Thursday 26 February 2009

TUPE: Post-transfer obligations

Despite the dull title, this is an important case. It is authority for the proposition that a transeree is bound by pay increases negotiated by the transferor with a union under a collective agreement after the TUPE transfer has taken place.

For years, a line of authorities held precisely that (the lead case being Whent v Cartledge). In 2006, the ECJ held in Werhof v Freeway that the Acquired Rights Directive did not bind transferees in respect of contractual amendments negotiated post-transfer between transferor and union under a collective agreement. Everyone thought Whent was dead in the water.

Yesterday, in Alemo-Herron v Parkwood Leisure, the EAT held that Whent v Cartledge remained good law, as the UK was entitled to interpret the Acquired Rights Directive in a way more favourable to employees that European Law required. (NB the oral judgment was given in January, but the transcript only appeared yesterday).

HHJ McMullen QC, recognising the difficulty of this point, gave permission to appeal to the Court of Appeal. I understand that an appeal has, indeed, been lodged.

Wednesday 25 February 2009

Illegality: Sham contracts

[Thanks to www.emplaw.co.uk, whose summary I am reproducing with their permission]

Mr Szilagyi worked for builders Protectacoat. He claimed unfair dismissal. Protectacoat, pointing to a written "partnership agreement", argued that he was a partner, not an employee, and so could not claim unfair dismissal. Mr Szilagyi argued that the practical arrangements (such as Protectacoat providing his van and tools, and their general degree of control over him) showed he was in reality an employee. Protectacoat's publicity material said that they did not employ sub-contractors. He said he was not free to do other work.

An employment tribunal held that the "partnership agreement" was a "sham" and that Mr Szilagyi was an employee.

The Court of Appeal has clarified the correct test for establishing a 'sham' contract. From the leading judgment by Lady Smith, the following principles emerge:
  • the question is always what the true legal relationship is between the parties. If there is a contractual document, that is ordinarily where the answer is to be found. But, if it is asserted that the document does not represent or describe the true relationship, the court or tribunal has to decide, on all the evidence, what the true relationship is;
  • the court or tribunal has to consider whether or not the words of the written contract represent the true intentions or expectations of the parties, not only at the inception of the contract but, if appropriate, as time goes by;
  • commenting on Consistent Group Ltd v Kalwak&Ors [2008] EWCA Civ 430 (29 April 2008), a document which can be shown to be a sham "designed to deceive others" will be wholly disregarded in deciding what is the true relationship between the parties, but it is not only in such a case that its contents cease to be definitive.

Sedley LJ summed up the position most concisely, saying "...in the field of employment at least, it is more helpful and relevant..to ask in a case like this not whether the written agreement is a sham but simply what the true legal relationship is. Although there will be in many cases (as there was in this one) an intention to conceal or misrepresent the actual relationship, there is no logical reason why this should be a universal requirement.

"Protectacoat Firthglow Ltd v Szilagyi

Tuesday 24 February 2009

Whispering Judges

An interesting little case, this.

A tribunal gave a liability decision in 2000. However, for a combination of reasons (in part the non-cooperation of the Claimant), the remedies hearing was not able to take place until 2006, six years later.

The tribunal decided to strike out the claim on the grounds that a fair trial was no longer possible, two of the three original tribunal members having retired.

The Court of Appeal (Elias LJ giving his first employment law judgment from the Court of Appeal) held that a fair trial was still possible, and that it was no impediment that the employment judge had formed a preliminary negative impression of the Claimant. He also stated (paras. 36-37) that it is legitimate for the employment judge to share those preliminary impressions with any new wing members who are appointed to replace the retired wing members.

Abegaze v Shrewsbury College of Art & Technology

[Thanks to Paul Lewis from St John's Chambers for summarising this case for me]

Friday 20 February 2009

Limits of the Burns/Barke Procedure

The Court of Appeal has underlined the limits of using the Burns/Barke procedure in appeal proceedings.

This procedure allows the EAT, before it decides the appeal, to refer specific questions to the employment tribunal requesting it to clarify or supplement its reasons where no reasons were given, or where the reasons given were inadequate.

In Woodhouse School v Webster, the Court of Appeal reminded tribunals - in fairly uncompromising terms - that they must not go beyond this task, for example, by advancing arguments in defence of its decision or supplying information which is not requested. See paras. 25-29 for the Court of Appeal's comments.

[Thanks to Paul Lewis from St John's Chambers, Bristol, for preparing this case summary]

Monday 16 February 2009

Harassment under the RRA 1976

Underhill P., in one of his first judgments as President of the EAT, has handed down a judgment analysing the requirements of 'harassment' (which is now a discrete form of discrimination under the various discrimination Acts).

In Richmond Pharmacology v Dhaliwal, a director had said to a senior employee who was leaving the company, "We will probably bump into each other in future, unless you are married off in India". She claimed that amounted to an act of harassment on grounds of her race.

Upholding the tribunal's finding that it did amount to harassment, Underhill P reminds practitioners that the 'old' caselaw on harassment, created before the statutory definition, should be largely disregarded - as should caselaw under the Protection from Harassment Act 1997 (para. 11).

He then proceeds to analyse the statutory provisions and set out what they require - five paragraphs which I recommend all practitioners read (paras. 12-16).

Friday 13 February 2009

Proselytisation - spreading the (good) word

Where an employer omits to make a reasonable adjustment for a disabled person, when does limitation start to run? Limitation runs from a deliberate decision not to make an adjustment but when should time start to run where the employer failed to make any decision whatever?

In Matuszowicz v Kingston Upon Hull City Council, the Court of Appeal held that even where the omission was ongoing at the time of the claim but a future adjustment was still possible, the effect of Paragraph 3, schedule 3 of the Disability Discrimination Act 1995 was to create an artificial limitation start date. That was the date defined in paragraph 3(4)(b) as when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

Where an omission is ongoing at the time of the claim, a Tribunal will have to determine the period during which a reasonable employer, under a duty to make an adjustment and intending to make it, would make the adjustment. Limitation starts to run when that period expires. Paragraph 3(4)(b) is not restricted to deliberate omissions.

[Thanks to Anthony Cutler, pupil barrister at 1 Temple Gardens, for summarising this case, and to Nick Siddall of Kings Chambers, who represented the Respondent, for telling me about it]

Thursday 12 February 2009

Disability Discrimination - Time Limits

Where an employer omits to make a reasonable adjustment for a disabled person, when does limitation start to run? Limitation runs from a deliberate decision not to make an adjustment but when should time start to run where the employer failed to make any decision whatever?

In Matuszowicz v Kingston Upon Hull City Council, the Court of Appeal held that even where the omission was ongoing at the time of the claim but a future adjustment was still possible, the effect of Paragraph 3, schedule 3 of the Disability Discrimination Act 1995 was to create an artificial limitation start date. That was the date defined in paragraph 3(4)(b) as when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

Where an omission is ongoing at the time of the claim, a Tribunal will have to determine the period during which a reasonable employer, under a duty to make an adjustment and intending to make it, would make the adjustment. Limitation starts to run when that period expires. Paragraph 3(4)(b) is not restricted to deliberate omissions.

[Thanks to Anthony Cutler, pupil barrister at 1 Temple Gardens, for summarising this case, and to Nick Siddall of Kings Chambers, who represented the Respondent, for telling me about it]

Wednesday 11 February 2009

Statutory Dismissal Procedure

The EAT has held, in Zimmer v Brezan, that a step 1 dismissal letter must state that the employer is contemplating dismissal. If it does not, then any resulting dismissal will be automatically unfair.


HHJ Burke held that even though the words of the statutory dismissal procedure did not expressly require the employer to state, in writing, that it was contemplating dismissing the employee, it was desirable to construe the statutory procedure purposively so as to include such a requirement.

Thursday 5 February 2009

Disability Discrimination: EAT follows Malcolm

Last summer, the House of Lords re-wrote the law on disability discrimination, making it much harder for a Claimant to succeed (see bulletin 27/6/08). However, the case was decided in the context of housing law, and there has been doubt whether the same restricted approach would be adopted in employment cases.

At 10.30am today, in Child Support Agency v Truman, the EAT handed down a judgment confirming that the Malcolm approach does apply in employment cases.

HHJ Peter Clark held, at para. 22, that "In our judgment the narrower comparator favoured by the majority in Malcolm applies equally in the employment context. The wider comparator used in Novacold should no longer apply (unless and until the legislation is further amended by Parliament)."

The EAT added that they were not considering the impact of Malcolm on the phrase "for a reason which relates to the person's disability" - this will have to await another decision.

Tuesday 3 February 2009

Employment Judges Sitting Alone

The (draft) The Employment Tribunals Act 1996 (Tribunal Composition) Order 2009, which is due to come into force on 6th April 2009, has been placed on the OPSI website.

It extends the types of hearings when an Employment Judge can sit alone, to include holiday pay claims under the Working Time Regulations 1998 (and some other very obscure statutory instruments).

This supplements the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 (see bulletin 13/1/09) which, amongst other things, authorised Employment Judges sitting alone to hear Stage 1 equal value claims.