Welcome to our October/November 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 add their ‘Five from 5’ articles to our blog. 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'
Companies, as well as individuals, can bring claims of direct discrimination
In EAD Solicitors LLP v Abrams (UKEAT/0054/15/DM), the EAT considered as a preliminary issue whether a corporate body which was a member of a limited liability partnership could claim for direct age discrimination.
Mr Abrams had set up a limited company for tax reasons on approach to retirement, of which he was sole director. The company replaced him as a member of the LLP, and received the profit share he had previously received as an individual member.
The company agreed to supply the services of a fee earner to the LLP, which it was assumed would be Mr Abrams. It was alleged that the limited company had suffered detrimental treatment when the LLP objected to the company’s continuing membership from the time when Mr Abrams would have retired had he remained a member himself.
The definition of direct discrimination in section 13 Equality Act 2010 refers to a person (A), discriminating against another (B). The EAT considered that "another" clearly referred to another person, and the Interpretation Act 1978 deemed that to include "a body of persons corporate or unincorporate" unless a contrary intention was shown. It was asserted by the company that there was no such contrary intention.
The EAT agreed. The Equality Act did not deal with individuals on the basis of their protected characteristics, but identified discrimination as being detrimental treatment caused by the protected characteristic or related to it. Detrimental treatment could be given to any person, whether natural or legal. There was no reason to restrict the class of those who can suffer a detriment if what is being complained of, and that which the statute seeks to avoid, is a detriment being suffered because of an individual's protected characteristic. This could be contrasted with the specific requirement that claims of victimisation could only be brought where the person subjected to a detriment is an individual (s27(4) Equality Act). That exclusion would not be provided for if it was not intended that references to persons in the rest of the Act would include bodies corporate. In the circumstances the company was entitled to bring the claim.
This is a novel result, however it follows logically from the line of case law being developed in the tribunals on associative discrimination. With an increasing number of individuals taking the opportunity to provide services via limited companies in order to reap the tax benefits, it is worth bearing in mind that where an individual is one step removed from a potentially discriminatory act there may still be a claim.
Grandparents to be allowed to take shared parental leave
Watch out for proposed changes to the shared parental leave regime. George Osborn announced at the start of the Conservative Party conference that the Government plans to extend the existing shared parental leave system to include grandparents.
Under the plans, families, including grandparents, will be allowed to share parental leave, up to a total of 52 weeks. They will also be allowed to share statutory shared parental pay, which amounts to £139.58 per week, or 90% of average weekly earnings, whichever is lower.
The plan is similar to one previously announced in the Labour Party’s “manifesto for women”, and it appears likely to be swiftly implemented.
Right to be accompanied at meetings
Victoria von Wachter
The provisions of s10 of the Employment Relations Act 1999 provide that an employee has the right to be accompanied by a work colleague or a Trades Union representative when attending an interview that is part of an agreed disciplinary procedure. The statutory right does not extend to investigatory hearings but individual contracts of employment may provide this further facility.
There has been some erosion to the strict interpretation of this piece of statute especially where the disciplinary sanction could be a career ending outcome such as in the case of doctors and nurses, and in some cases teachers. In those cases it has been held that legal representation could and should be allowed at relevant meetings.
The case of Stevens v University of Birmingham turned on a slightly different point – namely, whether a university clinical academic, not a member of a TU, could be accompanied by a member of his defence organisation rather than a fellow employee at the investigatory hearing.
The University disciplinary procedure allowed for legally qualified assistance should the matter come to a full disciplinary hearing but only provided for TU or colleague support for investigatory hearings.
It was held that it was a breach of the implied term of trust and confidence to disallow the assistance of a defence association representative at the investigatory hearing and the High Court held that the employee should have ‘all the help he needed’.
The court held that there was nothing in the contractual terms that specifically precluded the assistance of a person not listed in the procedure.
This is an interesting example of the courts seeking to soften the strict interpretation of both statutory and contractual terms to give effect to the principle of giving employees under threat of disciplinary action as fair a chance as possible to defend themselves.
Complaints about personal contractual matters can amount to whistleblowing in the ‘public interest’
In Underwood v Wincanton plc an employee raised a contractual matter which affected himself and a wider group of his colleagues. Although s.43 ERA 1996 only offers whistleblowers protection if the disclosure is in the ‘public interest,’ the EAT held that the test was satisfied if a group of employees are affected by the contractual matter raised (Chesterton Global Ltd v Nurmohamed followed).
Underwood was a driver for Wincanton dismissed in 2014. He claimed to have been automatically unfairly dismissed by reason of having made a protected disclosure in 2013. The disclosure relied upon was a letter written by himself and 3 colleagues complaining about overtime provisions. Wincanton argued that the disclosure could not possibly be in the ‘public interest’ being merely a grievance about a personal contractual matter. The Tribunal agreed and struck the claim out as having no reasonable prospect of success relying on the EAT’s decision in Parkins v Sodexho  IRLR 109.
Recorder Luba QC sitting in the EAT relied upon Chesterton Global (above) as authority for the proposition that the ‘public interest’ requirement can be met by a relatively small group of persons and that those persons may be employees of the same employer. The essential question is whether the person making the disclosure has a reasonable belief that the disclosure is being made in the public interest.
TUPE: A temporary lay-off prior to transfer will not prevent the employees transferring
With service provision changes under TUPE, an ‘organised grouping of employees’ will transfer to the new service provider if they have the principal purpose of carrying out activities on behalf of the end user (client).
In Inex Home Improvements Ltd v Hodgkins, the EAT held that a temporary lay off of staff within the ‘organised grouping of employees’ prior to the service provision change does not prevent the organised group transferring.
Hodgkins was one of a group of Inex employees working on a contract for the end user client (TV Ltd). In December 2012, an order was completed and a further order was not expected until 2013. The employees were therefore laid off in accordance with their contracts. Thereafter, TV Ltd decided to give its work to L Ltd instead of Inex (a service provision change). The Tribunal found that there had been no transfer of staff to L Ltd as the staff had been laid off immediately before the transfer.
The EAT disagreed. HHJ Serota QC noted that Regulation 3 did not require the ‘organised grouping of employees’ to be actually engaged in work activities immediately before the service provision change. Moreover, the purpose of the Regulations was to protect employment and the Tribunal’s conclusion had created the opposite result. He concluded that where there has been a temporary lay-off it is necessary to consider whether the organised grouping continued to exist which was itself a fact sensitive question.