Tell Me the Reason Why

whyIt is not often there is an appeal judgement of genuine assistance to employees, but the EAT’s decision last year in Essop v Home Office is one such case in which my union, PCS, assisted the claimants in appealing.

The background is that the Respondent had a Provision, Criterion or Practice that an employee wishing to be promoted within the organisation must pass a Skills Assessment. Anyone who failed this assessment was barred from proceeding to the next stage of the recruitment process (i.e., interview). There was statistical evidence (that does not appear to be disputed) that BME candidates aged over 35 years of age were more likely to fail the assessment and, therefore, be excluded from promotion opportunities. The claimed disadvantage then was not just the failure of the test but the disadvantage in passing the test (which, in theory, would suggest a BME applicant aged over 35 who passed the test could still be at the particular disadvantage).

The claimants lodged employment tribunal proceedings alleging indirect discrimination on race and age grounds. At a preliminary hearing the disparate performance in  skills assessments was accepted but the employment judge ordered that the “[i]t will be necessary for each of the Claimants to prove the reason for his/her failing of the CSA test.”

Indirect discrimination occurs when

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of sub-section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

On the basis of this legislative language one can drill down the basic components of a indirect discrimination claim:

  1. The employer must apply a provision, criterion or practice (PCP); and
  2. That PCP must place (or would place) a particular protected characteristic (e.g., disabled staff) at a particular disadvantage; and
  3. The claimant must share that characteristic (e.g., must be disabled); and
  4. The complained of conduct cannot be a proportionate means of achieving a legitimate aim.

The central issue before the EAT is summarised succinctly in paragraph 12 of the judgement:

12. EJ Baron found that the “particular disadvantage” within Section 19 which had been suffered in the present case was that there was an increased likelihood of an older BME candidate failing the CSA test. He accepted the Respondent’s case that it was not simply sufficient for the purposes of section 19(2)(b) and/or (c) to identify that this was the effect: he held the statute required the Claimants to prove on the balance of probabilities what was the reason for the lower pass rate. The Claimants disputed that they needed to show this.

The EAT ruled that in that direction the ET had made an error of law. In making the direction that he did the employment judge had gone beyond the statutory language.  The claimant had (by the Respondent’s concession) met the first three of the above requirements and all that was left was for the the employment tribunal to judge whether the Respondent’s conduct was a proportionate means of achieving a legitimate aim.

Had it been allowed to go unchallenged the approach to indirect discrimination the first tier tribunal took would have significantly impeded the ability of claimants to challenge the discriminatory effect of employer practices that evidence showed to be discriminatory but with no clear rationale why. That the EAT has put paid to those arguments (for the time being at least) is good news for claimants. The case however has been appealed to the Court of Appeal.

Cases Cited: Essop v Home Office [2014] UKEAT 0480_13_1605

Is Diabetes Necessarily a Disability?

diabetesIf a person has type 2 Diabetes are they necessarily disabled under the Equality Act 2010?

This was the question considered by the Employment Appeals Tribunal in Metroline Travel Ltd v Stoute [2015] UKEAT 0302_14_2601. The claimant had type 2 diabetes but was not on medication for this but did control his condition by controlling his diet, this basically comprised of the claimant avoiding fizzy drinks. The first tier tribunal made reference to the statutory guidance on the definition of disability which it was obligated to have due regard to. In particular, the Tribunal considered paragraph B12 of that guidance (emphasis added):

The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs.

On the basis of that guidance the Tribunal determined at a preliminary hearing that the claimant’s avoidance of sugary drinks was “a particular diet” and, therefore, that the claimant was disabled for the purposes of the Equality Act 2010. However, the claimant was to lose the substantive hearing, and no appeal against that finding was made.   In the appeal judgement (which concerned only the statutory definition of disability) the judge disagreed; at paragraph 11 it was found that “abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction.”

In coming to that view reference was also made to B7 of the statutory guidance, which states that a person may not be at impaired from carrying out normal day to day activities if they can reasonably amend their behaviour to avoid the impairment:

Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.

For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities.

In applying this paragraph the EAT also found (in addition to the finding that avoidance was not a particular diet that avoiding drinks such as Coca-Cola and Fruit Juices was a reasonable modification and that the normal day to day activity of eating and drinking did not have a substantial affect was not substantially affected (although how this was done without any regard to the personal circumstances of the (debarred) claimant I do not know. If you were a teetotal and unable to drink either a Coke or a Orange Juice because of Diabetes that does not leave much choice of liquid refreshment on an evening out! The effect of the avoidance may therefore be substantial, but this was ignored in the judgement.

Unfortunately, in Metroline there no opportunity for the Respondent (the claimant in the case) to put forward legal arguments and neither were there any representations (by the EHRC for example) made and so we are left with quite an unhelpful judgement. It seems a perverse decision to say avoidance of a particular very commonly consumed foodgroup is not “a particular diet” as the EAT said here; that would still leave the question of whether normal day to day activities were affected because avoidance was a reasonable modification which would be particular to the case in hand (but in the event was not considered).

Still, the judgement does throw into light the difficult question of what is reasonable modification; it is one I think there is very little guidance on for reps. It is also one prone for abuse by employers.  When making disability related complaints, particularly with conditions like diabetes, social anxiety, and stammering it would be worthwhile to spend a few moments considering whether there are modifications employers are likely to argue would be reasonable.

 

A Box Ticking Exercise

tick-box Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires that “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.”

In other words, since the since the introduction of employment tribunal fees if a claim is made but that claim is not accompanied by either the relevant fee or an application to HMCTS for a remission of that fee the claim will be rejected meaning the claim will not be heard.

Applications for a fee remission are normally completed on form EX160. Unfortunately, it is not open to an applicant to complete a form online; this means a claimant can submit a claim online but if they wish to make an application for remission they should tick the box stating this and send the EX160 from by post within seven days.

It is a needlessly complicated system, and one employer has recently tried to manipulate to argue a claim should be rejected. In Deangate Ltd v Hatley & Ors [2015] UKEAT 0389_14_2603 three claimants submitted an online ET1 one day before the limitation period for lodging the claim expired. However, the claimants did not pay the fee but stated that they would be making a fee remission application (which they did). However the EX160 was received by the Tribunal after the limitation period. The question, therefore, is whether the ET1 was, on the date of submission online, “accompanied by a  … remission application”.

As Langstaff P noted, ” If “ticking the yes box” did not amount to making an application this would have the unhappy consequence that in practice forms could be submitted online only by those with the funds to pay fees, and would disadvantage those who had internet access but no resources: but this, again, is not a necessary feature of the online submission of claims.”

In conclusion is was found that

Since it is not in dispute that each Claimant ticked the appropriate box, and my conclusion that to do so amounted to an application is one wholly of law, there is no other conclusion she could have reached.  Despite the considerable thought that Mr Pearson has put into his submissions, the appeal fails. It does so because I accept the Intervener’s argument that what happened in the case of each of the Claimants was that an application for remission of fees did actually accompany the claim, being made in the same online submission as the claim even if it was only fleshed out when Form EX160 was later sent in.

The decision is a welcome one but one, I am sure, that was taken with a good helping of pragmatism as it would have required HMCTS to completely rework its system. It is notable that the Secretary of State for the Ministry of Justice was invited to intervene in the case and it was the intervening Counsel’s arguments that was to prove decisive in the judgement.

For my part I cannot see how, given the tick box states whether the applicant ‘intends’ to make an application and the form by which this is done (the EX160) is not part of the application how ticking a box amounts to ‘an application’. That is not a problem with the legislation but with the pretty shambolic implementation of the remission process by HMCTS. Still, HMCTS will be thankful the President of the EAT has saved them some blushes (and,importantly, allowed claimants the opportunity to present their case).

Affirming Gross Misconduct

At the beginning of the mofirednth I posted What Will the Papers Say?, a piece on the High Court’ s decision in Williams v Leeds United Football Club [2015] EWHC 376 (QB).

Briefly, the claimant, then a Director for Leeds Utd FC, had sent pornographic images using the football club’s IT to three people: Dennis Wise, Gus Poyet and a LUFC administrative worker. Not one of the recipients made a complaint about the email and the football club had no knowledge of the misconduct.

A significant time later the football club gave notice to the claimant to terminate his contract which amounted to a year’s salary. However, after agreeing the termination but before payment was made the football club became aware of the earlier misconduct and launched disciplinary proceedings which resulted in the claimant’s dismissal.

Gross Misconduct is, at root, a matter of contract; it is conduct that is capable of destroying the relationship between the employer and employee. In the Williams case even though there was a delay in the employer discovering the misconduct when it did so it was open to the employer to respond by considering the contract terminated by the employee’s actions – even though there was a significant delay between the employee’s misconduct and the employer’s knowledge of the misconduct.

But what if LUFC had known about the misconduct previously but had declined to act? In Williams Lewis J covers this state of affairs by finding that in such a case LUFC would not be able to justify dismissal (paragraph 70):

Sixthly, Mr Barnett submitted that if the Club knew that the Claimant had forwarded the e-mails to Mr Wise, Ms Lamb and Mr Poyet prior to deciding to dismiss then the letter of 23 July 2013 affirmed the existence of the contract. I accept that if those who took the decision did know those facts prior to the decision to terminate the contract, then the letter of 23 July 2013 would amount to an affirmation of the contract of employment and that the Club could not thereafter rely on those facts as justifying dismissal.

In the same way that an employee when considering resigning from their employment and claiming constructive dismissal in response to a fundamental breach of contract must act quickly to avoid being seen to have affirmed the contract so an employer must likewise act quickly.

So, to amend the narrative somewhat, suppose Mr Williams still sent the emails but the following day reflected this was a big mistake and confessed the act to the LUFC Chief Executive. The Chief Executive is not happy and admonishes Mr Williams but decides to take no further action. In such a situation it would seem even if a new CEO is appointed LUFC is aware of the misconduct and, therefore, could not go on to pursue his dismissal on gross misconduct grounds as the breach of contract has been affirmed by the employer.

In my experience, this is not in fact an uncommon state of affairs. For example, it has not been an uncommon situation for an employee to do something wrong and then promptly tell their manager of this and for the manager to take no further action.

For employees and trade union reps this is a reminder of the basic principle that an employer as well as an employee may affirm conduct that is capable of repudiating the contract between them and it is one that it would pay to be alert do. In cases where an employee subject to disciplinary investigation readily admits to me (as their rep) that they did the misconduct they are accused of I often ask if they have ever told the employer this; it is surprising how many have.

In practice (and especially where documentary evidence is available) the very fact of prior notification is sufficient to see of the allegation, meaning there is no need to revert to more legal affirmation of contract arguments.

Strangely, and in my view wrongly, the Court of Appeal have in a case arising from the tragic Baby P case (Christou & Anor v London Borough of Haringey [2013] EWCA Civ 178) suggested the opposite and that where an employee has been investigated for an offense and been given a warning the employer can go back and ‘have a second bite’ and dismiss the employee for the same offense (and here, even if there was a difference of emphasis, it is clear the employer knew of all the relevant facts later relied upon). Clearly, in that case the fact that the employer did not dismiss in the first instance can be questioned but having made that decision seems to fly in the face of any concept of fair process. Thankfully, this type of situation will be exceptional but I certainly hope, in time, this case will be overturned.

Changes of Contract and the Equality Act

ContractClaims under sections 19 and 20 of the Equality Act 2010 require that a provision, criterion or practice place (or in s.19 would place if applied) an individual with a protected characteristic at a substantial (in the case of section 20) or a particular (in the case of section 19) disadvantage.

In Edie & 15 Ors v HCL Insurance BPO Services Ltd  [2015] UKEAT 0152_14_0502 the Employment Tribunal asked the question as to whether the imposition of new – and detrimental – contractual terms could amount to a PCP with reference to section 19(1) of the 2010 Act. I don’t see why this would not equally apply to the PCP in section 20(3) of the Act.

In many ways this is a commonsense decision but the clear authority that a change of contract situation does not just raise prospects of a common law/constructive dismissal remedy but also (especially) protection on indirect discrimination grounds is a welcome one. This is because it gives a more tangible protection to workers than the theoretical option of constructive dismissal arguments (if you’re on the breadline walking away from an income even if a breach is grievous and fundamental it is not often a realistic option and this gives employers a license impose inequitable changes).

Certainly in my experience members in the PCS Union  are seeing a raft of changes in the workplace, changes that in my view are likely to amount to contractual variations. Many of these do place particular groups (expecially on age and disability grounds) at a disadvantage. So, for example, changes to a contractual grievance procedure that applies to all employees and make it harder to have grievances heard may still place disabled employees at a disadvantage if disabled staff are five times more likely to submit a grievance than non-disabled staff.

This doesn’t change much but at least it makes it a bit easier to force employers to objectively justify their discriminatory conduct since it is less easy to evade the issue by denying contract changes are a PCP.

A PDF of the judgement.

Whistleblowing: not just and equitable

wbA scenario: Sarah, who is an employee, suspects that the company’s finance officer is ‘cooking the books’ by skimming company funds into his personal accounts having come across a printed document left on the printer in the office.  Concerned about this Sarah reports her concerns to the company’s HR director and explains that she thinks the finance officer who assures her she will investigate and handle the situation.

The following week the worker applies for a promotion opportunity in the company and on the 19th September is told her application is unsuccessful, the reason given is she is not a ‘good fit’ for the role and there were other better qualified candidates.

Unknown to Sarah the HR director and finance officer are good friends. Without investigation the HR director decided that there was no substance to allegation of theft because, being a friend, he knew that the finance officer was a person of impeccable character. And upon hearing that Sarah had applied for promotion and was about to be offered the role the HR Director directed the interviewing officer not to give Sarah because she was a troublemaker but to tell her she was simply not the best candidate for the job.

Then on 19 December (exactly 3 months after the unsuccessful application) at a Christmas company do the HR Director having had one too many drinks Michael, the HR Director’s PA, blurted out to Sarah that the reason she was not successful for the job was because she had made the complaint to the HR Director that the finance officer had defrauded the company and that the complaint had been brushed under the carpet and not been investigated.

Distraught, the one week later ater collecting her thoughts Sarah files an Employment Tribunal claim alleging that the rejection of the job was a detriment for whistleblowing.  After discovering her allegation had not been investigated Sarah also reports the alleged theft to the Police. Their investigation reveals the finance officer had been stealing from the company for many years and he is convicted and imprisoned for theft.


Sarah’s complaint to the Employment Tribunal would be a claim under section 47B of the Employment Rights Act 1996 (the ERA) which stipulates that a “worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” On the facts as set out above Sarah would have a strong case that she was subjected to a detriment for having made a protected disclosure. However, section 48 of the of the ERA directs Employment Tribunals that they “shall not” consider a complaint unless the claim is submitted within three months of the “the date of the act or failure to act to which the complaint relates” (section 48(3)(a)). For Sarah that act complained about is the failure to promote her, and that happened on 19 September. Therefore, the three months would expire on 18 December.

There is clearly an unfairness here; soon after Sarah was aware of the claimed unlawful act she initiated proceedings but despite the clear evidence that she has acted quickly and was penalised for blowing the whistle on a serious matter she would appear not to have any legal redress for the wrong done to her.

It was this precise issue that was addressed by the Employment Appeal Tribunal in  McKinney v London Borough of Newham [2014] UKEAT 0501_13_0412. The claimant had submitted that the time limit for making a complaint detriment because of whistleblowing ran from the point he became aware of the detriment (in his case, when he received an outcome through the post), not the day the grievance outcome (the alleged detrimental treatment) was sent. Clearly, without any real enthusiasm, the EAT at paragraphs 6 and 7 found the effective date in which to submit a claim begins on the date the detriment takes place “whether or not he is aware that a detriment has been suffered”:

(6) It seems to me that the current state of the authorities is less than satisfactory.  Nevertheless, a clear thread is now emerging (see Mensah; Virdi; Garry; Warrior Square) which points towards the counter-intuitive position that time begins to run against the Claimant relying on a detriment, both under the Employment Rights Act and the Equality Act whether or not he is aware that a detriment has been suffered.  I agree that the wording of section 48(3) Employment Rights Act is focused on the employer’s action (or omission) and that a detriment may be suffered without the Claimant being aware of it.  For example, a difference in treatment which may be on the grounds of race (see Garry).  Indeed section 48(4)(b) provides that a deliberate failure to act shall be treated as done when it was decided on, not, I would add, when the Claimant learned of the omission.  That is consistent with the Mensah line of authorities in relation to the employer’s act.  Whilst the need for knowledge is reinforced by the Supreme Court in Barratt when considering the effective date of termination I accept that section 97(1)(b) Employment Rights Act raises a different question from section 48(3).  The Claimant is entitled to know that he is dismissed before the dismissal takes place.  He may suffer a detriment without that knowledge.

(7)           In these circumstances, and being unimpressed by Mr O’Dempsey’s public policy argument, I am driven, without enthusiasm, to accept Ms Balmer’s submissions as a matter of construction and authority.  The Employment Judge was right to treat time as running from the date of the Respondent’s grievance decision, 8 October.  By way of analogy, time runs for bringing an appeal to this Tribunal from the date the Employment Tribunal Judgment is sent to the parties, not when it is received by them.  Thus, the section 47B complaint was out of time.  The Employment Judge went on to consider the reasonable practicability escape clause and rejected it (paragraph 32); there is no extant appeal against that ruling.

On the basis of the legislation I think the EAT are right but it is clearly an unpalatable state of affairs that can lead to injustice and gives employers an opportunity to discriminate against whistleblowers and still evade legal scrutiny. I do not know if this decision is being appealed but it seems to me that in a case such as Sarah’s she has been deprived of her right of legal redress that potentially raises Article 6 ECHR issues (along similar lines to that advanced in Williams v Ministry of Defence [2012] UKEAT/0163/12/JOJ.

The clearest change that needs to be effected, it seems to me, is for section of 48 of the ERA to be amended so as to align itself with section 123(1) of the Equality Act 2010. Although the time limit provisions in the ERA are nearly identical to those in the EA 2010 an out of time claim may be allowed where it is just and equitable to do so, a provision the ERA omits. The Court of Appeal has accepted that whisteblowing protections are anti-discrimination laws (see Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). Relying on the House of Lords’ finding that there is a public interest in discrimination cases being heard set out in Anyanwu and Another v. South Bank Student Union [2001] UKHL 14 LJ Kay commented that “in my judgment the same or a similar approach should generally inform whistleblowing cases” (paragraph 32). And so, were an out of time whistleblowing claim allowed to because it was “just and equitable” to do so then there would be a strong public policy reason to allow the claim to proceed. In short, Sarah would have a good chance of getting her day before the Tribunal.

The difficulty is that the construction of the right to lodge a claim in the ERA does not permit an Employment Judge to hear such a claim – that needs to change. If it doesn’t then whistleblowers will be deprived their right to challenge unscrupulous employers.

For reps wanting to understand whistleblowing law I recommend a visit to the Public Concern at Work website.

PCS Union win court victory on changes to terms and conditions

PCS has today announced that its challenge of the National Audit Offices decision to unilaterally change terms and conditions of service from its employees has been successful:

On 15 December, PCS won the important case against the NAO’s decision to reduce the contractual sick pay and leave of its existing staff.

This dispute started in late 2012, when the Cabinet Office wrote to all government departments, asking them to make sure the terms and conditions on offer to civil servants were in line with those provided by a “good, modern

employer”. In practice, this meant suggesting reductions in various terms and conditions, such as entitlement to sick pay. PCS organised a national response to this with the ‘Don’t rip up our rights’ campaign.

The Cabinet Office did not write to the National Audit Office, since the NAO is not part of government. Instead, it works directly for Parliament as its ‘spending watchdog’— certifying the accounts of government bodies and producing value-for-money reports on public spending.

Strong defence

But despite being independent of government, the NAO decided to reduce the terms and conditions it offered anyway. In fact, it decided to go further than government departments, and impose reductions on the contractual terms and conditions of its existing staff.

We mounted a strong defence, including a joint grievance, comprising 10% of the entire NAO workforce, a motion from the PCS group of MPs, and industrial action.

NAO management would still not come back to the negotiating table or make changes to their proposals. So, in 2014 we supported 2 members who took a test case to an employment tribunal. NAO management argued that the wording of the contracts allowed them to make changes to the terms and conditions of staff even without their agreement.

The NAO won this original tribunal case, having claimed they were following the example of Asda-Walmart, which had previously succeeded in doing something similar. But our legal advice said this was flawed.

In December, PCS took the case to an employment appeal tribunal and won. The EAT ruled that the NAO did not have the right to change the contractual terms of its staff without their agreement.

This ruling does not just benefit staff at the NAO. It also sets a legal precedent which should help to protect workers across the country from employers trying to impose detrimental changes in similar circumstances.

Although not stated in the briefing the case would appear to be that of Norman v National Audit Office. It does not look as if the reasons for the EAT’s judgement have yet been published.