EAT Judgment: There can be no disability-related harassment claim without first establishing the disability

In the recent case of Peninsula Business Service Ltd v Baker, the Claimant had advised his manager that he had dyslexia and had also provided a psychologist’s report confirming the diagnosis.

The Employer’s occupational health provider prepared a report confirming that the Claimant was likely to be considered disabled and recommended reasonable adjustments, however the Claimant’s supervisor had reservations about this and thought that the Claimant could have engineered the report in his favour.

The Employer subsequently arranged for a private company to carry out covert surveillance of the Claimant, the reason for this being that they suspected that he was carrying out work for a second Employer. The surveillance report did not substantiate the Employer’s suspicions, however it did show that the Claimant was not devoting all of his time to his work. Disciplinary proceedings were commenced and a copy of the surveillance report was sent to the Claimant during these proceedings, despite not showing that he was engaged in any fraudulent conduct.

The Claimant brought claims at the Employment Tribunal, claiming that the surveillance was harassment (unwanted conduct relating to his disability) and also victimisation as the disclosures he had made about his disability were ‘protected acts’.

The Tribunal found that the surveillance could not be deemed to be harassment as the Claimant did not know about it at the time, however later telling him about it for disciplinary purposes was harassment. Furthermore the Claimant’s reliance on his asserted disability was the reason for the surveillance, so the conduct did relate to his disability. The Employer arranging the surveillance was also victimisation – as the Claimant’s performance appraisals had always been positive the surveillance could only have been triggered by suspicions about his disability.

The EAT allowed the appeal.

ACAS early conciliation certificate can relate to a claim where the claimant resigned after the certificate was issued

Many employers will by now be familiar with the ACAS Early Conciliation (EC) process which was initially introduced in April 2014.  The concept of Early Conciliation is that ACAS will attempt to resolve any potential claim before it is formally submitted to an Employment Tribunal – indeed it is now the case that claims must have completed the process and an EC certificate issued before a claim can be lodged.

There are some exceptions to this rule – for example in cases of a claim being made against the Security Services, or another joint Claimant already having an Early Conciliation certificate in respect of the matter, however generally the Tribunals have been quite strict in imposing the rule.  It therefore may come as a surprise to learn that in the recent case of Compass Group UK and Ireland Ltd v Morgan, the Employment Appeal Tribunal held that the Claimant’s constructive dismissal claim was covered by an EC certificate that had been issued before the Claimant had resigned.

The background to the case is that in October 2014 the Claimant submitted a grievance to her employer when she was instructed to work in an alternative location in a more junior capacity to her existing role. In November 2014 she commenced the EC process and on 3 January 2015, the EC certificate was issued after no action was taken to resolve her grievance. The Claimant subsequently resigned and brought two Employment Tribunal claims – constructive dismissal and disability discrimination.

The Respondent initially argued that the Claimant’s constructive dismissal claim was not properly instituted as she had not followed the EC process given that she resigned after the EC certificate had been issued. They further submitted that any cause of action occurring after ACAS had been notified, even in circumstances where it relates to facts occurring during the EC process, could not be capable of being pursued without ACAS being notified. At first instance the Employment Tribunal found in favour of the Claimant and held that there was a connection between the matters in dispute during EC and the matters in dispute in the claim itself.

The Respondent subsequently appealed to the Employment Appeal Tribunal (EAT), this time stating that the cut-off date after which the EC Certificate does not extend is the issue of the EC Certificate (not the date of notification to ACAS as was the argument to the Employment Tribunal).

ACAS early conciliation

As you will probably be aware early conciliation is the requirement, introduced by the Enterprise and Regulatory Reform Act (ERRA) that all prospective claimants must contact ACAS before they can present claim to the Employment Tribunal. Prospective claimants are provided with an EC certificate with a unique reference number at the conclusion of the Early Conciliation process which must be entered on the Employment Tribunal claim form when a claim is submitted.

This gives both employers and employees the opportunity to negotiate, narrow the issues or even settle claims without the need to incur extensive legal costs.

However, due to the strict time restraints imposed by the tribunal, it is vital that the details inputted onto the early conciliation certificate are correct. Early conciliation does stop the clock from running with regards to your time limitation to bring a claim in the tribunal although if a mistake is identified you cannot go back. Therefore if an error in the identification of the respondent is identified following the expiry of the primary limitation period there can be the real risk that the claim against the correct respondent would be out of time.

This has quite clearly in the past caused Claimants and their legal advisors a great deal of difficulty and whether the claim could proceed was and still is essentially a matter of judicial discretion.

However, in Mist v Community NHS Trust the Employment Appeal Tribunal provided helpful guidance on whether an error in the identification of a respondent in an early conciliation certificate could prevent the employment tribunal from accepting a claim.

The first respondent was named correctly in the Claimant’s ET1 although the claimant had failed to name the second Respondent in both the ET1 and the EC certificate. The second respondent was joined at a later date although this was challenged on the basis that they had been joined out of time.

At first instance the Employment Tribunal agreed and ruled that the claim against the second respondent had been brought out of time. The Claimant appealed, broadly on the basis that the Tribunal had given undue prominence to the limitation period at the expense of the Claimant’s right to a remedy and had failed properly to assess the balance of hardship. The second respondent cross-appealed, alleging that the Tribunal had no jurisdiction to hear the case against the second respondent in circumstances where the Claimant had not first obtained a relevant ACAS conciliation certificate.

bogged down with rules in the search for justice

The civil courts have been beset over the last year or so with numerous technical challenges based on claims that parties have failed to follow the court rules to the letter.

They have resulted from the decision taken by senior judges, particularly the resultingly unpopular Lord Jackson, to clamp down on failure to comply with directions. As with most things in life, rigid adherence to rules without any flexibility or discretion is unlikely to result in uniform fairness, particularly when the rules themselves are far from perfect.

I have already made clear my views about the compulsory ACAS early conciliation procedure introduced earlier this year. We now have the first reported case of a claim being struck out as a result of failure to comply with the procedure, albeit with a rather more sensible and equitable outcome than has been seen in many cases in the civil courts.

Miss Thomas wished to proceed with a whistleblowing claim against her employer, Nationwide Building Society. Her ET1 claim form was presented by her solicitors to the employment tribunal on 8 August 2014. The disclosure, made on 28 March 2014, was that her colleagues had cheated in an assessment required under new mortgage rules with the assistance of one of Nationwide’s managers. The claim was accepted.

In its ET3 (response) Nationwide, as well as defending the claim on the merits, contended that the claim was out of time and that the claim should in any event have been rejected as a result of failure to use the ACAS early conciliation procedure.

Miss Thomas’ solicitors accepted that their client should have used the early conciliation procedure but sought a stay to allow (now not so early) conciliation, effectively to remedy the breach. Subsequently they accepted that the claim had to be rejected as defective. However they contacted ACAS and obtained an early conciliation reference number. When submitting the ET1 her solicitors should have confirmed that the procedure had been followed. Instead they ticked a box declaring that the procedure did not apply because ACAS was not empowered to conciliate on all or part of her claim. That was clearly wrong.

Accordingly Employment Judge Clarke, sitting in Cardiff, confirmed that the claim was rejected on the basis that the ET1 did not comply with the Rules of Procedure.

However Judge Clarke then went on immediately to consider whether the order he had just made rejecting the claim should be revoked. Miss Thomas’ solicitors claimed that since ACAS had been contacted and a reference number obtained the defect had been rectified. On the other hand Nationwide’s solicitor said that post-claim conciliation cannot be early conciliation and if the claim was allowed to proceed then this would drive a coach and horses through the new procedure.

Judge Clarke took the view that if the rejection was revoked then that would cure the “early” conciliation point because it would still be pre-claim. Once the defect was rectified the claim would be treated as being presented on the date of rectification. There would therefore be no need for a fresh claim form since it would, in effect, simply be re-dated.

right to request flexible working extended to most employees

Most employers are familiar with the procedure to be applied when dealing with flexible working applications which have been around, on a legislative basis, since 2003. Initially the right to request flexible was confined to the parents of children under six or of disabled children under 18.

In 2007 the right was extended to carers of adults and in 2011 to parents of children under 18. With effect from 30 June 2014 the right is extended to all employees who have 26 weeks’ continuous employment at the time the application is made. Only one application per year may be made.

As a result, now is a good time to recap the key elements of fairly handling a request for flexible working. The first thing to bear in mind is that the entitlement is to request flexible working rather than an entitlement to flexible working on request. Nonetheless, employers must take request for flexible working seriously. What does that mean in practice? If an application is refused then the employer may be required to justify the decision, both in terms of the steps taken to consider it and the substantive reason for rejection.

According to the ACAS draft guidelines valid reasons for rejection may include:

Burden of additional costs
Inability to reorganise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Detrimental effect on ability to meet customer demand
Insufficient work for the periods the employee proposes to work
Planned structural change to the business

However, employers should bear in mind that it is not enough to give the reason; if called upon to do so the employer may be required to justify the reason.

ACAS early conciliation in practice

I have expressed my reservations about whether ACAS early conciliation will bring any significant benefits to dealing with employment tribunal claims. However, the Scheme is now operational and it is therefore important to know how it works in practice. The Scheme started on 6 April and is currently voluntary but from 6 May it will be compulsory.

A major concern is how the Scheme will impact on the very strict and short time limits within which claims must be brought: generally three months.

the form
Before a claim can be commenced it is necessary to provide notification to ACAS and to provide basic details including contact information. The easiest way to do this is by going to the ACAS website at www.acas.org.uk/earlyconcilation. As is increasingly the case when using such websites the enquirer is then taken through a couple of pages, including a lengthy explanation of the benefits of the Scheme before arriving at the form itself. Before proceeding to fill out the form, and in a rather schoolmasterly manner, the enquirer is then required to tick a box to say that they have read and understood the previous page.

The form itself is pretty straightforward. As well as providing name and contact details, the enquirer is asked to supply the employer’s postcode in order to trigger a business address search. Having tried this out it works quite well for medium and larger sized businesses. However, small businesses might not be so readily found and, of course, any error in inputting the postcode could produce false results. There is also an option to add the employer’s telephone number. As for the employment itself the enquirer is asked to provide the start date, end date, job title and the date of the event which is the subject of the claim.

Interestingly, the form also indicates that contact will be made using the telephone number(s) provided. However, there is no obligation to provide a telephone number or an email address so this may lead to practical difficulties.

the timescale
Notification needs to be provided to ACAS within the normal time limit for bringing a claim, for example three months less one day for unfair dismissal claims. In one sense this makes the process easier for claimants since there is no need at this stage to set out full details of the claim in an ET1.

shall I just say sorry?

Back in 2009 I reported about the problems being encountered by ACAS in trying to deal with conciliations which had been brought in as part of the process of dealing with tribunal claims. Primarily as a result of lack of resources there were significant delays. The truth is that the scheme didn’t work and most people paid no more than lip service to it.
Undeterred by previous experiences the Government has ploughed on with its plans to reintroduce ACAS conciliation and the Enterprise and Regulatory Reform Act 2013 (Commencement No.5, Transitional Provisions and Savings) Order 2014 (SI 2014/253) brings into force, from 6 April 2014, compulsory conciliation. The Early Conciliation Rules of Procedure are set out in the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations.
So, from 6 April all potential Employment Tribunal and Employment Appeal Tribunal claimants will be obliged to don their conciliatory hats and engage in an attempt to reach a settlement with their employers via ACAS before bringing their claims. Unsurprisingly ACAS is extolling the virtues of this process on the basis that it will be impartial, free and could avoid the expense of going to tribunal. All the discussions will take place “without prejudice” and so any matters discussed cannot later be relied upon in tribunal. They have gone so far as paying for Goole Ads in the run up to implementation
Settlement talks should be attempted for a month, with the potential to extend for a further two weeks. The clock will stop running whilst talks are under way so far as time limits for bringing claims is concerned although time will continue to run in circumstances where a prospective respondent contacts ACAS for early conciliation.
How practicable all this is remains to be seen. Can we really expect that when a matter has been fully explored in conciliation talks that, if those talks fail, compromising details revealed in confidential discussions will not be used? Clever cross questioning will easily winkle out this information if the other party knows it exists. So far as employees are concerned, they are likely to be at a disadvantage by virtue of inexperience and lack of fire power at that stage. Companies with HR departments and access to lawyers will be fully prepped. However, the process will buy claimants some time. If they use this time wisely, they will be putting their claim together throughout the conciliation period, picking up useful points that have come their way by virtue of the process.

new (or maybe not so new) proposals to "streamline employment law"

In our June newsletter I outlined what changes were to be expected as a result of the Government’s review of employment law. If anything, what has now emerged is an even more diluted version of what was anticipated in the sense that the proposed changes will be the subject of numerous consultations, rather than firm decisions to implement changes. The "fire at will" Beecroft proposals are nowhere to be seen but those which remain are unlikely to provide radical alterations to the existing employment tribunal provisions (except perhaps for the introduction of fees – see our July round-up).
It is clear that Vince Cable has had his way with the BIS press release emphasising that the UK has a lightly regulated, flexible labour market, considered by the OECD to have the third lowest employment protection among 20 OECD countries and 10 emerging countries.
Introducing the changes Mr Cable said
We have been looking across the range of employment laws with a view to making it easier for firms to hire staff while protecting basic labour rights.

Our starting point is that Britain already has very flexible labour markets. That is why well over one million new private sector jobs have been created in the last two years, even when the economy has been flatlining.

But we acknowledge that more can be done to help small companies by reducing the burden of employment tribunals, which we are reforming, and moving to less confrontational dispute resolutions through settlement agreements.
The consultations will cover:

August employment news from abroad

Welcome to the Employment Solutions Blog from Saint Martin de Gurson (a small village between Bordeaux and Bergerac in South West France). As I hope you’ll understand this month’s report is a condensed version of the usual monthly report but I hope that you find some items of interest. 1. what happens if a claimant…

after the fuss about Beecroft – what are the real changes likely to come into effect?

The pace of change never gets any slower in employment law, and I have quite a few consultations and proposals to report. It remains to be seen how many of them will become law, and in what form, but after a couple of well publicised retreats over the budget, and the leaking of the Beecroft Report in advance of its release in slightly different terms, perhaps a considered and thoughtful approach will be taken to them.

I should first confirm what is not happening. The key proposal in the Beecroft report for "compensated no-fault dismissals" has been omitted from the Enterprise and Regulatory Reform Bill which is currently making its way through the Commons. Instead, a clause proposing "new" voluntary settlement agreements (compromise agreements under another name and about which more below) has taken its place and most people are regarding that as the quiet death of Mr Beecroft’s proposal.

It is known that of 135 businesses consulted only 38% were in favour of the proposals which most considered to be unnecessary. Many have commented in the press that they have far more important things to worry about at the moment.

The strength of feeling about Beecroft’s contribution was demonstrated particularly well by an article in The Times (behind paywall) which described the report as "short on evidence and long on recommendations – and the prejudices of its author are never far from view" and this was why it was “leaked, published and strangled at birth in a matter of hours".

So what is to be expected?