Message from the Editors,
Dan Hobbs & Clare Harrington
Welcome back to 'Five from 5', the free bi-monthly employment law bulletin created by the employment team at 5 Essex Court in association with Bloomsbury Law Online.
This month's bulletin contains five short articles on (i) assaults at the office Christmas party; (ii) the upper age limit for police recruits in Spain; (iii) costs and litigants in person; (iv) third party discrimination; and (v) the test for discrimination 'arising'.
The editors continue to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team whose members include Queen's Counsel, part-time employment judges and those appointed by the Attorney General to represent the Crown.
Company not liable for director’s assault following the Christmas party
In Bellman v Northampton Recruitment Ltd, the High Court rejected an argument that a company was vicariously liable for one of its directors punching an employee and knocking him out causing serious injury.
The assault followed a heated discussion about a work matter, and occurred in the presence of employees in a hotel bar after the official Christmas party had ended.
The High Court found that a line could be drawn between the work party and the ‘impromptu drinks’ which took place later. Consequently, the after party and the assault did not occur in the course of the employment.
Is an upper age limit for new police recruits compatible with the Equal Treatment Directive?
In Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias C-258/15;  WLR(D) 602 the upper age limit of 35 years for new Basque police recruits was challenged as age discrimination, on the grounds that there was no justification for the age limit imposed, and that it restricted access to public service posts without reasonable grounds for doing so.
The European Court of Justice held that Article 2(2) of the Equal Treatment Directive 2000/78, read together with Article 4(1) of that directive, did not preclude such legislation, as it was linked to a “genuine and determining occupational requirement”, namely the possession of a particular level of physical capability. The objective, maintaining the operational capacity and proper functioning of the police service, was legitimate, and the requirement proportionate.
Key to the decision was evidence that officers recruited through this particular exercise would be carrying out operational duties which may imply recourse to physical force, for which the required training would last for two years. Physical performance of those duties declined after the age of 40, and the average age of the police force was already significantly rising, requiring gradual replacement by younger officers.
Whilst the judgment confirmed that age limits may be justified, it underlined the need for clear evidence of genuine occupational requirements linked to age to satisfy the high threshold for any exception to the anti-discrimination provisions. (For a contrasting example of a case in which that threshold was not met, see Mario Vital Pérez v Ayuntamiento de Oviedo C-416/13.)
Litigant in person Liable for Costs in Tribunal
Liddington v 2gether NHS Trust UKEAT/0002/16/DA, 0064/16/DA, 0065/16/DA
It has long been appreciated by employment law practitioners that a Tribunal will be reluctant to hold litigants in person to account, in terms of making a costs order, with respect to the litigant in person’s conduct of a claim. Previous EAT decisions have highlighted the obvious differences between a litigant in person (‘LIP’) and a lawyer in terms of preparation of a case and the standard of presentation to be fairly and reasonably expected.
The case of Liddington is instructive as it provides an example of a LIP’s conduct crossing the line sufficiently that the Tribunal was able to categorise the conduct as unreasonable and exercise its discretion appropriately to make a costs order.
The Claimant, a community practitioner, had pursued her employment tribunal claim complaining that she had suffered a detriment because she had made a safeguarding referral. The Claimant was told by three different Employment Judges that her claims had not been sufficiently particularised and that this included a failure to provide exact dates. The provision of dates was significant as it appeared that some of the detrimental treatment identified had occurred prior to the safeguarding referral.
The claims were either withdrawn or struck out and Employment Judge Perry found that the Claimant’s inability to provide the particulars required at the hearing amounted to unreasonable conduct. Accordingly, the Claimant was ordered to pay the Respondent’s counsel’s fees and travel.
On appeal, the EAT confirmed that LIPs should not be held to the same standards as lawyers in terms of their preparation of a case. In particular, it was expressly recognised that the standard of pleading expected of a lawyer did not apply to the Claimant who could not be expected to provide a detailed legal pleading. However the EAT did consider that the Claimant was able to comply with requests for further information and should have been able to explain what was said or done, when and by whom. There had been a failure of the Claimant to comply with these requests despite there being a number of earlier hearings at which detailed particulars were sought to be elicited from her.
The Claimant’s inability to provide this information amounted to unreasonable conduct, which justified the Tribunal’s decision to award costs to the Respondent. Mrs Justice Simler stated,
‘I do not consider that the Employment Judge was demonstrably wrong in concluding that it was inadequate simply to identify a month and year in respect of certain protected acts or that there were other failings in relation to particularisation as I have already identified. The Tribunal's finding in relation to the costs application was supported by the evidence of what had happened at earlier hearings and the Orders directing the provision of particulars, together with the failed attempts to supply such particulars. There is no suggestion that the Tribunal misdirected itself in law, and, although a different Tribunal might have reached a different conclusion in relation to these matters, I am entirely satisfied that this Tribunal's conclusion was a permissible option in the circumstances of this case and one with which this Appeal Tribunal is not entitled to interfere.
While it is correct that the Judge found the Claimant's inability to articulate her claim was unreasonable conduct here, the Judge did not find that this inability resulted from stress, anxiety or the severe abdominal pain that the Claimant complained about. The Judge accepted that the Claimant was not trying to be obstructive but found that she was not prepared in the way that she should have been, by reference to the lower standards to be expected of a litigant in person pursuing these claims. It was that lack of preparation that caused her inability to provide particulars. There was no medical evidence to suggest that the Claimant was not fit to represent herself, nor had the Claimant applied to postpone hearings on this ground. The Claimant told the Judge that it was principally the stress of the claim and the treatment she had received from the Respondent that gave rise to issues for her. But the Judge was entitled to conclude that those were factors that would not go away in the course of these proceedings until the claim had been concluded and that those issues did not excuse the Claimant from particularising her claim properly or amount to a justification for her inability to explain the essence of her claim.’
This is useful commentary from the EAT for respondents. It highlights the fact that a certain level of preparation is to be fairly expected from LIPs and that falling below that standard, in the absence of a medical explanation for doing so, might well result in a costs order made against the LIP. Accordingly it would be quite reasonable for respondents in such cases to issue a costs warning letter.
The party of the first party and the party of the second party….
Third Party Discrimination
Victoria Von Wachter
There has been a developing body of case law on third party discrimination and liability. As early as 2001 the case of Moores v Bude Stratton Town Council (EAT) considered the liability of employers for the acts of third parties. In that case a councillor subjected an employee to abuse and false allegations resulting in that employee resigning. At first instance it was held that the council could only be liable for actions of a person who has authority to bind it, a councillor not being such a person. On appeal it was held that an employer had a duty to provide a safe environment for its employees and that councillors were an integral part of the council organisation. Therefore it was not possible for the council to distance itself from their actions (however much it wanted to).
This finding echoed the outcome of Burton v deVere Hotels Ltd  ICR 1, EAT in which a hotel was held liable for the seriously racist remarks of a comedian hired to entertain a bunch of attendees.
More recently this topic has become live again in cases like Unite (the Union) v Naillard  IRLR 906 where the Union was held liable for the sexual harassment carried out by an elected official of the Union. Fortunately for Unite the EAT did not consider that its total failure to investigate those allegations of sexual harassment constituted sexual harassment in itself – big sigh of relief from Unite!
In Thompson v London Central Bus Co Ltd.  IRLR 9 an employee successfully appealed against an Employment Tribunal’s decision to strike out his claim of associative victimisation where he claimed to have been dismissed because of a complaint he made after overhearing managers boasting of have sacked employees who opposed racism. The Employment Tribunal at first instance held that the connection was not strong enough. The EAT disagreed and held that the closeness of the association was not the relevant point – what was determinative was whether or not the dismissal was by reason of having made a protected disclosure.
The moral of this story is that it is acts that count not closeness of relationship.
A MATTER OF CAUSATION – THE SECTION 15 TEST AFFIRMED
Section 15 of the Equality Act 2010 deals with claims of discrimination arising from disability.
Put simply, “A” discriminates against a disabled person, “B”, if A treats B unfavourably because of something arising in consequence of disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. B also has access to the “knowledge” defence.
In the recent case of Madani Schools Federation v. Uddin UKEAT 0194/16 Judge Shanks expressly approved the way in which Employment Tribunals should approach to section 15 claims (as considered by Simler P in Pnaiser v. NHS England  IRLR 170 at paragraph 31).
Having identified the unfavourable treatment by A, the Tribunal must determine what caused it, i.e. what the “something” was. The focus is on the reason in the mind of A; it involves an examination of the conscious or unconscious thought processes of A. It does not have to be the sole or main cause of the unfavourable treatment but it must have a significant influence on it.
The Tribunal must then consider whether it was something “arising in consequence of B’s disability”. That expression could describe “a range of causal links” and “may include more than one link” but the more links in the chain between the “something” and the disability the harder it is likely to be to establish the requisite connection as a matter of fact. The question is one of objective fact to be robustly assessed by the Tribunal in each case.
It does not matter in precisely what order the two questions are addressed but, it is clear that the Tribunal must address each of the two questions.