svenska Staten v Holmqvist [2008] IRLR 970 ECJ

Insolvency Directive | activities in another member state

The European Court of Justice (ECJ) has held that, for the purposes of the Insolvency Directive (80/987/EC), an undertaking from one member state can be regarded as having activities in another member state if it has a stable economic presence there. It does not need to have a branch or fixed establishment in that member state.

The issue came before the ECJ in a case about a lorry driver who worked for a Swedish company that transported goods to Italy, going through Germany and Austria. When the company went insolvent, the Swedish state disputed his right to a wage guarantee under the Insolvency Directive, which has been transposed into Swedish law. The Insolvency Directive states that "when an undertaking with activities in the territories of at least two Member States is in a state of insolvency . . . the institution responsible for meeting employees' outstanding claims shall be that in the Member State in whose territory they work or habitually work".

The ECJ said that, when deciding whether an undertaking has activities in another member state, it is not necessary for it to have a branch or fixed establishment in that other member state. The undertaking must have a stable economic presence there, with human resources that enable it to perform activities. However, the mere fact that a worker employed by a transport undertaking delivers goods between its state of origin and another state does not demonstrate that it has a stable economic presence in that state.

Case transcript of Svenska Staten Genom Tillsynsmyndigheten I Konkurser v Holmqvist Case C-310/07 ECJ (on the ECJ website)

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Community Integrated Care Ltd v Smith EATS/0015/08

unfair dismissal | investigation | admission of wrongdoing

The Employment Appeal Tribunal (EAT) has held that an employee's admission of gross misconduct limited the need for a detailed investigation by her employer prior to dismissal.

Miss Smith, who worked at a care home, was accused by a student nurse of using offensive language towards a resident. The student nurse made a statement to this effect. During the disciplinary investigation, other members of staff said that Miss Smith frequently swore in front of residents. In the disciplinary hearing, it emerged that the student nurse had said that the incident had taken place on a date on which Miss Smith had not been working. However, when asked directly during the hearing whether she denied the allegation, Miss Smith said “No - I’m not saying I didn’t say it - hands up".

Although it accepted that there was confusion about the date of the incident, the employer placed considerable weight on the admission of guilt in the hearing. It therefore dismissed Miss Smith for gross misconduct, a decision that was upheld on appeal.

An employment tribunal concluded that the dismissal was unfair because the employer had not carried out a thorough enough investigation.

The EAT overturned the decision. The tribunal had substituted its own views for those of the employer. It was within the range of reasonable responses for this employer to conclude that offensive language had been used, given Miss Smith's direct admission in the disciplinary hearing. The direct admission meant that the fundamental facts were not in issue and limited the degree of further investigation that was required.

Case transcript of Community Integrated Care Ltd v Smith (Microsoft Word format, 78K) (on the EAT website)

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Adey-Jones v O’Dowd EAT/0098/08

unfair dismissal | compensatory award | loss of earnings

The Employment Appeal Tribunal (EAT) has considered the approach tribunals should take when calculating loss of earnings in unfair dismissal cases.

Mrs O'Dowd was responsible for the day-to-day running of a care home. Concerns were raised about her management and she was accused of stealing from vulnerable adults in the home. There were police and social services investigations and Mrs O'Dowd was dismissed after an internal disciplinary process. After a period of unemployment, she took a temporary job but, after six weeks, she fell ill and was unable to work. She eventually decided to follow a different career path.

An employment tribunal found that the disciplinary process had been seriously mismanaged and that the dismissal was unfair. It awarded Mrs O'Dowd compensation for her loss of earnings during the period that she was too ill to work, because this was at least in part caused by the employer.

The EAT remitted the issue of compensation back to the employment tribunal. The award of compensation for loss of earnings should not be determined using an 'all or nothing' approach, but by assessing the percentage likelihood that the underlying condition might have prevented the individual from working in any event. The tribunal must also determine what proportion of the illness was a result of the employer's actions and what proportion was a result of the actions of other parties, in this case the police and social services.

Case transcript of Adey-Jones v O’Dowd (Microsoft Word format, 60K) (on the EAT website)

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Maley v Royal Mail Group Ltd EAT/0232/08

statutory grievance procedures | dismissal | disability discrimination

The Employment Appeal Tribunal (EAT) has stressed that the statutory grievance procedures do not apply in cases where the dispute results in the employee's dismissal.

In cases where the statutory grievance procedures apply, before bringing a claim the employee must commence the procedure by putting the complaint in writing and sending it to the employer (Employment Act 2002, section 32(2)). The employee must then wait 28 days before bringing the claim. However, the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) provides that the statutory grievance procedures do not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

Mr Maley was frequently off work suffering from chronic dermatitis. There was medical evidence that his condition could be alleviated by providing him with a cotton uniform. The employer did not act on this evidence and Mr Maley was dismissed in a letter dated 11 July 2007, with the reason cited as an unsatisfactory attendance record. He was given 12 weeks' notice, with his employment ending on 15 October 2007.

Mr Maley lodged a claim for unfair constructive dismissal on 25 October 2007, but later sought to amend it to include disability discrimination in the claim, stating that the employer's "failure to make reasonable adjustments resulted in my dismissal". The employer argued that Mr Maley could not bring the disability discrimination claim because he had not submitted a grievance about a failure to make reasonable adjustments, which in this case was a failure to provide a cotton uniform. The employment tribunal agreed with the employer and refused to allow the disability discrimination claim to be added, on the grounds that Mr Maley had not complied with the standard grievance procedure.

The EAT overturned the employment tribunal's decision, on the basis that the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) applied. In this case, there was no freestanding grievance that did not have the dismissal at the heart of the complaint. Mr Maley was arguing that the failure to make reasonable adjustments resulted in dismissal. There was no separate claim for failure to make reasonable adjustments. Had Mr Maley not been dismissed, there would have been no tribunal claim.

The case was therefore remitted to the employment tribunal for the the disability discrimination claim to be considered.

Case transcript of Maley v Royal Mail Group Ltd (Microsoft Word format, 62K) (on the EAT website)

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Hart v Chief Constable of Derbyshire Constabulary [2008] EWCA Civ 929 CA

disability discrimination | duty to make reasonable adjustments

The Court of Appeal has refused leave to appeal against an Employment Appeal Tribunal (EAT) decision that the duty to make reasonable adjustments for the disabled does not require employers to dilute the standards that have to be met before an individual can do a job.

Ms Hart was engaged as a probationary police constable from May 2001. She suffered serious spinal injuries in two road traffic accidents in 2002. The Police Regulations 2003 allow for officers' employment to be ended at any time during the probationary period if it is considered that they are not physically or mentally suited to perform their duties. Ms Hart was not able to demonstrate an ability to carry out certain tasks where there was a real risk of confrontation, which was one of the requirements that had to be met before she could successfully complete her probationary period. For this reason, her probationary period was extended several times and her employment was then terminated in July 2006.

The EAT agreed with an employment tribunal's decision that Ms Hart's employer did not have to make adjustments to the standard required to enable her employment to be confirmed. The EAT said that the duty placed on employers is to make reasonable adjustments that might facilitate the disabled person's ability to demonstrate that he or she has met the required standards.

The Court of Appeal has now refused an application to appeal against the EAT decision. It said that training and experience in confrontational situations is an irreducible minimum in the qualification for a police officer and that Ms Hart, through no fault of her own, was unable to achieve it. In those circumstances, it was not open to the employer to make an adjustment that would have the effect of waiving the strict requirement that an individual must be fit physically and mentally to perform the duties of a police constable.

Case transcript of Hart v Chief Constable of Derbyshire Constabulary (on the BAILII website)

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Beck v London Borough of Camden and another EAT/0121/08

employment status | agency worker

The Employment Appeal Tribunal (EAT), applying the Court of Appeal decision in James v London Borough of Greenwich, has held that an agency worker was not an employee of an end user.

The London Borough of Camden uses agency workers to provide a home care service to residents who need special assistance. Mrs Beck began working for the London Borough of Camden in October 1999. After a few weeks, her work was praised and she was given her own rota. She continued working for the Borough until February 2006, when she applied for a new position. A criminal record check revealed a police caution for assault and Mrs Beck was told that she would no longer be able to work for the it. She brought claims for unfair dismissal and breach of contract.

In a judgment given in May 2007, an employment tribunal found that Mrs Beck's claims could not proceed, as she was not an employee of the London Borough of Camden. Her appeal against the decision was stayed pending the outcome of the Court of Appeal decision in James v London Borough of Greenwich [2008] IRLR 302 CA, which was given in February 2008.

The EAT found that the tribunal was entitled to find that there was a genuine agency arrangement. In James, the Court of Appeal said that employment tribunals should imply a contract of employment between an agency worker and an end user only on the grounds of necessity (for example, in order to expose sham arrangements). There should be very limited scope for successful appeals where the correct test of necessity has been applied by an employment tribunal, as it was in this case.

Case transcript of Beck v London Borough of Camden and another (Microsoft Word format, 55K) (on the EAT website)

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Burrow Down Support Services Ltd v Rossiter EAT/0592/07

national minimum wage | time work | time sleeping

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an employee who was allowed to sleep for much of his shift, but had to deal with anything untoward that might arise, was entitled to be paid the national minimum wage for the whole shift.

Mr Rossiter worked for Burrow Down Support Services Ltd between November 2001 and July 2006. He attended work from 10pm to 8am, two nights a week. His job involved ensuring the security of the premises and monitoring health and safety. Apart from a quarter of an hour for a handover and an hour to help with breakfasts he could sleep, except where his duties required him to be awake, for example if he needed to investigate noises or deal with anything untoward. He was paid £20 per night for being present, with a separate payment made for when he was awake and working. An employment tribunal upheld his claim that Burrow Down had breached its obligation to pay the national minimum wage. Burrow Down appealed.

It was accepted that Mr Rossiter fell within the category of someone doing time work, which is defined in reg.3 of the National Minimum Wage Regulations 1999. The issue was whether he should have been paid the national minimum wage for the whole of the shift, including the time that he was asleep. Under reg.15 of the Regulations time work includes time when “a worker is available at or near a place of work for the purpose of doing time work and is required to be available for such work”. Regulation 15 is subject to reg.15(1A), which states that where a worker can sleep at work and is provided with sleeping facilities, time during the hours that the worker is permited to use the facilites should “only be treated as being time work when the worker is awake for the purpose of working”.

The EAT referred to British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002] IRLR 480 CA and Scottbridge Construction Ltd v Wright [2003] IRLR 21 CS. In Scottbridge the Court of Session rejected an argument by the employer that a period when the employee was asleep should not be treated as time work. Burrow Down argued that these cases were decided under a pre-amended version of reg.15 and therefore no longer applied. It was argued that previously the sleeping at work provision that is now in reg.15(1A) was stated to be an exception, whereas this was no longer the case. However, the EAT disagreed. By reg.15(1) beginning “subject to paragraph 1A” it was clear that reg.15(1A) qualifies the effect of reg.15(1). It does not qualify the definition of time work in reg.3 and has no impact on periods of actual work. Scottbridge and British Nursing still applied. Mr Rossiter was at work for the whole of his shift, and, like the claimant in Scottbridge, he had to deal with anything that arose during his shift, even if he was able to sleep. This was not a case where he was deemed to be at work while only available to work. Therefore, neither reg.15(1), nor reg.15(1A) was engaged. Scottbridge should be followed and Mr Rossiter should be paid the national minimum wage for the whole of his shift.

Case transcript of Burrow Down Support Services Ltd (Microsoft Word format, 61.5K) (on the EAT website)

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Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 ECJ

race discrimination | recruitment | public statement

The European Court of Justice (ECJ) has held that an employer's public statement of a discriminatory recruitment policy is direct discrimination contrary to the Race Directive (2000/43/EC).

Belgian newspapers published interviews with a director of a door-fitting firm that was advertising vacancies. The director was reported to have said that his firm would not recruit persons of Moroccan origin because customers did not trust them, although he later denied that he had made the statements.

The Belgian anti-discrimination body Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (CGKR) brought proceedings seeking a declaration that the employer had contravened Belgian legislation that implemented the Race Directive. The CGKR also asked the court to make an order that the employer end its discriminatory recruitment policy.

The court held that the public statements in question did not constitute acts of discrimination. They were merely evidence of potential discrimination, in that they indicated that persons of a certain racial or ethnic origin would not be recruited by the employer if they decided to apply. The CGKR had neither claimed nor demonstrated that the employer had ever actually turned down a job application on grounds of the applicant's racial or ethnic origin. On appeal, a number of questions were referred to the ECJ, including whether or not a public statement of a discriminatory recruitment policy constitutes direct discrimination contrary to the Race Directive.

The ECJ found that the Directive's objective of fostering conditions for a socially inclusive labour market would be hard to achieve if its scope were limited to those cases in which an unsuccessful candidate for a post, considering that he or she was the victim of direct discrimination, brought legal proceedings against the employer. The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, a practice that is clearly likely strongly to dissuade certain candidates from applying and hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of the Race Directive. The existence of such direct discrimination does not depend on the identification of an individual who claims to have been the victim.

The ECJ went on to say that, while Article 7 of the Race Directive requires member states to make legal procedures available to individuals who consider that they have suffered discrimination, these are only minimum requirements. The Directive does not preclude member states from introducing or maintaining more favourable provisions. More favourable provisions could be the right for associations with a legitimate interest in ensuring compliance with the Directive, such as the CGKR, to bring legal or administrative proceedings to enforce the obligations resulting from the Directive in the absence of an identifiable complainant. However, it is solely for national courts to assess whether or not national legislation allows such a possibility.

Public statements by which an employer lets it be known that it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy that is directly discriminatory within the meaning of the Race Directive. It would then be for that employer to prove that there was no breach of the principle of equal treatment, for example by showing that its actual recruitment practices do not correspond to those statements.

Case transcript of Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (on the ECJ website)

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HM Prison Service and others v Ibimidun [2008] IRLR 940 EAT

race discrimination | victimisation | unfair dismissal

The Employment Appeal Tribunal (EAT) has held that an employee who was dismissed when he brought tribunal proceedings in order to harass his employer, rather than to receive compensation, was not protected by the victimisation provisions of the Race Relations Act 1976.

Mr Ibimidun, a black man of Nigerian origin, worked for the Prison Service. During his employment, he brought various claims, some of which succeeded, but some of which were dismissed as having no reasonable prospect of success. Costs orders totalling £6,750 were made against him in relation to his claims. When Mr Ibimidun was dismissed, an employment tribunal upheld his claim that he had been victimised contrary to the Race Relations Act 1976, section 2 and unfairly dismissed.

The EAT overturned the tribunal's decision. In order to succeed in his victimisation claim, Mr Ibimidun had to show that he had been less favourably treated by reason of the fact that he had done the protected act of bringing tribunal proceedings. In this case, the reason for the less favourable treatment was not simply that Mr Ibimidun had brought a tribunal claim, but that he had brought it with the sole purpose of harassing the Prison Service and some of its employees. The Race Relations Act 1976, section 2 is designed to protect bona fide claims, not claims brought with a view to harassing the respondents.

The EAT also disagreed with the tribunal's unfair dismissal finding. The employer had a genuine belief that it had a potentially fair reason for dismissal, namely Mr Ibimidun's conduct in bringing tribunal proceedings with the sole purpose of harassing the employer and its employees. In addition, the employer, after investigating the issue, had reasonable grounds for its belief.

Case transcript of HM Prison Service and others v Ibimidun; Ibimidun v HM Prison Service and others (Microsoft Word format, 101K) (on the EAT website)

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Cases on appeal

English v Thomas Sanderson Blinds Ltd
Eweida v British Airways plc
Ladele v London Borough of Islington
Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld
Seldon v Clarkson Wright and Jakes
Commissioners for Her Majesty's Revenue and Customs v Annabels (Berkeley Square) Ltd and others
New ISG Ltd v Vernon and others
HM Revenue and Customs v Stringer and others
McClintock v Department of Constitutional Affairs
Levenes Solicitors v Dalley
Fairbrother v Abbey plc
Bloxham v Freshfields Bruckhaus Deringer
Heyday's legal challenge to default retirement age
Madarassy v Nomura International plc
Commerzbank AG v Keen
British Airways plc v Starmer

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English v Thomas Sanderson Blinds Ltd

sexual orientation discrimination | harassment

The Court of Appeal has heard an appeal against the Employment Appeal Tribunal decision that the Employment Equality (Sexual Orientation) Regulations 2003 do not cover homophobic banter against a man who is not gay and who is not perceived to be gay by those who made the remarks.

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Eweida v British Airways plc

religious discrimination | dress code

An appeal is being heard against an employment tribunal's decision that an employee who insisted on visibly wearing a Christian cross contrary to her employer’s uniform policy was not discriminated against on the grounds of her religion.

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Ladele v London Borough of Islington

religious discrimination | refusal to conduct civil partnership ceremonies

The employer is appealing against an employment tribunal's decision that a registrar who refused to conduct civil partnership ceremonies between same-sex couples on the grounds that to do so would violate her Christian beliefs was discriminated against on the grounds of her religion.

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Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld

employment status | director and majority shareholder

The President of Employment Tribunals has directed that all claims about the employment status of individuals who are a director and majority shareholder of a company should be stayed, pending the outcome of the Court of Appeal decision in Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld. The case is being heard on 3 and 4 December 2008.

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Seldon v Clarkson Wright and Jakes

age discrimination | partners | compulsory retirement

An employment tribunal held that the compulsory retirement of a partner in a law firm was a proportionate means of achieving the legitimate aims of ensuring that associates had the opportunity to become a partner after a reasonable period and maintaining the friendly culture of the firm by avoiding confrontation with underperforming partners who were close to retirement. The Employment Appeal Tribunal has heard an appeal.

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Commissioners for Her Majesty's Revenue and Customs v Annabels (Berkeley Square) Ltd and others

national minimum wage | tips | whether included

The employer is appealing the Employment Appeal Tribunal decision that tips and service charges distributed by troncmasters did not count towards the national minimum wage.

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New ISG Ltd v Vernon and others

transfer of undertakings | objection to transfer

The High Court held that an employee's resignation two days after he had been informed that he was being transferred was a valid objection to the transfer. The case now moves to the Court of Appeal.

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HM Revenue and Customs v Stringer and others

long-term sick leave | annual leave | holiday pay

The Advocate-General has said that workers who are on long-term sick leave should continue to accrue statutory annual leave, but that they should not be able to take this paid leave during the period of the sick leave.

The case of Commissioners of Inland Revenue v Ainsworth and others [2005] IRLR 465 CA (as it was known before the English courts) concerned two situations. Mrs Khan was on indefinite sick leave and asked for 20 days' paid holiday during her sick leave. She claimed that she was entitled to take annual leave and to be paid for it under the Working Time Regulations 1998. Mr Ainsworth, Mrs Kilic and Mr Thwaites were dismissed while they were on long-term sick leave. They were absent from work throughout the leave year in which they were dismissed. They claimed that the Working Time Regulations 1998 entitled them to an allowance in lieu of the holiday that they had accrued but not taken.

The Court of Appeal held that Mrs Khan could not take statutory annual leave during a period in which she was on sick leave and consequently not obliged to work. In relation to Mr Ainsworth, Mrs Kilic and Mr Thwaites, the Court of Appeal found that they were not entitled to compensation on termination of employment.

On appeal, the House of Lords decided that the case raised issues of interpretation of the Working Time Directive and referred these to the European Court of Justice (ECJ). It asked whether or not a worker on indefinite sick leave is entitled to designate a future period as paid annual leave, and if such a worker is entitled to take paid annual leave during a period that would otherwise be sick leave. In addition, it questioned whether or not the statutory minimum period of paid annual leave can be replaced with an allowance in lieu on termination of employment, in circumstances in which a worker has been absent on sick leave for all or part of the leave year in which the employment relationship is terminated.

The Advocate-General has now given her opinion in advance of the ECJ decision, which is expected later in 2008.

In relation to the first question, the Advocate-General's opinion was that the existence of the right to paid annual leave should not depend on a worker's fitness for work and therefore a worker rendered incapable of work through illness retains a right to annual leave under the Working Time Directive. It follows that the worker is entitled to designate a future period of paid annual leave. However, he or she may not take this leave during a period in which he or she is on sick leave.

In relation to a payment on termination, the Advocate-General said that a worker is entitled to a compensatory payment as a replacement for leave that has been acquired but not taken due to illness. This is also the case where the worker is on sick leave for all or part of the leave year in question. In assessing the amount of this entitlement, it is necessary to ensure that the amount of the allowance in lieu that the worker receives is equivalent to that of his or her normal pay.

A second Advocate-General opinion on long-term sick leave, in the German case Schultz-Hoff v Deutsche Rentenversicherung Bund, has not been translated into English. However, it has been reported that the opinion was given that a worker on long-term sick leave must be able to take the annual leave when he or she returns to work, even if that only occurs in the following leave year.

Case transcript of HM Revenue and Customs v Stringer and others (on the ECJ website)

Case transcript of Schultz-Hoff v Deutsche Rentenversicherung Bund (on the ECJ website)

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McClintock v Department of Constitutional Affairs

religion or belief discrimination | objection to ruling on same-sex couple adoptions

A Christian Justice of the Peace is appealing against the Employment Appeal Tribunal's rejection of his claim for religion or belief discrimination. He argued that his employer's refusal to excuse him from adjudicating on any case that might lead to the adoption of a child by a same-sex couple was discriminatory.

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Levenes Solicitors v Dalley

unfair dismissal | inconsistent sanctions

The Court of Appeal is to consider the Employment Appeal Tribunal's decision that an employee was fairly dismissed in circumstances where other employees had not been dismissed for the same disciplinary offence in the past.

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Fairbrother v Abbey plc

constructive dismissal | grievance procedures | range of reasonable responses

A Court of Appeal decision is expected. The Employment Appeal Tribunal had held that, in the context of a constructive dismissal claim, the question that should be asked is whether the employer's actions during the grievance procedure fell within the range of reasonable responses.

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Bloxham v Freshfields Bruckhaus Deringer

age discrimination | pension scheme | justification

In this employment tribunal decision, it was held that changes to a law firm's pension scheme that discriminated on the grounds of age were justified. The claimant, Mr Bloxham, has decided not to appeal against the tribunal's decision. The respondent, Freshfields, has also said that it will not be pursuing the claim that it had lodged to recover a portion of its costs.

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Heyday's legal challenge to default retirement age

age discrimination legislation | default retirement age | reference to ECJ

The High Court has finalised the questions to be referred to the European Court of Justice (ECJ) in Heyday's legal challenge to the default retirement age introduced by the Employment Equality (Age) Regulations 2006.

The case has been brought by the National Council on Aging, which operates under the names Heyday and Age Concern. It believes that the inclusion of the default retirement age, which allows employers to retire individuals at 65 or over, in the Regulations makes them incompatible with the Framework Directive.

In relation to national retirement ages and the scope of the Directive, the questions are:

(1) Does the scope of the Directive extend to national rules that permit employers to dismiss employees aged 65 or over by reason of retirement?

(2) Does the scope of the Directive extend to national rules that permit employers to dismiss employees aged 65 or over by reason of retirement where they were introduced after the Directive was made?

(3) In the light of the answers to (1) and (2) above:

(a) were the Employment Rights Act 1996, sections 109 and/or 156, and/or

(b) are the Employment Equality (Age) Regulations 2007, regulations 7 and 30, when read with Schedules 8 and 6 of the Regulations,

national provisions laying down retirement ages within the meaning of Recital 14?

On the issue of the justification defence in cases of direct discrimination, it is asked:

(4) Does Article 6(1) of the Directive permit member states to introduce legislation providing that a difference of treatment on grounds of age does not constitute discrimination if it is determined to be a proportionate means of achieving a legitimate aim, or does Article 6(1) require member states to define the kinds of differences of treatment which may be so justified, by a list or other measure that is similar in form and content to Article 6(1)?

And this question is asked about the test for the justification of direct and indirect discrimination:

(5) Is there any, and if so what, significant practical difference between the test for justification set out in Article 2(2) of the Directive in relation to indirect discrimination, and the test for justification set out in relation to direct age discrimination at Article 6(1) of the Directive?

The ECJ heard the case on 2 July 2008 and the Advocate-General's opinion was given on 23 September 2008. A final ruling is expected in late 2008 or early 2009.

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Madarassy v Nomura International plc

discrimination | burden of proof

The House of Lords has announced that it has refused leave to appeal the Court of Appeal's decision in Madarassy v Nomura International plc [2007] IRLR 246 CA.

In this sex discrimination case, the Court of Appeal applied the two-stage process for determining whether discrimination has occurred that was set out in Igen Ltd (formerly Leeds Careers Guidance) and others v Wong and other cases [2005] IRLR 258 CA.

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Commerzbank AG v Keen

implied term | discretionary bonus | unfair contract term

The House of Lords has refused an application for leave to appeal the Court of Appeal's decision that, in order to show that an employer has breached a discretionary bonus term, the employee must demonstrate that the employer exercised its discretion irrationally or perversely.

The Court of Appeal held that Mr Keen had failed to show that Commerzbank had acted irrationally or perversely when determining the amount of a bonus payable to him in 2003 and 2004 and that the bank had been entitled to rely on a contractual term requiring an employee to be in employment at the date of payment when it refused to pay a bonus for 2005.

It also held that the Unfair Contract Terms Act 1977, section 3 does not apply to employment contracts.

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British Airways plc v Starmer

right to request flexible working | indirect sex discrimination

British Airways has withdrawn its appeal against the Employment Appeal Tribunal (EAT) decision that a refusal to permit a female pilot to halve her working hours amounted to indirect sex discrimination.

After the birth of her daughter Mrs Starmer, a pilot for British Airways, applied to halve her working hours under the statutory right to request flexible working. Although British Airways permitted a 25% reduction in hours, it rejected her request for a 50% reduction because Mrs Starmer did not satisfy its requirement for pilots to have completed at least 2,000 flying hours before being able to reduce their hours to this level. Mrs Starmer brought a claim of indirect sex discrimination on the basis that more women than men would be likely to wish to work part time. The EAT agreed with the tribunal's finding that British Airway's practice was indirectly discriminatory.

Making the announcement that it was dropping the appeal, British Airways said that Mrs Starmer had been able to maintain high standards of performance, even though she was having less flying time than was required under the company's rules.

British Airways added that, in the future, pilots in similar circumstances would be allowed to reduce their hours, subject to conditions.

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Note: Some of these case summaries are based on information provided by Claire Birkinshaw, Abbey Legal Services.