Message from the Editor,
Welcome back to the new look 'Five from 5', I hope all of our readers enjoyed the summer vacation. This free bi-monthly employment law bulletin is created by the employment team at 5 Essex Court in association with Bloomsbury.
This month's bulletin contains five short articles on (i) shared parental leave and indirect sex discrimination; (ii) amending discrimination claims; (iii) the availability of injury to feelings awards; (iv) the 'last straw' doctrine in constructive dismissal cases; and (v) communication of dismissal and the effective date of termination.
The editor continues to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team whose members include those appointed by the Attorney General to represent the Crown.
I hope that the bulletin will continue to be an invaluable resource to recipients and anyone wishing to join the mailing list should email the team at email@example.com. Alternatively, should you wish to take your name off the mailing list, you can do so by clicking on the link at the bottom of this bulletin.
A failure to enhance shared parental pay could amount to indirect discrimination on the grounds of sex
In Hextall v Chief Constable of Leicestershire Police UKEAT/0139/17/DA, the Respondent provided 18 weeks’ full pay to mothers on maternity leave as an enhanced contractual benefit, whereas shared parental pay (for mothers or fathers) was paid at only the statutory rate.
Mr Hextall complained of indirect sex discrimination on the grounds that the policies substantially disadvantaged new fathers (i.e. men). He lost at first instance.
Following Mr Hextall’s appeal to the EAT, a number of errors were identified in the ET’s reasons. In particular, Mrs Justice Slade determined that the effect of a parental leave policy of providing only the statutory minimum pay might discourage men from taking shared parental leave (as they don’t have access to the higher enhanced rate available to mothers on maternity leave).
The matter was remitted back to the ET for redetermination, which is to include an analysis of the impact of the policy.
This decision leaves open the possibility that a failure to enhance shared parental pay could be an example of indirect discrimination.
The EAT went on to remind us of the necessary ingredients for a successful claim for indirect discrimination:
- Identify the provision, criterion or practice (PCP) said to be discriminatory;
- Demonstrate that the PCP puts persons with whom the Claimant shares the relevant protected characteristic at a particular disadvantage when compared with persons with whom the Claimant does not share it;
Finally, where a comparative disadvantage is demonstrated, it is for the employer to demonstrate that it is objectively justified.
Amending Claims of Discrimination in the Employment Tribunal
The Selkent principles applicable to applications to amend claims are well known. They are summarised in the Presidential Guidance on General Case Management (2014) as follows:
The tribunal must carry out a careful balancing exercise of all of the relevant factors, having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment. Relevant factors include:
- The nature of the amendment to be made. Is it a minor matter or a substantial alteration, amounting to a new cause of action?
- Time limits. If a new cause of action is intended by way of amendment, the tribunal must [emphasis added] consider whether the new complaint is out of time and, if so, whether the time limit should be extended.
- The timing and manner of the application. Allowing an application is an exercise of discretion. A party will need to show why the application was not made earlier, and why it is being made at that time.
Factor (2) is particularly problematic. How is the apparently mandatory requirement to decide time issues to be applied in discrimination claims, where the answer to the question may depend on a detailed factual enquiry as to whether there are just and equitable grounds for extending time?
This issue was considered in Galilee v Commissioner of Police of the Metropolis  ICR 634, where the claimant had applied to amend to make new claims of discrimination which were potentially time-barred at the date of the application. Judge Hand QC reviewed the authorities and held that the doctrine of “relation back” did not apply to claims in the tribunal, such that an amended claim took effect from the date when permission is granted, not the date of the original claim.
Furthermore, he held that the Selkent guidance should not be applied in a rigid and inflexible way so as to create an invariable and mandatory rule that all out of time issues must be definitively decided before permission to amend can be considered. Recognising that there would be many cases in which it would not be possible to decide whether there were just and equitable grounds for extending time without hearing evidence (perhaps all of the evidence), he held that permission to amend could precede decisions as to whether any new claim raised by the amendment was out of time.
Respondents can draw comfort from the fact that late amendments to claims will not be deemed made at the date of the original claim for limitation purposes when permission is granted. On the other hand, from a claimant’s perspective, this decision may well mean that employment judges are more prepared to allow amendments to be made at preliminary hearings, in the knowledge that they don’t definitively have to decide time points at that stage.
Injury to Feelings Spreads its Wings
Victoria von Wachter
We have become used to the concept of awards for injury to feelings being made in discrimination cases including harassment and victimisation. This much has been the norm for decades.
More recently claims pursuant to s47B of the Employment Rights Act 1996 (ERA) – also known as whistleblowing claims have attracted injury to feelings award (Virgo Fidelis Senior School v Boyle 2004 ICR 1210).
Indeed the whole of Part V of the ERA makes it unlawful to subject employees to a detriment for asserting their rights for a range of reasons including whistleblowing, time off for study, health and safety, leave for family reasons, flexible working to name just a few.
The recent case of South Yorkshire Fire and Rescue v Stevie Mansell and OR’s (EAT 0151/17) marks a further milestone in the development of remedies in employment cases.
The case itself is interesting as it deals with a successful Working Time Regulations claim by firefighters. In that case an award for injury to feelings was made for detriment for asserting rights under the Working Time Regulations which are also covered by Part V ERA.
The EAT took the view that none of the areas that are the subject of Part V ERA could be excluded from a potential award for injury to feelings if the claimant had been subjected to a detriment for asserting rights pursuant to that area of the law.
Of course the EAT was careful to point out that just because an award could be made did not mean that it should be made and that as always this was fact sensitive. However, the scope of this potentially expensive area of award has now broadened considerably.
Employees can rely upon a previously affirmed repudiatory breach of contract in a last straw constructive dismissal case
In Kaur v Leeds Teaching Hospitals NHS Trust, Ms Kaur was employed by the Trust as a nurse. Upon her resignation she brought an unfair (constructive) dismissal claim. She stated that from the early days of her employment she was subject to unjustified performance complaints. Separately, she considered that she had been bullied since 2012. Another serious incident took place in April 2013 when the Claimant alleged that she had been assaulted. To cap it all, the Claimant was given a final written warning for her part in the alleged assault. The Claimant appealed unsuccessfully against her disciplinary sanction and resigned the day after her appeal was rejected (16 July 2014).
Her resignation letter referred to the alleged assault in April 2013 as the 'last straw' and she said events were compounded by the Respondent’s decision in the disciplinary process that followed.
The Tribunal Judge struck out her claim at a preliminary hearing as he considered the Claimant had affirmed the contract by remaining employed for 15 months after the alleged 'last straw' in April 2013. He also found that the Claimant had no reasonable prospects of making good her criticisms of the disciplinary process.
The Court of Appeal set out a helpful summary of the law on constructive dismissal. Underhill LJ noted that the authorities explicitly state that an employee who is the victim of a continuing breach is entitled to rely on the totality of the employers’ acts, notwithstanding a prior affirmation.
A final straw may be relatively insignificant (although cannot be utterly trivial or innocuous). If an employee soldiers on where the employer’s behaviour has crossed the threshold, they will have been taken to have affirmed the breach, but if there is a further act (which is capable of further contributing to the breach), that act essentially revives the employee’s right to rely on the series of earlier acts.
The Court of Appeal rejected that this gives rise to any tension with the principle that affirmation of a contract following a breach is irrevocable. Cases of cumulative breach are within the well-recognised qualification to that principle: the victim of a repudiatory breach who has affirmed the contract can nevertheless resign if the breach continues.
That said, the Court of Appeal upheld the strike out decision as the Judge’s finding that the disciplinary process could not arguably be criticised meant that it was not capable of amounting to a continuing breach.
When is Goodbye really Goodbye?
Victoria von Wachter
The recent case of Newcastle upon Tyne NHS Foundation Trust v Haywood 2018 UKSC 22 brings into sharp focus the importance for certainty in relation to the dates that notice is given and the effective date of termination.
These dates are important for internal benefits purposes (Haywood) and jurisdictional purposes (see Gisda Cyf v Barratt  UKSC 41 and Feltham Management v J Feltham UKEAT 0201/16).
The Gisda Cyf case held that the effective date of termination (EDT) was the date on which the employee opened and read the letter dismissing her. The Feltham case centred on a number of letters from a family employer (always the most painful of cases) which danced around the subject of termination. In that case it was held that allusion and tangential references were not sufficient to constitute a dismissal – what was needed was unambiguous words and certainty of dates.
In the Haywood case the date notice was given was important to both employer and employee as it affected eligibility to a particular pension scheme. The letter giving notice was sent but not opened by Mrs Haywood (who was away on holiday) until a date on which the eligibility to enhanced pension became active.
Her father - visiting the house to water the plants and who took delivery of the letter at an earlier date - was held not to be acting as her agent so as to exclude her from eligibility – future Father’s days would have been frosty affairs had this not been so held!
The arguments raised by the employer on appeal were that under the CPR a letter was deemed to have been received when delivered to the recipient’s address. The SC preferred the line of argument consistently run by the EAT in that communication of a decision to dismiss must be in terms that bring it expressly to the attention of the employee or at least give him a reasonable chance of learning about that decision.
Accordingly, it was held that notice was given when Mrs Haywood actually opened the later and read it