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December 2009

Merry Christmas to all of our subscribers. We hope that you all enjoy a restful holiday after enduring one of the toughest years in living memory. We also hope that the New Year will bring an improvement in the economic conditions that have caused so much trouble.

It is important for all employers to take notice of the way the European Court of Justice is interpreting discrimination law. We have reported on the Coleman case several times but it has been reported this month that the ECJ is now of the opinion that the UK has failed to interpret various European Directives properly and is failing to protect, in particular, disabled persons and homosexuals. The expansion of employment rights for those caring for disabled people was inevitable and the Coleman case was of no surprise to those of us who deal with the Disability Discrimination Act on a daily basis. What the consequences of the reasoned opinions received by the UK Government will be we do not know, but we will report it to you as soon as we do. That said it is likely to mean a change in the law and more rights for certain groups.

One piece of legislation that is proving to be a bit of a damp squib (or damp squid as the student who sat next to me in my early legal career used to say) is the Employment Equality (Religion or Belief) Regulations 2003. One reason for this is that whilst the Regulations protect less favourable treatment on the basis of a person's belief, they do not protect the person from detriments or dismissal if they happen to then conduct themselves in a way that is unreasonable. The Regulations are wide in that they protect a whole variety of beliefs (climate change for example), however, bad behaviour is bad behaviour and simply giving your belief as an explanation for that behaviour is not sufficient as the courts have clearly decided.

We'll keep you up to date with any important developments between newsletters on our blog and if you have enquiries about the items featured or require any further information then don't hesitate to contact us on 0151 239 1000, freephone 08000 320974 or by e-mail to enquiries@clbemployment.com.

Regards
Will Burrows


This month's news:

1. Disability discrimination and fit employees

2. New right to request time for training

3. Discrimination by reason of employee's philosophical belief

4. Enhanced CRB checks can go too far

5. Employment Tribunals are not courts

6. Drivers Working Hours loophole

7. Some technical matters

8. ...and finally




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1. Disability discrimination and fit employees

It may sound odd but there are two circumstances in which an employee who is not disabled can win a claim of disability discrimination against his or her employer.

One is set out in the Disability Discrimination Act 1995 as passed by Parliament. The other is, for public sector employees, set out in a European Court of Justice case earlier this year and for private sector employees is set out in the Act as effectively reworded by the Employment Appeal Tribunal in late October 2009 in the light of that ECJ case.

The first circumstance is where an employee who is currently fit previously suffered from a disability which is "likely to recur".

The 1995 Act provides in a schedule that "Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur". The House of Lords added a gloss to this in a case involving a Mrs Boyle in July 2009.

In Mrs Boyle's case the House of Lords ruled that "likely" has the colloquial meaning of "could well happen" rather than meaning that the person in question has to show a greater than 50/50 chance of the impairment recurring. If Parliament had intended the latter interpretation it would have used the work "probable" rather than the word "likely".

The second circumstance is where a fully fit employee is discriminated against because he or she is caring for a disabled person.

The European Court of Justice ruled in July 2008 that an employee in that position is protected by European law. The case concerned a Mrs Coleman who was a legal secretary. She was the primary carer for her disabled son. She resigned in March 2005 claiming that her employers were "guilty" of unlawful disability discrimination - she said they had refused to allow her to return to her existing job after coming back from maternity leave; they called her 'lazy' when she sought to take time off to care for her son and refused to give her the same flexibility as regards her working arrangements as colleagues with non-disabled children; they said that she was using her 'f*cking child' to manipulate her working conditions; they subjected her to disciplinary action; and they failed to deal properly with a formal grievance she lodged against her ill treatment.

This form of "discrimination" is often referred to as "discrimination by association". In Mrs Coleman's case the European Court held that this was contrary to what is known as the EU 2000 Framework Directive.

But that was not the end of the matter. For technical reasons, judgments of the European Court can bind public sector employers. However they do not directly bind employers in the private sector such as Mrs Coleman's employers. Mrs Coleman therefore took her case back to the British employment appeal tribunal.

This must have posed a problem for the President of the EAT, before whom the case came on 30th October 2009. On the one hand it was quite clear that the employment part of the Disability Discrimination Act 1995, as passed by Parliament, protected only employees who are disabled. The wording used therefore did not protect Mrs Coleman. On the other hand it was equally clear, given the ECJ ruling, that the wording should do so. The President of the EAT took the bull by the horns. He ruled that new sub-sections had to be "interpolated" into the relevant parts of the Disability Discrimination Act 1995. He set out the exact wording of new provisions which should be "interpolated" into the Act. In this way he ensured that the effect of the ECJ's ruling could apply to private sector employers in Britain without the need for Parliament to amend the Act.

This was a somewhat bold move. It stretched to the limit, some might say beyond the limit, a principle enunciated by the House of Lords in an earlier case (the House of Lords had said that the words "as his or her wife or husband" in the Rent Act should be read as if they had been "as if they were his or her wife or husband" with the result that the surviving partner of a homosexual couple could take advantage of the Rent Act - this ensured that the Rent Act was interpreted in a way which complied with the European Convention of Human Rights).

It is, of course, possible that there may be a further appeal to the Court of Appeal by Mrs Coleman's employers. But even if they were to appeal and win, the law for the future will almost certainly remain as interpreted by the EAT President. Assuming the current Equality Bill becomes law, there will be appropriate provision there. And if that Bill fails to become law then it must be very likely that Parliament would amend the Disability Discrimination Act 1995 - this would be easy to do given that appropriate wording has been drafted by the EAT President himself in his judgment!

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2. New right to request time for training

From April 2010, employees who have worked in a large business for a period to be specified in regulations (likely to be 26 weeks) will have a legal right to request unpaid time away from their core duties (whether on or off site) for training purposes . A large business in this context is one which employs at least 250 staff. The current intention is for the right to be extended to cover employees in businesses of all sizes in April 2011.

From a legal point of view the proposals will work in much the same way as the provisions under which employees already have the right to request flexible working arrangements. Thus employers will be legally obliged to consider any such requests seriously and only to reject them if there are sound business reasons for doing so. Employers will also be able to turn down requests if the training suggested will not help "the employee's effectiveness in the employer's business and the performance of the employer's business".

The basic detail is set out in new sections introduced into the Employment Rights Act 1996 by the Apprenticeships, Skills, Children and Learning Act 2009 which received Royal Assent on 12th November 2009. The Act extends to Scotland.

Further detail is to be in regulations which have not yet been issued (and therefore information in this note must be read as being subject to possible change depending on the detail of the regulations). The Government produced a guidance leaflet in November 2009 which includes some of the detail to be included in the regulations.

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3. Discrimination by reason of employee's philosophical belief

The Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660 prohibit discrimination, victimisation and harassment in the employment field, including vocational training, by reason of any religion, religious belief, or philosophical belief.

Until 30 April 2007 a "philosophical belief" was only covered by the regulations if it was "similar" to a religious belief. That requirement was removed by the Equality Act 2006. Relying on this change there have been two recent and well publicised attempts by dismissed employees to be allowed to bring claims against their former employers based on non-mainstream "beliefs". Both have been successful in persuading tribunals at preliminary hearings that their beliefs are covered by the regulations. That of course does not mean they win their discrimination claims but it does mean that their cases can be heard.

The first was a claim by Tim Nicholson, an ex-employee of Grainger plc, who has a sincere belief that "mankind is headed towards catastrophic climate change". He claims that he was selected for redundancy because of this belief. He has persuaded both an employment tribunal and, on 3 November 2009, the employment appeal tribunal that his belief is capable of being a philosophical belief within the meaning of the regulations and that therefore his claim should at least be heard.

Two eminent employment law QCs argued the point in the EAT.

John Bowers QC for the employer argued that Mr Nicholson's assertion is "a scientific view rather than a philosophical one. Philosophy deals with matters that are not capable of scientific proof.......What Mr Nicholson asserts is a scientific claim that if we don't urgently cut carbon emissions, we will not avoid catastrophic climate change. There is nothing philosophical about that". Dinah Rose QC for Mr Nicholson argued that the belief that "...mankind is headed towards catastrophic climate change and that, as a result, we are under a duty to do all that we can to live our lives so as to mitigate or avoid that catastrophe for future generations" amounts to a philosphical belief within the meaning of the Regulations.

In general, the judge in the EAT sided with Ms Rose and her client, Mr Nicholson. The judge agreed that the case can go to trial on the basis that the asserted belief held by Mr Nicholson is capable of being a belief for the purposes of the regulations. However the judge made it quite clear that if and when the case comes before a tribunal to be heard on its merits, as it can now do, Mr Nicholson will need to provide (i) evidence that his belief is genuine; (ii) evidence that it is a belief rather than "an opinion or viewpoint based on the present state of information available" and (iii) evidence that he was selected for redundancy because of that belief.

So Mr Nicholson has won a battle but still has a long way to go before he can say he has won the war. You can read more analysis of this case in our blog.

The second claim was by a spiritualist. Alan Power claimed that Greater Manchester Police dismissed him from his post as a police trainer because of his beliefs, specifically his belief that psychics can help solve criminal investigations. At a preliminary hearing the police argued that that belief was not a "philosophical belief" within the meaning of the regulations. They lost. The employment judge was "...satisfied that the claimant's beliefs that there is life after death and that the dead can be contacted through mediums are worthy of respect in a democratic society and have sufficient cogency, seriousness, cohesion and importance to fall into the category of a philosophical belief for the purpose of the 2003 Regulations". The case could therefore go forward to trial.

An employment tribunal heard the case at the end of November 2009. After hearing evidence the tribunal was satisifed that Mr Power had not been dismissed on the grounds of his beliefs but for other reasons. Mr Power therefore lost.

The lesson to draw from both these cases is, of course, that it is not enough for the employee to show that his belief is covered by the Regulations. A claim will only be successful if a tribunal accepts that the employer acted as he did, typically dismissing the employee, because of that belief.

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4. Enhanced CRB checks can go too far

In one of the first cases to be heard by the new Supreme Court (which replaced the House of Lords from the beginning of October as the final UK appeal court) the most senior judges in the land expressed concern that the culture of CRB checks may be going too far. They stressed that child protection procedures must be proportionate and contain adequate safeguards to protect individuals. If not they may breach the European Convention on Human Rights as well as being possibly counter-productive.

The case in question concerned an anonymous "Ms L" who wanted to obtain employment in a school as a casual midday assistant. That involved supervising schoolchildren during their lunch break both in the school canteen and in the school playground and so an enhanced CRB check was carried out.

An ordinary criminal record certificate gives details of any recorded convictions of the individual to whom the certificate relates. An "enhanced" certificate also provides any information which in the opinion of the chief officer of the relevant police force might be relevant and which "ought to be included" in the certificate.

The enhanced certificate issued in Ms L's case disclosed that her son had been placed on the child protection register under the category of neglect. She applied for judicial review of the Police Commissioner's decision to disclose that information. The High Court refused her application and the Court of Appeal dismissed her appeal.

Ms L is clearly made of tough stuff and is a lady to be reckoned with. She appealed to the Supreme Court. Technically the question concerned the proper interpretation of the Police Act 1997, which governs the issue of enhanced criminal record certificate.

Although the Supreme Court (five judges) unanimously dismissed Ms L's appeal, in doing so they considered in great detail whether the way in which the Police generally interpret the relevant part of the Police Act 1997 is compatible with an applicant's right to respect for his or her private life under article 8 of the European Convention on Human Rights. The answer was essentially "no". The general interpretation by the Police places insufficient weight on the requirement in the Act that information should be included in an enhanced criminal records certificate only if it "ought to be included".

In the present case insufficient weight had been given to respect for Ms L's private life. However there was no doubt that the facts narrated were true and bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground. On that basis she lost her appeal.

Referring to the vetting scheme being run by the new Independent Safeguarding Authority set up after the Soham murders Lord Neuberger specifically pointed out that "The widespread concern about the compulsory registration rules for all those having regular contact with children, as proposed by the Government in September 2009, demonstrates that there is a real risk that, unless child protection procedures are proportionate and contain adequate safeguards, they will not merely fall foul of the Convention, but they will redound to the disadvantage of the very group they are designed to shield, and will undermine public confidence in the laudable exercise of protecting the vulnerable".

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5. Employment tribunals are not courts

In a recent judgment the Court of Appeal has stressed that employment tribunals are not, and never have been, courts (Governing Body of St Albans Girls' School & anor v Neary, 12th November 2009). In some ways this is a distinction without a difference. But in other ways it can be extremely important.

Industrial Tribunals were originally established under the Industrial Training Act 1964. Their importance grew significantly when the statutory concept of "unfair dismissal" came into existence under the Industrial Relations Act 1971. The idea was that these tribunals would be managed by non-lawyer members with a legally qualified chairman and with proceedings being conducted in an informal way.

The Industrial Tribunals were given, and still have, exclusive jurisdiction in categories of cases specified by Parliament. The originally quite short list has grown longer and longer over the years - a complete list is available on the tribunal service website. The idea was and is that the courts, and the formality associated with them, would not be involved except where there was an appeal on a point of law.

In practice industrial tribunals, renamed employment tribunals in 1998, have found it difficult to combine fairness with informality. In particular it has been difficult for legally qualified chairmen, often with years of experience as advocates in the courts, to operate with the degree of non-legalistic informality which the original proposers of the system intended.

The St Albans Girls' School case noted above was concerned with the difference between procedural rules in the courts and in tribunals.

A supply teacher, Anthony Neary, brought various claims against St Albans Girls' School and Hertfordshire County Council. An employment tribunal struck out his application because he failed over a quite long period to provide documents and comply with directions. His application for a review of the strike out order was rejected. He appealed to the Employment Appeal Tribunal against that rejection and won because the original tribunal had failed expressly to consider "factors" set out in the Civil Procedure Rules which apply when similar applications are made in the Courts.

The School went to the Court of Appeal. The Court of Appeal pointed out that tribunals are not courts. The Civil Procedure Rules may provide useful guidelines for tribunals but no more than that. The Court of Appeal considered that the employment judge had acted properly in the way he exercised his discretion, overruled the EAT and reinstated the original decision. The Court of Appeal said that "the proposition that [employment] judges should have regard to the [factors set out in the Court Rules] seems to have metamorphosed, as the cases came along, into a positive requirement that each and every one be discussed".

In addition to differences in the rules of procedure there are other major differences between courts and tribunals. Two of the most important are (i) that in many types of case (but significantly not discrimination cases) there is a statutory limit on the amount of compensation which an employment tribunal can award; and (ii) that the courts generally order the losing party to pay costs. In employment tribunals the general rule is that no costs order is made, and if one is made it will generally be on the basis that the party concerned, whether winner or loser, conducted his case "vexatiously, abusively, disruptively or otherwise unreasonably".

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6. Drivers' Working Hours loophole

Some oddities in statute law are deliberate, some are not (and should be sorted out). The government has said it will look into whether the oddity noted here is in the first or second category.

Employees have various rights in the event of infringement of the Working Time Regulations. For technical reasons many of these rights are set out in the Employment Rights Act rather than in the Regulations. One result, again for technical reasons, is that employees in certain types of employment would not be protected unless special provision were made for them. These include merchant seamen, fishermen and cross-border rail staff, all of which are protected by special provisions.

On 4 November 2009 an MP, Richard Burden, raised in the House of Commons the question of whether specal provision should also be made for professional drivers. He is concerned that there may be a loophole in the current rules which would mean that professional drivers do not have the same rights as other employees in the event of infringement by their employers of the Working Time Regulations.

The government spokesman said that the matter is being looked into and "When all the facts are known, a formal decision will be made on whether changes are needed". There will be a formal consultation if any change is proposed so readers who have an interest in this matter should, as they say, "watch this space".

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7. Some technical matters

Lawyers' fees. "Damages based costs agreements" are sometimes being used by lawyers and other representatives in employment tribunals, especially in group equal pay claims. Representation terms are set out in a contingency fee agreement or "CFA". For historical legal reasons concerning "champerty and maintenance" they are generally considered to be undesirable and are banned in the courts. But tribunals are not courts (see note 5 above) and different rules apply. Damages based costs agreements are now to be banned in employment tribunals as well - or more accurately banned unless they comply with conditions yet to be announced.

Calculation of compensation for future loss in discrimination / dismissal cases. A Mr Chagger worked as an analyst at Abbey National on a salary of around 100K. He was made redundant when in his early 40s. He won a claim that he had been selected for redundancy in breach of race discrimination law. As he was very unlikely ever to get such a well paid job again he was awarded almost 3m compensation. The amount of compensation was subject to appeal which went all the way to the Court of Appeal. In essence, the Court of Appeal has confirmed that the compensation was correctly calculated, although subject to important tweaks. Specifically the Court of Appeal confirmed amongst other things that in assessing compensation for future loss in a discrimination / dismissal case it is wrong to take into account the possibility that the claimant might have resigned voluntarily before reaching retirement age; and that it is correct to take into account that getting a new job would be made more difficult, provided that could be proved, by reason of "stigma" attaching to the claimant as a result of him having enforced his rights.

Disability discrimination. On 25 June 2008 the House of Lords came to an important decision interpreting the Disability Discrimination Act 1995 in a way which overruled previous thinking (London Borough of Lewisham v Malcolm). The ruling led to it being more difficult than previously, at least in some circumstances, for a disabled person to win a case under the Act. A moment's thought makes it obvious that the decision has "retrospective" effect as it is interpreting wording set in 1995. Even though this is obvious it is worth stressing. In a recent case an employment tribunal made what the EAT called the "elementary error" of thinking that the House of Lords decision only applied to facts and judgments occurring after 25 June 2008.

Asbestosis / mesothelioma. It can be many years before a person who has inhaled asbestos fibres shows any symptoms but the results can be very serious. Enormous difficulties can be faced by sufferers who may have negligence claims against employers for whom they worked many years ago. The employer may have gone out of business; there may have been more than one employment which posed a risk; the asbestos which caused the damage may have come from a different source altogether. In a November 2009 case the last of these problems was a particular issue (Sienkiewicz (Estate of Enid Costello Dec'd) v Greif (UK) Ltd). The Court of Appeal ruled that if at least one possible asbestos source is non-tortious (here the local atmosphere at Ellesmere Port in the 1960s and 1970s) the correct test for deciding whether an employer is liable is whether the "tortious exposure" derived from the employer increased to a "material extent" the risk of the person concerned contracting mesothelioma. The employer concerned (or their insurers) had argued that a claimant must show that the risk derived from the employer was more than twice the risk arising from the non-tortious cause or causes. This argument has been rejected.

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8. ...and finally

There can be big money in discrimination cases. Of course lawyers know this as well as others and it was only a matter of time before one of them was caught up personally rather than in a professional capacity. Well, more than one actually.

In January 2010 the remedies hearing was due in the well-publicised case of city lawyer Gillian Switalski. She had resigned from her job as head of the legal department at F&C Asset Management in the City of London, claiming sex discrimination and sexual harassment against her employers. After a long struggle she won her case earlier in 2009. Her claim was initially valued at 19m and subsequently reduced to 12m. The claim was settled on 16 December 2009 and although the amount paid has not been disclosed it is rumoured to have been an eight figure payment.

Then in October and November 2009 an almost equally well publicised case has been under way in the Central London Employment Tribunal. A barrister, Aisha Bijlani, is claiming more than 30m as compensation for race discrimination against former colleagues at her Lincoln's Inn chambers. Although her case is a racial discrimination claim she has made allegations that prejudice against her was fuelled by sexual relationships between two senior male members of her chambers and an attractive female senior clerk.

Finally, could anyone accuse the newly ennobled Alan Sugar of sex discrimination? It seems not. An employment related sex discrimination case being brought against him by a lady named Hanna Sebright has been dropped. And when a Sunday Times journalist asked him in a recent interview if he'd employ a woman who was pregnant it seems he prevaricated before shouting "I'm not going to answer this question ... I've had enough of this type of stuff".

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