Employment Case Law: Discrimination February 2011
Posted date: 1 February 2011
The latest decisions from employment tribunals on the cases that matter to you.
Discrimination
The first respondent banned the claimants from working at its building sites. In August, the claimants submitted claim forms alleging, inter alia, race discrimination.
A pre-hearing review (PHR) was scheduled, at which the issues to be considered were whether the claimants’ application amendments should be allowed; and whether the claimants were employees; and whether the discrimination claims were made in time.
On the day before the PHR, the claimants submitted a written request for an adjournment. The respondents objected.
The judge proceeded to refuse the application to amend the claims and held that, inter alia, the claimants were not the respondents’ employees; that their claims as contract workers for the purposes of s 7 of the Act would fail, that the claims were out of time.
The claimants appealed, in September, but permission was refused, whereupon the claimants issued a fresh notice of appeal under r 3(8) of the Employment Appeal Tribunal Rules 1993, SI 1993/2854 (the Rules).
A judgment had been given on a PHR and on an application to postpone, and if the claimants were not out of time in respect of the written reasons which were extant, nor were they out of time in respect of the application to postpone.
However, the judge had correctly looked at all the materials and had come to the conclusion that it was not unfair to carry on with the PHR. (See [19]–[21], [24]–[25], [27] of the judgment.)
Another unfair dismissal
The employee had been employed since 1986. On 6 December, a disciplinary hearing was held concerning breaches of the Financial Services Authority rules.
At that meeting, the employer kept a record. It was filled out by the relevant person from HR who not only conducted the meeting, but took the decision that the employee should be dismissed. One of the headings in that document was headed “rationale for your decision and sanctions to be applied”.
Among the sanctions in the relevant list were “dismissal with notice and summary dismissal”. Neither of those possible sanctions was ticked by the decision maker.
At the meeting, the employee was informed that she was going to be dismissed and was given an opportunity to resign. She did resign.
On 4 December, she sent a letter headed “grievance” to the employer. A grievance hearing was held on 28 February 2008. On 4 March, the employee presented a claim of unfair dismissal to the employment tribunal.
The question the tribunal had to consider was whether the employee had reasonable grounds for believing that the process, which had begun on 4 December by the letter written by her and responded to on 5 December, was such as fell within reg 15(2) of the Regulations.
The tribunal took the view that the employee’s letter of 4 December had been a grievance letter, with the result that as at 10 December 2007, the expiry of the relevant three-month time limit, the employee did not have reasonable grounds for believing that a dismissal or disciplinary procedure was being followed.
Accordingly, the tribunal concluded that reg 15(2) did not apply and that it did not have jurisdiction to hear the employee’s claim for unfair dismissal as it was out of time.
The tribunal further stated that if the claim had been lodged in time, it would have concluded that the employee had been unfairly dismissed. The employee appealed and the employer cross-appealed against the latter part of the tribunal’s decision. The appeal would be allowed and the cross-appeal would be dismissed.
When the employee had sent the letter of grievance, she had reasonable grounds for believing that she had been following a non-statutory dismissal procedure.
It followed that by the tribunal focusing exclusively on the question of whether the employee had been seeking at that stage to reverse the decision to dismiss, amounted to a material misdirection and did not amount to a correct basis for concluding that that had not been a procedure pursuant to reg 15(2) of the Regulations.
Accordingly, the tribunal had failed to consider properly the way that the Regulations should be construed (see [22], [23], [24] of the judgment).
In respect of the cross-appeal, the tribunal had been presented with a situation in which was well documented and had set out a whole series of answers in respect of motive and mitigating circumstances, which, in the tribunal’s judgment, had warranted her conclusion that the range of responses available to her had been what she had indicated.
In those circumstances, and in the absence of any reason for her to have changed her mind, it was wrong for the employer to say that the tribunal had to be wrong in categorising the decision to dismiss as one which fell outside the band of reasonable responses.
Accordingly, the tribunal’s decision that the dismissal had been unfair was one which was neither wrong in law, nor could properly be described as perverse (see [28], [29] of the judgment).
The matter would be remitted back to the same tribunal, if practicable, for it to consider remedy (see [30] of the judgment).
Unfair dismissal
The employee made claims of unfair dismissal, wrongful dismissal and unlawful deductions from pay against the employer. Judgment in default was entered against the employer on the ground that form ET3 had not been received by the employment tribunal within 28 days of the sending of the claim.
A review of the decision was conducted pursuant to r 33 of sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861.
The employer explained that he had made an error in transmitting the ET3 form within time as he had first emailed it to the wrong address and, upon realising his mistake, sent it to the correct email address but with the wrong document attached.
It subsequently came to light that the first email had been received by the court. The day after the default judgment was entered, the employer spoke with an officer of the tribunal, and transmitted the ET3.
The judge refused to set aside the judgment in default. The judge criticised the employer for not having available all of his computer records which would have verified his account of events. The employer appealed.
The employer submitted that that the judge erred in failing to consider the merits of the case.
Further, it was contended that the judge should have paid attention to the circumstances as set out by the employer in the account which he had given. The employee conceded that the employer’s ET3 demonstrated a reasonable prospect of success. The appeal would be allowed.
The judge had erred in not setting aside the default judgment. On the evidence, the judge had considered the ET3 and it did reveal a reasonable prospect of success.
However, she erred in that she did not mention it in her judgment. That had been a necessary consideration under r 33(5) as a judge was directed to revoke a default judgment where there was a reasonable prospect of it being successfully defended. Consequently, both the review judgment and the default judgment would be set aside (see [19]–[20], [25] of the judgment).
Holiday pay
The employee was a delivery driver for a transport company based in Northern Ireland. For the first three months of his employment, he had worked fairly regularly in Northern Ireland.
After that, from the end of 2005 until the termination of his employment in 2008, he had worked almost exclusively in England. The employee brought a complaint before the employment tribunal alleging, inter alia, that his employer had failed to pay holiday pay and had failed to issue a statement of terms and conditions of employment.
An issue arose as to jurisdiction. Rule 19(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, provided that
“an employment tribunal in England ... shall only have jurisdiction to deal with proceedings where the respondent ... resides or carries on business in England and Wales.”
Having considered the evidence, the tribunal accepted jurisdiction. The employer appealed. It submitted that the tribunal had erred in failing to give sufficient reasons for why it had accepted jurisdiction. The appeal would be allowed.
It was a principle of law that a tribunal had to set out, sufficiently, its reasoning, so that the party who lost knew why it was that they had lost and, for that matter, the party who succeeded, why they had succeeded.
First, it was an essential principle of justice that parties knew why it was a court had come to a conclusion that was adverse to them or, for that matter, in their favour.
Second, it reminded the decision maker of those matters that he had to have in mind as essential when making his judgment, acting, as it were, as a checklist of those matters that it was relevant to consider.
Finally, it permitted a court of review to ascertain whether a decision maker had indeed identified and properly addressed the correct questions and provided the correct answer, so that if a mistake had been made it might be put right (see [13] of the judgment).
There was absolutely nothing in the tribunal’s decision that showed what, if any, weight it had placed upon any particular feature of the evidence. It was impossible to know what precise factor had weighed with the tribunal in determining the case as it had.
The tribunal’s approach was flawed as in the circumstances, its decision had not been plainly and obviously right (see [12], [14] of the judgment). The matter would be remitted to the tribunal (see [17] of the judgment).
- Issue:
- February 2011
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