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In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT has held that an employment tribunal erred in failing to take judicial notice of the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities. The fact that women bear the greater burden of childcare than men and that this can limit their ability to work certain hours – which the EAT referred to as the ‘childcare disparity’ – is a matter in respect of which judicial notice has been taken without further inquiry on several occasions, and should have been taken in the present case.

D was employed as a community nurse working fixed days. Following a review in 2016, the Trust sought to introduce more flexible working. In particular, it introduced a requirement that community nurses work flexibly, including working at weekends. D was unable to comply because of her caring responsibilities for her three children, two of whom are disabled. She was dismissed. She claimed unfair dismissal and indirect sex discrimination, among other things. Under S.19 of the Equality Act 2010, indirect sex discrimination arises in relation to a female employee where (a) the employer applies to her a provision, criterion or practice (PCP) that it applies, or would apply, to men; (b) the PCP puts, or would put, women at a particular disadvantage when compared with men; (c) the PCP puts, or would put, the female employee at that disadvantage; and (d) the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.

An employment tribunal dismissed all of D’s claims. The tribunal accepted that the Trust applied a PCP, namely requiring that its community nurses work flexibly, including at weekends, and that that PCP applied to men and women in D’s team. However, it went on to find that it had been shown no evidence that the PCP put women at a particular disadvantage compared to men. It noted that, on the contrary, all of D’s female colleagues were able to meet the requirement, as was the only man in the team. Thus, although the tribunal accepted that D personally was placed at a disadvantage, it concluded that the claim had to fail for lack of group disadvantage. The tribunal went on to note that, if it had had to consider objective justification, it would have found that the Trust was pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service, and that it was proportionate to do so by applying the PCP to all members of the nursing team. D appealed to the EAT.

The EAT allowed the appeal. It accepted D’s argument that the tribunal had erred in confining the pool for comparison, for the purpose of testing group disadvantage, to the nurses in D’s team. The tribunal had found that the Trust applied the PCP to all community nurses and so, logically, the pool for comparison had to include all of the community nurses who were required to work flexibly. A pool comprising only members of D’s team would not be appropriate because the PCP was not so confined.

With regard to the lack of evidence of group disadvantage, the EAT accepted D’s argument that the tribunal had erred in failing to take judicial notice of the fact that more women than men tend to have childcare responsibilities and so are more likely to be unable to comply with flexible working requirements. D identified a number of examples in the case law where judicial notice had been taken of the fact that women are more likely to be child carers than men. The EAT concluded that two points emerged from these authorities: first, the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions (‘the childcare disparity’); and secondly, while the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by courts at all levels for many years. The EAT cautioned that the matter is not set in stone: many societal norms and expectations change over time, and what may have been apt for judicial notice some years ago may not be so now. However, in its view, this did not apply to the childcare disparity. While things might have progressed somewhat, in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal. The EAT therefore accepted that the assumptions made and relied upon in the authorities cited were still very much supported by the evidence presented to it of current disparities between men and women in relation to the burden of childcare.

As for the present case, the EAT held that, although the tribunal was not specifically asked to take judicial notice of the childcare disparity, it should have done so. The childcare disparity is so well known in the context of indirect discrimination claims and so often the subject of judicial notice in other cases that it was incumbent on the tribunal, in the circumstances, to take notice of it here. The tribunal therefore erred in not taking account of it and in treating D’s case as unsupported by evidence. The EAT went on to note that taking judicial notice of the childcare disparity does not necessarily mean that group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question. However, on the present facts, where the PCP was to work flexibly, including at weekends, and the nurses did not have any flexibility to choose working hours or days within certain parameters, this was one of those cases where the relationship between the childcare disparity and the PCP was likely to result in group disadvantage being made out.

The EAT went on to uphold D’s appeal against the tribunal’s conclusion on objective justification and against the rejection of her unfair dismissal claim. It accordingly remitted the claims to be reheard.

Link to transcript: https://www.bailii.org/uk/cases/UKEAT/2021/0220_19_2206.html

New Regulations, The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021. extend the protectin afforded to employees by S44 ERA 96 to workers also.

The extension to workers applies to any detriments taking place on or after 31 May 2021.

Link to Legislation

 

A woman who lost her job after expressing views that sex cannot be changed and transgender women are “not women” has won an appeal against an employment tribunal.

In Forstater v CGD Europe and ors, the EAT has held that ‘gender-critical’ beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010. The employment tribunal had erred in finding that such beliefs were ‘not worthy of respect in a democratic society’. A philosophical belief is only excluded from protection if its expression would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under the European Convention of Human Rights. The claimant’s gender-critical beliefs, which were widely shared and did not seek to destroy the rights of trans persons, clearly did not fall into that category

Link to case.

Yes, if the date of termination is in dispute, held the EAT in Basra v BJSS Limited.

Pre-termination discussions between employer and employee are protected under section 111A Employment Rights Act 1996 and cannot therefore usually be referred to by either party in an unfair dismissal claim, unless there has been “improper behaviour”. In Basra, however, the EAT held that there is an exception to this rule if the date of termination is in dispute.

The Claimant wrote an email to the Respondent in response to a without prejudice offer letter it had sent saying “today will be the last day at BJSS”. The Claimant then stopped attending work, and later brought a claim for unfair dismissal. BJSS argued the Claimant’s employment had ended by mutual termination and, in the alternative, the email was a resignation. The Claimant denied resigning and said he had been dismissed by BJSS at a later date. The tribunal, following Faithorn Farrell Timms LLP v Bailey, noted that s111A protection cannot be waived (unlike without prejudice negotiations) and excluded BJSS’s offer letter as protected under s111A ERA.

The EAT held that as the protection under s111A only applies to pre-termination negotiations, “the chronological line between what is, and what is not, admissible therefore lies on the point at which the contract is terminated”. The EAT went on to say that “where there is a dispute as to whether or not the contract was terminated on a particular date, the tribunal would not be in a position to say what evidence should be excluded until that dispute is determined”. Thus the tribunal needs to determine the termination date before applying s111A

Is the employment tribunal required, when deciding whether to give permission to amend a claim to add a new claim which may be out of time, to decide the ‘time point’?

Not necessarily, according to the EAT in Galilee v Commissioner of Police for the Metropolis.

An amended claim takes effect from the date when permission is granted, not the date of the original claim.

Therefore, granting permission to amend does not deprive the employer of the right to argue that the claim is out of time.

Further, it is not necessary to decide if the claim is out of time when deciding whether to grant permission to amend, save in clear cases. Permission to amend can be granted subject to the time point being decided at a later stage or the decision whether to grant permission can be deferred to the full hearing

 

In King v The Sash Window Workshop Ltd and anor, the European Court of Justice has held that the means of enforcing the right to paid holiday under the Working Time Regulations 1998 SI 1998/1833 is incompatible with the EU Working Time Directive (No.2003/88). On the EAT’s interpretation of Regs 13 and 16, where an employer grants only unpaid leave to a worker, the worker would be obliged to take leave without pay and then bring an action to claim payment for it. This result is incompatible with the right to paid annual leave under Article 7 read with the right to an effective remedy under Article 47 of the EU Charter of Fundamental Rights. The ECJ also held that, where the employer refuses to pay for annual leave, the worker’s holiday rights carry over until the termination of employment.

K worked for SWW Ltd as a self-employed commission-only salesman from June 1999. He was offered an employment contract in 2008, which included the right to paid annual leave. However, he elected to remain self-employed (under a contract that was silent on the issue). While K did take some holiday throughout his years of service, he was never paid for this. When SWW Ltd terminated his engagement in October 2012, K successfully claimed holiday pay before an employment tribunal, which accepted that he was a ‘worker’ for the purposes of the Working Time Regulations 1998. Among other things, the tribunal awarded him pay in lieu of annual leave accrued but not taken during previous years, also claimed as a series of deductions. The EAT allowed SWW Ltd’s appeal on this issue, holding that the tribunal had failed to make findings of fact to support its conclusion that K was prevented from taking his annual leave for reasons beyond his control. There was therefore no basis for departing from the usual position under Reg 13 that entitlement to leave expires at the end of the relevant leave year. K appealed to the Court of Appeal, which made a reference to the ECJ, querying whether Reg 13 is consistent with the right to paid annual leave under Article 7 of the Working Time Directive, given that (on the logic of the EAT’s analysis) the worker would first have to take unpaid leave before testing his or her entitlement to pay. It also sought clarification of the extent to which untaken paid leave can be carried over, for the purpose of claiming a payment in lieu of untaken holiday upon termination of employment under Article 7(2) of the Directive.

Advocate General Tanchev gave the opinion that employers are bound to provide an ‘adequate facility’ for workers to exercise the right to paid annual leave under Article 7, such as in the form of specific contractual terms or the establishment of a legally enforceable administrative procedure. Where no such adequate facility has been made available, any reference and carry-over periods that would otherwise fall within a Member State’s discretion must necessarily be disapplied. In such a case, the worker would be entitled on termination of employment to payment in lieu of annual leave untaken up until the date on which an adequate facility was made available.

a worker must be entitled to benefit from the remuneration to which he or she is entitled when taking his or her annual leave

The ECJ has now given its judgment and has gone further than the Advocate General. It noted that it was clear from its case law that a worker must be entitled to benefit from the remuneration to which he or she is entitled when taking his or her annual leave. Thus, a worker who is faced with uncertainty as to the level of remuneration to which he or she is entitled during the leave period will not be able to benefit fully from that leave as a period of relaxation and leisure, and is likely to be dissuaded from taking leave in the first place. When seen in that light, the right to paid annual leave cannot, therefore, depend on a factual assessment of the worker’s financial situation when he or she takes leave.

Turning to the Working Time Regulations, the ECJ observed that they implement the right to paid annual leave by way of two separate rights: a right to a period of annual leave under Reg 13 and a right to be paid in respect of that leave under Reg 16. Likewise, Reg 30 provides for two separate judicial remedies. The ECJ noted that, on the EAT’s interpretation of Regs 13, 16 and 30, a worker can claim breach of Reg 13 only to the extent that his or her employer did not permit him or her to take any period of leave, whether paid or not; and can claim payment under Reg 16 only for leave actually taken. This has the effect that, where the employer grants only unpaid leave, a worker is obliged to take leave without pay in the first place and then to bring an action to claim payment for it. The ECJ held that this result was incompatible with Article 7 of the Directive when read with Article 47 of the EU Charter. In K’s particular circumstances, he would be unable to claim after the termination of employment in respect of paid leave due but not taken, which would deprive him of an effective remedy.

As to the accumulation of the right to paid annual leave, the ECJ noted that, in the case of a worker who is prevented from taking paid annual leave due to sickness, case law has permitted national law to limit the worker’s right to carry over that leave to 15 months. That case law took into account not only the protection of workers but also the protection of employers, who might otherwise be faced with the risk that a worker will accumulate periods of absence of too great a length. In contrast, in the present case, there was no requirement to protect the employer’s interests – on the facts, SWW Ltd was not faced with organisational difficulties and indeed was able to benefit from K not taking any paid annual leave. It was irrelevant that SWW Ltd considered, wrongly, that K was not entitled to paid annual leave – it is up to the employer to inform itself of its obligations in this regard and an employer that does not allow a worker to exercise his or her right to paid annual leave must bear the consequences. The ECJ therefore concluded that the Directive requires a worker to be able to carry over and accumulate paid annual leave rights until the termination of his or her employment where those rights have not been exercised over several consecutive reference periods because the employer refused to remunerate that leave.

This case has significant implications for the right to holiday pay in the UK. It suggests that workers who are wrongly classified as self-employed contractors may be able to claim back pay in respect of unpaid annual leave going back many years when their ‘worker’ status is established. It also suggests that the Deduction from Wages (Limitation) Regulations 2014 SI 2014/3322, which limit back pay claims to two years, are incompatible with EU law.

 

ECJ Judgement – Allowance in lieu of annual leave paid on termination of the employment relationship

 

In Chief Constable of Norfolk v Coffey the EAT has upheld the decision of an employment tribunal that a police officer, who was turned down for a transfer to the Norfolk Constabulary because her hearing loss was marginally below the medical standard for police recruitment, had suffered direct discrimination because of a perceived disability. The Constabulary’s reason for refusing the transfer was the concern that the claimant would end up on restricted duties. This indicated that it perceived her to have a progressive condition which, by virtue of paragraph 8 of Schedule 1 to the Equality Act 2010, met the statutory definition of disability.

In 2011 C applied to the Wiltshire Constabulary to become a police constable. She attended a medical, at which it was discovered that she suffers from bilateral mild sensori-neural hearing loss with tinnitus. Although C’s hearing loss was marginally outside the range set down by the Home Office for police recruitment, the Wiltshire Constabulary arranged a practical functionality test which C duly passed before going on to work on front-line duties. In 2013 C applied to transfer to the Norfolk Constabulary. C attended a pre-employment health assessment, where the medical adviser noted that her hearing was ‘just outside the standards for recruitment strictly speaking’ but that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. He recommended that C undergo an ‘at work’ test, but this recommendation was not carried through by the Assistant Chief Inspector (ACI) who dealt with the application. Instead, the ACI declined C’s request to transfer on the basis that her hearing was below the acceptable and recognised standard, and that it would not be appropriate to step outside that standard given the risk of increasing the pool of officers on restricted duties.

C brought an employment tribunal claim for direct discrimination. It was not alleged that she actually had a disability; her case was that her hearing loss did not have, and was not likely to have, a substantial adverse effect on her ability to carry out day-to-day activities, including working activities. Instead, it was argued that she had been treated less favourably because she was perceived to have a disability, in the form of a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities. The tribunal considered that the only way to read the ACI’s comments about the risk of C ending up on restricted duties was that she perceived that C had a potential or actual disability which could lead to the Constabulary having to make adjustments to C’s role as a front-line police officer. Since this perception was the reason for refusing C’s transfer, the tribunal upheld the discrimination claim.

On appeal to the EAT, it was argued that the tribunal had erred both in respect of its finding that the ACI perceived C to be disabled and its finding that C had been treated less favourably because of that perception. On the former point, the EAT stressed that the question of whether a putative discriminator A perceives B to be disabled will not depend on whether A perceives B to be disabled as a matter of law. It will depend on whether A perceives B to have an impairment with the features which are set out in the legislation. Paragraph 8 of Schedule 1 to the EqA makes special provision in respect of progressive conditions. Where a person has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future. Although the ACI protested that she did not consider C disabled with the meaning of the EqA, her knowledge of the law was incomplete and did not include Paragraph 8 of Schedule 1. The reference to the risk of C being on restricted duties could only be read as the ACI perceiving that C had a progressive condition which could worsen. Thus, the tribunal had been entitled to find that she perceived her to be disabled.

Turning to whether the tribunal had been correct to find that there had been direct discrimination, the EAT accepted that a genuine difference in abilities will be a material difference between claimant and comparator. However, it saw no warrant for an employer’s flawed belief in a lack of ability to be a material difference. The tribunal was entitled to conclude that a person with the same abilities as C, whose condition the employer did not perceive to be likely to deteriorate so that he or she would require restricted duties, would not have been treated as C was. C had performed an active policing role in Wiltshire; she had been accepted at the interview stage; her rejection followed when the ACI ignored advice to rely on a practical assessment of C because, as the tribunal put it, she believed the C would become a liability to the force. The tribunal did not err in law in concluding that she had been subjected to direct discrimination.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0260_16_1912.html

Can a Respondent employer rely on parts of a ‘without prejudice discussion’, or protected conversation, whilst at the same time using the rules as a shield?

No, held the EAT in Graham v Agilitas IT Solutions Ltd.

The Claimant was facing termination of employment. During talks which the Respondent characterised as being without prejudice and/or protected under s111A of the Employment Rights Act 1996, the Claimant made comments which the Respondent subsequently used to form the basis of disciplinary action. The Claimant alleged improper conduct/unambiguous impropriety by the Respondent in the form of bullying and threatening behaviours in the same meeting.

The EAT held that the Respondent could not waive privilege on parts of the meeting and rely on privilege in relation to other parts to shield its conduct.

The Claimant was entitled to have the employment tribunal examine the improper conduct. The case has been remitted.

Employment tribunal was wrong to reject the wrongful constructive dismissal claim

In Rawlinson v Brightside Group Ltd, the EAT has held that an employment tribunal was wrong to reject the wrongful constructive dismissal claim of an employee who resigned when falsely told that he was to be dismissed due to a work reorganisation (the real reason was his performance). The tribunal erred both in its failure to find that the employer had acted in breach of the implied term of trust and confidence and in its characterisation of the employee’s complaint as relating to the manner of his dismissal. By deciding to give him a reason for the termination of his employment, the employer had assumed an obligation not to mislead, an obligation it then breached. The complaint did not relate to the dismissal but to the falsehood told with a view to keeping the relationship alive for the notice period.

R was employed as an in-house legal counsel by BG Ltd, a firm of insurance brokers. A few months into his employment, the company decided to dismiss R due to concerns about his performance, despite never having raised these with him. To ‘soften the blow’, R was simply told that BG Ltd had decided to outsource legal services. It wanted him to work through his three-month notice period to ensure a smooth handover of work. However, R resigned with immediate effect on the basis that that any outsourcing exercise would constitute a ‘relevant transfer’ under TUPE and the company was therefore breaching its statutory obligations. R subsequently brought employment tribunal claims for, among other things, breach of the duty to inform and consult under TUPE and wrongful constructive dismissal (based upon a fundamental breach of the implied term of trust and confidence).

The tribunal rejected R’s TUPE claims, finding that there was no relevant transfer. As for the contract-based claim, the tribunal found that the company’s failure to forewarn R of any performance concerns and the potential for dismissal did not amount to a breach of the implied term of trust and confidence. Although R genuinely, and with some cause, believed that he was unfairly treated, BG Ltd had no obligation to provide the information to him. The tribunal considered that R’s complaint was really about the manner of his dismissal. This meant that it would be precluded by the House of Lords’ decision in Johnson v Unisys Ltd 2001 ICR 480, where it was held that common law damages for breach of contract cannot be awarded in respect of unfair treatment connected to a dismissal. R appealed.

The EAT agreed with R that in all but the most unusual cases, the implied term of trust and confidence must import an obligation not to deliberately mislead. This does not mean an employer is necessarily placed under some broader obligation to volunteer information, such as a reason for dismissal. Nevertheless, where a choice has been made to do so, the implied term requires that it is done in good faith. Even allowing that there may be particular cases in which the operation of the implied term would permit some element of deceit – the ‘white lie that serves some more benign purpose’ – the EAT could not see how that was so here. The tribunal had therefore erred in failing to find that the implied term had been breached.

The tribunal had further erred in failing to see that R’s complaint did not relate to the dismissal, but to the falsehood told to him with a view to keeping the relationship alive for the notice period. It therefore did not fall within the ‘Johnson exclusion zone’. As the House of Lords recognised in Eastwood and anor v Magnox Electric plc (Brief 762), if an employee suffers loss as a result of an employer’s breach of the implied term in the steps leading to a dismissal, he or she has a common law cause of action that precedes, and is independent of, the subsequent termination of employment. R’s response to the communication of an untrue reason for his dismissal was to walk out, giving rise to a loss of earnings over the notice period. The EAT therefore allowed the appeal and substituted a finding that R’s wrongful dismissal claim should succeed.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0142_17_2111.html

In Ayodele v Citylink Ltd and anor, the Court of Appeal has held that the burden of showing a prima facie case of discrimination under S.136 of the Equality Act 2010 remains on the claimant. This provision made no substantive change to the law when it came into force in October 2010 and Mrs Justice Elisabeth Laing was wrong to hold otherwise in the EAT in Efobi v Royal Mail Group Ltd.

A, a black man originally from Nigeria, brought a number of claims against his former employer, C Ltd, following the termination of his employment, including claims of race discrimination. The tribunal dismissed his discrimination claims on the basis that A had not established prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to the respondent. A’s appeal to the EAT was dismissed. Before the Court of Appeal, A raised a new ground of appeal. He submitted that there was a fundamental error in the approach taken by the employment tribunal as to the proper application of the burden of proof under S.136 EqA. He relied on Elisabeth Laing J’s decision in the EAT in Efobi v Royal Mail Group Ltd (Brief 1078), to the effect that the wording of S.136 EqA does not impose a burden of proof on a claimant at all. Instead, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are ‘facts’ from which it can conclude that discrimination occurred and, if so, it must so find unless the respondent can discharge the burden on it. A pointed to the fact that in his case the tribunal had directed itself that there was a burden of proof on him at the first stage of the enquiry and therefore it fell into error.

The Court of Appeal dismissed the appeal. It noted that the wording of S.136 EqA is different from the wording of the equivalent predecessor provisions, in that there is no longer any express reference to the claimant being required to prove facts. It rejected A’s suggestion that there was an analogy to be drawn with the assessment of fairness of a dismissal in an unfair dismissal case, where there is no burden on either party. In that context, the tribunal is required to make an assessment in which it is not apt to refer to the burden being on either party. However, in a discrimination case, before a tribunal can start making an assessment, the claimant has got to start the case, otherwise there is nothing for the respondent to address and nothing for the tribunal to assess.

The Court of Appeal could see no reason why a respondent should have to discharge the burden of proof unless and until the claimant has shown a prima facie case of discrimination that needs to be answered. Accordingly, it held that there is nothing unfair about requiring a claimant to bear the burden of proof at the first stage.

The Court also observed there was no reason to suppose that Parliament enacted S.136 to remove the burden of proof from a claimant. Furthermore, the EU Burden of Proof Directive (No.97/80), which S.136 gives effect in domestic law, does not require there to be no burden on a claimant at the first stage, and the legal community has proceeded for the last seven years on the assumption that no change of substance was made by S.136. The change in wording from the predecessor provisions simply made clear that what should be considered at the first stage is all the evidence, and not only the evidence adduced by the claimant: it should be regarded as no more than legislative ‘tidying up’. The Court concluded that previous decisions of the Court of Appeal, such as Igen Ltd and ors v Wong and other cases (Brief 777), as approved by the Supreme Court in Hewage v Grampian Health Board (Brief 958), remain good law and should continue to be followed by the courts and tribunals. It therefore held that the interpretation of S.136 by Elisabeth Laing J in the EAT in Efobi was wrong and should not be followed.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1913.html