Case round up

Our
resident experts at Pinsent Curtis Biddle bring you a comprehensive update on
all the latest decisions that could affect your organisation, and advice on
what to do about them

Vento
v Chief Constable of West Yorkshire Police, Court of Appeal
Guidance on the appropriate level of discrimination awards

*
* * * The applicant successfully claimed sex discrimination after suffering a
serious campaign of harassment. Initially, she had coped with the abuse but
ultimately suffered depression. She was dismissed on performance grounds.

The
tribunal awarded £165,829 for loss of future earnings, considering that had she
not been dismissed she would have had a 75 per cent chance of working until
retirement. A further award of £74,000 was made – £65,000 for injury to
feelings, £15,000 aggravated damages and £9,000 for psychiatric damages.

The
EAT overturned both awards. It said statistical evidence showed only 9 per cent
of women police officers served for more than 18 years. The tribunal’s approach
to loss of future earnings was radically out of step with these statistics. The
EAT reduced the injury to feelings awards to £39,000.

The
applicant appealed to the Court of Appeal which considered the tribunal’s
assessment of a 75 per cent chance of employment until retirement to be high
but nonetheless permissible. Statistical evidence could legitimately be over riden
by the tribunal’s assessment of the applicant.

Of
more general application was the Court of Appeal’s view of the injury to
feelings awards. It considered the tribunal’s award of £74,000 to be
"patently extravagant", particularly when compared with Judicial
Studies Board guidelines on general damages for personal injuries. The
appropriate award was £18,000 injury to feelings, with £5,000 aggravated
damages and £9,000 for psychiatric damage.

Key
points

The
Court of Appeal’s guidance on the level of injury to feelings awards was:


The top band is £15,000 to £25,000, to be awarded in the most serious cases, such
as lengthy campaigns of discriminatory harassment


Between £5,000 and £15,000 should be awarded for other serious cases


The lowest level of award is between £500 and £5,000, appropriate for cases of
isolated or one-off acts of discrimination


Where additional awards are made for aggravated damages or psychiatric damage,
the total of these awards should be assessed to ensure proportionality and a
just outcome

What
you should do


Train managers to recognise signs of harassment and provide guidance on how
they should respond


Tackle harassment early – if problems persists for a long time and no action is
taken, the level of award will be greater


Be prepared to apologise in appropriate cases. In this case, the high-handed
manner in which the complaints were addressed led to the award of aggravated
damages

Sainsbury’s
Supermarkets v Hitt,Court of Appeal
The ‘band of reasonable responses’ test restored for considering
adequacy of disciplinary investigations

*
* * * Hitt was dismissed for misconduct after missing stock was discovered in
his locker. He claimed the stock had been planted, naming other employees whose
locker keys fitted his own. Only one of these was in the store at the time and
he denied leaving his work area.  The
employer’s investigation showed that Hitt had had the opportunity to take the
stock and had left his work area twice that day. Hitt’s explanation was
rejected at the disciplinary hearing.

An
employment tribunal found the dismissal unfair as the allegation that the stock
was planted in the locker was not adequately investigated – all employees with
keys fitting Hitt’s locker should have been discounted and his manager should
have been eliminated from suspicion.

The
EAT rejected the employer’s appeal, ruling that the "range of reasonable
responses" test did not apply to the issue of whether the employer’s
investigation was adequate. This suggested tribunals could find a conduct
dismissal unfair on the grounds that they would have carried out further
investigations.

The
Court of Appeal overturned this approach and declared Hitt’s dismissal fair.
Employment tribunals cannot impose their own opinion of what was a reasonable
and adequate investigation.

Key
points

The
range of reasonable responses test is a fundamental part of unfair dismissal
law. It gives employers broad discretion in how they approach disciplinary and
other dismissals. Any reduction in the scope of this test introduces a less
predictable, more subjective standard of fairness. This ruling re-emphasises
that an employer acts fairly if his actions were among those open to a
reasonable employer on the facts of the case.

What
you should do


It is still important to ensure disciplinary investigations are thorough


Investigate what employees have to say and allow them time to produce any
relevant evidence


Train managers on how to deal with investigations and hearings. Encourage them
to take advice from HR during the process

Fox
v Betesh Fox Solicitors, EAT
A timely reminder that refusing requests for part-time work
could be discrimination

*
* * Fox worked as a full-time legal secretary. After maternity leave, however, she
asked to come back part time. Her request was refused – full-time secretaries
were required to support full-time lawyers and working part-time would place an
undue burden on other staff and the business as a whole. The applicant
suggested shorter hours, or job sharing, but these were also found to be unacceptable.

There
was no argument that Fox had suffered indirect sex discrimination. The only
issue being argued was whether the treatment was justified. The tribunal said
it was – the requirement for full time work corresponded to a real need of the
business and was consistent with its size, type of work performed and how the
work was organised.

The
EAT overturned this finding. The employment tribunal had failed to balance the
effect of the discrimination (both in terms of how many women were likely to be
disadvantaged and the impact of that disadvantage) against the alleged
justification.

Only
if the alleged justification was sufficient to outweigh the discriminatory
effect could the treatment be lawful.

Key
points

Flexible
working is a hot issue. From this April, employees with children aged six or
under or disabled children up to 18 have a new statutory right to request
flexible working.

The
statutory scheme includes a procedure which the employer must follow and
details the grounds for refusal of requests (see page 14).

This
new right does not replace existing liabilities. Employees will still be able
to rely on arguments of indirect sex discrimination if a request to change
working hours is refused. As this case shows, the key issue in such claims will
be justification. The outcome of the balancing exercise described above is
difficult to predict.

What
you should do


Issue a procedure governing flexible working requests, in line with the
statutory scheme. Train managers on how to follow it


Audit your working practices. Where does flexibility exist? If a job cannot be
done part-time, from home or on varied hours, why not? This audit will promote
a consistent and well considered approach to requests


Flexibility is an attractive selling point when recruiting and retaining staff.
Keep an open mind, be creative and even consult your staff on how flexible
working might be achieved

Case
of the month by Christopher Mordue  
Extended limits for discrimination claims will prolong tribunal
process

Hendricks
v Commissioner of Police of the Metropolis, Court of Appeal
A liberal approach to time limits for discrimination claims threatens
great expense and practical difficulties for employers

*
* * * * Hendricks claimed sex and race discrimination against the commissioner.
She alleged some 100 acts of discrimination by 50 police officers over a period
of 11 years. If her claim was allowed to proceed she would need to call some
100 witnesses in a hearing that would last up to three months. But had she
brought her claim in time?

The
EAT ruled the claim was out of time. 
There was no alleged discriminatory act in the three-month period prior
to her complaint being filed.

Hendricks
argued there was a "continuing act" of discrimination, a policy or
regime of discrimination against women and members of ethnic minorities. If
there was such a continuing act, time limits would not be activated until that
act came to an end.

However,
the EAT ruled there was no prima facie evidence of such discrimination. A
"continuing act" had to consist of a "policy, rule, practice or
regime" of discriminatory treatment. All of Hendricks’ allegations
concerned her own treatment and so could not be evidence of a generalised
policy of discrimination against all women and members of ethnic minorities.
There was no evidence of any link between the incidents of alleged
discrimination, which involved many individuals. Without that, no practice or
policy could be inferred.

Hendricks
successfully appealed to the Court of Appeal. It said the EAT’s approach to
identifying a "continuing act" was wrong. "Policies, rules,
practices or regimes" were only examples of continuing acts, not
exhaustive categories.

The
question was whether the commissioner was responsible for an ongoing state of
affairs in which female ethnic minority officers were treated less favourably.
If so, that could be an act of discrimination "extending over a
period". The burden would be on Hendricks to prove that continuing state
of affairs, especially a link between the incidents she complained of. However,
it was wrong to determine the time limit issue at the preliminary stage, without
hearing all of the evidence.

Key
points

A
more liberal approach to the concept of continuing acts of discrimination will
not necessarily make it easier to succeed with this type of claim. However, it
will make it harder for employers to have claims dismissed at a preliminary
stage. Tribunals will have to consider all the evidence before they can judge
whether the claim was made in time.  

The
practical difficulties of this sort of claim are not just longer hearings and
the consequent impact on legal fees and management time. If those involved have
moved on or cannot recollect the incidents or reasons for their actions, the
employer’s case will undoubtedly be weakened.

Changes
to the burden of proof in sex discrimination cases already mean that once a
prima facie case of discrimination is shown – that is less favourable treatment
and a difference in sex – it is for the employer to show that the treatment was
on non-discriminatory grounds (this approach will be adopted in cases of race
discrimination later this year). Without solid and reliable evidence, employers
may struggle to mount a cogent defence.

What
you should do


Adopt effective equal opportunities policies and practices. This means going
beyond paper documents. What practical steps or initiatives do you take to
promote diversity and equality?


Carry out equal opportunities monitoring, especially in recruitment, career
progression, appraisals, pay, discipline and grievances. Identify discrepancies
and investigate why these exist


Make sure managers keep records of all key decisions they take – promotion, pay
reviews, transfers, appraisals and disciplinary action, for example. These may
provide vital evidence in proceedings


Make sure employees know how to challenge discriminatory treatment through
grievance or harassment procedures and know their complaints will be treated
seriously

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