It's a trap!

Employment Law Newsletter - June 2016


In this issue ...

  Contractual interpretation   A leap of faith  
  No time for injured feelings   More penalties  
  No need to force things   Theoretical practicability  

Contractual interpretation

Is mutuality of obligation, the on-going commitment of the parties to each other, as vital to establishing that a claimant is 'employed under a contract personally to do work' (the existence of which is a pre-requisite of claims under the Equality Act) as it is for showing the existence of a 'contract of employment' (for unfair dismissal and other employment rights under the Employment Rights Act)? Until now, the different statutory wordings have been treated as suggesting two different employment statuses or relationships – while both required direction or subordination (control) during working time, the key distinction was the lack of mutuality in a 'contract personally to do work'.

But, in Secretary of State for Justice v Windle & Arada, the Court of Appeal has broken through this dividing line. Two interpreters were engaged by the Courts Service on terms which gave no guarantee of work and imposed no obligation on them to accept it when it was offered. The CA held that this absence of mutuality was fatal to their claims for race discrimination.


No time for injured feelings

In Gomes v Higher Level Care, the claimant established that her employer had failed to provide her with rest-breaks as required by the Working Time Regulations (WTR). The WTR state that compensation should be that which is 'just and equitable', having regard to both any resultant loss sustained by the worker and the employer's default in refusing to allow the worker to exercise the right to rest-breaks. The Employment Appeal Tribunal (EAT) was asked to consider the argument that these criteria encompassed damages for injury to feelings, like those available in discrimination cases.

The EAT rejected this view. Unlike discrimination legislation, the WTR made no explicit reference to awards for injured feelings and the fact that they did not expressly exclude the possibility was not a sufficient basis for implying it. 'Pure' injured feelings are different from demonstrable stress, depression or other health consequences (which might be compensated under the WTR).


No need to force things

The central requirement of indirect discrimination is a 'provision, criterion or practice' (PCP) of the employer's that has an unjustified disproportionate effect on a group with a protected characteristic. But does this PCP have to be something with which the individual is forced to comply?

In Carreras v United First Partners Research, the claimant was seriously disabled following an accident. He alleged that he had been unfavourably treated by his employer because his condition did not allow him to work late. The EAT allowed his claim to proceed, notwithstanding that the employer did not actually have a rule or explicit requirement that employees would do extra hours. There was nevertheless an assumption or expectation of such a commitment and that was enough to be a PCP.


A leap of faith

In Pendleton v Derbyshire County Council, Mrs P (a teacher) elected to remain with her husband, a head teacher, after he had been convicted of making indecent images of children and voyeurism. She considered that her Christian faith required that she respect her marriage vows. She was dismissed for failing to end the association. The EAT ruled that the employer's 'practice' of requiring her to separate resulted in a crisis of conscience that put her at a particular disadvantage – so there was unlawful indirect religious discrimination.

An aspect of this decision is unclear and gives cause for concern. Unless the particular employer (the council) or the school had previously taken the same stance, where is the 'practice' (see the Dippenaar case in the December 2015 issue)? The EAT dealt with this by saying that the evidence indicated that the employer had a policy of dismissing anyone who chose to stand by their partner in such circumstances and, therefore, the fact that the policy had not actually been applied before did not preclude there being a 'practice'. Hmmm... Wouldn't it still have been easier to treat the employer's position as a 'criterion'?

In this case, no consideration was given to a defence of proportionality/justification, simply because the employer did not argue it. However, it might have succeeded had it been argued - where both partners are teachers, even at separate schools, there must be a legitimate concern about maintenance of the relationship.


More penalties

Euro 2016 is not the only current setting for the occurrence of penalties (in fact, at the time of writing, only two have been awarded - both to Romania - in 18 completed games). Immigration law also hears the shrill blast of the referee's whistle.

By the time of next month's edition, core employment provisions of the new Immigration Act will be in force. A new criminal offence of 'illegal working' comes into being, with the concomitant power of the state to seize an illegal worker's earnings as the proceeds of crime. And an employer's criminal responsibility for knowingly employing an illegal migrant will be extended to situations where there is reasonable cause to believe a person is an illegal worker, the maximum penalty on conviction for both states of mind rising from two to five years imprisonment.


Theoretical practicability

In unfair dismissal law, reinstatement (treating the employee in all respects as if dismissal had not occurred) is, formally, the first remedy that an employment tribunal should consider, ahead of a simple award of compensation. Although an order for reinstatement is rarely made, the principal criterion for deciding whether it should be is the 'practicability' of the employer's complying with it.

In McBride v Scottish Police Authority, the Supreme Court (SC) had to consider what was involved in resolving that question of 'practicability'. Here, the employer argued that it would not be practicable for it to comply with a tribunal's order to reinstate an employee to the restricted-duties job that she was doing before her unfair dismissal because the employee herself would be unlikely any longer to accept the restrictions and would end up in confrontation with the employer.

The SC rejected the argument. If it was otherwise practicable for the employer to put the employee back to where she had been pre-dismissal and this was not in breach of contract, the employer could comply with the order and the employee's prospective resistance was irrelevant. Now, who ever said the judges had their heads in the clouds?


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Jo Hale on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.