Welcome to our December 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'
Office Christmas Parties - Mulled Wine & Misconduct!
As the festive season approaches, Dan Hobbs offers 5 thoughts about the office Christmas party:
1. The office Christmas party is a work-related activity and is legally an extension of the office environment even if it is held offsite and outside working hours.
2. Inappropriate behaviour including excessive alcohol consumption, the use of illegal drugs, fighting, and comments or actions of a sexual nature will still merit disciplinary action.
3. Employers are likely to remain liable for acts of harassment, discrimination, assault or other unwanted conduct carried out by their employees at the Christmas party.
4. Employees who are convicted of drink driving may also damage their employer's reputation or undermine trust and confidence.
5. Christmas is a Christian holiday, so employees should not be pressured to attend if they do not want to on religious grounds. However, most Christmas decorations such as tinsel and lights are secular and not inherently religious, so it would be difficult to argue that they could cause offence to non-Christians.
Finally, do enjoy yourselves this festive season. The editors look forward to welcoming you back to Five from 5 in the New Year.
'Continuing Acts' of Discrimination - What is the Tribunal looking for?
In Robinson v Royal Surrey County Hospital, the EAT considered the correct approach to the determination of whether acts of (different types of) alleged discrimination extending over a period can constitute a 'continuing act' for the purposes of limitation.
The Tribunal had rejected the Claimant’s argument that her various complaints of disability discrimination amounted to a continuing act, culminating in her dismissal. Her claim was deemed to be out of time (and was struck out) insofar as it related to the earlier treatment. After a full merits hearing, the claim of disability discrimination in respect of the dismissal was also not made out.
The EAT, upholding the strike out decision, found that, on the facts, there was no link between the earlier complaints of discrimination and the dismissal. The Tribunal had been entitled to regard the fact that the dismissal decision was taken by a different person, unconnected to the earlier treatment, as a highly relevant factor and one that was given appropriate weight in the context of all the other evidence. In any event, the Claimant would be estopped from arguing that the dismissal constituted the end of a discriminatory course of conduct in light of the (subsequent) Tribunal decision – which had heard evidence relating to the earlier complaints by way of relevant background – that it was not.
The case is as interesting, however, for its obiter comments in relation to the Claimant’s first ground of appeal, namely that the Tribunal had erred in considering each of the heads of discrimination separately. Whilst it was unnecessary for it to determine the point, the EAT considered that complaints falling under different heads of discrimination were capable, when taken together, of amount to a 'continuing act'.
Allowing employee to reconsider their resignation does not extend the EDT
In Wallace v Ladbrokes Betting and Gaming Ltd UKEAT/0168/15/JOJ, HHJ Eady QC considered the issue of jurisdiction in circumstances where the claimant contended there had been an agreement to extend her notice period, which in turn extended her effective date of termination (“EDT”).
Evidence had been given at a preliminary hearing that following an unsuccessful grievance, W had resigned by letter of 1 October 2012, giving notice which expired on 26 October 2012. L wrote to her in response, asking her to reconsider and offering a further grievance appeal. The letter stated that W could contact HR or could appeal by a certain date, otherwise her resignation would be accepted and processed on 26 October. W did appeal. She contended that there was therefore an agreement to extend her employment until a decision had been reached on her grievance. However the minutes of the further appeal meeting recorded that W had stated that by the time the decision of the appeal was to be given (2 November) she would already have resigned. The grievance appeal decision was actually received by her on 15 November.
The ET1 was lodged in early February, out of time if the EDT was 26 October, but in time if it was 15 November. W relied on the decision in The Secretary of State for Justice v Hibbert UKEAT/0289/13. It was held that there was no agreement to extend W’s employment, and none of the other documents affected the EDT, including a P45 showing that the employment had ended on 15 November.
W appealed on the basis that the letter sent by her employer in response to her resignation created an agreement to extend her employment which the Employment Judge had failed to consider.
HHJ Eady QC considered the body of authorities on this issue and concluded:
1. The EDT is a statutory construct, to be determined on an objective basis as it depends on what has happened, not on what the parties agree to have happened.
2. Where a claimant resigns in circumstances where she contends she can do so due to a fundamental breach of contract, that will take effect without the employer’s agreement. The employer cannot refuse to accept the resignation.
3. The parties may achieve the same result as an extension of the EDT without offending the statutory language.Two different approaches were suggested in the authorities, either that the parties could agree to extend or shorten the notice period, or that the original notice could be withdrawn by agreement (including an implied withdrawal), and a fresh notice given with a new termination point.HHJ Eady QC indicated that if she were considering the matter without reference to the Court of Appeal decision in TBA Industrial Products Ltd v Morland  ICR 686, she would prefer the approach taken in Willets v The Jennifer Trust for Spinal Muscular Atrophy UKEAT/0282/11, that the parties could agree an extension.
4. In the present case the ET had made a clear decision that the letter of 1 October 2012 was an unambiguous and unequivocal letter of resignation, with notice expiring on 26 October 2012. W could not unilaterally withdraw that resignation, nor could L refuse to accept it. All the letter in response was saying was that if W wanted to seek agreement to withdraw, L would be amenable to that.The facts showed that W never did seek to withdraw her resignation. The ET’s conclusions were therefore upheld.
This is a welcome and practical decision for employers, and avoids uncertainty in circumstances where an employer wishes to allow an employee the opportunity to reconsider his or her position. Here, even where the employee was paid beyond the expiry of her notice to encourage her to reconsider, this did not affect her clear and unambiguous resignation for the purposes of calculating the EDT. The decision does not entirely resolve the conflict in the two lines of authorities, however the practical effect will be the same, that the EDT will only be affected where there is a clear agreement between the parties before expiry of the notice period (and not afterwards) that the end of the notice period is to be changed.
Sarah Keogh represented Ladbrokes at the ET and EAT.
The Limits of Early Conciliation – Further Clarification
Her Honour Judge Eady QC in the EAT judgment of Science Warehouse v Mills UKEAT/0224/15/DA gave further clarification to the remit of the ACAS early conciliation process.
In summary, the judgment upholds a Tribunal decision that an application to amend does not engage the early conciliation (EC) provisions but just the usual Selkent principles. Accordingly, in circumstances in which the Claimant applied at a preliminary hearing to add a new claim which post-dated the ET1, the Tribunal judge was correct to consider that it was not determinative that the Claimant had not first undertaken the EC process in respect of the new cause of action.
It was held that section 18A of the Employment Tribunals Act 1996 did not require that the EC process was undertaken in respect of each claim but only in respect of the ‘matter’ in a broad sense. The judgment refers to the fact that the term ‘claim’ is not used and that a more general interpretation appears to be appropriate as it is more consistent with the way in which EC is to operate as reflected in the EC rules. For example, there is no requirement that the information to be given to ACAS has to ‘formally set out each cause of action’.
It also noted that the requirement to notify ACAS was one that fell on a ‘prospective’ rather than an existing claimant. Once a prospective claimant becomes an actual claimant (by bringing a claim) and later seeks to add to that claim, it is a matter for the ET exercising its case management powers and applying the guidance laid down in Selkent as to whether the amendment will be permitted.
Guidance on disparity of treatment in disciplinary proceedings
Have a look at MBNA Ltd v Jones UKEAT/0120/15 to read the EAT’s guidance on disparity of treatment in disciplinary proceedings. This is guidance that is particularly useful to Respondents.
The original guidance on disparity of treatment during disciplinary proceedings can be derived from the well known case of Hadjioannou v Coral Casinos Ltd  IRLR 352. In that case the EAT held that disparity of treatment in disciplinary proceedings would only cause a dismissal to be unfair in two instances:
Firstly, where the employer has previously treated similar cases less seriously, so that its employees understood that certain types of misconduct would be overlooked, or where it can be inferred that the reason given for dismissal was not actually the real reason for dismissal.
Secondly, where employees in “truly parallel circumstances” have been treated differently so as to support an argument that it was not reasonable to dismiss the employee and that a lesser sanction would have been appropriate in the circumstances.
The EAT recently confirmed in MBNA v Jones that there may be occasions when disparity arguments need to be considered but caution should be applied. In addition to the guidance in Hadjioannou, the EAT indicated that, in reality, there will be only very few cases where the facts giving rise to different dismissals are truly parallel in nature so as to allow disparity of treatment arguments to lead to a finding of unfair dismissal.