Friday, 17 October 2014

Claim rejected for non-compliance with early conciliation rules‏ but then allowed in under Rule 13(4)

In Thomas v Nationwide Building Society (Cardiff Employment Tribunal Case No. 1601342/2014) an employment judge has rejected a claim for failure to comply with the early conciliation procedure. One of the first reported cases!

T presented a claim of whistleblowing detriment on 8 August 2014. Such a claim is subject to the early conciliation (EC) procedure established by Ss.18A-18C of the Employment Tribunals Act 1996, by which any would-be claimant must first contact Acas with details of the claim, and receive a certificate confirming completion of the EC procedure, before instituting tribunal proceedings. Failure to do so means that the tribunal has no jurisdiction to hear the claim.

The Claimant argued that she could comply with the procedure retroactively and have the rejection of her claim reconsidered under rule 13(4) of the Employment Tribunal Rules of Procedure 2013, which allows for a rejected claim to be accepted if the rejection was based on a defect that has since been rectified.

Employment Judge Clarke ruled that non-compliance with the EC procedure was a ‘defect’ capable of being rectified so as to allow for reconsideration under rule 13. In the judge’s view, even late compliance with the conciliation procedure would still be ‘pre-claim’, given that the original claim had been rejected. The effect of rule 13 is that the claim can proceed once the defect has been rectified, albeit that it will be treated as having been presented on the date of such rectification. He also rejected the suggestion that T would have to present a fresh ET1 once she had completed the EC procedure.

It must be noted that this was heard only in the ET and therefore we wait to see if it will go upstairs.

Cardiff Employment Tribunal

Charles Price Barrister

Thursday, 16 October 2014

Update your employment policies ACAS guidance on shared parental leave and ante-natal appointments

ACAS has published a detailed guidance note on the new shared parental leave rules.

Key Points are listed as follows:

'Employed mothers will continue to be entitled to 52 weeks of Maternity Leave and 39 weeks of statutory maternity pay or maternity allowance
If they choose to do so, an eligible mother can end her maternity leave early and, with her partner or the child's father, will be able to opt for Shared Parental Leave instead of Maternity Leave. If they both meet the qualifying requirements and both qualify, they will need to decide how they divide their total Shared Parental Leave and Pay entitlement between them
Paid Paternity Leave of two weeks will continue to be available to fathers and a mother's or adopter's partners
Adopters will have the same rights as other parents to Shared Parental leave and pay
Intended parents in surrogacy who meet certain criteria will be eligible for statutory adoption leave and pay and Shared Parental Leave and Pay'

Please also remember when updating your Maternity/Paternity policies that From 1 October 2014 expectant fathers, or the partner of a pregnant woman, will be entitled to take unpaid time off work to attend antenatal appointments with their partner. The Department of Business, Innovation and Skills has produced a guide for employers (which works equally well for employees).

Employees accompanying the expectant mother to her ante-natal appointments are entitled to unpaid leave for 1 or 2 appointments. The time off is capped at six and a half hours for each appointment.
The Government is aiming to achieve greater involvement of both of the child’s parents from the earliest stages of pregnancy.

An employer is not entitled to ask for any evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment.
However, an employer is entitled to ask the employee for a declaration stating the date and time of the appointment, that the employee qualifies for the unpaid time off through his or her relationship with the mother or child, and that the time off is for the purpose of attending an ante-natal appointment with the expectant mother that has been made on the advice of a registered medical practitioner, nurse or midwife.

Charles Price is a Direct Access Barrister with 15 years experience 07846692325

Monday, 8 September 2014

Labour would 'scrap employment tribunal system'

Speaking live at TUC Congress, Shadow Business Secretary Chuka Umunna is announcing that the next Labour Government will "scrap" the Government’s employment tribunal system and replace it with "a fairer system to ensure that affordability is not a barrier to employees seeking redress in the workplace." Watch this space!

Constructive dismissal of an employee, himself in fundamental breach of contract

Constructive dismissal of an employee, himself in fundamental breach of contract

Atkinson v Community Gateway Association (UKEAT/0457/12/BA)

Researched by Martha Lewis of University West of England


The Appellant, Mr Atkinson, was employed by the Respondent Housing Association as a Director of Resources. An investigation conducted by the Respondent into the Appellant revealed several instances of misconduct on Mr Atkinson's part, including a breach of the Housing Association's email use policy (the Appellant had been sending e-mails of a sexual nature to his lover). Mr Atkinson then resigned before the disciplinary proceedings could be concluded.

Constructive dismissal claim

Mr Atkinson brought several claims against the Housing Association before an Employment Tribunal, including one of constructive dismissal. On this matter the ET ruled in favour of the Respondent holding that, as a matter of law, the claim of constructive dismissal must fail because the employee had himself been in fundamental breach of contract at the time of his resignation.

EAT ruling

The decision of the ET to strike out Mr Atkinson's claim of constructive unfair dismissal was successfully appealed by Mr Atkinson before the Employment Appeal Tribunal. The EAT held that, as a matter of law, there is in fact no absolute bar against a claim of constructive dismissal where the employee himself was in fundamental breach of his employment contract at the time of dismissal.


The EAT suggested that the law in this area had been cleared up by the recent  decision of the Court of Session in the Scottish case of Aberdeen City Council v McNeill ([2014] IRLR 114). The Scottish court declared that "... the notion that the principle of mutuality of contract debars the appellant from founding on a claim of constructive dismissal on the basis of the respondents' breach of their obligation of trust and confidence in the conduct of the investigation is erroneous... [T]he respondents' duty of trust and confidence remained, notwithstanding the appellant's breach of contract, and the appellant was entitled to found on the respondent's breach of their duty as amounting to constructive dismissal…"

The EAT in Atkinson v Community Gateway Association declared that the principle laid out in McNeill - despite the fact that this was a Scottish case - did in fact reflect the correct principle in English law.


The principle laid out in Atkinson v Community Gateway Association is that, it is possible for a party to a contract of employment who is himself in repudiatory breach of said contract to accept a repudiatory breach by the other party, so long as his own breach has not yet been accepted by the other party.

In this case, the principle was applied to support an employee's claim of constructive dismissal. The wording of the EAT's judgment however suggests that the principle could equally apply where an employer, which itself has breached its obligation of trust and confidence, dismisses an employee who has subsequently committed a repudiatory breach.

The judgment in Atkinson v Community Gateway Association appears at first consideration to encourage outcomes which show an unfair bias in favour of the party whose initial breach went unaccepted. A court can however take into account a claimant's original breach at the stage of awarding damages and an employee or employer who has himself breached his contractual obligations may find he only receives minimal compensation.

Monday, 18 August 2014

TUPE and consultation with the unrepresented employee

On first blush, the TUPE regs only seem to apply a burden on the employer to appoint reps and consult with reps. This potential lacuna stuck its head above the parapet in the case of Imperial Day Nursery & Ors v Marshall UKEAT/0217/10/CEA.

The respondent argued that the claimant was not entitled to bring a claim under regulation 15 of TUPE which, they claimed, does not offer assistance when an employee respresentative is not engaged. Mrs Justice Slade suggested that the two advocates hadn't  considered the Employment Appeal Tribunal case of Howard v Millrise, which observed that it was unnecessary to decide under which provision of what are now regulations 15(1)(a), (b) or (d), 

The salient facts of 'Imperial' are these:

There was no information or consultation with employee representatives in connection with the transfer, and there were no such representatives. Mr Meredith, on behalf of the employers, contends that the only right by which an individual, such as Ms Marshall, could claim and complain under TUPE of the failure of the employers to inform and consult in relation to the transfer was under regulation 13(11).

The original tribunal judgment reads:

 judgment in which they deal with the claim under TUPE.

Paragraph 4:

"The Tribunal has considered the following provisions:- Regulation 15 and 13(14) of the TUPE Regulations. […]"

Paragraph 6:

"In respect the Claimant's claim for failure to comply with the TUPE Regulations, the Respondents' arguments in this regard are misconceived. The Claimant was patently entitled to bring the claim under both Regulation 13 and Regulation 14, by virtue of Regulation 15(b) when no representative is engaged. The Tribunal had some difficulty trying to understand the Respondents' arguments in this regard."

The Regs say:

The TUPE Regulations

9. Regulation 13(2):

"Long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives of -

(a) the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for it;

(b) the legal, economic and social implications of the transfer for any affected employees;

(c) the measures which he envisages he will, in connection with the transfer, take in relation to any affected employees or, if he envisages that no measures will be so taken, that fact, and

(d) if the employer is the transferor, the measures, in connection with the transfer, which he envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact."

10. Regulation 13(3):

"For the purposes of this regulation the appropriate representatives of any affected employees are -

(a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union; or

(b) in any other case, whichever of the following employee representatives the employer chooses -

(i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this regulation, who (having regard to the purposes for, and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the transfer on their behalf;

(ii) employee representatives elected by any affected employees, for the purposes of this regulation, in an election satisfying the requirements of regulation 14(1)."

Regulation 13(6):

"An employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the relevant transfer, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures."

Regulation 13(11):

"If, after the employer has invited any affected employees to elect representatives, they fail to do so within a reasonable time, he shall give to any affected employees the information set out in paragraph (2)."

Regulation 14 deals with the election of employee representatives and places obligations in that regard on the employer.

Regulation 15(1):

"Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an Employment Tribunal on that ground -

(a) in the case of a failure relating to the election of employee representatives, by any of his employees who are affected employees;

(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related;

(c) in the case of failure relating to representatives of a trade union, by the trade union; and

(d) in any other case, by any of his employees who are affected employees."

The Respondent averred that the claim was made on behalf of the employee under regulations 13(2) and 13(6), and these regulations imposed no obligation on an employer in relation to an individual employee; they impose obligations on the employer in relation to employee representatives. The only obligation on an employer imposed by regulation 13 is that in 13(11) and Mr Meredith contends that there was no 13(11) claim placed before the Employment Tribunal.

Mrs Justice Slade commented that he nor counsel appearing for the employee, nor the Employment Tribunal themselves, appear to have been aware of the case of Howard v Millrise Limited [2005] IRLR 84. In that case the Employment Appeal Tribunal held that an individual employee has standing to pursue a complaint for breach of what is now regulation 13 of TUPE by means of what is now regulation 13(11).

The report summary can be found here

Sunday, 3 August 2014

Failure to Make Reasonable Adjustments and a time limit exception Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the Employment Appeal Tribunal ("EAT")

As most wizened employment lawyers will tell you, the time limit for hurling in a tribunal claim for Failure to Make Reasonable Adjustments in the case of omissions under the Equality Act is set out under S.123(3)(4) EqA which says that failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person is to be taken to decide on failure to do something:

When they do an act inconsistent with doing it; or
if they do no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

So unless there is either evidence of when a decision was taken not to make the adjustment or an act of the employer inconsistent with making the adjustment, the normal three month time limit within which to bring a claim will start from when the employer could reasonably have been expected to made the adjustment.

Some ingenious lawyers however, have forced a wedge into this previously closed door. In Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the Employment Appeal Tribunal ("EAT") Ms Jamil became disabled with rheumatoid arthritis which made it difficult for her to get to work since she lived over an hour away. She therefore requested a transfer to an office closer to her home. However, this was refused as there was no vacancy at a closer office. Ms Jamil brought a disability discrimination claim alleging a failure to make a reasonable adjustment but her employer argued that the claim was out of time as more than 3 months had passed since her request had been refused.

Both the Employment Tribunal and the EAT found that the claim was in time on the basis that there was a continuing nature to the duty to make reasonable adjustments in this case. In particular, they took into account that the employer itself maintained a "continuing interest list" on which it recorded employees' interest in transferring to a different office should a vacancy arise, to which they had added Ms Jamil's name, and had also written to her to say that there was a possibility of a review of the decision in the future. This persuaded the EAT that the employer was constantly monitoring the situation and there was therefore no single once and for all refusal - the employer was obliged to consider throughout the remaining period of employment how the duty to make reasonable adjustments should be discharged.

The magic words here are clearly 'no single once and for all refusal'.

Thursday, 17 July 2014

Obesity may constitute a 'disability'

The Advocate General has, today, issued an opinion on this point in Kaltoft v The Municipality of Billund.

The opinion considered whether obesity fell within the definition of a disability.  The Advocate General pointed out the EU definition of disability covers the situation when a physical or mental condition makes "carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing."

He expanded on his initial thoughts:

"cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability."

Watch this space for test cases in UK tribunals.