Employment Law Briefing May 2019

For a list of key dates for 2019, please see our bulletin Key Legislation and Changes to look out for in 2019.

Baldeh v Churches Housing Association of Dudley: Disability discrimination (7 May)

Ms Baldeh was employed as a support worker and dismissed at the end of a 6 month probationary period following concerns about her performance and behaviour. She appealed stating she was depressed which affected her behaviour towards colleagues. Her appeal was rejected. She brought a claim on the basis that her depression amounted to a disability and that her the act of dismissal was a disability related discrimination. She represented herself.

The ET rejected her claim on the basis that her employer did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal and there was no evidence that her depression caused the relevant behaviour. It also found that the dismissal was justified as a proportionate means of achieving a legitimate aim to protect vulnerable people. Mrs Baldeh appealed.

The EAT allowed the appeal. It said that the ET had made errors in relation to each stage of reasoning. Even though the employer did not know about her disability it would have acquired actual or constructive knowledge during the appeal stage and rejection of the appeal formed part of the unfavourable treatment. Mrs Baldeh had mentioned her mental health and depression at appeal hearing. It also found there was supporting evidence that her depression caused her behaviour which the ET failed to consider. It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment despite the fact that there may have been other factors in the decision to dismiss. Finally, the ET failed to address the question whether the dismissal was a proportionate response.

 Dodic v Banka Koper and Alta Invest: can a transfer of client’s investments amount to a transfer of undertakings? (8 May)

The ECJ has held that three may have been a transfer of an undertaking when a Slovekian bank ceased its investment operations and gave its clients the options to transfer their investment accounts to another intermediary. 91% of the clients transferred to another intermediary – Alta Invest. The bank was deauthorised by the stock exchange and authorised as a dependent stock exchange intermediary only. As a consequence, it terminated the employment of all its employees in its investment division. Mr Dodic, who was one of the dismissed employees, claimed that there was a transfer of undertakings and that his employment should have transferred to Alta Invest. The case went all the way to the Slovenian Supreme Court which asked the ECJ to consider whether there had been a transfer of an undertaking.

The ECJ found that the transfer of financial instruments from one undertaking following the cessation of another business could constitute a transfer of an undertaking. It was not disputed that the bank’s investment activities amounted to an economic entity. It was therefore necessary to consider whether the economic entity retained its identity post transfer (i.e. there was a transfer of clients). 

Foreign Office and Others v Bamieh: Territorial Jurisdiction of Whistleblowing (9 May)

Court of Appeal has held that the ET does not have territorial jurisdiction over whistleblowing claims brought by a British Worker seconded by FCO to EULEX (a Kosovo-based EU mission) against fellow employees of the FCO also seconded.

The ET had decided it did not have jurisdiction. The EAT overturned the ET decision on the basis that as each employee was a UK employee this provided a sufficient connection between each respondent and Great Britain. The Court of Appeal disagreed. It had to consider the key question of whether there was a sufficient connection to British employment law to allow the whistleblowing provisions of the ERA to operate extraterritorially. It found that there was not a sufficient connection to British employment law given that the co-workers worked together in Kosovo, they had been seconded separately and at different times and the whistleblowing detriment complained of stemmed from their roles at Eulex. Their employment with FCO was “little more than happenstance.” The existence of a common employer was a necessary but not sufficient.

Leave to appeal to the Supreme Court has been sought.

Mrs Mart -v – Assessment Services Inc:  definition of disability – vision impairment (16 May)

The EAT considered whether side effects of wearing contact lenses could constitute a disability. The Equality Act 2010 specifically excludes impairment of vision which is corrected by spectacles, contact lenses or other ways from the definition of disability. Mrs Mart had brought a claim for indirect discrimination because of her double vision. The ET found that she was not disabled as her double vision had been corrected by prescribed special contact lenses. She disagreed. The lenses had “blacked out” her eye so she argued she had a disfigurement and had restricted peripheral vision. Disfigurement can amount to a disability.

The EAT agreed with the Tribunal as the 2010 Act specifically excludes visual impairments that are correctable which is not subject to any proviso.

Pora v Cape Industrial Services Limited: Claim presented out of time due to fault of representatives. Is there jurisdiction to hear it? (17 May)

Mr Pora was dismissed. He took prompt action to seek legal advice and he was referred to a Law Centre and relied on them to present his case. He was repeatedly assured the matter was in hand. However, no claim was presented until after the expiry of the time limit. Claims for unfair dismissal and race discrimination were presented.

Mr Pora requested an extension of time based on his solicitors' negligence. The ET rejected the claim for unfair dismissal on the basis that it had been reasonably practicable for him to present his complaint within the relevant time period but allowed the race discrimination claim to proceed to a full hearing for determination of whether it would be just and equitable to extend time on that claim.

Mr Pora appealed to the EAT. The EAT held that the ET had correctly concluded that it was reasonably practicable for the Claimant to present his claim in time.

Base Childrens Wear Limited v – Otshudi: Race Discrimination Injury to Feelings – appropriate level of award for a one-off act of discrimination. (17 May)

Mrs Otshudi was dismissed after only 3 months employment. She had complained of 6 acts of racial harassment during her short employment. Any complaint in relation to these were out of time. She had made a further complaint of racial harassment in respect of her dismissal. This was upheld and the ET made awards for injury to feelings, loss of earnings, interest, aggravated damages and personal injury, plus a 25% uplift for failure to comply with the ACAS code in respect of a post termination grievance. The injury to feelings award was placed within the middle bracket of Vento at £16,000.

Base Children appealed. One of the grounds of appeal was that the award was excessive in circumstances where there was a one-off act of racial harassment. Base Children did not appeal the uplift made in this case even though the ACAS Code does not expressly state that it applies to grievances received from former employees.

The EAT held that the Vento bands were not prescriptive, and the appropriate level was fact sensitive and should take into account what was the particular effect on the individual. Whether the discrimination was a one-off act or a course of conduct was a relevant factor but not determinative.

The EAT made no obiter comments disagreeing wit the uplift applied. In light of this, employers should seek to always follow the ACAS code in respect of post termination grievances.

Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (DB): Employers required to record hours of daily working time (22 May)

The CCOO is a trade union in Spain. They brought a claim seeking a judgment against the bank to be under an obligation to set up a system for recording the time worked each day by its members of staff. The bank did not record the daily hours worked. CCOO argued that this was a requirement of the Working Time Directive. The failure to do so deprived workers with important and critical information to provide evidence of working in excess of relevant time limits.

The Spanish National Court decided there was no such obligation and that it would be excessively difficult to do so.  The matter was referred to the CJEU. AG Pitruzzella gave an opinion earlier in the year that the Working Time Directive required employers to keep records of actual time worked. The CJEU has now agreed with the AG.  The CJEU ruled that to ensure the effectiveness of the rights member state must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured. It stated that the determination of the number of hours worked each day and each week was essential in order to establish whether the maximum weekly working time (including overtime) and minimum daily and weekly rest periods had been complied with.

It is for Member States to define the specific arrangements for implementing such a system having regard as necessary to the characteristics and sectors of undertakings. In the UK, employers are required to keep adequate records to show compliance with the 48-hour limit on average week and protection of night workers. Employers are not required to measure and record daily hours of work or daily or weekly rest periods.

The ECJ judgment raises serious doubts as to whether UK’s record keeping rules comply with the Directive’s requirements. 

Ali – v Capita Customer Management Limited and Chief Constable of Leicestershire -v- Hextall: Court of Appeal on shared parental leave (24 May)

In Mr Ali’s case, the ET held that it was direct sex discrimination for a new father whose wife had post-natal depression to be allowed to take only two weeks' leave on full pay, when female staff were entitled to 14 weeks' enhanced maternity leave. Capita appealed to the EAT. The EAT allowed the appeal. It held that Mr Ali was not discriminated against on the grounds of sex by being entitled to shared parental leave at the pay rate appropriate for such leave. Mr Ali appealed on direct discrimination.

In Mr Hextall’s case, the ET held that there was no discrimination against a man on shared parental leave who received only statutory shared parental pay, where the employer paid enhanced maternity pay as a same sex partner of a woman would be treated in exactly the same way. Mr Hextall appealed to the EAT.  The EAT allowed the appeal and held the ET had erred in its approach for indirect discrimination. The Chief Constable of Leicestershire appealed on indirect discrimination.

The two appeals were heard together. The Court of Appeal dismissed Mr Ali’s appeal but allowed Chief Constable of Leicestershire’s appeal on the grounds that:

  • men on parental leave and women on maternity leave are not in comparable positions so no direct discrimination.
  • Indirect discrimination claim cannot be brought as there is a specific exclusion for indirect discrimination claims where there would be an equal pay claim.
  • In relation to Equal Pay, the EQ Act 2010 provides that "A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth."
  • Therefore, employers that enhance maternity pay do not discriminate on grounds of sex (whether directly or indirectly) against employees who are offered shared parental leave paid at lower statutory rates.

Both Mr Ali and Mr Hextall have applied for leave to appeal to the Supreme Court.

Merinson v Yukos International UK BV and others: English Courts jurisdiction under “Brussels Recast” to try claims in UK (24 May)

Mr Merinson was predominantly based in the Netherlands, employed by Yukos. Following disputes, proceedings were brought and settled in the Dutch courts. Following further issues, Mr Merinson issued a claim form in the UK to recover damages for losses claimed to have suffered as a result of breach of his duties under his employment contract. He was domiciled in UK at this stage. The issues before the High Court included whether the damages claim was a matter "relating to an individual contract of employment and, if so, whether the settlement reached in the Dutch courts was "an agreement … entered into after the dispute has arisen" within Art 23(1) of Brussels Recast. The High Court answered "yes" to the first issue and "no" to the second, with the effect that the English courts did not have jurisdiction to try the claims. Mr Merinson appealed. The Court of Appeal dismissed his appeal as it upheld the decision of the High Court.

Aston v Martlett Group: scope of victimisation protection (28 May)

Mr Aston was an operations manager. He suffered depression and was on long term sickness. At a meeting he declined to return to work and was dismissed after 10 years employment. The employer offered to pay £4k as an ex gratia payment.  There was a disagreement on how to pay this and was never paid.  He brought claims for unfair dismissal and discrimination by reference to the disability of depression. His claims wee dismissed.  He appealed.

The EAT upheld his appeal in relation to claims for failure to comply with the duty of reasonable adjustment and disability discrimination. The appeal in relation to the victimisation claim failed. The complaint of victimisation predicated on something said by a witness giving evidence at a preliminary hearing before an employment tribunal was outside the scope of the EQ Act 2010. The conduct complained of arose out of the former employment but was not closely connected with it.

Lozaique v Tesco Stores Ltd: A term in a collective agreement reducing overtime was not incorporated int an individual employment contract. (31 May)

Mr Lozaique was employed by Tesco in security and under his original terms and conditions of employment, he was guaranteed 20 hours of overtime a week, to be paid at 1.5 times the applicable hourly rate. This was confirmed by a letter to him in October 2005 which made specific reference to 20 hours overtime.  In 2016, Tesco negotiated a new agreement with the union which reduced the premiums paid for overtime to 0.5 times. Mr Lozaique contended that that part of the agreement did not apply to him and brought a claim for unlawful deduction of wages. The ET concluded that the agreement with the union was incorporated into his contract and therefore the reduction in premiums paid for overtime applied to him. Mr Lozaique appealed.

The EAT allowed Mr Lozaique’s appeal. While the collective agreement was expressly incorporated in the contract of employment, it did not follow that every term of the agreement was also incorporated. The EAT found that the revised term about overtime premiums was not apt for incorporation as the terms in the collective agreement referring to premiums did not apply to the 20 hours of overtime specifically provided for in the 2005 letter. This letter promised 20 hours overtime which could not be displaced.  It further found on facts that Mr Lozaique had an obligation to do this overtime and this had not been varied by custom or practice.

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