August 2015 - 'Unfavourable treatment' in disability and pregnancy claims

Dan HobbsClare Harrington

Welcome to our August blog post in partnership with highly regarded employment team from 5 Essex Court.

Five from 5

Clare Harrington and Dan Hobbs, employment barristers from 5 Essex Court are editors of our employment law blog. They add their ‘Five from 5’ articles to our blog, as well as other matters of interest. Most months one of these articles will also link you through to a longer article on their own blog Five from 5 - In Depth.

We hope you enjoy reading these. If you would like to receive a discount off of your next employment law book from Bloomsbury Professional, look out for our advert further down the blog.

This month's '5 from Five'

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Do absent employees still transfer under TUPE?

Dan Hobbs

In Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care) UKEAT/0431/14/BA, the employee was engaged as a care worker by Saga Care. She worked on a specific contract that Saga Care held with the London Borough of Enfield. In February 2013 the employee was suspended on disciplinary grounds and in June 2013 the Borough asked Saga to permanently remove the employee from the contract. Saga disputed the Borough’s instruction and in the mean time, its contract with the Borough expired and the relevant services transferred to WH Ltd on 1 July 2013.

The employee claimed unfair dismissal against Saga and WH Ltd. Her primary case was that her employment had transferred under TUPE to WH Ltd.

A tribunal accepted that there was a service provision change (SPC) giving rise to a relevant transfer under the TUPE Regulations. However, it found that, immediately before the transfer, the employee had been removed from the contract at the Borough’s request. Accordingly, as at the date of the transfer, the employee was not employed in the organised grouping which carried out the Borough’s contract, for the purpose of Reg 4(1), and so she did not transfer.

The EAT allowed the employee’s appeal observing that at the transfer date, Saga had done nothing to actually remove the employee from the transferring group of employees (having opted instead to dispute the Borough’s instruction to permanently remove her from the contract). Therefore, she remained assigned and transferred, along with the contract, to WH Ltd.

In reaching his conclusion, HHJ David Richardson considered the established legal test applicable to absent employees. In respect of employees who are suspended, sick, on holiday, on study leave or on maternity leave at the date of the transfer, the question about whether they transfer to the new contractor was answered by HHJ Burke QC in Fairhurst Ward Abbotts Ltd v Botes Building Ltd [2003] EAT/1007/00/DA (March 2003), subsequently approved by the Court of Appeal [2004] IRLR 304 and followed in the writer’s own case of United Guarding Services v St James Security Group Ltd [2004] All ER (D) 158 (EAT):

The appropriate test, in our judgment, was whether he had been employed to work [in the part transferred] immediately before the transfer, i.e. whether [the part transferred] was his contractual place of work and that was where [the employer] would have required him to work immediately before the transfer had he not been excused from attendance.

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EAT gives guidance on what amounts to unfavourable treatment

Sarah Keogh

The Trustees of Swansea University Pension & Assurance Scheme v Williams UKEAT 0415/14/DM involved an application by W for ill-health retirement under the University’s pension scheme. This entitled employees to a full pension, without reduction, based on final salary. W had reduced his hours, and thereby his final salary, by half as a result of his disability. He complained that the failure to pay him pension at his full previous salary amounted to treating him unfavourably as a result of his disability under s15 Equality Act 2010. A tribunal found in his favour.

On appeal, the EAT held:
1. The word “unfavourably” in ss15 & 18 could not be equated with the concept of “detriment” used elsewhere in the Act, nor did it mean “less favourably”, which invited a comparison;
2. “Unfavourably” was to be measured against an objective sense of that which is adverse as compared with that which is beneficial;
3. Treatment which is advantageous cannot be said to be “unfavourable” merely because it is thought it could have been more advantageous, or, put the other way round, because it is insufficiently advantageous;
4. In the present case the tribunal had erred as it had failed to consider that the only persons eligible for ill-health retirement were those with a disability. It was manifestly perverse to find other than that those taking ill-health retirement were treated more favourably than non-disabled employees, which was not discriminatory;
5. Further, it had erred in taking into account a suggestion that there might have been alternative claims available of failing to make reasonable adjustments or indirect discrimination, in support of the argument that the treatment was unfavourable, and in its approach to the defence of proportionality.

This is the first authority provided in relation to the concept of “unfavourable treatment”, and the EAT’s guidance will be of use in both claims relating to disability (s.15) and those relating to pregnancy (s.18). The tests laid down are not prescriptive, but provide a common sense, objective approach to this type of claim. No doubt there will be further litigation to test which factual situations amount to “unfavourable treatment" and which will not.

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Sparking Bulgarians

Victoria von Wachter

Readers will already have enjoyed and surfeited themselves on the decision in Home Office v Essop & Ors which added a whole new dimension to the interpretation and implementation of indirect discrimination law when it comes to cases reliant upon statistical evidence. Now the Advocate General adds yet another strand to the rich fabric that is discrimination law.

In CHEZ Razpredelenie Bulgaria AD v Komisia za ot Diskriminatsia ( to save my sanity – CHEZ) the AG decided that the practice of installing electricity meters at too high a level in predominantly Roma areas and where the Roma population were less able to read them, being of diminutive stature, was indirect discrimination – so far, so well established. What made this case unusual was that the claim was brought not by a Roma but by a Bulgarian national who operated a business in the same areas and who was similarly disadvantaged.

The AG ruled that this was discrimination by association similar to the discrimination found in the case of Coleman v Attridge Law (the case of a mother with a disabled child who suffered a disadvantage by reason of the child’s disability).

This raises an interesting conflict between s19 Equality Act 2010 (that requires a Claimant to be of the same racial group that is alleging discrimination) and the rather inconsistent provisions of the EU Race Directive. Tension arises as Employment Tribunals are required to interpret the domestic legislation consistently with the EU Directive.

Watch this space to see the Employment Tribunal convulsing itself to serve both masters should a similar claim hit the courts in future.
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To lower the fees or not to lower the fees – that is the only question: ‘Revisited’

Clare Harrington

We reported in June that the Government had announced a review in respect of the introduction of employment tribunal fees with terms of reference set out by the Ministry of Justice. The proposed review did not anticipate any public consultation, consultation with tribunal users or consultation with the employment judiciary.

A little over a month later, on 21 July 2015, the House of Commons Justice Select Committee announced an inquiry into the effects of the introduction and levels of court and tribunal fees and charges.

The Committee will examine the Coalition Government’s policy of reducing the cost of HMCTS to the public purse through the introduction of and increases to various fees and charges. Written submissions to the Committee are welcomed (with a deadline of 30 September 2015) and whilst the review obviously relates broadly to HMCTS, the Committee signals its particular interest in how the introduction of employment tribunal fees has affected access to justice.

This is an interesting development and potentially allows for a broader and more thorough investigation into the true effect of employment tribunal fees. Whilst an abolition of fees would continue to seem unlikely, the Committee’s inquiry might well produce the type of evidence required to support a reduction in fees.

Current anecdotal evidence about the number of tribunal claims seems to suggest a slight ‘bounce back’ of workload with an increase in holiday pay claims. A reduction in fees would no doubt increase the number of claims further and would be welcomed by employment lawyers.

Imperfe5 Essex Courtct Justice

Georgina Wolfe

In Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776, the Court of Appeal has unanimously determined that an employee can be prevented from knowing the full gist of a case against him on grounds of national security.

Kiani is reminiscent of Tariq v The Home Office [2011] UKSC 35, [2012] 1 AC 452. In both cases, the claimants were immigration officers who had been suspended (Tariq) or dismissed (Kiani) as a result of the withdrawal of security clearance. Both claimants claimed discrimination on grounds of race and religion. In both cases, the Home Office said that what it had done was in the interests of national security and refused to disclose material on grounds of national security. In both cases, a special advocate had been appointed. In neither case was the liberty of the claimant in issue.

The Master of the Rolls (with whom the Court unanimously agreed) observed it was common ground that where state security considerations are invoked as a ground for withholding information from an excluded person, the court must strike ‘an appropriate balance between the requirements flowing from state security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary’ (quoting the CJEU in ZZ (France) v Secretary of the State for the Home Department (Case C—300/11) [2013] QB 1136). He found that the same approach was required by Article 6 of the ECHR. This balancing act must, of course, take into account all the material facts of the case.

However, the Court drew an important distinction between the absolute right to a fair hearing and the more limited right to minimum disclosure of relevant information. Indeed, the Court held that the constituent elements of a fair process are not absolute or fixed and article 6 does not require a uniform approach in all cases of this kind.

In the conduct of a discrimination claim, the special advocate and indeed the judge can test the case of the alleged discriminator without the input of the claimant thereby ensuring that justice, albeit what the employment judge described as ‘imperfect justice’, was possible.

For those who are watching the development of EU law – and in particular the mysterious reaches of the Charter – with interest, the Master of the Rolls expressly rejected the Claimant’s submission that there was a difference between Convention law (which permitted withholding material from an excluded person in certain circumstances) and EU law which the Claimant claimed did not. In rejecting the submission he observed, ‘it would be remarkable if there were a material difference of general approach between Convention law and EU law in relation to the important issue of procedural justice raised in this appeal.'

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