Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
October 2013

Welcome to our October review and update. As I have been putting the finishing touches to this month's newsletter I have also been reading with great interest the outpouring of anger, on the part of both politicians and the media, following the disclosure that Sharon Shoesmith has reached a settlement with Haringey Council, widely believed to be over £600,000. It is understood that she had been claiming in the region of £1.5m. There is much irony in the fact that it is precisely this type of hysterical demonising of a convenient target at the time of the Baby P scandal which has no doubt contributed to a much higher valued settlement than might otherwise have been appropriate. It is worth remembering that Ms Shoesmith was found to have been unfairly dismissed so the "blame" (if that is what it is) for her award certainly does not rest with her. In a further twist of irony it most likely rests with the politicians who are now protesting so strongly.

You can read more of my thoughts on the matter in this blog post.

This month's other cases and reports cover some pretty unsatisfactory ground, including a tribunal case which was mislaid for two years, nominal damages for serious data protection ineptitude and a household name retailer that inexplicably allowed the same person to conduct both a grievance hearing and the resulting appeal.

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September 2013
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This month's news round-up:

1. appalling incompetence by an employment tribunal, yet the claimant loses out


Elliott v The Joseph Whitworth Centre Ltd is a decision of the Employment Appeal Tribunal which demonstrates what can only be described as an abject failure of the judicial process. In his judgment His Honour Judge McMullen QC describes the chronology of relevant events as "sad and disappointing". Mr Elliott had been working as a caretaker at a local community centre until he was dismissed on 6 February 2010. He presented a claim of unfair dismissal to a tribunal on 30 April that year – well within the three months' time limit. Remarkably his claim was not sent by the tribunal to his employer until nearly two years later. Ironically the Employment Tribunals Service was piloting a new computer system at the time - unfortunately named in this context Caseflow - and as is so often the case the system had in fact caused considerable administrative difficulties. Mr Elliott's union representative was also at serious fault because he did not get round to enquiring about the progress of the case until February 2012. When he finally did, the tribunal sent out the claim form to the Respondent.

The Respondent filed a completed response but also applied to have the claim struck out on the ground that there had been such a long delay. In particular reliance was placed on Employment Tribunals Rules 18(7)(d) (claim not actively pursued) and 18(7)(f) (it is no longer possible to have a fair hearing).

Very surprisingly the employment judge who dealt with the strike out application did not consider any oral or written evidence. Nonetheless, based on consideration only of the claim form and the response, the judge decided that there could not be a fair trial. Pausing there, this is a remarkable conclusion to have reached, bearing in mind how long it can take cases to come to trial - often six years or more, particularly in the criminal jurisdiction. The judge decided that the delay of nearly two years was inordinate and, taking into account the errors by the employment tribunal and the claimant's representative, inexcusable. I am bound to observe that, in this context, one person's "inordinate and inexcusable" would appear to be another's "routine and typical". This was, on any reading of the matter, a remarkable let off for the former employer.

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2. another TUPE update


Not only is TUPE one of the most difficult areas of employment law, it is also one of the most volatile in terms of frequently changing rules and conflicting decisions.

Last month I reported a watering down of TUPE reforms and the result of the Government’s review of TUPE has now been published, setting out its plans for those reforms which are going ahead. The headline omissions are:

  • The provisions expressly applying TUPE to service provision changes (SPCs) are not to be repealed (although they will be tweaked – see below). This will no doubt be a relief to service providers who will not be lumbered with staff they have taken on from predecessors under TUPE if they now lose a contract, and a disappointment to TUPE lawyers who fancied a bit of extra litigation work!
  • The obligation to provide employee information prior to a transfer will stay, but transferors will have 28 days to do this rather than the current 14.

The following changes will be made, and it is difficult to take issue with them as measures to help businesses:

  • The definition of a SPC will be restricted to situations where the activities before and after transfer are "fundamentally or essentially the same" (in line with Metropolitan Resources Ltd v Churchill)
  • Specifying that a change in location of the business falls within the scope of the defence to automatic unfair dismissal allowed for economic, technical or organisational reasons.

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3. unreasonable refusal of alternatives to redundancy

Source: Creative Commons

In January 2012 I reported the decision of the Employment Appeal Tribunal in the case of Readman v Devon PCT concerning whether or not it was reasonable for a specific employee to reject alternatives to redundancy which would have been accepted by a reasonable employee. The EAT decided that Mrs Readman was entitled to reject the offers, thereby overturning the decision of the Employment Tribunal. I pointed out at the time that when, according to the EAT, the Tribunal got its analysis fundamentally wrong, it demonstrated just how hard it is for employers to get things right when trying to apply fair procedures

That observation has been well and truly reinforced by the decision of the Court of Appeal - Devon Primary Care Trust v Readman. The Court considered two issues – whether an Employment Tribunal had been wrong to decide that a nurse had lost the right to a redundancy payment by unreasonably refusing an offer of suitable alternative employment, and how that question should be addressed. After 30-odd years mainly spent working in the community the employee was working as a modern matron. On facing redundancy, she was offered three options - two jobs at a lower grade (which were not suitable) and a job at the same grade, but working in a small hospital.

Although it had correctly looked at the question from the employee's subjective point of view, the Tribunal had got it wrong, by failing to consider all the relevant facts properly including the employee's preference for working in the community rather than a hospital, and the possibility that the reason for refusal was because she wanted to emigrate to Canada.

However, the Employment Appeal Tribunal had also got it wrong.

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4. no longer in force


Just a reminder – two repeals effected by the Enterprise and Regulatory Reform Act 2013 came into force at the beginning this month. These are:

  • The removal of the provisions of the Equality Act 2010 relating to employers’ liability for third party harassment: and
  • Changes to civil liability for employers who breach health and safety law.

In a bit more detail, removal of liability for third party harassment will take the situation back to where it stood prior to the Equality Act, under Pearce v Governing Body of Mayfield School; Macdonald v Advocate General for Scotland [2003] ICR 937 whereby an employer can only be held liable for harassment of one of its employees by a third party (such as a customer, service user or client) if the reason for the failure to prevent harassment was itself discriminatory. The government felt that the mischief addressed by the Equality Act 2010 did not require a cure, but that if that were wrong, employees could use other avenues, such as a general personal injury claim, constructive dismissal or under the Protection from Harassment Act 1997.

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5. a union with no members


In Akinosun (on behalf of General & Health Workers Union) v The Certification Officer the Employment Appeal Tribunal (Mr Justice Langstaff - President) upheld the refusal of the Certification Officer to list GAHWU as a trade union (from which follow a number of legal consequences, including the possibility of recognition for collective bargaining). The decision came down to the interpretation of the statutory definition of a trade union.

Section 1 of the Trade Union and Labour Relations Consolidation Act 1992 is headed "Meaning of Trade Union" and states:

In this Act a trade union means an organisation, whether temporary or permanent...which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers associations...

Section 2 of the Act provides that the Certification Officer must keep a list of trade unions. It is a question of fact whether or not an organisation fits the description of a trade union. It follows that if the purposes of the organisation do not include the regulation of relations between workers and employers then the Certification Officer cannot certify the organisation as a trade union, notwithstanding any declaration which may have been made. Further, a union carries out collective work for its members. Therefore an organisation which exists to provide representation at internal hearings would not, for that reason alone, be a union.

Mr Akinosun and Mr Adelaja were directors of a company called ERRAS Ltd (an acronym for Employment Rights Representation and Advisory Services), which offered representation to health workers, at a fee. No one from ERRAS could accompany workers at grievance or disciplinary hearings - it not being a union - which was a bit of a gap in the service offered. They therefore set up the General and Health Workers Union (GAHWU), with which they shared an office and facilities with the intention, they said, of the administration of the union being taken over by elected officers, once the union had some members.

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6. discrimination, appeals and returning to work after maternity leave


A Ms Little joined Richmond Pharmacology in 2006 as an evening receptionist. In 2009 she was promoted to the post of full-time sales executive. Richmond operates in a highly competitive marketplace, relying on personal contacts and dealing with the running of pharmaceutical trials.

In September 2009 Ms Little went on maternity leave prior to the birth of her second child. As is often the case in such circumstances she applied for a flexible working arrangement on her return to work in August 2010, specifically Monday to Wednesday, 9.00 a.m. to 3.00 p.m. and remote access when she was at home on Thursdays and Fridays. Her request was rejected on the ground that "it was not feasible for a sales executive to operate on a part-time basis".

Ms Little appealed the decision but resigned before the appeal hearing was arranged. She was asked to reconsider her resignation until the appeal hearing could take place. The hearing took place three days later and she was offered a three-month trial on the terms she had requested. She refused and confirmed her resignation.

Ms Little brought an employment tribunal claim, alleging constructive unfair dismissal and indirect sex discrimination. The effective date of termination of employment was 19 July 2010 and the claim form was presented on 29 October 2010 so the unfair dismissal claim was out of time. The discrimination claim survived because it was "just and equitable" to allow it to proceed.

Discrimination claims can be both resisted and established on the basis that there is a relevant provision, criterion or practice (PCP) which is applied to a particular job. In this case the relevant PCP was that sales representatives must work full time. That is what she was told when she applied for flexible working. On its face such a requirement would place women at a disadvantage by comparison with men on the basis of disparate impact. However the PCP had been disapplied on appeal, at least to the extent of permitting the three-month trial. Had this "cured" the discrimination resulting from imposition of the PCP?

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7. getting appeals right


In Blackburn v Aldi Stores Ltd the Employment Appeal Tribunal looked at whether a failure to provide an adequate appeal in a grievance procedure could amount to a breach of mutual trust and confidence and thus a constructive dismissal, and concluded that it could.

Mr David Blackburn commenced work with Aldi 2006 as a light goods vehicle driver. He is a retired police officer and his background was as a vehicle examiner and health and safety trainer. Throughout his employment at Aldi he had concerns about health, safety and training at the depot where he was based. He raised his concerns in particular with Mr Gallivan, the deputy transport manager. It was accepted in evidence that on one occasion Mr Gallivan waved him away, swore at him, said the training was "shit" and told him to "fuck off home". In fact the depot came out well in audits of vehicle inspection and health and safety.

However there was another flare up with Mr Gallivan in June 2009 and this led to Mr Blackburn raising grievances concerning both Mr Gallivan and a section manager, going back over some time. Normally, under the company's written procedure, the section manager would have been the person to consider the grievance, but as it concerned him, the next person for it to go to was the logistics manager. But there was no logistics manager - so the regional managing director, Mr Heatherington, dealt with the grievance instead. He met twice with Mr Blackburn, notes were taken and the meetings were recorded. He also spoke with potential witnesses. He reported his findings in detail and upheld the grievance in part. Mr Blackburn was not satisfied and appealed, copying his notice of appeal to the managing director. Remarkably, Mr Heatherington dealt with the appeal himself, holding a brief appeal meeting.

What happened at that meeting was disputed, with Mr Blackburn saying that he was barely permitted to speak and was given a dressing down. Mr Heatherington put forward a rather different version. Mr Blackburn maintains that he was told by Mr Heatherington that his decision was final and he had to accept it. He also alleged that Mr Heatherington had told him that he was anwerable to no-one and that he was in overall charge.

Six days later, Mr Blackburn resigned and started constructive dismissal proceedings. Having started the claim on the basis of a breach of mutual trust and confidence, permission was sought to add an allegation that the grievance procedure had been contractual and there had been a breach of an express term – but this was refused.

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8. is it any wonder that incompetence thrives?

Counting on success

Employers necessarily gather, store and use personal data about applicants and employees and so must comply with the Data Protection Act 1998. Halliday v Creation Consumer Finance Ltd considers what sort of compensation should be awarded if that information is misused. It arose in the context of consumer credit finance. After Mr Halliday bought a new television on credit, there began something of a saga. The credit company, CCF, was ordered to delete the information they held on Mr Halliday and pay him £1500 compensation and costs for breaches of the Act. Initially they mistakenly paid the sum into the wrong bank account, but then made the payment correctly and attempted to get the money back from the bank. When the bank refused, they started proceedings to try to claw back the double payment from both the bank and Mr Halliday. Next, they made a further mistake and passed information to Equifax, with the result that anyone checking Mr Halliday's credit rating for a period of four months would have seen a debt of £1500 owed to CCF without a credit agreement governing it.

Mr Halliday successfully counterclaimed for these further breaches of the Data Protection Act but was awarded only nominal damages. On appeal to the Court of Appeal, he argued that nominal damages, or even nominal damages plus damages for distress were not an effective remedy. He also proposed that damages for distress should be assessed in the same way as compensation for injury to feelings in discrimination cases (applying vento guidelines).

Lady Justice Arden, while confirming that that an individual can be awarded damages for distress arising from a contravention of the Act, pointed out that it was "not the intention of the legislation to produce some kind of substantial award". She remarked that that the breach complained of was a single episode, had not led to any actual damage to Mr Halliday's reputation and that there was no evidence of injury to feelings or distress over and above what might normally be expected "from frustration at these prolonged and protracted events". In the circumstances nominal damages of £1 plus £750 for distress were "appropriate and sufficient". She went on to reject any analogy with discrimination claims which, she said, are liable to involve distinct and well-known distress to the complainant.

In the meantime the Information Commissioner is doling out swingeing fines for data protection breaches.

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9. calculating a week's pay?


Toni & Guys (St Paul's) Ltd v Georgiou looks at the proper calculation of a week's pay for the purposes of both the basic and compensatory awards following a finding of unfair dismissal and addresses the impact of the employer's conduct on compensation.

The familiar hairdressing brand operates its business on a franchised basis. In 2002 Mrs Giorgiou took on a franchise for a business based at premises in Newgate Street, London EC1. In 2011 the franchised business was sold to a Ms Law. As part of the deal it was agreed that Mrs Giorgiou would be employed as a hairstylist. Her statement of terms and conditions described her remuneration as follows:

Your earnings are variable and are on a commission only basis and you will receive 34% all your net takings payable monthly in arrears by cheque/credit transfer as detailed on your pay statement. We, however guarantee that your earnings will not fall short of the current minimum wage in force for the hours worked.

Mrs Giorgiou and Ms Law disagreed about what constituted a week's pay. At the Employment Tribunal it was noted that her payslip showed pay for July 2011 in the sum of £741.57 net. This suggested a net weekly rate of about £220. However Mrs Giorgiou claimed, and it was accepted by the Tribunal, that the pay was artificially low because the period included two lengthy suspensions, during which she had her name blackened and lost goodwill with her own personal clients. Ms Law had capriciously diverted work away from her and, ultimately, sacked her. Without these factors her pay would have been £265 net per week equating to £294 gross.

However, was it right to take into account the employer's conduct when calculating a week's pay?

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