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.

Company Fined £1.8 Million after Staff Exposed to Legionnaires Disease Risk

Employers who fail to ensure the health and safety of their workers can expect to receive financial penalties that are designed to hurt. In one case that proved the point, a security company that exposed its staff to a grave risk of contracting Legionnaires disease was fined £1.8 million.

factoryA local authority launched an investigation after one the company’s employees fell ill with the potentially fatal condition, which is generally caused by inhaling bacteria in tiny droplets of water. Air conditioning and washroom facilities are favourable environments for the bug to breed.

It could not be established with certainty that the man had become infected at work, but investigators uncovered numerous failures by the company to maintain its water-based systems. Monitoring and testing of the systems was erratic and staff had received inadequate training. Despite extensive guidance and advice from the council and health and safety consultants, there were no up-to-date policies or suitable and sufficient risk assessments in place.

The company received the financial penalty, and was also ordered to pay £33,700 in prosecution costs, after it pleaded guilty to two offences contrary to the Health and Safety at Work etc. Act 1974. In challenging the fine before the Court of Appeal, the company pointed out that significant improvements had since been made to its premises, which were now considered to be a model of their kind. It was not the case that it did not care about its employees’ welfare.

In dismissing the appeal, however, the Court noted that the level of culpability was extremely high and that the breaches were flagrant. The company had an annual turnover of about £250 million, employing 200 staff at the relevant premises alone, and the penalty imposed could not be viewed as manifestly excessive.

Breast Cancer Survivor Compensated for Workplace Mistreatment

When an employee falls ill, it is absolutely vital to avoid discrimination and treat them with sensitivity. In one case where that certainly failed to happen, a breast cancer sufferer won substantial compensation from her former employer.

The woman worked as PA for the chief executive of a property company. After her condition was diagnosed, she was initially treated with sympathy and concern and flexible working arrangements were put in place to enable her to undergo treatment. Relations with her boss subsequently frayed, however, and a dispute developed as to whether or not she should go on sick leave, at a reduced rate of pay.

She ultimately resigned and, after she lodged a complaint, an Employment Tribunal (ET) found that she had suffered three incidents of harassment and disability discrimination within the meaning of Section 15 of the Equality Act 2010.

Her flexible working arrangements had been removed without proper consultation or discussion and she had been required to go on sick leave for three to four months, during which she would receive statutory sick pay. She had also been required to accept a different role within the company, at a reduced salary.

Medical evidence established that she had suffered psychiatric injury as a result of her treatment and in that respect she was awarded £7,500 in compensation. She was also awarded £16,000 for injury to her feelings. After interest, financial losses and expenses were taken into account, the total award came to £47,701.

Controversial Employment Tribunal Fees Struck Down by Supreme Court

In a resounding decision that emphasised the right of everyone to have affordable access to the justice system, the much criticised fees levied on complainants by the Employment Tribunals and the Employment Appeal Tribunal have been struck down as unlawful by the Supreme Court.

The fees – which range from £390 for straightforward cases to £1,200 for more complex ones – have been a source of great controversy since their introduction in 2013. Trade union Unison mounted an unsuccessful judicial review challenge to them but has now triumphed in its appeal.

The Court found that the fees are unlawful, both under domestic and European law, in that they prevent access to justice. That was a constitutional right inherent in the rule of law and tribunals could not be viewed merely as providing a service of value to those who bring claims before them.

The fees charged in less complex cases bore no relationship to the amounts sought and therefore acted as a deterrent to claims for modest sums or non-monetary relief. Many such claims could be regarded as futile or irrational in that the fees exceeded the sums claimed. The introduction of the fees had led to a dramatic and sustained fall in the number of claims, particularly low-value claims, and they were the most frequently cited reason for not submitting a claim.

The Court noted that, in many cases, those on low or middle incomes could only pay the fees by making sacrifices and foregoing a reasonable standard of living. In those circumstances, they could not be regarded as affordable. The fees also contravened EU law guarantees of an effective remedy before a tribunal and imposed disproportionate limitations on the enforcement of EU employment rights.

The fees were also indirectly discriminatory, within the meaning of the Equality Act 2010, because the higher fees for more complex claims put women at a particular disadvantage. The evidence showed that a higher proportion of women than men brought such claims. The higher fees did not correspond to a higher workload being placed on tribunals and acted as an equal deterrent to unmeritorious and meritorious claims.

The Ministry of Justice has said that the Government will take immediate steps to stop charging ET fees and refund payments made since 2013.

Detectives Penalised for Whistleblowing Awarded Six Figure Compensation

Whistleblowers perform a public service and the consequences of penalising them for their activities can be severe. In one case, two police officers who were removed from undercover duties after they made repeated and serious complaints about the management of their unit were awarded a six-figure sum in compensation.

Both officers, one of whom had almost 20 years’ experience, were moved to civilian desk jobs shortly after lodging their complaints. Their employer argued that one of them had been transferred due to his social links to a corrupt officer. The other was said to have been moved after he decorated himself with a small tattoo that made him unsuitable for undercover work.

However, an Employment Tribunal (ET) found that their complaints had materially influenced the decision to transfer them. They had been subjected to detrimental treatment for whistleblowing. They were between them awarded £41,800 for the injury caused to their feelings. Together with interest, and compensation for almost 2,500 hours of lost overtime, their total awards exceeded £100,000.

Piqued by an Employee’s Departure? Don’t Do Anything Hasty!

The departure of trusted workers who set up in competition is a frequent source of fury to employers. However, as one High Court libel case showed, the sensible course is to take legal advice rather than resort to hasty action.

The case concerned two men who were formerly employed by a company that produced safety products for commercial vehicles and machinery. After leaving their jobs, they chose to pursue other business opportunities in the same market.

An employee of the company sent an email to a number of its customers, contacts and suppliers. Although the two men were not named, they were well known to many of the email’s recipients. They were identifiable as the targets of accusations that they were guilty of theft and fraud against the company. The email, which was likely to have achieved a wide audience via a grapevine effect, also stated that a police investigation was ongoing from which actions would arise in due course.

After the men launched libel proceedings, the company accepted that the allegations made in the email were untrue and defamatory. It agreed to pay compensation to each of them and offered sincere and unqualified apologies for the distress and embarrassment that they had endured. The company also agreed to pay their legal costs and, in order to minimise the harm to their reputations, to circulate its retraction of the allegations to all those who had received the email.

Can Civil Servants Step Into Ministers’ Shoes? High Court Test Case

To what extent can civil servants stand in the shoes of their ministerial masters and make decisions on their behalf? The High Court tackled that issue in an important test case concerning the criminal prosecution of an employer who was accused of making 84 warehouse staff redundant without informing Central Government.

By Section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), the employer was obliged to notify the Secretary of State for Business, Innovation and Skills of any proposal to make 20 or more employees redundant. Criminal proceedings were instituted against him on the basis that he had failed to do so and his arguments that the prosecution was a nullity were rejected by a judge.

The decision to prosecute was taken by a civil servant on behalf of the minister. It was not a matter of agency or delegation, but one of devolution of the decision-making role to the official as the alter ego of the minister. The employer submitted that, on a true construction of TULRCA, the decision could only lawfully have been taken by the minister in person or by a suitably qualified official to whom he had specifically delegated the power to initiate proceedings.

In dismissing his appeal, however, the Court noted that the functions given to ministers are so multifarious that they cannot possibly attend to them all personally. The wording of TULRCA – which required the relevant decision to be taken only by or with the consent of the Secretary of State – was sufficiently broad to enable civil servants to take such decisions with the minister’s specific consent.

The Court certified that the case had raised an issue of general public importance, but left it to the Supreme Court to decide whether or not to hear any further appeal by the employer.

Whistleblowing in the Public Interest – Court of Appeal Test Case

Workplace whistleblowers only enjoy the protection of the law if the disclosures they make are in the public interest – but what exactly does that mean? The Court of Appeal has analysed that issue for the first time in a vital test case.

The case concerned an estate agent who feared that his earnings would be gravely depleted by a change in his employer’s bonus structure, whereby payments would be linked to profits rather than gross fee income. He was dismissed after reporting his suspicions that the agency’s internal accounts were being deliberately manipulated in such a way as to minimise profits, and thus bonuses.

The employer accepted that he had been unfairly dismissed in the ordinary sense. However, an Employment Tribunal (ET) also upheld his claim that he had been penalised for whistleblowing and that his dismissal was thus automatically unfair within the meaning of the Employment Rights Act 1996. That decision was subsequently upheld by the Employment Appeal Tribunal.

In challenging the latter decision, the employer argued that the relevant disclosures had been made for the man’s own benefit and were thus not in the public interest. However, his lawyers pointed out that about 100 of his colleagues were in the same boat as him and that his disclosures had the potential to benefit them as well. The employer responded that a mere multiplicity of workers sharing the same interest was not enough to meet the public interest requirement.

In ruling on the case, the Court noted that the particular issue in the appeal was whether a disclosure which is in the private interest of the worker making it becomes in the public interest simply because it serves the private interests of other workers as well.

The Court rejected arguments put forward by the charity Public Concern at Work – who were permitted to appear as an intervener in the case – that any disclosure is in the public interest if it is in the interests of anyone else besides the worker who makes it. Such an approach would be mechanistic and require the making of artificial distinctions.

However, the Court noted that the public interest test would clearly be met by the example of a doctor disclosing pay irregularities across the entire NHS workforce of over a million employees. Where a disclosure benefited the person who made it, there could nevertheless be features of the case that made it reasonable to view it as being in the public interest.

The correct approach was therefore fact sensitive and depended on the particular circumstances of each case. The Court acknowledged that such a test did not create a bright line but depended on a nuanced approach. However, applying that principle to the facts of the case, the Court found that the disclosures made were protected and dismissed the employer’s appeal. It noted in particular that the employer was a substantial and prominent business and that the disclosures concerned alleged deliberate misstatements in its accounts to the tune of up to £3 million.

Pay Secrecy – What Can Employers Do?

 

It has been reported in the news that the Gender pay gap and the treatment of pregnant women has continued to be detrimental towards female workers and employees.

One thing the Government is trying to ensure is that the gender pay gap is reduced and this has been the Government’s intention since the 1970 Equal Pay Act was brought in.

It is now some 46 years old and yet still some employers will pay men and women different wages or put them on different contractual terms or even apply differently the terms of the Contracts to each person, whether on purpose or by accident.

What is also quite interesting is that a number of employers still seek to rely upon “pay secrecy” to try and ensure that their employees do not know what their fellow employees are paid.

It is possible for employers to require employees to keep their pay rates and terms confidential from those outside of the workplace, however the Equality Act 2010 makes it unlawful to prevent employees from having discussions to establish if there are differences in pay and contractual terms.

It should be noted that if an employer loses an Equal Pay Claim, the Employment Tribunal, since the 1 October 2014, have the power to force the employer to conduct an Equal Pay Audit and publish the results.

If such a situation does occur it is likely that the fallout for the employer will be significant and unlikely that any insurance that you have in place will cover the losses. As this type of claim is routed in Contract Law then the loss of earnings can stem back 6 years. Therefore not only will it be a blow for moral if there is an Equal Pay Claim that is successful against an employer, but also financially detrimental across the board in view of the powers the Employment Tribunal can utilise to force an employer to undertake an Equal Pay Audit which in itself, will be time consuming and costly.

The simplest way to ensure you are not caught out by this sort of situation or you are not faced with such claims, is to make sure your policies and procedures are clear, that you have an Equality Policy which operates throughout the business from top to bottom and that all contractual rates of pay are the same regardless of gender, race or any other reason.

The only reason for differentiating pay will be if the employer can establish there is a genuine factor i.e. experience, skill, qualification or similar factor, which would render the pay scales different regardless of sex.

This is a tricky area to navigate but not one that is impossible to get right and ensure you avoid being on the wrong end of an equal pay or discrimination claim.

If you require assistance or would like to discuss this further, please call one of our Employment Specialists on 01530 835041