This last month has been the usual busy one, with the handing down by the Supreme Court of their judgments in the linked cases of Homer v Chief Constable of West Yorkshire Police  UKSC 15,  All ER (D) 122 (Apr) and Seldon v Clarkson Wright and Jakes  UKSC 16,  All ER (D) 121 (Apr) on deep issues on age discrimination and, at the other end of the scale (in so many ways), a quite fascinating Employment Appeal Tribunal (EAT) decision on the employment status of a lapdancer (Quashie v Stringfellows Restaurants  UKEAT/0289/11). The two Supreme Court cases will be considered specifically in other articles in this magazine, and I will leave it up to individual readers of this column to take up the issue of lapdancers if that is their particular interest (always remembering, please, to preface any remarks with the accepted formula of “friends tell me…”). Instead, this column looks at four recent cases which, while rather more prosaic, do concern issues of some practical importance for lawyers at the coalface, namely setting the effective date of termination, defining the protection given to health and safety complainants, dealing with alleged harassment through comments and whether an employer must or should inform an unsuccessful applicant why he or she did not get the post.
The decision of the EAT under Cox J in Horwood v Lincolnshire CC  UKEAT/0462/11 shows a duality of approach as to fixing the effective date of termination (EDT)—there can be changes made by agreement to vary the mechanism for establishing it (especially by varying a notice of dismissal) but once it has in fact been fixed it is not open to the parties to change it. The latter point may be particularly important in a case such as the present where the employee unambiguously resigns as from a set date.
The claimant objected to disciplinary procedures which led to her demotion. She lost an appeal on 12 January 2010 and, on 27 January, sent by special delivery a letter of immediate resignation. This was received at the employer’s office, opened and date-stamped on 29 January (though not actually read by the individual addressees until a couple of days later). On 2 February, a letter in reply was sent, saying that her resignation would be treated as effective from 2 February for payment purposes. The claimant presented an ET1 for unfair constructive dismissal on 29 April, thinking that the effective date of termination was 2 February. It was, however, out of time if the EDT was 29 January, and that was in fact the decision of the tribunal which rejected her claim. They fixed the date under the ordinary rules and said that there was insufficient evidence of any agreement between the parties to change it to 2 February.
The EAT upheld that decision, but with one difference in approach. They held first that where an employee resigns by letter the EDT is when the employer receives the letter (see Edwards v Surrey Police  IRLR 456). However, while it has recently been held in the Supreme Court that a letter of dismissal must actually be read by the employee himself before the EDT is established (Gisda Cyf v Barratt  UKSC 41,  4 All ER 851), the rule is subtly different where it is the employee resigning—here, it is “the employer” who must be informed and that means it is not necessary for the letter to be read by a particular manager to whom it is addressed (see Potter v RJ Temple plc  All ER (D) 327 (Dec) and George v Luton BC  All ER (D) 04 (Dec)). That fixed the EDT here at 29 January. Second, however, the EAT held that it had not been necessary to go on to consider whether that date had been varied by the employer’s reference to 2 February. There can be a consensual variation of notice (see Palfrey v Transco plc  IRLR 916,  All ER (D) 150 (Jul)), but the actual fixing of the EDT is a statutory matter and once fixed (as here) it is not in the gift of the parties to amend it (see Fitzgerald v University of Kent  EWCA Civ 143,  All ER (D) 262 (Feb)). The judge sought to square this circle as follows: “However, none of the authorities to which he referred provides any support for such an analysis, in circumstances where the claimant had already communicated her resignation, in unambiguous terms and with immediate effect, on 29 January. Indeed the decision in Fitzgerald indicates that, for good reason, it is not open to the parties to seek retrospectively to alter an EDT and to bypass the effects of s 97. A clear distinction is to be drawn between cases such as Palfrey, where the parties reach a clear agreement as to an earlier termination date during the notice period, and cases such as the present, where the employee herself resigns with immediate effect and effectively communicates that decision to her employer, whereupon the EDT is fixed and cannot retrospectively be altered.”
What is a “refusal” to work?
An employee dismissed because he or she refused to comply with a requirement proposed by the employer in contravention of the Working Time Regulations 1998 (SI 1998/1833) is to be taken to have been unfairly dismissed under the Employment Rights Act 1996, s 101A(1). This is particularly important protection where the employee did not have the necessary qualifying employment for an ordinary unfair dismissal claim (now doubly important with the raising of that period from one to two years). However, as Ajayi v Aitch Care Homes (London) Ltd  UKEAT/0464/11 shows, the sub-section does raise a potentially difficult point—what is meant by a “refusal” in this context?
The employee was a night care assistant in the employer’s care home. He had been told repeatedly that sleeping on duty would not be tolerated. He was however found asleep and disciplined, leading to dismissal. When found, he had mentioned that he ought to have had a rest break (during which sleeping would have been permitted) but that was the extent of the conversation about any working time issues. On his claim for automatically unfair dismissal, the tribunal held that he had not expressly refused any order or requirement on working time grounds; the dismissal had therefore simply been because he had been found asleep and, whatever may have been the position if he had been able to bring an ordinary unfair dismissal claim, he did not come within s 101A(1). On appeal, he argued that the section should be given a wide interpretation, to apply to cases of an implied refusal to do something that in fact would have contravened the working time laws. Treating the matter as one of first principles, however, the EAT under Langstaff J held that what s 101A(1) requires is an express invocation of the working time rights and an actual refusal communicated to the employer. This was said to follow as a matter of both statutory interpretation (especially the reference to refusing something, not just failing to do it) and policy in the sense of certainty and letting the employer know what the employee is claiming.
There is, however, a problem. The matter was not in fact uncovered by authority. As Harvey points out at DI [1953.01] the EAT had already considered this issue under Lady Smith in McLean v Rainbow Homeloans Ltd  IRLR 14,  All ER (D) 291 (Oct) and come to a different conclusion. There, a mortgage adviser had consistently worked long hours (beyond those in the Regulations) but when told to work even longer he declined to do so for personal reasons. He was dismissed within the (then) one year qualifying period and sought to rely on s 101A(1). Here, the tribunal held that he had not been dismissed for expressly insisting on his rights, but the EAT allowed his appeal. Lady Smith said that what was relevant was whether he had been dismissed because he had refused to comply with an employer requirement which would in fact have contravened the Regulations. There was no requirement that he had positively and expressly asserted his statutory rights; the fact that the employer’s demand would have breached the Regulations did not have to be the reason for the employee having refused to comply.
Are these cases distinguishable? On the one hand, in McLean there was an actual “refusal” of sorts, whereas in Ajayi there was simply the fact of going to sleep in circumstances which may have breached the law. On the other hand, however, the refusal in McLean was not actually because of breach of that law, and that was not thought important. It arguably fell short of the sort of express refusal on working time grounds talked about in Ajayi. It is thus possible that the cases simply clash, and unfortunately there is no mention of McLean in Ajayi.
Context is all, especially where harassment is alleged to have arisen from verbal insult. That is the key message from the decision of the EAT under Langstaff P in Warby v Wunda Group plc  UKEAT/0434/11. The facts were relatively simple. In the course of a bad-tempered discussion between the claimant and one of her managers, they accused each other of lying. However, the accusation by the manager was on the basis that the claimant had lied in relation to her miscarriage and subsequent further pregnancy. On that basis, the claimant argued that this constituted unlawful harassment on the ground of sex. However, the tribunal held against her on the facts and the EAT upheld their right so to decide. They held that words relating to a protected characteristic can certainly constitute harassment, but in order to do so it must be shown that the conduct in question was “on the grounds of” the prohibited characteristic (or, under the Equality Act now, “related to”). There may well be cases such as the present where that characteristic is mentioned but is not actually the reason for what was said—hence the importance of the context of the remarks. Here, the key allegation was of lying, with the pregnancy merely being the context in which it was alleged that the lies had been told. As the judge put it: “We accept that the cases require a tribunal to have regard to context. Words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a tribunal might conclude that in consequence the words themselves are that upon which there must be focus and that they are discriminatory, but a tribunal, in our view, is not obliged to do so. The words are to be seen in context; the context here was that the dispute and discussion was about lying. The conduct complained of, as the tribunal saw it, was a complaint emphatically made about lying; it was not made to the claimant because of her sex, it was not made to the claimant because she was pregnant, and it was not made to the claimant because she had had a miscarriage. In the words of Ahmed, as earlier quoted: “The fact that a claimant’s sex or race is a part of the circumstances in which the treatment complained of occurred, or of a sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment.”
There is thus no form of strict liability for merely referring to the protected characteristics, and the question for the tribunal is a much more subtle one. To put that another way for those readers devoted to old films, it is not enough just to point and say “He said ‘Jehovah’”.
The relatively short judgment by the CJEU in Meister v Speech Design Systems GmbH: C-415/10 concerned a point of some practical interest in cases where a job applicant suspects that his rejection was due to unlawful discrimination but has little direct evidence of that. Can he require disclosure by the employer of information as to whether someone else was appointed and, if so, on what criteria?
Those were the facts in the case itself, and the claimant’s case was bolstered by two further factors:
- It was not contested that she was suitably qualified for the post; and
- she had not even been invited to interview.
The decision of the court, however, is rather complicated. On the pure point of interpretation of the relevant Race and Equal Treatment Directives (2000/43, 2000/78 and 2004/54), the decision was that a claimant has no stand-alone right to such disclosure. However, to that it was added that a refusal by the employer might be relevant as evidence operating the formal reversal of the burden of proof required by those directives (and the Burden of Proof Directive 1997/80), ie as part of the factors to be shown by the claimant as establishing facts from which a tribunal could infer discrimination, which then casts the formal burden of proof on to the employer. Three comments are offered on this:
- The two further factors mentioned above were clearly important in the decision, and it may be that a mere failure to explain by the employer on its own would not be sufficient to reverse the burden of proof.
- The wording of the reference is arguably important because what was being sought by the claimant was information and an explanation of sorts. It was not being argued that she should have access to the successful candidate’s personal information, which might have raised difficult issues of confidentiality and (that bugbear of HR people) data protection.
- This relatively interventionist approach in discrimination law may be contrasted with the position in ordinary employment law. One of the reasons for the recent decision in Samsung Electronics (UK) Ltd v Monte d’Cruz UKEAT/0039/11 (see Harvey Bulletin 405) that, in a case of firing staff and inviting them to reapply for jobs along with outside applicants, there is little by way of a legal duty on the employer to conduct the exercise fairly or according to set rules, was that the employees are in competition with those outside applicants who at common law have no legal rights. It now seems that an employer might not be best advised just to dig its heels in and refuse to explain itself, at least in any case where there might be a discrimination claim by a disappointed applicant (which a cynic might say is just about any case). Thus, an employer may be better advised at least to respond to a seemingly bona fide query by such an applicant, especially one who seems at first blush to have been well qualified for the post. The question left by this case, however, is how detailed that response needs to be in order to head off an argument on the burden of proof. After all, as strongly pointed out in Samsung, it is the function of a tribunal to assess the legality of the employer’s conduct, not to decide who was the best candidate in their opinion, a point which arguably should apply as much in a discrimination case as in an employment law case.
Ian Smith, barrister, emeritus professor of employment law at the Norwich Law School, UEA & an editor of Harvey on Industrial Relations and Employment Law