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The Perils of Lists of Issues in the Employment Tribunal

<!-- wp:paragraph --> <p>The EAT handed down its latest judgment in the case of <strong><u>Z v Y</u> [2024] EAT 63</strong> on 26 April 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>ET Decision:</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Z (“the claimant”) brought claims of unfair dismissal and disability discrimination against Y (“the respondent”).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In her particulars of claim the claimant materially stated:</p> <!-- /wp:paragraph --> <!-- wp:quote --> <blockquote class="wp-block-quote"><!-- wp:paragraph --> <p><em>The failure ... to make reasonable adjustments ... is a breach of the Equality Act 2010.&nbsp; The continuing state of affairs, refusing to allow me to return to work and to seek alternative employment, led to me ... resigning my post... I was Constructively Dismissed ... on 1<sup>st</sup> June 2018 – the last act of discrimination.</em></p> <!-- /wp:paragraph --></blockquote> <!-- /wp:quote --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET directed the respondent to prepare a draft list of issues ahead of a preliminary hearing on case management.  The respondent produced a generic list, leaving it to the claimant to identify which allegations were said to amount to each species of claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At the preliminary hearing, the claimant was directed to complete ‘<em>all of the detail required in relation to each head of claim in the respondent’s draft list of issues</em>’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claimant went on to provide further information and the respondent thereafter redrafted the list of issues.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The redrafted list of issues was discussed at the start of the final hearing and, ostensibly, agreed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>After the hearing, the ET gave its judgment in the following terms:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><em>The claimant was not dismissed contrary to section 95(1)(c) Employment Rights Act 1996 ('ERA') and her claim of constructive dismissal must fail and is dismissed.</em><br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em>The tribunal does not have jurisdiction to determine the complaints of disability discrimination as they were submitted outside the statutory time period laid down in section 123 Equality Act 2010 ('EA') and it is not just and equitable to extend time.</em><br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em>If the tribunal had found the claims in time all disability discrimination claims would have been dismissed as not well founded save for the following:</em><br><br><!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><em>That the claimant was treated unfavourably because of something arising in consequence of her disability contrary to section 15 EA and the respondent has not shown the treatment to be a proportionate means of achieving a legitimate aim when W on 31 January 2018 informed the claimant that he would no longer allow the possibility of her returning to her role under any circumstances.</em><br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em>That the respondent failed to make reasonable adjustments contrary to section 20 EA when W enforced a practice that all members of the team need to be co-located at a specific desk location in E H for operational reasons.</em></li> <!-- /wp:list-item --></ol> <!-- /wp:list --></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><br>In its written reasons, the ET materially stated:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>128. … that it was discrimination arising from disability to advise the claimant on 31 January that she could not return to her role. That and the failure to make reasonable adjustments … [ by W failing to allow a period of time within the phased return to work of the claimant sitting elsewhere] must therefore amount to a breach of the implied term of trust and confidence.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>The First EAT Appeal and Remission:</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At the first appeal against the reject of her claim, the claimant was successful.&nbsp; The EAT (John Bowers KC) directed that the matter be remitted to the ET to determine the following questions:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><em>Accepting that, at least in part, the claimant had resigned in response to the respondent's fundamental breach of contract (as found by the ET at paragraph 128), did she waive the breach of the contract or affirm the contract notwithstanding the breach?</em><br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em>Having failed to address the question whether any of the claimant's allegations amounted to a continuing act (a matter that had been expressly identified in the list of issues): whether or not there were continuing acts in respect of the breaches identified at paragraphs 3.1 and 3.2 of the ET's decision?</em></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Having thereafter heard further evidence and submissions on these points, on remission the ET held that:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><em>The claimant was constructively unfairly dismissed by the respondent.</em><br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em>There was no continuing act in relation to the Equality Act claims which were submitted out of time. The tribunal having no jurisdiction to determine them they are dismissed.</em></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Whereas it had been argued that the ET should consider whether the constructive dismissal was itself discriminatory, the ET stated:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>22. … it was never one of the tribunal's issues that this was a discriminatory constructive dismissal.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>The Second EAT Appeal:</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>One of the grounds in the second appeal was that it was perverse for the ET to find that the claim did not include a case of discriminatory dismissal, and thus to exclude that matter when considering the question of continuing act for the purpose of determining whether the Equality Act 2010 claims had been brought out of time.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As summarised by The Honourable Mrs Justice Eady DBE (P) in her judgment at paragraph 29:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>...[T]he claimant says the conclusion that discriminatory constructive dismissal was not an issue before the ET was perverse given its earlier finding that acts of disability discrimination upheld by the ET "must therefore amount to a breach of the implied term of trust and confidence", and the finding, on remission, of constructive dismissal, in circumstances in which the claimant's resignation being a "final act of discrimination" was pleaded in the ET1 in two places. As for whether this was envisaged in the list of issues, the claimant observes that the respondent's draft list referred to sections 13, 15 and 20 <strong>EqA</strong>; there was no suggestion that it was necessary to expressly refer to section 39. In any event, the ET was not required to "stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence", <strong><u>Parekh v Brent LBC</u> </strong>[2012], EWCA Civ 1630, as applied in <strong><u>Mervyn v BW Controls Ltd</u> </strong>[2020] EWCA Civ 393.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As to this ground, the respondent contended that the ET:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>"… gave the Claimant every opportunity to confirm that she was alleging a discriminatory dismissal. She did not do so."</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>And that the ET had followed the guidance of HHJ Auerbach in <strong><u>McLeary v One Housing Ltd</u> UKEAT/0124/18</strong> and had sought meticulous clarification of the claimant’s claims at the outset of the final hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Giving her judgment on the above ground, Mrs Justice Eady stated:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"start":54} --> <ol start="54"><!-- wp:list-item --> <li><em>...First, as part of her pleaded case, the claimant had made clear that her claims of disability discrimination ...included a complaint of discriminatory constructive dismissal, relied on as "the last act of discrimination" and "the final act of discrimination … due to my mental health disability". Second, although the claimant was directed to provide further clarification of how her case was put, that was in relation to the various forms of prohibited conduct on which she relied; at no stage was she asked to clarify the particular cause of action engaged under section 39 <strong>EqA</strong>. Third, in responding to the respondent's draft list of issues, the claimant had included the various matters she relied on as giving rise to the constructive dismissal; thus, the particulars provided under the heading "Unfair Constructive Dismissal" had included allegations that were also relied on as acts of disability discrimination under the various headings for the different forms of prohibited conduct that were said to be in play. Fourth, although the claimant had not then repeated her complaint of constructive dismissal under each of the different prohibited conduct headings, at no stage was she asked whether she had withdrawn that claim, which had been made plain (one might say (per <strong><u>Mervyn</u> </strong>and <strong><u>McLeary</u></strong>) "shouted out") from the case she had originally pleaded.</em></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:list {"ordered":true,"start":55} --> <ol start="55"><!-- wp:list-item --> <li><em>In his carefully balanced submissions for the respondent, Mr Hodge contended that, notwithstanding the apparent failure to clarify with the claimant whether she had in fact intended to withdraw her pleaded claim of discriminatory constructive dismissal, the ET was entitled to proceed on the basis that, had this remained a live cause of action, the claimant could reasonably have been expected to have identified the act of constructive dismissal under each relevant prohibited conduct heading. In my judgement, however, this would be to elevate the list of issues to the status of a pleading. Instead of being a useful tool of case management, it would become a formal replacement for the claim; that is neither its function nor its purpose. As the Court of Appeal made plain in <strong><u>Parekh</u></strong>, an ET should not stick slavishly to the agreed list of issues where to do so would impair its core duty to hear and determine the case before it. In the present proceedings, that case had included a claim of discriminatory constructive dismissal, which had never been withdrawn. Moreover, the fact that this claim had been missed from the list of issues was entirely explicable from the focus on the different forms of prohibited conduct and the apparent failure to also ask the claimant to clarify (to the extent that that would have been considered necessary) the specific way/s she was putting her case under section 39. Whether the ET's failure to recognise that this was an issue in the case is characterised as "perverse", or as a straightforward error of law in failing to address a claim that it was required to determine, I am satisfied that it was wrong in law for the ET to decline to determine the claim of constructive discriminatory dismissal that was before it...</em></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong><em>Suggested Takeaways:</em></strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>If a claim is clearly pleaded but is not included in a list of issues, seek a dismissal upon withdrawal.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>If a pleading is ambiguous as to whether a matter is intended to amount to a claim, ventilate the issue at the earliest opportunity before the ET and seek confirmation either way (then ask the ET to record the answer).</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Invite the ET to direct the parties to notify them within a short period if there is any disagreement about the content of the list of issues agreed during the course of preliminary case management.</li> <!-- /wp:list-item --></ul> <!-- /wp:list -->

Pregnancy and Maternity Discrimination in the Workplace &#8211; Changes in 2024

<!-- wp:paragraph --> <p>2024 has already brought some significant changes to pregnancy and maternity discrimination law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But what are they? A re-hash of what was already there? A step too far? Or a great rebirth of maternity protection?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This article seeks to reflect those key developments, and what they might mean for women, employers, and practitioners alike.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>(1) An Extension of Redundancy Protections</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Until 6<sup>th</sup> April 2024, Regulation 10 of the Maternity and Parental Leave Regulations 1999 (“MPL”) offered some women positive discrimination, rarely seen outside disability discrimination law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If it was not practicable by reason of redundancy, to continue to employ someone during their maternity leave, that person obtained priority status for any suitable alternative employment. If a role was suitable, they had to get it. Otherwise, it is Automatic Unfair Dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>From 6<sup>th</sup> April 2024</strong>, it has been substantially widened. That priority now also extends to:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>‘The Protected Period’, being from when the employer is informed of a pregnancy, until either Statutory Maternity Leave (“SML”) starts, or 2 weeks after the pregnancy (if there is no SML);</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>‘The Additional Protected Period’. This starts after SML, and ends 18 months after the expected week of childbirth (see exact wording for the specific day);</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>This could triple the protection women have. It extends this positive discrimination from not only the period of maternity leave, but to potentially around nine months beforehand, and potentially nine months or so afterwards.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Employers must be aware of this when conducting any redundancy exercise. No longer must they only consider those women on maternity leave for any suitable alternative role. Now, they must consider anyone whom they have been told is pregnant, or whom has recently returned from maternity leave. This will likely encapsulate many more persons.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>(2) Widening of Section 18 EQA 2010</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 18 EQA 2010 offers protection from unfavourable treatment because of the protected characteristic of pregnancy and maternity. However, it has had its drawbacks.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before this year, it only applied during the ‘protected period’, which was the duration of any pregnancy and maternity leave. This was the specific impact of S.18(5) EQA 2010. Perhaps that sounds sensible?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, what about the woman returning from maternity leave, whom finds their role has been changed, their office occupied, and themselves isolated in the workplace, all because she had been pregnant?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>That is unfavourable treatment due to maternity, but they seemingly had no claim under S.18. They would have had to rely on S.13 EQA 2010, and (potentially) the difficult comparative exercise which that can entail. Even then though, would a man returning after one year have been treated any differently? Perhaps not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>From 1<sup>st</sup> January 2024</strong>, the position is different. The EQA 2010 (Amendment) Regulations 2023 have amended S.18(2) EQA 2010, and removed S.18(5) EQA 2010. This means that if treatment was due to pregnancy, but occurred after the protected period, S.18 claim still exists. This seeks to reflect the ECJ decision in <strong>Brown v Rentokil [1998 ICR 790]</strong>. S.18 also offers protection if a person has ‘exercised’ the right to maternity leave.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is a further protection for women, particularly when no indirect discrimination or harassment claims can be brought on the grounds of pregnancy/maternity (See S.19 and S.26). It is arguable that EU Law may well have offered this protection in any event through <strong>Brown</strong>, but having it codified in S.18 is certainly helpful, particularly post-Brexit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>(3) Direct Discrimination</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Again, until this year, S.13(7) EQA 2010 prevented women claiming that less favourable treatment due to breastfeeding, was direct sex discrimination in the workplace. Again, this was in conflict with EU Law, such as the ECJ decision in <strong>Otero Ramos v Servicio Galego de Saude [2018 ICR 965].</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This caused an issue. If you were dismissed due to breastfeeding in the workplace, (unless you could rely on EU Law) the statute prevented a S.13 Direct Discrimination Claim ‘because of sex’. A S.18 EQA 2010 claim might have been closed too, for the reasons above. This was unsatisfactory.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>From 1<sup>st</sup> January 2024</strong>, Section 13(7) is no more. This means that less favourable treatment due to breastfeeding can now be direct sex discrimination.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Recent case law has assisted in this area too. Cases such as <strong>Commissioner of the City of London Police v Geldart [2021 ICR 1329]</strong>, suggest that a woman who has been treated unfavourably on the ground of pregnancy or maternity, would not need to compare herself to a man to establish direct sex discrimination. If the ‘reason why’ question suggests pregnancy/maternity was the reason for the treatment, a direct sex discrimination claim will likely succeed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>What is gained by this, is a good question.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 18(7) prevents a S.13 direct sex discrimination claim being brought, if a S.18 claim can be brought on the same facts. Given the widening of S.18, as described above, this could arguably make some of the benefits of the widening of S.13 redundant. In reality, the key benefit is likely to concern less favourable treatment due to breastfeeding, which will now certainly succeed as a S.13 Direct Sex Discrimination claim, if not under the new widened S.18.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A final option might be a Section 13 EQA 2010 claim, for direct discrimination ‘because of pregnancy or maternity’. It is again questionable what the benefit in it might be. Such a person has S.18, which does not need a comparator. However, given the specific wording of S.18(7) EQA 2010, it seems that S.18 does not prevent such a claim of S.13 direct <em>pregnancy/maternity discrimination, </em>even if a S.18 claim could succeed on the same facts.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>(4) The Paternity Leave (Amendment) Regulations 2024</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>And to close, one for the fathers. If the expected week of childbirth is after <strong>6<sup>th</sup> April 2024</strong>, there is now greater flexibility in when paternity leave can be taken. It can now be taken any time within the first year of birth, and can be taken in 2 x 1-week blocks, rather than only in 2-week blocks.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Some of these changes are codification of ECJ caselaw. Yet, their codification in the EQA 2010 is of real assistance for litigants, employers and practitioners alike.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The impact of the changes to the EQA 2010 are notable. Unfavourable Treatment by an employer because of pregnancy/maternity is now more likely to lead to a successful claim, either under S.13 or S.18. Employers may now lose the technical arguments about ‘protected periods’, which may have allowed them to defend many a claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But some changes have far more weight. The impact of the changes to the MPL regarding redundancy is clear, and employers must be alive to them. They offer a significant widening of the protection to women, potentially giving them priority treatment in redundancy situations for over two years of their working life. It is the making of reasonable adjustments on a vast scale indeed.</p> <!-- /wp:paragraph -->

A reminder from the EAT that Employment Tribunals must have regard to disabilities of litigants in person during case management stages

<!-- wp:paragraph --> <p><em>Mr B King v Gemalto Thales UK Ltd 2024 EAT 34 (8 March 2024)</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr King (“the Claimant”) started working for Thales (“the Respondent”) in December 1999. The Claimant is vulnerable with mental health conditions. He brought an unfair dismissal claim to the Employment Tribunal which was dismissed due to it being submitted out of time. The Claimant brought a further separate claim alleging sex discrimination. A Preliminary Hearing was held to consider whether the second claim also included a claim of disability discrimination and whether the claim of sex discrimination was an abuse of process.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At first instance an Employment Judge concluded that the first claim did not include a claim of disability discrimination. Nonetheless, they upheld the Respondent’s abuse of process argument which resulted in the dismissal of the sex discrimination claim and refusal of the application to amend the second claim to add disability discrimination.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT, presided by His Honour Judge James Tayler, considered several legal principles as part of the appeal. For the purposes of this article, it is pertinent to note paragraph 58 of the Judgment as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“58. An Employment Tribunal may have to take account of learning difficulties and mental health issues that make a witness vulnerable in two principle ways:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>58.1. &nbsp;the Employment Tribunal may have to adjust its procedures to permit a witness to give his or her best evidence. A failure to make an adjustment could possibly be so serious as to render the hearing unfair</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>58.2. &nbsp;it may be necessary for the Employment Tribunal to take vulnerability into account when assessing the evidence of a witness. A failure to do so could possibly:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>58.2.1. &nbsp;be so serious that the hearing is unfair</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>58.2.2.  involve a failure of the Employment Tribunal to direct itself to the relevant</em> <em>law</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>58.2.3.  undermine the Employment Tribunal’s analysis of the evidence to such an</em> <em>extent that a decision might be perverse, even taking account of the high threshold of showing perversity – this might be in connection with any other errors of analysis of the evidence or application of the appropriate legal tests”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Furthermore, the EAT recorded:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>&nbsp;“Although the legal duty to make reasonable adjustments pursuant to the Equality Act 2010 does not apply to the employment tribunal, it is well established that the tribunal should make such adjustments as are necessary to ensure a fair hearing: Heal v University of Oxford [2020] ICR 1294, at paragraph 18.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Finding</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT found that in undertaking the broad, merits-based assessment, including the analysis of the Claimant’s evidence, the first instance Judge was required to take account of The Claimant’s vulnerability. Emphasising that “<em>proper allowance should have been given to Mr King’s vulnerability when assessing his evidence</em>” at paragraph 87. The EAT remitted the matter to a new tribunal for a fresh assessment, tasking it with considering all relevant factors, including the precise nature of the Claimant’s claims, the reasons for not bringing those claims earlier, the impact of his mental health conditions, and the possible prejudice to the Respondent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This case acts as a helpful reminder of the importance in having regard to disabilities of litigants in person during case management stages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Employment Tribunals are obliged to ensure substantive fairness, allowing parties to effectively participate throughout all stages of the process. In utilising judicial discretion, the Tribunals must weigh in the balance of fairness and access to justice for all parties including vulnerabilities of individuals. It follows that at a final hearing witnesses should also be afforded the opportunity to provide reliable evidence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Helpful resources for Tribunal users:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf" target="_blank" rel="noreferrer noopener"><strong>Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings.</strong></a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.theadvocatesgateway.org/toolkits-1-1-1" target="_blank" rel="noreferrer noopener"><strong>The Advocate’s Gateway Toolkits</strong></a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.judiciary.uk/about-the-judiciary/diversity/equal-treatment-bench-book/" target="_blank" rel="noreferrer noopener"><strong>Equal Treatment Bench Book</strong></a></li> <!-- /wp:list-item --></ul> <!-- /wp:list -->

Parklane Plowden Podcast – A missed opportunity for workplace sexual harassment law

<!-- wp:paragraph --> <p>Listen to Parklane Plowden’s latest PLP Podcast – A missed opportunity for workplace sexual harassment law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, making changes to the remedy provisions in the Equality Act in relation to sexual harassment at work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden employment barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/roger-quickfall/">Roger Quickfall</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> explore the current protections for employees suffering sexual harassment and the journey behind the legislative change.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>They discuss why an opportunity was missed with the upcoming legislation in relation to protecting employees from third party sexual harassment such as that by clients of their employer and how employers and practitioners can prepare for when the new legislation comes into force.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Helpful resources and further reading:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><a href="https://www.legislation.gov.uk/ukpga/2023/51/contents">Worker Protection (Amendment of Equality Act 2010) Act 2023</a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://bills.parliament.uk/bills/3205">History of the progress of the Bill where the debates can also be found</a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://metoomvmt.org/">Me too </a></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Listen to the podcast below:</p> <!-- /wp:paragraph -->

Rule 50 in the spotlight: privacy in the Employment Tribunal &#8211; a recent case and some practical tips

<!-- wp:paragraph --> <p><strong><u>The key provisions in brief</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>Rule 50</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under r50:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“(1)&nbsp;A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers <u>necessary in the interests of justice</u> <strong>or</strong> <u>in order to protect the Convention rights of any person</u> or in the circumstances identified in section 10A of the Employment Tribunals Act.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(2) In considering whether to make an order under this rule, the Tribunal <u>shall give full weight to the principle of open justice</u> <strong>and</strong> to the Convention right to <u>freedom of expression</u>.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>R50(3) contains a list of illustrative orders the Tribunal may make. That includes:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>R50(3)(a) – An order that a hearing, or part of a hearing be held in private.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>R50(3)(b) – Anonymisation orders applying to parties, witnesses, or other people referred to in proceedings. Anonymisation can relate to the course of the hearing, in the list, and/or any documents forming part of the public record, such as the judgment or reasons.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>R50(3)(c) – An order for measures preventing witnesses at a public hearing being identifiable by members of the public, such as screens.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>R50(3)(d) – A restricted reporting order (<strong>“RRO”</strong>) within the terms of s11 or 12 of the Employment Tribunals Act 1996 (<strong>“ETA”</strong>). Respectively, these sections relate to sexual misconduct/offences and disability (see below).</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Under r50(5), an RRO must meet certain requirements:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“(a)&nbsp;it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b)&nbsp;it shall specify the duration of the order;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>S10 ETA</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal can be invited to sit in private to hear evidence which is likely to consist of information which:</p> <!-- /wp:paragraph --> <!-- wp:list {"type":"lower-alpha"} --> <ul><!-- wp:list-item --> <li>Has been communicated or received in confidence.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Would cause substantial injury to the Respondent.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em><u>S11 ETA</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In cases involving allegations of the commission of sexual offences, s11 ETA (read with r50) enables the Tribunal to grant anonymity to those affected by or making an allegation of the commission of sexual offences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In cases involving allegations of sexual misconduct, it enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sexual misconduct means <em>“the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed”</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sexual offence means any offence to which certain statutory provisions, including SO(A)A apply.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The RRO should prevent the reporting of any matter likely to lead members of the public to identify the person affected by (i.e. the alleged perpetrator), or the person making (i.e. the complainant), the allegation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>S12 ETA</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In a <em>“complaint which relates to disability in which evidence of a personal nature is likely to be heard”</em>, s12 ETA (read with r50) enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Evidence of a personal nature means <em>“any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported”</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>Sexual Offences (Amendment) Act 1992 (“SO(A)A”)</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>S1 grants lifelong anonymity to those alleging commission of sexual offences:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“(1)&nbsp;<em>Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(2)&nbsp;<em>Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.”</em> </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Accused means charged with an offence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>No such protection is extended to alleged perpetrators, by virtue of their status alone. However, cases of ‘jigsaw identification’ – where revealing the identity of the perpetrator would be likely to lead to identify the person making the allegation – may necessitate an order being sought in relation to the alleged perpetrator under s1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em><u>Z v Commerzbank AG </u></em></strong><strong><u>[2024] EAT 11</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>Facts</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant made discrimination allegations and alleged that a female colleague, Q, had sexually harassed and sexually assaulted him. After he was dismissed by Commerzbank, he brought a claim against it and other Respondents, including Q.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>First instance</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On application, restricted reporting and anonymity orders were made in respect of the Claimant and Q.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In relation to the Claimant, the Judge found that he was protected for life by operation of s1 of the SO(A)A. In respect of the anonymity order, she decided to make the same order in the interests of justice under r50(3)(b) to give effect to the SO(A)A. She also made a restricted reporting order (<strong>“RRO”</strong>) of indefinite duration under r50(3)(d). She considered freedom of expression under art 10 but held that it was proportionate to protect the Claimant’s art 8 right to privacy because <em>“the test of strict necessity </em>[in r50] <em>is satisfied in the case of a victim of an alleged sexual offence”.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In relation to Q (and her husband), who did not enjoy the protection of SO(A)A, similar orders were made, but of limited duration until the promulgation of the liability judgment. The Judge referred to art 10 but found it was outweighed by Q’s art 8 rights. She held that post-promulgation restrictions fall outside the statutory exception in s11 ETA.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At the liability hearing, the Tribunal concluded that the Claimant’s account was false and made up. It dismissed all his claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Respondents applied to lift the anonymity order and RRO (<strong>“the privacy orders”</strong>) in respect of the Claimant, and to extend them in relation to Q.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of Q, the privacy orders were varied to have indefinite effect. Whilst not the subject of any appeal, Mr Justice Kerr expressed discomfort that the orders had no sunset or lapsing provision requiring a conscious decision to extend the duration of the order periodically.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of the Claimant, the Tribunal revoked the privacy orders, subject to a temporary stay for any appeal. It referred to Mr Justice Soole’s decision in <strong><em>A v X </em></strong>UKEAT/0113/18, noting that there appears to be no direct authority on whether and if so how the Tribunal should give effect to the SO(A)(A).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal concluded that there had been a material change of circumstances sufficient to enable the Tribunal to consider revoking the privacy orders:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“The exceedingly serious allegations on which the Claimant based his application for anonymity have been considered, comprehensively dismissed and found to be false and, in large part, made up. The foundation on which EJ Brown necessarily approached the application, namely that the Claimant was relying on sincere allegations advanced in good faith, has been exploded.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The power to make the order lay under r50, not SO(A)A, and the power to revoke it under r29. The correct approach was to exercise its case management powers under r29 <em>“in keeping with the spirit and intention” </em>of SO(A)A. That involved recognising that protection under the SO(A)A is automatic and in principle permanent. The rationale being to avoid discouraging victims from making complaints for fear of distressing publicity. However, the Employment Tribunals Rules of Procedure enable the Tribunal to remove or relax that protection in special circumstances:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“We simply cannot accept that the law is powerless to separate the Claimant from a protection to which, as is now apparent, he was never entitled. It is to us unthinkable that our procedural law, founded on the overriding objective of deciding cases justly, could contemplate such a bizarre and unjust result.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It went on to consider the balancing exercise of competing interests and concluded that art 10 clearly outweighed art 8:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“His is a most unusual story and we can well see why it would be of considerable interest to the press and the public. His identity would be a matter of legitimate interest given the Tribunal's findings, in the way that Q's would not. Against the interests of open justice and freedom of interest, we see no countervailing argument based on the Claimant's Convention rights. If, as we have held, he did not have a sustainable right to litigate anonymously, it cannot be said that his right to respect for his private life would be violated as a consequence of the anonymity being lost.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>Appeal</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant appealed the revocation of the anonymity order and RRO.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Justice Kerr identified four strands of authority: the common law; art 8; SO(A)A and ETA read together with r50. He described this as a <em>“complex interaction”</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was no dispute between the parties regarding the principle of open justice and derogations from it applying the common law or art 8, balanced against art 10. There are many authorities dealing with this balancing exercise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>He noted that:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The protection of s1 SO(A)A is statutory an therefore automatic – there is no need for the trial court to make an order mirroring it.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>By s1(4), the section does not prohibit publication of a report of a subsequent trial of the complainant for perjury or perverting the course of justice.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>There are provisions to allow removal or relaxation of the s1 protection, but these must not be given by reason only of the outcome of the trial.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Mr Justice Soole reviewed several authorities where it had been assumed that s1 SO(A)A applied to a Claimant making an allegation in the Tribunal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>He held that the words <em>“an allegation has been made” </em>in s1(1) SO(A)A<em> “refer to the making of an allegation in circumstances which raise, or are intended to raise, a real possibility that a criminal charge will follow.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Such an allegation need not be made by the alleged victim. For example, a complaint by a parent to police that their child has been sexually assaulted would trigger anonymity for the child.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>He stated:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>"the accurate formulation is that "allegation" in section 1(1) refers to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought. The paradigm case is a complaint to police. Other complaints made seriously and intended to or likely to be acted upon might be to a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>It follows that I do not think an ""allegation"" in section 1(1) includes, without more, an allegation made in civil, family or tribunal proceedings of conduct that, if committed, would be one of the sexual offences covered by the 1992 Act.“</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant nor anyone else had made such an allegation against Q and the Judge at first instance was wrong to conclude he was entitled to the protection of the SO(A)A.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, Mr Justice Soole commented, obiter, there will be a difficulty in other cases where the requirement in s1(1) is satisfied, for example where a serious complaint of a sexual offence has been made to police by the time the allegation of the same conduct is made in the Tribunal. In those circumstances, the only means of removing the protection of SO(A)A is in accordance with its provisions, for example if there is a subsequent trial for perjury or if a Justice of the Peace of a Crown Court Judge decides to relax the restriction.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>He noted the cross reference to SO(A)A in s11(6) ETA as suggesting that parliament had in mind the possibility that the protection of SO(A)A could apply in cases where the same conduct is alleged as a criminal matter and in the Tribunal. In such cases, a privacy order would be made under r50.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The lacuna, however, is that an Employment Judge does not have the corresponding power given to a Justice of the Peace of a Crown Court Judge to remove the restriction in circumstances where the Tribunal decides a complaint is false. The solution may here lie with Parliament.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Albeit for slightly different reasons, the Tribunal at first instance was therefore correct to revoke the privacy orders in respect of the Claimant. It was <em>“difficult to think of a more striking change of circumstances”</em> and the art 10/art 8 balance had been struck correctly.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Some practical tips</u></strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Privacy orders should be considered in any sex-related or sexual harassment claim</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>In disability-related cases they are rarer</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The parties cannot agree to a departure from open justice – the Tribunal will not merely approve an agreed order, but will need to consider whether a derogation from open justice is necessary</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The interests of justice and protection of a person’s Convention rights are two distinct but often overlapping grounds upon which derogation from open justice can be sought</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The party seeking the privacy order has the burden of proving it is necessary to deviate from the principle of open justice</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Evidence should therefore be adduced in support of such an application e.g. medical evidence if an assertion is made of risk of damage to health, evidence of any complaint to police</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Tribunal may need to hear witness evidence e.g. to determine whether revealing certain information could lead to jigsaw identification of a complainant</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A draft order should be prepared to accompany the application, with thought being given to precisely what is sought e.g. Anonymity? Of whom? An RRO? For how long?</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Applications should ideally be made at a preliminary hearing in advance of the final hearing</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>There may be consequential impacts of a privacy order on case preparation e.g. redaction, labelling of individuals by letters, preparation of one bundle for the parties and a redacted bundle for the public</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>For a fuller discussion of this topic, join <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> at <a href="https://www.parklaneplowden.co.uk/20-march-2024-employment-grandstand-seminar-newcastle/">Parklane Plowden’s Employment Grandstand on 20 March</a> for her talk: <em>The Limits of Open Justice: Anonymity and Privacy Issues in the Tribunal</em>.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd &amp; Ors [2024] EAT 16 (23 February 2024)

<!-- wp:paragraph --> <p><strong><u>The Background</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant/Appellant applied to the Employment Tribunal to be allowed to record a three-day preliminary hearing. The Employment Judge declined to grant the application as he was not satisfied with the evidence in support or that there was any significant disadvantage to the Appellant. In reaching his decision, the Judge did not refer to the guidance provided on this question in <strong><u>Heal v University of Oxford [2020]</u></strong> ICR 1294. Although the guidance in Heal is not mandatory, is in important in considering an application to record proceedings and by not referring to it, the Judge then failed to take into account factors material to the assessment of the Appellant's application. The Judge should therefore have granted the application and it was right to make a declaration that the decision not to do so was unlawful.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The Law</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Employment Tribunal is under a duty to make reasonable adjustments in appropriate circumstances. Whilst the language of reasonable adjustments appears in s. 20 of the Equality Act 2010, that section does not provide the source of the relevant duty as was made clear by Underhill LJ in&nbsp;<strong><u>J v K [2019]</u></strong>&nbsp;ICR 815, albeit in the context of an application for an extension of time for the presentation of a complaint to the employment tribunal:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"className":"is-style-default"} --> <p class="is-style-default"><em>"...judicial decisions are excluded from the scope of the Act: see paragraph 3 of Schedule 3 to the Act. But as a matter of general law the exercise of a judicial discretion must take into account all relevant considerations, and in such a case the party's mental condition or other disability would plainly be a relevant consideration."</em> [33]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Langstaff J in <strong><u>Rackham v NHS Professionals Ltd</u></strong> UKEAT/0110/15/LA said as to the level of review to which and Employment Tribunal's decision on reasonable adjustments could be subject to scrutiny at the EAT level:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>"In this case, though we are attracted to the proportionality analysis that Miss Joffe proposed and that Mr Horan in reply adopted, we do not think that the decision actually depends upon the approach we take, though we would observe that we would be very hesitant before suggesting that a pure&nbsp;Wednesbury&nbsp;approach was appropriate in any case in which it appeared to the reviewing court that it would have been reasonable to have to make an adjustment if that adjustment appeared necessary to obtain proper equality of arms for someone with a relevant disability</em>."[46]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In addition, the court observed as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“<em>In many cases, if not most, a person suffering from a disability will be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it</em>." [50]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The particular issue of whether a reasonable adjustment might be granted in the form of permission to record proceedings was considered by Choudhury J in the Employment Appeal Tribunal in <strong><u>Heal v The Chancellor, Master and Scholars of the University of Oxford &amp; Ors</u></strong> [2020] ICR 1294. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“a. Tribunals are under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in a party's ability to participate in proceedings.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>b. Where a disability is declared and adjustments to the Tribunal's procedures are requested in the ET1 form, there is no automatic entitlement for those adjustments to be made. Whether or not the adjustments are made will be a matter of case management for the Tribunal to determine having regard to all relevant factors (including, where applicable, any information provided by or requested from a party) and giving effect to the overriding objective.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>c. The Tribunal may consider whether to make a case management order setting out reasonable adjustments either on its own initiative or in response to an application made by a party.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>d. If an application is made for reasonable adjustments, the Tribunal may deal with such an application in writing, or order that it be dealt with at a preliminary or final hearing: see Rule 30 of the ET Rules.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>e. Where the adjustment sought is for permission for a party to record proceedings or parts thereof because of a disability-related inability to take contemporaneous notes or follow proceedings, the Tribunal may take account of the following matters, which are not exhaustive, in determining whether to grant permission:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>i. The extent of the inability and any medical or other evidence in support;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>ii. Whether the disadvantage in question can be alleviated by other means, such as assistance from another person, the provision of additional time or additional breaks in proceedings;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>iii. The extent to which the recording of proceedings will alleviate the disadvantage in question;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>iv. The risk that the recording will be used for prohibited purposes, such as to publish recorded material, or extracts therefrom;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>v. The views of the other party or parties involved, and, in particular, whether the knowledge that a recording is being made by one party would worry or distract witnesses;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>vi. Whether there should be any specific directions or limitations as to the use to which any recorded material may be put;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>vii. The means of recording and whether this is likely to cause unreasonable disruption or delay to proceedings.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>f. Where an adjustment is made to permit the recording of proceedings, parties ought to be reminded of the express prohibition under s.9(1)(b) of the 1981 Act on publishing such recording or playing it in the hearing of the public or any section of the public. This prohibition is likely to extend to any upload of the recording (or part thereof) on to any publicly accessible website or social media or any other information sharing platform."</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Comment</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Given the facts of the case, that there was evidence from a psychotherapist support the application, the application was not opposed by the Respondent, the Claimant was a litigant in person, the PH in question was to last 3 days, and the Claimant had previously been given permission to record hearings with no concerns over his use of those recordings, the outcome of the case is hardly surprising.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Considering the frequency with which disabled Claimants, or witnesses more generally, come before the ET, it is surprising how regularly reasonable adjustments are not considered at case management stage. When adjustments are considered and ordered, they are often conservative in nature. One reason for this conservatism may be an over-reliance on expecting Claimants to identify the adjustments they need, and the corresponding obvious difficulty for Claimants, not familiar with the ET process, to imagine what measures may alleviate disadvantages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It would be short-sighted for a Respondent representative, seeing no reasonable adjustments requested by a disabled Claimant, to fail to raise the matter. Of course primary duties are to the Tribunal, and Respondents must always bear in mind the Overriding Objective, and as such it would be sensible to always raise the matter of adjustments proactively at case management stage. In most circumstances, it is far better for a Respondent to have an effective final hearing with adjustments, albeit perhaps slightly longer, than a disrupted hearing, or worse, an appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Representatives will find useful guidance on reasonable adjustments in the context of vulnerable parties and witnesses in the <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">Presidential Guidance</a>. The Presidential Guidance refers to <a href="https://www.theadvocatesgateway.org/toolkits-1-1-1">The Advocate’s Gateway Toolkits</a> which cover a range of topics including cross examining witnesses with autism, dyslexia, ADHD, and deaf witnesses. For those representing Claimants with disabilities, the toolkits may be a helpful prompt to inform requests for meaningful reasonable adjustments.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

20 March 2024 | Employment Grandstand Seminar, Newcastle

<!-- wp:paragraph --> <p><strong>Successful Litigation for Employment Practitioners: Practical Guidance and Useful Tips</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers would be delighted if you would join our employment team specialists on the 20th March 2024 for an afternoon of talks giving practical guidance and useful tips on running a successful employment tribunal litigation. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Location: </strong><a href="https://www.bing.com/maps?mepi=101%7EDirections%7EUnknown%7EDirection_Button&amp;ty=0&amp;rtp=pos.54.97492980957031_-1.6094900369644165__Laing+Art+Gallery__e_%7E&amp;mode=d&amp;v=2&amp;sV=1&amp;cp=54.974913%7E-1.609465&amp;lvl=14.5">Laing Art Gallery</a><br>New Bridge Street<br>Newcastle Upon Tyne<br>NE1 8AG</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Time:</strong> 12:00 - 16:30</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>We are offering an early bird price of <strong>£50pp</strong> when registering to this event until the <strong>26 February 2024</strong>. Tickets will be <strong>£75pp</strong> after this date. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Programme</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>12:00 - 12:55 | Lunch and Refreshments</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>12:55 - 13:00 | Welcome</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>13:00 - 13:30 | <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/">Andrew Sugarman</a> - How to win in the Employment Tribunal: top 10 tips</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>13:30 - 14:00 | <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a> - Mastering the virtual maze: a guide to efficiently handling employment tribunal claims via the online portal</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14:00 - 14:30 | <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-dunn/">Robert Dunn </a>&amp; <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> - Case choreography and preliminary pizzazz: tips on navigating a CMPH</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14:30 - 14:45 | Break</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14:45 - 15:15 | <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> - The limits of open justice: anonymity and privacy issues in the tribunal</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15:15 - 15:45 | <a href="https://www.parklaneplowden.co.uk/our-barristers/nicola-twine/">Nicola Twine</a> - Striking the balance: when to apply (and when not to), strike out and deposit orders</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15:45 - 16:15 | <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/">Bethan Davies</a> - It’s all in the words: maximising your witness statements</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>16:15 - 16:30 | Questions and closing remarks</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lunch and refreshments will be served from 12pm with speakers starting at 13:00 until 16:30. Guests will then be welcome to join us in Chambers at Portland House for drinks.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If you are interested in attending please <a href="https://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&amp;d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x75E2A344A6368118|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x75E2A344A6368118|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">sign up here</a>. </p> <!-- /wp:paragraph -->

Bathgate v Technip [2023] CSIH: Broadening the scope of Qualifying Settlement Agreements

<!-- wp:paragraph --> <p>As all employment lawyers know, in order to protect them from being taken advantage of by unscrupulous employers, employees cannot ordinarily contract out of their employment rights.&nbsp;There are only two exceptions.&nbsp; They can do so in a contract of settlement made with the assistance of ACAS, known as a ‘COT3’, or they can do so in ‘qualifying settlement agreement’, but not otherwise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I recently came across the notes for a talk I gave back in 2006 in which I confidently stated that one of the differences between a COT3 and a qualifying settlement agreement (or a compromise agreement as they were then called), was that a COT3 could compromise claims arising out of future conduct whereas a qualifying settlement agreement could not.&nbsp; Following the recent Court of Session judgment in <strong><em>Bathgate v Technip </em></strong>[2023] CSIH 48, however, it appears that my confidence was misplaced.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Legal Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Since at least the House of Lords decision in <strong><em>BCCI v Ali </em></strong>[2001] ICR 337,it has been clear that parties can use a COT3 to compromise claims that have not even come into existence, although as Lord Bingham put it ‘If the parties had sought to achieve so extravagant a result they should in my opinion have used language which left no room for doubt’.&nbsp;That is because there is nothing to stop parties at common law from contracting out of future rights; and in order to fall into the ‘COT3’ exception, the only stipulation is that the agreement is ‘made with the assistance of ACAS’.&nbsp;In other words, any otherwise contractually enforceable agreement made with the assistance of ACAS will work; a point well illustrated in the context of post-employment victimisation in <strong><em>Arvunescu v Quick Release </em></strong>[2022] EWCA Civ 1600.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is slightly different with qualifying settlement agreements.&nbsp;To come within that exception there are a number of hoops that have to cleared, one of which is that the agreement must ‘relate to the particular complaint’.&nbsp;It might be thought that for an agreement to relate to ‘the particular complaint’ then the particular complaint must be capable of being in existence at the time the agreement is signed.&nbsp;That certainly was the view of the EAT in <strong><em>Lunt v Merseyside TEC Ltd</em></strong> [1999] ICR 17, when it said:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>'A compromise agreement cannot, therefore, seek to exclude potential complaints that have not yet arisen on the off-chance that they might be raised; it cannot, in other words, be used to sign away all the employee's tribunal rights, as can be done in the case of a negotiated settlement drawn up with the assistance of a conciliation officer.'</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>That also seems to have been the intention behind the statutory provisions, given the comments of Viscount Ullswater when he introduced the relevant statutory provisions in the House of Lords:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>'We are proposing that these procedures should only be available in the context of an agreement which settles a particular complaint that has already arisen between the parties to that complaint.'</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>That too was Lord Summers’s view when <strong><em>Bathgate</em></strong> was in the Scottish EAT.&nbsp;Drawing from the judgments of Mummery and Smith LJJ in <strong><em>University of East London v Hinton </em></strong>[2005] ICR 1260, that the broad purpose behind the legislation was to protect employees from relinquishing their rights; he concluded that the requirement that a settlement agreement ‘relates to the particular complaint’ could never be met in relation to a cause of action which had not emerged at the time of the agreement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Judgment of the Court of Session</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Needless to say, the Court of Session came to the opposite conclusion. It reasoned that if Parliament had intended to lay down rules limiting parties’ freedom of contract, it would have expressed them in clear and unequivocal terms; and it had not done so. In its view, all that the words ‘relate to the particular complaint’ required was that the complaint being made was covered by the terms of the contract. It could see no justification for putting a temporal limit on what could be compromised by a settlement agreement, when none existed for a COT3. On a natural reading of the settlement agreement signed by Mr Bathgate, future claims for age discrimination were covered. Accordingly his age discrimination claim, which arose out of conduct which post-dated that agreement, had been validly compromised even before the discriminatory conduct had occurred.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With respect to the Court of Session, its reasons do not seem to me to be entirely convincing. Firstly, it is abundantly clear that Parliament <em>was</em> laying down rules to limit parties’ freedom to contract. It does that in terms at section 144(1) of the Equality Act 2010. The section the Court was interpreting is an exception to that general prohibition, it is not itself a limitation to the right to contract.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Secondly, on one reading of the Court of Session analysis, the statutory requirement for the agreement to ‘relate to the particular complaint’ is entirely superfluous. If the agreement does not ‘relate to the particular complaint’ in the sense used by the Court of Session, then as a matter of contract it will not compromise the complaint. Surely Parliament intended something more by those words than a bland restatement of the obvious. Indeed, I do wonder whether the ubiquitous list of UK employment rights (which Smith LJ had warned against in <strong><em>Hinton</em></strong>) is really quite what Parliament had in mind either. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Thirdly, and perhaps most compellingly, on the Court of Session analysis, the central purpose of the prohibition on contracting out would seem to be undermined. On its analysis, there is nothing to prevent an unscrupulous employer from asking an employee (after advice from an insured lawyer and presumably some form of payment) to sign away their employment rights pre-emptively during the course of their employment. Surely it is that evil that the ‘particular complaint’ requirement was designed to prevent. By definition, ACAS will not become involved until a dispute has arisen, so there is less need for a similar protection in respect of a COT3. But that is not the case with legal advisors. Without some sort of safeguard, they could be brought in to give advice on the waiver of employment rights, even as the ink is drying on the employment contract. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Session is not technically binding in England and Wales, but its decisions are highly persuasive; and unless and until the issue is revisited by the Court of Appeal, it is likely to be followed. In the meantime, and out of an abundance of caution, I will still be advising employers to utilise a COT3 if they wish to be confident of compromising any claims arising out of future conduct.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/barristers/dominic-bayne"><em>Dominic Bayne</em></a><em>&nbsp;acted for Mr Bathgate before the EAT and at first instance.&nbsp;He is joint head of&nbsp;</em><a href="https://www.parklaneplowden.co.uk/expertise/employment"><em>PLP’s employment team</em></a><em>, and is recognised by the directories as one of the leading employment barristers on the North Eastern Circuit.</em></p> <!-- /wp:paragraph -->