Gordons Legal Employment Update – 29 September 2017

Discrimination Against Part Time Workers

In the recent case of Pinaud v British Airways, the issue of discrimination against part time workers was considered by the Employment Appeal Tribunal (EAT).

The circumstances of the case are that, due to the working patterns imposed by British Airways, Mrs Pinaud had to be available to work on 130 days of the year, while a full time comparator had to be available on 243 days.  While Mrs Pinaud had to be available to work for more than 50% of the time of a full time comparator, she only received 50% of the salary.  The first-tier Tribunal found that Mrs Pinaud had been discriminated against due to being a part-time worker and British Airways appealed the decision.

1. The EAT examined the following questions in considering the appeal:If a part time worker receives 50% of a full time worker’s salary but works more than 50% of the hours, are they being treated less favourably?; and

2. Was the first-tier Tribunal correct to disregard available statistical evidence on actual work performed by Mrs Pinaud and her comparator when concluding that Mrs Pinaud had been discriminated against?

On the first question, the EAT found that a part time worker is being treated less favourably if they are available to work on more than 50% of the number of days of a full time comparator but only receive 50% of the salary.

On the second question, the EAT held that the first-tier Tribunal should not have disregarded the available statistical evidence.  Having found that Mrs Pinaud had been treated less favourably than her full-time comparator, the first-tier Tribunal incorrectly considered the statistical evidence irrelevant; however, the evidence should have been considered when assessment was made of whether the less favourable treatment could be justified.  The EAT remitted the consideration of the statistics to a new Tribunal.

Comment:      The EAT’s judgement on the first point was not a surprise. The judgment of the EAT would suggest that Tribunals cannot disregard any potentially material evidence at any stage of proceedings when determining whether discrimination has taken place.  Significantly for employers, the judgment also confirms that if they seek to justify a pay discrepancy on grounds of proportionality, they must first ensure they have fully explored alternative methods of implementing a practical pay structure.  Whether or not the available statistical evidence in this case will prove to be justification for the less favourable treatment of part time workers remains to be seen.

Acas Early Conciliation

In most employment Tribunal cases, Acas must issue an early conciliation certificate confirming that early conciliation between the prospective parties has been completed before the claim can proceed; where there are multiple prospective respondents the rules state that a certificate must be issued for each.  The question of whether an early conciliation certificate issued in breach of the rule on multiple respondents should preclude a claimant from bringing a claim was considered by the EAT in the recent case of De Mota v (1) ADR Network and (2) The Cooperative Group Ltd UK.

The facts of the case are that Mr de Mota, a Portuguese national, brought a claim against the two Respondents for unfair dismissal following termination of his employment in November 2015.  Contrary to Acas guidance, Mr de Mota had incorrectly completed a single Acas early conciliation form purporting to be in respect of his claim against both Respondents.  Despite the Acas website stating that such a form would be rejected, Acas processed the form and issued the early conciliation certificate.

The first-tier Tribunal struck out Mr de Mota’s claim on the basis that he did not have standing to bring the claim against either Respondent due to his relying on an early conciliation certificate which had not been issued in the prescribed manner.

Mr de Mota appealed the decision of the first-tier Tribunal, arguing the fact that he had a certificate issued by Acas confirmed his compliance with the rules.  The EAT reversed the first-tier Tribunal’s decision, finding that although Acas’ act of issuing the certificate may have been a mistake, that is not to say that it was unlawful.  As such the matter was remitted to the first-tier Tribunal to consider Mr de Mota’s substantive claim.

Comment:      The judgment of the EAT is indicative of a flexible approach being adopted with a view to dispensing justice fairly.  It also serves as a reminder to respondents that they cannot necessarily rely on claimants’ procedural mistakes to avoid having to defend a claim in the Employment Tribunal.

Burden of Proof in Discrimination Cases

A recent case in the EAT has considered where the ‘burden of proof’ lies in discrimination cases. The question before the EAT in Efobi v Royal Mail Group Limited was whether the first-tier Tribunal erred in law by imposing an initial burden of proof on the Claimant to demonstrate there are facts which (in the absence of an explanation from the Respondent) prove he had been discriminated against.

Mr Efobi, a black African born in Nigeria, worked as a postman for Royal Mail.  During his employment he made over 30 applications for IT-related jobs with Royal Mail, all of which, Mr Efobi claimed, were rejected because of his race.  The first-tier Tribunal found for Royal Mail on this point, determining that his applications were unsuccessful not because of his race but because of the poor quality of his CV.  Mr Efobi appealed against this decision on the grounds that the Tribunal failed to properly analyse what inferences it could or should have drawn from all the evidence available.

The EAT concluded that although there was some evidence from which the first-tier Tribunal could have inferred that the Respondent discriminated on grounds of race, the first-tier Tribunal misdirected itself in failing to consider whether to draw such an inference.  The first-tier Tribunal incorrectly held that it was initially for Mr Efobi to prove he was discriminated against, instead of considering the entirety of evidence from all sources before concluding whether (in the absence of an explanation from the Respondent) discrimination had occurred.  In so finding, the EAT remitted the case to a differently constituted Tribunal to consider the substantive points of Mr Efobi’s discrimination claim.

Comment:      The Judgment of the EAT represents a significant departure from the traditional interpretation of how the law on the burden of proof operates in discrimination cases.  Respondents should note that whereas making an application for strike out of a claim on the basis of lack of prospects where there was a lack of evidence of discrimination may have been an effective tactic in the past when the onus was initially on the claimant to prove his case, the judgment of the EAT confirms that a Tribunal will now be entitled to draw adverse inferences from a respondent’s failure to adduce evidence without explanation to show a non-discriminatory reason for any action taken.

If you require any further information on the above developments then please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.