It was reported on the front page of the Guardian on Saturday morning that Sir Bert Massie, the former chairman of the Disability Rights Commission, has threatened to resign from his post as a commissioner of the Equality and Human Rights Commission. His decision follows three resignations earlier in the same week and many people are unhappy with the direction in which the organisation is going. The problem is that the softly softly approach favoured by Trevor Phillips in his days as head of the Commission for Racial Equality was in marked contrast to the more proactive stance taken by the DRC and the Equal Opportunities Commission. The merged body under Phillips has also been reluctant to take a hard line, and indeed it has seemed at times like it is not a campaigning organisation any more, with its rejection of important concepts such as multi-culturalism and institutional racism.

As Sir Bert Massie himself noted, the EHRC receives a considerable amount of funding which it needs to spend wisely. Like the Financial Services Authority, which has been far from glorious in recent years, there must surely be a question as to whether tightening up the law would be a better way of keeping businesses on the straight and narrow. They may even appreciate the reduction in taxes which might become possible if these organisations subsequently become unnecessary. Regulation by law is cheaper and more effective than regulation by quango.

This morning, Daniel Barnett reported on the case of Roydon v Barnetts Solicitors, a decision of the Liverpool Employment Tribunal regarding the new TUPE Regulations. In my view, as far as the finding that there had been a service provision change is concerned, the only surprising thing about it is that anyone is surprised. Even the commentators who have noted its inconvenience to solicitors have not suggested that it is wrong in law and, quite frankly, the Regulations cause just as much inconvenience to employers in plenty of other industries as well.

However, I must declare a personal interest in this case, not because I have a desire to be transferred to a firm of solicitors in Southport, but because some of the more peripheral issues in this case have parallels in a case in which I have been involved and is currently on appeal. In paragraph 45, the Tribunal rejects a submission that a mobility clause in the contract of transferred employees changes in meaning so that references to “offices of the firm” will refer to the new firm and, in paragraph 47, it holds that a change in location is a detriment within the meaning of Regulation 4(9), and consequently an employee is entitled to resign and to claim that he has been dismissed. In my case, the Tribunal came to a different conclusion on both of those issues, hence the appeal.

I think that the Liverpool Tribunal is correct on both points. If a mobility clause really could change its meaning in this way, it would fly in the face of the fundamental principle of contract law that contractual terms cannot be changed without the agreement of the parties. It would be particularly bizarre if this could happen in a TUPE situation, where employees are supposed to be protected from changes even when they do agree to them. Regulation 4(9) contains the words “detriment”, “material” and “substantial”, all three of which echo the language of discrimination law as applied by the House of Lords in the famous case of Shamoon v Royal Ulster Constabulary. The Law Lords set a low bar for the existence of a detriment by establishing a subjective test and it would be surprising if a relocation to another town did not qualify. Anyway, I shall be trying to persuade the Employment Appeal Tribunal of this on 27th May so watch out for the outcome on this blog shortly afterwards.

In the case of Swallow Security Services v Millicent, it was unsurprisingly found that a tribunal has a duty to consider contributory fault of its own motion when it has not been pleaded and has not been raised in submissions by an unrepresented party. This is consistent with the approach to many other areas of unfair dismissal including procedural fairness, Polkey reductions and statutory uplifts. What is more controversial is that the Employment Appeal Tribunal distinguished the case of Mensah v East Herts NHS Trust in which the Court of Appeal held that there was no duty to consider a claim of discrimination which was pleaded but was not raised at the hearing.

It is easy the understand the difference between the two cases with regard to the overriding objective. In unfair dismissal cases, the issues are nearly always the same and parties should be able to anticipate them without any warning. Therefore, the duty of a tribunal to assist unrepresented parties does not conflict with its general duty to do justice. On the other hand, discrimination is more complicated and it would be difficult for a tribunal to be fair to an unrepresented party while also being fair to the other side. While this logic is compelling, it does suggest that the tribunal system has failed in its aim of providing access to justice, at least in respect of discrimination.

There was a curious story in the Daily Telegraph yesterday. A former executive of a property company claimed he had been discriminated against on the grounds of his belief in climate change and a tribunal ruled that it did have jurisdiction to hear the case under the Religion or Belief Regulations. While I have every sympathy for him if he was dismissed for that reason, I am doubtful that the decision is correct as it would seem to open the door for all sorts of people to claim discrimination, from Jedi Knights to BNP members. It is surely ripe for an appeal.

One commentator in the same newspaper takes the interesting point of view that, given the wealth of scientific evidence for climate change, it might even be slightly offensive to put it in the same bracket as a religious belief.

The Employment Appeal Tribunal have made a number of recent decisions about the impact of the House of Lords decision in Lewisham v Malcolm. They have all held that Malcolm does apply to employment law but, in most cases, this has made very little difference to the outcome. This supports the view of the government in its recent consultation document that disabled people will almost always be able to enforce their rights in the employment sphere in other ways. There appeared to be a spectacular exception in Stockton on Tees Borough Council v Aylott, which is the first case in which the decision of a tribunal was completely overturned in the light of Malcolm, but this is less dramatic than it first appears. The claimant had been unable to work at all due to bipolar disorder and the tribunal had erred in both its consideration of reasonable adjustments and justification of disability-related discrimination and so the decision was wrong under the old law and would have been overturned in any event. More typical, I suspect, is the case of Stafford and Rural Homes v Hughes in which the tribunal applied the wrong comparator but it made no difference to the outcome because of its findings on reasonable adjustments.

The real test of Malcolm will come in a case which would have succeeded as disability-related discrimination under the old law but which, for whatever reason, fails as a reasonable adjustments claim. In Aylott, Justice Slade gives an intriguing teaser of what might happen in such a case in paragraph 111 of her judgment in which she states that, “Domestic legislation gives greater protection to disabled persons than is required by the Directive in that discrimination for a reason related to disability covers a wider variety of situations than does discrimination on grounds of disability.” It seems that, despite the fears of some commentators, disability-related discrimination is wider than direct discrimination after all and so a claim that fails as direct discrimination and reasonable adjustments could nevertheless succeed under that head. Further clarification in this area is awaited with interest.

As Usefully Employed has noted in his excellent blog, there is an apparently legal blacklist in the form of the National Staff Dismissal Register. I share his disquiet, especially in the current economic climate in which several banks are dismissing a surprisingly small number of staff on the grounds of redundancy but a surprisingly large number of the grounds of conduct, often for dishonesty offences. It is difficult to accept that they can all be guilty.

A striking comparison can be drawn with a House of Lords decision from earlier in the year in which a list of people banned from care work was held to be incompatible with Articles 6 and 8 of the European Convention of Human Rights because it did not provide those listed with an opportunity to make representations about their inclusion. Surely the NSDR can have as devastating effect on careers and so it raises exactly the same issues.

There was disturbing news in the press last week about blacklisting in the construction industry. A small company called the Consulting Association compiled a database of workers who had been involved in union activities, had brought tribunal claims or who had blown the whistle about poor health and safety practices. Worryingly, most of the employees concerned are likely to have no remedy in employment law. Those who were discriminated against may be able to claim victimisation but they will mostly be way out of time while those rejected for having brought unfair dismissal claims will have no case at all, which strikes me as being a serious lacuna in the law.

Section 3 of the Employment Relations Act 1999 states, ‘The Secretary of State may make regulations prohibiting the compilation of lists’ and it further gives him the right to give jurisdiction to the Employment Tribunal and to introduce new criminal offences. However, no such regulations have ever been made, apparently for the reason that the government did not believe that blacklists were being maintained any longer. Hopefully, they will now change their view and bring this much needed legislation into force. On the other hand, the Consulting Association will not get away scot-free. Its owner, Ian Kerr, is likely to be prosecuted by the Information Commissioner for breaches of the Data Protection Act. Purchasers of the data, for £3000 a year each, may be prosecuted as well.

The recent decision of the Employment Appeal Tribunal in Smith Knight Fay v McCoy has already produced a lot of commentary. Among other things, it clarifies the fact that a premature decision to dismiss will not in itself breach the statutory procedure and the fact that the requirements under the procedure for the contents of a step one letter are not particularly onerous. However, what interests me are its implications in the case of a long redundancy consultation process involving a number of additional meetings before the final step two meeting.

The DDP requires simply a letter inviting the employee to a meeting followed by that meeting, a decision and a chance to appeal. This will not significantly change when the DDP goes on 6th April because the new procedure is largely the same. Although it will no longer be possible for a dismissal to be automatically unfair, an uplift of up to 25% will still be possible. The problem arises for a redundancy consultation because there is rarely only one meeting and so it is unclear at what stage the step one letter should be sent. Should it be sent before the first meeting, immediately before the final meeting or can it be sent at any stage so long as it is at some point before the final meeting? The literal wording of the procedure does not include any specific requirement and this would suggest that the last of these is correct, although my experience is that tribunals do not always share this view.

In this case, there was no step one letter at all before the meeting at which the decision to dismiss was taken but the employer backtracked, reversed the original decision to dismiss and started the DDP from scratch. The EAT unsurprisingly upheld the decision that the dismissal was substantively unfair but held that there had not been a breach of the DDP. It follows that there is no need for a step one letter before the first consultation meeting.

Welcome to our new blog! We shall be providing regular updates on new cases and employment law stories in the media. There are already a number of blogs in this area - see our blogroll - but we intend to provide our own unique approach. While there will be the occasional flight of academic fancy, the blog is aimed primarily at practitioners, HR professionals and employees, and so we will aim to be deal with the practical situations more commonly encountered in practice rather than more esoteric scenarios. There will be a focus on how tribunals actually use the authorities instead of the way that they are analysed in the legal journals. Conversely, however, this is an employment law blog and so we intend to generally remain on topic. I hope that you enjoy reading it.