Employment Tribunal

Posts

Discrimination claims – New Vento Bands

The Presidents of the Employment Tribunals in England and Wales and in Scotland have published their response to the consultation launched in July 2017 on uprating the bands of compensation for injury to feelings in discrimination cases. The Presidents have decided that the appropriate bands are now: a lower band of £800 to £8,400 for less serious cases; a middle band of £8,400 to £25,200 for cases that do not merit an award in the upper band; and an upper band of £25,200 to £42,000 for the most serious cases, with only the most exceptional cases capable of exceeding £42,000.

The proposal to uprate the bands came as a result of the Court of Appeal’s decision in De Souza v Vinci Construction (UK) Ltd (Brief 1074) that employment tribunals must increase compensation for injury to feelings and personal injury in discrimination cases by 10%, in line with the Court of Appeal’s decision in Simmons v Castle 2012 EWCA Civ 1039. The new bands will be set out in formal Presidential Guidance and will apply to claims presented on or after 11 September 2017. For claims presented before that date, it will be open to the tribunal to adjust the bands to reflect inflation, and the Presidential Guidance will provide the methodology for doing so.

Link to consultation response: https://www.judiciary.gov.uk/wp-content/uploads/2017/07/vento-consultation-response-20170904.pdf

/0 Comments/by

ACAS Early Conciliation – get the employer’s name right!

If a director was named on the ACAS Early Conciliation form and the company on the Claim Form, should the claim be allowed to proceed (as this was a minor error)?

No, held the EAT, in Giny v SNA Transport Ltd.

The Claimant brought several claims, including constructive dismissal, against his former employer. When he was initially unrepresented, he contacted Acas for Early Conciliation and named the director, Shakoor Nadeem Ahmed, as the prospective Respondent. He then instructed solicitors to prepare his Claim Form which correctly named the Respondent as his employer, ‘SNA Transport Limited’. The employment tribunal rejected his claim as the Respondent had not been correctly identified on the Early Conciliation Certificate.. His solicitors applied to the tribunal to reconsider that decision on the basis that the use of the director’s name was a “minor error”, which (under the rules) allows a tribunal to overlook it.

The employment tribunal rejected that application.. Confusing the director with the company was not a minor error, and it had been right to reject the claim. The Claimant appealed.

The Employment Appeal Tribunal, although sympathetic, rejected the Claimant’s application. It said that a two stage test should be applied.. Firstly, was it a minor error? If not, the claim would be rejected..Secondly, if it was, the tribunal should go on to consider whether or not it was in the interests of justice to allow the claim to proceed.. Although in principle the distinction between a natural and a legal person could amount to a minor error, in this case it did not. Each case should be considered on its facts, and as there was no error in the tribunal’s Judgment, the Claimant’s appeal was dismissed.

/0 Comments/by

Court of Appeal clarifies “Public Interest” Test in whistle blowing cases

In Chesterton Global Ltd and anor v Nurmohamed, the Court of Appeal has held that an employment tribunal was entitled to find that an employee had a reasonable belief that his disclosures about his employer’s manipulation of profit and loss accounts were made in the public interest, despite his personal motivation in so doing (i.e. the effect this would have on his commission payments). The tribunal had identified a number of features that made it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker – specifically, the number of employees affected; the nature of the wrongdoing, which involved large sums of money; and the fact that it was deliberate.

N was employed as director of the Mayfair office of CG Ltd, a firm of estate agents. On three occasions between August and October 2013 he alleged to senior managers that there were inaccuracies in the company’s accounts and that figures were being manipulated to the benefit of shareholders. He was concerned that costs and liabilities had been deliberately misstated, and that inaccurate figures were used to calculate commission payments to over 100 senior managers (including himself). N was later dismissed and brought claims of, among other things, automatically unfair dismissal for having made a protected disclosure, contrary to S.103A of the Employment Rights Act 1996.

An employment tribunal found that N had a reasonable belief that the disclosures were made in the public interest (as required by an amendment to S.43B ERA that came into force on 25 June 2013) and upheld N’s claim. Upon appeal, the EAT held that it was entitled to do so. Although N had a personal motivation in raising the allegations, the tribunal had been satisfied that he had the other office managers in mind, and permissibly concluded that they comprised a sufficiently large section of the public to engage the public interest. CG Ltd appealed, arguing that in order for a disclosure to be in the public interest, it must serve the interests of persons outside the workplace – mere multiplicity of workers sharing the same interest was not enough.

The Court of Appeal (Lord Justice Underhill giving the lead judgment) dismissed the appeal. It observed that that the 2013 ‘public interest’ amendment to the ERA was intended to reverse the effect of the EAT’s decision in Parkins v Sodexho Ltd 2002 IRLR 109, whereby a worker could bring a protected disclosure claim purely in respect of a breach of his or her own contract of employment. It disagreed with Public Concern at Work (which intervened in the case) that a disclosure of a breach of contract could be in the public interest if it was in the interests of anyone else besides the worker making the disclosure. The question whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the number of people sharing it.

On the other hand, CG Ltd went too far in suggesting that multiplicity of persons sharing the same interest can never, by itself, convert a personal interest into a public one. The statutory criterion of what is ‘in the public interest’ does not lend itself to absolute rules and the Court of Appeal was not prepared to discount the possibility that the disclosure of a breach of a worker’s contract ‘of the Parkins v Sodexho kind’ may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. Tribunals should, however, be cautious about reaching such a conclusion – the broad intent behind the 2103 statutory amendment is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers, even where more than one worker is involved.

The Court of Appeal went on to hold that where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker.

In this regard, the following factors suggested by N might be relevant:
• the numbers in the group whose interests the disclosure served
• the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed
• the nature of the wrongdoing disclosed, and
• the identity of the alleged wrongdoer.

In the instant case, the tribunal had identified other features, aside from the number of employees affected, which might be said to render disclosure in the public interest – specifically, that the disclosure was of deliberate wrongdoing, and that it allegedly took the form of misstatements in the accounts to the tune of £2-3 million. The Court observed that if the accounts had been statutory, the disclosure of such a misstatement would unquestionably be in the public interest (even if it involved a private company). The fact that the accounts in question were only internal made the position less black and white. However, internal accounts feed into the statutory accounts and C Ltd is a very substantial and prominent business in the London property market. It was debatable whether the tribunal, which was navigating uncharted waters, fed those factors into its assessment that it was reasonable to regard disclosure as being in the public interest. But, even if it did not, the Court considered that they would only have reinforced its conclusion, based on the numbers alone, so that any error of law in its reasoning was immaterial.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/979.html

/0 Comments/by

Tribunal under duty to consider stigma future loss claim in whistleblowing claim

In Small v Shrewsbury and Telford Hospitals NHS Trust, the Court of Appeal has held that an employment tribunal ought to have considered whether to award compensation for long-term loss of earnings to a claimant whose employment was terminated because he had made a protected disclosure, even though the claimant, a litigant in person, did not expressly advance such a claim. In the Court’s view, given that the tribunal had acknowledged that the consequences of the termination were ‘career-ending’ for the claimant, it should have recognised and raised the issue itself.

S began working for the Trust in May 2012 at the age of 56. He was engaged through an agency on a temporary assignment but understood that there was a prospect of full-time employment in due course. However, two months later the Trust terminated his engagement. S successfully argued before an employment tribunal that the reason for the termination was that he had made a protected disclosure and the tribunal found that the termination constituted an unlawful detriment under S.47B of the Employment Rights Act 1996. At the remedy hearing, S, who was unrepresented, claimed compensation for, among other things, loss of earnings up to his anticipated date of retirement in 2022. This was on the basis that a permanent appointment would have followed but for the unlawful termination. S also put in evidence to show that, since his dismissal, he had been unable to obtain work in the same field despite numerous applications. He asserted that his search for employment had been hampered by the fact that he was dismissed and by the lack of a reference from the Trust.

The employment tribunal awarded compensation of £54,126, including £33,976 for loss of earnings. It calculated loss of earnings on the basis that S would not have been given the permanent employment which he said he had been led to expect but that he would have been retained until November 2013. The tribunal made no award for loss of earnings beyond that point. However, in its reasoning on injury to feelings it observed that S’s career was dependent on the outcome of his last job, that the lack of a reference was indeed a hindrance and that the termination had been ‘career-ending’. S appealed to the EAT, where he had the benefit of representation by counsel for the first time. He argued that the tribunal should have awarded loss of earnings beyond November 2013 on the basis of the Court of Appeal’s decision in Chagger v Abbey National plc (Brief 893), where the Court held that, in principle, a claimant can recover for loss of earnings beyond the date on which employment would have otherwise terminated and can, in principle, claim for the ‘stigma’ that he or she suffers in the labour market. The EAT dismissed the appeal. While it accepted that there are some principles that are so well established that a tribunal might be expected to consider them as a ‘matter of course’, it could not accept that the Chagger basis of claim was in this category. S appealed to the Court of Appeal.

The Court allowed the appeal, holding that, in the particular circumstances of the case, the tribunal ought to have considered whether S had a claim in respect of his loss after November 2013, which would, in principle, include a stigma claim. Lord Justice Underhill, giving the only judgment, pointed out that S’s evidence to the tribunal made clear that he was suffering a loss extending into the indefinite, and probably long-term, future, and that the tribunal had itself recognised the ‘career-ending’ consequences of the termination for S. Although a Chagger claim will not always be a ‘matter of course’, it was so in the particular circumstances of the present case. Underhill LJ rejected the Trust’s argument that, because S had put his claim for future loss on the basis of long-term permanent employment with the Trust, the tribunal was under no obligation to formulate a different future loss claim and consider that. The Chagger claim was an obvious alternative or fallback to the very specific and rather ambitious claim that S was advancing. He should not be regarded as having given up the right to have that alternative considered by the tribunal simply because both types of claim could be labelled as ‘future loss’.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/882.html

/0 Comments/by

Harassment simply by asserting disability? – No

Can a Claimant successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010?

No, held the EAT in Peninsula Business Services v Baker.

The Claimant was employed as a tribunal representative by Peninsula. In January 2014, he told his advocacy manager he had dyslexia. A psychologist’s report confirmed this and an occupational health report in August 2014 suggested he may be disabled.

Peninsula’s director of legal services grew concerned the Claimant was not devoting his time to his work and instructed external consultants to conduct covert surveillance.

The Claimant complained that being subjected surveillance constituted harassment on grounds of disability. The employment tribunal found for the Claimant but, acknowledging it was not asked to determine disability, found “on the basis that the Claimant may well have been disabled” that the trigger for the decision to engage in surveillance was an assertion of disability.

Overturning the decision, the EAT held that discrimination protection is not available to those who merely assert a disability. The protection applies only to those who have a disability, to those associated with a disabled person, or to those who are wrongly perceived to be disabled.

/0 Comments/by

Court of Appeal delivers a key judgement on employment status

The Court of Appeal has delivered an important decision on employment status holding that the plumbers engaged by Pimlico Plumbers were engaged as workers not self employed contractors.

In Pimlico Plumbers Ltd and anor v Smith, the Court of Appeal has upheld the decision of an employment tribunal that a plumber who was self-employed for tax purposes was nevertheless a ‘worker’ within the meaning of S.230(3)(b) of the Employment Rights Act 1996 and the Working Time Regulations 1998 SI 1998/1833 and an ‘employee’ under the extended definition of that term in S.83(2) of the Equality Act 2010.

S was a plumber who carried out work solely for PP Ltd between 25 August 2005 and 28 April 2011. He had signed an agreement that his work would be governed by terms and conditions set out in PP Ltd’s Manual, which included stipulations as to working hours, uniform and appearance; restricted the ability of S to work for himself or other companies; obliged S to use a PP Ltd van for his work; and provided that S could only swap jobs with other PP Ltd operatives. During this period, S filed tax returns on the basis that he was self-employed. He was registered for VAT and submitted regular VAT invoices to PP Ltd. In January 2011, S had a heart attack and PP Ltd subsequently terminated its arrangement with him on 3 May 2011, following which he brought claims in the employment tribunal alleging unfair dismissal, wrongful dismissal, entitlement to pay during the period of a medical suspension and failure to provide particulars of employment. These claims all depended on S being an employee within the meaning of S.230(3)(a) ERA – i.e. employed under a contract of service. At a pre-hearing review, an employment judge held that S was not employed under such a contract, and therefore concluded that the tribunal had no jurisdiction to hear these claims.

However, S had additionally made claims for unpaid holiday pay and unlawful deductions from wages. For these purposes he did not need to show that he was an employee, merely that he was a ‘worker’ within the meaning of S.230(3)(b) ERA and Reg 2 WTR – i.e. he was employed under a contract ‘whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’. He also claimed against both PP Ltd and its owner, M, for direct disability discrimination, discrimination arising from disability and failure to make reasonable adjustments. For these purposes, he needed to be an employee within the extended definition in S.83(2) EqA, which includes those employed under ‘a contract personally to do work’.

The employment judge held that S was a worker and an employee in the extended sense. The main purpose of the agreement signed in 2005, and a subsequent agreement containing updated terms which S signed in 2009, was for S to personally provide work for PP Ltd. The Manual obliged him to work 40 hours per week (M’s evidence was that the minimum week in practice was 36 hours per week), and although there was some flexibility, he was required to agree the hours he would work with PP Ltd.  There was not an unfettered right to substitute at will: there was no such right given to S by the contractual documents and no evidential basis for such a practice. Even though in practice engineers with PP Ltd swapped jobs around between each other, and also used each other to provide additional help where more than one person was required for a job or to do a job more quickly, and there was evidence that external contractors were sometimes required to assist a job due to the need for further assistance or to conduct specialist work, the fact was that S was under an obligation to provide work personally for a minimum number of hours per week or on the days agreed with PP Ltd. S had a degree of autonomy in relation to the estimates and work done, but PP Ltd exercised very tight control in most other respects. These factors led the judge to conclude that PP Ltd could not be considered to be a client or customer of S’s business.

The EAT upheld the employment judge’s decision, leading PP Ltd to appeal further to the Court of Appeal, where the Master of the Rolls (Sir Terence Etherton) gave the lead judgment. He began by observing that ‘the case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker’. Citing the judgment of Lady Hale in the Supreme Court in Clyde and Co LLP and anor v Bates van Winklehof (Brief 1000), he stressed that in the context of S.230(3)(b) ERA, Reg 2 WTR and S.83(2) EqA, ‘a distinction is to be drawn between (1) persons employed under a contract of service; (2) persons who are self-employed, carrying on a profession or a business undertaking on their own account, and who enter into contracts with clients or customers to provide work or services for them; and (3) persons who are self-employed and provide their services as part of a profession or business undertaking carried on by someone else’. The question posed by the appeal was whether the employment judge was correct to hold that S fell in category (3) rather than category (2).

In the Master of the Rolls’ view, the employment judge had been correct to conclude that S was under an obligation to provide his services personally. Unlike earlier decisions of the EAT and Court of Appeal in which it had been held that an express right of substitution or delegation was incompatible with an obligation of personal performance, the facts here indicated that there was no such express right. Nor was there any scope for the Court to imply such a right. Furthermore, having found that S was obliged under the terms of his agreements with PP Ltd to do a minimum number of hours per week, the employment judge concluded, and was entitled to conclude, that the degree of control exercised by PP Ltd over S was also inconsistent with PP Ltd being a customer or client of a business run by S. In particular, the judge was entitled and right to place weight on the onerous restrictive covenants in the agreement, precluding S from working as a plumber in any part of Greater London for three months after termination.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2017/51.html

/0 Comments/by