Gordons Legal Employment Update – 26 June 2017

Victimisation

In the case of Greater Manchester Police v Bailey the Claimant brought claims for race discrimination, which he settled.  It was a term of the settlement agreement that the Claimant would be seconded to another unit for a two year period.  The Claimant’s secondment continued after the expiry of the two year period, but was later terminated, although he continued to work on the same operation in the capacity of a GMP officer.  This meant that he lost his entitlement to a vehicle and travel expenses.  The Claimant claimed that this was an act of direct race discrimination and victimisation.

The Employment Tribunal upheld the claim for victimisation on the basis that the secondment was only terminated because of “an agreement which is inextricably linked to, and arises out of, his protected act of bringing his previous proceedings. Hence, there is no escaping the fact that his treatment was ‘because of’ his having done a protected act”.

The Respondent appealed to the EAT who concluded that the Employment Tribunal had incorrectly applied the “but for” test, rather than focusing upon the reason why the particular decision was taken.  The case was remitted to the Employment Tribunal.

Comment:  Whilst this case does not really tell us anything new, it serves as a useful reminder that in order to defend a claim for victimisation an employer would need to demonstrate a reason for treating an employee in a detrimental way, which is in no way connected to their earlier complaint of discrimination.

Holiday Pay

In the case of King v The Sash Window Workshop, the Advocate General, in a non-binding opinion, stated that a worker’s paid holiday entitlement carries over to subsequent years if they do not take holiday because their employer refuses to pay them.

Where a worker does not use their entitlement to paid holiday because they would not be paid by their employer, the worker can claim they were prevented from exercising their right to such paid leave.  The right then carries over until the worker has had the opportunity to exercise it – in this case on termination of employment.

There is no requirement for the worker to ask to take their leave first before being able to establish whether they are entitled to be paid for it, because the risk of not being paid for the leave would be a deterrent to taking it.  The payment in lieu for untaken holiday entitlement should cover the full period of employment until termination of employment relationship.

Comment: The judgment has not yet been published but the CJEU normally follows the opinion of the Advocate General.

Direct Sex Discrimination

In the case of Ali v Capita Customer Management, the Employment Tribunal held that paying female employees maternity pay at full pay but paying only the statutory rate of pay to a father wishing to take shared parental leave amounted to direct sex discrimination.

The Claimant’s daughter was born two weeks prematurely and the Claimant took his two week paternity leave (on full pay) following her birth.  During this period, the Claimant informed his manager that his wife had been diagnosed with postnatal depression.  On the Claimant’s return to work he informed his manager and HR that his wife had been medically advised to return to work to assist her recovery and he wanted to take time off to care for his daughter.  The Claimant was informed that he was entitled to shared parental leave, but he would only be entitled to statutory pay.  The Claimant was informed that female colleagues were entitled to full pay for 14 weeks’ maternity leave under the maternity policy.  Consequently, the Claimant raised a grievance and the Respondent rejected this as it took the view that it did not have a legal obligation to pay the paternal father an enhanced rate for shared paternal leave.  The Claimant subsequently brought a claim, including sex discrimination, before the Employment Tribunal.

The Employment Tribunal held that:

• the Claimant was entitled to compare his treatment with that hypothetical comparator taking leave to care for her child after the two-week compulsory leave period even though he has not given birth.
• the Claimant could claim sex discrimination by reference to the more favourable treatment given to that female colleague, as he was denied the benefit of full pay; he was deterred from taking the leave; and he was treated less favourably because he was a man.
• the Respondent never reviewed the policy when the Claimant was complaining of unequal treatment in order to consider whether it applied to him in a discriminatory way.
• maternity leave and pay are also provided in order to facilitate the care of a child and that need or consideration is not exclusive to women who have recently given birth.
• it was clear that the Claimant was best placed to perform that role given his wife’s postnatal depression.
• the full pay for the 12 weeks following the initial period of compulsory leave was not special treatment in connection with pregnancy and childbirth but was about special treatment given to women for caring for a new-born baby.

The Employment Tribunal found that the Respondent had directly discriminated against the Claimant on grounds of sex.

Comment: Whilst this case is interesting and will leave employers questioning their own policy, the judgment is only a first instance decision so it does not set a precedent for other tribunals to follow.  The Respondent has appealed the finding of direct sex discrimination to the Employment Appeal Tribunal and we will provide an updated report.

Appeal Outcome Reasons (Elmore v The Governors of Darland High School and another)

A maths teacher was dismissed due to poor performance. She appealed against her dismissal but was unsuccessful. She then brought an unfair dismissal claim and the Employment Tribunal concluded that her dismissal was fair.

She appealed to the Employment Appeal Tribunal (EAT) on the basis that:

• A key part of a fair procedure dismissal procedure is a fair appeal process.
• The appeal panel did not give any reasons for rejecting the appeal (whether in the appeal outcome letter, in the Tribunal hearing or anywhere else).  Therefore, in the absence of a reasoned appeal decision, the Tribunal should not have concluded that the process followed was fair.

The EAT concluded that despite the lack of appeal outcome reasons, the Tribunal was entitled to conclude that the process followed was fair. In particular the EAT noted the following points:

• No new points were raised by the teacher at the appeal stage, she simply reiterated the points raised prior to her dismissal.
• There was no allegation or evidence of any bias or improper behaviour of any kind by the appeal panel.
• The minutes of the appeal hearing were inconsistent with any allegation that the appeal was a sham or rubber stamping exercise. The minutes showed that the panel members were engaged with the issues.
• In view of the answers given by the teacher at the appeal hearing it was reasonable for the appeal panel to conclude that future improvement in performance would be unlikely.
• It was implicit in the appeal panel’s upholding of the appeal that it agreed with the original decision and reasons given at that time.

Comment:  This case is an unusual one and certainly not one that should be used as a basis for not giving reasons for an appeal outcome.  If new evidence or issues had been raised at the appeal stage by the teacher the outcome would likely have been different.  It remains best practice for detailed reasons to be given in all outcome letters. Having well drafted outcome letters can be the difference between a fair and an unfair dismissal.

If you would like assistance with disciplinary or appeal outcomes then please contact a member of the Employment Team.

Employment Tribunal Quarterly Figures

Figures published by the Ministry of Justice show that in the period from January to March 2017:

• 4,291 single claims were received (an increase of 4% on the same quarter last year); and
• 26,861 multiple claims were received (an increase of 7% on the same quarter last year).

Out of the above claims issued in the period from January to March 2017:

• In 5,179 cases an issue fee was requested:
  • 3,260 had the full issue fee paid outright; and
  • 1,357 were awarded either full or partial issue fee remission.

The annual figures show a decline of 15% in the number of judicial sitting days in 2016/2017.

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.