Wright, Johnston & Mackenzie Solicitors

Compensation For Unjustifiable Union Discipline

It was held by the Court of Appeal in Massey v UNIFI that compensation could be awarded for personal injury suffered by a claimant who had suffered a stroke following unjustified disciplinary action by her trade union. For compensation to be reasonable, there was no requirement that the injury sustained was a reasonably foreseeable consequence of the union’s actions. It was also noted by the Court that there is no requirement of reasonable forseeability in race discrimination claims.

The legal background

Under section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992, union members have a right not to be unjustifiably disciplined by their trade union. Since 2004, Employment Tribunals have been empowered by the Employment Relations Act 2004 to make compensatory awards for unjustified disciplining. The Massey case, however, fell under the pre-2004 regime and the Employment Appeal Tribunal (EAT) made a compensatory award, including a large award for personal injury. In doing so, they followed the line taken in Essa v Laing Ltd, a race relations claim, in that compensation can be awarded where personal injury is a direct and natural consequence of the act of discrimination.

Practical implications

It would appear that the findings in this case mean that subsequent, similar cases will be decided on the basis of whether the claimant can establish that the injury suffered was caused by the unjustified disciplinary action.

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Reluctance To Admit Disability Can Lead To Extension Of Time Limit For Claim

The Court of Appeal held in the case of Department of Constitutional Affairs v Jones that the Tribunal Chairman was entitled to exercise his discretion to allow an out-of-time claim for disability discrimination to be accepted, where the delay was caused by the claimant’s reluctance to admit that his depression was serious enough to constitute a disability.

Legal background

Complaints of Disability Discrimination must be lodged with the Employment Tribunal within 3 months of the act of discrimination. However, the Tribunal Chairman has a discretion to allow a claim to be submitted late where it considers it to be just and equitable to do so.

Correct use of Chairman’s discretion?

The Court of Appeal had to decide in this case if the Tribunal Chairman had correctly used his discretion in extending the time limit for the claim. The Court looked at the particular circumstances of the case and agreed with the Tribunal Chairman that the claimant had held off presenting his disability discrimination claim because he did not want to admit to himself or to others that he had a mental illness. The Court agreed that it was just and equitable, given the claimants condition, to extend the time limit for submitting the claim. This is a further example of the Tribunal’s wide discretion and of the Court’s reluctance to interfere with it.

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Claim 88 Seconds Late Was Too Late

The Employment Appeals Tribunal held in the recent case of Beasley v National Grid Electricity Transmissions that an Employment Tribunal was entitled to refuse to hear a claim for unfair dismissal sent 88 seconds after the expiry of the three-month time limit. The claimant addressed his original application incorrectly and, following a test email, re-sent his claim form at midnight. The Tribunals Service received the claim 88 seconds after midnight. The Tribunal Chairman held that it was reasonably practicable for the claimant to have lodged his application in time and so the Tribunal had no jurisdiction to hear the claim.

Legal background

The claimant was dismissed from his job and, as is the norm, he had 3 months in which to submit his claim for unfair dismissal. The claimant consulted a solicitor, who informed him that the 3-month time limit might be extended because the statutory grievance procedure was being followed. However, shortly after this the claimant was informed that the statutory grievance procedure did not apply and therefore the claim had to be submitted before the expiry of the 3-month deadline. The claimant’s representative then waited until 11.44pm the following day (16 minutes before the deadline!) to email his claim form. This email was rejected as the wrong email address had been entered. The representative then sent a test email at 11.57 pm and finally sent his claim at midnight. The claim was received by the Tribunal office 88 seconds after midnight.

Practical implications

The test in unfair dismissal cases is whether or not it was reasonably practicable for the claim to have been lodged on time which is a much higher test than the just and equitable test in discrimination claims as mentioned in the above article. The EAT held that it had been reasonably practical for the claimant to have submitted his claim in time. The EAT found that the claimant had all relevant documentation pertinent to his case and that all of this documentation highlighted that a three month deadline was present. In addition to this, the claimant was given specific advice on the day before the time limit expired on exactly how long he had to submit his claim. This case is a salutary lesson to all claimants and representatives of the importance of lodging applications before the expiry of the time limit. It is only in exceptional cases that late applications will be accepted.

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Is A Claim Received 9 Seconds Late Too Late?

The short answer is, yes. The Beasley case outlined above was followed in quick succession by Miller v Community Links Trust Limited, in which a claimant submitted his form at 9 seconds past midnight. The EAT found that the Tribunal was not entitled to hear this claim. Interestingly, it was discovered at the Tribunal that the claim form had been submitted by a second year law student, who apparently subsides his studies by submitting claims at a charge of £120 per hour!

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No Smoke Without Getting Fired

It was held by the EAT in the recent case of Smith v Michelin Tyre Plc that an employer who dismissed a long-serving employee for a one-off breach of the workplace non-smoking policy was fair. Smoking had always been prohibited at the premises due to the highly flammable products present and the employer had to weigh the employee’s circumstances against the protection of their business, property and the lives of their staff. Dismissal was therefore a reasonable response.

This particular case hinged very much on the circumstances. There had been a long held policy prohibiting smoking in certain areas of the factory and this had been extended to all internal areas following the implementation of the smoking ban in Scotland on 26 March 2006. There were authorised areas outside of the factory where smoking was permitted.

Practical implications

The practical implications of this case are limited due to the particular facts. However, it is important to note that following the implementation of the smoking ban nationwide, there is a statutory obligation on employers to prohibit smoking in enclosed workspaces, including company vehicles.

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Drunkenness At Work Through Alcoholism Was Contributory Conduct

In Sinclair v Wandsworth Council, an alcoholic employee was dismissed for twice turning up for work drunk. The Employment Appeal Tribunal upheld the Tribunal’s finding that the dismissal was unfair because the Council had not issued the employee with a copy of its alcohol policy. This policy set out the circumstances in which disciplinary proceedings would be suspended pending treatment for alcoholism. The Council had failed to make it clear to the employee what steps he needed to take to avoid dismissal. However, the EAT held that the Tribunal erred in its approach to compensation when it assessed the reduction for contributory fault at only 25%. The Tribunal had taken the view that, since alcoholism was an illness, the employee’s drunkenness at work could not be taken into account as contributory conduct. The EAT disagreed with this view.

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Constructive Dismissal: Company Liable For Acts Of Managing Director's Husband

In De Clare Johnson v MYA Consulting Ltd, the EAT upheld a Tribunal’s decision that an employee had been constructively dismissed when she resigned in response to conduct by the Managing Director’s husband. The conduct was such that it had been likely to destroy mutual trust and confidence between the employee and the employer. The EAT held that there was no single test regarding whether an employer should be held liable for breach of contract based on a third party’s conduct, but the factors in this case pointed towards liability.

Factual background
The claimant worked as a housekeeper in a house from where a business was run. The claimant was confronted and shouted at on several occasions by her employer’s husband. The Tribunal held that all of those matters taken together constituted a fundamental breach of contract and entitled the claimant to leave forthwith. It upheld the claimant’s case of constructive unfair dismissal holding that the actions described above were likely to seriously damage the relationship of trust and confidence between the claimant and her employer.

The EAT held that vicarious liability for a non-employee must be established on the facts of each case. The claimant was at work when the incidents occurred, and doing what she was paid to do. The company was in the position of control and the employer’s husband was clearly impliedly authorised by the employer to issue instructions to the claimant. In such circumstances the company, run from the family home, was vicariously liable for the actions of the Managing Director’s husband.

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Nine In Ten Employers At Risk Over Disability Provisions

Figures recently released by The Employers’ Forum Disability Standard 2007 found that only eight per cent of employers have an effective “reasonable adjustment” policy in place, despite the fact that the Disability Discrimination Act 1995 requires employers to make adjustments to enable their disabled employees to work as effectively as non-disabled employees.

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Duty On Employers To Consult Regarding The Reason For Making Mass Redundancies

The EAT has held, in UK Coal Mining Ltd v National Union of Mineworkers & the British Association of Colliery Management, that it can no longer be assumed that employers do not need to consult over the reasons for making mass redundancies. In previous cases, such as R v British Coal and Secretary of State for Trade and Industry ex parte Vardy, the courts had previously implied that there was no need to consult with employees over the reasons for making redundancies.

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TUPE Does Not Confer Additional Rights On Employees

The recent Court of Appeal judgment in Jackson v Computershare Investor Services Plc upheld the earlier EAT decision that, while the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) safeguards the rights of employees in the event of a transfer of the employing business, they cannot be used by an employee to improve on their position as it stands at the date of the transfer.

The claimant took up employment in 1999. The business transferred to the respondent employer in 2004, and the claimant was made redundant in 2005. The Employment Tribunal found that, due to the 2004 TUPE transfer, the claimant was entitled to enhanced severance pay - something that the employer only made available to employees who had joined it pre 2002. The EAT disagreed and the case was appealed to the Court of Appeal who dismissed the claimant’s appeal. TUPE Regulation 5(1) does not give a transferred employee access to benefits other than those to which the employee was entitled before the transfer of the undertaking. It is there to safeguard existing rights only. So for the question of enhanced severance pay TUPE could not be used to “miraculously transform” the claimant into someone who joined the employer pre-2002 when, in fact, she joined in 2004. The original Tribunal was wrong and she was not entitled to the enhanced payment.

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Upcoming Legislative Changes

A brief outline of some current Government employment law reform plans.

Employment Simplification Bill
This Bill proposes to repeal the statutory dismissal and grievance procedures, which were introduced in 2004. It is likely to be published before Christmas and will also implement many of the recommendations of the Gibbons review of workplace dispute resolution including the enforcement of the national minimum wage.

Extension of flexible working
The Queen’s Speech on 6th November 2007 announced that there will be further “proposals to help people achieve a better balance between work and family life”. An independent review has been carried out to determine how the statutory right to request flexible working can be extended to parents of older children (the right is currently restricted to parents of children under six, disabled children and carers of adults).

Amendments to the Race Relations Act
In June 2007, the European Commission claimed that the UK had not fully implemented the EC Race Discrimination Directive with particular regard to the definition of “indirect race discrimination”. The Race Relations Act is expected to be amended accordingly to address these concerns shortly.

Amendments to the Sex Discrimination Act delayed
Amendments are due to be made shortly to the Sex Discrimination Act 1975 (SDA) by the Department for Communities and Local Government following the findings in Equal Opportunities Commission v Secretary of State for Trade and Industry. In that case, it was decided that previous SDA amendments (contained in the Employment Equality (Sex Discrimination) Regulations 2005) did not adequately implement EU equal treatment laws.

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Further Information

For further information on these or any other employment issues please contact:

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