Associated Discrimination – Disability
The EU Equal Treatment Framework Directive covers all aspects of employment and aims to ensure equal treatment of individuals, regardless of their religion or belief, disability, age or sexual orientation. As regards disability, the Disability Discrimination Act 1995 (DDA) was amended to implement the Directive in the UK.
A recent case (Attridge Law v Coleman), concerning the interpretation of the Directive and its impact on disability discrimination legislation in the UK, has seen the mother of a disabled child given the go-ahead to take her employment case to the European Court of Justice (ECJ).
Sharon Coleman brought a claim of disability discrimination and constructive dismissal against her ex-employer on the grounds that she had been discriminated against because of her son’s disability. Amongst her claims of unfair treatment were that she was not permitted to work from home, even though other employees were allowed to do so to care for non-disabled children, and that she was placed in a pool of staff selected for redundancy after she said that she intended to make a formal request for flexible working in order to care for her son. Ms Coleman claimed that her employer’s actions had created a hostile environment which forced her to resign.
Section 3A(5) of the DDA is worded such that a person who is not herself disabled but who is discriminated against because of another person’s disability cannot bring a claim. It would not appear, therefore, to protect someone caring for a disabled person. Ms Coleman argued that the Equal Treatment Framework Directive does give protection from unfair treatment which arises out of association with a disabled person.
The Employment Tribunal (ET) decided to refer this matter to the ECJ in order to establish a ruling on whether the UK law properly implements the Directive. The Employment Appeal Tribunal subsequently dismissed an appeal by the employer that it was wrong in law for the ET to refer a question to the ECJ. The case is expected to be heard later this year.
Defective Compromise Agreements
There are specific rules that normally apply when an employer enters into a compromise agreement in order to prevent an employee from taking action on a particular matter at the Employment Tribunal at a future date. A recent case has further illustrated the need for careful drafting of such agreements if they are to achieve their intended purpose.
One such rule is that the agreement itself must fulfil conditions set out in the Employment Rights Act 1996 and, if the agreement is intended to apply to discrimination claims, the conditions set out in the relevant discrimination legislation. Another is that the agreement must relate to particular proceedings and cannot be a generalised, ‘cover all’ agreement.
The Employment Appeal Tribunal (EAT) recently ruled (Palihakkara v British Telecommunications plc) that a compromise agreement did not cover claims of sex and race discrimination because it did not specifically include a clause confirming that the conditions in the relevant legislation had been satisfied, even though the agreement did confirm that the conditions of the Employment Rights Act regulating such agreements were satisfied.
In addition, the compromise agreement in this case stated that the payment to the employee was made and accepted ‘in full and final settlement of all claims past or future arising out of the termination of her employment’. The EAT judged that the meaning of these words was that the agreement did not compromise claims other than those which arose out of the termination of the employment, in spite of the use of the words ‘past or future’.
Says <<CONTACT DETAILS>>, “In this case, the compromise agreement clearly failed to protect the employer as intended because care was not taken to abide by the rules relating to such agreements. If you are contemplating entering into a compromise agreement, we can advise you to ensure that all relevant claims are compromised.”
Employment Status – Who is an Employee?
Many employment law rights are only available to those who are employees. In the case of Ministry of Defence (MOD) v Kettle, the Employment Appeal Tribunal (EAT) examined the issue as to when, in determining whether a person is an employee or not, an Employment Tribunal (ET) can look outside the contractual document. Can it do so only if it finds the document to be a sham or if it finds a subsequent variation to the contract?
Dr Kettle was an experienced dental/orthodontic specialist. She saw an advertisement for a part-time civilian orthodontic specialist practitioner with the MOD. The position was described as ‘a salaried position in a large, well run, friendly clinic’, working with trained staff. Dr Kettle successfully applied for the job and received documentation including an invitation to treat and a contract for the provision of consultant orthodontic services. She told the MOD that she considered the documentation inappropriate as it apparently envisaged the award of a contract to a subcontractor running its own organisation. She made it clear that she would not be able to find replacements if she were unable to work. However, she was assured that it was normal MOD documentation and so she signed the contract. She paid her own tax and national insurance but she did have to complete time sheets. The MOD provided her with a uniform and organised cover if she was unavailable for work.
When Dr Kettle’s contract was terminated she commenced proceedings against the MOD and the ET had to consider, as a preliminary issue, whether or not she was technically an employee.
The ET decided that Dr Kettle was an employee. In reaching its decision, it had taken into consideration not only the contractual documentation but all the circumstances, including the respective parties’ conduct and the job advertisement.
The MOD appealed against this finding, arguing that the ET had erred in law in looking beyond the terms of the contractual documents to determine Dr Kettle’s employment status. The MOD argued that the ET could only look outside the contract wording if it found the document to be a sham or if it found that there was a subsequent variation to the contract.
The issue to be decided by the EAT, therefore, was whether the ET should have confined itself to the contractual documentation.
The EAT found that the following propositions could be gleaned from the decision of the House of Lords in the case of Carmichael v National Power (the leading authority on this issue):
- at the outset, the ET should ask whether or not the parties intended the contractual documentation to be the exclusive record of the terms of agreement? This is a question of fact;
- if the answer to that question was yes, then the ET was generally restricted to considering this documentation. If the answer was no, then the ET could consider wider matters, including oral exchanges, the job advertisement and the parties’ conduct.
In view of all the circumstances, particularly the finding that the documentation did not match the job description and the nature of the work performed by Dr Kettle, the ET was entitled to look outside the contractual documents. The conclusion that Dr Kettle was an MOD employee was justified and the MOD’s appeal was therefore dismissed.
Says <<CONTACT DETAILS>>, “Employers should ensure that the form of contract used is appropriate, and its terms are realistic in the circumstances and accurately reflect both the intentions of the parties to the contract and the description of the post provided in the job advertisement.”
ET1 Forms – Size Not an Essential Feature
Since 1 October 2005, all claims to Employment Tribunals, other than in specified proceedings, must be presented on a form ET1, prescribed in accordance with Regulation 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
In the case of Grant v In 2 Focus Sales Development Services Ltd., the Employment Appeal Tribunal (EAT) heard that the Tribunal Secretary had refused to accept Mr Grant’s ET1 form because it was not presented on the prescribed form. A prescribed claim form was provided and Mr Grant had faxed this fresh application to the Tribunal offices, but this too was rejected and no explanation was given as to why.
In fact, both claims had been presented using the correct form. Although no explanation was forthcoming, it seems that both were rejected because they had somehow shrunk in the faxing process and so were smaller than the prescribed form.
Mr Grant sought a review of these decisions but was refused on the grounds that the rejection of the forms was an administrative function and the rules did not provide for a review. He therefore appealed to the EAT.
The first point at issue was whether the EAT had jurisdiction to hear the appeal. It was argued that the Tribunal Secretary was exercising an ‘administrative discretion’ and that no point of law was involved. The EAT disagreed. Even if it was an administrative decision, it still had to be exercised in accordance with the law and, in the EAT’s view, it was ‘a constitutional outrage to suggest that a public official could act in breach of the powers conferred on him and yet be subject to no legal control’.
Furthermore, Mr Grant had made an application for a review and was refused so was entitled to challenge the decision to reject the claims. The EAT did therefore have jurisdiction to hear the claim.
Secondly, had the Tribunal erred in law in declining to accept the claims?
There is nothing in the Rules to suggest that potential claimants have to ensure that the ET1 form reaches the Tribunal measuring exactly the same size as it did when it was sent. In the EAT’s view, where faxing is a legitimate way of lodging the claim, then any reduction in size resulting from the faxing process must be deemed to have been an acceptable consequence of the process. Otherwise, ‘the ludicrous result is that you can fax the form but it will be rejected’. Also, the EAT did not consider size to be an essential feature of the prescribed form such that a variation in size would result in it not being considered acceptable. If forms were to be rejected if they did not reach the Tribunal in a prescribed size then this ought to be made ‘crystal clear’.
Before the EAT published this judgment, the decision to reject Mr Grant’s claim form was the subject of a review by the Tribunal Chairman, who accepted and upheld the application for review.
Gay Man Wins Compensation for Discrimination
A case before a Scottish Employment Tribunal (ET) has seen a gay man awarded £118,309 after his claim of discrimination under the Employment Equality (Sexual Orientation) Regulations 2003 was upheld.
Jonah Ditton claimed that he was harassed and discriminated against, because he is gay, during the eight days he worked as a media sales manager for CP Publishing Ltd. before he was sacked.
The ET heard that Mr Ditton’s boss had called him a ‘wee poof’ and said that he looked like a ‘cream puff’. The Tribunal Chairman described the conduct of the respondent as ‘high-handed, malicious, insulting and oppressive’ and considered the manner of Mr Ditton’s dismissal, when he was told that he was not ‘psychologically balanced’, to have been degrading and humiliating.
As a result of the treatment he was subjected to, Mr Ditton became depressed and was unable to work.
The compensation award included £10,000 for injury to feelings, £76,937 for loss of earnings, £5,291 in interest and £26,081 on account of the company’s failure to follow statutory procedures.
Says <<CONTACT DETAILS>>, “Employers who are guilty of, or fail to prevent, less favourable treatment of an employee on the grounds of his or her sexual orientation can face heavy penalties. Name-calling, such as occurred in this case, or any behaviour which subjects an individual to unwelcome attention, intimidation, humiliation, ridicule, offence or loss of privacy is unacceptable. Differences in culture, attitudes and experience can mean that what one person thinks of as a normal social exchange is perceived by another as being harassment. If you are concerned about this issue, we can advise you on the steps to take to ensure the dignity of all employees is maintained.”
Government Cracks Down on Minimum Wage Non-Payers
The Department of Trade and Industry (DTI) has announced a new policy for dealing with rogue employers who fail to pay the statutory national minimum wage, currently £5.35 per hour for adult workers.
In cases where workers have made a complaint that they are not receiving the minimum wage, HM Revenue and Customs will investigate the employer. Under the new policy, if the complaint is upheld and the employer will not pay the arrears of wages, an enforcement notice will be issued warning them to pay within seven days. Employers who do not pay within seven days risk a minimum fine of £224.70, the penalty for default on an enforcement notice for one named worker. A penalty may be applied even if it is the first time an employer has failed to comply with an enforcement notice.
An employer who persistently fails to pay the national minimum wage could face prosecution, with the risk of a criminal record and a £5,000 fine.
The DTI believes that the measures will help good employers to know that they are operating on a level playing field.
Last year, more than 61,000 calls were made to the national minimum wage helpline and the Government helped 25,314 workers recover more than £3.2 million in unpaid wages.
Grievances and Constructive Dismissal
When an employee raises a grievance because of bullying or harassment by other members of the workforce, it is sometimes very difficult for the employer to ensure that the outcome of the grievance procedure is satisfactory in the eyes of the person who has made the complaint. The Employment Appeal Tribunal (EAT) has considered in what circumstances the dissatisfied employee is entitled to resign and claim constructive dismissal (Abbey National plc v Mrs E Fairbrother).
Mrs Fairbrother was employed by Abbey as a customer manager from 1998 to June 2004. She has Obsessive Compulsive Disorder (OCD). Initially, she had a good relationship with all of her colleagues. However, this changed at some point in the middle of 2002. From that time, Mrs Fairbrother and another colleague were subjected to unpleasant behaviour on the part of two women in the office. A trainee was also treated in the same way.
On 25 July 2003, Mrs Fairbrother left work in tears after one of the women had shouted at her. She telephoned the area manager who conducted an investigation and suggested an informal resolution. On 29 July, Mrs Fairbrother was signed off sick. She was encouraged to return to work thereafter but she did not agree to do so. She wanted the two women who had taunted her to be separated but the area manager was not prepared to consider that. In his view, she was the one making allegations about the conduct and behaviour of fellow employees, so it was she who would have to be relocated. Mrs Fairbrother sent a grievance letter, dated 13 August, to the area manager complaining that his investigation of the sensitive situation had been badly handled. She subsequently sent Abbey two further grievance statements, the second of which dealt with events prior to July. Abbey initially ignored the second of these as they considered that it had been submitted late.
Two further grievance hearings were held and Mrs Fairbrother’s second statement was considered but in February 2004 her grievance was finally dismissed. In June 2004 she resigned, because of Abbey’s failure to bring her grievance to a reasonable conclusion, and brought a claim for unfair constructive dismissal and disability discrimination.
The Employment Tribunal (ET) found that Mrs Fairbrother had been constructively dismissed and that she had suffered disability discrimination on account of her OCD. The company appealed to the EAT.
The Employment Rights Act 1996 states that an employee is entitled not to be unfairly dismissed. An employee will be treated as dismissed if she is entitled to terminate her contract because of her employer’s conduct. The EAT ruled that in considering whether an employer’s conduct entitles the employee to terminate her employment contract and claim constructive dismissal, three questions must be considered:
- Firstly, what was the conduct complained of?
- Secondly, did the employer have reasonable and proper cause for it? If yes, the employee was not constructively dismissed; and
- Thirdly, was the conduct calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?
The EAT judged that whilst the employer has a duty to act reasonably, it must be allowed a measure of discretion as to how to conduct its business affairs. In its view, Abbey did have reasonable and proper cause for its conduct during the grievance procedure and thus the appeal was allowed.
Where the conduct complained of relates to the outcome of a grievance hearing, the EAT said that the ‘range of reasonable responses test’ applies to the operation of grievance procedures – i.e. whether the way the employer acted was within a band of reasonable responses that a reasonable employer would have made.
As regards the claim of disability discrimination against her employer, the EAT judged that the ET had erred in its finding. In order to succeed in her claim, Mrs Fairbrother had to demonstrate that Abbey’s treatment of her related to her OCD. The other woman who was also subjected to unpleasant behaviour was clearly an appropriate comparator and Mrs Fairbrother was not treated any less favourably than she had been. Her claim was therefore dismissed.
Immigration – New Rules for Applicants Seeking Permanent Residency
From 2 April 2007, all those seeking permission to live in the UK permanently will need to demonstrate that they have the requisite language skills and knowledge of life in the UK to integrate successfully into British society. There will be two ways of doing this.
Those who speak English at or above ESOL (English for Speakers of Other Languages) Entry Level 3 standard will be able to sit a computer based ‘Life in the UK Test’, based on information contained in the revised handbook, ‘Life in the United Kingdom: A Journey to Citizenship’. The fee for the test has been set at £34.
Those who do not have English skills at ESOL Entry Level 3 or above will need to successfully complete an approved ESOL with Citizenship course. This will combine language skills with information about life in the UK.
This requirement forms part of the Government’s five-year strategy for immigration and asylum and will be in addition to the usual requirements for settlement. It will affect applicants aged 18 to 65.
Migrant Worker Management Guide
With the increase in numbers of migrant workers in the UK, employers often have people from a variety of different cultures working for them.
Bradford University School of Management is making available findings based on its own experience of helping overseas business students to settle in the UK, in order to assist business leaders in dealing with differences in cultural perspectives among their workforce.
The School of Management has produced a guide to help managers understand the key cultural issues that could affect performance. It covers particular issues such as the need to avoid loss of face in some cultures, the impact of different teaching styles, how different cultures view success and failure and how some cultures have little grasp of team-working.
For a free copy of the guide, call 01274 234485.
In Brief
Employers' Guide to the Age Discrimination Regulations
The Chartered Institute of Personnel and Development and the TUC have published guidance to help employers understand and implement the age discrimination laws, which came into force last October.
The guidance is called ‘Developing a new mindset on age and retirement’ and can be downloaded at http://www.cipd.co.uk/subjects/dvsequl/_mngagegd.htm?IsSrchRes=1.
In Brief
Guidance on Cancer and Working
Changes introduced in December 2005 extended protection under the Disability Discrimination Act 1995 to those diagnosed with progressive forms of cancer.
The Chartered Institute of Personnel Development, together with the Working with Cancer group and the cancer information charity Cancerbackup, has produced guidance entitled ‘Cancer and working: guidance for employers, HR and line managers’.
The guidance will prove useful to employers in responding to the needs of employees affected by cancer or other critical illnesses. It can be downloaded at
In Brief
New Minimum Wage Rates Announced
The Government has announced increases in the national minimum wage rates in line with the recommendations of the Low Pay Commission. These will apply from October 2007.
The adult national minimum wage will rise from £5.35 to £5.52 an hour. The minimum rate for 18- to 21-year-olds will increase from £4.45 to £4.60 an hour and for 16- to 17-year-olds the rate will be £3.40 an hour instead of £3.30.
The Employers Forum on Age has warned the Government that paying 18- to 21-year-olds less simply because of their age could constitute age discrimination and is lobbying for this to change.
In Brief
Pension Schemes – Consultation
The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006, introduced under the Pensions Act 2004, are extended to employers with more than 100 employees from 6 April 2007. Previously, the Regulations only applied to employers with more than 150 employees.
Employers covered by the legislation are not permitted to make major changes to their pension scheme without first consulting with current and prospective members, or their representatives, for a period of at least 60 days, prior to the changes being introduced.
Employers with more than 50 employees will be covered by the Regulations from 6 April 2008.
Guidance on the regulations is available on the Department for Work and Pensions’ website at http://www.dwp.gov.uk/publications/dwp/2005/occ_pen_schemes/occ_personal_pens_schemes_regs06.pdf.
In Brief
Religious Discrimination – Support Teacher to Appeal
A Muslim support teacher, who lost her claim for direct discrimination, indirect discrimination and harassment on religious grounds after she was suspended from work and then dismissed for insisting on wearing her veil, is to take her case to the Employment Appeal Tribunal.
Mrs Aishah Azmi had said that she was willing to remove her veil in front of children, but not if a male colleague were present.
The school and the local authority argued that pupils needed to see her face in order to understand what she was saying during lessons.
Mrs Azmi's lawyer has said that her appeal will again focus on alleged discrimination with regard to her religious beliefs.
In Brief
Statutory Maternity, Paternity and Adoption Pay
From 1 April 2007, the standard rate for Statutory Maternity Pay increased from £108.85 to £112.75 per week (or 90 per cent of average weekly earnings if this figure is less). The Social Security Benefits Up-rating Order 2007 also applies the same rates to Maternity Allowance, Statutory Paternity Pay and Statutory Adoption Pay.
Amendments to the Work and Families Act made changes to the maternity rights of employees with children born or placed for adoption on or after 1 April 2007. See the Department of Trade and Industry website at http://www.dti.gov.uk/employment/workandfamilies/index.html for further information.
Statutory Sick Pay
The flat rate of Statutory Sick Pay (SSP) increased from £70.05 to £72.55 per week from 6 April 2007. The earnings threshold for employees to be eligible to receive SSP was increased from £84 to £87 per week.
Informing and Consulting Employees – A Reminder
Since April 2005, those who work for employers with 150 or more employees have had the right, under the Information and Consultation of Employees Regulations 2004, to be provided with information and to be consulted on major business decisions which affect them at work, with a view to reaching agreement on decisions likely to lead to substantial changes in work organisation or employers’ contractual relations with their employees.
Employers are reminded that the Regulations are extended to cover undertakings with 100 or more employees as of 6 April 2007. The legislation applies to anyone carrying out an economic activity, whether it is a business, a school, a public sector body or a charity. The rules will apply to employers with 50 or more employees from April 2008.
The legislation does allow employers the flexibility to agree consultation arrangements with their employees which suit the individual circumstances of the business. Pre-existing arrangements that are supported by both employees and the employer will be allowed to continue.
Where there are no existing arrangements for informing and consulting employees, the onus is on employees to ask for them to be put in place. Employers will be obliged to comply with the request if it is supported by at least 10 per cent of the workforce.
Recently, the Central Arbitration Committee (CAC) found that Macmillan Publishers Ltd. was wrong to ignore a request from employees for information and consultation arrangements. The company argued that it already had adequate arrangements in place but the CAC disagreed and ordered it to arrange for the holding of a ballot of its employees to elect information and consultation representatives.
If you wish to initiate proceedings to negotiate an agreement to inform and consult your employees or would like further information on how the legislation operates, please contact <<CONTACT DETAILS>>.
Minimum Wage – Employees’ Gas and Electricity Payments
The Court of Appeal has upheld the ruling of the Employment Appeal Tribunal (EAT) in the case of Leisure Employment Services Ltd. v HM Revenue and Customs (HMRC), which dealt with the operation of the national minimum wage legislation.
HMRC had issued enforcement notices against Leisure Employment Services alleging that workers provided with accommodation at their holiday resorts were being paid less than the national minimum wage. These workers were required to sign an agreement with the company stating that they would pay a standard £6 per fortnight for gas and electricity. This was normally taken as a deduction from salary. Those who had money deducted in this way were, as a result, being paid less than the minimum wage.
The issue was whether the employer was entitled to treat the £6 deduction as part of an employee’s wages even though the employee actually received less than the minimum wage after the deduction had been made.
The Court of Appeal supported the EAT’s view that as the workers were under an obligation to pay a particular sum of money in order to be permitted to use the accommodation on offer, the amount they paid was in respect of the provision of living accommodation. As the company had already taken full advantage of the maximum deduction that can be made from the minimum wage where an employer provides accommodation (currently £4.15 per day), the employer could not treat the £6 deducted as part of the employees’ wages. Furthermore, the deduction made was for the employer’s own use and benefitbecause it was the employer who was liable to pay the utilities supplier. Leisure Employment Services had therefore paid these workers less than the national minimum wage, contrary to the 1998 National Minimum Wage Act.
One of the judges did make the point that if the workers had been expected to pay the actual cost of their gas and electricity, they would on average have spent more than £3 a week. He was of the view, therefore, that the company was providing a genuine subsidy for them in this regard. However, the appeal was upheld and ‘live-in’ workers who had money deducted in this way will be entitled to receive back-pay in recompense.
‘On-the-Spot’ Risk Assessments
Workplace injuries sometimes occur whilst an employee is carrying out a task that they have performed perfectly safely on numerous prior occasions. The success of employee claims in such circumstances will depend on the foreseeability of the injury, relevant risk assessments and the quality of the training provided by the employer.
A recent case, brought against Monarch Airlines under the Manual Handling Operations Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998, illustrates the point that the lack of a risk assessment need not be fatal to the defence of an injury claim, providing it can be demonstrated that carrying out a risk assessment would not have made any difference in the circumstances.
Katherine Dryden, who had worked for Monarch Airlines as a cabin crew member for more than five years, brought a claim against the company after she suffered injuries to her back and neck trying to close the rear door of an aircraft. The door in question was particularly stiff.
Ms Dryden claimed that the company had failed in its duty to minimise the risk of injury and had neither carried out an adequate risk assessment of the task nor provided adequate training. She alleged that the company was attempting to delegate its duty of care as an employer by expecting staff to carry out ‘on-the-spot’ risk assessments as to whether or not they could safely close the aircraft doors.
Monarch Airlines admitted that it was down to each cabin crew member to judge whether they could carry out the task safely. However, during training they were instructed to seek help closing the door if necessary and this instruction was also included in the written manual.
The Court found in favour of the airline. Although it was reasonably foreseeable that employees would have to cope with the problem of aircraft doors that were stiff, the judge found that the completion of a more detailed risk assessment would not have made any material difference to the outcome in this case. Ms Dryden was an experienced crew member who had carried out the same task on numerous occasions without mishap. A risk assessment would merely have stated the obvious – i.e. if a door is unusually stiff, there is a greater risk of strain injury.
The Court concluded that the training provided was not at fault and it was not unreasonable to expect Ms Dryden to carry out an on-the-spot risk assessment because no one else could have done so at that time.
Says <<CONTACT DETAILS>>, “Employers have an ongoing duty of care towards their employees to ensure that workplace practices, tools and equipment are safe. Risks should be assessed and an evaluation carried out to decide whether more needs to be done to eliminate or reduce them. Employees should be trained in the safe use of any equipment and their training kept up-to-date. However, as this case illustrates, employers who have acted responsibly in all these regards should be able to rely on experienced employees to exercise a degree of common sense when judging whether or not it is safe to carry out a particular task.”
Proactive Prosecutions for Breaches of Health and Safety Regulations
The Health and Safety Executive (HSE) has successfully prosecuted a self-employed builder for contravening the Work at Height Regulations 2005.
David Clark, from Chippenham in Wiltshire, was fined £2,000 with costs of £1,500 after construction inspectors found that none of the safety measures for working at height had been taken during work on the roof of a farm building. No nets or barriers had been put in place to ensure the safety of Mr Clark and the two other men carrying out the work.
The HSE said that the risks identified were considerable but no steps had been taken to prevent the three men from falling from the roof. Even though there was no injury in this case, the HSE considered that the risk of injury associated with the work, together with the shortfall in the level of control over the risk, warranted prosecution.
The HSE intends to be proactive when carrying out health and safety inspections, preventing injuries before they happen. Those involved in the construction industry should be aware that where HSE inspectors identify a failure in safety standards, they could bring prosecutions in addition to bringing a halt to the work.
HSE Principal Construction Inspector Andrew Kingscott said: “We are not prepared to wait for an injury to occur before taking action. This initiative of proactive, risk-led prosecutions means cases can be brought to court more quickly.”
Falling from a height is the most common type of accident in Great Britain, accounting for 22 per cent of fatal injuries to workers in 2005/2006. For information on the Work at Height Regulations and useful guidance, see the HSE website at http://www.hse.gov.uk/falls/index.htm.
Rest Breaks for Mobile Workers
Under the Working Time Regulations 1998, a worker is entitled to a rest period of ‘not less than eleven consecutive hours in each 24-hour period during which he works for his employer’. However, there are exceptions, one of which is where the activities of the worker in question involve the need for continuity of service, such as when mobile workers carry passengers on regular urban transport services.
In the case of First Hampshire & Dorset Ltd. v Feist and others, the Employment Appeal Tribunal (EAT) examined the proper construction of the Working Time Regulations, as amended, with regard to rest breaks for such workers.
Mr Feist and his colleagues were employed as bus drivers by First Hampshire & Dorset Ltd. The question arose as to whether, on those occasions when their work involved daily rest periods of less than 11 hours in each 24-hour period, the drivers were entitled to adequate rest breaks only or whether they were also entitled to compensatory rest. The Employment Tribunal ruled that they were entitled to both.
The EAT, however, judged that the drivers were entitled to adequate rest in lieu of a fixed rest period but they were not entitled to compensatory rest as well.
Review of Workplace Dispute Resolution Procedures
As part of the Department of Trade and Industry’s initiative to simplify employment law, the Secretary of State for Trade and Industry, Alistair Darling, is overseeing a ‘root and branch review’ of the statutory dispute resolution procedures.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 came into force in October 2004 and require employers and employees to operate statutory minimum disciplinary, dismissal and grievance procedures. The legislation aimed to give those involved the chance to settle complaints without recourse to litigation. However, the procedures have been widely criticised for being poorly drafted and overly complex.
A recent survey by the Chartered Institute of Personnel and Development reported that 29 per cent of employers believe that disputes are less likely to be resolved informally since the introduction of the legislation and 42 per cent of employers are now more likely to seek legal advice to make sure they do not fall foul of the law.
Firstly, Mr Darling asked Michael Gibbons to carry out an independent review of the options for simplifying and improving all aspects of employment dispute resolution, in order to make the system work better for employers and employees. This recommended that the statutory dispute resolution procedures be repealed and replaced with non-prescriptive guidelines on grievances, discipline and dismissal.
A consultation has now been launched which covers a series of wide-ranging questions. This asks if there should be:
- a new, swift approach for dealing with straightforward claims, without the need for employment tribunal hearings;
- a reformed tribunal system, with simplified processes and timings;
- an invitation to the CBI, TUC and other representative organisations to produce guidelines aimed at encouraging and promoting the early resolution of disputes in the workplace;
- incentives for employers to make reasonable attempts to resolve a dispute early; and
- a redesigned application process to tribunals so that potential claimants access the system through a new advice service and receive advice on alternatives when doing so.
The consultation document is available at http://www.dti.gov.uk/consultations/page38508.html. The consultation closes on 20 June 2007.
Sexual Orientation Discrimination – Banker Loses Appeal
In May 2006, Peter Lewis, the former global head of equity trading at the bank HSBC, lost his £5m claim, under the Employment Equality (Sexual Orientation) Regulations 2003, that he was dismissed from his job because he was gay.
Mr Lewis had been dismissed on the ground of ‘gross personal misconduct’ following an alleged incident of sexual harassment, at the bank’s gym, which he denies.
Although he lost regarding the main issue of the claim, the Employment Tribunal (ET) did uphold four of Mr Lewis’s complaints that he had been less favourably treated than a heterosexual employee would have been during the early stages of the investigation into the complaint. A significant factor identified by the ET was the view it formed of the honesty and probity of the person who conducted the investigation.
HSBC claimed that this ruling was unfair. Mr Lewis cross-appealed against the ET’s main finding.
The Employment Appeal Tribunal allowed HSBC’s appeal, in so far as it remitted the four successful grounds of complaint to a fresh ET for rehearing, but upheld the original ET’s finding on the main issue.
Statutory Dismissal Procedures – Automatically Unfair Dismissal
Following the introduction of the statutory dismissal and disciplinary procedures in October 2004, employers considering disciplining or dismissing an employee are required to follow a minimum three-stage process. They must
- Inform the employee in writing of the reason why they are considering disciplining or dismissing them;
- Hold a meeting to discuss the reason. The employee should have had a reasonable opportunity to consider their response to the employer’s statement before the meeting; and
- Inform the employee of the decision and of their right to appeal if they are not satisfied with it.
In YMCA Training v Stewart, The Employment Appeal Tribunal hastaken a fairly relaxed approach to the statutory requirements.
Mrs Stewart was employed by the YMCA as a training adviser. On 8 September 2005, one of her colleagues contacted their joint line manager and alleged that Mrs Stewart had falsified the work experience records of three trainees. The line manager telephoned Mrs Stewart to tell her that she was suspended and she was invited to an investigatory meeting. Mrs Stewart received a letter and a copy of the colleague’s witness statement. At the meeting on 12 September, all the charges against Mrs Stewart were discussed. With regard to the falsified documents, Mrs Stewart denied any wrongdoing but the originals were inexplicably missing.
On 20 September, Mrs Stewart attended a disciplinary hearing. At that meeting the line manager told her that she could not accept her account of events and she was therefore dismissed. Mrs Stewart appealed unsuccessfully to the YMCA and then brought a claim for unfair dismissal.
The Employment Tribunal (ET) was critical of the YMCA’s disciplinary procedure and considered that steps one and two of the statutory procedure had not been followed. It therefore found that Mrs Stewart had been automatically unfairly dismissed. However, the ET made a 60 per cent reduction in the compensation awarded because it believed that it was more likely than not that Mrs Stewart would have been (fairly) dismissed if the YMCA had followed a proper procedure.
The YMCA appealed to the Employment Appeal Tribunal (EAT).
Usually, this decision would mean a further ET hearing to consider if the dismissal was unfair in accordance with s98 of the Employment Rights Act 1996. However, s98A (2) of the Act states that a decision to dismiss will not be unreasonable if it can be shown that, even if the correct procedure had been followed, the employee would have been dismissed anyway. Parliament’s intention was to deny a remedy for unfair dismissal if this is proven to be the case.
As the ET had found that it was more than likely that Mrs Stewart would have been dismissed had the correct procedure been followed, the EAT ruled that the claim for unfair dismissal should be dismissed entirely.
Stress – An Employer’s Duties
Dealing with stress in the workplace is a difficult issue for employers and certainly one that cannot be ignored.
As well as specific duties under health and safety legislation, employers owe their employees a common law duty to take reasonable care to safeguard their health and safety and this includes a duty to control stress levels in the workplace. Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress. It is foreseeable injury arising from an employer’s breach of duty that gives rise to a liability and foreseeability depends on what the employer knows (or ought reasonably to know) about an individual employee.
In 2002, the Court of Appeal (in Sutherland v Hatton) provided 16 points as guidance on the legal position as regards stress claims in negligence. In 2004, the House of Lords approved this general statement of the law (in Barber v Somerset County Council) with the important exception that it emphasised that an employer must be proactive in dealing with stress.
Point 2 of the guidance stated that the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable.
A recent case (Hiles v South Gloucestershire NHS Primary Care Trust) has given guidance as to when it may be reasonably foreseeable that an employee is at risk of injury from workplace stress so as to warrant action on the part of the employer. The Court found that it was not normal behaviour for an employee to burst into tears at a meeting to discuss workload. This was judged to be a sign that the claimant was under stress and that if it continued to affect her she could become ill. Her employer failed to investigate properly or to keep the situation under review and so no action was taken to protect her or to prevent the situation worsening. As a result, the claimant suffered a psychiatric breakdown and damages were awarded against the employer.
Point 11 of the Court of Appeal’s guidance stated that an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
However, no two cases are the same and each will be decided on the particular facts under consideration. The recent case of Intel Incorporation (UK) Ltd. v Daw emphasises that the 16 points are intended as guidance only. The Court of Appeal judged that Tracy Daw, a HR professional who became ill through stress at work, was entitled to damages, even though her employer did provide a counselling service. The Court was of the view that the service was insufficient to discharge the employer's duty of care towards its employee in this case as it could do little more than advise Ms Daw to see her doctor. The service could not do anything to reduce her workload. That was the responsibility of her employer. Ms Daw was able to show that her many requests for help on account of her excessive workload had failed to bring about any action on the part of Intel and the company was judged to have been negligent as her injuries were foreseeable in the circumstances.
The message to employers is clear: stress cannot be ignored and it is important to have a formal stress policy in place. Once you are aware that a problem exists, investigate and take appropriate action at once. Monitor the situation to see if remedial action is working and continue to do so until the situation is resolved.
For individual advice on stress in the workplace, please contact <<CONTACT DETAILS>>.
The Burden of Proof in Discrimination Cases
Arguments over the operation of the burden of proof are common in discrimination cases.
When considering a discrimination claim, the Employment Tribunal (ET) will normally go through two stages. Stage 1 is to examine whether the employee has made out a prima facie case – i.e. has established facts from which, in the absence of an adequate explanation, the ET could conclude that there has been unlawful discrimination on the part of the employer. If that is achieved, the second stage is that the burden of proof then shifts to the employer to prove, on the balance of probabilities, that he has not committed an act of unlawful discrimination. This could be by demonstrating an adequate non-discriminatory explanation of the treatment being complained of. If the employer fails to do this, the ET must uphold the discrimination claim. However, the Court of Appeal has ruled that the two stages cannot always be clearly identified.
In 2005, in the case of Igen v Wong, the Court of Appeal analysed the law regarding the burden of proof in discrimination cases and included a summary of guidance on the construction of the relevant statutory provisions. However, there still seems to be confusion on the issue and it is important that the law regarding the burden of proof to be applied, when the facts of an individual case are being examined, is clearly understood.
In Madarassy v Nomura International plc, the Court of Appeal heard a complaint that the ET had misunderstood the burden of proof and so had rejected a well-founded claim.
Ms Madarassy started working for Nomura in January 2000, as a senior banker. In June of that year she became pregnant. After her initial probationary period, her appointment was confirmed in September 2000, although her line manager expressed concerns about her performance. Two months later, Ms Madarassy informed her employer of her pregnancy. In February 2001, an appraisal assessed her performance as not being up to the company’s standard.
In July 2001, when Ms Madarassy returned to work after her maternity leave, Nomura had begun making redundancies, as a result of a restructuring of the company. In November, Ms Madarassy was herself made redundant.
She claimed that she had been unfairly dismissed for a reason connected with her pregnancy or maternity, that she had been victimised and she made 33 allegations of unlawful discrimination on the grounds of her sex.
The ET judged that only three of the allegations of sex discrimination were well-founded. It dismissed the complaint of victimisation and rejected the unfair dismissal claim. In its view, Nomura had carried out a fair redundancy consultation process.
It is worth pointing out that the ET hearing took place before subsequent judicial rulings clarified the law on the burden of proof in discrimination claims. Ms Madarassy appealed to the Employment Appeal Tribunal (EAT) regarding the sex discrimination claims. The main ground of appeal was that the ET had erred in law with regard to the burden of proof. It had only scrutinised Ms Madarassy’s case and rejected it. It should have gone on to examine Nomura’s case and rejected the adequacy of its explanation for its discriminatory treatment of her. It had therefore placed the burden on her to prove all the elements of her claims and had failed to place on Nomura the burden of proving that it did not commit the acts of unlawful discrimination that made up her complaint. The EAT dismissed the appeal with regard to all but two of the claims.
The Court of Appeal had to decide whether the ET had erred in law when reaching its decision with regard to the allegations of sex discrimination.
The Court reaffirmed that the guidance given in Igen v Wong on the operation of the burden of proof in discrimination cases is ‘clear and sound’ and does not need to be altered. However, it is only guidance and so failing to follow it absolutely is not in itself an error of law, although omitting to refer to the guidance may increase the risk of an error. With regard to the two stage process, in practice the ET does not hear the evidence and the argument in two stages. Evidence from the employer in rebutting the complainant’s evidence of discrimination can be relevant in deciding that there is nothing in the claimant’s evidence which could infer a prima facie case of discrimination. After hearing all the evidence, the ET embarks on a two stage analysis to decide firstly whether a prima facie case has been established so that the burden of proof shifts to the employer and, if so, whether the employer has discharged the burden of proof.
In the Court’s view, the ET had dealt with the burden of proof in two stages, placing the burden of proof on Nomura at the second stage, not at the first. At stage 1, under the law as it now stands, it is necessary for the claimant to prove that the employer committed an unlawful act, not merely that they could have done so.
Following the Court of Appeal’s decision, the three disputed findings will be remitted to the original ET to review its decision.
The Comparator in Sex Discrimination Cases
When deciding whether an employee has been discriminated against on the grounds of their sex, a comparison must normally be made with someone else – ‘the comparator’ – in circumstances not materially different from the employee’s own. Where there is no suitable comparator, a hypothetical comparator must be constructed. Unsurprisingly, problems often arise in sex discrimination cases in determining the correct comparator to be used and exactly which circumstances are relevant. This was the issue in a recent case in the Employment Appeal Tribunal (EAT) – Kettle Produce Ltd. v Ward.
Ms Ward was employed as a cleaner by Kettle Produce Ltd. at its fruit processing, packaging and distribution factory in Fife. She brought a claim of sex discrimination, alleging four incidents of discriminatory behaviour towards herself on the part of the manager of the cleaning department, Mr Gowans. He had a poor view of Ms Ward as a worker and was described as having a ‘robust management style’.
The Employment Tribunal (ET) dismissed three of Ms Ward’s claims but upheld her claim regarding an incident where she had been in the women’s toilets, waiting for a cubicle to become vacant, when Mr Gowans entered and, believing that she was skiving off work, shouted at her. The ET judged that when a man enters the women’s toilets in such circumstances, it is plainly an act of sex discrimination. It awarded Ms Ward £1,750 plus interest for injury to her feelings.
Kettle Produce Ltd. appealed against the decision on the grounds that the ET had failed to construct a relevant hypothetical comparator in the case. The EAT upheld the appeal.
The EAT judged that the fact that Ms Ward had been confronted by a male manager in the women’s toilets was central to the ET’s decision in this instance. It had found that Ms Ward failed to demonstrate that the incidents that took place in areas of the factory where there was no exclusivity of gender were discriminatory. A correct comparison should therefore envisage invasion of a space reserved for the opposite sex. In such circumstances, the question which the ET should have asked, so that the construct of the hypothetical comparator was not materially different from the circumstances of the case, was would a female manager, with the same robust management style as this manager, treat a male cleaner, with the same sensitivity as the claimant and who she believed to be skiving, in the same way as the manager treated Ms Ward?
As the answer to this question was considered to be ‘yes’, Ms Ward’s treatment was not unlawful sex discrimination.
The Employment Status of Agency Workers
The employment status of agency workers has been the cause of many problems over the years. In the absence of legislation to clarify the position, Employment Tribunals (ETs) have to attempt to determine the exact nature of triangular agency relationships on a case-by-case basis.
In previous cases, end user employers have sometimes been judged to have an implied contract of employment with staff supplied by an employment agency but there has been uncertainty as to the circumstances in which the ET should make such a ruling. In each case, ETs have to examine the business reality of the arrangements between the agency, the worker and the end user.
A recent case (James v Greenwich Council) in the Employment Appeal Tribunal (EAT) has provided guidance on this issue which will give some relief to those who regularly employ agency workers.
Ms James worked full time for Greenwich Council until 1997, providing support work in the Council&r