Case round-up

Roberts v West Coast Trains

Status of the contract of employment

This case concerns an unusual point: what happens to the contract of employment if an appeal against dismissal is successful?

Roberts was employed by South West Trains (SWT) as a chef. He was dismissed for alleged gross misconduct. However, two days later he exercised his right of appeal under the contractual disciplinary procedure and, before the appeal hearing took place, he also commenced proceedings in the Employment Tribunal claiming unfair dismissal.

Roberts’ internal appeal was successful to the extent that his dismissal was overturned with a finding that he should instead be demoted. SWT was permitted to take this action in accordance with its contractual disciplinary procedure and the period between dismissal and his demotion was treated as a period of suspension without pay. Roberts, however, did not return to work and, ultimately, SWT concluded that he had resigned from his post. Roberts continued to pursue his unfair dismissal claim, arguing that he had been dismissed and subsequently offered a new contract of employment that he turned down.

Both the Employment Tribunal and the EAT found in favour of SWT and Roberts appealed to the Court of Appeal. Roberts’ argument was that, when he made his claim to the Employment Tribunal he had, in fact, been dismissed and that the demotion was an offer of a new employment, which he could accept or reject.

SWT argued that the decision to reduce the sanction to a demotion had been made in accordance with the terms of the contractual disciplinary procedure and his previous contract had therefore been resurrected.

The Court of Appeal agreed with SWT and held that Roberts was not entitled to bring a claim for unfair dismissal. The Court of Appeal also held that the demotion in this case did not involve the termination of the existing contract and the entering into of a new contract, rather it was a revival of the existing contract.

One reason that the Court of Appeal found in favour of SWT was that the steps that SWT took had been envisaged by a contractual disciplinary procedure. This case provides clear guidance on a potentially complex subject.

What you should do

  • Ensure you comply with your dismissal procedures. With the introduction of the new statutory dispute resolution procedures it will be sensible to review the procedures to ensure they are compliant with the new statutory provisions.
  • Demotion of an employee as a disciplinary sanction should only be imposed in appropriate cases and where the sanction is anticipated by your procedures.

Metropolitan Police Service v Shoebridge

Post-termination discrimination

This case concerned an issue commonly faced by HR managers, namely that of giving references for employees post-termination. It has been possible for an employee to make a claim against a former employer in relation to detriment suffered where the discrimination arises out of, and is closely connected to, an employment relationship that has come to an end. The questions raised by this case were how long does that obligation last for and does it apply to both solicited and unsolicited information?

Shoebridge was employed by the Metropolitan Police Service (the Met) until October 2001. During his employment, he had made a successful complaint of sex discrimination. After leaving the Met he worked for a number of other organisations before providing his services to Sky News Television. Some 14 months after he left the Met, his arrangement with Sky ended abruptly, allegedly as a result of the Met suggesting to Sky that Sky should no longer engage him. Shoebridge subsequently commenced proceedings against the Met for victimisation. He claimed that unsolicited statements made by the Met had led to the termination of his arrangement with Sky.

The question was, did the Tribunal have the jurisdiction to hear the complaint? The Met sought to make a distinction between unsolicited comments and those given in response to reference requests. The EAT did not agree that such a distinction should be made and held that unsolicited comments would fall within the Employment Tribunal’s jurisdiction.

The second point was whether or not the elapsed time since dismissal affected the situation. The Employment Appeal Tribunal again found in favour of Shoebridge on this point, determining that an employee has the expectation of non-discriminatory conduct by a former employer whenever the former employer is discussing the employee. It was decided that the Employment Tribunal did have jurisdiction to hear the case.

In considering the issues, the Employment Appeal Tribunal suggested that, when dealing with this question, the Tribunals should consider whether there is a substantial connection with the employment relationship or a sufficiently close connection with the employee. The important point to remember is that employers must always consider the comments given in respect of employees, regardless of when the employment terminated.

What you should do

  • Review your procedure for giving references. Note that it is irrelevant whether the reference given was solicited or unsolicited.
  • Ensure all references are given by somebody in the organisation with authority to do so.
  • Consider adopting a policy of operating a cut-off date for giving references, after which no references will be given.

Cunningham v Quedos Ltd and John Wyeth and Brother Ltd

Sex discrimination burden of proof

This case involved the recent changes to the Sex Discrimination Act that came into force in October 2001 and relate to the burden of proof. Under the new provisions, once a complainant has established facts from which the Tribunal may draw an inference of sex discrimination (a ‘prima facie’ case), the burden of proof shifts to the employer to prove that there was no such discrimination.

Ms Cunningham was employed a sales representative by Quedos. Quedos had an arrangement with drugs manufacturer John Wyeth and Brother (JWB) to promote its products. Quedos agreed that the sales team responsible for selling those products would be approved by JWB.

Cunningham applied for one of the new roles in the JWB team. She was recommended by Quedos to JWB and JWB agreed that she should be interviewed. Soon after, Cunningham informed Quedos that she was pregnant and Quedos, in turn, informed JWB of the same. Cunningham was then told that she would not be interviewed for the JWB role. She protested against this decision and JWB changed its mind and offered her an interview. However, on the same date, Quedos dismissed her. Cunningham still attended the interview but was unsuccessful in her application.

The Employment Tribunal concluded that Cunningham had not been treated less favourably on the grounds of her sex, based on evidence that she had not performed adequately at the interview. The Employment Tribunal found that most of the evidence relating to JWB’s involvement was “neutral in itself; and equally consistent with the applicant’s discrimination claim, or with the employer’s innocent explanation”.

On appeal, the EAT considered the question of the burden of proof. It is an established principle that a claimant must prove, on the balance of probability, facts from which the Employment Tribunal could conclude that there had been acts of discrimination. Usually this will depend on what inferences it is proper to draw. Where the inference could be drawn that discrimination did occur, the burden of proof shifts to the employer to demonstrate that the treatment was not on the grounds of discrimination.

The EAT concluded that the Employment Tribunal had not properly dealt with the issue of the burden of proof. In particular, if the evidence was neutral and equally consistent with Cunningham’s discrimination claim and the employer’s innocent explanation, then that in itself was a prime facie claim of discrimination and the burden of proof should then have shifted to JWB to show that there has been no such discrimination.

The Employment Tribunal in this case had failed to realise that it had been presented with a prima facie case of sex discrimination. The case serves as a useful reminder of the new provisions regarding the burden of proof.

What you should do

  • Check your recruitment procedures to ensure all appointments are made on a fair and non-discriminatory basis
  • Ensure any relevant training is given to educate managers in respect of equality practices.

Case of the month by Zoe Balmforth Ramsay v Walkers Snack Foods Limited

Disclosure of witness statements

One of the most sensitive and difficult issues for HR managers to deal with is that of an informant in a misconduct investigation who insists on remaining anonymous. The issue has always been one of maintaining a balance between protecting the informant, who generally fears reprisals, while providing a fair hearing for the employee accused of misconduct.

In this case, the dismissed employees had worked at a crisps factory in the small town of Peterlee. The employees were dismissed for alleged participation in a scam involving the theft of money inserted into crisps packets as part of a sales promotion. Management became aware of the allegations when approached separately by three employees who made the allegations, but did so on the basis that they must remain anonymous. There was history of intimidation and reprisals at Walkers in instances where employees were considered to be working too closely with management.

The allegations were investigated and statements were taken. However, the informants insisted on anonymity and statements were therefore general and were unsigned. The statements were taken by the same HR manager and the informants were not questioned during the disciplinary hearing. Walkers was satisfied that the statements were reliable and truthful and that the informants had made them in good faith.

After considering the evidence, Walkers dismissed the accused employees, who subsequently made claims of unfair dismissal to the Employment Tribunal. Those claims were dismissed and each former employee appealed to the Employment Appeals Tribunal. The employees argued on appeal that a lack of detail in the statements and the failure of the disciplinary panel to interview the witnesses made the process unfair.

The EAT disagreed and held that in assessing the overall fairness of the employer’s approach, it was necessary to consider the employer’s reasons for granting anonymity and refusing to allow the disciplinary panel to interview the informants. The EAT held that, in the circumstances, the Employment Tribunal had adopted the correct approach. The EAT held that this case raised two new additional concerns that had not been considered in previous cases. First, the unwillingness of the informants to sign a statement unless it had been redacted. And second, the informants’ unwillingness to be exposed to further questioning for risk of their identities being revealed. The EAT further concluded that the approach was reasonable within the confines of a factory in a close-knit community, where retribution and reprisals were a real risk.

This case takes a reasonable and encouraging approach in terms of balancing the rights of individuals accused of misconduct with individuals who wish to remain anonymous when giving evidence. However, it does not provide employers with a fail-safe mechanism to refuse to provide witness statements in all cases and each case should be considered on its merits. What is clear is that Walkers considered the possibility of retribution as a real threat, given the history of Walkers and the close-knit community in which is was based, and went to considerable lengths to ensure the informants remained anonymous.

What you should do

  • When faced with an informant who wishes to remain anonymous explore the reasons for the request.
  • Do not automatically either comply with or refuse a request from an informant wishing to remain anonymous without considering carefully what steps you should take in the circumstances.
  • Consider adopting the approach Walkers took of identifying one individual who will interview the informants.

Hot spots

New statutory dispute resolution procedures

The new statutory disciplinary, dismissal and grievance procedures came into effect on 1 October. Under the new procedures, employers must adhere to a minimum procedure where it is contemplating dismissing an employee, or taking other relevant disciplinary action short of suspension on full pay or issuing a warning. The procedures also require an employee to lodge a formal grievance with his employer before bringing a claim at the Employment Tribunal. Failure to lodge a grievance will mean the employee is barred from bringing his claim at the Employment Tribunal.

Changes to the Disability Discrimination Act

A number of changes were made to the Disability Discrimination Act with effect from 1 October. In particular, the legislation introduced a new category of discrimination, “disability-related discrimination”. The legislation also abolished the justification defence in cases concerning direct discrimination and failure to make reasonable adjustments. The justification defence only applies in disability-related discrimination cases.

Contract of employment or contract for services?

The worker in this case was engaged under what was purported to be a contract for services (rather than a contract of employment). The contract allowed the worker to substitute another in the event that he was unable to perform the services personally, which is a factor indicative of a contract for services. Regardless of this clause, the Tribunal held that a contract of employment existed in this case, on the basis that the right to substitute another was restricted by the company. The EAT overruled this decision on the basis that the substitution clause was unambiguous and that the terms of the contract were definitive.
Staffordshire Centennial Newspapers Limited v Potter

Indirect race discrimination – pool of comparators

The Court of Appeal decided that a British teacher working at a Spanish school in London alongside a Spanish teacher seconded from Spain could compare his benefits package with that of the Spanish teacher. The Spanish teacher’s basic salary was less than that of the British teacher, but the Spanish teacher received a relocation allowance, which meant that his total remuneration was more than that of the British teacher. The Court of Appeal held that the correct pool for comparison comprised all of the teachers employed at the claimant’s school.
Spicer v Government of Spain

Employment tribunals – a case for review

In this case, the Tribunal decided that part of the claimant’s compensation should be paid tax free. When the Inland Revenue demanded tax be paid the claimant applied to the Tribunal for a review of its decision. The Tribunal declined to review its decision, on the basis that it was not in the interests of justice to do so. The EAT disagreed and held that it was in the interests of justice, and in accordance with the overriding objective to deal with cases justly, for the case to be reviewed. The EAT confirmed that the review procedure should not be regarded as applying only in “exceptional circumstances”.
Williams v Ferrosan Limited

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