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 Professional.
This month's bulletin contains five short articles on (i) EC certificates; (ii) past misconduct; (iii) sex discrimination in schools; (iv) height restrictions and sex discrimination; and (v) Publication of the Employment Tribunals Handbook.
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.
We 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 firstname.lastname@example.org.
How many Early Conciliation Certificates does a Claimant need?
At a Preliminary Hearing in the Nottingham Employment Tribunal at the end of last year, it was determined that the Tribunal did have jurisdiction to consider a second claim brought by an existing claimant after she had obtained a further, second Early Conciliation certificate. In other words, it was correct for the claimant to obtain a further EC certificate before bringing her second claim to the Tribunal.
The relevant legal context is as follows: before ‘relevant proceedings’ can be issued in an employment tribunal, a prospective claimant must first contact ACAS and provide it with certain basic information to enable ACAS to explore the possibility of resolving the dispute by conciliation. Section 18A (1) of the Employment Tribunals Act 1996, as inserted by the Enterprise and Regulatory Reform Act 2013, s 7(1), reads as follow,
‘(1) Before a person (‘the prospective claimant’) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.’
ACAS will then issue an EC certificate to a prospective claimant showing compliance with the duty under s.18A and this certificate enables the claimant to issue proceedings in a tribunal. It is clear that the prospective claimant cannot bring proceedings without a certificate - section 18A (8) reads as follows,
‘A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).’
At the Preliminary Hearing, during which I represented the Claimant, it was the Claimant’s submission that the correct process had been followed and early conciliation was required in the circumstances of this case prior to presenting Claim two. This was clear from the relevant case law and most particularly in the judgment of HHJ Eady QC in Science Warehouse Ltd v Mills  IRLR 96. Whilst there are circumstances where two EC certificates are not required, this case was not one of them. In this case, the Claimant complied with the EC process and brought Claim one. She then followed the EC process again and brought Claim two. It was necessary for the Claimant to obtain an EC certificate before bringing Claim two, as pursuant to s. 18A (8) she was only able to institute ‘relevant proceedings’ with a certificate.
In Mills, HHJ Eady QC did refer to situations when a second claim might be brought rather than an application to amend the first claim.
‘If such an application to amend were not permitted, it may be that the claimant becomes a prospective claimant in respect of that matter, and there may then be an obligation to invoke the EC procedure unless one of the s.18A(7) exceptions apply. If the amendment is permitted, however, I cannot see that the EC process arises. It is simply a matter of case management.’
(judgment, paragraph 29)
There was therefore specific acknowledgement from the EAT of the process followed by the Claimant in this case. With regards to Claim two, the Claimant became a prospective claimant and had the obligation to invoke the EC process and obtain an EC certificate. The necessity to follow this process (and bring a further claim rather than make an application to amend) is further underlined by Judge Eady’s judgment that, when considering an application to amend, a respondent may well say that an ET might consider the potential avoidance of the EC process to be a relevant factor.
Taking into account past conduct
In NHS 24 v Pillar, the Scottish EAT (Lady Wise) considered a case where the first-instance Tribunal had found a dismissal unfair on the grounds of the investigation being unfair.
The alleged unreasonableness in the investigation was the taking into account of previous incidents where the employer had not taken disciplinary action (even though the employer was, it was found, entitled to consider the previous incidents as relevant).
The EAT did not rule out that there may be cases where an overzealous or otherwise unfair investigative process could fall foul of the Burchell test, but stressed that the starting point is that Burchell, as it relates to investigations, is directed at the sufficiency of investigations.
There was a distinction between including information in an investigative report and relying on past conduct in determining a dismissal. The EAT noted that taking into account past misconduct in the decision to dismiss is 'a contentious area' and whether the employer acted unreasonably is a fact-specific question.
Here, the EAT concluded that it was both inconsistent and perverse to conclude that investigation material acknowledged as relevant should have either been excluded or redacted out from the IO’s report, while at the same time finding that a dismissal taking into account that information was within the band of reasonable responses. It was irrational to find the dismissal unfair due to the comprehensive nature of the material provided to the dismissing officer. Unless it could be said that the previous incidents should never have been a factor in the dismissal decision, there was no rational basis to exclude details of them from the investigation report.
Sometimes it is hard to understand
Victoria von Wachter
The recent judgment of the Court of Appeal (overturning the ruling of the High Court) in the case of the Al-Hijrah School at Bordesley Green in Birmingham held that it was discriminatory on grounds of sex for a Muslim faith school to segregate classes so that from age 9 boys and girls do not interact. It was held that this had a discriminatory effect as it disadvantages both sexes by not allowing interaction and, social contact and as a result, their social development and the extent to which they were prepared for interaction with the opposite sex when they left school was disadvantaged.
The Court of Appeal however fought shy of declaring that this state of affairs disadvantaged girls more than boys. The solitary female judge, Lady Justice Gloster alone pointed out some of the indicators of their inferiority to which the girls were exposed every day at school. They had to wait, for example, until after the boys’ break before they were allowed to go out; Also Ofsted found on more than one inspection that the school library displayed books emphasising the inferior role of women in the home; Segregation was not being turned to the girls’ advantage as it was not preparing them for an empowered life.
However the bit that is hard to understand is why this ruling should be the case for a mixed but segregated school when single sex schools have existed in this country for many years. Is there some magic formula that means that boys and girls in single sex school are not subject to the same discriminatory effect as those in the mixed sex but segregated schools?
Policing Greece – the CJEU considers indirect discrimination in the Greek police
In Ypourgos Esoterikon and anor v Kalliri  EUECJ C-409/16 the CJEU considered the principles of indirect discrimination in the context of the police. The question posed by the Greek court was whether a rule that applicants for the police 'be of a height (in the case of men and women) of at least 1.70m' was discriminatory against women.
The Court took it as read that the height rule 'very clearly' discriminated against women relying on the national court’s finding that the rule adversely affected women to a much greater degree than men. The Court also accepted that the operational capacity and proper functioning of the police services constituted a legitimate objective. The real question for the court was whether the height rule was a proportionate and necessary means of achieving that objective.
The essence of the CJEU’s decision is that the harshness of the law, as applied to all applicants was not justified. The court considered as relevant (a) that not all policing roles required physical presence, or even that such physicality was the same as being tall; (b) that other employers (such as the armed forces) had different height requirements for men than for women; and (c) that tests for physicality could be more finely tuned than simply a height requirement.
It is difficult to see such an obviously discriminatory PCP being applied in modern British policing, especially given the array of different roles in the police. However, the judgment is a useful reminder that a blunt and obviously discriminatory PCP will rarely be justified, especially for a large employer offering a variety of different types of employment.
The Employment Tribunals Handbook - Latest Edition
The Employment Tribunals Handbook: Practice, Procedure and Strategies for Success, Fifth Edition has just been published. The authors and contributors are all members of 5 Essex Court - John-Paul Waite, Alan Payne, Alice Meredith, John Goss and Aaron Moss.
The Handbook provides a clear and comprehensive guide to bringing and defending a claim in the tribunal, covering every stage of the process from pre-action communications through to conducting a hearing.
In addition to commentary on the rules of procedure, the new edition offers strategies that maximise a party’s prospect of success. The highly practical features of the book include its step-by-step structure, the clear examples of rules, tactical insights, useful precedents, templates for drafting key documents and essential forms.
Fully revised and updated, key developments covered in the new edition include the Employment Tribunals Rules of Procedure 2013 (as amended up to 2017) and the incorporation of recent case law, including the Supreme Court ruling that led to the government abolishing fees in 2017.
The straightforward language used means it is not only aimed at experienced employment law practitioners but also those without formal legal training, such as HR professionals and trade union officials.
For more information or to order a copy, visit the BloomsburyProfessional website - www.bloomsburyprofessional.com
Training & Events
Retirement – key issues and considerations
Victoria von Wachter has collaborated with Daniel Barnett (barrister at Outer Temple) on a training audio CD focusing on the key issues and considerations for employers in planning and managing retiring employees. Topics covered include compulsory and voluntary retirement and employees under performing as well as recent developments and case law. The format is a 'fireside chat' interview with Victoria who shares her views and experiences both as an employment law barrister and a former HR professional. For more information contact email@example.com
Seminar: Disputes & Horses - An Introduction for Litigators
2 February - London / 18 April - Cambridge
Victoria Von Wachter is an employment law specialist with a lifelong interest in horses and riding. She represented Great Britain at junior level in three day eventing and is co-owner of Godington Stud which breeds Trakehner horses for sport.
Victoria has been invited by MBL training providers to present a full day course in London (2 February) and in Cambridge (18 April).
This course will cover the key issues including employment:
Employing staff in equine establishments
Hours of work
Volenti in case of accidents
Sale and purchase of horses
Straying horses - current legal situation
Occupiers' liability and volunteers
Statutory rules on transportation
Breed Societies and horse registration/identification
Key case law
Webinar: Sport Horses & Disputes - The Key Issues in 1 Hour
In addition to the seminar, there will be a pre-recorded webinar presented by Victoria available from 20 February which will introduce some of the key aspects surrounding the law relating to sport horses. It will cover the topics that crop up most often when litigation looms; namely equine employment, sale and purchase and the Animals Act and also provide practical tips such as avoiding common pitfalls.
See the MBL website for more details on the seminar and webinar - www.mblseminars.com