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.

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)

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

(i) the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably; or

(ii) the bringing or conducting of the proceedings by the paying party has been misconceived.

The above basis is only the first stage however, and the tribunal then has a discretion on whether or not to order costs. Certainly if (ii) applies there will still be no costs order in the vast majority of cases. Whilst an employment lawyer might look at an ET1 and ET3 and immediately assess the chances of the claim succeeding as low, the Tribunal will always have in mind that the Tribunal is intended to be both a costs free environment in the majority of cases, and also that it should provide  a suitable forum for litigants in person to have their complaints heard.

Mathew is an exception, and a rare case of the EAT overturning a Tribunal’s decision not to order costs against a Claimant following an unsuccessful claim. Mrs Mathew, facing a disciplinary, made an allegation that her manager had called her a ‘black bitch’, and claimed race discrimination. The Tribunal found

“We looked at all the surrounding circumstances and the background to this case and preferred Miss Rankin’s evidence over Mrs Mathew’s evidence. If the claimant had been called “a black bitch” she would not have waited for nearly three weeks to raise the issue and done so only because it looked as though she herself might be taken through a disciplinary process. She raised the issue on 6 June 2007 when she was resigning. Such a phrase is so offensive it is incomprehensible that she would not have made her objection much sooner. Mrs Mathew had no explanation for the delay.”

It then went on to order no costs due to it believing the Claimant to have a ‘genuine’ belief in her claim. This reason has no logic to it – if the phrase wasn’t said then Mrs Mathew made it up and lied about it. Where the central thrust of a claim is based on a lie, the EAT decided it was perverse not to order costs. Expect this case to be waved around by both sides in costs applications, as the Tribunal (like many courts) tries to deftly judge one side to be the winner without calling the other side a big fibber.

Verma confirms that it is acceptable to order costs on an unsuccessful strike-out application by a Respondent, and furthermore describes as ‘perverse’ the first-instance decision to allow counsel’s fee at the hearing but not the solicitors’ costs in preparing for it. The Employment Judge seems to have based his decision on the basis that the work done prior to the hearing would have happened in any event, which is clearly wrong. I have to say that I have myself seen parts of costs allowed and others excluded arbitrarily, and this decision does at any rate require Employment Judges to apply some reasoning to the costs orders they make.

Where they are of use to the employee is where they had long contracts with significant benefits, and where they would find re-employment difficult or impractical. Obviously these points can still be cured with money, but being put back into the same job (or one like it) is still a decision that some employees take.

An order for reinstatement puts the employee back in the same job from which he was dismissed, his original contract is revived and it is in effect as if the dismissal had never occurred.  Where this is impractical the tribunal can instead order re-engagement, where the employer must re-employ the employee on such terms as it thinks just. Therefore, if the circumstances of the dismissal had alienated the employee from his particular team, the tribunal could order appointment to a different position within the employer. ‘Re-employment’ is used as an umbrella term for both orders. An employer cannot be compelled to comply with a re-employment order, but if it does not comply then additional compensation will be awarded of between 26 and 52 weeks pay. Because of this, threats of applications for re-employment are used far more often than they are meant, in order to leverage larger settlement offers from employers who would rather cut off their own nose than re-employ someone they spent so much time and effort removing from the company.

In the recent EAT case of Central & North West London NHS Foundation Trust v Abimbola [2009] UKEAT HHJ Peter Clarke runs through what a tribunal must consider if it is asked for a re-employment order. The relevant law comes from s116 of the Employment Rights Act 1996:

116 Choice of order and its terms
(1)In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account-
(a)whether the complainant wishes to be reinstated,
(b)whether it is practicable for the employer to comply with an order for reinstatement, and
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
(2)If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3)In so doing the tribunal shall take into account-
(a)any wish expressed by the complainant as to the nature of the order to be made,
(b)whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.

This case was concerned with that practicality requirement. The Claimant, a psychiatric nurse, had been accused of holding a troublesome patient in a headlock. It was common ground that the Respondent NHS Trust had a genuine belief that the incident had occurred, and that dismissal was a reasonable response to that belief. The Tribunal found that the dismissal was unfair as the employer did not have reasonable grounds for that genuine belief. It also that there had been no contribution to the dismissal by the employee. It ordered reinstatement.

In short, the EAT overturned the reinstatement order because the genuine belief held by the employer as to the employee’s conduct rendered it impractical to put him in such a trustworthy post. The logic is that employment requires mutual trust and confidence and the employer simply could not repose such trust and confidence in the employee. In doing so it followed a previous similar decision in ILEA v Gravett [1988] IRLR 497.

One other item of note from this judgment is that the tribunal can take note of previous unproven allegations in determining the issue of trust and practicability, whereas these are usually disregarded for the purposes of the unfair dismissal itself.

In summary, they report that the percentage of cases which proceed to a full hearing that result in a costs order against the Claimant is less than 1%, and that the majority of these are for figures significantly less than £1,000.

Have a read.

Of course, the statistic we can never know is in how many cases that proceed to a hearing is a warning on costs issued by the Respondent’s representative? Somewhat higher methinks…

If you are in person and on the receiving end of a letter warning you of a costs application, perhaps accompanied by some terrifying schedule, then treat it as a warning to do what you should be doing at all times – taking an objective look at your case to see if there is a prospect of success. If your claim is one that might succeed, and your conduct of the litigation has been reasonable, then the very broad view is that you don’t need to worry too much about costs.

Indeed, the language of Article 6 refers to ‘determination of civil rights and obligations’ when referring to the need for an impartial tribunal, and so on. Some new areas risk blurring the lines: there are now provisions for workers to be legally prevented for working with children, in schools, and with vulnerable adults where concerns over their behaviour has come to light. In this situation the effect of the disciplinary proceedings can be said to have consequences that go further than the relationship between the employer and employee. 

In the case of G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin), a teacher was accused of sexual impropriety with a 15 year old, involving a breach of trust. He was found by a disciplinary panel to have been in breach of trust, and the case referred to the Secretary of State to see if a direction should be made forbidding him from working in education. He was refused legal representation at the meeting. He challenged the validity of the meeting by judicial review, claiming that under Article 6 the proceedings were effectively criminal proceedings given the gravity of the allegations and the consequences of adverse findings. In the alternative, he claimed that even were the proceedings civil then they were of sufficient seriousness to require a right of legal represenation under article 6. The High Court found:

In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant’s future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.

It is important to realise that direct enforcement of human rights legislation, and judicial review proceedings at all for that matter, is only possible against public sector employers. Even so, this ruling opens the way for a considerable widening in what procedural safeguards must be put in place for more serious disciplinary cases.

But god forbid a service that works well is just left to get on with it. The Contracting Out (Administrative Work of Tribunals) Order 2009 SI 2009/121 enables the Lord Chancellor to contract out the administrative functions of: 

1. the First-tier Tribunal;
2. the Upper Tribunal; 
3. employment tribunals;
4. the Employment Appeal Tribunal; and
5. the Asylum and Immigration Tribunal.

Oh. Joy.

So how wonderful to arrive at the hearing of the claim, get the original document in the employer’s witness’s hands and say:

Did you complete this form in June 2007 Mr Smith?

Yes.

Certain?

Yes.

You didn’t fill it in afterwards?

Certainly not.

You’ll see Mr Smith that there’s some tippex on the original pre-printed date on the proforma, and you’ve written 2007.

Er, yes.

Could you just hold the document up to the light and tell me what year is pre-printed on the form?

[pause] 2008

Would you like to rethink your answer to my question on when you filled the form in?

Erm, I guess I could have printed a lot of 2008 forms in advance.

But you didn’t did you?

Well, no.

Surely a candidate for a litigation version of the Darwin Awards. If you’re going to perpetrate a fraud, forgery, or even just a bit of a fib, at least think it through first.

The same can be said of Lucille Hester of Dallas, who has a letter she claims to have been given in 1999 by her half-brother who died in 2002. Such a shame the letter is typed in Calibri, invented in 2003 specifically to be the default font in Office 2007, not released until 2006. Read the news report here.

Toulson LJ states:

It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.

1. First, the majority of legislation is secondary legislation.
2. Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission’s Report on Post-Legislative Scrutiny, (2006) Law Com 302, BAILII: [2006] EWLC 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.
3. Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
4. Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.

That case concerned confiscation orders, but let’s apply the principle to employment law. Remember, if you’re an employee presenting a case in the employment tribunal you do not have recourse to any legal aid. The principle is that it is a forum in which you can represent yourself. But can you look up the law that applies to your case? The only port of call for Joe Public is the government’s own information sites, OPSI and the Statute Law Database. So our imaginary Claimant looks up the Employment Rights Act 1996, in which most of our employment laws are found. But what does he find?

So we have a copy of the Act, but without the last five years’ worth of updates. Indeed, the SLD version even goes straight from s98 to s99 – but as we all know this particular Act now sports a shameful ss98ZA – 98ZH, s98A and s98B. Hilariously, the dispute resolution regulations will have been introduced, failed, and been repealed without the SLD text being troubled at any point.

So the brief answer is that the unrepresented Claimant can’t do any meaningful legal research using free resources. Given the complexity of the law, the availability of costs orders where a claim is misconceived, and the unavailability of legal aid, I wonder if there are Article 6 implications. Refusal of legal aid where it is crucial to the presentation of a party’s case can constitute interference with Article 6 rights. One even has to wonder whether ignorance of the law being no excuse is compatible with our legislation being impossible to decipher. The now oft-quoted preface to Archbold 2009 states in relation to criminal law:

It has been a recurring theme of the preface to this work that there is far too much criminal legislation. The willingness of the Labour Government to continue its practice of legislating by trial and error has shown no signs of abating even in its eleventh year in office… The state of the criminal statute book is a disgrace. The Criminal Justice and Immigration Act 2008 is the usual hotchpotch of measures, with no theme, with much of the detail tucked away from close scrutiny in the schedules, and consisting in large part of textual amendment to earlier legislation. Much of the amendment is by way of undoing this Government’s earlier legislation.

This issue is a timebomb. Concerned practictioners and campaigners could do worse than visit Nick Holmes’ page for the Free Legal Web project.