Employment Law and Human Rights – The Debate Continues

The impact of the UK’s human rights obligations on employment law is still a subject of much debate almost 20 years after the advent of the Human Rights Act 1998. In one important case, the Court of Appeal upheld a trade union’s plea that the right to freedom of association may be violated by the exclusion of parks police officers from pre-redundancy consultation rights that are afforded to other workers.

The case arose from a local authority’s decision to disband its parks police service. Two officers who lost their jobs as a result lodged complaints of unfair dismissal with an Employment Tribunal (ET). Their trade union also sought a protective award in respect of the council’s alleged failure to carry out collective consultation prior to the making of more than 20 redundancies, as required by Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Both claims were permitted to proceed to a full hearing by the ET, but that decision was subsequently reversed by the Employment Appeal Tribunal (EAT). In respect of the officers’ claims, the EAT noted that those persons in police service are precluded from bringing unfair dismissal claims by Section 200 of the Employment Rights Act 1996. The union’s claim was excluded by Section 280 of TULRCA.

The Court had no enthusiasm in rejecting the officers’ appeals on the basis that their dismissals did not engage Article 8 of the European Convention on Human Rights – which enshrines the right to privacy – whether read by itself or in conjunction with Article 14, which bans discrimination. In urging the Government to review the law on the point, the Court noted that the exclusion of parks police from unfair dismissal protection was anomalous and an apparent injustice.

In upholding the union’s appeal, however, the Court found that the right to collective consultation conferred by TULRCA fell fairly and squarely within the ambit of Article 11 of the Convention, which guarantees freedom of association and peaceful assembly. The union’s claim for a protective award was thus not excluded and its case was sent back to the ET for full consideration on its merits.

The Perils of Dismissing a Senior Employee

Terminating the employment of senior personnel can be legally complex and costly and, even when professional advice is taken, things can go wrong. The point was made by a case concerning a consultancy group that dispensed with the services of its CEO in acrimonious circumstances.

Following the termination of his employment, the CEO launched proceedings against the group on the basis that it had not honoured his entitlements under a long-term incentive plan (LTIP). After receiving advice from a law firm, the group agreed to compromise his claim by paying him £1.35 million.

The group later sued the firm on the basis that its advice had in some respects been negligent. A number of those allegations were rejected, but a judge found that the firm had breached the duty of care it owed the group in failing to identify a payment in lieu of notice (PILON) clause in the CEO’s contract.

Had the group been advised about the effect of the PILON clause in respect of the vesting of the LTIP, it would have been in a position to negotiate the settlement of the CEO’s claim for a lesser sum. In those circumstances, the group was awarded £118,125 in damages. The facts of the case emerged as both the group and the firm were refused permission to appeal against those parts of the judge’s ruling that were adverse to them.

Employment Tribunals Bend Over Backwards to Ensure Fair Hearings

Employment Tribunals (ETs) are at the forefront of the battle to eradicate discrimination in all its forms from the workplace. It is obviously vital that they practice what they preach and that is all the more reason why they are anxious to ensure that even the most vulnerable complainants receive a fair hearing.

One case in point concerned an academic who suffered from severe mental health difficulties and claimed that he had endured disability discrimination, victimisation and unfair dismissal at the hands of a university. His complaints were dismissed by an ET, but he challenged that decision before the Employment Appeal Tribunal (EAT) on the basis that he had not been afforded a fair hearing.

He submitted that the ET should have taken it upon itself to postpone or adjourn the proceedings, in which he represented himself, when the extent of his mental health difficulties became apparent. He had broken down under cross-examination and, although he had been willing to continue, the ET had acceded to the university’s request to cut short the hearing and move straight to closing submissions.

In rejecting his appeal, however, the EAT noted that he had been aware of his right to seek a postponement or adjournment of the hearing, but had not done so. The ET had made appropriate adjustments to enable him to fully participate in the case until he broke down. The decision to bring his cross-examination to a premature end had if anything disadvantaged the university. He had still been able to present his case and, viewed overall, the hearing had been a fair one.

Employment Tribunals Can Appoint Litigation Friends – Landmark Decision

It has for a very long time been possible for vulnerable people to be represented in court by litigation friends so that they can have proper access to justice. Now, in a decision of general public importance, that right has for the first time been extended to proceedings before an Employment Tribunal (ET).

The case concerned a woman who had succeeded in automatic unfair dismissal and whistleblowing claims against her former employer. There was medical evidence that she suffered from post traumatic stress disorder and a moderate depressive illness, triggered by traumatic experiences that she had endured during her employment.

A further hearing was due to take place before an ET at which the amount of her compensation would be assessed. Her lawyers argued that, due to her psychiatric problems, she lacked the capacity to conduct the proceedings. The ET, however, refused to appoint a litigation friend on the basis that it had no power to do so.

In ruling upon her challenge to that decision, the Employment Appeal Tribunal (EAT) noted that neither the Employment Tribunals Act 1996 nor the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 conferred any express power to appoint litigation friends.

However, in allowing the woman’s appeal, the EAT found that the absence of such a power was incompatible with the common law duty of fairness and the woman’s human right to a fair hearing. Without a litigation friend, the woman and other vulnerable litigants in the same position would be prevented from participating in employment proceedings in any real sense.

The EAT recognised that ETs are creatures of statute and can exercise only those powers that are conferred on them by Parliament. However, when interpreted in accordance with fairness and human rights legislation, it found that the Regulations were broad enough to enable ETs to use their case management powers to appoint litigation friends. The case was remitted to the same ET for that to be done.

Because the case had raised novel issues of general public importance, the EAT had taken into account representations from the Law Society and the Secretary of State for Business, Energy and Industrial Strategy in reaching its decision.

Trade Union Induced Prison Officers to Breach Discipline – High Court Ruling

Certain key workers whose jobs are vital to the proper functioning of the Government are denied the right to take industrial action afforded to everyone else. Prison officers are amongst them and, in a guideline decision, the High Court took a robust approach in prioritising the needs of the state over individual interests.

PrisonThe case took place against the background of heavy cuts in prison funding that had resulted in the number of prison officers being reduced by about a third. Assaults and incidents of violence had increased and officers had been placed under great pressure, feeling diminished and undervalued in their work.

In those circumstances, the Prison Officers’ Association (POA) had issued a circular to its members which, amongst other things, stated that they should only attend their workplace during contracted hours, eschew voluntary tasks and embark on a course of withdrawal from an overtime scheme.

The POA argued that the circular did no more than encourage its members to stick to the letter of their contracts. However, the Ministry of Justice (MoJ) argued that it amounted to a breach of Section 127 of the Criminal Justice and Public Order Act 1994, which enshrines the ban on prison officers taking industrial action.

In upholding the MoJ’s arguments, the Court found that the circular amounted to an inducement to prison officers to withdraw services that they were contractually obliged to provide. On a true interpretation of the Act, they were precluded from withdrawing any services that they had provided before the circular was issued.

The POA argued that the purpose of the circular was to bring management to the negotiating table. However, the Court found that it had induced members to commit breaches of discipline that would be likely to generate a risk to the safety of both prisoners and staff. In the circumstances, the Court granted the MoJ declaratory relief, reflecting its decision, and issued a permanent injunction against the POA.