The House of Lords has hammered an employer for writing an ill-advised letter to litigious employees. The Lords considered the letter to be so threatening that it amounted to unlawful victimisation. The Court of Appeal, on the other hand, had found (by a majority) that it was an honest and reasonable response to the employees' claim. The House of Lords' unanimous April decision in St Helens MBC v Derbyshire and ors that the Court of Appeal was wrong is expected to cost the employer several hundred thousand pounds.
In the case some 500 hundred school dinner ladies had put forward equal pay claims. Settlement terms were agreed with the vast majority. However 36 of the ladies, clearly made of tough stuff, refused to settle and sued. Their employer then wrote each of them a long and careful letter explaining that if it was forced to pay more than the settlement amount agreed by the majority there would have to be job cuts and other cost savings which would adversely affect employees and school pupils generally. The 36 ladies hit back hard. They responded by lodging an additional claim. They said they were now being victimised because of bringing their original claim with the result that the employer now faced two claims instead of one. As noted above, the House of Lords has ruled in their favour that the letter did indeed amount to unlawful victimisation.
The law used by the dinner ladies in this case applies in all discrimination cases: sex, race, sexual orientation, disability, religious, age - the lot. Therefore the message to employers generally, and especially to the considerable number of local authority employers currently facing equal pay claims (one of the reasons for this year's Council Tax increases), is that they must exercise utmost caution in dealing with employees who are bringing discrimination claims. In that situation it is most important that expert legal advice, informed by careful study of the conflicting judgments of the House of Lords and the Court of Appeal in the case noted above, should be taken.
New law came into force on 23rd April 2007 making it a criminal offence for an unauthorised person to provide what is called a "claims management service" in relation to employment matters (as well as in relation to various other matters, including notably personal injury claims). Almost any paid activity in relation to claims is covered, from at one extreme giving advice or even simply referring claims on to others for a fee to, at the other extreme, representing a claimant at a tribunal - until now the rules have allowed anyone to represent anyone at an employment tribunal. A new regulatory body has been set up to administer the new rules and to provide authorisations.
There are some exceptions. Solicitors and barristers do not require authorisation provided they are acting in the normal course of practice under the umbrella of Law Society or Bar Council rules. Similarly independent trade unions do not require authorisation provided they comply with a special code of conduct and nor do charities and not for profit agencies such as the Citizens Advice Bureaux. The new rules apply to perfectly legitimate commercial enterprises, some of which provide worthwhile services to worse-off claimants, as well as to cowboy outfits and as payment of quite substantial fees to the Regulator (up to £25,000) is a condition of authorisation the new rules will inevitably push up the cost of using such services. They will not, however, have any effect on fees charged by law firms or barristers.
It was only in October last year that age discrimination in the employment field became unlawful in Great Britain but in Ireland it has been illegal for several years. An Irish Act of 1998 makes it unlawful to treat employees differently by reason of differences in their ages. While of course this has no direct relevance to Great Britain, experience of how the Irish Act operates in practice is worthy of note and a recent Irish case on age discrimination in job recruitment is particularly interesting. A Mr Cunningham applied for a job. The application form required him to complete age related questions, including specifically stating his date of birth. He refused to answer that question but otherwise did well at interview. The employer pressed him for details of his age. He said that was irrelevant but told what was obviously a lie and claimed to be 10 years younger than he actually was. He failed to get the job. He lodged a complaint with the Irish Equality Officer and has won 5,000 Euros as compensation for "distress and breach of rights".
Incidentally, it is worth noting that the Irish anti-age discrimination rules contain a useful "recruitment" exemption which our own rules do not provide. The Irish rules specifically allow employers to set a maximum age for recruitment to take account of training costs and the need for there to be a reasonable period of time prior to retirement during which a recruit will be effective in his job. In Great Britain employers have to rely on a more general "justification" defence to the effect that age discrimination is lawful if it is "a proportionate means of achieving a legitimate aim".
At the end of March the Court of Appeal considered a case in which an Inland Revenue employee who suffered from severe clinical depression (a disability with the meaning of the Disability Discrimination Act 1995) had had to take long periods off work. She claimed full pay during a 6 month period for which under HMRC's sick pay policy she was entitled only to half pay. She claimed that application of the sick pay policy to her amounted to unlawful discrimination under the 1995 Act. The Court of Appeal agreed that she had been discriminated against by reason of her disability but held that in the circumstances this was justified and it was therefore legitimate (O'Hanlon v HM Revenue & Customs on 30th March 2007)
Of more general importance, the case serves as a reminder that in discrimination cases the general rule is that comparison must be made with another person - how else could there be "discrimination"? In particular it is a reminder that the choice of comparator is handled differently in disability discrimination cases than in cases where other forms of (indirect) discrimination are alleged.
This is where the blind man and his dog comes in. The Minister who introduced the Bill which became the 1995 Disability Discrimination Act used the "blind man and his dog" example to explain how the Act would work. He said that a blind man with a guide dog would be able to claim unlawful discrimination if he were excluded from a café because dogs were not allowed. Clearly the Minister envisaged that the comparator would be a disabled person who didn't have a dog. However if the normal method for selecting a comparator under existing sex and race discrimination legislation were applied the comparison would have been with a non-disabled person who had a dog for a non-disability related reason - with the result that the blind man would have no claim. Whether or not the Minister appreciated the distinction is not clear but in any event the Courts soon held that the 1995 Act could (and should) be interpreted in the way he intended even though this was different from the way in which, in this respect, they interpret other discrimination Acts. The Court of Appeal has reconfirmed that this is correct in the March 2007 case noted above.
As from 6th April 2007 the right for employees who have worked for 26 weeks to request flexible working for looking after children for whom they are responsible has been extended to cover employees with responsibility for caring for certain adults. These are (i) the spouse or partner of the employee (ii) his or her adult relatives and (iii) adults living at the same address as the employee.
This extension is provided for by 2006 regulations which include a special definition of "relative" for the purpose. Although the special definition of "relative" in the regulations is wide and includes parents-in-law it does not include sons-in-law or daughters-in-law. As from 3rd May 2007 this omission is rectified. Supplementary amendment regulations made a few weeks ago ensure that sons-in-law and daughters-in-law are to be included in the definition of "relative" - but it is worth noting that cousins, even first cousins, are still not included in the definition.
Ever since regulations made in 2003 outlawed religious discrimination in the employment field there has been debate and discussion about exactly what was covered. Although the 2003 regulations prohibit direct discrimination in the employment field by reason of "any religion, religious belief, or similar philosophical belief" they do not define any of these expressions. This has led to much discussion, in particular as to what amounts to a "similar philosophical belief". In one case in 2005 a tribunal ruled that support for the BNP did not count and the whole question was considered in some depth in Parliament in debates on what became the Equality Act 2006. The outcome is that, with effect from 30th April 2007, the wording of the 2003 regulations has been changed to make it plain that "any religious or philosophical belief" is now covered.
The important thing to note is that the word "similar" has gone. There will no doubt still be arguments as to what amounts to a "philosophical belief" but at least there is now no doubt that it does not have to be "similar" to a religious belief in order to qualify for protection.
The current maximum fines for Health & Safety offences in the lower courts have not been increased since 1992. There have been several failed attempts in recent years to change this and it looks as though the latest such attempt has a realistic chance of success. A new Health and Safety (Offences) Bill was introduced in Febraury 2007 and had its second reading on 27th April.
If enacted the Bill will raise the maximum fine that may be imposed in the lower courts to £20,000 for most health and safety offences. At the moment, fines for some offences have a maximum of £5,000. Secondly, it makes imprisonment an option for most health and safety offences in both the lower and higher courts. Thirdly, it will make certain offences that are currently triable only in the lower courts triable in either the lower or the higher courts.
An EAT case in March 2007 provides a warning to employers about what can happen if an employee fails to return to work after sick leave. If the employee has recovered and the employer takes no action there is a danger that he may face an unfair dismissal claim if he later dismisses the employee. To prevent this possibility the employer should as soon as possible after becoming aware that the employee has recovered and has not returned to work inform him that his continued absence will be treated as "repudiation" of his employment contract.
In the case in question the employer had failed to do this. Later, the employee, who had still not returned to work, was formally dismissed and claimed unfair dismissal. The employer argued that there could have been no real dismissal at all, let alone unfair dismissal, because by failing to return to work after recovering from his sickness the employee had repudiated his employment contract. The EAT disagreed. It is settled law that repudiation of a contract is only effective when accepted by the other party, so it followed that the contract had continued to exist until the formal dismissal. The employer had never formally accepted the repudiation so the EAT ruled that the contract had continued and the employee was entitled to proceed with his claim for unfair dismissal. The EAT remitted the case back to an employment tribunal for hearing on the merits.
In Northern Ireland Rules rules banning smoking in enclosed and substantially enclosed workplaces and public places, and in certain vehicles, came into effect very recently - on 30th April 2007. Similar rules have been in force in Wales since 2nd April 2007 and in Scotland the ban on smoking in such places started over a year ago, on 26th March 2006. In the Republic of Ireland rules banning smoking of tobacco (but not other substances) in enclosed public places and workplaces came into effect in 2004.
In this respect England comes last in the British Isles. The various smoke-free regulations applying in England come into force on 1st July 2007.
At 30th April 2007 there were 21 Bills with employment law relevance either already introduced or at an advanced stage of preparation. Notes on these Bills and prospective Bills are included on our website, together with an archive of lapsed employment law related Bills since 2002.
Summaries of all cases reported in the main employment law reports so far issued in 2007 (ICR 2007 and IRLR 2007) are now noted/summarised on our website. This is in addition to summaries and/or headnotes of more than 2,000 other employment cases, new and old, all linked to commentary as appropriate.