Publication of employment tribunal decisions

A little publicised but potentially very significant development in the field of employment law in 2017 will be the introduction of the routine publication of employment tribunal judgments. As matters stand, anyone (other than the parties and their representatives) who wants to search for or browse first instance decisions in the Employment Tribunal has to attend in person at the Bury St Edmunds office for English and Welsh decisions or Glasgow for Scottish decisions. Copies of specific decisions can be ordered but at a cost £10 and £5 each for additional decision in the same order. Decisions of the Northern Ireland Industrial Tribunals and Fair Employment Tribunals have been available online for some time.

Last June HM Courts and Tribunals Service announced that new employment tribunal decisions will be publicly available online from autumn 2016, subsequently put back to early 2017.

As many readers will know, employment tribunal decisions are not binding on subsequent tribunals so why is this news potentially very significant? Well, it’s primarily to do with reputation management. Years ago it would be quite usual to see local court reporters attending employment tribunals and their reports on cases would frequently appear on a page in a local paper devoted to employment and other judgments. However, the regional press has suffered huge financial cutbacks in recent years and the days of reporters attending tribunals as a matter of routine have long gone. Generally, cases are not reported unless they come to the attention of journalists as a result of contact from the parties or their representatives. For example, unions often issue press releases about cases they have backed in order to demonstrate successful outcomes for their members. Barristers’ chambers also publish details of successful cases, but these are overwhelmingly appeal hearings which are already available online, for example through the EAT online service and BAILII.

The new online employment tribunals decisions service will be an easy and free resource for accessing newsworthy content without the need to send someone to a tribunal. We can therefore expect to see a notable increase in the number of cases reported. Of course, online publication increases the chance of case reports being picked up by mainstream and national websites, with syndicated content (authorised or not) at the heart of many news websites.


Employer’s liability for assault following a Christmas party?

It is widely reported every year that employment law rights and Christmas parties often collide in a frequently drunken sequence of events that ends up either in an employment tribunal, with a large compensation payment by the employer, or both. This time last year I wrote about a reported decline in “risky” office parties and, a month earlier, about a case resulting from fairly outrageous behaviour by MBNA employees at Chester races.

This year the facts of the case I’m reporting revolve around a Christmas party but stray away from conventional employment law into the area of the potential liability of an employer for the acts of its employees in the context of personal injury.

On 1 December the High Court handed down its judgment in the case of Bellman v Northampton Recruitment Limited, which was heard from 24 to 26 November. It is a sad story about the aftermath of a Christmas party which got thoroughly out of hand and resulted in the Claimant, Mr Bellman, suffering brain injury which was so severe that he has no recollection of the incident and had to appear in court by a litigation friend.

John Major, his wife Beverley and Michael Geoghehan were directors and shareholders in Northampton Recruitment Limited which ran franchised offices of Drivers Direct, a temp agency for HGV drivers. (Following the assault the Company went into liquidation in June 2012 and was dissolved in October 2013.) The Claimant, Mr Bellman, and Mr Major had been friends since childhood and in 2010 Mr Major offered Mr Bellman the post of sales manager which he accepted in November of that year. He was on a daily rate of £80 plus commission. In 2011 the Company’s Christmas party took place at the Collingtree Golf Club on 17 December. 24 people were in attendance. Alcohol was freely available. One witness recalled that he had about 12 pints and a couple of Jack Daniels in the course of the evening. When the party finished about half of those in attendance decided to continue at the nearby Hilton Hotel.

At about 3.00 a.m. and reportedly unprovoked, Mr Major punched Mr Bellman in the face. Mr Bellman got up and Mr Major punched him again. This time Mr Bellman “went straight back like a falling tree” and hit the marble floor. He was bleeding from his nose, ears and mouth. One employee in attendance thought that he was dead. He was taken to local A&E and then moved on to the specialist unit at John Radcliffe Hospital where he was diagnosed with various brain injuries.

Fortunately he survived but subsequently suffered from numerous symptoms including headaches, deficits in verbal reasoning, speech and language impairment. He was diagnosed with “very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences”. He is unlikely to return to any form of paid employment.

Mr Major was arrested and charged with GBH. However, the criminal prosecution did not proceed as a result of a mistake made by the CPS.

In the High Court Judge Cotter QC described it as “…a brutal assault comprising…two phases separated by Mr Major being removed and held back by others, breaking free and returning to strike at a time when Mr Bellman, rather than being aggressive, was pleading with him to see sense.” The claim was reported to be valued at £1 million.

What is intriguing from a legal perspective is that the personal injury claim brought on behalf of Mr Bellman was directed not to Mr Major but to the employer, Northampton Recruitment Limited (and thereby for all practical purposes against the insurer of the insolvent company).


Is a district judge entitled to whistleblower protection as a worker?

The traditional perception of a judicial appointment is that it brings with it generous terms of employment as well as very valuable pension arrangements on retirement.

While that might have been the case for many years, it is most certainly not the current position and senior judges have expressed concern about the impact on morale and recruitment. Judges at all levels are being required to deal with increased workloads, archaic IT and the challenges presented by a large increase in the number of unrepresented parties, as a result of severe restrictions on the availability of Legal Aid. If that were not enough much higher small claims limits, below which most legal costs are not recoverable, have priced many people out of being able to afford professional legal representation so cases are less well prepared and the guiding hand of a professional who might advise terms for settlement is absent.

While recent decisions seem to have applied a wide interpretation to what working terms are sufficient to establish employment rights as a worker (for example see last month’s Uber case), the opposite is the case as far as district judges are concerned. In Gilham v Ministry of Justice the Employment Appeal Tribunal (EAT) was asked to consider whether, in addition to being an office holder, District Judge Gilham was also a worker and therefore entitled to protection from whistleblowing.

I will not repeat what is required in law to be considered as a worker because I dealt with this last month when reporting the Uber case. In the employment tribunal the judge found that:

District judges are appointed by the Queen on the recommendation of the Lord Chancellor, are paid a salary as determined by the Lord Chancellor (which may be increased but not reduced) and are assigned to areas (circuits) by the Lord Chief Justice.
District judges hold office to the age of 70. They can only be removed for misbehaviour or inability to perform their duties (the latter only with the concurrence of the Lord Chief Justice).
Their judicial role, functions and authority are prescribed by statute and rules of procedure made under statutory authority.
Their terms of service are set out in memoranda issued by the Lord Chief Justice from time to time.
The memoranda cover such matters as allocation of work, deployment, wellbeing and training ad general advice and direction.

The Lord Chief Justice therefore has responsibility for and control over the activities of district judges.

Ms Gilham was appointed as a salaried district judge in January 2006. She was assigned to the Crewe County Court and subsequently sat at Warrington County Court. The offer of appointment letter referred to “terms of service” but there was nothing to indicate the creation of a contract or which referred to employment.


Is it discriminatory to exclude over 35s from police recruitment?

In the UK applicants for police recruitment have to be at least 18 years old. There is no upper age limit but the normal retirement age is 60. Eligibility requirements also cover such matters as nationality, criminal record, tattoos, financial status, physical fitness, health and eyesight.

In Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias the European Court of Justice (CJEU) was asked to consider whether an age limit of 35 for a competition for recruitment to the Basque Police was discriminatory on the ground of age. Mr Sorondo brought proceedings in the Spanish High Court concerning the decision of the Director-General of the Basque Police and Emergency Services Academy, objecting to the conditions for participation in the competition and, in particular, the requirement of candidates to be under 35 years old. He was over 35 and claimed that there was no justification for the age limit imposed.

Local legislation provided as follows:
A candidate for recruitment as a police officer must be aged 18 or over and under 35. However, with respect to recruitment to local forces, the upper age limit may be revised taking into account services provided within the local administration, in the local police forces.
The High Court referred the question to the CJEU, noting as it did so that there was a previous ruling that an upper age of 32 years for the recruitment of Basque police officers complied with the requirements of proportionality and that a similar decision permitted a limit of 30 years for intermediate career posts in a fire service.


Taking into account prior warnings when dismissing

The Employment Appeal Tribunal (EAT) decision in Bandara v British Broadcasting Corporation provides a reminder of the need to be careful when considering prior warnings in the context of deciding to dismiss someone.

Mr Bandara worked as a senior producer for the BBC, having commenced employment as a producer in July 1995. He worked within the Sinhala Service. His employment record in the period to 2013 was unremarkable. In March 2013 he was asked to book his team on a training course. He argued that this was the responsibility of another employee and he shouted at that employee. The other employee reported the matter to HR but there is no record of any action having been taken.

Mr Bandara was working on 23 July 2013, the day after Prince George was born. He decided not to prioritise the story because it coincided with the 30th anniversary of Black July, a sombre date in Sri Lankan history. The Service opened accordingly at 10.00 a.m. However, another employee disagreed with Mr Bandara’s approach and at 12.08 p.m. the news about Prince George’s birth was broadcast.

In August 2013 Mr Bandara was made the subject of disciplinary proceedings in respect of both incidents. By letter dated 19 November he was notified of the employer’s decision by investigator, Ms Iootty:
After carefully considering the allegations and your response to them, I have concluded that I believe that the allegations are true. This is an extremely serious matter as your behaviour in relation to both the incidents potentially constitutes gross misconduct. However I have taken into account that your behaviour has never been formally addressed before while you have been working at the BBC.
He was issued with a final written warning.

Further disciplinary proceedings followed in 2014 and resulted in Mr Bandara’s summary dismissal. Charges included: applying pressure on an employee to require another employee to leave a meeting; applying pressure on an employee to drop disciplinary proceedings; behaving in a bullying and intimidating manner; being involved in creating an perpetuating a culture of fear within the Sinhala Service; describing another employee in a discriminatory way by calling him a “sudda”; refusing to obey an instruction and shouting angrily to colleagues on two occasions.

The matter proceeded to an employment tribunal and in July 2015 it was found that the final written warning that had been issued was manifestly inappropriate. However, the tribunal concluded that the decision to dismiss was nonetheless fair. Mr Bandara appealed and the BBC cross-appealed on the finding that the final warning was “manifestly inappropriate”.


Uber and the “gig economy”

I have been writing about employment status since this blog started a number of years ago. One of the most widely reported cases dealing with the issue was published last week in Aslam, Farrar and others v Uber B.V., Uber London Limited and Uber Britannnia Limited. As most readers will know, Uber is a controversial transportation system which provides app based bookings for private hire taxi journeys. It operates in 66 countries and 507 cities. There are some 30,000 Uber drivers operating in the London area. Uber B.V. owns the smartphone app. Uber London Limited is a licensed private hire operator and Uber Britannia holds licenses for district councils outside London.

At a case management hearing in 2015 two “test claimants” were selected for a preliminary hearing to determine the question of their status in the context of employment law protection (the action was backed by the GMB union). They claimed that, as workers, they should receive the minimum wage and be entitled to paid holidays as well as protection from whistle-blowing. Uber contended that they were independent contractors and not workers, and therefore not entitled to the rights claimed. The preliminary hearing took place over five days between 19 July and 12 October 2016, with the decision published on 28 October. The tribunal summarised how the Uber system operates. Passengers register their information on the app, including credit or debit card details. Once registered they can request journeys by using the app. They do not have to state their destination but, if they do, they may choose to receive a fare estimate. Uber then locates the nearest available driver and notifies him of the passenger’s first name and rating (drivers and passengers can be rated on the app). He then has 10 seconds to accept the trip or it is offered to the next best matched driver. If accepted the driver is put in phone contact with the passenger to agree the pick-up location and advise about any delays but he is strongly discouraged from asking about the destination until he has picked up the passenger. Once the passenger is picked up the app specifies the route to the destination and this must be followed unless the passenger indicates otherwise. Once the journey is complete the driver confirms accordingly on the app and is then placed back in the pool of available drivers. The passenger pays via the app and the Uber software then generates what appears to be an invoice from the driver to the passenger. The driver is paid weekly based on the fares earned, less a service fee which is usually 25%.


How (not) to communicate a dismissal

Can a dismissal be implied by the failure of an agency employer to find work for an employee? This was a question considered by the Employment Appeal Tribunal (EAT) in the recent case of Sandle v Adecco. The EAT concluded that in order to prove there had been a dismissal, an employer’s unequivocal intention to dismiss must have been communicated to the employee in question.

By way of background Miss Sandle, the Claimant, was an agency worker employed by Adecco. When the Claimant’s assignment working at another company terminated, Adecco failed to take any action to find her further work and, given the Claimant’s failure to contact them, ‘assumed’ that she was not interested in further agency work. Clearly this was not the Claimant’s view and she subsequently brought a claim of unfair dismissal against Adecco.

The EAT held that in the absence of either a resignation from the employee or communication of dismissal from the employer, there could be no dismissal and nor could one be implied by either party’s inaction.  It was therefore concluded that the Claimant remained employed at the time her unfair dismissal claim was lodged and thus, as she could not evidence the fact that she had been dismissed, her claim failed.


Comparators in Equal Pay claims

In the recent case of Brierly and ors v Asda Stores Ltd, a Tribunal has ruled that Asda store workers are able to compare themselves to distribution depot workers for equal pay purposes.

The facts of this case are that a group of (mainly female) Asda employees who were employed on an ‘hourly rate’ basis, argued that they were entitled to the same rate of pay as the distribution depot employees (the majority of whom were male). They claimed that their duties had historically been thought of as ‘women’s work’ and therefore worth less than the duties carried out by the employees working in the depot.

At the preliminary hearing, the Tribunal was tasked with deciding whether the store workers were able to rely upon this comparison. Section 79 of the Equality Act 2010 states that an equal pay comparison is only valid if the claimant and comparator are both employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments but ‘common terms apply at the establishments’.

The Manchester Employment Tribunal firstly considered whether the above comparison would be allowed under EU law. It stated that although it is not enough that the Claimant and proposed comparator are employed by a single employer (there must also be a single ‘source’ i.e. a body responsible for this inequality but that could restore equal treatment), in this particular matter the single ‘source’ test had been satisfied, thus rejecting Asda’s argument that the division of the Company structure into Retail and Distribution sectors meant that pay-setting authority had been delegated to separate bodies.


Judgment published in “gay cake” appeal

In May 2015 I reported the decision of District Judge Brownlie, sitting in the Northern Ireland County Court in Lee v Ashers Baking Co Ltd and others, otherwise known as the “gay cake case”. I pointed out at the time that the District Judge was given a very tough call in essentially being asked to rule whether, in terms of “competing discriminations” religious belief prevailed over sexual orientation.

In brief, Gareth Lee, a gay man associated with an organisation called Queerspace made an enquiry with Ashers Bakery about them making a cake with a logo on it. He was told that if he brought in a picture of the logo it could be scanned and placed on the cake. A few days later Mr Lee returned to the shop with an A4 sheet of paper showing a picture of Bert and Ernie from Sesame Street (the logo for Queerspace) with a message below which read “Support Gay Marriage”. About four days later one of the bakery owners, Karen McArthur phoned Mr Lee and told him that they could not fulfil the order because the bakery was “a Christian business”. The business owners confirmed that they considered gay marriage to be sinful. Mr Lee was refunded and went elsewhere for his cake.

In the County Court Judge Brownlie found that the bakery owners understood that Mr Lee was gay and associated with others who were gay. However, what Mr Lee wanted them to do would not require them to support or promote gay marriage. They cancelled the order for a reason that was inextricably linked to sexual orientation and Mr Lee did not share their particular religious and political opinion which confined marriage to heterosexuals. Accordingly there was direct discrimination. The Judge also found that, particularly in the prevailing political climate (concerning whether the Northern Ireland Assembly should vote on same-sex marriage) Mr Lee’s support for gay marriage was a political opinion. Since the bakery owners refused to provide the service requested they had treated Mr Lee less favourably on this basis and this also amounted to direct discrimination.

At the time I observed:
Although the judgment has led to a good deal of debate and statements by some that they will continue to act in the same way as did the Bakery in this case, this is in fact a very well reasoned judgment which reaches what has to be the correct conclusion under the law as it stands. As the judge correctly points out, if that is not what society wants then that is a question for the lawmakers rather than those who apply the law.
The bakery owners immediately announced their intention to appeal and the appeal judgment was published on 24 October.


Taking recruitment a step too far!

Recruitment firm ‘Matching Models’ has recently come under fire for posting a job advertisement requesting that applicants are ‘attractive women’ only and have even specified what bra size the successful applicant should be.

The advertisement in question specified that applicants for a PA position should have “a classic look, brown long hair with b-c cup”. It went on to state that the job would be based in the countryside and that “a lady with no commitments would seem to match our client expectations”. The Equality and Human Rights Commission (EHRC) called the advertisement “appalling, unlawful and demeaning to women”. Women’s rights campaigners have also criticised the firm with Sam Smeathers (Chief Executive of the Fawcett Society) stating:

It is extraordinary that they are taking this approach and almost certainly falls foul of equality legislation. If we ever wonder why the battle for gender equality hasn’t been won, this is a timely reminder.

Matching Models is also recruiting a "sexy female driver" to drive a Porsche Cayenne two days a week for between £40,000 and £50,000-a-year for a Knightsbridge-based businessman and polo team owner.