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This requires compassion with clients for whom we should never forget that the judgment may be the last word legally but it is not necessarily the last word epistimologically. What Tribunals find is deemed to be the truth but this is a convenient legal fiction and it must be remembered that it is not always actually the truth. Parties will be more satisfied with the system if this is more widely acknowledged. We must not allow Tribunal decisions to construct our reality.

“Tired of that hermeneutical delirium, the workers turned away from the authorities in Macondo and brought their complaints up to the higher courts. It was there that the sleight-of-hand lawyers proved that the demands lacked all validity for the simple reason that the banana company did not have, never had had, and never would have any workers in its service because they were all hired on a temporary and occasional basis. So that the fable of the Virginia ham was nonsense, the same as that of the miraculous pills and the Yuletide toilets, and by a decision of the court it was established and set down in solemn decrees that the workers did not exist.”

Gabriel Garcia Marquez – One Hundred Years of Solitude

Chapman had previously given written evidence to the committee in 2007, in which he had ducked the question of the size of the settlement. However, he strongly implied that it was less than the £60,600 maximum award for unfair dismissal claims and suggested that the claim for unfair dismissal would have succeeded because there was a failure to follow the disciplinary procedure, which was a statutory requirement at the time. This was a strange conclusion given that Goodman had admitted committing a criminal offence, which meant that the outcome of any investigation was inevitable. It would have been all but certain that no compensation would be awarded, despite the procedural failings.

It is now reported that the settlement was for £140,000, as well as £13,000 to represent Goodman’s legal costs. This is far more than the worst case scenario at the tribunal hearing, particularly in light of the fact that costs are awarded so rarely. Chapman now says that the settlement was a commercial one to prevent “stuff from being raked up”. While commercial settlements do occur, they rarely exceed the maximum that can possibly be awarded and the value placed on confidentilaity is low, usually no more than a few thousand pounds. Clearly, it was feared that what could be raked up was far more damaging than normal.

Most amazing is the suggestion by Chapman that he negotiated the settlement without accounting for a payment of £90,000 which had already been paid to Goodman on termination. Even if the £90,000 payment had not been his own idea, it is frankly unbelievable that he could have advised without taking it into account. If he had been settling on the basis of a possible High Court claim for notice pay, which is surprising in a clear case of gross misconduct in any event, it is obvious that a voluntary payment in lieu of notice could be set off against a claim. Reading his evidence as a whole, it is very unsatisfactory in the way that it seems to jump about, mentioning notice pay in some places and yet failing to acknowledge that a payment on termination makes a difference to the decision.

The payment to Clive Goodman is difficult to explain either by a conventional analysis of the merits of his claim or by usual pratice in making commercial settlements. It is hard to avoid to conclusion that something else was at stake.

In the meantime, the Birmingham claimants will have to try to bring their claim under one of the existing heads of discrimination. One possibility is religious belief which, as the report highlights, often overlaps considerably with caste membership. A more intriguing possibility would be to bring it under the race discrimination provisions, as discrimination on the grounds of descent. This is because caste membership is inherited from parents and cannot be changed.

The question then arises as to whether discrimination on the grounds of descent falls under race discrimination. Historically, ethnic groups have been defined in partly cultural terms, so that members of an ethnic group were expected to have a shared culture, which would be distinct from the culture of other ethnic groups. This definition comes from the judgment of the House of Lords in Mandla v Lee. However, the more recent decision of the Supreme Court in JFS changed all that. In JFS, it was held to be unlawful to discriminate against a boy because of his mother’s ancestry, even though all parties shared the same Jewish culture. Indeed, it does appear as if the case did introduce a law against discrimination based on descent, which may well cover most instances of caste discrimination.

There is a lesson to be drawn from all this. JFS was criticised in some quarters and, even among supporters like me, there was a sense in which it seemed to be quite a harsh decision. There was little justification for the admissions policy of the school but, on the other hand, it was no more arbitrary than the practices of many other educational establishments. However, looking at the big picture, it becomes clear how important it was to maintain the principle that discrimination is wrong. Had an exception been made, that same exception would probably now be being relied upon as a way of importing the caste system into UK law.

In determining whether someone is engaged under a contract of employment, which is necessary to claim unfair dismissal, for example, an important part of the test has always been whether there is a relationship of control between the parties. Although control is no longer determinative of the issue, a high degree of control is considered to make it more likely that a contract of employment exists. However, for the wider definition of an employee in discrimination law, the issue of control has historically been given little weight, with the key issue being whether there is a contract personally to do work. If a person cannot send a substitute to do work in his place, he or she is likely to be entitled to bring a discrimination claim, even if the level of control over him or her is relatively low.

There has been a rarely used caveat, provided by the Court of Appeal in Mirror Group v Gunning, that personal service must be the dominant purpose of the contract. This concept was developed by the Employment Appeal Tribunal in James v Redcats, although it was not particularly clear what factors should be taken into account in determining what the dominant purpose of the contract is.

In Jivraj, the Supreme Court disapproved this approach, although it suggested that it could be helpful in some cases. Instead, it focused upon the European authorities, particularly the decision of the European Court of Justice in Allonby v Accrington and Rossendale College. In paragraph 68, the ECJ stated that the definition of employee excludes “independent providers of services who are not in a relationship of subordination with the person who receives the services”.

This emphasis on the presence or absence of a relationship of subordination brings control back into the equation and, indeed, Jivraj was decided on that basis. Arbitrators were found not to be subject to employment discrimination law because they are in a dominant rather than a subordinate position in relation to the parties who use their services, in part because they have complete control over the proceedings once they have been appointed to determine a dispute.

According to one opinion quoted in the Evening Standard, “it is apparently not a genuine redundancy situation but an attempt to make an organisation disappear at a time when senior management figures such as James Murdoch and Rebekah Brooks are suspected of serious corruption”, which is a very strange conclusion to reach. The test of whether or not there is a redundancy situation is simply one of whether the number of employees needed has decreased. It does not matter why the number has decreased and it is certainly not a matter for a tribunal to question the validity of a business decision leading to redundancies.

Of course, if the News of the World were to be replaced by the Sun on Sunday as soon as 7th August, as has been suggested, then there has been a lot of speculation that TUPE would apply (for example, on this law firm website). I am not sure that this is correct. The News of the World and the Sun newspapers are both News International publications and News International is a single limited company. There cannot be a TUPE transfer from one company to itself and I cannot see a tribunal being willing to pierce the corporate veil in this instance.

However, the fact that both newspapers are published by the same company does impact on the question of whether the need for employees has decreased. If, at the time when the News of the World was shut down, it was already known that the Sun on Sunday would shortly appear, it would become difficult to argue that there had ever really been a decrease in the need for employees. If so, all the staff currently being consulted about redundancy would have to be allowed to keep their jobs or else News International will face unfair dismissal claims.

Such consequences probably go some way to explaining the recent decision of the Employment Appeal Tribunal in Community Law Clinic v Methuen, a case in which two weak-looking discrimination cases were indeed struck out, although a third one was allowed to proceed to hearing. The basis for the decision was that the claimant had no evidence to support his claims of discrimination, save that he was of a different sex and race to the person who replaced him following his dismissal, there being no doubt that this is not sufficient to make out his case.

However, as I said in a post in March, it is not quite that simple. The problem is that it is impossible to determine discrimination claims without hearing evidence and especially before disclosure has taken place. It sometimes happens that an employee begins with no more than a hunch that discrimination has taken place and it is only after the full story emerges from the employer that it becomes clear that this hunch is justified. Therefore, it is not appropriate to test the merits of a case only on the way in which it is initially formulated by an unrepresented party.

There is an irony here in that the claimant has probably made a tactical blunder. If he thinks that he has been discriminated against on the grounds of his age, it does not help him to argue race and sex in the alternative. In fact, it makes it look like he has no idea why he was dismissed. He also makes more work for himself which will inevitably mean that he will have less time to concentrate on the stronger parts of his case. Even though there is a chance that evidence of discrimination will emerge as the case progresses, this chance is small and is greatly outweighed by the benefits of taking a much more streamlined approach.

None of this justifies a strike-out but it does suggest an alternative solution. If claimants were given access to free legal advice in the early stages of a case, they are more likely to voluntarily withdraw weaker claims, which distract from stronger ones and which ultimately cause frustration for everybody. Litigants in person cannot be expected to know when following up a hunch has a genuine chance of yielding results and when it does not. This is a skill which can only be developed with experience and it would save the tribunal system a fortune if the benefits of this experience were made available to them, regardless of means.

In the meantime, Mr. Methuen would stand a pretty good chance if he were to appeal the decision in his case to the Court of Appeal. On the other hand, he would probably be better off both financially and psychologically if he did not.

The Supreme Court held, by a majority of 4 to 1, that Article 6 was not engaged. It agreed with the Court of Appeal that the correct test is whether the disciplinary procedure would have a “substantial influence” on subsequent proceedings but disagreed that this test was met on the facts of the case. Instead, it considered that the barring investigation was sufficiently independent and that, in any event, there was a right of appeal through a fully judicial process to the Upper Tribunal.

Age Discrimination – Where Are We Now?

If you missed James Medhurst’s live webinar on 23 June, the recording is still available for you to view via the CLT Professional website. Visit http://www.clt.co.uk/WebinarDisplay/1692462/1070

The webinar lasts 1.5 hours, is worth 1.5 CPD Points and covers the following:

• Direct age discrimination
• Indirect age discrimination
• Harassment and victimisation
• The changes brought by the Equality Act
• The abolition of the Default Retirement Age
• European law developments

It also includes a review of the following cases that have defined this area of law:

• London Borough of Towers Hamlets v Wooster
• Homer v West Yorkshire Police
• Rolls Royce v Unite
• Seldon v Clarkson Wright & Jakes
• Wolf v Stadt Frankfurt am Main
• Peterson v Berunfungsausschuss fur den Bezirk Westfalen-Lippe

Until recently, they did not. Tort law distinguishes between indivisible injuries, for which there will be joint liability, and divisible injuries, for which each responsible party is liable for its own contribution. Most acts of discrimination are indivisible and so there should nearly always be joint liability, and tribunals would rarely be expected to make seperate awards against both employers and the individuals within those entities for whose actions they are vicariously liable. That they did so is due to a misunderstanding about the right of parties to contributions from others who share responsibility for a tort which results in an award of damages.

The Civil Liability (Contribution) Act 1978 allows a person who is successfully sued for committing a tort to claim part of the damages from another party who shares the blame for it. However, what is important is that the claim is between the two parties and not between the original successful claimant and the parties. This means that, if the party seeking a contribution is not able to trace the party with which it shares liability, for example because it is insolvent, it must still pay the claimant all of the damages. It cannot pay half and blame the insolvency for not paying the rest. Also, it is likely that this contribution can only be claimed in the courts, which means that it should never even trouble the tribunal system.

It was the case of Way v Crouch which caused the difficulty, in suggesting that the Civil Liability (Contribution) Act allowed tribunals to decide, firstly that parties were not jointly liable when, as a matter of orthodox tort law, they clearly were and, secondly, to divide any damages awarded between those parties. After several judgments casting doubt upon this conclusion, this judgment has now been definitively overturned in London Borough of Hackney v Sivandandan. Although it concerned a situation in which one collective body aided another to discriminate, its principles are surely applicable to vicarious liability as well. It should lead to the end of the practice of splitting awards between discriminators and this should help claimants by protecting their damages against insolvency.

Age Discrimination – Where Are We Now?

Thursday 23 June 2011 1.00pm – 2.30pm

Join James Medhurst for a 1.5 hour webinar considering the changes to the landscape of the age discrimination.

You will learn about:

• Direct age discrimination
• Indirect age discrimination
• Harassment and victimisation
• The changes brought by the Equality Act
• The abolition of the Default Retirement Age
• European law developments

This includes a review of the following cases that have defined this area of law:

• London Borough of Towers Hamlets v Wooster
• Homer v West Yorkshire Police
• Rolls Royce v Unite
• Seldon v Clarkson Wright & Jakes
• Wolf v Stadt Frankfurt am Main
• Peterson v Berunfungsausschuss fur den Bezirk Westfalen-Lippe

This webinar is worth 1.5 CPD points.

For further details or to book, please visit the CLT Professional website http://www.clt.co.uk/WebinarDisplay/1692462/1070

BOOK YOUR PLACE NOW!

It was reported last month in, among other places, the Daily Telegraph, that a restricted reporting order was granted in a case of alleged sexual harassment, which involved a celebrity chef. The Conservative Member of Parliament, Louise Bagshawe, was quoted as saying that,”This case embodies the concerns many MPs have about super-injunctions. In an employment case, it seems that there is a clear element of public interest in knowing the names and the relationship of the people involved.” Now it might be suggested that Bagshawe, previously an author of “chick lit”, ought not to be expected to fully understand the subtleties of tribunal procedure but, as she is a member of the influential Select Committee for Culture, Media and Sport, I would hope that she has done some research.

Unfortunately, she is wrong in almost every respect. A restricted reporting order is not an injunction, let alone a super one. There are several crucial differences, most significantly that it lapses at the end of the case, when the full details can be reported by the media, whatever the outcome. Its main purpose is to prevent wild speculation from being published before a matter is resolved, rather than to maintain privacy. Also, unlike High Court privacy cases, journalists are permitted to attend the hearing. In this instance, an application by the celebrity chef for a private hearing, from which the press would have been excluded, was refused.

However, the most alarming error, one that appears to have been deliberately and misleadingly repeated by the newspaper, is the suggestion that the order was granted only in response to an application by the celebrity chef. Elsewhere in the story, it is made clear that the claimant, known as Ms J, had made such an application herself as well. Of course, the names of all parties would have to have been hidden in order to preserve her anonymity. There is nothing at all in this case which usefully contributes to the important debate about injunctions.

However, it is important not to get carried away. The claimant won because her case was that she had been promised paid work when a scheduled internship came to an end. This was not challenged by the respondent who, apparently, failed to attend the hearing. It is a perfectly orthodox interpretation of contract law to conclude that, where the understanding of the parties is that a person will be paid, that person cannot possibly be a volunteer. This is not going to assist with the much more difficult situation in which the understanding of the parties is that there will be no payment. Indeed, there was no claim made for payment during the original internship, which it seems to have been accepted was reasonable to have treated as voluntary work. Even the NUJ’s own work experience guidelines are happy with unpaid placements of up to four weeks.

It is longer internships which cause the most uncertainty. In the legal world, it is not that uncommon for small and not particularly desirable law firms to take on interns for six months or more, effectively working as paralegals. This is highly exploitative and ought to be unlawful but it is unclear how a tribunal would rule in such a case. The only (non-binding) precedent is Vetta v London Dream Motions Pictures at the Reading Employment Tribunal in 2009, in which it was found that an expenses-only arrangement did not exclude entitlement to the minimum wage. However, few facts have been reported so it is difficult to know exactly which factors the tribunal took into account in reaching its conclusion. Even a decision from a higher court may not assist greatly as each case turns on its own facts. Employers would be advised to tread carefully with this issue.

As the JFS case made clear, in most areas of life, direct discrimination cannot be justified. Furthermore, it is incorrect to argue that, because discrimination was done at the behest of a third party, it was not on a prohibited ground, if it was known that the third party was acting on that ground (see R v Commission for Racial Equality ex parte Westminster City Council). However, in charity law, justification is possible and, this case, Catholic Care, a charity which makes adoption available only to heterosexual couples, tried to argue that this should be permitted because, otherwise, its homophobic funders might stop donating.

Catholic Care lost on the facts because the tribunal was unpersuaded that the threat to contributions was as great as was being suggested. However, it also went on to consider the legal question of justification and concluded that the negative attitudes of third parties can never justify discrimination. It relied on the decision of the European Court of Human Rights in Smith and Grady v UK, which stated that a breach of the right to private life of gay soldiers could not be justified by the negative attitude which was attributed to their colleagues.

Even more strikingly, it was conceded by the legal team of Catholic Care that discrimination could not be justified by a desire to comply with the tenets of the church. This is in marked contrast to the judgment in JFS where, although the majority considered that the admissions policy was disproportionate, all of the Justices concluded that, in principle, this could be a legitimate aim. The main distinction to be drawn between the cases seems to be that a private body can exceptionally rely on religious considerations but a publicly funded one cannot.

However, it would be dangerous to attempt to extract a point of principle from this decision. Firstly, the facts are somewhat extreme in that the colleague in question had alarmingly been convicted for the improper use of a firearm. It is also noteworthy that the employee making the grievance had frequently asked for the panel member to be removed. Finally, although it is not made explicit in the judgment, it is surely relevant that this was a large employer with a formal grievance process, conducted by the appointment of a panel. It seems unlikely and, indeed, undesirable for a much smaller employer to be expected to take quite such a stringent approach. As always with a case of unfair dismissal, the composition of the panel is just one of many factors to be taken into account.

Therefore, this case is a wonderful illustration of the importance of selecting the strongest point and eliminating any weak points when appealing against a decision. At one level, it is possible to understand the sentiment that there is nothing to lose by running an additional point but, where the law is complex, the time taken dealing with one point is likely to eat into to the time necessary to deal with the other point. At Employment Appeal Tribunal level in this case, the Fixed Term Employee Regulations point was not taken at all, which made matters even worse when it reached the Court of Appeal because, not only did it make the point look like a secondary argument, it also had the disadvantage that it had not been taken below, which further encouraged the Court to devote very little attention to dealing with it. It was only when it reached the Supreme Court, and the decision was taken to run a streamlined case, that this ground of appeal was given the attention it warranted. Had it been given prominence sooner, it is likely that it would not have had to go to the Supreme Court at all.

There has now been an appeal against that decision which was unsuccessful on the main ground of appeal, although it was successful on a secondary point concerning remedy. The Employment Appeal Tribunal found that the employer could not rely upon “special treatment in connection with pregnancy” because the favourable treatment afforded to the pregnant employee went further than was necessary and proportionate. Interestingly, however, the possibility was left open that the defence could potentially be used in an redundancy situation although it was left unclear as to exactly where the boundary would be drawn.

The conclusion of the Employment Appeal Tribunal is unimpeachable because there was no ground of appeal on the point but I do think that the tribunal erred by hearing evidence. In particular, I do not think that it was permissible to make a finding at a pre-hearing review that race was not a factor in the decision not to employ the claimant. Such a conclusion could only be reached following a full hearing, by a properly constituted tribunal that has heard all the evidence.

I have three reasons for suggesting this. Firstly, to obtain a summary judgment in a civil case, the same test applies that the claim must be shown to have no reasonable prospect of success. However, no evidence can be heard in these circumstances and the weakness of the case must be demonstrated based on the facts as pleaded. While Employment Tribunal procedure does not always follow the Civil Procedure Rules, and is sometimes more onerous than them, it seems unlikely that a substantial departure from these principles was intended.

Furthermore, the case of Ezsias v North Glamorgan NHS Trust makes it crystal clear that a claim can only exceptionally be struck out where there are disputed facts. It seems unlikely that this issue can be avoided by resolving those facts at an early stage and the assumption in Ezsias appears to be that no such fact finding will take place. It states that a claim could possibly be struck out “where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation”, suggesting that considering the documents is appropriate but hearing oral evidence is not.

Finally, a marked comparison can be made with Rule 18(2) of the Procedure Rules, which states that an Employment Judge may only make an order for a deposit at a pre-hearing review “without hearing evidence”. If it is impermissible to hear evidence when resolving an application for a deposit, it would be very odd if there was a less strict rule for the more onerous sanction of a strike-out.

This seems odd because a requirment that exams be completed without any extra time at all would certainly not be regarded as a compentency standard and, indeed, time adjustments are considered central to good practice. As a result, it is difficult to see where the line can sensibly be drawn. Can it be said that 60% is always sufficient extra time? Or 80%? Or 100%? It is more realistic to take the view that such matters should be resolved on a case by case basis, in which all of the circumstances must be taken into account, including not only the characteristics of the qualification in question but also those of the student. It is arbitrary to impose a blanket rule by way of a competency standard where all that is necessary is to consider whether an adjustment is reasonable or not.

The tribunal appears to have made a finding in the alternative that, even if it was not a compentency standard, the new adjustments requested would not have been reasonable in any event. If so, the outcome of the appeal is right, although it has been reached by the wrong route and so, ordinarily, it could have been troubling for future cases. Fortunately, however, the Equality Act has swept the issue away by abolishing the compentency standard defence altogether. An adjustment must now be always considered unless it is one the appropriate regulator has specified in advance is not required to be made.

As someone who keenly follows the Employment Appeal Tribunal website, I was intrigued by the decisions that appeared immediately after the announcement of the consultation. On the very same day came the judgment in Insaidoo v Metropolitan Resources North West, in which a panel led by Judge McMullen put an appeal through to a full hearing on the grounds that a judge alone had decided an unfair dismissal claim. The reasoning cannot be criticised at all but it is slightly surprising that the decision appeared on the website at all, given that it was only a preliminary hearing. It could just be a coincidence, of course.

The next day, this was followed by Argos v Campos dos Reis, another case with Judge McMullen in the chair. In a statement not entirely relevant to the issues in hand, the judgment said, “This kind of case is one which has taxed Employment Tribunals since they were set up and began hearing them almost 40 years ago. It is precisely because they are constituted with experience of employment relations that they are set in place to decide issues such as this: was there serious misconduct for which a reasonable employer could have dismissed the Claimant?” A coincidence is still a possibility but it is tempting to conclude that these decisions were an early response to the consultation.

That the result is not altogether satisfactory can be illustrated by considering a case with more extreme facts. If a manager were to deliberately frame a junior colleague for misconduct, the dismissal would be unfair if the manager himself carried out the disciplinary procedure but fair if another employee did so. This defies any common sense view of logic and fairness and so perhaps it is not surprising that Lord Justice Sedley avoided this conclusion by dissenting and, heretically, imputing the line manager’s knowledge to the dismissing officer.

However, there is another solution which was, with respect, missed by all three members of the Court of Appeal and, it seems, counsel for the appellant. The judgment includes a lot of discussion about section 98(4) of the Employment Rights Act 1996, which considers whether “the employer acted reasonably or unreasonably in treating (the reason for the dismissal) as a sufficient reason for dismissing the employee”. Unfortunately, this appears to have been taken to mean that the only conduct that is relevant to fairness is the conduct of the dismissing officer, particularly their mental processes in making the decision.

In my submission, this is wrong. As it is put in Polkey v AE Dayton Services, not considered in Orr, “it is not correct to draw a distinction between the reason for dismissal and the manner of dismissal as if these were mutually exclusive, with the industrial tribunal limited to considering only the reason for dismissal.” As a result of Polkey, a failure to follow a fair procedure will make a dismissal unfair, even where the unfairness of the procedure does not impact upon the mental processes of the dismissing officer. If a dismissing officer asks his secretary to inform an employee of the case against him but the secretary then fails to post the letter, a subsequent dismissal will be unfair, regardless of the fact that the dismissing officer is ignorant of the omission that was made by his secretary.

Imputed knowledge is, therefore, a red herring. An employer can be held liable, in an appropriate case, for the actions of its employees and, indeed, this is far from uncommon where constructive dismissal is alleged. Had Mr. Orr resigned in response to the actions of his line manager, there is no doubt that he would have succeeded in his claim. The same principle must surely apply to express dismissals as well so that, if the actions of the line manager were found to be outside the range of reasonable responses, the dismissal would then be unfair.

Eighteen months later, a judgment has been reached. It has been found that the reason for the dismissal was redundancy and that the claimant is entitled to receive a redundancy payment. Although it was found, oddly in my view, that the instruction to change location did amount to a suitable offer of alternative employment, it had not been unreasonable to refuse it. Of wider significance is the conclusion that the dismissal was automatically unfair as a result of TUPE. The tribunal applied the authority of Berriman v Delabole Slate in deciding that moving a place of work does not entail changes in the workforce. It follows that an employer cannot assert an economic, technical or organisational reason for the change. The result is that all dismissals of this kind are likely to be unfair.

I have also been involved in a similar case involving five bus drivers, who were forced to move from one bus garage to another, following the loss of a contract to operate their route. A judgment was made in their favour. Unsurprisingly, the tribunal declined to distinguish Tapere but it also found the dismissals to be unfair, applying Berriman in the same way as Tapere. Although these are all first instance decisions, there are now three examples in which this argument has succeeded, including Royden v Barnetts Solicitors, and so this must be considered to be highly persuasive as to the correct interpretation of the law.

A difficulty with applying O’Donoghue in the majority of cases is that the very existence of the proceedings makes it almost inevitable that the relationship between the employer and the employee has broken down but this, in itself, could not justify a reduction of the size of the award. Indeed, even the most casual reader of the Court of Appeal judgment would be struck by its frequent emphasis that any counter-factual dismissal must be one that would be fair.

An interesting clarification of these issues is provided by the case of Johnson v Rollerworld in the Employment Appeal Tribunal. The tribunal had found that the employee would have been dismissed nine months after his unfair dismissal because he had several other complaints about his treatment by his employer which demonstrated that the relationship between them had become somewhat frayed. However, as Justice Langstaff points out, his complaints were ones that he was entitled to make, and so he could not have been dismissed for making them, although it would have been legitimate for the tribunal to have concluded that he would have got fed up and resigned. Presumably this is so long as the circumstances of his resignation did not amount to a constructive dismissal.

A final point which flows from all this is that, because it is a requirement for the anticipated dismissal to be fair, any conclusion by a tribunal on this point must be well-reasoned. It must explain why the employer would have been permitted to dismiss the employee or why the employee would have been likely to resign.

The BBC argued that, if it did have a policy of not employing older women as presenters, which it denied, this would not be unlawful because such a policy would not exclude all women from employment as presenters and nor would it exclude all older people from employment as presenters. As the tribunal rightly noted, this reasoning is flawed because a protected ground does not have to be the only reason for the treatment to make out discrimination. Another way of looking at it is to remember that, in establishing the reason for less favourable treatment, it is necessary to identify a comparator whose circumstances are the same as the person making the complaint. In this hypothetical case, because both a younger woman and a man of the same age would have been treated more favourably, discrimination would clearly be established under both heads.

To some extent, the problem has now been eclipsed because the Equality Act makes express provision for claims of dual discrimination. However, there are other examples in which similar issues arise. If a broadcaster had a policy that it would only employ older presenters if they had won a BAFTA, it would not be able to argue that it was not discriminating on the grounds of age, just because it was possible for some older presenters to be retained. Those excluded would be treated less favourably than younger colleagues who had not won BAFTAs.

This begs the question of whether it is necessary for the Equality Act to provide for dual discrimination at all. Oddly, the requirement for comparators, which is retained in the Equality Act, does mean that there is a potential problem, not in the above situation, but where age and sex are both considered to be essential requirements for the role. It would be unlawful to apply a policy that only male presenters under the age of 40 will be considered, and both men over 40 and women under 40 would be able to bring claims in that respect. However, it does appear that a woman over 40 would not have the standing to bring a claim as she would not be in a worse position then either of her potential comparators.

It would be absurd for the people most affected by discriminatory practices to be unable to challenge them and so it is welcome that this lacuna has been closed by the Equality Act. On the other hand, it is clear that the circumstances in which dual discrimination is a useful concept are very rare and, therefore, it is hoped that it will be used sparingly by claimants and their representatives, especially at this time, in which the prohibitive cost to employers of the tribunal system is being criticised. Common sense must be exercised by all concerned.

The first, less than two weeks away, is the case of Duncombe v Secretary of State for Children, Schools and Families, concerning territorial jurisdiction in the context of European law rights. The Court of Appeal decision is discussed here. The following week, a nine-member Supreme Court will consider Home Office v Tariq, which deals with the circumstances in which security classified documents must be disclosed in order to ensure that there is a fair hearing at an Employment Tribunal, although the case clearly has far wider implications.

11th-14th April is a bumper week for employment law at the Supreme Court. Firstly, R (on the application of G) v The Governors of X School is another case concerning the right to a fair trial, this time in the context of disciplinary proceedings which can seriously impact upon a career. The Court of Appeal has said that there is a right to legal representation in these circumstances. Then, the same panel of Justices will hear Parkwood Leisure v Alemo-Herron, a complex case about the effect of TUPE on collective agreements. The Court of Appeal’s reasoning in that case is summarised in the News section here.

Likely to be heard during the summer is Autoclenz v Belcher, an important case about employment status, which particularly deals with the question of when an agreement to be self-employed can be considered to be a sham. At around the same time is Homer v West Yorkshire Police, applying the principles of indirect discrimination to age in the context of retirement. The Court of Appeal, mainly for reasons of policy, held that disadvantaging people about to retire is not age discrimination. I discuss the decision below in Autoclenz here and Homer here.

The end of the year will see the infamous case of Edwards v Chesterfield Royal Hospital, in which the judgment of the Court of Appeal is rather persuasive in its reasoning but undoubtedly controversial in its result, as it allows employees to claim damages for breach of contract beyond their notice period, albeit only in certain extreme circumstances. The Supreme Court may well be asked to clarify the earlier decisions of the House of Lords concerning the scope of the so-called Johnson exclusion area. In a sense, the final case, Jivraj v Hashwani, is not an employment law case at all but one which does require employment law to be applied and to which, it is respectfully submitted, it has not been done all that well so far. See my previous posts about Edwards here and Jivraj here.

Keep an eye on the News page for details of the final decision in these cases.

The issues are complex but the most obvious way to bring a discrimination claim against a political party is as an association. This is the basis on which the membership rules of the British National Party were recently challenged. However, such a claim can only be brought in the County Court and, in any event, sexual orientation discrimination law did not apply to associations in the period covered by this complaint. Nor could UKIP be sued as a qualifications body. Although some cases were brought against the Labour Party using this provision in the 1990s, it was ultimately held by the House of Lords, in a case called Watt (formerly Carter) v Ahsan, that it does not apply to political parties.

This leaves Ms. Sinclaire with a claim that she was discriminated against as an employee, which is not as crazy as it may first appear. She has clearly never been an employee of UKIP but, while Members of Parliament at Westminster are self-employed (see paragraph 257 of this link), it does appear that MEPs are employees of the European Union. Certainly, they pay European income tax and, according to Baroness Ludford, UK MEPs also pay national insurance and income tax to HMRC. Therefore, there could perhaps be a discrimination claim against Nigel Farage and Geoffrey Bloom, who are also employed by the European Union, so it is vicariously liable for their actions, but not UKIP itself.

However, this is not the end of the matter. The next problem is parliamentary immunity, a concept of the European Parliament very similar to parliamentary privilege at Westminster. The allegation that Mr. Bloom called Ms. Sinclaire ‘queer’ in a Strasbourg hallway, if it is true, would probably not be covered by immunity as it seems unlikely that such comments would have been made in the performance of his parliamentary duties. On the other hand, the primary complaint, that Mr. Farage formed an alliance with the Italian Northern League, who are said to be homophobic, must surely be covered. Even if it is true that they are homophobic, they have been democratically elected by their Italian voters and are expressing political views in the context of their elected position. Equally, Mr. Farage was acting in his role as leader of UKIP in choosing to form an alliance with them. Ms. Sinclaire will have an uphill struggle to win her claim.

Two authorities on remission are very well known. One of them, Sinclair Roche & Temperley v Heard, sets out the factors to be taken into account in deciding whether a remission is to be to the same tribunal or to a new one. The other, Dobie v Burns, deals with cases in which a tribunal is found to have misdirected itself but in which it is argued that no remission is necessary andthe original decision should be upheld on the grounds that it would have reached the same conclusion even if it had applied the correct test. According to Dobie v Burns, this course is only the appropriate one if the decision was ‘unarguably right’.

A different issue arises in those cases in which the appellant suggests that the tribunal can substitute its own finding for that of the tribunal, without remission being required. The principle to be applied in this situation is much less well-known and derives from a case called Hellyer Brothers v McLeod. It is that a substitution can be made, ”If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation”. This case was reported in the ICR but not in the IRLR and is not available on the Bailii website, which might explain its relative obscurity.

In the recent decision of Devon and Somerset Fire and Rescue Service v Tilke, it appears that even the learned judge of the Employment Appeal Tribunal had not been aware of McLeod and he had apparently reached the conclusion that there was no scope for the appeal tribunal to substitute a finding even where there was only one possible conclusion to be reached from its own analysis of the facts. This outcome would have resulted in the rehearing of a case which had taken seven days to hear on the first occasion so an appeal was made to the Court of Appeal, who overturned the decision. It is hoped that the judgment will be reported widely so that the principle in McLeod is more widely known.

In this case, my conclusion is that one important aspect of the film was made unnecessarily rosy. Before the credits rolled, there was a suggestion that other industrialised countries followed the example of the United Kingdom in passing the Equal Pay Act. During the film itself, an American Ford executive is seen threatening to move the factory elsewhere if equal pay is introduced. In fact, as with most discrimination legislation, this country lagged far behind its Western allies. For example, France introduced equal pay for women in 1946, only two years after it had given them the vote, and equal pay formed a key plank of the original Treaty of Rome in 1957. Even the United States introduced an Equal Pay Act in 1963. Although Ford eventually decided to abandon Dagenham in favour of Germany, in 2000, this had nothing to do with employment law in the two countries which, if anything, is more favourable to employees in Germany. It was because of the higher productivity of the facilities at the Cologne factory.

However, to be fair to Barbara Castle, it would also not be quite correct to say that the Equal Pay Act was only passed in order to facilitate membership of the European Community. Only months before the Dagenham machinists strike, Charles de Gaulle had vetoed United Kingdom membership for a second time and negotiations did not begin again until Edward Heath was elected in 1970.

I have more sympathy with the decision of the writers to boil down two different pay disputes into one to make it easier for a general audience to follow. On the other hand, people interested in employment law should be able to handle the full version. The straightforward direct equal pay issue arose from the fact that women were paid 87% of the rate of men in same B grade, which was allocated to unskilled workers. However, the sewing machinists also felt that they were semi-skilled workers who should be paid C grade rates. Indeed, this regrading would have been worth more money to them than equalisation of their pay with men and, for many of them, was the main grievance. Ironically, therefore, equal pay was not the main motivation for all of the women in taking part in the strike.

Though it was not necessarily seen in quite this way at the time, from a modern perspective, it is clear that grading was also an equal pay issue. The women had to pass tests to prove their proficiency in using a sewing machine, which put them in the same bracket as C grade paint sprayers. They were paid less than equally skilled men for work of equal value. The only possible reason why the machinists were paid at B grade is that they were predominantly women.

This leads to the final irony. Although equal pay for like work was introduced at Dagenham, no regrading took place. The Equal Pay Act itself did not help in this respect either because it also dealt only with like work and not with work of equal value. The victory was not complete until two events of 1984, a second strike at Dagenham, which led to a regrading to C grade, and new legislation to require equal pay for work of equal value, by a reluctant govenment which had been taken to the European Court of Justice by the European Commission. As usual, the United Kingdom was lagging a long way behind the rest of the world.

However, the recent decision of the Employment Appeal Tribunal in Imperial Day Nursery v Marshall suggests that awareness of the weaknesses of the case remains an important consideration. An order for costs against the employer was overturned because, although its argument could not possibly have succeeded, the representative of the employee had also not been aware of the relevant authority and she had not drawn it to their attention.

This has potential significance when drafting costs warning letters. It is often argued that such letters should be taken into account when an application for costs is considered but they frequently do no more than assert that the case is misconceived without saying why. It would now seem that this will be insufficient, unless the case is obviously misconceived on its face. This is desirable and should discourage speculative costs threats, designed to do no more than frighten claimants, regardless of the actual merits of the particular case.

In allowing the appeal, Judge Peter Clark asked himself this question: “What is the purpose of pleadings in the Employment Tribunal? It is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it.” In this case, therefore, because the respondent had been well aware that the claimant was relying on a continuing act, and had not been taken by surprise by it, the pleading point ought not to have been taken, considering all the circumstances.

A similar approach can be discerned from two earlier decisions of Peter Clark. In Hanly v Norinchukin, it was argued that the tribunal had erred in failing to consider a hypothetical comparator when the actual comparator, as was identified by the claimant, proved to be unsuitable. It was held that, although it would have been open to the tribunal to consider a hypothetical comparator, so long as it had put this suggestion squarely to the respondent during the hearing, the point could not be taken for the first time on appeal because the respondent had not been given an chance to deal with it and would have been prejudiced.

In Manchester Metropolitan University v D’Silva, Peter Clark stated that the issue raised in Hanly was one of natural justice and went on to say the same about Chapman v Simon, a famous Court of Appeal case about pleadings. He cited Stanley Cole v Sheridan, another decision of the Court of Appeal, concerning a similar point about when a judgment can be overturned when it refers to authorities not mentioned by the parties in submissions. From this it can be concluded that, when arguing a pleading point, the proper focus is not on the technicalities of what is in the claim form, but rather on questions of fairness to the parties.

Similar questions of policy arise in the widely-reported case of a lap dancer who is suing the Stringfellows nightclub for unfair dismissal. There might be some dispute as to the extent to which strippers are exploited but there is certainly a stronger case for saying that they need special protection than there is for arbitrators. There are several features of the arrangement with Stringfellows which seem particularly odd. Firstly, although lap dancers were nominally self-employed, and were paid by customers per dance, they were also required to dance on stage, without payment, once an hour, or else they would be fined. This is a far from typical feature of an agency relationship and it is hard to imagine Adecco or Brook Street requiring the secretaries on its books to carry out administrative work for them without any payment.

Another strange quirk was the use of “heavenly money”, vouchers purchased by customers to pay for dances. The dancers were not permitted to accept any cash and so the degree of control was unusally high. They were obliged to work three shifts a week and were banned from working for other clubs. Unsurprisingly, if dancers were unable to work, they were not permitted to send a substitute in their place. The service provided was certainly “personal”.

On the other hand, as with many status cases, tax rears its ugly head. The point made by counsel for Stringfellows was that the claimant could not be self-employed for tax purposes at the same time as being an employee for unfair dismissal purposes. Although the tests are strictly different, this is a persuasive argument. The problem is that the definition of an employee in the Employment Rights Act is much narrower than that in discrimination law. My feeling is that the claimant is probably going to lose but I hope that the tribunal keeps its decision within the boundaries of the issues that are before it, leaving open the question of whether a lap dancer can claim discrimination. It is not difficult to imagine an unpleasant sexual harassment scenario from which employment law ought to be providing protection.

Interestingly, however, if the nun in question were dismissed, it is likely that she would have a claim. The formula “related to pregnancy” only appears in the Sex Discrimination Act and the Equality Act in the context of claims for harassment but the word “related” is used by Judge McMullen in the case of Nixon v Ross Coates Solicitors to refer to a claim which was expressly argued to be direct discrimination rather than harassment (see paragraph 52). It appears that the Employment Appeal Tribunal is interpreting statutes through European law without expressly saying so. Therefore, if the nun were subjected to a detriment because of her adultery but the reason was also related to her pregnancy, she would be able to show discrimination, even if the man who made her pregnant would have been treated identically.

If the concept of pregnancy-related discrimination is to be introduced into UK law, it will also be necessary to consider how close a connection is necessary for something to be related to pregnancy. A similar problem concerning disability-related discrimination was discussed by the House of Lords in some of the less infamous passages in Lewisham v Malcolm. For example, Lord Bingham suggested that the dismissal of a deaf employee for the improper use of confidential computer files was not for a reason related to his disability, even though his deafness arguably contributed to the dismissal, as it made it harder for him to defend himself during the disciplinary process. Just as establishing the reason for treatment does not depend upon a ‘but for’ test, nor does the question of whether it is related to pregnancy.

Going back to Nixon, it is easy to see how gossiping about the paternity of an unborn child is pregnancy-related harassment. Similarly, attempting to force an employee to return to an environment in which such gossip takes place would also appear to be pregnancy-related. However, when the claimant then refused to come into work, and her pay was stopped, the tribunal found as a fact that the reason her pay was stopped was that she did not attend work, and that anyone else who did not attend work would have been treated in exactly the same way. The situation would undoubtedly never have arisen had she not been pregnant but that is not the test. It seems to me that the Employment Appeal Tribunal ought to have found the connection with pregnancy to be too remote in that particular case. It is a shame the opportunity was not taken to more thoroughly reconcile the statutes with European law.

The basis for this conclusion is that arbitrators are employees of the parties who engage them which is why it is troubling that the composition of the Court of Appeal included none of its six judges who have experience of sitting in the Employment Appeal Tribunal nor its discrimination law specialist. There is also a cautionary tale here for the respondent to the appeal who, unlike the appellant, did not instruct an employment junior in order to assist its commercial silk with the case. As a result, there was a great deal of not particularly helpful discussion about whether an arbitrator is more analogous with a judge or with a solicitor.

Rather than reasoning by analogy, the correct approach is to closely examine the bargain struck between the parties. For many practitioners, a useful rule of thumb is that, if there is a contract requiring that services are provided personally, there will often be an employment relationship for the purposes of the discrimination legislation. However, the Court of Appeal elevated this oversimplication into a proposition of law. The correct test, as stated by the Court of Appeal in Mirror Group v Gunning, is that personal service must be the dominant purpose of the contract. In James v Redcats, the then President of the Employment Appeal Tribunal, Justice Elias, interpreted this to mean that, where a relationship between the two contracting parties is more like that between a business and its client, personal service will not be the dominant purpose of the contract and so no employment relationship will arise.

The Court of Appeal also relied too heavily on Kelly v Northern Ireland Housing Executive, a case in which the partners of a law firm were found to be employees of their client. In Legal Service Commission v Patterson, the opposite conclusion was reached, and so Kelly is not authority for the proposition that solicitors will always be employees. Each case turns on its facts. And this led, it is submitted, to the biggest error of the Court of Appeal. The starting point for determining whether there is an employment relationship between two parties is to examine the wording of the contract, particularly the label that the parties themselves use to describe the arrangement. Ever since the judgment of Lord Denning in Massey v Crown Life Insurance, this has been an important consideration and it can be decisive, particularly, in my experience, where there is no problem of unequal bargaining power between the parties.

It simply cannot be said that arbitrators are always employees regardless of circumstances, and the question cannot be answered in the abstract before there is a contract in place. As a result, I find it hard to see how an arbitration agreement can be rendered void just because of the speculative possibility that discrimination in the employment field might arise. As the High Court rightly observed, members of the Ismaili community, who were being sought as arbitrators in this case, do not take any payment for such services and so it is doubtful that they would regard the relationship as being one of employment. Permission to appeal to the Supreme Court has now been requested and I would expect both the request to be granted and, if there is enough employment law expertise in the court, that the appeal will succeed.

According to an article in HR Magazine, a claimant may now be able to “secure a pay rise to plug the gap between her pay and the notional pay of the hypothetical comparator, plus potentially thousands of pounds in compensation for the injury to her feelings”. This sounds alarming but it could well be understating the case. It is plausible and indeed probable that she can also claim the difference in pay between herself and her hypothetical comparator, dating back to the start of her employment. After all, sex discrimination is a tort, and this means that “the applicant must be put into the position she would have been in but for the unlawful conduct”, as the Employment Appeal Tribunal confirmed in the case of Ministry of Defence v Cannock. The difference in earnings would surely form part of a claimant’s loss.

As was noted by HR Magazine, one objection to this is that it is a speculative exercise to decide what a hypothetical comparator would have been paid. On the other hand, tribunals are generally permitted to take a “rough and ready” approach to determining compensation, while the case of Scope v Thornett obliges them to speculate. Although it concerned unfair dismissal, Scope v Thornett has also been applied to claims of discrimination as well, and the sex discrimination case of Bentwood v Shepherd leaves no doubt that a “broad brush” approach can be taken. The clincher is the decision of President Elias in Walton v Bewley in which, hypothetically discussing hypothetical comparators, he conceded the possibility, at paragraph 57 of his judgment, that “a rough and ready remedy is better than none at all”.

The next question is whether a claimant would be prevented from getting compensation in relation to historical pay differences, even if they pre-date three months before the bringing of the claim. The intuitive answer is that she would not, because the discrimination would amount to a continuing act, as is supported by the first instance decision in a famous City sex discrimination case, Bower v Schroder. The employee complained about discretionary bonuses, which were not covered by the Equal Pay Act, and was awarded the bonuses it was found that she would have been paid, had she not been discriminated against, going back four years. Not only was the tribunal prepared to speculate about the payments that her hypothetical comparator would have received, it was also willing to backdate her claim.

This produces an odd result. In equal pay claims, arrears of pay can only be awarded for up to six years. If brought as sex discrimination claims with a hypothetical comparator, there appears to be no limit as to how far back a difference in salary can be compensated. Also, injury to feelings is not available in the former case but it is in the latter so it seems that an employee is actually better off if there is no actual comparator for equal pay purposes. This raises the absurd possibility of an employer defending a sex discrimination claim about pay by trying to show that there is a comparator who is paid more than the claimant. During the consultation, employer organisations were rarely willing to support the idea of hypothetical comparators in equal pay law. It might not be long before they begin to wish that they had.

Despite this, some tribunals seem to have reached to the conclusion that they are obliged to award holiday pay in these circumstances, a recent example being a case involving a Yorkshire-based haulage company. This follows the first instance decision in Rawlings v The Direct Garage Door Company earlier in the year. However, it is worth noting that the Employment Appeal Tribunal has yet to rule on the issue and neither decision is binding.

In fact, there is a persuasive argument for saying that holiday pay should not be awarded in these circumstances. For one thing, the Stringer judgment does not require that Member States must allow unused holiday pay to be carried over when an employee is sick. It says that they must either allow holiday pay to be carried over or they must allow employees to take holiday and be paid for it while they are sick. The latter was the favoured solution of the Employment Appeal Tribunal in Kigass Aero Components v Brown, before the position was disturbed by the Court of Appeal in the case that became Stringer. Given that the Working Time Regulations expressly preclude leave from being carried over, it seems likely that the conclusion in Kigass will now become regarded as an accurate interpretation of the law.

This is not quite the end of the matter because, in Stringer, the House of Lords ruled that a claim for holiday pay can be treated as a claim for a series of unauthorised deductions from wages. Therefore, it does not matter if unused holiday cannot be carried over from one year to the next. It will still be possible to backdate such a claim indefinitely if an employee has taken holiday but has not been paid for it. The question then arises as to what it means to have “taken holiday” in the context of an employee on sick leave and Kigass again provides the answer. An employee must give his employer notice that he wants to take leave. If he does not then no entitlement to holiday pay arises. In most claims arising at the moment, the effect of this will be that most claims cannot be backdated unless the employee has shown the forethought to give notice of his holiday in anticipation of the Stringer decision.

Famously, ‘Man Bites Dog’ is regarded as being news but ‘Dog Bites Man’ is not. Those cases in which backdated holiday pay has been awarded have received a lot of publicity but I suspect that this is because they are unusual and that, more generally, backdated holiday pay has not been awarded. However, looking forward, both employers and employees are now aware of the impact of the Stringer decision and so they should be expected to comply with the consequences of it. Employees would be advised to give notice of any period to be designated as holiday during their sick leave and employers should be aware that a few tribunals, at least, may not be too concerned about whether proper notice has been given.

A care worker was dismissed by her employer for gross misconduct, a dismissal that was found to be unfair. The employee successfully mitigated her loss by getting a job quickly but was dismissed by her new employer when it was told about the gross misconduct by her previous employer. Because the new job broke the chain of causation, she could not claim any loss arising after the date of her second dismissal, giving her a very small award.

On appeal, it was argued that the employee could rely upon stigma damages, following the decision of the Court of Appeal in Chagger v Abbey National. The problem with this is that, in discrimination cases, an employee can claim all losses flowing from the discriminatory acts but, in unfair dismissal cases, only losses flowing directly from the dismissal can be claimed. Because giving the negative reference was a separate act, which was not part of the dismissal, no additional compensation could be awarded. This reflects a wider problem that references cannot easily be challenged if they are unreasonable but not discriminatory.

References are actionable in the civil court system, using either the law of libel or negligent misstatement, as was established by the House of Lords in the case of Spring v Guardian Assurance. However, both of these are remedies in tort rather than contract and so do not fall within the Extension of Jurisdiction Order, which would allow tribunals to deal with them. In my view, Parliament should give some serious consideration to remedying this loophole.

In the meantime, my advice for employees is to think about the value of good references to them. If they are quite important, it is often worth settling a case and requesting an agreed reference as part of the package. For employers, such references can represent important bargaining chips, which should not be thrown away idly. It follows from this that it is, as a general rule, a foolish move to issue a bad reference while proceedings are still ongoing.

The Luxembourg court expressed its concern that an employer could act in a discriminatory manner while concealing the discriminatory nature of the decision. In response, the German government argued that this would not cause a problem because German law would then be interpreted so that time starts to run from the date on which the employee becomes aware of the discrimination, rather than the date of the discriminatory act. This was considered to be crucial by the European Court of Justice which cited the case of Levez v T. H. Jennings, an equal pay case in which it was stated that the date of knowledge is the material date.

In the United Kingdom, time usually runs from the date of the discriminatory act but, where the employee was not aware of the discrimination, this is one of the factors to be weighed in the balance when deciding whether or not to extend time. A good example is the case of London Borough of Southwark v Afolabi in which time was extended for nine years after the claimant found evidence of discrimination, having been allowed to inspect his personnel file. However, even in Afolabi, the Court of Appeal treated the extension of time as a matter of discretion rather than a hard and fast rule. By contrast, the logic of Bulicke suggests that time should be extended in all cases where discrimination is concealed from an employee.

The decision also confirms that the law in this area is symmetrical. Unambiguous words of dismissal are treated in exactly the same way as unambiguous words of resignation by an employee so that both are equally difficult to retract. However, there is a quite different line of authorities which suggests that an employer has an alternative that is not available to an employee in the converse situation – reinstatement. In Roberts v West Coast Trains, the Court of Appeal ruled that an employer could choose to unilaterally reinstate an employee who had appealed against dismissal. In that case, there had been a contractual disciplinary procedure which allowed for reinstatement but the case has been interpreted widely so that a contractual procedure is unnecessary and, arguably, the employee need not even appeal.

The problem with this wide reading of Roberts is that it leads to the absurdity, in a case like this one, that an employer can say, “Sorry, I did not mean to dismiss you,” and he is liable for unfair dismissal but, if he says “I reinstate you” instead, he is completely off the hook. It is curious, therefore, that Judge Richardson does not mention the decision in Roberts at all.

There is also a guest appearance by my old favourite, Buckland. Judge Richardson reasons that, if the words of dismissal amount to a repudiatory breach or represent the culmination of a course of conduct amounting to a repudiatory breach, then they cannot be retracted by the employer. This does not seem to be quite correct. After all, such a repudiatory breach would have to be accepted by the employee which would mean that she would have to be in employment in order to resign from it and, therefore, the words of dismissal must have been retracted after all. Buckland seems to me to be more helpful in limiting the effect of Roberts but it does this, not by preventing an employer from reinstating an employee, but rather by preserving the right of the employee to resign after having been reinstated. If there has been a repudiatory breach, the employee can elect whether to agree to the reinstatement or not.

It is rather difficult to completely seperate the legal and the political issues in this case but I will endeavour to do so. Starting with the law, the Trust’s argument was that the settlement reached was vastly in excess of the amount that could have been awarded in the event of a successful claim for wrongful or unfair dismissal. While this line of reasoning does appear to have some plausibility, it is actually very problematic in light of the fact that this feature of the arrangement is far from atypical. If it is really is the case that such golden handshakes are outside the discretion of public bodies, this would inevitably result in a fundamental shift of practice towards a different approach to government, and enforcing this would amount to political interference by the courts. Therefore, it is not surprising that the Court of Appeal held that the payment was not unreasonable and overturned the decision of the High Court.

In my opinion, there was a certain amount of bad faith in the position taken by the Trust. I doubt that it ever really intended to dispense with golden handshakes. Rather, it wanted to escape from its obligations in order to avoid the damaging publicity that could result if the amount of this settlement had been leaked to the media, particularly given the events that led to the termination. There is a clear parallel here to public statements made by Harriet Harman about the government being justified by the Court of Public Opinion in its attempt to escape from the contractual pension of Sir Fred Goodwin. There are some strong political arguments for not agreeing to these arrangements in the first place but the legal arguments for trying to back out of these decisions are incredibly weak. This is particularly the case in a context in which there remains a culture of public money being spent on such payments.

The solution is a political one. A whole new approach is needed in which inflated termination packages cease to be the norm in the public sector. This change can only be made by a democratically-elected government and not by the courts but it is even more pressing in the current economic climate. However, I would also make this point. The state, and particularly the NHS, also spends an enormous amount of money on litigation and these decisions are rarely made on a commercial basis. This case is one that ought never have been allowed to arise in the first place. It is not only golden handshakes that are a waste of public money.

The first problem for the claimant is that she was only taking part in an audition and was not successful in reaching the final stages of the programme. It is rather difficult to see how an audition can be regarded as employment for any purpose. However, like all discrimination statutes, the Disability Discrimination Act allows complaints to be brought about the arrangements which are made for the purposes of determining to whom employment should be offered. Following the case of Archibald v Fife, the word “arrangements” is defined very widely and an audition would surely qualify. Therefore, if a person who does reach the final stages would be an employee under the DDA, a claim could also be brought by a person rejected earlier.

The next problem is that even finalists on Britain’s Got Talents are not paid and so, technically, they are volunteers and there are a number of decisions stating that discrimination is not unlawful in the case of voluntary work. However, in my view, these cases are possible to distinguish. In the most recent example, X v Mid Sussex CAB, it is said at paragraph 12 to be common ground that “voluntary workers who have a contract with those to whom they supply their services, by which they contract personally to do any work, are protected”. Volunteers do not usually have any contract at all because there is no mutuality of obligations.

However, people who reach the final stages of talent shows are required to sign a contract and quite an onerous one at that. In 2008, the Daily Mirror obtained a copy of the eighty page contract for contestants on The X Factor and published some of most striking terms in a prominent article. Among other things, there is a restrictive covenant which prevents contestants from performing until three months after the last show unless the gig is being recorded in order to be used on the programme. There is also a clause which prevents any derogatory statements from being made about Simon Cowell and, in a creative approach to the conflict of laws, the contract is asserted to be “enforceable anywhere in the world and solar system”.

It would be surprising if there were not also more mundane terms, for example, requiring contestants to appear in the show every week until voted off and this, in itself, ought to be enough to create mutuality of obligations. Furthermore, it is doubtful that there would be the option of sending a substitute performer in the event of sickness and this would suggest that there is an obligation to carry out work personally. It is also worth noting that, according to press reports, similar talent shows such as Any Dream Will Do do pay participants at Equity rates when they reach the final stages. As a result, I would say that, on balance, there is a reasonably good chance of a tribunal finding that it does have jurisdiction to hear the case. Of course, even if it does get over this hurdle, it does not follow that the claim will necessarily be successful.

However, the position may have become even more restricted following the judgment of the Employment Appeal Tribunal in Adegbuji v Meteor Parking, which suggests that there is no jurisdiction for it to hear an appeal based on new evidence at all. According to President Underhill, this is because section 21 of the Employment Tribunals Act restricts appeals to points of law and so the power to admit evidence for the purposes of a factual appeal is of no relevance. The correct course for a person seeking to rely upon such evidence is to request a review from the original tribunal. Presumably, an appeal would still be available if the tribunal did not grant the review or it declined to admit fresh evidence for the purposes of the review.

As an interesting aside, there is a possibility of new evidence being admitted if there is already a point of law being appealed to which it is relevant because section 35 of the Employment Tribunals Act allows the Employment Appeal Tribunal to exercise any of the powers of the Employment Tribunal, including making findings of fact, to dispose of an appeal. The Appeal Tribunal is usually reluctant to make such findings but is permitted to do so. The power is not available, however, if no point of law is being considered. This analysis must be treated with caution because it is expressly said to be obiter and, therefore, not legally binding, no argument having been heard on the point. Nevertheless, it seems to me to be correct which means that appellants would be advised to apply for a review before trying to introduce any new evidence.

Litigators who draft documents are advised to avoid overly pretentious language which, while attempting to be formal and precise, is actually rather ridiculous. I am sure that I am not the only person to cringe at the suggestion that female colleagues were not told what to wear because “their general unattractiveness rendered moot their sartorial choices.” A question mark must also be raised at the attempt to bring the claim in a court in circumstances in which a binding clause in the contract required arbitration to be used.

The definition of sexual harassment in US federal law is similar to the UK definition in section 4A of the Sex Discrimination Act in that it requires unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile or offensive work environment. According to the leading case of Meritor v Vinson, the harassment must be sufficiently severe and pervasive, which is an objective test, similar to the requirement in section 4A(2) of the Sex Discrimination Act that conduct complained of must be reasonably considered as having the effect that it has. I strongly doubt that this requirement is made out in circumstances in which no derogatory comments have apparently been made about the employee in question and there have been no more than a few polite suggestions that she should dress differently.

The more interesting claim is for retaliation, equivalent to victimisation, which is made out if the dismissal can be linked to the complaints, regardless of their merits. However, the three month gap between the latter and the former makes this issue difficult to call. Much will turn on the evidence of poor performance.

Less seriously, the New York Daily News provides what is undoubtedly the most striking coverage. For the men, the website helpfully provides twelve posed photographs of the banker who is at the centre of the row, wearing some well-fitting office attire. For the women, the fashion editor observes, “The question isn’t whether Debrahlee Lorenzana was too sexy for her job. It’s where did she get that fabulous pushup bra?”

The first point to appreciate is that one of the grounds of appeal was not successful. The case of Gunton v Richmond-upon-Thames had established that, where a person is wrongfully dismissed after a breach of a contractual procedure, the loss is restricted to the period of time that it would have taken to complete the procedure plus the contractual notice period, and does not include the loss of a chance that there would have been no dismissal with the result that employment would have continued indefinitely. This principle was challenged on the basis that it was incompatible with the Human Rights Act but the Court of Appeal rejected this submission and considered itself to be bound by the previous decision of the House of Lords.

The appeal that was allowed was less far-reaching and was based on the fact that there was a separate breach of contract preceding the dismissal which gives rise to its own remedy. Although there could be no claim for the additional lost earnings flowing from the dismissal, it would be possible to recover damages for the loss of reputation resulting from a finding of misconduct, where there had been a failure to follow the correct procedure. This could include some loss of earnings but, crucially, this would be the earnings lost because potential future employers are put off by the stigma of the adverse finding, rather than any money that could have been earned with the employer being sued. There will be cases in which this will not make much practical difference to the amount that is claimed, which could still, in principle, amount to a whole lifetime’s worth, but it will be necessary to show that each decision not to appoint flows directly from the stigma and not just from being out of work, which I suspect will often be quite difficult in practice, especially when there is a public sector recruitment freeze which can readily explain a failure to find work.

What is certainly true is that this decision will only be helpful to employees who are dismissed for serious misconduct. A person who is made redundant in breach of a contractual redundancy procedure will still be restricted to damages calculated in accordance with Gunton, even if the practical result is that they are out of work for a long time, because there is unlikely to be stigma attached. This will also apply to those who are unfortunate enough to be dismissed for an entirely capricious reason with no procedure whatsoever. This is an important and dramatic decision but its scope is nevertheless considerably restricted in practice.

The early indications are that the decision does not go this far. According to an article on the Bloomberg website, Lord Justice Judge, in the majority, stated that “BA cabin members are highly computer literate. They use the internet on a daily basis.” This suggests a finding that, in posting the statutory information online, Unite had taken “such steps as are reasonably necessary to ensure that every relevant employee is informed”, as required by section 231 of the Trade Union & Labour Relations (Consolidation Act) 1992, notwithstanding the fact that they had not provided all of this information in e-mails to its members. This is defensible on a natural reading of the section, without the need for any consideration of human rights.

There is potentially another problem with the decision below, which could also be of significance for future cases. Injunctions are normally governed by the principles in the case of American Cyanmid v Ethicon, in which an applicant only has to show that there is a “serious question to be tried”, something that is very easy. However, for disputes about industrial action, this is modified by statute (section 221 of TULRCA) so that the merits of the defence brought by the union must also be considered. In this case, it appears that the judge believed that Unite had to show an overwhelming case, a questionable proposition, and granted an injunction purely on the basis that the case of British Airways was arguable, which is far from sufficient.

What is clear is that, subject to human rights, there are no grounds for saying that the breach in question, failing to quantify the 11 spoiled ballot papers, is too small to prevent an injunction from being granted. Had no steps at all been taken to provide this information, the union would unarguably have failed in its case. A breach of the balloting requirements can be disregarded if it results from a small accidental failure but there is no equivalent principle for a breach of section 231 and, as a result, the question of whether TULRCA is disproportionate and, therefore, is incompatible with the Human Rights Act is likely to remain.

Details are scanty but it appears that the main argument advanced was based on section 2(2) of the Sex Discrimination Act, which allows for more favourable treatment of women where there is special treatment in connection with pregnancy. However, it is doubtful that ‘special treatment’ would be interpreted widely enough to cover the circumstances of this case and I would not expect this point to succeed on appeal.

However, even before section 2(2) comes into play, it is necessary to establish that there has been less favourable treatment on the grounds of sex and here I think that Eversheds have a number of strong arguments. The first point to be made is that the woman in this case was not treated more favourably because she was pregnant. Had she been at work at the time, she would presumably have been scored for performance in the usual way, whether pregnant or not. She was treated more favourably because she was on maternity leave, which leads to subtly different results than if her pregnancy had been the reason.

If the pregnancy itself had been the reason then, as a matter of European law, there would have been discrimination on the grounds of sex, as there is no way of comparing a male employee with a pregnant one. However, in my submission, where maternity leave is the reason, a comparison can be made with a man, namely one who is on paternity leave. If, as seems likely, Eversheds would have given a maximum score to an employee absent on paternity leave then there was no discrimination on the grounds of sex.

Of course, if a woman is treated less favourably on the grounds of her maternity leave, she can rely upon section 3A of the Sex Discrimination Act but there is nothing to suggest that she cannot be treated more favourably for that reason, at least where a meaningful male comparator can be established. Nor does it make any difference if, as alleged, Eversheds were engaging in risk management in treating the woman more favourably because they would surely have engaged in exactly the same risk management process in a paternity leave situation, given that dismissals related to paternity leave will be automatically unfair.

As a reward for long service, the three claimants had been entitled to five additional days of holiday, in addition to their statutory entitlement, at the time of a TUPE transfer to the respondent. However, when the statutory minimum increased from twenty to twenty eight days, the respondent only increased their contractual entitlement to twenty eight days, rather than thirty three days, with the effect that the five additional days were lost. The tribunal construed the contract so that thirty three days should be given.

The claimants were unrepresented and the basis on which they wanted to bring their claims was unclear. They could not be brought under the Working Time Regulations because they concerned a contractual rather than a statutory entitlement to holiday pay and they could not be brought as breach of contract claims because the claimants remained employed by the respondent and so the tribunal would have had no jurisdiction. The tribunal relied upon its powers under Part 1 of the Employment Rights Act to grant the claimants a declaration as to their contractual entitlement, a remedy that was never expressly requested.

In upholding this approach, Judge Hand stated that a tribunal is entitled to reformulate a claim, so that it is brought on an entirely different legal basis, in circumstances in which all of the relevant facts are before the tribunal and there is no prejudice to the respondent. This principle is likely to have a much wider application than merely to claims about holiday pay and ought to soften the effect of Chapman v Simon on discrimination cases as well. The final point made by the judgment is that Part 1 of the Employment Rights Act does allow the making of a declaration about the meaning of a contractual terms in dispute, even in circumstances in which there is compliance with the requirement to give a statement of particulars.

Firstly, at paragraph 17, President Underhill unpacks the ‘toolkit’ of Lord Justice Sedley and notes¬†that an employer will generally have reasonable and proper cause for¬†an act that is reasonable,¬†even one that happens¬†to damage trust and confidence and, moreover, if an act is unreasonable, this¬†will be¬†material to the question of whether or not¬†it damages trust and confidence. He goes on to spell out¬†the important difference¬†between a breach of an express contratual¬†term, where reasonableness is entirely irrelevant (following Sharp v Western Excavating), and a breach of the implied term, where it is of¬†great¬†relevance.

Paragraph 18 notes that, although tribunals must consider the fairness of any constructive dismissal, it is hard to see how a breach of the implied term can be said to be within the reasonable range of responses, given that reasonableness will usually have already been considered at an earlier stage. This seems fairly obvious to me but is sometimes contested and I believe that Curry is the first clear authority on the point.

In commenting on the Court of Appeal decision in the ‘Highlights’ section of the Industrial Relations Law Reports, Michael Rubenstein suggests that the ‘reasonableness’ in the toolkit of Lord Justice Sedley must be different from¬†a range of reasonable responses test. This appears to be predicated on the assumption that¬†a range test is¬†subjective,¬†and so would be¬†inappropriate¬†for considering objectively whether there has been a breach of the implied term. However, President Underhill deals with this point as well, at paragraph 25, stating that a range of reasonable responses is inherent in the concept of reasonableness. There is often more than one¬†course that it¬†would be¬†objectively reasonable to follow so the test is not subjective.

There is one question that remains, which goes back to the case of Abbey National v Fairbrother itself. As I have said before, although Lady Smith started off the whole argument about the range of reasonable responses test, it is not quite clear that this was what she really meant. By referring to Whitbread v Mills, she seems to have been alluding to the principle from unfair dismissal law that there can be elements of unreasonableness leading to a dismissal without always making it unfair. It is much more questionable whether this applies to constructive dismissal situations although there are undoubtedly parallels with the conclusion in Sharp that mere unreasonableness will be insufficient to make out a constructive dismissal.

Of particular interest would be a situation in which an employer mishandles a grievance to the extent that trust and confidence is destroyed but holds an immaculate appeal upholding the grievance. The analogy with unfair dismissal suggests that the grievance procedure should be treated as having been reasonable but Buckland says that a fundamental breach cannot be cured and so the employee would still succeed in establishing constructive dismissal. Lord Justice Carnwath suggested during argument in Buckland that this could be one of those highly exceptional cases in which a dismissal that results from a breach of the implied term of trust and confidence could nevertheless be fair. However, President Underhill appears to close the door on this possibility, at paragraph 18, by endorsing Berriman v Delabole Slate, which makes it clear that events after a repudiatory breach are not taken into account in assessing fairness. Therefore, this is one area in which a constructive dismissal has to be treated differently from an actual dismissal.

This article in the Times includes an intriguing comment by Richard Lister of Lewis Silkin, who notes the lack of attention given to the changes to the territorial scope of the legislation. I must confess that I had not been aware of this issue before and I am equally surprised that much more has not been made of it.

Previously, it was possible to claim discrimination if some of the employment takes place in Great Britain, if the employer has a place of business in Great Britain or if the employee is resident in Great Britain for some of the employment. This meant that, for example, it was possible for Darrell Hair, an Australian cricket umpire, to sue the International Cricket Council, an organisation based in Dubai, about an incident that took place at the Oval Cricket Ground in South London. This is clearly wider than is either necessary or desirable, and it does seem to have resulted in Employment Tribunal tourism in at least one instance, but I fear that things have now moved to the opposite extreme with the territorial scope of the current Act.

The problem is that, as explained in paragraph 27 of the Explanatory Note, it will be left to tribunals to determine whether the law applies, expressly following the precedent of the Employment Rights Act 1996. This means that the leading case of Lawson v Serco is likely to apply to the Equality Act as well. However, Lawson is notoriously narrow, excluding virtually all cases where the employment is based overseas, even where both the employer and the employee are based in Great Britain. To make matters worse, Lawson suggests that unfair dismissal can only be claimed if the dismissal takes place within the jurisdiction of the tribunal, from which it would seem to follow that acts of discrimination taking place overseas must be excluded from consideration, even in the case of an employee who is also discriminated against at home.

It could be argued that these people will have a remedy in their country of work but this will only be true in some cases. Local courts in the Middle East, for example, are unlikely to provide them with a remedy. Even in countries which do have their own discrimination laws, employees face the unappealing prospect of having to bring multiple claims in several different jurisdictions, unless Lawson is significantly softened in its application to the Equality Act. Finally, it appears that Lawson does not currently extend to government employees abroad, even where diplomatic immunity can be used to prevent claims from being brought in the host country. This issue was discussed in my post about the Duncombe case, for which leave has now been granted to appeal to the Supreme Court. The opportunity must now be taken to close this loophole.

A more subtle problem is nicely illustrated by the recent decision of the Employment Appeal Tribunal in Ward v Ashkenazi, in which compensation amounting to little more than a notice period of one month was upheld. As Judge McMullen points out in his judgment, the effect of the case of O’Donoghue v Redcar & Cleveland Borough Council is radically different in short service situations. The usual rule is that loss of earnings can be cut off at a certain point if it can be shown that the employee would have been dismissed fairly on that date. This is very difficult to prove because it is necessary to show some misconduct, illness or mass redundancy situation that makes dismissal almost inevitable, as well as being entirely justified.

However, for an employee with less than a year’s service, the test is a rather different one. There is no obligation for any dismissal to be fair and so all an employer has to show is that there would have been a subsequent dismissal for some reason, however arbitrary or capricious, so long as it is not one for which a statutory exception to the service requirement exists. It is not even necessary to prove that there would be a potentially fair reason. This is a considerably easier task and will greatly curtail the size of payouts.

However, upon reflection, the argument advanced¬†in this case¬†is not only technical. It is also dead wrong. The comparator was a¬†hypothetical one and so, if he would have been treated more favourably than the claimant, this is a complete answer to the question of whether or not¬†he was discriminated against on the grounds of his sexual orientation. As Justice Elias (as he then was) stated in his comprehensive review of¬†the¬†law in London Borough of Islington v Ladele, at paragraph 35, “in practice a Tribunal is¬†unlikely to be able to identify the statutory or hypothetical comparator without first answering the question why the claimant was treated as he or she was”. This cannot possibly¬†be done until the end of the second stage.

The confusion seems to arise from the frequent¬†sloppy use of the word ‘comparator’ to refer to somebody for whom the relevant circumstances are materially different from those of the claimant.¬†As far as the statute is concerned, such a person is not a comparator at all, although evidence of how that person¬†is treated may be helpful in order to try to¬†construct a genuine hypothetical comparator. It seems to me that the consideration of imperfect comparators should often take place at the first stage although there are certainly some¬†situations in which the burden of proof¬†can¬†reverse without it even being necessary to¬†deal with¬†them. However, true¬†statutory comparators can never¬†meaningfully be considered at the first stage.

The agreement about the law is twofold. Firstly, an employer who intially characterises misconduct as being less than gross is not bound by this and is entitled, in some circumstances, to escalate one form of disciplinary procedure into one in which more severe sanctions are available. On the other hand, all of the circumstances can be taken into account in assessing the fairness of a dismissal,¬†including the fact that some managers regard the behaviour of the employee as being less serious than others and have given this impression by their choice of disciplinary procedure. This follows from the decision of the Court of¬†Appeal¬†in Airbus v Webb, in which it was held that relevant ‘circumstances’ in section 98(4) of the Employment Rights Act¬†should¬†be given¬†a wide meaning including, in that case, expired warnings.

However, having concluded that the initial¬†stance of the employer¬†can be taken into account, the issue then arises as to how¬†the original decision of the tribunal can be challenged. It was submitted for the claimant that the weight to be attached to a relevant factor is a matter for the tribunal. I would agree. It¬†is a permissible ground of appeal to say that a tribunal has given weight to an irrelevant factor but it is not possible to argue that a tribunal has given too much weight to a factor that it is entitled to consider. Therefore, Lord Justice Mummery could not agree with the Employment Appeal Tribunal ruling that the disciplinary procedure point had “taken on a disproportionate aspect” of the tribunal decision.

However, there is wider significance. Although pilots are not covered by the Working Time Regulations but rather by their own statutory instument, with a very different approach to the calculation of holiday entitlement, the argument of the 2750 claimants is that the amount of their holiday pay is a matter of European law and is not left for Member States to determine. If this is correct, it will necessarily affect the Working Time Regulations as well. This submission was rejected by the Court of Appeal last year in British Airways v Williams and it is this decision that is now subject to an appeal at the Supreme Court.

The issue is that the Working Time Directive is silent as to how holiday pay should be calculated. The Working Time Regulations take a different approach depending on whether a worker has regular hours or not. If she does not then she will receive an amount of holiday pay which is based on the average number of hours that she actually worked but, if she does, it is based on her basic hours hours alone, regardless of whether she has worked overtime or not (Bamsey v Albion Engineering). By contrast, the Civil Aviation (Working Time) Regulations say nothing about remedy so the Court of Appeal says that it is legitimate to give pilots holiday pay based on basic pay without accounting for flying time payments.

There is nothing in Stringer or any other case in support of the proposition that holiday pay should be calculated in a particular way. However, this would appear to lead to the bizarre conclusion that British Airways could choose not to pay their pilots any holiday pay at all or that a Member State could fail to provide a financial remedy for a breach of the Working Time Directive without itself being in breach of its own obligations. On the other hand, if the Court of Appeal has erred then Bamsey was surely also wrongly decided and holiday pay law will be thrown into doubt again. Watch this space on Wednesday.

It is necessary to be even-handed here and say that the test of justification is the same whether or not the requirement is to speak English or some other language. Therefore, in a client-facing role, dealing with Polish-speaking clients, justification would usually be made out. However, the argument used here was that Polish was required because health and safety briefings were given in Polish. This is patently absurd because, although the aim of complying with health and safety law is a legitimate one, it cannot be a proportionate means of doing so where so many potential applicants are likely to be affected and it would be easy to have briefings in English too. The company was clearly right to withdraw the advert.

This situation echoes the strikes at the Lindsey Oil Refinery a year ago and the infamous decisions of the European Court of Justice in the Viking and Laval cases. By contrast I believe that, while the right of companies and individuals to travel in the European Union is an important one, it cannot and should not be used to excuse discrimination. This is not just discrimination against English workers because the only logical explanation for preferring the Polish workers is that they are willing to accept worse terms and conditions than their English counterparts. This is double discrimination and should not be tolerated.

In practice, there are advantages in tribunals giving an indication of any likely deductions after the first hearing. This is when most of the relevant evidence will have just been heard and it can also focus the minds of the parties towards settlement. The problem is that, to the non-legally trained eye, it can look as though there has been a prejudgement of what is to come and, in any event, there is so little left to determine that it barely seems worth coming back just to deal with the issue of mitigation of loss. It is hard to avoid thinking that it would have been easier to have resolved the entire case in the first place.

In his judgment, Justice Langstaff also makes some general observations about cases in which mistake is argued as the reason for less favourable treatment. While, of course, it will occasionally be true that a mistake has been made, and this will always be a satisfactory reason which discharges the burden of proof, tribunals are entitled to be suspicious of such an explanation, especially where it has not been pleaded and emerges for the first time in oral evidence. It is easy to allege and so must be submitted to close scrutiny. This necessarily requires a tribunal to make detailed findings about how it happened.

Nor can a dismissal that arises from such a situation ever be fair, at least if one applies the reasoning in paragraph 47 that an employer cannot possibly justify an act which it denies has occurred. As I have never known an employer to admit to a breach of the implied term of trust and confidence, this means that there is little scope for defending a case once a breach of the term has been found. I think that this is entirely right both as a matter of legal certainty and of industrial reality but it does demonstrate the importance of having an approach to testing for a breach which is both consistent and open to scrutiny.

The problem is that whether or not there is a constructive dismissal is a matter of fact and is difficult to overturn on appeal. The¬†aim of Abbey National v Fairbrother¬†was to prevent such findings on whimsical grounds and, now Fairbrother has been overturned, it is¬†unclear how¬†a similarly questionable decision could be challenged.¬†I would argue that this can be¬†done by allowing the range of reasonable responses test¬†to be be used as part of the ‘toolkit’ of the appellate courts. Even if a tribunal has directed itself correctly, an analysis based on reasonableness may lead to a conclusion that¬†its decision is perverse.

There is also a problem with the finding that the Tribunal wrongly applied a subjective test in deciding whether the breach had been cured. It is difficult to comment without having seen the judgment but the submission by Robin White was that the Tribunal repeatedly¬†said that Professor Buckland was “entitled” to be dissatisfied with the¬†handling of¬†his complaint, and so they had applied an objective test after all.

In an earlier post, I questioned whether it was possible for a dismissal brought about by a breach of the implied term to ever be fair but Lord Justice Carnwath floated an interesting possibility in his discussions with counsel. If a repudiatory breach is incapable of being cured then it follows that events after the breach, but before the breach is accepted, cannot be considered in deciding whether an employee is entitled to resign. This means that, if these events can be taken into account in deciding whether the dismissal is fair, as permitted according to Savoia v Chiltern Herb Farms, then the two questions may well produce quite different answers. However the parties agreed that the decision in Berriman v Delabole Slate, in which the reason for the dismissal is defined as the reason for the repudiatory conduct, is regarded as being more orthodox, and it will be interesting to see if this idea makes its way into the final judgment.

In a sense, it could be argued that the ameliorative effect of an appeal is an example of a breach of the implied term being fixed and it is, I have to accept, the most plausible contender. Disciplinary action short of dismissal following a shoddy process could give rise to a breach (though many tribunals would find that it does not) which could then be remedied on appeal. This has the unfortunate effect that an employee has an incentive not to appeal but it appears to be a correct statement of the law. However, it is a relatively rare exception which reflects the fact that procedural breaches of trust and confidence are minor. There will also be cases where, if the problems with the process are severe, and are tainted by discrimination for example, they will be impossible to repair. The Employment Appeal Tribunal in this case was wrong to conclude it could decide the matter for itself without remitting it to a tribunal of fact.

Furthermore, a grievance does not work in the same way. Consider a case of sexual harassment where it is clear that a grievance finding that the acts took place, or even the dismissal of the offender, would not be sufficient to restore trust. If it were, it would have deleterious effect on our discrimination law. Now it might be said that, in Buckland, the breach was less serious than this but, if so, it is much more likely that there was no breach at all than that it was cured, and any challenge to the findings of the tribunal ought to have been mounted on that basis, applying Fairbrother if necessary (and if possible). The question of whether or not there is a breach of the implied term is a matter of fact and so, if the Fairbrother challenge fails, there is absolutely no reason to interfere with the findings of the tribunal.

In performing the analysis, unfair dismissal law is undoubtedly helpful, and even Judge Peter Clark is willing to rely upon Roberts v West Coast Trains, in which a dismissal disappeared when an appeal was upheld, as a useful analogy. However, more pertinent is the case of Taylor v OCS Group which warns against legalism and states that the overall effect of a procedure should be considered. Rather than asking whether there is a breach and then asking whether it has been fixed, the question is whether the process is adequate when considered as a whole. This is essentially the approach taken in Fairbrother. It is important to remember that, in several cases, it will be impossible for trust to be restored, at least not until years later. The alarming statement of the Employment Appeal Tribunal that the breach must have been fixed because there is nothing else that the employer could have done must be wrong.

It might be objected that the word ‘reasonable’ appears elsewhere in employment legislation, such as in discrimination law, where reasonable adjustments¬†must be made for disabled people and, previously, justification for indirect discrimination was required to be reasonable. There is no reasonable range in these cases but this is because an employer is expected to keep¬†disadvantage to¬†a minimum. Because there is¬†just one factor to weigh in the balance, it is¬†feasible to expect¬†an employer to adopt the best solution. In an unfair dismissal situation, there are many considerations and it is less clear which rights of the employee are to be given the most weight. As a result, there will be¬†multiple reasonable options.

I now want to return to Sharp. Having suggested in an earlier post that the second part of the test does not apply in the same way when the implied term is engaged, I nevertheless think that it is helpful to examine what it says about reasonableness. It states that whether there is a constructive dismissal depends upon whether there has been a fundamental breach of contract, not whether an employer has behaved unreasonably. In the case of an express breach, it follows that there can be a constructive dismissal even where an employer is found to have acted reasonably (Tapere is an example of this).

This is all very well but Sharp prefers the contract test because, otherwise, it suggests, constructive dismissal can be found on whimsical grounds. Therefore, in most cases, the test is higher than that of a reasonableness test. I would¬†suggest that this¬†will always be¬†so¬†for a breach of the implied term, not properly considered in Sharp. As ‘reasonable’ means within the range of reasonable responses and the action of an employer must be worse than unreasonable to make out a breach of trust and confidence, it is correct that a finding of such a breach arising from an action in the range of reasonable responses would necessarily be perverse. This is important because it is difficult to overturn findings on perversity grounds¬†but it is necessary to establish¬†a basis for challenging them to ensure consistency in the law.

For many people, this raises all sorts of issues including, unsurprisingly, the presence of the Lords Spiritual, who undoubtedly swung the result. Fortunately, however, for those who believe in equality, democracy and secularism, the intervention will prove to be entirely futile. The approved amendment restores the wording of the Sexual Orientation Regulations, which have been declared by the European Commission, in a recent reasoned opinion, to be inconsistent with the Employment Equality Framework Directive. This leads to the threat of action against the United Kingdom in the European Court of Justice and, therefore, the likelihood that the Parliament Act will used. It is also probable that, as it is a matter of compliance with European law, the government can make secondary legislation to force it through.

Even if the amendment were to survive, it would not last long against a challenge in a higher court. The government has stated that its proposed wording does not change the legal position and this is basically correct. The Sexual Orientation Regulations would have to be interpreted consistently with the Directive and the same will apply equally to the Equality Bill. The fact that the amendment is clearly intended to evade the Directive will not help and, if anything, it will be counter-productive. Churches may be afraid that they will be subjected to a few months of tricky litigation at a local employment tribunal but they are now faced with the possibility of dragging it out for several years, including a visit to Luxembourg.

My first observation is that Woods expresses some reservations about Sharp, which it is said has led employers to act totally unreasonably while stopping just short of a breach of contract. Justice Browne-Wilkinson feels that the implied term of trust and confidence can be used to fill this gap. More strikingly, in Malik, the House of Lords does not cite Sharp at all, which suggests that, if the two tests come into conflict, then Woods should prevail, notwithstanding the fact that Sharp is the decision of a higher court.

And there¬†may be¬†a conflict. Whereas Sharp emphasises that, once¬†a breach is found,¬†a tribunal¬†must go on to consider whether an employee is entitled¬†to resign, Woods says that a breach of the implied term is necessarily repudiatory, a point which has been followed in Morrow v Safeway Stores. However, “the Tribunals’ function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it”. In other words, it is a requirement of the test to consider whether an employee is entitled to resign but this is part of the test of whether there is a breach in the first place, not whether the breach is repudiatory. Buckland is wrong to divide this into two stages. Woods, as followed in Malik, creates an entirely new kind of constructive dismissal, to which principles different from those in Sharp will apply.

The reason is obvious. It is utterly artificial to say that an act breaches trust and confidence but does not entitle an employee to resign. If an employee is not entitled to resign then trust and confidence has not been breached. A stage-like approach is appropriate for a contractual analysis based on the breach of an express term but not for a breach of the implied term. I would go further and say that stages three and four become equally nonsensical when the implied term has been breached. Clearly it is hard to see how a common law concept can incorporate the statutory test of fairness but, fortunately, it is unnecessary to suggest that it does. This is because, as I will go on to argue, the bar for breaching the implied term is higher than for failing the statutory test so, it the latter is met, there can be no breach.

Article 6 of the European Convention on Human Rights provides that:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

But goes on to say that anyone charged with a criminal offence is, amongst other things, entitled to legal representation.
Here, the Court of Appeal held that there was every likelihood that the outcome of the disciplinary process, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures of the ISA relating to the barred list. And, therefore, the disciplinary proceedings are a determinant of the claimant’s right to practise his profession, and covered by Article 6.
The Court of Appeal held that the jurisprudence was clear that Article 6 “civil” does not necessarily entail a right of representation, but may do so. It goes on to quote the case of International Transport Roth GmbH:
“As I see it, there must be something in the nature of a sliding scale, at the bottom of which are civil wrongs of a relatively trivial nature, and at the top of which are serious crimes meriting substantial punishment. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.”

The Court upheld the High Court’s view that in this case, Article 6 “civil” required that the Claimant should be afforded the opportunity to arrange for legal representation in those proceedings should he so choose, and therefore it was irrelevant whether the disciplinary proceedings brought by the governors amounted to being charged with a criminal offence. “The jurisprudence is increasingly to the effect that what matters is the gravity of the issue in the case, rather than the case’s classification as civil or criminal. That is the primary driver of the reach of the rights which Article 6 confers.”

In this instance, unusually, it had been possible to conclude that no prima facie case had been made out, because the acts in question had been carried out by different colleagues and were of a completely different character from one another. This decision demonstrates that an application by a respondent for a pre-hearing review may not always be entirely futile, at least if the facts are equally favourable. Judge Birtles quite rightly rejects a submission that a tribunal is always obliged to defer the matter to a full hearing. The purpose of doing so is to avoid wasting time, not to prevent injustice to claimants.

However, there is not. So that¬†people do not get the impression that I am giving Judge Peter Clark too much of a hard time about Buckland, I wish to make it clear that I consider his judgment in Baldwin v Brighton & Hove Council¬†to be an example of judicial reasoning at its best. He shows that the test in Woods had been cited in numerous cases before Malik, always with the word ‘or’. Further, the passage in which Lord Steyn uses the word ‘and’ purports to be a direct citation¬†from Woods, which suggests that it is a transcription error.¬†Judge Clark could also have mentioned that Lord Steyn asserts that he is stating the test again, having used ‘or’ previously. There¬†is clearly no¬†intention to¬†amend the legal test.

Unfortunately, this is not quite the end of¬†the story. One consequence of Baldwin is that, by describing the test as disjunctive, it could be understood as saying that an intention for an act to destroy trust and confidence could be sufficient, even if it is not likely to do so. Reading the decision in context, it is doubtful that this is what it means but the point is an arguable one. More worryingly, the reasonable range of responses cases, Abbey National v Fairbrother and Claridge v Daler Rowney, both¬†adopt the formulation “calculated” with no mention of “likely”.¬†A brilliant solution is to be found in a location which makes it less than obiter, so I shall leave readers to search for it for themselves. It relies on the case of Norweb¬†v Dixon which states that ‘calculated’ means the same thing as¬†’likely’ and it¬†does not mean ‘intended’. Therefore, “calculated or likely”, “calculated and likely” and “calculated” all mean exactly the same thing – likely – which, by the way,¬†is how Lord Nicholls formulates the test in Malik. Case closed.

Although¬†intention is not required to breach trust and confidence, it does not follow that the bar is low. Despite the word games that have gone on over the years, there has been no¬†real analysis of the word ‘trust’. In everyday use, it can be broken¬†unintentionally but it¬†is hard to break and even harder to fix.

At Employment Law Advocates, we largely support the concerns which are expressed in that article. Although, regrettably, we did not take part in the original government consultation, we have recently submitted comments about the draft regulations to the Ministry of Justice. They can be uploaded here.

I¬†want to start by setting out the scope of the discussion.¬†Judge Clark says of the range of reasonable responses that either, “it adds nothing, in which case it is superfluous; or it alters the House of Lords test” in Malik v BCCI. I wish to make clear from the outset that I have no problem with the suggestion that it adds nothing or very little to the Malik test. Indeed, I would go so far as to say that it follows logically from Malik that an act that is¬†within the range of reasonable responses of an employer cannot possibly breach the implied term. I also note the position taken by the Employment Appeal Tribunal in¬†several¬†of¬†its decisions, which¬†are largely in¬†agreement with the rejection of the range of reasonable responses test in Buckland but state that cases in which a reasonable¬†act breaches the implied term will be exceptional. The latest example is¬†the judgment¬†of¬†Judge Serota in NSPCC v Dear, handed down today.¬†I cannot personally conceive of a real situation in which such an exception would ever¬†apply but the importance of these authorities is their confirmation that¬†there is a high¬†bar for¬†a¬†claimant to reach.

Therefore, the focus on my criticism of Buckland is that I am far from convinced that it does accept the existence of quite such a high bar. The strongest evidence of this emerges from those conclusions that have led Professor Buckland to take the case to the Court of Appeal. By suggesting that a breach of the implied term of trust and confidence can often be fair and by suggesting that it is easy to cure, it is treating such a breach as a trifle and trivialising the importance of trust between an employer and an employee. That is the issue which is going to be at the core of my argument over the next four weeks.

In my experience, tribunals vary wildly in the approach they take to rejecting claims or parts of claims. A particular issue is money claims that can be pleaded as unauthorised deductions of wages or breach of contract. Parties are not asked to specify which and yet claims are sometimes rejected on the basis that there is no jurisdiction to hear a wages claim. The rationale for taking a hard line is presumably a desire to cut down on the number of claims but, in practice, there are so often appeals or applications to review that this is a false economy of time. I note in passing that those tribunals with a more liberal policy seem to be currently experiencing less backlog than those taking a more draconian approach.

Such cases are surprisingly common, often because evidence of earlier acts of misconduct will emerge during the investigation of another charge, but also because some employers will reopen issues which had been resolved or overlooked in order to try to justify a dismissal, especially where the evidence about the main charge is rather shaky. It may have been concerns about the latter which led the House of Lords in to conclude, in Smith v Glasgow District Council, that a dismissal is necessarily unfair if an employer has failed to establish the truth of any one of the charges that forms an important part of the reason for dismissal. This harsh conclusion can only be avoided by an express finding that the charge is not central to the dismissal. Of course, Polkey and contributory fault could reduce the compensation.

Chondol ameliorates the effect of Smith somewhat by stating that a failure to establish the truth of even a key allegation is not always fatal, on the basis that the overall reasonableness of the procedure is the issue, rather than the reasonableness of any individual element. This is established from cases such as Taylor v OCS Group although this was not cited by Justice Underhill in his decision. Indeed, it might be said that the result in Chondol follows so clearly from the decision in Taylor that there was no need to report it at all. I disagree. The problem with Taylor is that it leaves unclear which procedural flaws will be forgiven and which will not and, in the light of Smith in particular, it might be assumed that a failure to establish the truth of a charge still would not be. Chondol provides welcome clarification.

A reluctance to apply the reverse burden of proof strictly is understandable, particularly in cases where there is no jurisdiction to consider unfair dismissal. An employer who has dismissed an employee with less than a year of service for an entirely arbitrary reason is unlikely to want to go into detail about the thought processes involved, but it would be entirely unjust to make a finding of discrimination in these circumstances. In practice, this means that tribunals will often accept dubious reasons, or find entirely unpleaded reasons of their own, for dismissal in order to ensure that the burden is discharged where it is fair to do so. This tendency is only increased by the very unfortunate tactic of pleading discrimination where a complaint is really one of unfair dismissal, as a way of trying to evade the lack of jurisdiction.

However, employers should still remain wary of cases like these. They are rarely won by the claimants but are sometimes lost by the respondents who are afraid of scare stories about tribunals who find in favour of employees for obscure reasons, and therefore decide that it is wise to lie about embarrassing but non-discriminatory motives. Such scare stories are completely unfounded but tribunals have been known to allow the reverse burden of proof to operate when told such lies, even if there is no direct evidence of any discrimination. This seems harsh but actually makes a great deal of sense. If a person is lying about the basis for a decision, it is clearly possible that discrimination is part of the reason and, if this did not result in an adverse finding, the practice of lying to cover up unlawful acts will no doubt be encouraged. Parties without legal experience tend to underestimate the ability of tribunals to work out whether a witness is telling the truth and the advice to them is simple. Tell the truth, however silly it will make you feel and, if there has not been any discrimination, you will win. Lie and you will lose.

He was allowed to pursue wrongful dismissal by the Employment Appeal Tribunal, following the earlier decision by President Elias in Bleuse v MBT Transport. It was held that a claim under the Working Time Directive, concerning work carried out in Austria, could be pursued in an Employment Tribunal because the Directive is directly effective and, otherwise, there would be no effective remedy for a breach by a UK-based employer. In the appeal, Lord Justice Mummery notes that Bleuse is not necessary for the wrongful dismissal claim. The contract was agreed to be subject to the jurisdiction of the English courts and, although the conversion of a contract from a fixed-term one to an permanent one depends on the operation of European law, it operates upon the contract itself and so no jurisdictional issue will arise.

However, the unfair dismissal claim is a different matter. Jurisdiction is governed by the case of Lawson v Serco which depends, subject to certain very limited exceptions, on the employment being based in the UK. None of the exceptions apply to this particular case. While the Fixed-Term Workers Directive is found by the Court of Appeal to be directly effective, there is not a legally-binding right in European law to be protected against unfair dismissal itself. Nevertheless, Lord Justice Mummery concludes that it is necessary to extend Lawson v Serco so that there is an effective remedy for a breach of the Directive.

It is difficult to argue with this result on the facts but the decision can hardly be said to clarify the law. The problem is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal where the UK government is the employer and can rely upon state immunity. Doubtless the Department will appeal and this will allow the point to be explored.

A less settled area of law, which gave rise to some ingenious arguments by Lord Pannick, on behalf of the school, concerns the case of Mandla v Lee, which provides the legal definition of an ethnic group. The Court of Appeal had suggested that an ethnic group had to be defined on biological grounds alone and, therefore, a convert to Sikhism (or Judaism) could not claim race discrimination. The House of Lords overturned this decision, stating that there can be a cultural element to an ethnic group. The test is uncontroversially an objective one and, as Lord Pannick pointed out, the effect is that M, the boy in the case, is Jewish like his comparator, who would have been given a place. As Orthodox Jews were not found to constitute a separate ethnic group, it was suggested that there was no race discrimination.

This approach initially appears to be compelling and is not an easy one to rebut but the Justices found a number of problems with it. The first issue is identified by Lord Kerr and Baroness Hale and concerns the fact that, although M and his mother are both Jewish, according to the Mandla test, they are not exclusively Jewish and are also part Italian. The reason for the less favourable treatment was the part that is not Jewish. This is persuasive because, otherwise, people of mixed race would not be protected.

However, it is Lord Mance, in the most detailed judgment, who really gets to grips with the issue. He points out that the intention of Mandla was to widen the definition of an ethnic group, rather than to narrow it, which means that biology is still part of the test, as well as culture. Although the boy and his comparator are members of the same ethnic group culturally, they are members of different groups defined in biological terms. Furthermore, following the case of English v Thomas Sanderson, people can be discriminated against on the grounds of their perceived membership of an ethnic group, even if the perception is objectively incorrect. The school cannot rely on Mandla to say that M is Jewish so there is no discrimination if the reason for treating him less favourably is that they do not accept him as Jewish.

This result could have much wider significance because Byrnell had also been the only authority for the proposition that a tribunal cannot reject an agreement where there has been a repudiatory breach of contract, such as the fact that a settlement has not been paid. Indeed, it is difficult to see a distinction between a rescission of a contract because of misrepresentation and one resulting from a repudiation. It would therefore seem to follow that precisely such an argument would now be expected to succeed.

In Byrnell, Judge Ansell makes a brief reference to authorities, apparently relied upon by the tribunal, which state that a compromise agreement must be enforced by a court unless it was agreed before the termination of employment, because otherwise it would not fall within the scope of the Extension of Jurisdiction Order. This is correct but, in the above situation, the claimant is not seeking to enforce the agreement in order to obtain damages for breach of contract. She is seeking to set it aside so that she can bring a straightforward tribunal claim for, say, unfair dismissal. These cases are simply irrelevant.

The consequence of all this is that employers should now be particularly wary of failing to comply with the terms of compromise agreements as they may find themselves in the tribunal rather than merely facing enforcement proceedings. On the other hand, in contrast to settlements where a claim is stayed on agreed terms, a new claim must be issued and normal time limits will apply. Therefore, employees will need to keep an eye on the deadline if they want to retain the option to elect for the tribunal route.

When, as often occurs, there is a discrimination claim concerning numerous incidents, the tribunal will want to isolate those for which there is a discriminatory motive from those for which there is not. This can sometimes be fatal to the case. For example, to make out harassment, an employee is required to show either a violation of his dignity or the creation of an adverse environment, and one or two minor incidents may well not have this effect. Even where such an environment is created, if it is largely the result of events for which there is no jurisdiction, it will not assist if off-colour comments contributed to it if they would be insufficient on their own. Similarly, tribunals will rarely find constructive dismissal in cases of overwork and a claim of this nature will not be strengthened by a few mildly aggressive acts by an employer. Regrettably, although this reasoning is entirely justified, tribunals are reluctant to spell it out explicitly for fear of an appeal. Instead, they have a tendency to make adverse findings of fact which can be distressing for claimants and means that they often fail to understand why they have lost.

There are some more experienced representatives who understand the above problems and realise that it is necessary to selectively plead those points that will most assist the case. This is very sensible but it will not prevent tribunals from considering whether there are some unpleaded issues which may have actually been the cause of the stress felt by the claimant. It is even possible that tribunals have become more sceptical to counter the development of more sophisticated litigation tactics and that this could be as detrimental to strong claims as to weak ones. Therefore, it is important to be able to lead evidence to show which particular acts were the most upsetting for the claimant. It goes without saying that it will help a great deal if there are documents to prove they were complained about at the time.

The next question is whether this stereotype is a sufficent to found a tribunal claim. In the case of Johnson v Coopers Lane Primary School, the Employment Appeal Tribunal concludes that it is not, for the persuasive reason that it is unjust to make a finding of discrimination against an employer without some evidence relating specifically to the behaviour of that particular employer, rather than just people in general. This echoes some very similar reasoning by Justice Underhill in the decision of B and C v A.

However, Judge Ansell appears to go further than this. He agrees, in paragraph 40, with a submission of the respondent that tribunals should not take judicial notice of the existence of stereotypes, even in cases where (unlike this one) there is statistical evidence to support them. It is true that such evidence is never determinative on its own but surely it must be right that it can be used to bolster a case where other reasons to suspect discrimination exist. A fundamental rule of evidence is that the more unlikely an event, the stronger evidence is required to show that it took place. A corollary of this is that events which can be shown to be more likely than others will require less compelling evidence in their support.

I am not even certain that statistical evidence would be strictly necessary in a case like this. There is a convention that a tribunal panel hearing a race discrimination case should include at least one member with special experience of race relations. Such a person would undoubtedly be aware of the stereotype explored here, and also numerous others, and would therefore be in a position to be alive to their use.

The reason why ‘trumping’ is the wrong word is that there are¬†certainly¬†plenty of¬†situations¬†in which Christians and other religious people are subjected to criticism¬†that goes far beyond what is necessary to ensure¬†equality for gay men and lesbians. In such cases, a claim¬†for religious discrimination ought to succeed, even if the disciplinary action which provides the background is justified. There is perhaps an example here although, as noted at paragraph 12, it was not appealed. This¬†is the claim of harassment.

It does not appear to be disputed that colleagues of the claimant circulated a letter describing him as ‘homophobic’. This account is supported by at least one source unlikely to favour his case. The next question is why¬†this¬†suggestion was made and it simply does not follow that, because his dismissal was on the grounds of his actions¬†rather than his beliefs, the same can also be said of this remark. To call someone homophobic is an attack on the beliefs¬†at least as much as¬†the actions of that person, if not more so. Justice Underhill himself noted in Richmond Pharmacology v Dhaliwal that some examples of harassment do not require a comparator and I would submit that this falls squarely into that category.

A libel court would surely agree with me that the label ‘homophobic’ is more than¬†merely a criticism of behaviour but, if this seems extreme, consider a scenario in which¬†the word¬†is preceded or followed by a stream of unpleasant expletives. I do hope that this case is not regarded as excusing employers from the need to be more careful about their use of intemperate¬†language in these situations because, if so, then the¬†argument that one set of rights has ‘trumped’ another may begin to seem¬†like it is a valid one.

The argument was that a deduction was justified due to the frequency with which clients refuse to pay if a timesheet has not been authorised by them. This seems a surprising claim on the facts, the claimant having stated that he had never previously had worksheets signed, and the tribunal having appeared to find in his favour on this point. It is hard to deny that it is reasonable to make such a deduction if a client does not, in fact, pay, and I would be willing to accept that a clause which realistically reflects the chance of a client failing to pay would also be justified. However, an automatic deduction of wages for the entire period covered by a timesheet surely does not constitute a genuine pre-estimate of the loss.

Paragraph 355.02 of Division NI of Harvey on Industrial Relations sets out the basic structure of the argument. Workers are protected from being subjected to detriments on grounds related to trade union activities. From the case of Woodward v Abbey National, providing a negative reference is capable of being a detriment even where an employment relationship has come to an end and so the same must surely apply to the act of adding a name to a blacklist. However, there are two further problems in this case. Firstly, the claims are out of time by several years because the clock starts running from the date of the detriment. Secondly, there has only been protection for workers against post-employment detriments since the Employment Relations Act 2004 but many of the claims in this case precede the date of it coming into force. Furthermore, some of the workers were victimised by end users with whom they had no contract, and so they would seem not to qualify as workers, even under the amended law.

The time point is easier to deal with. There is considerable assistance from the decision of the Court of Appeal in London Borough of Southwark v Afolabi, in which a race discrimination claim was allowed to proceed when the claimant did not discover the relevant acts until nine years later. Afolabi concerned the extension of time on a just and equitable basis while, in this case, it will have to be shown that it was not reasonably practicable to bring the claims in time, but the point is certainly a persuasive one.

Moving on to the extent of the protection, before the changes, only employees were protected and only against action short of dismissal. When the amendments were made, the transitional provisions made it clear that they did not apply to detriments taking place before 1st October 2004. However, it is obvious that the main reason for the changes was criticism that the old law did not provide sufficient protection for freedom of association to comply with Article 11 of the European Convention of Human Rights. If so, perhaps the interpretative obligations in section 3 of the Human Rights Act will allow the unamended statute to be read in accordance with the current one and the transitional provisions to be disregarded.

This leaves the claimants who are suing end users in the absence of a contract. For them to succeed, either the definition of a worker would have to be extended further than it is in any other legislation or it would have to be found that human rights make it necessary to imply a contract to provide personal services, distinguishing James v Greenwich. Still, it would be rather surprising if they were not entitled to some sort of protection and so it is entirely conceivable that this case could end up in Strasbourg.

Section 21(2) of the Act says that a service provider must take such steps,¬†by way of adjustments,¬†as it is reasonable “for him to have to take”. This awkward wording appears deliberate but the judgment confirms that the words “have to” add nothing of significance to the test. Neither Lord Justice Dyson nor Lord Justice Wall could think of any situation¬†in which¬†it would be reasonable to take certain steps but it would not be reasonable to have to take them. It is hard to argue with this and¬†so the¬†outcome reflects badly on the draughtsman of the statute rather than the Lord Justices of Appeal. In any event, identical statutory wording appears in section 4A(1) of the Act, which concerns the adjustments¬†that¬†should be made by an¬†employer, and so it is extremely likely that this section will be interpreted in the same way.

However, the analysis in Sidhu focused on¬†the question of whether or not it was race discrimination to fail to take the context of the racist abuse¬†into account as possible mitigating circumstances. It does not appear to have been suggested explicitly by anyone¬†that the dismissal flowed from the tortious act of discrimination itself, even at the Employment Appeal Tribunal where the provocation was held to have occurred in the course of employment. Nevertheless, precisely such an outcome would result from the¬†use of a ‘but for’ test, as indeed was unsuccessfully argued in Orr. Strict causation does not apply.

The problem is that, in practice, a ‘but for’ test is often used as a shorthand, an approach endorsed by no less an authority by Lord Goff in James v Eastleigh Borough Council, although it should be noted that he only said that it was appropriate in ‘most cases’. A more cautious note has been sounded in the subsequent decisions of the Law Lords, in a series of cases beginning with Nagarajan v London Regional Transport. In West Yorkshire Police v Khan, Lord Nicholls said, “Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation as that expression is usually understood.” Instead, the reason why¬†should be assessed subjectively, as a question of fact.

On the other hand, the approach in Nagarajan, which requires consideration of the¬†state of mind¬†of the alleged discriminator, can also be misinterpreted. It does not affect the principle in James v Eastleigh Borough Council that the motive for discrimination is irrelevant. Motive must be assessed only for the purposes of determining whether the treatment is less favourable, not whether the less favourable treatment can be justified in some way. The key lesson is that both the ‘but for’ approach and the ‘state of mind’ approach¬†can sometimes be¬†convenient shorthands but they are not substitutes for a proper understanding and analysis of the case law. In particular, where an act is inherently¬†race-neutral, such as a dismissal for aggressive behaviour,¬†the Nagarajan approach is often likely to be more appropriate.

This is a weak analogy and, moreover, a similar suggestion could be made for most contractual terms protected by TUPE. For example, it is easy to see how a personal assistant role could evolve slowly over time into a general administrative role but it does not follow at all that a transferee could refuse to employ a personal assistant and offer her a job in administration instead, for three reasons. Firstly, in the former case, the changes have happened slowly over time, giving the employee time to adapt to them. Secondly, in the former case, there has clearly been agreement, either express or implied, to the changes. Finally, and most crucially, it is of enormous significance whether the changes are made for a reason related to the transfer. This is why the TUPE Regulations were originally enacted, after all.

As for practical difficulties, what no commentator seems to have realised, perhaps because it was not necessary to decide the case, is that there were, as a matter of fact, no practical difficulties in Tapere at all. The transferor and the transferee were both NHS Trusts with a close relationship. They frequently did work for one another (hence the service provision change) and they often allowed one another to use their property. This is how the claimant was able to remain at her old place of work for six months after the transfer and there would have been utterly no impediment for her to have continued to do so.

A harder situation which might arise under TUPE would be if there was a transfer between entities that did not share any property. However, the appropriate non-TUPE analogy would be with the closure of a place of work and its reopening some miles away. In such a case, best practice would be to make the employees who do not want to move redundant and any of them who unreasonably refused alternative employment would lose their entitlement to redundancy payments. An employer that forced employees to move outside the scope of their employment contracts would expect to face claims for constructive unfair dismissal. This approach has commendable flexibility because it encourages employers to offer a variety of alternatives, avoiding the very real problem that employees have no choice about the effects of TUPE. It also prevents TUPE from being misused as a mechanism to avoid redundancy payments.

A possible objection is that such a redundancy would be a dismissal related to the transfer to which my answer would be that, following Tapere, so would a unilateral variation of a mobility clause. However, TUPE allows such a dismissal if for an economic, technical or organisational reason entailing changes in the workforce. It is easy to see how a redundancy situation caused by employees not wishing to move location can entail such changes but it is more difficult to see how a change of location alone can do so.

Clarification has not been achieved by the case of Department of Work and Pensions v Alam, in which the Scottish Employment Appeal Tribunal states that an employer is able to make out this defence if it is ignorant of either the disability or its effects and, therefore, it must be aware of both for a claim to succeed. This is contrary to the earlier authority of Eastern and Coastal Kent PCT v Grey, which said that ignorance of both is required for the defence, although this was admittedly not very helpful, being notable as the only Employment Appeal Tribunal judgment in the last year to be internally inconsistent. The decision by Justice Silber to remit the case when it was apparently quite unnecessary to do so was interpreted by Lady Smith as showing that it did not really mean what it appeared to say on its face.

However, the real problem with both of these judgments is that they are trying to carry out statutory interpretation in a vacuum. It is difficult to properly get a grip on the meaning of a word¬†like¬†’and’ in a complex piece of legislation without trying to¬†understand¬†what is being said from a broader perspective and there are many issues¬†which are completely ignored but which could be of considerable assistance. For example, the relevant section also includes the word ‘disability’ and, as I discussed in this post, this can mean both the underlying medical condition and the impairment caused by it.¬†As this has the result of making the ‘disability’ and its effects equivalent for all purposes, neutralising the use of the word ‘and’, this suggests that¬†Grey is correct, although for reasons¬†different from those given in the decision.

On the other hand, I am sympathetic to the result of the Alam case, and of Ridout v T C Group, which it cites. This is another reason why I think that the word¬†’disability’ should refer only to the effects of the impairment¬†and not at all to the diagnostic label. If so, there would be a defence if an employer knew about a medical condition but not its effects but no defence if, for example, it knew that an employee used a wheelchair without knowing the reason why. This approach is also consistent with the logic of constructive knowledge. A person who knows the effects of a disability knows everything necessary in order to make reasonable adjustments but a person who knows only the label does not. This issue must be urgently considered by a higher court to ensure the coherence of disability discrimination law.

My original disquiet remains. Parliament did not originally legislate for political belief, and Justice Burton is in no doubt that the belief is political in this case, but now it seems that, not only will this lead to more claims, it will also be inconsistent in its effects, protecting some political beliefs but not others. Worse, it may protect those political beliefs which are dogmatically held more easily than those based on the wisdom of experience. Perhaps the solution is to extend protection to all political beliefs, as in Northern Ireland, although exemptions would presumably have to be made, for example, for editorial staff at the Guardian or the Daily Telegraph. However, legally speaking, the decision cannot be faulted.

However, I have learned that the case is being heard at the Supreme Court this week, exceptionally by a panel of nine judges, a measure of the high public importance which has been attached to it, as is the large number of interveners, many of whom have been involved since the case began in the High Court. Unfortunately, cases raising important issues of policy do not always encourage the consistent application of law and I am now worrying about an interventionist judgment with negative side effects.

It is worth examining the legislative history behind the key issues that arise. There has never been a justification defence for direct race discrimination but employment law has the concept of a Genuine Occupational Requirement, which allows practices that would otherwise be discriminatory if there is a strong enough reason for them. Rather curiously, when Parliament extended discrimination protection to other areas of life, it chose not to introduce a similar defence. In fact, the idea of a Genuine Service Requirement was discussed during the consultation for the Equality Bill but was subsequently rejected.

As a consequence, there are striking and alarming parallels with the infamous situation in Lewisham v Malcolm. Just like Malcolm, this is another case in which discrimination law is being used outside of the employment sphere, in circumstances in which employment law provides a sensible and proportionate defence but the other field in question does not. As in Malcolm, the temptation for the Justices will be to narrow the concept of direct discrimination in order to achieve a desired result, but in a way that will have knock-on effects for employment law, where the policy concerns in this case simply do not arise.

They should resist that temptation. If they feel strongly that a Genuine Service Requirement defence should have been introduced, they are entitled to say so in their judgments. Indeed, the Equality Bill is still passing through Parliament and it is not inconceivable that it will be changed as a result. Ultimately, however, introducing such a defence is a matter for our elected representatives. The Justices must not undermine the decision of James v Eastleigh Borough Council to resolve a narrow issue in a hard case.

I have one final thought. The central argument of the school is that its admission policy should be lawful because it is following the requirements of Jewish law. The implication is that English law should bend in order to accomodate it. Imagine the outrage if a similar argument were to be used about Sharia law.

Nevertheless, the reasoning in this case is worth closer examination. It is based on regulation 6(5) of the Dispute Resolution Regulations which state that the grievance procedures do not apply when the complaint is about having been dismissed. It is easy to see how a claim for a redundancy payment is a complaint about having been dismissed, as is a claim for notice pay, but it is harder to see how this is the case for accrued holiday pay, where surely the complaint is about not having received holiday pay.

This is a straightforward matter of causation, the issue being the reason for which the compensation is being claimed. Notice pay is compensation for having been wrongfully dismissed and redundancy pay is compensation for having been made redundant but holiday pay on termination is compensation for not having been able to take annual leave during the employment, and not for the dismissal itself. This is significant for tax purposes because there is a tax-free allowance of £30,000 for payments resulting from the termination of employment, with the effect that redundancy payments and payments in lieu of notice are often made gross. Some tribunals also award holiday pay gross but it is submitted that this is an error for the reasons stated above. Holiday pay is analogous to wages in that a tribunal can order it to be paid through payroll, with the appropriate deductions made, but cannot order it to be paid directly to an employee without deductions, as this would give the employee a windfall and would provide an incentive not to take any leave, completely contrary to the intention of the Working Time Regulations.

The Equality and Human Rights Commission, which used its powers to bring the case, provided the best summary of issues in its letter before claim. What is clear is that there is no express provision in the Race Relations Act for political parties. Rather, they have been found to qualify as associations covered by section 25 of the Act, in the House of Lords case of Watt (formerly Carter) v Ahsan. Incidentally, this was a case brought against the Labour Party and funded by the Commission for Racial Equality, now part of the EHRC, so the suggestion by Nick Griffin that his party has been singled out is simply untrue.

However, the Race Relations Act provides a special defence to a section 25 claim for associations set up for the benefit of people of a particular racial group. It seems that the BNP was attempting to bring itself within this exception. One of the less-trumpeted consequences of the new Equality Bill is that this defence is being abolished with the consequence that, even if the BNP had been successful in arguing the point, it would have been futile. This is why Nick Griffin is reported to have made the concession.

In case you think I have forgotten that this is an employment law blog, there is a point to be made in that area as well. Application forms for jobs with the BNP ask candidates to supply their membership numbers, implying that only party members can be employed. This has the effect that employees are also selected on the basis of their race, which is undoubtedly unlawful. The BNP would have had more chance of succeeding if it had tried to defend its membership rules without this additional problem. On the other hand, a requirement that employees be members is probably lawful so long as membership is not restricted on the grounds of race. Ironically, to defend this practice, the BNP would have to assert that membership does not constitute a philosophical belief for the purposes of the Religion or Belief Regulations, where previously they have said that it is. Still, the BNP seems unworried by incoherence.

The tribunal in Autoclenz gave judgment On 1st March 2008, relying expressly upon Kalwak. On 28th April, President Elias employed similar reasoning in Protectacoat Firthglow v Szilagyi. Just a day later, everything was suddenly changed by the decision of the Court of Appeal in Kalwak in which the appeal was allowed, primarily on the basis of inadequate reasons, but Lord Justice Rimer also criticised the reasoning of the Employment Appeal Tribunal, and relied on the comments of Lord Diplock of Snook v London and West Riding Investment as authority for the proposition that, in order for there to be a finding that a contract is sham, there must be an intention to deceive a third party as to the nature of the relationship and it is insufficient that the parties understood it differently from the written contract.

On 4th June, Autoclenz reached the Employment Appeal Tribunal. Judge Peter Clark followed the Court of Appeal in Kalwak and allowed an appeal against the finding that the claimants were employees of the respondent, on the grounds that no Snook sham had been identified. However, he dismissed an appeal against the finding that they were workers. Autoclenz appealed this finding to the Court of Appeal which they are probably now regretting as it then allowed Belcher and his colleagues, who it appears were not intending to appeal, to put in a late cross-appeal regarding the finding that they were not employees.

The tide began to turn on 10th October 2008 with the case of Redrow Homes v Buckborough in the Employment Appeal Tribunal, in which Judge Burke noted that the House of Lords had used a different definition of a sham in Street v Mountford and this had come into employment law in Echo and Express Publications v Tanton. He suggested that there is no conflict between the the two approaches in Kalwak and that of Lord Justice Rimer was, in any event, obiter, given his other finding of inadequate reasons.

The extent to which all these decisions can really be reconciled is questionable. However, what is surely true is that the Street v Mountford definition is preferable to a narrow reading of the Snook definition. In the context of a situation in which an employer has a dominant bargaining position and the employee is being deceived as much as any third party, it is absurd to require that he or she also takes part in that deception. Indeed, it could be argued that tribunals should be much less sympathetic to workers who do willingly enter into sham contracts as they are likely to be tainted by illegality in most instances.

Orthodoxy has been restored in 2009, firstly when Szilagyi reached the Court of Appeal in February and now with the decision this week. Lady Justice Smith and Lord Justice Sedley gave judgment in both cases, agreeing with Judge Burke that there is no conflict but suggesting euphemistically that the formulation of Justice Elias may be of more assistance to employment judges than that of Lord Justice Rimer. There is no appeal in Redrow Homes so that should hopefully be an end to the matter for a few years at least.

There was no dispute¬†that exemplary damages can be awarded in¬†discrimination cases¬†but only in two situations,¬†the relevant one here being “oppressive, arbitrary or¬†unconstitutional action by servants of government.”¬†It has been¬†established that they¬†must only be awarded in exceptional circumstances where the¬†wrongdoing is conscious¬†and contumelious. In this case, the Ministry of Defence had been heavily¬†criticised for¬†its systematic failure to provide redress for the complaints of Ms. Fletcher but this was not considered to be serious enough by the Employment Appeal Tribunal to¬†justify such¬†an award.

There were two interesting obiter remarks by Justice Slade. Firstly, she rejected an alternative ground of appeal that systematic failures could not be taken into account because they had not been pleaded. She stated that “remedy is at large” and anything can be taken into account¬†so long as findings of fact have been made. She also said that, even if exemplary damages had been appropriate, they would have been reduced to ¬£7,500. An award of ¬£50,000 is considered to be the maximum for cases of wrongful arrest and false imprisonment and a failure to provide redress is quite simply not comparable.

Although Ms. Fletcher was undoubtedly treated appallingly, this decision is equally undoubtedly correct. As noted elsewhere in the judgment, £50,000 is a typical award for moderate brain injury or for severe post-traumatic stress disorder and so £100,000 for injury to feelings is excessive. In any event, even allowing for the aggravated damages being reduced to £8,000 and a substantial reduction of interest as a result, the overall compensation will remain in six figures despite a total reduction of around £70,000.

Dinah Rose QC, who represented Mr. Nicholson, countered that the wording of the Religion or Belief Regulations, and the Framework Directive which they implement, makes it clear that the test should be just as wide as it is for Article 9. So, she said, do the comments of Baroness Scotland, sponsoring the bill, in Hansard. This approach is also supported by Justice Elias, as he then was, in Eweida v British Airways (see paragraphs 26-27). The British National Party may nevertheless not easily be protected, as a result of Article 17 of the Convention, which prevents it being used to limit the rights of others.

Because the belief of Mr. Nicholson includes a moral imperative to act to prevent climate change, it is easier to see it as a philosophical belief instead of a scientific theory unlike, say, Darwinism. However, Dinah Rose went on to argue that even Darwinism should be protected. Otherwise, a teacher could be dismissed for a belief in Darwinism but not for belief in creationism. Because a belief in Darwinism is not the same as a non-belief in creationism, it would not always be protected in that way. Leaving aside the fact that modern creationists say that Intelligent Design is itself a scientific theory, this presents a real problem. I have personally been struggling to resolve this matter in a way that I find satisfactory, as neither Darwinism qualifying as a religion nor going without any protection is particularly attractive.

Fortunately perhaps for Justice Burton, he does not have to decide this issue, only the one concerning the environmental beliefs of Mr. Nicholson. He has reserved his judgment and so I shall say no more.