Policy may not be sufficient

A harassment policy in itself might not be enough to avoid liability. We
look at this, plus cases on protective awards for employees, the first
restriction of proceedings order made by the EAT, agency workers and equal pay

Harassment policy not an adequate defence
Canniffe v East Riding of Yorkshire Council
EOR 93 EAT

Canniffe brought a sex discrimination claim after suffering from serious
incidents of harassment, including sexual assault by K. The council accepted it
was vicariously liable for K’s conduct, but relied on the statutory defence
that it had taken such steps as were reasonably practicable to prevent it
occurring by putting in place a harassment policy which was drawn to all
employees’ attention. The tribunal found that no improvement in the
implementation of the policy would have prevented K’s conduct, and the claim
was dismissed.

Canniffe appealed successfully. The EAT held that in establishing whether
the statutory defence was available the tribunal should have first identified
whether the council had taken any steps at all to prevent K’s behaviour, and
should then have gone on to consider whether the council could have taken
further steps which were reasonably practicable, irrespective of whether or not
those steps would have prevented the harassment. A harassment policy in itself
was not sufficient.

Entitlement to protective award
Scotch Premier Meat v Burns
IDS Brief, 669 EAT

In April 1998, SPM decided on two alternative solutions to resolve its financial
difficulties: either the business would be sold as a going concern, or the site
would be sold for development, which would result in 155 redundancies. At the
end of April SPM offered all the employees voluntary redundancy, but omitted to
mention the possible sale of the business. Some accepted voluntary redundancy,
but those who did not were made redundant anyway two months later. All the
employees successfully applied to the tribunal for a protective award because
SPM had failed to comply with its statutory duty to consult, which arises when
an employer proposes to dismiss as redundant more than 100 employees within a
90-day period.

The tribunal found that the options were sufficient to constitute a
"proposal of redundancy". It also found the first redundancies were
not voluntary because SPM failed to provide material information, thus
preventing the employees from making an informed choice. Accordingly all
employees had been dismissed for redundancy. The EAT upheld the tribunal’s
decision.

First restriction of proceedings order
Attorney-General v Wheen 2000
IRLR 461, EAT

Wheen had instituted 13 separate sets of proceedings against various persons
before employment tribunals, all of which failed. In some cases the tribunal
had commented that the proceedings were vexatious or frivolous; in others it
made orders requiring Wheen to pay a deposit as a condition of being permitted
to proceed. When so ordered, he had not taken the matter further. The EAT held
that Wheen had "habitually and without any reasonable ground instituted
vexatious proceedings before the tribunals". On this basis, the EAT, for
the first time, made a restriction of proceedings order under section 33(1) of
the Employment Tribunals Act 1996. The EAT accepted that discrimination was by
its nature more likely to recur to a particular individual. However, Wheen’s
persistent and unfounded claims were denying time to parties with real
grievances.

Agency worker held to be employee of client
Motorola v Davidson (1) and Melville Group (2), 2000
IDS Brief 670, EAT

Davidson was taken on by MCG, an employment agency, and placed at Motorola
as a temporary worker working under a contract for services with MCG. The
contract stated that Davidson was obliged to attend work at Motorola’s request.
Davidson worked for Motorola for just over a year and was then dismissed. He
claimed unfair dismissal against Motorola.

The right to claim unfair dismissal is restricted to "employees",
defined by section 230 of the Employment Rights Act 1996 as someone who works
under a contract of services or of apprenticeship. The tribunal found that
Motorola was Davidson’s employer. Motorola appealed on the basis that it had
insufficient control of Davidson to be his employer. The EAT found that
Davidson’s contractual obligations to MCG showed that Motorola had control.
Indeed, MCG and Motorola both had control over him. The appeal was therefore
dismissed.

Who is the appropriate comparator?
Lawrence v Regent Office Care
IRLB 645, Court of Appeal

Lawrence and more than 400 other women brought equal pay claims after their
salaries were reduced following the contracting out of the cleaning services they
had previously performed for the council. Their comparators were the male
workers retained by the council. They relied on the council’s job evaluation
study in which the women’s work was evaluated as equivalent to the men’s and
the fact that neither the work done by Lawrence nor that of the male employees
had changed significantly following the contracting out.

The tribunal dismissed the claim, as did the EAT, because the male employees
were not in the "same employment" – a requirement of the Equal Pay
Act. The Court of Appeal referred the matter to the European Court of Justice.
The ECJ is to determine whether Article 141 is directly applicable, in which
case Lawrence can be compared with the male council employees even though not
employed by the same employer. The Court of Appeal noted the far-reaching
effects the ECJ’s decision could have.

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