Welcome to our April 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'
Lies, damned lies and statistics:
The truth about Shared Parental Leave
At the start of the month, there was widespread reporting about the poor take up by men of shared parental leave – a policy introduced in April 2015 providing men with the opportunity to care full time for their new baby.
As The Telegraph reported on 5 April, a new survey of over 200 businesses by My Family Care and the Women’s Business Council found that,
‘…just 1 in 100 men are applying for it. Reasons for the reluctance include it being ‘financially unworkable’, ‘ a lack of awareness’ and ‘women refusing to share their maternity leave.’
However does the statistic that only 1 percent of men are taking the option of shared parental leave, accurately describe what is happening?
In Radio 4’s More or Less programme aired on Friday 8 April, the myth behind the 1 percent statistic was revealed. In reality the figure is deeply flawed and cannot be used to prove that new fathers are unwilling or unable to take a greater share of childcare.
The research carried out asked 200 HR directors from various industries what percentage of their male employees had taken shared parental leave.
Accordingly, the 1% figure is not the percentage of new fathers who have taken up shared parental leave, it is the percentage of all men whether or not they are eligible for the leave or even have children. The survey did not even ask who was eligible for paternity leave.
The programme’s own research indicated that if every single new father had taken SPL, it would still be only about 5% of all men. Therefore, seen in this context, the 1% figure is not low.
This important context to the survey, was not reflected in the national press coverage and resulted in coverage which a More or Less producer described as ‘so fabulously wrong’.
The Government plans to evaluate the police in 2018. Its projection was for between 2 – 8 % of eligible fathers to take up SPL. On the first anniversary of the introduction of this policy, this still looks to be eminently achievable.
Wrongly named Respondents and ACAS Certificates:
Minor amendments permissible
Victoria von Wachter
Employment Courts flex muscles not used since they trashed the 2002 Grievance rules!
Yet again the Employment Court shows that it takes a dim view of having its jurisdiction ousted by unfeeling statutory rules.
In Mist v Derby Community Health Services NHS Trust EAT 22.1.16 (0170/15) amendment of the parties and ACAS Early Conciliation certificates were considered by the EAT. What these matters arose from and what formed the cross appeal was the Employment Tribunal’s willingness to allow an amendment of claim to correct the name of the Respondent. The Respondent had objected on grounds that even if the amendment were allowed, a new ACAS Early Conciliation certificate pursuant to s18A Employment Tribunals Act 1996 had not been issued (with the correct name) and therefore the claim would be out of time and outside the jurisdiction of the Employment Tribunal. The argument (and thus the cross appeal) was airily brushed away on the grounds that an Employment Judge can allow minor changes to the pleadings if it would not be in the interests of justice to reject the claim. Similarly, the Employment Tribunals Act 1996 does not have the effect of barring claims where the Respondent is clearly identifiable from the ACAS Certificate (despite being technically incorrect).
On the subject of ACAS certificates, see also Drake International Systems Ltd & Ors v Blue Arrow Ltd EAT 27.1.16 (0282/15) in which the EAT showed itself to be wonderfully creative in interpreting the meaning of the word ‘matter’ in s18A Employment Tribunal Act 1996 (so as to give a wide interpretation to the potential claims covered by the Certificate).
Qualifications bodies and the Employment Tribunal’s jurisdiction
In the very recent case Michalak v General Medical Council  EWCA Civ 172, the Senior President of Tribunals gave judgment in relation to the Employment Tribunal’s jurisdiction to hear complaints against qualifications bodies, pursuant to Part 5 of the Equality Act 2010.
Dr Michalak, the Appellant, had been referred to the GMC by the NHS Trust which employed her. The Appellant complained to the ET that the GMC had acted to her detriment, and in a manner unlawful under the Equality Act. This judgment is concerned with the jurisdiction of the ET to hear that claim.
Ryder LJ began that the issue concerned whether the availability of a remedy by way of judicial review ousted the ET’s jurisdiction under s120 of the Equality Act. S120 provides the ETs jurisdiction to hear Part 5 claims, and related claims.
The Court of Appeal found that the question turned on the specific nature of the complaint. Ryder LJ characterised judgments in the Administrative Court as addressing “how a decision was made rather than why it was made”. Where, as in this case, it is a complaint of unlawful treatment the ET is the appropriate specialist tribunal, and accordingly has jurisdiction. The ET is better equipped than the Administrative Court to decide issues of discrimination relating to work and employment, and can better hear the case by the calling of witnesses to provide evidence. Where no discretionary remedy is sought which can be provided by judicial review, the jurisdiction is not ousted.
The Court recognised the wide ranging effect of this decision, across professions other than medicine.
Where are we now?
In Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets plc, the Supreme Court has reconsidered the test for vicarious liability in employment and similar relationships.
In Cox, C was a catering manager at HM Prison Swansea where she worked in the kitchens with the prisoners. She was injured through the negligence of one of the prisoners who accidentally dropped a sack of rice onto her back. She sued the MoJ for personal injury, arguing that it was vicariously liable for the prisoner’s negligence. The county court rejected this argument but the Court of Appeal overturned its decision on appeal, holding that the relationship between the MoJ and the prisoner was sufficiently ‘akin to employment’. The MoJ appealed to the Supreme Court who rejected the appeal and upheld the principle that
in non-employment relationships where the wrongdoer is integrated into the defendant’s operation and the defendant has created the risk of wrongdoing by assigning responsibility to the wrongdoer, vicarious liability will likely follow.
In Mohamud, M was visiting Morrisons when he was assaulted and racially abused by K, an employee of Morrisons. When M brought a personal injury claim, a Recorder found that K’s actions were beyond the scope of his employment and so Morrisons was not vicariously liable. The Court of Appeal upheld that conclusion on appeal. It held that, while it was relevant that the assault took place at K’s place of work and at a time when he was on duty, this did not establish a sufficiently close connection between the wrongdoing and the employment. M appealed to the Supreme Court who allowed the appeal. Lord Toulson, giving the unanimous judgment, endorsed the ‘close connection’ test for employer-employee vicarious liability but went on to identify the essence of that test. In his view, two matters are relevant. First, the nature of the job entrusted to the employee must be considered broadly; and secondly, the court must enquire whether there was a sufficient connection between the employee’s position and his or her wrongful act to make it right to hold the employer liable for the wrongdoing. Although it was a gross abuse of his position, K was acting in connection with the business in which he was employed to serve customers. Morrisons entrusted him with that position and it was just that Morrisons should be held responsible for K’s abuse.
Clarification of Essop?
Victoria von Wachter
Those complaining of indirect discrimination in relation to a Provision, Criterion or Practice at work must be able to point to a 'particular disadvantage' that affects them and others sharing their protected characteristic.
In Essop v Home Office  ICR 1063 the Court of Appeal identified that the reason for the group and individual disadvantage needed to be established. However, the judgment then went on to comment that the mere existence of a particular disadvantage may be sufficient to raise a prima facie case of indirect discrimination.
It is not therefore immediately clear whether the reason for the particular disadvantage is important or not? Essop is presently on appeal to the Supreme Court.
Now, in the indirect discrimination case of Naeem v Secretary of State for Justice the Court of Appeal has looked again at this issue.
The case concerned a length of service criterion used for establishing pay levels. Because the prison service had only recently started recruiting Muslim chaplains in response to a growing need it was a matter of chronology that their service would, on average, earn them less than that of the Christian chaplains who had more considerable length of service. The question was whether this PCP indirectly discriminated against Muslims?
Held: The reason for the pay disparity was the difference in start dates and 'did not reflect any characteristic peculiar to them as Muslims.' It was not therefore possible to establish indirect discrimination on the facts of the case.
Editor's Comment: In Essop, the reason for the 'particular disadvantage' (BME candidates performing less well on a particular written examination) was not factually established. In such cases, it appears that the mere fact of the disadvantage existing may be sufficient to raise a prima facie case of discrimination (such as to shift the burden to the employer to prove that the disadvantage was not linked to the protected characteristic). Conversely, in Naeem, the factual reason for the 'particular disadvantage' was established and found to be nothing whatsoever to do with the Claimant being Muslim. It would therefore seem that the authorities, whilst perhaps difficult to follow, are not necessarily inconsistent and largely support the principle that the reason for the group and individual disadvantage does remain of key importance in establishing claims of indirect discrimination.