Employment Newsletter Winter 2015/2016
In This Edition:
- A Message from Employment Law specialist Hari Menon.
- An article by Hari Menon - Spring Cleaning Before the New Year.
- ACAS Early Conciliation - by Anna Datta
- Surviving Spouses' Pensions Restricted
- Date for your Diary - 15th January 2016 - Employment Grandstand
Welcome to this, the last edition of our Chambers Employment Newsletter for 2015. It seems only yesterday that we ushered in the last New Year, but almost another 52 weeks have drawn, almost imperceptibly, to a close. As they say, time flies when you’re having fun. This quarter opened with the publication of the evidence to the MoJ of the President of the Employment Tribunals and all Regional Employment Judges in England & Wales, authored by the President, Judge Brian Doyle. To deploy a euphemistic expression much loved of spin doctors and their political overlords, “it makes interesting reading”. The tenor of the submissions of Judge Doyle and his brethren was set early on in para.6 of 30 a paragraph document: “We start from the proposition that the introduction of fees has not been successful in achieving the original objectives of transferring a proportion of the costs from the taxpayer to those who use the Tribunal where they can afford to do so; encouraging parties to seek alternative ways of resolving their disputes; and maintaining access to justice.”. Here are some further “interesting” observations in the submissions:
1. The net income generated by fees has failed to achieve the proportion of
Employment Tribunal running costs which was set by the last government.
2. There is little evidence that the introduction of fees may have encouraged parties to
resolve their dispute by means other than proceedings.
3. Six out of 10 claimants who submitted a claim for early conciliation did not have
their claims resolved and did not then present a claim, thus tending to show that claimants were being discourage from pursuing claims because of the fees payable.
4. The fees payable by respondents have not resulted in a greater willingness to
embark on judicial mediation.
5. The fee remission system has not moderated the adverse impact on access to
One is tempted to ask those champions of the downtrodden who dreamt up the pressing need to charge fees - so what was it all for, boys? As if we didn’t know from the start.
In the midst of generally sombre statistics for claims issued in the Employment Tribunal since fees were introduced at the end of July 2013, there appears a small chink of light in the latest figures published by the MoJ this month which shows a 4% increase in single claimant claims for July to September compared with the same period in 2014. There was an even greater increase in multiple claims but the figures here are skewed by 2 especially large multiples which accounted for about 50% of the total number of claims.
Looking forward, I have the pleasure to announce our Grandstand Employment Seminar in Leeds on 15th January 2016. The flyers for this are on their way or have already landed in your Inboxes. It consists of workshops and talks by some accomplished speakers (i.e. all of them, including yours truly) and a particularly distinguished guest speaker in the person of retired Employment Judge Michael Malone, who will be especially well known to all those Equal Pay groupies out there. He will be speaking on a topic concerned with that very area of employment law. Please consult our flyer for further details.
See you anon or better still, at our Grandstand event in January. In the meantime, here’s to the doubtless, well-earned rest, if your loved ones will let you have one. I also come bearing Seasons Greetings for a Merry X’mas and the New Year from all of us in the Employment Team and our ever resourceful clerks.
Hari Menon, Parklane Plowden Employment Team: email@example.com
We welcome feedback and any topics requests for future e-newsletters. Please feel free to tweet us @parklaneplowden or email us at firstname.lastname@example.org.
Spring Cleaning Before the New Year
Griffiths v Secretary of State for Work & Pensions
Court of Appeal 10th December 2015
 EWCA Civ 1265
Here is a judgment from the reliable Elias LJ to usher in 2016. It tidies away a troublesome decision of the EAT, almost 5 years earlier to the day, in Ashton v Royal Bank of Scotland  ICR 632, a case under the Disability Discrimination Act 1995.
The problem with Ashton was that it effectively gave the green light to the appearance of equality at the expense of making reasonable adjustments. Elias LJ identified the two principal errors in Ashton. The first was formulating as the correct PCP a policy adopted by the employer which contained a discretion to make allowances for a disability. The defect in this formulation was that a policy could, by definition, never be discriminatory since it always contained a discretion. That would be so even if the discretion was not exercised. Secondly, according to the EAT in Ashton the correct comparator in a claim for failure to make reasonable adjustments was someone who was in the same relevant circumstances as the claimant but without the same disability. Elias LJ pointed out that the apparent sameness in treatment was not an antidote to a failure to make reasonable adjustments. If the disadvantage bit harden on the disabled claimant, or if his disability made it more likely that he would suffer the disadvantage that would render the employer guilty of a failure to make reasonable adjustments. The relevant question under s.20 of the Equality Act 2010 was whether the PCP put the disabled person at a substantial disadvantage compared to a person without that disability.
Moreover, the comparator test utilised in Ashton was taken from the decision of the House of Lords in Lewisham Borough Council v Malcolm a case concerning disability related discrimination under the 1995 Act. Malcolm had effectively been overruled by s.15 of the Equality Act 2010 as was observed by the Court of Appeal in Aylott v Stockon on Tees Borough Council  ICR 1278 in July 2010. It is a little surprising therefore, that the EAT was not referred to Aylott in either Ashton or in Griffiths, with the EAT in the latter case relying on its earlier decision in the former. Whatever the reasons for this, Ashton has enjoyed a thoroughly underserved longevity and it is quite right that it has now been put in the boot of the car and taken to the tip.
ACAS Early Conciliation – a new pitfall for Claimants?
In the case of Cranwell v Cullen, the Claimant felt that due to the nature of the allegations, early conciliation was doomed to failure. As a consequence, the Claimant purported to be ‘exempt’ from conciliation, despite the fact that none of the limited number of exemptions actually applied to her claim. The Employment Tribunal (ET) rejected the Claimant’s claim on the basis that she had failed to comply with section 18A.
The Employment Appeal Tribunal (EAT) were ‘sympathetic’ to the Claimant’s position, but interpreted section 18A strictly and dismissed the appeal. It was held that, whilst there is no obligation to participate in conciliation, there was a requirement to submit the claim to ACAS before proceedings could be launched.
The rules were applied equally stringently in the case of Sterling v United Learning Trust, where the EAT rejected an appeal on the basis that the early conciliation number had been incorrectly entered on the claim form. Again, the EAT sympathized with the Claimant’s situation but was unwilling to allow the appeal.
By contrast, in the case of Science Warehouse Limited v Mills the EAT rejected the Respondent’s appeal. At a Preliminary Hearing the Claimant had applied to add a new cause of action (a victimization claim), which post-dated the ET1. The Respondent objected solely on the basis that the Claimant had not undergone the ACAS early conciliation process in respect of the new cause of action. The ET allowed the amendment and the Respondent appealed.
The EAT dismissed the appeal and found that section 18A only applied to a prospective Claimant. In the EAT’s opinion, it was a matter for the ET, using their general case management powers, whether to allow an existing Claimant to add an additional claim to existing proceedings.
The case law is clear, section 18A should be interpreted by the ET strictly. To some extent, the ET’s approach may even seem to be draconian in nature.
From a Claimant’s perspective, it is a clear reminder to follow the process and ensure that claim forms are lodged well within time to avoid any issues, such as in Sterling v United Learning Trust.
In contrast, Respondents are well advised to check claim forms thoroughly for any failings in the ACAS early conciliation process. The case of Science Warehouse Limited v Mills demonstrates however that the literal interpretation of section 18A is a two way street.
Anna Datta, Parklane Plowden Employment Team - email@example.com
Surviving Spouses' Pensions Restricted
In the joined appeal of Dermod O’Brien v Ministry of Justice and Mr John P. Walker v Innospec & Ors  EWCA Civ 1000 the Court of Appeal has considered the impact of the Part Time Workers Directive (97/81/EC) (“PTWD”) and The Equality Act 2010 (“the Act”) upon pension claims. Of the two appeals, the latter is of most significance for the average employee (the first case concerned a Recorder).
Schedule 9, paragraph 18 of the Act states that, in relation to sexual orientation, the Act is not contravened if a person deprives another of access to a benefit, facility or service and the right to the same accrued before 5 December 2005 (the day on which section 1 of the Civil Partnership Act 2004 came into force). Similarly, it is not a contravention of the Act if the benefit that is withheld is otherwise payable in respect of periods of service before 5 December 2005.
On its face, therefore, the Act makes the position abundantly clear; even though he is now married, Mr Walker could not require a survivor pension to be paid in respect of any periods of service pre-5 December 2005 (in this case all of his service). The Employment Tribunal disagreed but the EAT reversed the decision.
On behalf of Mr Walker, it was argued that the act of discrimination was the refusal of the pension trustees to confirm his partner would be entitled to the pension, and that this act took place after the relevant date. The Court of Appeal rejected that argument; the trustees cannot be expected to confer a benefit on Mr Walker to which he was not entitled, and at the time of earning that entitlement the discriminatory treatment was in fact lawful. Legal certainty requires his entitlement to be judged by reference to EU law applicable at the time.
It was also argued on behalf of Mr Walker that the Act is incompatible with the Framework Directive (2000/78/EC), which established a general framework for combating discrimination. In rejecting this submission, the Court of Appeal agreed with the EAT: legislating that treatment (such as that complained of) is unlawful does not have the retrospective effect of rendering unlawful any treatment that, at the time, would have been considered lawful.
Finally, it was argued that the Act, being incompatible with the Framework Directive, had to be read in such a way as to be compatible. Clearly this question did not require an answer, given the Court of Appeal’s finding (above) that the Act is not incompatible. For the sake of completeness, the Court of Appeal said that the express provision within the Act to preclude a claim such as this meant that it could not be read another way (to do so would be to make new law) or be disapplied.
Accordingly, whilst Mr Walker’s position may on the face of it appear a just one, objectively his valiant attempts to navigate around the Act’s express provision, and around legal certainty, could not and did not succeed.
Tim Wilkinson, Parklane Plowden Employment Team firstname.lastname@example.org
Dates for Diaries:
15th January 2016 - Grandstand Employment Conference - Leeds
We will consider many of the recent legal developments in discrimination, whistleblowing and equal pay.
We are especially delighted to welcome EJ Michael Malone as our guest speaker. Michael retired from the bench last year to the disappointment of those who had the privilege of appearing before him. Much admired for his knowledge, fairness and good humour he has over a decade of experience as an employment judge, lawyer and contributor to employment law publications
In addition to this, he will be giving us an enlightening and informative view from the Bench on how to impress (and not to impress) employment tribunals