On appeal

Continuing our regular series spelling out the implications of important
cases which have been heard recently in the appeal courts. Gareth Brahams looks
at the issues

Racial bias caused "detriment"
Garry v London Borough of Ealing, Court of Appeal, IDS Brief 693,
September 2001

Garry, a Nigerian, was employed by Ealing council as a housing benefit
manager. In 1996, the council suspected her of benefit fraud and appointed a
special investigator. Garry did not become aware of the investigation until
over a year later, when the director of housing concluded there was
insufficient evidence to hold a disciplinary hearing.

However, the director failed to tell Garry or the investigator of his
decision, and the latter continued his investigations. In the summer of 1998,
Garry was finally told that no further action would be taken.

An employment tribunal upheld Garry’s race discrimination complaint, finding
that there was no reason for the council to have appointed a special
investigator rather than a normal officer to investigate her. The tribunal
concluded that the council had taken a stereotypical view that Nigerian people
were likely to be involved in benefit fraud, so a large-scale special
investigation was required. The tribunal also found that Garry had suffered a
"detriment" under the Race Relations Act 1976 (the RRA) because an
ordinary investigation would have been halted much earlier.

The EAT allowed the council’s appeal, holding that the fact that Garry was
unaware that the investigation was continuing meant she could not be described
as having suffered a detriment. The EAT took the view that "ignorance is

On Garry’s further appeal, however, the Court of Appeal overturned the EAT’s
decision and restored the tribunal’s finding. In line with earlier decisions
such as D’Souza v Automobile Association, 1986, ICR 514, the court said a
detriment exists if a reasonable employee might take the view that she was
disadvantaged at work.

Although Garry was unaware of what was going on, the investigation was known
to officers of the council whose attitude to her was important to her present
and future employment. In those circumstances, the detriment to Garry was clear,
and the fact that the investigation continued was a direct result of the
original discriminatory choice of a special rather than an ordinary

Minimum wage for sleeping
Wright v Scottbridge Construction, Employment Appeal Tribunal, 2001,
IRLR 589

Wright was employed as a night watchman seven nights a week between 5pm and
7am for a weekly wage of £210. His main purpose was to be available if an alarm
was set off by an intruder. When not performing any specific tasks, he was
entitled to sleep, read or watch TV. Wright claimed entitlement to the National
Minimum Wage (NMW) – currently £3.70 an hour but rising to £4.10 from 1 October
– for the hours he was required to be on the premises.

A tribunal rejected the claim on the basis that the National Minimum Wage
Regulations 1999 provide that time during which a worker is allowed to sleep
"shall only be treated as being time work when the worker is awake for the
purpose of working".

Allowing Wright’s appeal, the EAT held that this provision only covers the
situation where an employer specifically allows a worker to take a number of
hours off for sleep during a working period. It does not apply where staff are
required to be on the premises for the purpose of their duties and can choose
to sleep for some of the time. Accordingly, Wright was entitled to the NMW for
the whole of the 14-hour period he was required to be on the employer’s
premises every night.

Payment for accrued holiday obligatory
Witley & District Men’s Club v Mackay, Employment Appeal Tribunal,
2001, IRLR 595

Mackay, a club steward, was summarily dismissed for taking money from the
club without authority. He did not receive any payment in lieu of accrued
holiday entitlement, in line with an industry-wide collective agreement that
was incorporated into his employment contract. This provided that there was no
entitlement to accrued holiday pay where a worker was dismissed for dishonesty.

The EAT held that the employer has breached the provisions in the Working
Time Regulations 1998 on payment for accrued holidays on termination. The
regulations require payment of "such sum" as may be provided for in a
relevant agreement and, in the EAT’s view, this wording did not cover no sum at
all. The upshot was that the contractual term was void and Mackay was entitled
to £1,165 in respect of annual leave he had accrued but not taken.

Note, however, that the words "such sum" would seem to include a
nominal amount (eg, 10p) in respect of accrued holiday pay and there is nothing
in the EAT’s decision to preclude a contractual term to that effect.

Six-month cut-off for dismissal compensation
O’Donoghue v Redcar & Cleveland Borough Council, Court of Appeal,
2001, IRLR 615

O’Donoghue, a barrister in a local authority’s legal department, was
dismissed after disciplinary proceedings. A tribunal found that the dismissal
was not only unfair but also amounted to victimisation for the fact that she
had previously brought a successful sex discrimination claim against the

In assessing compensation, the tribunal found that her attitude to her
colleagues was so poor that she would have been dismissed within six months
anyway. On this basis, the tribunal awarded £8,805 compensation, including
£2,000 for injury to feelings in respect of the victimisation complaint.

The case went to the Court of Appeal, which held that the tribunal was
entitled to fix a safe date by which it was certain that O’Donoghue’s
employment would have terminated, and to apply a "cut-off" to her
unfair dismissal compensation. The tribunal was not obliged by the ruling in
Polkey v A E Dayton Services, 1988, ICR 142, to make a percentage assessment of
the chance of her being dismissed fairly at a later date.

But the court held that the same approach did not apply to the compensation
for injury to feelings. This award was for the distress and humiliation for
being victimised contrary to the Sex Discrimination Act, and the tribunal had
been wrong to limit it on the basis of a notional future event. The court
therefore increased the damages for injury to feelings to £5,000.

Gareth Brahams is a senior solicitor in the employment department at
Lewis Silkin

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