Included in this Edition... Race Discrimination, Bullying, Disability Discrimination Act
This month we will also be highlighting the controversial decision by the EAT in the case of an employee who was found to be unfairly dismissed on racial grounds, having been dismissed for being an active member of the British National Party.
Amongst other topics covered in this month’s bulletin are equal pay, compromise agreements and the Working Time Regulations.
British National Party Member protected by Race Discrimination Legislation
This month saw the controversial decision of the Employment Appeal Tribunal (EAT) in the case of Redfearn v Serco Ltd t/a West Yorkshire Transport Service. A somewhat strange decision in that a member of the BNP succeeded in relying upon Race Relations legislation which is primarily legislation designed to protect those suffering less favourable treatment as a result of their race.
Mr Redfearn was dismissed for “health and safety” reasons having been elected as a local BNP councillor as his employer feared that he would cause upset and hostility with Asian customers and co-employees due to the BNP’s overt and racist agenda. There was a particularly high risk of such problems arising since 35% of the respondent’s workforce and 70 – 80% of its passengers were of Asian origin. Other than his involvement with the BNP, Mr Redfearn was stated to be “a perfectly satisfactory employee and carried out his duties without any problem…”.
Mr Redfearn complained of racial discrimination which the Tribunal rejected.
The question in this case for the Employment Appeal Tribunal was whether or not the term “discrimination” is to be interpreted widely or whether it is applied specifically to ethnic minorities only. The EAT also considered the interpretation of “on racial grounds” as established in the case of Showboat Entertainment Centre v Owens [1984] IRLR 7. This case established that “on racial grounds” covers any reason for an action based on race, whether it is the race of the person affected by the decision or of others.
Relying on this decision, Mr Redfearn’s appeal was allowed by the Employment Appeal Tribunal. The Employment Appeal Tribunal also decided that if there was unfavourable treatment on racial grounds there was no defence of justification.
Victimisation by Forceful Letters?
In the case of St Helen’s MBC v Derbyshire & Ors 510 female staff employed by the Council as catering staff in its school meals service brought equal pay claims against the Council in the autumn of 1998. There was a settlement of the claims with the majority (470) of the staff, who agreed to accept a lump sum to be shared out amongst them. Thirty nine employee applicants, however, did not join in the settlement. Their claims proceeded to a successful hearing in the employment tribunal.
The Council’s acting Director sent two sets of letters out – one set to the 39 employee applicants and one set to all catering staff, two months before the equal pay hearings at the tribunal. The letter sent to all catering staff spelled out the consequences of the 39 claims being successful.
“… the potential increased costs to the Catering Service will be in the region of £1.5M for 2001/2002 and £1M in every year after that. Most importantly this will mean that the cost of a School Meal will rise to almost £1.60 per day.
The above costs will make provision of the service wholly unviable. In such circumstances the Council will be forced to consider ceasing the provision of the Service other than to those who are entitled to receive it by law i.e. free school meal provision. Only a very small proportion of the existing work force would be required for this.”
To the 39 applicants, the Council wrote the following:
“I am writing to you as an employee with an outstanding claim in the Employment Tribunal relating to the above. I have also written in general terms to the whole catering work force and you should have also received a copy of that letter.
In December 1999 an offer was put to you in respect of your claim, which you rejected. I fully appreciate that it is well within your rights to make this decision and pursue your claim through the Employment Tribunal. However, when that offer was put to you, and to others who accepted, the Council highlighted the reason for the offer and consequences of the possible outcome should the claims be successful in the Tribunal.
I am greatly concerned about the likely outcome of this matter as stated in the letter to catering staff. The Council have received no indication from your trades union that they would support any steps to address equality issues by means other than those which would have an immediate consequential increase in pay rates. As outlined at length, the service cannot withstand such a cost.
The original offer of settlement remains open to you and I would urge you to consider this, together with the information provided in this and my other etter regarding our commitment to achieving equality by other means, aimed at preserving the service and jobs.
I cannot over state the impact that the current course of action will have on the service and everyone employed within it.
In the event that you may wish to discuss the situation further, I would invite you to attend a meeting at 2.30pm on Wednesday 24th January at the Town Hall.”
These letters led to complaints by the employees referring to the considerable distress, concern and upset caused by the letters and their potential impact on working relations with other members of staff. The employer’s view was that these letters constituted reasonable letters of settlement and did not amount to victimisation.
The Employment Tribunal and Employment Appeal Tribunal found that the Council had treated the applicants less favourably due to their Equal Pay claims by sending them the second letter. Two pertinent points were noted which led to an inference of victimisation:
- The Claimants were represented, but despite this the Council chose to write to the Claimants direct.
- The employer explained the reason for writing the letters was to negotiate some form of settlement before the hearing, however a set of letters was also sent to all catering staff, not just the 39 Claimants, which suggested that the object of the letters was not purely for settlement purposes.
However, the decision of the Employment Appeal Tribunal was overturned by the Court of Appeal. The Court of Appeal decided that the question at issue, after proceedings had been commenced, was whether the conduct of the local authority amounted to an honest and reasonable attempt to compromise the proceedings. Further, there was nothing necessarily unreasonable in attempting to persuade an employee to agree to a compromise.
Ultimately, whether a victimisation complaint is made out in similar circumstances will depend on the Tribunal’s view as to whether the employer has acted reasonably and honestly. “Reasonableness” can be difficult to assess and will depend on all the circumstances of the case. It would be safer for employers to focus attempts at settlement on just the individuals bringing the claim, and to communicate through the appropriate representatives.
Disability Discrimination Act 1995 (DDA)
At the end of last month the Disability Rights Commission revealed that Debenhams was the first retailer to be sued under the Disability Discrimination Act by virtue of the failures of its store in Derby in respect of access.
The case referred to a 43 year old wheelchair user who could not access part of the store’s menswear section as it meant having to go up some steps. Debenhams allegedly failed to improve physical access to goods and services within its store.
With annual profits last year totalling £300.5 million, some may say it is surprising that Debenhams failed to make the effort and pay for the improvements such as a ramp, which the complainant, Mr Jackson has been requesting since January 2004.
Part III of the DDA gives disabled people important rights of access to everyday services that others take for granted. This section imposes a duty upon providers of goods, facilities and services not to discriminate against a disabled person by:
- refusing to provide or deliberately not provide, to the disabled person any service which he provides, or is prepared to provide, to members of the public;
- in failing to comply with any duty imposed on him in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service.
- in the standard of service which he provides to the disabled person or the manner in which he provides it to him; or
- in the terms on which he provides a service to the disabled person.
The law, which came into force in October 2004 having been passed in 1995, has given businesses nine years in which to make adjustments to comply with the DDA. Bert Massie of the Disability Rights Commission has expressed dissatisfaction with the situation – “Offering to bring the goods out to Mr Jackson might be acceptable in a corner shop with limited resources, but the relatively meagre cost to a big chain like Debenhams of installing a ramp makes this practice unreasonable”.
Employers providing goods and services need to bear in mind the full extent of the obligations under the Disability Discrimination Act 1995.
Updated ACAS Guides
It will be useful for employers to make themselves familiar with the new ACAS Guides as follows:
This guide includes time off work related to jury service, paternity leave, time off for job hunting or to arrange training when facing redundancy, ordinary / additional maternity leave and time off under the Working Time Regulations. Details of more time off situations is covered in the Guide, just click the link above for more information.
This is an advisory booklet which now contains a new question and answer section.
This booklet gives helpful updated guidance on involving and developing people within an organisation and highlights the need for employees to have a real understanding of what their duties and responsibilities are within the workplace and why. See the guidance by clicking on the link above to read how employee links and consultations can improve your organisation’s performance.
Whilst on the ACAS website have a look at the summer/autumn edition of their newsletter
The newsletter discusses topics such as absenteeism and age discrimination.
Bullying in the Workplace
The problem with bullying is that each individual employer and employee’s perception and definition of bullying is unique. According to the Chartered Management Institute (CMI), incidents of bullying in the workplace are on the increase and they have helpfully published a leaflet called “Bullying in the Workplace - Guidance for Managers” which included useful information such as:
- Implementation and Communication of a Policy.
- Handling Complaints.
- Details of Useful Organisations and Support Networks.
- The Business Impact of Bullying.
- Identifying Bullying.
- Factors Contributing to Bullying.
- Developing a Policy.
The definition of bullying suggested by the CMI as:
“Offensive, intimidating, malicious or insulting behaviour, or abuse or misuse of power, which violates the dignity of, or creates a hostile environment which undermines, humiliates, denigrates or injures the recipient.”
For a copy of “Bullying in the Workplace - Guidance for Managers”, see www.managers.org.uk/doc_docs/Bullying_in_the_workplace_-_Guidance_for_Managers.pdf.
Compensation for failing to consider flexible working
The Equal Opportunities Commission has issued a press release relating to a case in which a part time employee has been paid compensation of £29,294 on 10 August 2005 where her employer demanded she work full time without giving consideration to flexible working options.
Jane Giles was employed by Cornelia Care Homes in Hampshire as a part time pay roll clerk. Seven months after taking up the job, Mrs Giles’ employer demanded she work full time with a minimum of 25 hours a week, despite Mrs Giles proposing various alternative part time working options so that she could look after her two year old son. The employer did not consider these options and Mrs Giles resigned.
The tribunal did not accept the employer’s defence that full time hours were required from Mrs Giles to meet the company’s rapid growth and the tribunal found that Mrs Giles had been a victim of indirect sex discrimination because as a female she was more likely to work part time hours and have caring responsibilities when compared to a male counterpart.
The high compensation award reflected a 40% increase in damages due to the employer ignoring Mrs Giles’ official grievance under the new statutory grievance procedures.
Jenny Watson, acting chair of the EOC stated “It's time to end the old fashioned 9-5 model of work”.
Continuous Employment
In Cornwall County Council v M A Prater 2005 a teacher had accepted a series of short-term teaching assignments with the local authority for home tutor service for children who were unable to attend school.
The agreement was such that the teacher was under no obligation to accept further assignments and the local authority did not have to offer a minimum volume of work. The local authority argued that it was not sufficient for there to be mutuality of obligation during each assignment but that the obligations to provide and perform work must apply throughout the entire duration of the relevant period during which the assignments were undertaken.
The tribunal disagreed and found that the succession of short term assignments still constituted a contract of employment and the teacher was to be regarded as having been continuously employed by virtue of s. 212 of the Employment Rights Act 1996.
This is important as many employment rights, such as the right to a redundancy payment and the right not to be unfairly dismissed, require a certain period of continuous service.
Compensation for unfair dismissal
In J Shergill v NTL Group Ltd 2005 an employee, who was employed as a sales representative by NTL, was dismissed following an investigation for falsely claiming commission against NTL’s rules.
The tribunal found in the claimant’s favour on the basis that his dismissal had been procedurally unfair. However, the Tribunal reduced the claimant’s compensation by 100% as it accepted NTL’s argument that the claimant would have been dismissed even if there had been a fair procedure in place and it had been followed. The employee appealed on the basis that NTL had not sufficiently shown that he would have been dismissed in any event.
The Employment Appeal Tribunal held that further investigation by NTL would not have lead to a different result and further evidence had not been required on this point. As such the 100% was justified. The Employment Appeal Tribunal also stated that an employer was not required to carry out a police style investigation.
The argument that following a fair procedure would not have made any difference to the decision to dismiss is an established and useful argument for employers. However, its success will depend upon the reasonableness of the procedure followed and the extent of the deficiencies in that procedure. The fact that an employer is not required to carry out a police style investigation is also established and helpful – the issue to consider is whether the employer has acted reasonably and has come to a decision on the balance of probabilities. As referred to above, “reasonableness” will depend on the circumstances of the case, in particular, the size and administrative resources of the employer.
If your organisation is interested in internal training sessions on new legislation or controversial employment issues, please contact Emma Hague on 0191 2339700.
If you would like further information please do not hesitate to contact Kevin
McKernan, Head of Employment Unit at Crutes Law Firm.
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