Thursday, 28 May 2015

Case in point: John Yapp V Foreign and Commonwealth Office (FCO)

Courts may be reluctant to conclude that psychiatric injury is a foreseeable consequence of unfair treatment of an employee, unless there is some evidence of a pre-existing medical condition.

In the case of Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, the Court of Appeal had to decide whether an employee could claim compensation arising from a depressive illness, following alleged breaches of contract and the employer's common law duty of care.

Mr Yapp was the British High Commissioner in Belize who was summarily withdrawn from post in June 2008 after false and offensive allegations of sexual misconduct were made against him by a Belizean politician in opposition, Mr Eamon Courtenay. He not only lost his job with attendant allowances and benefits but became ill with clinical depression after being withdrawn from post and then subjected to a lengthy disciplinary process, during the course of which the allegations of sexual misconduct were dismissed unequivocally and following hostile media intrusion and inaccurate reporting repeated internationally, which caused immense distress to Mr Yapp and his family and in respect of which he brought a successful libel action against the Mail on Sunday.

 Mr Yapp was offered no other position by the FCO and never returned to work. In due course he retired.

 In May 2013 the High Court (Cranston J) found the FCO liable to pay damages to Mr Yapp for breach of contract and for breach of its duty of care to Mr Yapp following his summary withdrawal from post.
The High Court found that the FCO should have treated the allegations concerning Mr Yapp’s conduct with some caution and conducted an initial investigation before taking any action. By removing him from his position without any discussion, it had acted in breach of an express clause in his contract that assured him of “fair treatment” during any disciplinary proceedings and in breach of its implied duty of care towards him. In addition, the judge held that it was reasonably foreseeable that Mr Yapp would suffer psychiatric harm as a result of the FCO’s actions and held that he could recover damages for this aspect of his claim. Although the judge accepted that Mr Yapp had “an ostensible robustness”, it remained reasonably foreseeable that his depressive illness could result from a “knee-jerk withdrawal from post”. Damages were agreed between the parties at £320,000 and the FCO appealed.

Court of Appeal decision

The Court of Appeal agreed with the High Court that the FCO had acted in breach of contract in removing Mr Yapp from his position without first conducting a preliminary investigation and putting the allegations to Mr Yapp. Whilst the FCO did have the discretion under Mr Yapp’s contract to withdraw him from his post for “operational reasons”, there was still a requirement to confirm the reliability of the allegations being made before such withdrawal. Accordingly, the FCO had acted in breach of Mr Yapp’s contract and in breach of the implied duty of care. The case was remitted to the High Court to decide the level of damages.

The Court of Appeal also dismissed FCO’s appeal on the issue of whether its actions had caused Mr Yapp’s depressive illness. The Court was satisfied that the High Court could rely on a medical opinion, which found that the unfair treatment of Mr Yapp was one of the factors that had caused or contributed to his illness.

However, the Court of Appeal allowed the FCO's appeal on the issue of whether Mr Yapp’s illness was reasonably foreseeable. Accordingly, Mr Yapp was not entitled to be awarded damages for his depressive illness as the Court determined that it was too remote a consequence from the breach of contract.

The Court came to the conclusion that it was wrong to find that it was reasonably foreseeable that the FCO’s conduct in withdrawing Mr Yapp from post without having had the opportunity to state his case might lead him to develop psychiatric illness. According to the Court, it would be exceptional for an apparently robust employee, with no history of any psychiatric ill health, to develop a depressive illness as a result even of a very serious set back at work. The FCO could not have foreseen, in the absence of any sign of special vulnerability, that Mr Yapp might develop a psychiatric illness as a result of its decision. It therefore followed that the losses were too remote to be recoverable following the breach of contract.

This decision demonstrates that the courts may be reluctant to conclude that psychiatric injury is a foreseeable consequence of unfair treatment of an employee, unless there is some evidence of a pre-existing medical condition. However, it is important to bear in mind that this will remain a risk even without any evidence of pre-existing conditions, particularly if there has been a significant breach of contract or duty of care. Future judgments will be watched carefully for guidance. The Court in this case found that the employer’s actions caused the depressive illness and it would still be open to an employee to argue that any conduct was so unfair and unreasonable that it was foreseeable that the employee would develop such an illness as a result.

Tuesday, 26 May 2015

New rules on exclusivity but zero hour contracts are useful only for the few

Exclusivity terms unenforceable in zero hours comes into force under s 164(1). This section inserts the Employment Rights Act 1996, Pt 2A, which renders unenforceable any exclusivity term (see s 27A(3)) in a “zero hours contract” (see s 27A(1)) and provides power to the Secretary of State to make further provision in relation to “zero hours workers” (see s 27B(2)) in regulations.

At present, an individual subject to exclusivity terms in their zero-hours contract cannot seek work elsewhere, regardless of whether the employer offers only occasional, minimal, or even no hours of work but in my experience not many zero hour contracts contain this clause for the good reason that no one in their right mind would sign up to them. It is possible that in some areas of low employment the employers hold all of the cards and can engage workers in these onerous terms but surely these arrangements would be few and far between.

Zero hour contracts are not only flawed because the worker enjoys ongoing requirement to accept offers of work and no consequences but the on the flip-side the employer has a worker who does not have to accept the offer of work. No wonder then that this contractual white elephant is in danger of extinction and should be put out of its misery.

Thursday, 21 May 2015

Cameron's plan to seize illegal workers' wages "Emperor's New Clothes'?

The Government has announced details of a new immigration bill to be included in the Queen’s speech, which will propose a new criminal offence of illegal working that will allow police to seize the wages of anyone employed unlawfully see The Guardian .

It has been estimated that the backlog of people in Britain who have overstayed their visas and whose whereabouts are unknown is 300,000, but it is not known how many are working.

In my time working as a Barrister in immigration tribunals and hearing first hand accounts of migrants who had been working despite not having permission to do so, many ran the risk of working knowing that if they were caught their applications for further leave to remain would be more likely to be refused. If this doesn't work as a deterrent then why should a small prison sentence.

Furthermore, most sent all of their meagre illegal pay home to impoverished families and so it is highly likely that in the majority of cases there would be nothing to seize.

Monday, 18 May 2015

Anonymity order will not protect those facing allegations of sexual harassment

In BBC v Roden, the EAT held that a tribunal was wrong to take into account the risk of the public believing in the truth of unproven allegations of sexual harassment against an unfair dismissal claimant when deciding to extend an anonymity order. The public interest in open justice in such a case outweighed the individual’s right to a private life.

The EAT allowed the appeal against the privacy order. The employment judge had failed to carry out a proper balancing exercise between the public interest in open justice and R’s right to a private life under Article 8 of the European Convention on Human Rights. Furthermore, the judge’s acceptance that there was a risk that the public would conclude that R had actually committed the alleged offences was not a valid reason for continuing the anonymity order. The Supreme Court established in Guardian News and Media Ltd v City of Westminster Magistrates’ Court 2010 UKSC 1 that the risk of the public drawing unjustified inferences was not a reason for granting anonymity in a case where the unproven allegations related to terrorism offences. The EAT considered that the same principle fell to be applied in the present case. The public interest in open justice is regarded as outweighing the Article 8 rights of a person suspected of a serious criminal offence. The EAT noted that the public has become accustomed to the early identification of such persons (even before charge in many cases) and is trusted to distinguish between an allegation and a finding of guilt.

NB: There is also a useful discussion about Article 8 in relation to anonymity orders.

Wednesday, 13 May 2015

Short shrift afforded to claimant who failed to fully enter the ACAS conciliation number

Short shrift was afforded to a claimant who failed to fully enter the ACAS conciliation number on her ET1 in Sterling v United Learning Trust


The Claimant submitted a claim form, fee, and application for remission to an Employment Tribunal office four days before time expired.  It was returned to her as rejected, mis-addressed by omission of her house number, at a time when it could not be re-submitted without being out of time, though the Claimant submitted it at the first opportunity.  The Judge inferred from her evidence and the material before him that she had not fully entered the ACAS conciliation number she had been given on her application form, and that the Employment Tribunal had been obliged by Rule 10(1)(c)(i) of the Employment Tribunal Rules to reject it.  No argument was made that it had not been reasonably practicable to submit the claim on time.  An appeal on grounds that the Employment Judge should not have drawn the inference he did, and that he had failed to hold it not reasonably practicable to submit the claim in time, was rejected - the former was a permissible conclusion, the second had not been argued before him but in any event he also dealt with the question and concluded that the reason for being out of time was the failure of the Claimant to record the ACAS number fully and correctly, a conclusion he was entitled to reach.

Perhaps the crucial paragraphs can be found here:

22.          Once it is accepted that the Tribunal was entitled to think that the form did have a couple of digits missing, the question is whether the Tribunal was then obliged to reject the form.  The wording of Rule 10 was not significantly in issue before me.  Where the rule requires an early conciliation number to be set out, it is implicit that that number is an accurate number.  The Tribunal had found it was not.  Once that appeared to be the case, the Tribunal was obliged to reject it, and that rejection would stand, subject only to reconsideration, which here was not asked for.  Although that might have been the failure of Mr McKenzie and not the Claimant herself, the Tribunal Judge had Mr McKenzie before him as her representative and was entitled, therefore, to think that there was no application for reconsideration. 

23.          As to the second ground, the difficulty here too is the lack of argument to the effect that it had not been reasonably practicable for the Claimant to present the claim earlier than she did.  Where an argument is not pursued before a Tribunal, a Judge is entitled to conclude that, since the burden is on the Claimant to show that it was not reasonably practicable, she has failed to discharge that burden.  That decision was in accordance with the law.

Monday, 11 May 2015

Whistleblowing: Guidance for Employers and Code of Practice

Whilst doing a bit of research into whistleblowing I found this guide published by the Department of Business, Innovation and Skills on 20 March 2015:

This guidance will help employers:

understand the law relating to whistleblowing
put in place a whistleblowing policy
recognise the benefits whistleblowing can bring to an organisation
The code of practice gives examples of the commitments required in a whistleblowing policy and how it should be managed.

As most employment lawyers will agree there are so many technical tests to satisfy with whistleblowing    complaints that seeking advice from an employment specialist is crucial.

Friday, 1 May 2015

CLFIS v Dr Mary Reynolds judgment 'Focus on the discriminator'

Is it discriminatory to dismiss where a manager has decided to dismiss an employee on the basis of an adverse report about her from another employee who is motivated by her age?

No, held the Court of Appeal in CLFIS v Dr Mary Reynolds Neutral Citation Number: [2015] EWCA Civ 439

Crucial paragraph in the judgment of Lord Justice Underhill ::

In my view the composite approach is unacceptable in principle. I believe that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. I see no basis on which his act can be said to be discriminatory on the basis of someone else's motivation. If it were otherwise very unfair consequences would follow. I can see the attraction, even if it is rather rough-and-ready, of putting X's act and Y's motivation together for the purpose of rendering E liable: after all, he is the employer of both. But the trouble is that, because of the way the Regulations work, rendering E liable would make X liable too: see the analysis at para. 13 above. To spell it out:
(a) E would be liable for X's act of dismissing C because X did the act in the course of his employment and – assuming we are applying the composite approach – that act was influenced by Y's discriminatorily-motivated report.

(b) X would be an employee for whose discriminatory act E was liable under regulation 25 and would accordingly be deemed by regulation 26 (2) to have aided the doing of that act and would be personally liable.

It would be quite unjust for X to be liable to C where he personally was innocent of any discriminatory motivation.