Thursday, April 26, 2012

Age Discrimination Cases Go Right To The Top

The Supreme Court (the one in London that replaced the House of Lords, not the one in Washington DC) has handed down 2 important Judgments on Age Discrimination.

As this is the highest Court in the land these are binding on Employment Tribunals and everything else below the Supreme Court.

In Seldon the Claimant was an equity partner in a firm of Solicitors. The Partnership Deed provided for  retirement by the December after a partner's 65th Birthday. When Mr Seldon reached 65 he asked the other partners to agree to him continuing to work beyond the retirement date specified. They did not agree to this and he subsequently brought proceedings alleging that his compulsory retirement was unlawful age discrimination.

The Employment Tribunal found that the retirement age was a proportionate means of meeting 3 legitimate aims and was therefore justified and lawful. The three aims were giving associates an opportunity of partnership within a reasonable time (which assisted in retention), facilitating workforce planning by knowing when vacancies could be expected and (most controversially of the 3) limiting the need to expel underperforming partners (the implication being that performance would be likely to deteriorate with age.)

After appeals to the Employment Appeal Tribunal and the Court of Appeal the matter reached the Supreme Court which had to decide whether the Tribunal had applied the correct test of what was a legitimate aim and also whether the treatment had to be justified in relation to Mr Seldon as an individual or just in respect of the firm in general.

The Supreme Court said that the European jurisprudence (some of which came after the original Tribunal decision) showed that direct discrimination can only be justified by reference to legitimate aims which are of a public interest nature as opposed to purely individual business reasons. Broadly those which have been accepted tend to fall into the categories of "inter-generational fairness"   and "preserving the dignity of older workers." The 3 aims which had been identified by the Tribunal were apt to fall into those categories.

In relation to the second question, whilst the regulation suggested that the focus was on Mr Seldon,  by definition if it is justified to have a general rule then it will usually be justified to apply it to the individual.

The case was sent back to the Tribunal to determine if the retirement age was a proportionate means of achieving the legitimate aims that had been identified by the partnership. Since the means have to be both appropriate and necessary it may well be difficult for an employer to justify them and it remains to be seen what the ultimate outcome of the case will be.

In Homer the employer introduced a requirement that to obtain promotion to certain higher grades in a new structure the employee had to have a law degree. Mr Homer alleged that this was indirectly discriminatory against people who were near to retirement age, like him, as they did not have the necessary amount of time left in their career to get the degree whereas someone younger than him would be able to get the degree and benefit from the chance of promotion.

The Employment Tribunal agreed that this was indirect discrimination but this was overturned on appeal. Both sides disagreed with parts of the EAT decision and both of their appeals were dismissed by the Court of Appeal, so again the case ended up at the top of the tree.

Mr Homer's appeal succeeded and the case was sent back to the Tribunal to decide if his treatment was justified (which was the part of the EAT decision the employer did not like.)

The argument the EAT and the Court of Appeal had accepted was that Mr Homer was not disadvantaged by his age but by the fact that he was near the end of his employment, which could apply to anyone who was leaving shortly.

The Supreme Court said this was wrong. The disadvantage was due to the fact that he was near retirement, which was directly related to his age. There are material differences between retiring and leaving a job for another reason and it was clear that people of Mr Homer's age were disadvantaged by the rule compared with people of other age groups.

In relation to justification, the Supreme Court noted that it was the rule which had to be justified as a proportionate means of meeting a legitimate aim - the employer did not have to justify the effect it had on Mr Homer. He was not dismissed or downgraded because he did not have a degree - he just could not potentially get some additional benefits. The Tribunal will have to decide whether the requirement was appropriate and necessary.

It was also pointed out that making a special rule for Mr Homer might unlawfully discriminate against younger employees if an exception was made for him as an individual.

Friday, April 13, 2012

Harassment - Context Is Everything

The Employment Appeal Tribunal (EAT) has held that an Employment Tribunal was right to reject a Claim for harassment amounting to Sex Discrimination where an employer accused an employee of lying about her pregnancy and miscarriage.

Mrs Warby worked for Wunda Group plc.

She became involved in a disagreement with her boss over her pay entitlements.

Things became acrimonious with both sides coming to the conclusion that the other was lying. A heated meeting took place on 26th January. There was then a follow up meeting on 25th March which was to deal with Mrs Warby's grievance about what had happened on 26th January.

During the course of this second meeting Mrs Warby accused the Company of change her wages because she was pregnant. It is worth noting that the Tribunal ultimately found that the Company were in the right about what had originally been agreed about her pay.

Mr Pugh from the Company responded to her accusation by denying it but then going on to accuse her of having lied about having had a miscarriage. This accusation appears to have been without foundation and based on a misinterpretation of (or possibly a lack of clarity in) a timeline on Facebook.

Understandably Mrs Warby found his comment upsetting and inappropriate. She brought a Tribunal Claim alleging that it amounted to unlawful sexual harassment. This arises where someone engages in unwanted conduct that is related to the sex of the Claimant or another person and has the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for her.

It was accepted that the conduct was unwanted and that it had the relevant effect.

The question was therefore whether the comment was made on the grounds of her pregnancy and was therefore sex related.

The Tribunal concluded that it was not. The context was that Mr Pugh was accusing her of being a liar and was pointing to another occasion when he said she had lied. Whilst this might be unreasonable it was not harassment on grounds of her pregnancy. The Claim therefore failed and Mrs Warby appealed to the EAT.

She argued that the words used were inherently related to her pregnancy and therefore to a female only condition and as such were by definition related to her sex.

The EAT disagreed. Words had to be looked at in the context in which they were used. The hostility in the comments was not directed towards the fact that the Claimant had been pregnant. The Tribunal had to determine the reason for the Claimant's treatment. It had decided that it was because Mr Pugh thought that she was a liar. It had been entitled to come to that conclusion. To conclude that the words were by definition discriminatory would have made any raising of miscarriage or pregnancy in a fraught situation would potentially be unlawful.

This is a decision on its facts and the context in which the comments was made was clearly very important. Employers should not regard it as giving the green light to the making of comments which could be interpreted as relating to an employee's sex or other "protected characteristic."

Thursday, April 05, 2012

Threatening the Opposition - the Way to be Struck Out!

The Employment Appeal Tribunal has confirmed that an Employment Judge acted correctly in striking out a race and disability discrimination claim after the Claimant sent threatening emails to one of the Respondent's witnesses.

Ms Obasa worked for a company who deployed her with Buckinghamshire County Council. After 3 weeks a Ms Blake from the Council decided she should cease to work there.

An Employment Tribunal claim for discrimination ensued.

Whilst this was ongoing Ms Obasa sent Ms Blake a series of emails, which included the following phrases "There is nowhere you can hid" (sic), "...tell the truth before blood is shed", "Look at your love ones (sic) and know what you have done to me" and "There will be no hiding place for you as long as I live, no matter how many years it take me." (sic)

The Council asked the Claimant not to contact anyone except their Head of Legal but this request was ignored.

Ms Blake interpreted the emails as threats and was very distressed by them. She considered that they were an attempt to get her to change her evidence in the proceedings.

As a result the Council applied to strike out the Claims on the basis that they made a fair trial impossible.

At the Hearing before the Employment Judge the Claimant was unrepentant and did not appear to dispute that the emails were threatening but in effect stated that her behaviour was justified on the basis of the way the Council had treated her.

The Employment Judge also noted that during the course of the strike out hearing the Claimant had been to face Ms Blake and direct most of her comments towards her rather than the Tribunal in a manner which was very intimidating.

She concluded that Ms Obasa's behaviour was intended to intimidate Ms Blake into changing her evidence and that this made a fair trial impossible. She considered whether there were any steps short of striking the case out which would address this and concluded that there were none. She therefore struck out the Claims.

As that brought the case to an end it is perhaps not suprising that Ms Obasa appealed to the EAT.

She alleged that the Tribunal had erred by proceeding on the basis that there was an agreement to deal with the strike out application without hearing live evidence but by reading the witness statements when there was no such agreement. The EAT rejected this ground of appeal. They found that Ms Obasa had been so worked up at the original hearing that she was wrongly recollecting what had gone on. There had been such an agreement and the procedure adopted by the Employment Judge had been correct.

More substantially she alleged that the Employment Judge had failed to apply the correct legal principles and should have done something less drastic than strike the case out, such as providing Ms Blake with something akin to "witness protection" or requiring Ms Obasa's questions of Ms Blake to be put in writing for prior approval by the Judge.

The EAT dismissed this ground of appeal. They reminded themselves that the Employment Judge had quite correctly taken into account that striking out a case without a hearing on the merits is a very drastic step which should only be taken where lesser alternatives are inappropriate. They agreed that this was a case where only strike out was appropriate. In the absence of any recognition by the Claimant that her behaviour was wrong it was impossible to have a fair trial as Ms Blake would always be concerned that she (and her family) might be at risk if Ms Obasa did not like her evidence. It was not just that Ms Blake would feel uncomfortable in the witness box - she would feel obliged not to give evidence that was adverse to Ms Obasa.

This does not mean that in any case where something is said which could be interpreted as a threat the case will be struck out. The question is whether the situation is so serious that a fair trial is no longer possible. If the person making the threats is the Respondent, excluding them from giving evidence and putting the other side to proof of their case may be fairer than striking the defence out all together. Similarly if the person making the threats acknowledges that they were wrong then something less than strike out may be sufficient.

Wednesday, April 04, 2012

Tribunal Time Limits - Don't Rely On What Your Employer Says!

The Employment Appeal Tribunal (EAT) has ruled that an Employment Tribunal was correct to decide that an Unfair Dismissal claim was presented too late where the employer had given the employee a later date than the date of her resignation as her termination date.

Unfair Dismissal claims have to be lodged with the Employment Tribunal within 3 months of the "Effective Date of Termination", which is the date the employment ends as defined by the Employment Rights Act 1996. Confusingly this may or may not be the same date as the date on which the employment would be deemed to end as a matter of contract law.

Mrs Horwood worked for Lincolnshire County Council. She was disciplined and as she was not happy with the outcome she resigned and claimed constructive Unfair Dismissal. Her resignation letter, which stated she was resigning without notice, was posted to the Council on 28th January and received by them on 29th January.

The Council wrote to Mrs Horwood accepting her resignation and stating that it would take effect from the date of their letter, which was 2nd February. She was paid up until 2nd February. She also received a letter from the Pensions Section referring to her leaving her employment on 2nd February.

The Claimant's ET1 Claim Form was posted to the Tribunal on 28th April and arrived on 29th April. The Claimant stated on it that her employment ended on 2nd February.

The Respondent alleged that the Effective Date of Termination was 29th January.

If the Claimant was right, the Claim was in time.

If the Respondent was right, the Claim was 1 day too late as it would have needed to be with the Tribunal by 28th April (to calculate whether the Claim is lodged "within" 3 months you go forward by 3 months and then back a day.)

The Employment Tribunal accepted the Respondent's argument. It said that there had been confusion between the Claimant and her representative but that this was a matter between the two of them. The resignation was effective when it was received on 29th January and nothing that happened after this changed that.

The Tribunal went on to find that there was no basis for finding that it was not "reasonably practicable" to present the Claim on time and that there was therefore no jurisdiction to extend time.

Mrs Horwood appealed to the EAT.

She argued that the Effective Date of Termination was 2nd February because that was what the Council's letter said, or 1st February on the basis that this was the earliest the letter was read. There is case law which says a dismissal by an employer is only effective when the employee has received and read (or at least had a reasonable opportunity to have read) the dismissal letter.

The EAT rejected these arguments. The requirement was for the employee to be certain about when the time limit expired. In this case, the Claimant knew she had resigned with immediate effect and that the letter had been received on 29th January. There was no requirement that the letter came to the attention of any particular person before it took effect.

As such the resignation took effect on 29th January. Nothing the Council did after that could alter that fact. It was not for the person at the Council who replied "accepting" the resignation (which is not a term that has any legal meaning) to unilaterally change the date.

Mrs Horwood's fall-back argument that there was an express or implied agreed variation to the date was also rejected.

This was not a case where the parties agreed expressly, as sometimes happens, to an agreed earlier date for the departure of someone who had given notice. There was no evidence whatever of an express agreement - the two parties had simply in effect written letters referring to different dates and there was no suggestion that there had been any discussion with them about the termination date.

There was no basis in law for the suggestion that by silence or implied consent the date could be varied after the event.

As such the Claim was out of time.

Mrs Horwood argued that time should have been extended because the Council's letter had miseld her into thinking that she had until 1st May to present her Claim. This argument was also rejected. The resignation letter had been unambiguous. There was no suggestion that the Claimant had been unable to present her Claim before 28th April. It was simply an erroneous understanding of the situation between her and her adviser. The test for an extension of time is extremely onerous and was not satisfied.

Ironically if the ET1 had been faxed or lodged online on 28th April rather than being posted on that date it would have been in time and there would have been no problem.

Some will feel that this decision was harsh but in terms of the legal principles that were applied it cannot, with respect to the EAT, be faulted. The lessons for employees- don't leave it until the last minute to lodge your Tribunal Claim and always calculate the time limits for doing so on the most pessimistic basis. The lesson for employers - always check the dates carefully if an ET1 is received to make sure that you are not making an incorrect assumption that the Claim is in time.