In today’s Observer, Sir Stuart Rose, the CEO of M&S,  is quoted as saying that women “have never had it so good” and that “Apart from the fact that you’ve got more equality than you ever can deal with, the fact of the matter is that you’ve got real democracy and there really are no glass ceilings, despite the fact that some of you moan about it all the time.

“Women can get to the top of any single job that they want to in the UK. You’ve got a woman fighter pilot who went on to join the Red Arrows … I mean what else do you want, for God’s sake? Women astronauts. Women miners. Women dentists. Women doctors. Women managing directors. What is it you haven’t got?”

Technically speaking, Sir Stuart is correct, yes women have more equality than ever before and women can make it to the highest positions in the workplace, however, his positivity, if you can call it that, misses the point. Women are treated more equally than  before, however, that does not amount to equality. Women can make it to the highest jobs, but, the statistics show that they are not in the numbers that are demonstrative of a society free of sex discrimination. He is correct in saying that women have never had it so good but wrong to leap to the conclusion that professional women do not suffer from sexism.

As if the point did not need demonstrating, a timely reminder is Justin Rowlatt’s gaffe (on a BBC programme called The Trouble With Working Women http://news.bbc.co.uk/1/hi/england/8051898.stm) which shows that such prejudices are still rife.

The barristers’ chambers Cloisters is publicising the case of Fareham College v Walters, in which it was held that an employer who dismisses an employee, having failed to make reasonable adjustments, is liable for disability discrimination. This gives a new angle for claimants who are prevented by Lewisham v Malcolm from arguing that a dismissal constitutes disability-related discrimination. The result is not all that surprising as it seems to flow from the reasoning of the Lords in Archibald v Fife but I have no doubt I will have more to say when the judgment appears on the Employment Appeal Tribunal website.

The regular readers of this blog will remember this post back in March in which I discussed a TUPE case that I have been running at the Employment Appeal Tribunal. I can confirm that the hearing took place yesterday in front of Judge Hand QC. I coped well with some difficult questions from him but judgment was reserved so it will be a few weeks before the outcome is known. I am sure that it is going to be a reportable case and I shall provide a summary of the decision as soon as it becomes publicly available.

Last week, the House of Lords ruled in the case of McConkey v The Simon Community, concerning the Northern Irish law against discrimination on the grounds of political opinion. Lord Rodger of Earlsferry, with whom three other Law Lords agreed, held that a statutory exclusion of political opinions supporting the use of violence meant that it would be wrong to construe the meaning of “political opinion” so that such opinions would not even get over the first hurdle. To do so would make the statutory exception redundant. However, had no such exception been provided, such a construction would be permissible.

This decision may become important in England, Wales and Scotland too if the current protection for religious and philosophical beliefs is interpreted so as to include political opinions. The approach of their Lordships is not quite the same as that of the Employment Appeal Tribunal in Ladele, where the reason for alleged discriminatory treatment was considered to be simply a matter of causation, in which beliefs are protected but manifestations of those beliefs are not. Rather, Lord Rodger states that support for violence falls within the ordinary meaning of a political opinion, in the same way as would opposition to violence, but it could be excluded on the grounds of public policy, because the opinion is an “obnoxious” one. This reasoning would permit other political opinions to be excluded from protection, particularly those contrary to the purpose of anti-discrimination legislation, such as racist or homophobic opinions.

Personally, however, I hope that this situation will never arise. The explanatory notes to the new Equality Bill suggest that political opinions do not count as religious or philosophical beliefs and this must be correct. In my view, those commentators who worry about employers dismissing socialists are just missng the point. The purpose of employment law is not to prevent employers from ever acting unreasonably and, if it were, the economy would grind to a halt. Instead, it protects people from unfair dismissal, which would include almost every dismissal on the grounds of political opinion, hair colour or choice of football club, and from discrimination, which is restricted to those grounds for which there is perceived to be a serious social problem. Parliament had decided that discrimination on the grounds of political opinion is a serious social problem in Northern Ireland but not elsewhere in the UK and this is a reasonable conclusion. Even if it were not, it would be for them and not the courts to amend the law.

Like dark matter, dark law is not possible to observe directly but its existence can be detected by the gravitational forces that it exerts on visible law, which are not always straightforward. Sometimes it appears as a negative, as in the case of Mercy v Northgate, which is authority for the proposition that a tribunal is not required to find bad faith in order to conclude that a redundancy consultation is unfair. The question remains, however, why the tribunal accepted such a submission in the first place and why the Court of Appeal subsequently entertained an appeal on this point. It can only be that, although this is not the right approach, there is nevertheless some truth to it. Certainly, in my experience, tribunals often look for bad faith that is not expressly pleaded and are influenced by whether they find it or not.

Just as for misconduct, there may be evidence of an ulterior motive which pre-dates the redundancy situation. However, where the consultation is well documented, any bad faith can often be inferred from both the selection criteria and the individual scores themselves. Ludicrously low scores can be a dead giveaway, as can weightings to the criteria which appear to have been delicately calculated to achieve a particular result. Often the motive has nothing to do with the people being dismissed but rather with those being retained, which can be indicated by a choice of selection criteria that are fulfilled by the latter but which are not genuinely necessary for the job. In cases like this, the dismissal will be unfair.

Individual redundancies are often suspicious because genuine financial difficulties more often result in multiple job losses and they are more consistent with the possibility that someone has been targeted for dismissal. On the other hand, mass redundancies are treated differently by tribunals partly because they are sympathetic to the tough decisions which have to be made by companies in trouble and partly because improper motives are much less likely to explain the choice of selection criteria in these cases. It is hard to credit that an employer could carefully choose criteria in order to ensure that a particular twenty out of a pool of one hundred would be selected for redundancy. In such cases, serious flaws in the scores themselves would usually have to be found in order to show that there has been bad faith.

The dust is now beginning to settle following the publication of the Equality Bill a month ago. Not surprisingly, the most attention has been focused on provisions which allow positive discrimination to be used as a tie-breaker in recruitment, where there are two equally well qualified candidates. Much of the criticism has been ill thought out and reactionary but there has also been some informed commentary as well, one of the best examples being from the blogger, Head of Legal. There are two related concerns raised by his detailed analysis, firstly that the bill expressly outlaws policies that candidates from disadvantaged groups will always be preferred. As Head of Legal rightly points out, it is not immediately obvious how positive discrimination can be used without it becoming such a policy. Furthermore, a reason for this restriction seems to be to make the bill compatible with EU law and Head of Legal fears this problem will de facto undermine any such compatibility even if it does not do so on its face.

However, it is necessary to look behind the bill to see both the reason for this provision and the way that it can be made to work. It is a common excuse by employers that they disproportionately appoint white men because they are better qualified than other candidates. They deny being sexist or racist and attribute any inequality to failures elsewhere, such as in the education system. While some people are naturally cynical about this reasoning, there is undoubtedly a great deal of truth to it but, if we take it seriously, several things follow from it. For one thing, a person who does well in an education system in which they are disadvantaged is clearly objectively better than a person who does equally well without any such disadvantage, and has more potential for development. It would obviously make sense to prefer that person in a recruitment selection process. However, there would be some circumstances in which it would be discriminatory to automatically prefer a candidate from a minority group, for example, in a case where the choice is between a black candidate from a privileged educational background and a white candidate from a disadvantaged one. Therefore, sensible discretion must be applied rather than a policy.

As I have been discussing unfair dismissal, it is appropriate to flag up the case of Compass Group v Okoro, which appeared on the Employment Appeal Tribunal website today. It resolves a conflict in the literature between a line of cases which indicates that, when an act of gross misconduct has been admitted, no further investigation by the employer is necessary, and another which says that any mitigating circumstances should be considered and then investigated, even where there is no dispute between the parties that there has been a breach of a company rule.

The answer, according to Judge Richardson, is that there is “no bright line” dividing these two types of case. It is a matter for a tribunal to determine whether a case warrants any further investigation by a reasonable employer or whether it does not, and its conclusion cannot be overturned except on the grounds of perversity. He also hints that the seriousness of the allegation is a factor to be weighed in the balance and that admissions of dishonesty (rather than merely appropriating property, as in this case) and violence are less likely to require investigation.

There are parallels here with what I said in my last dark law post that procedural fairness is less important in the case of serious allegations although it should be emphasised that this is only true if the misconduct is admitted or if the evidence is otherwise strong. A failure to investigate is more than a technical breach of procedure and will usually be enough to make a dismissal unfair. If anything, investigation is even more vital for serious allegations.

The range of reasonable responses test means an employer has a lot of leeway in dismissing its employees for misconduct. This makes it impossible in practice to run a ‘de minimis’ argument and suggest, for example, that a theft of something small in value can never be a dismissible offence. Furthermore, it follows that there should be no difference in the procedural requirements for dismissing someone for stealing £1,000 and dismissing them for stealing a penny. In practice, however, tribunals will examine the procedure more stringently in the latter case and there is support for this approach in Taylor v OCS Group, at paragraph 48, although the reasoning is brief.

However, when the importance of motive is appreciated, this makes a great deal of sense. If an employee has a row with his manager and then, a month later, she dismisses him for stealing £1,000, it is difficult to believe that it is the argument which is in her mind at the time of the dismissal rather than the theft. On the other hand, if the theft is of a penny, that argument becomes much more compelling. The very fact that a dismissal is for a trivial reason makes it less credible that it is genuine so that relatively minor breaches of procedure become suspicious.

In addition, there are excellent policy reasons for forgiving technical breaches of procedure in the case of serious misconduct, especially theft. By their very nature, thieves are attracted to the idea of free money and, in my experience, they appear to be particularly prone to bringing claims. It is undesirable that they should benefit from their dishonesty. On the other hand, employers need to be reminded of their obligations and should not be made to feel that they do not need to comply with procedures so there are benefits in bringing this part of dark law into the light. Then it can be made clear to them by Employment Judges that they are exposing themselves to risk, even if it is necessary for them to succeed in a particular case. It may also dissuade thieves from hopeless cases.

I have had some more thoughts about why a breach of the impied term of trust and confidence can never result in a fair dismissal. My previous post notes that a breach of the implied term is defined as conduct which is likely to destroy or seriously undermine trust but there is a further part to the test, taken from Malik v BCCI, that there must not be reasonable or proper cause for that conduct. Conversely, according to Berriman v Delabole Slate, for a constructive dismissal to be fair, it is necessary that the employer show “the reasons for their conduct which entitled to employee to terminate the contract.” When the constructive dismissal is due to a breach of the implied term, the employer must both have no reasonable or proper cause for their conduct while, at the same time, that conduct must be for a potentially fair reason as well as fair in all the circumstances. This is difficult to imagine.

What is unusual about the implied term is that the reason for the conduct matters. If a person’s pay is reduced or his place of work is moved, whether there is a fundamental breach does not depend on why the changes were made. For the implied term of trust and confidence, this is very important so it must be distinguished accordingly.

There has recently been a spate of judgments from the Employment Appeal Tribunal which have recapitulated trite principles such that there has been little of interest to report. This has all changed with the remarkable case of Bournemouth University v Buckland, which reaches two notable conclusions. Firstly, it disapproves three other EAT authorities which state that employers have a reasonable range of responses in constructive dismissal cases. It would seem to follow from this that, contrary to those cases, a slightly flawed grievance procedure can result in a fundamental breach of contract but we are also reminded that constructive dismissals can sometimes be fair.

This sounds straightforward but there is a gap in the analysis. Employment law has created the notion of the implied term of trust and confidence which can be breached by behaviour that is likely to destroy or seriously undermine the relationship between the parties. If this definition is more than just a legal fiction, it would seem to suggest that this is not the type of behaviour which can be considered to be fair in a meaningful sense. It follows from this that a breach of the implied term of trust and confidence is different from other types of fundamental breach and, consequently, that the principles of the latter are not very helpful in trying to understand the former.

But there is more. Judge Peter Clark goes on to state that a fundamental breach of contract can be remedied, accurately citing numerous authorities for this proposition. However, once again, he does not distinguish a breach of the implied term. If an act is really so severe that trust is destroyed, is it really so easy to restore that trust again or is there more likely to be permanent damage to the relationship? The effect of this case is to set a low bar for a finding of constructive dismissal while making it possible to fix, whereas the previous decisions set a higher bar but made the legal consequences of a breach much more severe. I am not comfortable with the shift in the balance which seems to create more legal uncertainty for both employers, who will fear that a breach can be found too easily, and employees, who may now be worried that even very serious breaches can be corrected.

Given the emphasis in the case law, a person could be forgiven for thinking that unfair dismissal law is all about procedure. However, for those new to the area, the approach taken by tribunals can be confusing. Sometimes it seems as though tiny breaches in procedure can be blown up out of all proportion while, at other times, a wholly shambolic procedure can be held to be overall fair, taking all the circumstances into account. At first blush, it can appear that tribunals are woefully inconsistent but, on close examination, there are certain patterns that emerge.

If a layperson was asked what would make a dismissal unfair, he or she would probably suggest that, if an employer had an ulterior motive for dismissing an employee, this would certainly qualify. This intuitive approach to unfair dismissal has received surprisingly little attention in case law but it is possible to see how it could affect the approach to procedure. It is one thing not to follow a line of investigation because it is reasonably considered to be unnecessary but quite another not to follow it because it is feared that it would exonerate the employee for whom an excuse for dismissal is sought. The former is in the reasonable range of responses but the latter is not.

On the face of it, a motive by the employer would seem to go to substantive fairness such that, if the procedure is flawed, the tribunal should make an unfair dismissal finding with an appropriate Polkey reduction if it considers that the decision was not contaminated by an improper motive. However, this is rarely what happens in practice and it appears that procedural and substantive unfairness are too closely entwined to be meaningfully separated.

This shows the importance for practitioners of identifying some reason why the employer would want to get rid of the employee. The motive does not have to be entirely ulterior and in misconduct cases, for example, a common motive is a hunch that the employee is guilty such that the employer pre-judges a situation. This can be sufficient to make a dismissal unfair. Nor does the motive even have to relate to the employee in question. In inconsistent treatment cases, what has often happened is that a form of misconduct has been tolerated by management for a long time and then, at a certain point, it randomly and capriciously decides to crack down upon it without warning.

Some kind of motive for wanting to dismiss somebody will inevitably considerably strengthen any case for unfair dismissal but it would be putting the bar too high to say that the particular motive must always be demonstrated to the tribunal. If an employee hands strong evidence of his innocence to his employer and is simply ignored, this is clearly a wilful failure to investigate rather than a reasonable one. There is self-evidently a motive for dismissal even if it is impossible to know exactly what it is. A more common situation is where the procedure is so bad that it is impossible to determine whether there is an improper motive or not. This will be the subject of a later post.