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A recent EAT decision makes it worth revisiting the meaning of regulation 4(9) in the Transfer of Undertaking (Protection of Employment) Regulations 2006:
Reg 4(9): Subject to regulation 9, where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.
This is usually seen as easier for an employee to show than constructive dismissal, which of course was a remedy available to employees under the pre-2006 regulations if it could be shown that the new employer was failing, or would fail, to keep to an essential term of the contract of employment. Within 4(9) however, it is simply enough to show that working conditions would change substantially such as to cause material detriment. This need not involve any contractual breach at all. Naturally there is a great deal of overlap.
In Tapere v South London & Maudsley NHS Trust [2009] UKEAT the employee’s employment was transferred from one NHS Trust to another. The transferee made it clear that following the transfer it would wish her to move from her old offices in Camberwell to the Bethlem Hospital in Beckenham. She wasn’t happy:
[The Claimant] was reluctant to move to work at the Bethlem in Beckenham as she believed that it would increase the journey time. She is a single mother and has to collect her child from school and be available till 8 a.m. when her child would be collected for school by taxi. She gave evidence that if she travelled via her old route of the A13 the journey time to Beckenham would be significantly longer – an additional 10 miles.
The transferee sought to instigate this change under a mobility clause. She resigned and claimed both constructive dismissal, on the basis that the mobility clause did not actually permit the change in location, and reg. 4(9), in that the change was a substantial change in working practices to her material detriment.
The Employment Tribunal found against her on both counts. I shan’t go into the discussion of the mobility clause here, of which there is much, but it is worth a read. Of interest however is the construction of “substantial change” and “material detriment”. The Tribunal had given rather scarce consideration to the terms, but had stated that it had looked at the matter objectively.
The EAT ruled that that the correct interpretation of detriment was that found in the discrimination caselaw. The EAT noted Shamoon v Royal Ulster Constabulary [2003] IRLR 285, in which Lord Scott followed the key decision of Chief Constable of the West Yorkshire Police v Khan [2001] IRLR 830. Lord Scott, at para 105:
‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment’, must be applied by considering the issue from the point of view of the victim. If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant, desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference, constituted ‘detriment’. He was being deprived of something that he reasonably wanted to have. And while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute ‘detriment’, a justified and reasonable sense of grievance about the decision may well do so.
So the correct approach is to consider whether the Claimant holds the view that he has been subjected to a detriment, then consider if he holds that view reasonable. The test is thus subjective, as one looks at the employee in particular. The consequences of this case is that the bar for reg. 4(9) dismissal remains low. I will review the law on mobility clauses in a later post.
This case demonstrates well the ‘purposive’ approach taken in construing regulations designed to implement European law. First, “working conditions” in TUPE does not mean “the conditions under which one works” but is to be interpreted far more widely. Second, the word material in this case does not connote physical materiality, it simply reinforces that the detriment must not be trivial or fanciful, which is of course usually dealt with by the word ’substantial’.
Finally it should be noted that the successful Appellent was represented by James Medhurst, who blogs about the case himself and has been kind enough to comment on this blog on occasion.
A Philadelphia trans woman was told more-or-less just that, being asked to provide a surgeon’s report and, most shockingly, photographs of her genitals before being allowed to use the women’s toilets. The Philiadelphia Gay News reports:
Irene Kudziela, branch manager of Manpower’s Pottsville office, allegedly told Blatt that a letter from her surgeon documenting her gender-reassignment surgery – along with a photograph of her genital area – would be necessary before she could return to Sapa.
Blatt, 28, said she found the request “repugnant” and “disgusting,” and declined to comply. She viewed the request as a form of sexual harassment, she added.
“I was shocked and disgusted,” Blatt said. “It felt like I was being reduced to a mere sex object. I was trying to work there in a dignified and private manner, but my dignity and privacy were constantly being violated.”
In addition to sexual harrassment, Blatt is bringing her case under disability discrimination laws: it would seem that Philly doesn’t provide protection based on gender reassignment. In the UK there is already specific protection against this sort of treatment under statute, and section 7 of the Equality Act, when enacted, will provide that:
A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing
physiological or other attributes of sex.
I needn’t add any more.
H/T to the Joe. My. God. Blog. Discussion as to whether or not she’s owed her s.86 minimum notice is welcome below!
Riam Dean’s disability discrimination claim against Abercrombie & Fitch alleged that she had been pulled from the shop floor back to the stockroom: her prosthetic arm didn’t accord with the company’s “look” policy.
The tribunal has found in her favour today, finding harrassment and failure to make reasonable adjustments. See the full circumstances of the caseat the link above. Miss Dean was awarded £7,800 for injury to feelings, £1,077.37 for loss of earnings, and £137.75 for (presumably) an unfair dismissal basic award.
Decisions such as this are almost run of the mill for A&F. The company has hit the headlines in the US for banishing a Dallas employee to the stockroom for scoring a zero in the the company’s “hierarchy of hotness”, and in 2004 it settled a class action lawsuit from ethnic minorities accusing it of discrimination in employment and in its marketing materials. The New York Times reported:
Eduardo Gonzalez, the lead plaintiff and a senior chemistry major at Stanford University, said that when he applied to an Abercrombie store in Santa Clara, Calif., managers urged him to apply for the overnight stocking crew. Noting that his application was rejected, he said that when a store manager interviewed him and 13 other applicants at once, the manager overwhelmingly favored the two white applicants.
…
In an unusual step, the settlement calls for Abercrombie to increase diversity not just in hiring and promotions, but also in its advertisements and catalogs, which have long featured models who were overwhelmingly white and who seemed to have stepped off the football field or out of fraternities or sororities. Plaintiffs’ lawyers said they insisted that the company agree to add more diversity to its marketing materials so as not to discourage minorities from applying for jobs.
Wondering about that today I visited Abercombie.com, and looked at the Picture Gallery. All ten models are white. The same goes for the images on the ‘Mens’, ‘Womens’ and ‘Jeans’. In fact, to find a single ethnic minority you have to head over to their Kids website, where both teenage models featured are of Asian origin. Given that the shots on the main site are all half-naked, and all sexually suggestive, and the teens are (understandably) head/shoulders fully clothed shots, you can’t help wonder at Abercrombie’s boldness at segregating their minorities into the ‘cute’ rather than ’sexy’ categories. For more invective about this vile organisation see Charon QC’s post back in June. All one can really do is hope that this whole experience has served Riam Dean well in her quest to become a lawyer.
And just for fun, check out the Top 11 diversity photoshop disasters.
A number of sources have picked up on the recent case in the EAT concerning Peninsula Business Services, and their (now successful) claim that an Employment Judge should have recused himself on the basis of apparent bias against them. By way of background, Peninsula is probably one of the biggest employment litigators in the country. They are one of many similar organisations, such as (off the top of my head) EEF, Qdos, Citation, Croner and RBS Mentor, where the organisation sells compliance and insurance packages to SMEs usually consisting of an insurance policy against tribunal claims by employees, to cover costs and awards, subject to employers adopting compliant HR documentation that they provide and running any potential employment problems past a helpline first.
There are clearly advantages and disadvantages to using an organisation such as this. The benefit is that for a very small organisation HR compliance is achieved with virtually no allocation of staff by the employer, and as long as the business is smart enough to check its disciplinaries, grievances and dismissals with the helpline then they can rest assured any claims will be funded by the insurer. This is particularly attractive in a field like employment where largely meritless claims by employees against employers that have genuinely done nothing wrong can often proceed to a full tribunal hearing, and traditional hourly-billing by a solicitor can easily produce a five figure irrecoverable bill for costs.
But the disadvantage is that it reduces control by the employer. Some small employers simply want to be able to sack whoever they want and then pay a solicitor to perform some damage limitation afterwards. I have heard some employers, probably unfairly, claim that as the helpline is the gateway to the insurance policy, they ‘won’t let you sack anyone’. And, like any business agreement, the costs can sometimes be high and subject to automatic renewal and tie-in periods.
In this case, Peninsula had two claims brought against it, both of which were dealt with by the same Employment Judge. He was part-time, spending the rest of his time as a partner in a firm of solicitors who had recently posted an advertisement containing the following text:
Employers: Do you want to…
Deal with a local firm whom you can see and talk to at any time and avoid having the potential risk of dealing with untrained and unqualified ‘consultants’ or inexperienced and unqualified call centre ‘operatives’? Avoid expensive and lengthy tie ins of 3 or 5 years and pay only for the professional services that you actually utilise, avoiding subsidising others because you have to pay a large lump sum each year for services you may never use?
In finding against Peninsula in both their claims, the EJ professed rather unjudicial astonishment and castigation of Peninsula’s apparent failure to comply with employment law:
We remind ourselves that Peninsula holds itself as the biggest employment law consultancy in the country. For such an organisation to flagrantly breach employment legislation is, frankly, astonishing. … Put simply, Peninsula did not practice what they preach. …However, the claimants did have a legitimate expectation that Peninsula would comply with those standards of behaviour. This is all the more so where Peninsula hold themselves out as being an “Employer of Excellence”, (Peninsula having awarded themselves that accolade).
Of course, the appeal against the finding on the basis of apparent bias succeeded. We should remind ourselves of the basic test – “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” – Magill v. Weeks [2001] UKHL 67. In addition:
If there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predelictions and bring an objective judgment to bear on the issues before him, a real danger of bias may be thought to arise. … If in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. (Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004).
If we put ourselves in the position of the fair-minded and informed observer, we can see that there is a real possibility that the EJ’s business prejudice against Peninsula and their ilk has infected his objectivity towards them.
It should also be noted that in the second of the cases under appeal the EAT found no prejudice due to the length of time that had elapsed, and given that the EJ was, by then, full time. Also, where a lay member in the latter case had (rightly) recused himself there was no inherent objection to the case continuing with the EJ alone and the other lay member, even though the case was part-heard and they had had the benefit of his observations.
Full judgment: Peninsula Business Services Ltd v Rees & Ors [2009] UKEAT 0333_08_2307 (23 July 2009)
Acas have released their annual report, and many of the statistics make for interesting reading.
It shows that the number 0f claims referred to them by the Employment Tribunals fell overall from 151,249 in 2007/2008 to 138,535 in 2008/2009 (that figure refers to claims to particular jurisdictions, rather than the number of ET1s). Six thousand less of these cases included the Equal Pay jurisdiction than last year, but the notes immediately quash any enthusiasm about that figure however:
Very few equal pay/sex discrimination cases brought against NHS employers are included in these figures because they have not been passed to Acas for conciliation by the Tribunals unless the parties have requested conciliation or there appears to be a reasonable prospect of success in conciliation. In addition, Acas received 49,675 cases for conciliation where no case had yet been submitted to an Employment Tribunal, but where one was likely to be if the matter was not resolved. The vast majority of these cases (47,290) related to potential claims against local authorities in regard to equal pay.
Notwithstanding that, Equal Pay claims still constitute a third of the primary claims behind issued proceedings in the tribunal. In 2007/2008 28,767 claims were referred containing a claim under working time regulations, but the following year this fell to a mere 17,844. Claims of unfair dismissal however rose from 43,241 to 55,000, apparently an exact figure. If anyone can provide some interpretation or reasoning behind those changes I’d be interested to hear it.
Another statistic is that Acas answered their national helpline 726,306 times throughout the year, and each one of those calls resulting in an answered query cost it £12.12. Of course, the recession didn’t really start to claim a significant number of jobs until the beginning of 2009, so one shudders to think at the volume 2009/2010 will bring if the economic downturn persists in causing redundancies throughout the year.
Acas’s Pre-Claim Conciliation service also launched in April 2009, where free conciliation is provided between employer and employee before proceedings are issued. It seems to have been a success, over half of conciliations being successful, and each of those saving everyone (both parties and the taxpayer) a total of around £1,000.
I’d be interested to hear your views on Acas at present, it’s been a couple of years since (as a solicitor) I was routinely on the phone to conciliators over claims, as a barrister I tend to pick up cases before conciliation starts or after it’s failed. I remember finding the service excellent mostly, but is it being stretched by volume and standards slipping? Let me know.
Link to Acas Annual Report & Accounts 2008/09
…if you want your legal personality to be an express term.
Employers should note the cautionary tale of Mr & Mrs McVeigh, who appealed to the EAT on a tribunal’s determination that they personally were the employers of their dismissed employee Christine Livingstone. In the right circumstances bringing a claim against two real people can be preferable to proceeding against their small limited company. The question is one of assets available for enforcement, proprietors of businesses often have cars, houses, cottages in the Cotswolds and so on, whereas the limited company might own some desks and chairs.
Mr & Mrs McVeigh had incorporated their limited company, and no doubt their accountant, landlord and taxman respected the fact. However, they completely failed to identify it on any documentation, including the contract of employment, correspondence and payslips. The name of the company only finally surfaced on a P60 produced months late and after proceedings had started.
Lady Smith gives a good summary of whether the question of personality is fact, law, or both:
The question of whether or not a person is employed by A or B is essentially a question of law: who were the parties to the contract of employment? However, answering it will often involve the assessment and evaluation of fact. It is a matter of identifying what was agreed between whom at the commencement of the contract. There may be documentary evidence about that. There may be oral evidence about it. It may a matter of inference from documentary and/or oral evidence. If the parties’ relationship at the outset is recorded in a document then it will be a matter of construing that document (a question of law) and then considering whether there is any other evidence which shows that the parties’ intention at that time was not in fact as the document indicates it was. Thus, where there is evidence in addition to a documentary record of the initial contract, then it is a matter of considering the document and those other facts together (a mixed question of fact and law: Clifford) or it may, depending on the circumstances, be a pure question of fact.
Good HR practices can circumvent these problems, and by that I mean basic research and common sense rather than anything complicated or requiring specialist assistance. The full case can be found here: McVeigh & Anor v Livingstone [2009] UKEAT.
Those of you who enjoyed my post 18 months ago on celebrity egotist, hypocrite and pregnant-chef sacker Trudie Styler might have been wondering what she’s been up to since.
Don’t worry! The wickedly ascerbic Marina Hyde of the Guardian’s Lost in Showbiz will give you a run down:
To those of you who have written asking, “Can we have Trudie every week?”, the answer has always been a regretful no. We can only have Trudie when she does something adorable, like fly an entourage including her hairdresser by private jet from New York to Washington so she can go to a party, or make the 80-mile trip to the house of fellow environmentalist Zac Goldsmith by helicopter.
http://www.guardian.co.uk/lifeandstyle/lostinshowbiz/2009/jul/17/lost-in-showbiz-trudie-styler
Legal Action Group magazine has an interesting article on Legal Disciplinary Partnerships in which it derides the Law Gazette for playing one-upmanship with the Bar on their relative speed of reform to meet the changing world of legal service provision, and at the same time criticises the bar for being so slow (h/t to Pink Tape).
Every word written there is true, and barristers and solicitors need to read it, and join forces. Currently the debate is driven by sectors of the law where solicitors and barristers still enjoy their monopoly on access to the courts, but practitioners in employment will be aware that the number of people in the system who are either is diminishing. In many tribunal hearings the Respondent is represented by a “consultant” from Peninsula or some similar organisation, and the Claimant is represented by a charity, law centre, another “consultant” from an insurance services provider, or no-one at all. The Employment Judge is the only legally qualified person in the room. This is a vision of the future in other legal areas – just ask a magistrates’ court clerk what she thinks the future holds (I recently did at a party, and got my ear bent).
If solicitors and barristers are tricked, whether by the market or the LSC, into thinking it’s a two-horse race then we’ll both lose. In fact, we face the Prisoner’s Dilemma – we’ll take a hit, but how big a hit will our fear and egos make us take?
As the Law21 blog has long evangelised, solicitors and barristers need to trade on their expertise and image (still relatively high) instead of the exclusivity in what they do (rapidly diminishing). We need to be entrepreneurial. Read author Jordan Furlong’s latest prophecy of doom here – much like climate change we can’t prove 100% that it’s something that will happen and that we can change, but we’d be nuts not to treat it as such.
EDIT – Charon QC did a recent podcast on law firm marketing – find it here.
The new Supreme Court, set to open for business in October, has been showing journalists round the refurbished Middlesex Guildhall.
The BBC has lots of photographs, well seven anyway, whilst the Times reckons the building lacks the ‘wow’ factor. Personally, I like the new building, but would appreciate some better decisions than Malcolm being reached once the Justices are in residence.
H/T to the Property Law Blog
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