Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
May 2012

Welcome to our August newsletter.

This month's newsletter is just a quick round up of news since, as is usual, not a great deal has happened in the world of employment law at this time of year.

As ever there is some practical guidance for employers with reference to medical evidence in connection with discrimination claims and the selection of a "pool for redundancy".

Regular readers will know that I have a particular interest in discrimination based on religion or belief systems and just what "belief systems" means. Is the latest case one of those instances in which a statutory provision has opened an irreconcilable dilemma for tribunals and appeal courts?

I couldn't resist including a report about the Travelodge research which shows that, for employment reasons, they've seen an upsurge in Saturday night bookings. No further comment!

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This month's news round-up:

1. what happens if a claimant refuses to co-operate in obtaining medical evidence

GCHQ v Bacchus is a case in which Mr Bacchus failed to attend an appointent so that GCHQ could obtain its own psychiatric evidence in connection with his claim for disability discrimination based on anxiety. He was ordered by an employment tribunal to attend an appointment but did not do so. The tribunal nonetheless proceeded on the basis that it already had medical evidence (provided by the claimant). GCHQ appealed successfully to the Employment Appeal Tribunal. The EAT agreed with its submissions that it was unfairly disadvantaged by being unable to obtain its own medical evidence. However, the claim was not struck out. Instead, the EAT made an "unless order" requiring the claimant to attend the medical examination, failing which his claim would be struck out.

The case highlights a notable distinction between employent tribunal procedure and that which applies for personal injury claims in the county court. The standard court procedure is for the claimant to nominate proposed medical experts. If one is accepted by the defendant then a single report is prepared. However, the expert is required to make a statement acknowledging that the report is prepared for the court rather than for either party, and should therefore be impartial. On the face of it, there seems no good reason why the same procedure should not apply for tribunals. As I have commented on numerous occasions, taking into account the complexity of many tribunal claims, there is no reason why well tried court procedures should not be adopted.

2. can an employer fairly use a "pool of one" for selection for redundancy

In Wrexham Golf Co v Ingham the Employment Tribunal was asked to consider whether an employer can fairly use a "pool of one" when determining candidates (or, more accurately in this instance, a candidate) at risk of being made redundant. Those who are familiar with redundancy procedures will be aware of the need to be scrupulously fair when selecting a candidate or candidates for redundancy and the need to be able to demonstrate this if called upon to do so. It is generally an essential part of this process to identify what is commonly referred to as a pool of candidates for redundancy from which selections can be made. Often the pool will comprise employees in an under-performing department or those whose duties can be combined so as to reduce the overall number of employees performing a particular type of work. In some cases there might be only one employee performing a job which can de dispensed with.

However, the decision in Ingham emphasises that identifying the pool is but one part of the process of termination of employment which, overall, must be fair. When a tribunal considers the question of fairness a tribunal must consider whether the actions taken by the employer were within a range of reasonable responses available to a reasonable employer. In this case the tribunal had focused unduly on the question of "the pool" to the exclusion of the wider question of overall fairness in the context of the range of reasonable responses. Accordingly the finding of unfair dismissal, even though Mr Ingham was the sole bar steward at the club, was unfair, and the matter was remitted to a fresh employment tribunal for a full rehearing.

3. philosophical beliefs, the Proms and public protest

The BBC Proms 2012 are in full swing and provide those of us who enjoy them with a delightful selection of the finest classical music as particularly demonstrated by a recent concert of some of Vaughan Williams' Symphonies which I was lucky enough to catch on BBC4 the other day. By the way, I recommend The Broadway Sound on 1 September, conducted by the remarkable John Wilson. Anyway, back to employment news! Sarah Streatfield is a violinist in the London Philharmonic Orchestra (LPO) who protested about a performance by the Israel Philharmonic Orchestra (IPO) at the 2011 Proms. Her protest took the form of a letter to the Independent protesting about the decision to invite the IPO to participate in the Proms. Three other members of the LPO and twenty other musicians were co-signatories.

She was suspended for six months on full pay for "damaging the reputation of the orchestra". She claimed that the LPO failed to respect her "humanist beliefs" and claimed direct and indirect discrimination as well as harassment and victimisation.

An employment tribunal accepted that her humanist beliefs were capable of protection under the Equality Act 2010. However, since the LPO had no knowledge of those beliefs the discrimination claims stood no reasonable prospect of success. This resulted in the striking out of her claims for discrimination.

However, her claims for victimistation and harassment were not struck out. The tribunal provided an indication of its view of the prospects of the claims succeeding by requiring her to pay a £250 deposit as a condition of proceeding.

The significant aspects of the decision are that the claims for victimisation and harassment may proceed (subject to payment of the deposit) and, much more importantly as a general proposition, that humanism is a philosophical belief which is capable of protection under the legislation.

Many may take the view that this is a very liberal interpretation of what constitutes a philosophical belief capable of statutory protection. Although the decision is not binding on other tribunals, it might well be thought that the border between political and philosophical beliefs has been breached. An interesting philosophical question!

4. making employees on maternity leave redundant

Most employers are aware that treating employees on maternity leave unfairly is likely to result in an expensive claim for discrimination and, perhaps also, unfair dismissal. However, there are circumstances in which, entirely fairly, employees who are on maternity leave, find themselves at risk of redundancy. Since the factors which can lead to the need to redundancies can arise at any time, it is inevitable that, from time to time, those affected, may be on maternity leave. Those who are uncertain about such matters might reasonably decide to postpone redundancies or to exclude employees on maternity leave from the process.

There is an understandable and entirely approrpriate concern on the part of employers that affected employees should be treated fairly and, with this in mind, ACAS has published a guide for Managing Redundancy for Pregnant Employees or those on Maternity Leave. The guide is commendably well written and straightforward and includes really useful case studies which will undoubtedly assist those employers who face this scenario. It is highly recommended reading.

5. £157bn overtime and "nightcations"

This item comes with a source warning! According to research undertaken by Travelodge one in ten Britons are working an additional 16 hours' unpaid work per week "in order to keep their bosses happy" and take a night off rather than a holiday in order to "recharge their batteries and boost relationships". Apparently the value of this unpaid work is £157bn, based on an average 9.1 extra hours per week which equates to an average £5,726.18 unpaid work per working person. The report also states that 66% of adults are suffering "soaring stress levels" while 31% find it "difficult to get through the average week". Apparently 37% of "workaholic Britons" are opting for "nightcations" instead of longer holidays.

According to Shakila Ahmed of Travelodge:

This year we have experienced a significant rise in just Saturday night bookings compared to previous years. To obtain a better understanding of the rationale behind this trend we commissioned research to investigate how the economic crisis is affecting the psychologies of British holidaymakers.

Our research findings have highlighted that Nightcation breaks are a growing trend amongst Britons as they are an easy to book, cost effective short break that help workaholic Britons recuperate and recharge for the week ahead.

Travelodge tell us that "more than a third of workers recognise that a Nightcation gives their relationship with their partner a much needed boost".

I leave you to draw your own conclusions as I enjoy another glass of fine St Emilion while writing this newsletter in South West France!

6. finally, (for regular readers) I know that you'd be disappointed if there wasn't a TUPE item!

In F & G Cleaners Limited v Saddington (the claimant's name may seem appropriate in a TUPE case for regular readers) the question for the Employment Appeal Tribunal was whether employees who were offered self-employment in the event of a TUPE transfer were unfairly dismissed. The answer might seem obvious for regular readers (and TUPE aficionados) but it is surprising how often this scenario can arise, particularly in the field of contract cleaning.

Unsurprisingly the EAT took the view that there was no failure to mitigate by failing to take the offer of self-employment. However, the interesting twist is that it was also held that there could have been a failure to mitigate if the only disadvantage was the inability to claim unfair dismissal. For those who are interested in this point, I'll leave you to click the link and read the judgment.

In this case the decision not to accept self employment was not a failure to mitigate and (important in employment law) the potential failure to mitigate did not arise when the offers were made but when the dismissals took effect. I doubt that this was a relevant consideration for the employees at the time. Who was the person who ever said that employment law is straightforward and suitable for a summary tribunal process?!

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