Tribunal may leave some stones unturned

The Court of Appeal gives important guidance on how far tribunals need to go
in exploring the circumstances of a claim. Plus cases on protected disclosure,
redundancy selection, discrimination by an agent, working time exemptions and
constructive dismissal

Difficulty in establishing sex discrimination
Wheeler and another v Durham County Council
IRLB 672, CA

Following a reorganisation of the council departments a section
head/management vacancy arose. Wheeler and Newton, both female, and Fenwick, a
male, applied. The union-approved selection procedure consisted of a first and
second interview. Fenwick came top in the first interview and was the most
confident in the second, Wheeler was neither confident nor willing to embrace
change and Newton interviewed poorly. Fenwick was appointed, despite being the
least experienced.

Wheeler and Newton unsuccessfully claimed sex discrimination but
successfully appealed to the EAT which remitted the case for a rehearing. The
tribunal had failed to ask certain questions, such as why Fenwick had more time
at both interviews, why "no person specification" had been given and why
references had not been taken up.

The council successfully appealed to the Court of Appeal. While the tribunal
must make conclusions on the factual issues essential to its decision, it does
not have to explore every issue before it. There must be a link between the
facts relied on and the discrimination complained of before an explanation is

Date of dismissal relevant for protected disclosure claim
Stolt Offshore v Miklaszewicz
Unreported May 2001, EAT (Scotland)

Miklaszewicz was dismissed by Stolt in November 1993 but as result of
various Tupe transfers found himself employed by them again in 1999. He was
dismissed for redundancy in September 2000. Miklaszewicz claimed the real
reason for his latest dismissal was that in 1993 he had made a "protected
disclosure" within the meaning of the Public Interest Disclosure Act 1998,
specifically, passing certain information to the Inland Revenue. However,
because his disclosure pre-dated the Act the tribunal decided it could not hear
the claim, since to do so would give the Act retrospective effect even though
the dismissal took place once the Act was in force.

It was agreed that Miklaszewicz’s disclosure was "protected" but
on appeal the EAT decided that the rule against retrospective effect was not
absolute. The question was whether reading the Act with a retrospective effect
was so unfair that Parliament could not have intended it. The crucial issue
here was that the trigger for the claim, namely the dismissal, post-dated the

"Last in first out" selection allowed
Messrs Blatchfords solicitors v Berger and others

Blatchfords’ had offices in Holborn, South Harrow and Croxley Green but for
business reasons decided to close Holborn and transfer its work to Croxley
Green. At the time Blatchfords had three cashiers including Sims, but only one
was needed.

For redundancy selection purposes the cashiers were pooled and the principle
of last in first out (LIFO) was applied. Sims was made redundant and
successfully claimed unfair dismissal, the tribunal finding that an employer
does not act reasonably if its only selection criteria is LIFO.

Blatchfords successfully appealed to the EAT. The tribunal had wrongly
substituted its view for that of Blatchfords. The pool was correct and although
length of service was usually only one of a number of selection criteria it was
wrong to say no reasonable employer would rely on it and nothing else. Provided
the principle of LIFO was not used as merely a means of unfairly eliminating a
particular employee it was lawful.

Principal liable for discriminatory acts of agent
Lana v Positive Action Training in Housing (London)
IDS 694, EAT

Positive Action Training (PAT) had a contract with Lana stating they could
provide her with a year’s work experience placement with WM. The placement
commenced in October 1998. In the contract between WM and PAT, it was agreed
that WM (who was described as Lana’s employer) would pay PAT £10,000 towards
Lana’s training allowance. Lana discovered she was pregnant in February 1999,
and when she informed WM of her pregnancy, her placement was terminated,
supposedly on the grounds of poor performance. PAT then terminated their
contract with Lana because they had no other placement and insufficient funding
to continue Lana’s contract.

Lana claimed sex discrimination against PAT. The tribunal however accepted
PAT’s reasons for terminating the placement and accordingly, as Lana’s
pregnancy was not the reason for the placement ending, there was no sex
discrimination. Lana successfully appealed to the EAT. It found that PAT had
engaged WM to discharge its training obligations to Lana and, as the principal,
could be liable for WM’s acts of discrimination, if they were carried out with
PAT’s express or implied authority. In a person discharging an obligation to
provide training through the use of an agency, liability for any act of
discrimination within the scope of the agency falls to that person. The
tribunal should have considered the reasons why WM terminated the placement
rather than PAT. The EAT remitted the case to a new tribunal.

No paid holiday for the transport sector
Bowden and others v Tuffnells Parcels Express Ltd
Unreported October 2001, ECJ

Bowden and her colleagues were part-time clerical workers for Tuffnells, a
road haulage company, but unlike full-time colleagues had no contractual right
to paid holiday. In 1999 Bowden brought a tribunal claim for paid annual leave,
which was dismissed because the Working Time Regulations 1998 (implementing the
Working Time Directive) applied a blanket exclusion to all workers in the road
transport sector irrespective of the job carried out.

Bowden appealed to the EAT which referred the matter to the European Court
of Justice to determine whether the Directive excludes all workers in the road
transport sector, including non-mobile office staff.

The ECJ held that it did. By specifically excluding the "air, rail,
road, sea, inland waterway and lake transport" sectors from the Directive,
the Community legislature had clearly shown its intention to exclude those
sectors of activity as a whole, rather than specific activities, such as mobile
or non-mobile activities, within that sector.

Attendance allowances, National Minimum Wage and deductions
Laird v Stoddart Ltd

Laird was paid £3.27 per hour plus an attendance allowance of 70p per hour.
When the national minimum wage (NMW) was introduced in April 1999 Stoddart,
without consulting Laird, increased his hourly rate to £3.67 but reduced the
attendance allowance to 30p.

On 12 May Laird signed his new contract, under protest, and subsequently
claimed that he was not receiving the NMW and that by reducing his attendance
allowance Stoddart had made an unlawful deduction from his wages. Both claims
failed and Laird appealed to the EAT.

In relation to the NMW claim the tribunal was correct. While attendance
allowances must be ignored when determining whether the NMW has been paid there
is nothing to prevent an employer consolidating part of an attendance allowance
into the basic hourly rate to meet the requirement to pay the NMW. However,
when such consolidation takes place it is the effect the new package has on
allowances which must be considered, not the ultimate take home pay. Attendance
allowances count as wages for the purposes of unlawful deductions and Laird’s
allowance had been reduced which was unlawful.

The question of whether the reduced allowance was an unlawful deduction
after 12 May, when Laird signed his new contract, was referred back to the
tribunal. The EAT pointed out that the fact Laird had signed his new contract
under protest did not show he had not consented to the change and he may have
affirmed it by continuing to work.

Constructive dismissal difficult to establish
Quinn v Weir Systems Ltd

Quinn was a senior and long serving employee of Weir which was in financial
difficulties and all its employees were aware of possible future redundancies.
In January 2000, one of the directors remarked to his secretary that Quinn
would be the next to go. She mentioned this to another employee who in turn
told Quinn he was "next for the chop" and was to be replaced.

Despite the attempts by the managing director to dissuade him, Quinn
resigned and unsuccessfully claimed constructive dismissal. The tribunal held
that Quinn had not been placed in an intolerable position and he should have
treated the remark as of little or no consequence.

Quinn appealed, arguing that the tribunal’s decision was perverse in that
the original remark made by a director to a secretary constituted a breach of
trust and confidence amounting to a repudiatory breach. The EAT disagreed. The
tribunal had properly considered the evidence, including the employees’
awareness of possible redundancies and the fact that the director had not known
or intended that his remark would be conveyed to Quinn, who had only been made
aware of it because of the secretary’s failure to maintain the confidentiality
the director expected of her.

National minimum wage payable
Wright v Scottbridge Construction Ltd

Wright, a night watchman, worked seven nights a week between 5pm and 7am.
Although he performed some menial tasks his principal duty was to respond if
intruders triggered the alarm. When not actually working he was allowed to
sleep and watch TV and facilities were provided.

Wright received £210 per week and unsuccessfully claimed that this fell
short of the hourly rate of the NMW. The tribunal relied on a provision in the
NMW Regulations that the NMW is not payable for hours where by agreement, a
worker can and does sleep at work. It held Wright was only entitled to be paid
for the hours he had to be awake for the purposes of working – about four hours
a night.

Wright successfully appealed to the EAT. As Wright was required to be on the
premises for 14 hours a night he had to be paid for them even though he was
permitted to sleep for some of the time. He could still perform his duties
while asleep, since the alarm would wake him up. The provision relied on by the
tribunal did not apply, since it was aimed at a different situation, namely one
in which an employer allows a worker to take time off during the working period
for sleep and provides facilities for doing so.

Note: a remedies hearing in the case of Bennett v Essex County Council,
which involved a black school teacher who was racially abused by pupils has now
been heard. Bennett was awarded more than £45,000

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