Direct Discrimination: Defences

It is a couple of months since I promised the last post in my brief series on direct discrimination with a summary on an employer’s defence to direct discrimination claims. Life got in the way, etc.

But first a recap,  section 13 of the Equality Act 2010 sets out that that no employer can treat a worker less favourably because of a protected characteristic than they would treat another person who did not share that protected characteristic. A protected characteristic is one of the following: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. When they do so they directly discriminate the employee.

It is commonly said that with the exception of direct age discrimination there is no defence to direct discrimination. With the exception of the statutory defence which is only rarely successful (and is summarised below) and the special defence available in age discrimination complaints (also summarised below) this is strictly correct but it is also misleading. The fact is direct discrimination cases are hard to prove and the absence of any proportionality defence means that the battleground is on whether the elements of direct discrimination are met. What in fact is meant by the claim of there being no defence is that where direct discrimination is found there is no justification defence (as there is on most other types of discrimination claim. In no particular order, the 10 defenses I have thought of (there may well be more) are:

1. Proportionality

Unlike indirect discrimination claims an employer has no defence that their conduct was a proportionate means of achieving a legitimate aim. This is not a legal definition but I often view this as a ‘this is not an ideal situation but it is the least bad one we could implement’ type scenario. That is, however, unless the protected characteristic engaged is that of age. In which case, section 13(2) of the Equality Act 2010 specifies that treating an employee less favourably because of age is in fact lawful so long as the conduct is a proportionate means of achieving a legitimate aim.

Whilst the language used is the same as used in elsewhere in the Equality Act decisions of the European Court of Justice (ECJ) have severely limited the scope of this defence. A legitimate aim for the purposes will now be a social policy objective and therefore, especially for private employers, this will be a difficult defence to mount. The Supreme Court has confirmed the somewhat niche nature of this defence in Seldon v Clarkson Wright & Jakes [2012]. In fact, even in the case of public employers this has been a difficult test to meet. Earlier this year the Court of Appeal (the decision is expected to be appealed to the Supreme Court) decided in  The Lord Chancellor & Anor v McCloud & Ors [2018] that a government implemented pension change that treated older workers more favourably (in order to soften the blow of the changes of those nearing retirement following a TUC recommendation) was indeed directly discriminatory.

2. Unconnected reason 

A common misconception is that the Equality Act is designed to create fairness in the workplace. I would certainly be in favour of such legislation but the Equality Act does not meet this need. The Equality Act only protects an employee from unwanted conduct by an employer or its agents  that is related to a protected characteristic. The next defences is rooted in this misconception.

The unconnected reason defence is possibly the most common defence. In an direct discrimination complaint an employee will need to show that there is a protected characteristic engaged and that there has been less favourable treatment compared to a comparator.

If a female employee and male colleague each apply for a promotion but the male colleague is successful in being offered the job then the unsuccessful candidate may well feel she has been directly discriminated against. In this case the protected characteristic (sex) and the less favourable treatment (the refusal of promotion) are clear. But there is a third step the employee would need to meet, namely that the reason for the unfavourable treatment was because of the her sex.

An employer faced with such a claim would likely want to argue that while the employee certainly was treated less favourably this had nothing to do with her sex. Instead, it is because the male candidate was simply better suited to the job for reasons unconnected with the protected characteristic, for example he has performed the same role for a competitor and so has better experience. If they can persuade a tribunal that this different reason was the reason for the treatment then the complaint will be unfounded.

This defence can also have a more sinister side. Even if an employee is treated less favourably for an unreasonable  reason this will not be actionable so long as that reason is connected to a protected characteristic. So, to return to the hypothetical example above, if while driving to the interview the unsuccessful candidate unknowingly cut up the interviewing manager causing an accident, and the manager recognised the employee as the culprit and decided to appoint the other candidate in a pique of revenge then that too would be a defence and make the claim unactionable if a tribunal were to accept that account.

In either scenario if the reason for the treatment is unconnected to the protected characteristic then the employer will be able to defeat any direct discrimination claim.

3. Equally Bad

The second way unfairness is beside the point in a direct discrimination defence is by way of what is colloquially called the bastard defence.

Remember, one of the components of a direct discrimination complaint is that because of a protected characteristic an employee has been treated less favourably (i.e., worse) because of that protected characteristic.

Consider the following hypothetical defence statement:

“The truth of the matter is that we are very bad employers. We work our workers to the bone, disregard all health and safety regulations, we always pay our workers late as that delay generates extra income for the company and we will dismiss anyone who talks about raising a complaint or of unionising; we accept unreservedly that our treatment of the claimant has been reprehensible and even unlawful. However, that treatment has no relation whatsoever to the claimed protected characteristic – the reality is we are an equal opportunities employer in that we treat every worker, whatever their background, equally poorly.”

The defence is certainly not going to win the employer any Public Relations awards and may well leave an employer open to other legal claims but insofar as a direct discrimination claim goes if the tribunal accepts that the employer really does treat everyone equally poorly then (with the exception of certain maternity/pregnancy complaint) the employer is likely to successfully defeat any direct discrimination complaint.

It is arguable that this applies even when the conduct complained of does relate to a protected characteristic. For example, to slightly alter the facts of a 2001 Employment Tribunal  case, suppose a Jewish employee was required (with other colleagues who did not share the same protected characteristic) to wear a Nazi uniform. This is manifestly offensive, unfair, and derogatory conduct that has no basis in any workplace but, on a direct discrimination front, it is arguable that the employer’s defence that this was applied to everyone equally may well be successful because the employee was treated the same as the other employees who did not share that protected characteristic.

Thankfully, were such a situation to arise again the fact there is now no need for a comparator in harassment cases mean if direct discrimination is not available a claim could be pursued on harassment grounds under section 26 of the Equality Act 2010, or even fashioned as an indirect discrimination complaint.

4. Occupationally required

This is not common but Schedule 9, part 1(1) of the Equality Act allows the discrimination to occur where a job holder needs to be of a certain protected characteristic. In such case the proportionate means of achieving a legitimate aim test is used to assess whether this requirement is reasonable. This is rarely appropriate but could be seen as reasonable in situations such as where a rape victim advisory role is required to be female or where a church’s outreach worker must share the faith of the employer (i.e a Methodist outreach worker should be a Methodist).

5. Disability

In a similar manner the Equality Act places an obligation to make adjustments for disabled workers to avoid or mitigate any disadvantage arising from their disability. This requirement has been found to include, in certain circumstances, an obligation to treat the employee more favourably than their peers.

Because in direct discrimination there is now no need to show that the reason for the treatment being applied for was because of their protected characteristic but simply because of a protected characteristic an enterprising employee who had not been given, for example, a reduced caseload when his disabled colleague had as a reasonable adjustment could claim he was being directly discriminated. The argument would be that he was being treated less favourable (higher workload) than his colleague because of disability (namely his colleague’s disability) .

Fortunately section 13(3) of the Equality Act 2010 specifies that if “the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.” The result of someone who is not disabled is being treated less favourably than a disabled person because of disability then that will mean the employee will have no claim.

6. No Shifting Burden

Along with the unconnected reason defense this is the most important and common defence. In an earlier post I outlined the burden of proof test in direct discrimination cases that is found in section 136 of the Equality Act. If a claimant cannot satisfy this test then, simply put, the employer will successfully defend the case and there will be no finding of discrimination.

In practice this means that the employee must be able to bring to the tribunal evidence that, in the absence of any other explanation, the less favourable treatment was because of the protected characteristic.  For the employee this is frequently a very difficult task as employers are unlikely to want to volunteer information that would show that the reason for their treatment is related to a protected characteristic.

It will very often be that the employer’s best chance of defeating a claim is to argue that the employee has not shown evidence that points to the reason for the conduct complained of being because of the protected characteristic and so the employer has no case to answer.

7. No material causation

The seventh reason is not common but is a strategy that minimises the significance of conduct that is related to a protected characteristic. In an earlier post causation in direct discrimination was discussed and the case of Nagarajan was considered.  In Nagarajan the House of Lords recognised that decisions are often made for multiple rather than just one reason and that in terms of direct discrimination claims the fact that, for example, a decision was made for one reasonable reason and one prohibited reason caused by a protected characteristic is sufficient to establish that the decision was because of a protected characteristic. This is a helpful decision that makes it more difficult for employers to cover discriminatory conduct under a blanket of reasonable business reasons.

However,  Nagarajan still allowed a decision that is tainted by discrimination to avoid liability for direct discrimination. To recall, the relevant passage of the decision in Nagarajan (which was a race discrimination case) is “Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

If a protected characteristic were established as a reason for less favourable treatment but not as one that had a significant influence on the outcome then the appear may have a defence on this basis. For example, a racist manager would have dismissed a worker for proven misconduct but, the fact that the employee is black, meant that the manager found this a much easier decision than would otherwise have been the case even though the outcome is the same. This is in effect a different angle on the bastard defence.

Given the purpose of the legislation is to combat discriminatory conduct in UK workplaces it is an interesting question whether this approach, which effectively does not prohibit prejudicial conduct in employment situations so long as they have limited practical effect, is the right course of action rather than, as is the case in indirect discrimination cases (see Lady Hale’s judgement in Essop v Home Office) allowing nominal or no damages in cases where the the discriminatory conduct had no affect on the claimant. The latter having the advantage of at least marking out discrimination as an unlawful act.

8. Isolated occurrences

It is frequently the case that in direct discrimination cases an employee will complain of a series of issues whereby they allege they have been treated less favourably.

For example, a claimant may allege that

  • On 5 January 2019 she was given a poor performance review by her manager and this was because she was disabled
  • On 6 February 2019 she was given accused of misconduct by a company director and he initiated a misconduct investigation. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 30 April 2019 she is dismissed for misconduct by the company director. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 5 May 2019 HR refused her an employment reference, again she believes this is because  she is black.

As in most employment tribunal claims a claim for must be initiated within three months of the think being complained of. If on 6 May 2019 the claimant begins Employment Tribunal  proceedings only two of the four claims would be within three months and it is likely the employer would seek to strike out the first two claims (because they occurred before 7 February 2019). This is of course a frequent and in my view perverse consequence of UK employment law in that an employee, even if they are trying to resolve issues with the employer, must initiate a claim within three months to guarantee their claim will be considered.

An employee can of course argue that it is just and equitable for all the claims to be heard but this is at the discretion of the employment judge and is far from guaranteed. In this scenario an employee would be likely to argue that section 123(3) comes to their aid. This provides that when conduct continues over a period of time all the issues can be raised so long as the last incidence was within three months. However, the law on continuing act is complex and will consider the extent to which all the events are related, who was involved, whether they are all related to the same claim type.

For the employer this often be a major battleground to argue that if not all then as much of the claim is out if time and not part of a continuing act and by doing so exclude as much of the claim as possible from being considered. To return to the example above, since the misconduct investigation and dismissal are clearly related  and involve both the same claim and same managers there is a good chance that that will be a continuing act meaning that even though the event occurred 3 months or more before the dismissal it is under section 123(3) treated as still being in time (as was the case recently in Hale v Brighton & Sussex NHS Trust). However, the poor performance review  by a different person for performance issues and because of a different characteristic is likely to be excluded, even if this is a case whereby there is very strong evidence that the claim would succeed.

9. Not Responsible

Sometimes an employee can be subject to outrageous and manifestly discriminatory behaviour even at work or in other contexts that would not have arisen but for their work and yet still find the employer defending a claim against them. This can occur in two types of context.

First, there may be cases where an employee is subject to, for example, racist abuse from a customer or some other person with whom the employer does not have any sort of formal or contractual relationship.  The fact that that conduct occurred at work does not mean that the employer will be liable (although it might be, depending on the circumstances).  This can be seen in the deeply unfair case of Kemeh v MOD [2014]. In a place of work the claimant was subjected to racial abuse by a kitchen worker. However, the kitchen worker was not employed by the MOD but by a subcontractor, Sodexo. The MOD accepted that the abuse had happened, that it was indeed racial, but nevertheless denied liability since they were only liable for their own employees, not other employees even if they provided services to the employer.

Second, Section 109 of the Equality places a significant burden on employer that they will be liable for anything discriminatory done by an employee “in the course of employment”  – effectively this means that anything done by an employee which is discriminatory the employer will be responsible for. Section 109(3) even goes so far as to say that it “does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.” In practice this means nearly everything done by a manager at work will mean as well as they individually being responsible (section 110 of the Equality Act) the employer will also be liable. This has been found to apply even to conduct that occurs outside the workplace in work related social gatherings – see Chief Constable of the Lincolnshire Police v Stubbs [1999].

However, it remains the case that there is a limit and that it is possible for discriminatory issues to arise that would not have occurred but for employment to nevertheless be outside  the course of employment.

10. All reasonable steps

Finally, what the claims about there being no defence to direct discrimination miss is that section 109(4) does in fact provide a complete statutory defence to employers. In Canniffe v East Riding of Yorkshire Council [2000] the EAT set out that an employer relying on this defence must show that they took all steps to prevent their employees engaging in the conduct complained of (for example, publicising equality policies, investigating concerns, and disciplining prior acts of discrimination) and that there were no other reasonable actions the employer could have taken. For the employee facing such a defence it is important to identify where the employer’s conduct feel short of expectations to resist the argument that they did everything reasonable to stop the conduct and, by doing so, ensure the employer will remain liable (important as the employer is more likely to pay any financial remedy than a private individual).

Any more defences, then please let me know.

PCS Elections

The last couple of months have been a bruising one for the PCS Union in respect of ballots and elections.

Across the union there was huge amounts of work to get members to vote in the industrial action ballot against the government’s pay policy, that is content that is content to force its own staff into the arms of the benefits regime because of their own pay. Across the country this includes civil servants being paid less than the living wage. Unfortunately, despite receiving its biggest ever industrial action mandate with over  124,000 votes case and a 78% support for industrial action. However, the votes cast only equaled 47.7% of the members included in the ballot and so marginally missed out on the 50% threshold imposed by 2016 Trade Union Act. It is a galling decision given that no other comparable election is required to meet such a threshold. As the IER notes the ballot came “in the week that local council elections produced an estimated turnout in the 30-40% range, falling well below the standard expected for unions, yet affecting the everyday lives of millions of residents.” It is all the more galling, and indicative of the government’s real agenda that it is happy to apply this more stringent test whilst simultaneously continuing to drag its heels on the review of the need for postal ballot votes which becomes more and more of an anachronism with every passing day.

And, in internal union elections, the result of the union’s Assistant General Secretary and NEC elections have been announced with John Moloney of the Independent Left (IL) faction securing the post. In the NEC elections there were also three IL posts although the majority of the NEC still held by Left Unity. These were far more bruising elections than has been the case in recent years as the Left Unity vote was split between Chris Baugh the official LU candidate and Lynn Henderson supported by Mark Serwotka.

Home Office in £1 Million Discrimination Payout

In 2017 the extremely important Supreme Court decision of Essop v Home Office was determined that clarified and to some extent, simplified indirect discrimination law for all UK workers. The issue in the case was it is alleged that the Home Office’s internal staff promotion policy place workers over the age of 35 and workers of non-white racial groupings at a material disadvantage.

Following the Supreme Court decision the case was remitted to the Employment Tribunal. PCS Union, which together with Prospect, brought the discrimination case has reported that that case has after over  seven years has settled whilst hearings were in progress for over £1 million:

Employment Tribunal claims were initiated against the Home Office, claiming indirect discrimination and arguing that the CSA was nothing more than an extra hurdle used to sift out BME and older workers.

The Home Office disputed these claims until the day before the Tribunal hearing, when it supplied a series of internal and confidential reports to Thompsons and the unions, one of which agreed that the CSA unjustifiably treated BME and older workers unfairly.

The Home Office then agreed part way through the Tribunal hearing to settle the claims, without admission of liability, and to pay the claimants compensation totalling more than £1 million.

Kate Lea from Thompsons Solicitors said: “While the settlement represents a fantastic result for each claimant and the union, it….defies belief that the Home Office knew of the internal findings yet decided to only disclose them the day before the tribunal hearing. The Home Office’s failure to cooperate until the very end caused an avoidable and costly legal battle – wasting time and taxpayer’s money.”

This is a fantastic result for PCS which follows the recent £3 million settlement the union obtained against DWP for breach of contract and an excellent example of why every civil servant should join PCS. 

The case is one in which I had some very minor involvement, involved enough so I know just how much work PCS other PCS reps and members put into not only running this case but getting the case off the ground in the first place – congratulations to everyone involved.

The Data Protection Act and Victimisation

The Data Protection Act 2018 has broadly been described as a positive re-inforcement of the data rights of individuals, including workers. This is a fair summary but it is not a completely positive development in that the Act has actually curtailed the rights of an worker to see what their employers and former employers have written about them and provides cover for unscrupulous employers to evade their accountability for discriminatory conduct.

Before explaining why it is helpful to recap on how one category of victimisation claim presents itself, by means of a hypothetical scenario. A worker has been subject to discriminatory behaviour by an employer, perhaps complaining about how a colleague sexually harassed them. After the employer conducts and whitewashes an internal investigation the worker resigns in disgust at the employer’s failure to confront endemic sexual harassment in their organisation. The worker is not however keen to pursue a sexual harassment case and just ones a fresh start at a new employer.

She applies for many positions, for which she is well qualified, but despite performing well at interview is never offered a job. She suspects that her former employer has provided an unfair reference, perhaps alleging performance or misconduct issues that have put off potential employers in retaliation at her for having made a complaint of sexual harassment. In fact, that is precisely what the former employer was done.

Under the old Data Protection Act (1998) if this worker made a subject access request for a copy of any references the former employer could (I think unreasonably) refuse to provide these but this get out did not apply to the employer’s a worker made an application to so that a copy of the reference and the retaliatory negative reference could be obtained. With that evidence in hand the worker’s suspicion of unlawful and discriminatory victimisation has a solid basis in evidence and she can be more comfortable that she has a good case of victimisation against her former employer under the Equality Act 2010.

However, under the Data Protection Act 2018 – paragraph 24 of Schedule 2 to be precise – both former and prospective employers are explicitly told they can refuse to provide a worker a copy of a confidential employment reference without any other proportionality considerations needing to be considered. So now a worker who thinks their former employer has unlawfully discriminated against them by providing an inaccurate and vindictive reference to a former employer on the basis of that employee having had the temerity to challenge for employer about how it discriminated its staff finds themselves hamstrung.

While they can of course still claim discrimination they will be much less likely to be confident bringing such a claim when their only evidence is their gut feeling that something is amiss which will inevitably mean good cases are not brought and bad employers will evade scrutiny. For workers subject to post-employment victimisation from former employers at least the Data Protection Act’s plaudits of advancing employee’s data protection acts ring hollow.

To date there has been no reported decisions (that I have been able to find) on the compatibility of  the reference caveat to subject access requests with human rights or the GDPR itself. Hopefully the harshness will in due course be mitigated or Parliament will see sense and repeal paragraph 24 of Schedule 2 of the DPA 2018.

Labour Party to promise new flexible working rights

The whole strategy of political parties briefing on what a politician ‘will say’ and the media reporting on what is just a PR exercise is something that infuriates me rather than, you know, wait until the politician has made their speech and then reporting on that.

With that in mind what follows will strike readers as somewhat hypocritical – guilty as charged!

It is reported that Dawn Butler, Shadow Minister for Women and Equalities, will commit that a Labour Government will reform current flexible working rights. Under current legislation any employee  who has worked for an employer for 26 weeks can make a statutory request and have the right for that request to be reasonably considered (although it can, and often is, refused), and only one request may be made per year.

Much reporting of Labour’s legislative commitment focuses on the pledge that instead of the qualifying period of 26 weeks the right will be a ‘day one’ right. This emphasis has drawn some kneejerk criticism that it is a tinkering around the edge and does nothing to address the core issue that there is no right to work flexibly, just the right to request it. The criticism of Stefan Cross QC is indicative of this trend.

I am very conscious that I am relying on press briefings and have seen nothing but the BBC report suggests there will be at least three aspects of the policy, some of which point towards Labour having a substantive right to work flexibly in mind and having this much more accessible without needing the recourse to the law.

First,  there is the the suggestion that the right to request becomes a day one right. If this were all that was proposed then I can see some merit in the pusillanimous allegation, although it would be churlish not to recognise that attaining a right – even if not an especially valuable right – at the very beginning of one’s employment is a step forward. In itself though this is not a major step forward as unless backed up with significant anti-avoidance mechanism (I am think here of punitive compensations awards for breaches) it is not hard to see that most employees will be dissuaded from exercising that right given they are in a new job and potentially not secure since still subject to a probationary period.

Second, we are told that Labour would create a “presumption in favour of flexible working,” presumably a statutory presumption. It is unclear precisely what this would mean, it may mean that every employer would be under a statutory duty to ensure that, unless unfeasable, every post was actually available to be worked flexibly. Alternatively, it could mean that in the event of a flexible working request there is a statutory presumption that the request should be accepted unless that presumption was rebutted and so make the enforcement of flexible working working rights in the employment tribunal more effective. Or both.

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The signs are that this is a positive move that if implemented will be positive for all employees. What is not clear yet is whether, as the current rights are, the right to flexible working will remain the preserve of employees only and whether Labour will retain the thoroughly iniquitous employee/worker distinction that would prevent many workers exercising these rights.

Third, another interesting aspect of this the focus on women’s equality in the workplace. Butler is reported to say that “this change to the law is essential to closing the gender pay gap and dismantling the structural barriers that hold women back from promotion and progression.”

The reason I say this is interesting is because in terms of enforcing rights to flexible working women will often find themselves able – because of systemic sex bias in society towards women caring for children and disabled relatives – to pursue flexible working refusals not only under the pretty ineffective remedies under flexible working legislation but also as a indirect sex discrimination claim that is often less likely to apply to men seeking to enforce flexible working rights. This means that insofar as enforcing flexible working rights (and in this respect only) many women who do need flexible working for caring reasons are at an advantage.

My assumption is that Labour think that, if enacted, then women will not need to enforce these sex discrimination rights as far more requests will be granted at first instance so they will no longer be at a particular disadvantage – this certainly seems the thrust of the very bold assertion of Butler’s that under “Labour’s plans, no woman will be shut out of the workplace because they’re a mum or they care for a parent or a disabled loved one, or both.” If that proves to be the case then it will be a success.

The related consequence and one that deserves more emphasis is, as Butler says, that the policy “may also result in more men taking on caring responsibilities themselves, finally lightening the load that women bear.” Of course, if that is a policy aim – and I see no reason why it shouldn’t be – then the next appropriate policy to be looked at is whether there should be equality of rights in respect of may be enhanced pay for both maternity and paternity leave.

Still, with all the recent acrimony it is good to see some coverage of the work Labour is doing to improve the lot of working people and their families.

What is an email address?

Nearly all persons wanting to make an employment tribunal claim must first have received an Earl conciliation certificate from ACAS to enable them to lodge their claim. This applies even if a claimant does not wish to undertake conciliation.

Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 detail when a certificate is ‘received’: 

9. – (1) Where ACAS issues an early conciliation certificate, it must send a copy to the prospective claimant and, if ACAS has had contact with the prospective respondent during the period for early conciliation, to the prospective respondent.

(2)  If the prospective claimant or prospective respondent has provided an email address to ACAS, ACAS must send the early conciliation certificate by email and in any other case must send the early conciliation certificate by post.

(3)  An early conciliation certificate will be deemed received—

(a)  if sent by email, on the day it is sent; or

(b)  if sent by post, on the day on which it would be delivered in the ordinary course of the post.

It follows therefore that if a claimant has provided ACAS an email address then ACAS must send the certificate to that email address and that the certificate will be deemed to be received by the claimant on the day that the email was sent. Certainty as to the date of reception is important because at the suspension of time limits that apply whilst ACAS early conciliation processes are ongoing cease to apply when the certificate is issued meaning that a claimant will have a fixed period of time to make an employment tribunal claim and, if they make a claim outside of that time limit they risk their claim being struck out as being out of time.

So far, so simple? Unfortunately, the recent case at the Employment Appeal Tribunal Galloway v Wood Group UK Ltd  shows that there is scope for confusion.

The relevant facts of the case are simple. The claimant wanted to make an employment tribunal claim (the nature of the claim is explicitly stated) and he submitted the required early notification form and gave the email address of his Unite Union rep. Or so he thought. The claimant actually made a typographical error and missed a “.” from the email address. In due course ACAS issued a certificate but the claimant was none the wiser of this fact, since the email was not delivered to his union rep.

In due course the lack of ACAS response was noted but by then the claim was out of time and the ET refused jurisdiction, it is this decision that was challenged at the EAT.

The issue before the EAT was limited to one issue what does the reference to “an email address” in Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 actually mean?

If, as the employer submitted “the information supplied had the appearance of an email address then it should be treated as an email address for the purpose of regulation 9” was accepted then the claim was certainly out of time. If however, it was a requirement that the email address be valid email address then ACAS had failed to deliver the conciliation certificate which would mean it still needed to do this.

The EAT preferred the latter approach:

I have come to the view that the expression “an email address” means an actual email address and not, as here, an address that has never been set up or registered to any user or users.   Since the object of the Form is to enable communication, the intention must have been to solicit an email address that could be used to send the certificate. If so the phrase must mean an actual email address.  That is what the request on the form sought. I find it difficult to accept that Parliament intended the words “an email address” to include invalid addresses that could not be recognised as an email address by a server and forwarded.  It seems to me in that situation the sequence of characters supplied is no different in principle from a quotation from Shakespeare or a meaningless sequence of characters.  If a computer sever cannot recognise the data as an address then I do not consider that it can be “an email address” no matter how closely (or not) it resembles one. A quite different situation would present itself if a wrong email address was supplied. It could be argued that the hapless claimant would have to rely on the statutory dispensing powers (111(2) of the Employment Rights Act 1996) if that were to occur.

The judgement is a helpful one that means that where there is an incorrect email address provided to ACAS then if that is an email address to which correspondence could not be sent and received then the service of a conciliation certificate is not effective.

Cases Cited:

Galloway v Wood Group UK Ltd [2019] UKEAT 0017_18_1801

All’s Fair?

Being ‘fair’ is, according to to Cambridge Online dictionary, the act of treating someone in a way that is right or reasonable.’ That being the case when the Employment Rights Act 1996 boldly asserts that every  employee “has the right not to be unfairly dismissed by his employer” it looks like Parliament made an expansive and meaningful law in defence of workplace justice.

A closer look will show that by a series of ‘ifs and buts’ the expansive right against unfair dismissal has been whittled down to a much smaller proportion of the UK workforce applying only to employees and not workers, excluding major public service workers like the armed forces and police, only those who have been employed for two years or more, etc. In the interests of plain English section 94 of the Employment Relations Act should perhaps read “some employees have the right not to be unfairly dismissed by her employer.”

However, one of the more important lessons I have learned representing employees and applying employment law to their situations is that even for those who do have this right not to be ‘unfairly’ dismissed the concept of fairness really is not the focus of unfair dismissal law. If it were, the focus of the unfair dismissal decision would be on whether the decision to dismiss was justified but, instead it is on whether in the mind of the decision maker acted reasonably by making a decision that was within a ‘range’ of allegedly reasonable decisions they could have made.

And so, as it has been applied by the courts there is nothing intrinsically unfair in an employee being dismissed from a job for misconduct even if the tribunal can categorically see that the employee was not guilty of the alleged infraction so long as at the time (perhaps before the evidence was available) the employer acted reasonably at the time of dismissal. Or, to use a real life example (Parr v Whitbread [1990] IRLR 39), there is nothing intrinsically unfair in an employer dismissing four employees because the employer thinks one has probably stolen from them but they cannot tell which one (if any). It is ‘fair’, so says the EAT, for the employer to dismiss all four employees, potentially placing four or more families into poverty, despite knowing three are innocent and the other may be as well.

Such a scenario is, far from being fair, actually fairness’ antithesis. What an employee has is not the right not to be unfairly dismissed but the right to be dismissed for a ‘potentially fair reason’ so long as some imprecise procedural formalities are adhered to by the employer. I cannot help but think the UK population have been sold a dud, they either don’t join a union or if they do, only do so on a insurance basis believing if their employers treat them unfairly there is an adequate redress in unfair dismissal law when there isn’t.

I recall one case in which an employee was unfairly dismissed, victimised on the basis of trade union activities in fact. The union, rightly, adopted an industrial response and strike ballot in response alongside legal challenge. The employer’s inevitable response in dissuading workers from voting to take industrial action was to say that if said employee felt he had been treated unfairly he could complain to a tribunal that he had been unfairly dismissed. In the rare cases of an industrial response to a dismissal this is I am sure a common response depending on workers not looking too closely what ‘fairness’ really means.

Of course a major impetus for the establishment of the employment tribunal system was to move disputes from the industrial to the tribunal arena and there is no doubting that has happened. In view of the inadequacy of employment law to deliver on the grand claims that there is a right not to be unfairly dismissed perhaps it is time to start making industrial responses to unfair dismissals a more central plank of union organising alongside lobbying for laws that protect workers from dismissal and warnings that actually place fairness at their core.