Case of the month
Walton Centre for Neurology and Neuro Surgery NHS Trust v Bewley
Mrs Bewley was employed by the trust as a senior health care assistant/nursing assistant. On 23 June 2006 she presented a claim for equal pay to the Employment Tribunal. She claimed that over the previous six years (the maximum period permitted by the Equal Pay Act 1970) she had received unequal pay with her comparators. Her claim was categorised into the following two periods/claims:
• before 1 October 2004 (equal value claim) and
• after 1 October 2004 (work rate as equivalent claim).
Bewley identified three male comparators each of whom had taken up new posts with the trust between 1 April 2004 and 28 July 2005 but had not been employed by the trust before taking up the positions.
The central issue in the case was the appropriateness of Bewley’s comparators. It was accepted that she could rely on her chosen comparators with respect to the periods during which the comparators were in employment at the same time as she was. What was in dispute was whether she could rely on the same comparators for the earlier period when she was employed by the trust but the comparators were not.
The tribunal considered itself to be bound to follow the EAT decision in Diocese of Hallam Trustee v Connaugton 1996 ICR 860 and, with some reluctance, held that it did have jurisdiction to hear Bewley’s equal pay complaint for the periods of her claim before 1 April 2004 when none of her comparators was employed by the Neuro Surgery NHS Trust. Unsurprisingly, given the relevant employment judge’s direction that but for the decision in Hallam he would have reached a different conclusion, the trust appealed the tribunal’s ruling on this issue to the EAT.
The EAT upheld the appeal and in so doing concluded that the reasoning in Hallam was “fundamentally defective” and was “not an authority that can be relied on in any way”.
The EAT noted, however, that the tribunal had been correct to follow Hallam rather than treat its flaws as sufficient reason not to rely on it, as this was a matter for the EAT to determine. The EAT went on to examine European case law on the kinds of comparators available to claimants under Article 141 EC Treaty (the originating directive that has been implemented into UK law by the EPA 1970 implements in UK law) and came to the conclusion that successor comparators are beyond its scope. Elias J, in rejecting the appeal, concluded that successor comparators were not permitted in equal pay cases as this would introduce a concept of a hypothetical comparator (similar to other discrimination cases), a concept that the ECJ had already considered and rejected in the context of Article 141.
• Claimants in equal pay cases must identify an actual comparator who has been employed at the same time as them. Successor or other hypothetical comparators are not valid.
• However, claimants can still compare themselves with members of the opposite sex even if that comparator no longer works for the employer at the point of comparison – this was principle upheld by the ECJ in Macarthys Ltd v Smith 1980 IRLR 209 and which is still law.
What you should do
• Employers faced with equal pay claims where there is no comparator named or the person named was appointed to the role after the relevant period of employment, should apply to the Tribunal to have the claim struck out.
Dr C D’Silva v NAFTHE and Others
Employment Appeal tribunal
Mr D’Silva is of Indian origin. He had been a lecturer at Manchester Metropolitan University since 1993 and a member of the National Association of Teachers in Further and Higher Education (NATFHE) since 1994.
In 2002 D’Silva brought a race claim against the university that he later settled. D’Silva asked NATFHE for legal support to issue a new set of proceedings against the university. A barrister was appointed who concluded that D’Silva’s prospects were less than 50%. NATFHE withdrew its support of the claim. D’Silva brought fresh proceedings against NATFHE claiming it had discriminated against him by withdrawing its support, as part of which he submitted a Race Discrimination Act 1976 questionnaire.
NATFHE did not ethnically monitor acceptances and refusals of members’ requests for legal assistance and so was unable to answer one of the questions in D’Silva’s questionnaire.
The tribunal dismissed the claim. D’Silva appealed to the EAT. One of the grounds of appeal was that the tribunal had failed to draw appropriate inferences from NATFHE’s failure to carry out ethnic monitoring of its responses to members’ requests for legal assistance and/or its failure to respond properly to his questionnaire. In dismissing the appeal the EAT commented that where there had been failures in answering a questionnaire or otherwise providing information or documents, the presumption of discrimination should not be automatic instead such inferences should only be drawn in “appropriate cases”, and not as a “tick-box” exercise.
• A failure or partial failure to reply to a discrimination questionnaire will not automatically result in a presumption of discrimination. Instead, the employer will be given an opportunity to explain any failure or evasiveness.
What you should do
• Notwithstanding this helpful clarification of the law, employers should, wherever practicable, provide full responses to statutory questionnaires in the applicable statutory timeframe.
• Where an employer is unable to respond to a questionnaire or to certain questions in it, give a full explanation of the reasons why. Where an employer has good reason for responding to a questionnaire late, or for not answering certain questions (eg on the grounds that the request is disproportionate), this is unlikely to result in an inference of discrimination being drawn. However, the converse is also true.
• Train line managers so that they can identify a statutory questionnaire and have proper procedures in place for escalating and responding to questionnaires.
Employment Appeal tribunal
Mr Atkins agreed his paternity leave with his employer on certain conditions. His senior manager (Mr Edwards) called Atkins while on paternity leave about a client query, but was told that Atkins was asleep following a bad night with the baby. Later, Edwards sent a message to Atkins after realising the matter could affect Atkins’s commission. This led to Atkins emailing Edwards stating he’d had enough and had been pushed too far. A heated conversation developed leading to Edwards sacking Atkins.
Atkins claimed automatic unfair dismissal. The tribunal noted that even though the dismissal happened while on paternity leave, the tribunal must determine whether the reason or principal reason for the dismissal was connected with the fact he took paternity leave. Edwards stated his frustration was due to Atkins’s conduct and the ET agreed such frustration could have arisen irrespective of Atkins being on paternity leave and dismissed the claim.
Reasons connected with
Atkins appealed, arguing that the words “reasons connected with” in regulation 29(3) of the Paternity and Adoption Leave Regulations did not require a causal connection between the dismissal and leave to be established it was sufficient that the dismissal was “associated with” the paternity leave. Unfortunately for Atkins, he had not raised this point at first instance and the EAT held that there were no exceptional circumstances to justify a new point being taken on appeal. However, the EAT also expressed some “brief and tentative views” on whether the appropriate tests are a causal test or something less stringent:
• a tribunal first must ascertain what the reason or principal reason for dismissal was and then ascertain whether such reason was connected with the fact that the employee took or sought to take paternity leave.
• although “connected with” might on the dictionary definition be taken to mean “associated with”, this doesn’t mean that a causal connection is not necessary between the dismissal and the paternity leave.
• the legislation must be given a wide, purposive interpretation and the application of the test must be approached in a pragmatic commonsense fashion on the case’s facts.
• The EAT confirmed that the dismissal of an employee was not due to him being on paternity leave therefore, not automatically unfair.
• The EAT indicated there must be a causal connection between the reason for the dismissal and the fact the employee took paternity leave. Just because he was on paternity leave at the time was insufficient grounds for a claim of automatic unfair dismissal.
What you should do
• Although useful for employers, it remains that employees benefiting from family-friendly rights must be treated with extra care as a result of the associated protection of a claim for automatic unfair dismissal, and often, a possible discrimination claim.
Allison v London Underground Ltd
Court of Appeal
The Management of Health and Safety at Work Regulations 1999 provide for employers to make suitable assessment of health and safety risks to which employees are exposed at work. The Provision and Use of Work Equipment Regulations 1998 provide for employers to ensure all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods that may be adopted when using the work equipment and any risks and precautions to be taken.
While working as a Tube train driver, Ms Allison developed a shoulder strain, which was found to relate to her task of handling the traction brake controller (TBC). She was moved to different rolling stock as it was thought the TBC would be more suitable. She was monitored and declared fit for full duties in September 2001. In early 2003, she developed an injury because of the strain from the prolonged use of the TBC and was declared unfit for work.
The design of the TBC on her line was slightly different from other lines and that design had not been the subject of any expert advice at the design stage or later when put into use.
Allison was a small woman with short arms and small hands. When driving, she rested her thumb against the handle in a way that most male drivers, whose hands were larger, did not. No special instructions were given to drivers regarding how to position the thumb during use. Allison’s injury was caused by the position in which she had held her thumb while driving. By January 2004, London Underground started training drivers not to rest their thumbs in the way Allison did.
Allison lost her county court proceedings against London Underground alleging that the risk assessment of her line’s TBC had been inadequate and in violation of the regulations above.
Allison appealed, arguing that the judge had applied the wrong test, claiming that liability under the Provision and Use of Work Equipment Regulations was strict or absolute and not dependent on proof of any fault. It was not subject to any defence of reasonable practicability, and adequacy was not qualified by any concept of foreseeability.
The Court of Appeal allowed the appeal holding that the judge had applied the wrong test and the employer was liable. London Underground should not have put the new TBC into service without taking advice from a suitably qualified ergonomics expert. Had it done so, it would have identified the need for drivers to be trained on how to hold the TBC handle to minimise the risk of strain injury.
• Employers are under a statutory obligation to provide adequate training for all employees who use work equipment for the purposes of health and safety: this is a mandatory obligation that cannot be excused on the grounds that it is not reasonably practical or too costly.
• The test for what will amount to adequate training for health and safety purposes is what is required in light of what an employer ought to have known about the risks arising from the activities of its business.
• It is not enough for an employer to provide training only in relation to the risks it actually knows about – the statutory duty requires employers to investigate the risks inherent in his operations, taking professional advice where necessary.
What you should do
• Take the statutory duty to carry out a suitable and sufficient health and safety assessment of your workplace seriously and focus on the risks inherent in your work operations: this assessment should then be used to determine what will be required in terms of adequate health and safety training for employees.
• Take and use professional advice where appropriate: the upfront costs of doing so are likely to prove a worthwhile investment.
• Remember that the obligation to provide adequate training for health and safety purposes is mandatory: what is “reasonably practicable” will not be good enough.
One to Watch:
In Maruko v Versorgungsanstalt der Deutschen Buhnen, the ECJ held that the Framework Directive requires pension schemes providing death benefits to spouses should also provide them to life partners (similar to registered civil partners in the UK) where the status of life partners is comparable to that of spouses under national law, without limit. This case has called into question the validity of the exemption contained in the Sexual Orientation Regulations 2003, which allows employers to exclude periods of service before 5 December 2005 when calculating the death benefits for registered civil partners. Consequently, the UK government may now amend the terms of the exemption to bring it in line with the ECJ’s ruling, which would require an overhaul of many employer’s pension scheme rules.
Focus – Breach of Contract
A balance of decisions this week: one to assist those acting for employees and one for those acting for employers.
In Abbycars (West Horndon) Ltd v Ford, the EAT held that an employee could claim constructive dismissal as long as one of the employee’s reasons for leaving amounts to a repudiatory breach of contract: it was irrelevant whether there were other reasons for leaving that did not amount to repudiatory breaches of contract.
In Robinson v Tescom Corporation, the claimant agreed to work under new terms and conditions following a restructure of the sales department, albeit under protest. However, the EAT found against the claimant on the basis that he could not later refuse to work: by combining both responses to the change, the employee prejudiced his position.
In Ruffert v Land Niedersachsen, the ECJ has made a controversial decision holding that a German local authority did not have to pay contractors (in this case, Polish postal workers) the wage stated in a local collective agreement. Unions are concerned about the effect this could have on local workforces if posted workers are able to undercut them lawfully.
In Collidge v Freeport, the Court of Appeal held that a warranty given by an employee in a compromise agreement that he had not done anything that could constitute a repudiatory breach of contract was a “condition precedent”. As such, when serious misconduct by Collidge was discovered by Freeport, it was released from the obligation to making any payment to him due under the compromise agreement.
In Commission for Healthcare Audit and Inspection v Ward, the EAT held that an employee’s refusal of a role that was deemed “on balance” to be a suitable alternative to her own redundant role was reasonable, taking into account her perception of the role at the time it was offered and the overall fairness of the redundancy procedure. This case highlights the importance of communication during the redundancy process and identifies that the degree of suitability of an alternative role may be taken into account when considering whether a refusal of such a role is reasonable or not.