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Thursday, 31 May 2012

Solidarity

Train drivers in pensions battle
Submitted on 23 May, 2012 - 09:04

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Author: A train driver
Train drivers working for East Midlands Trains (EMT) have taken 6 days of strike action in the past 3 weeks to try and prevent the company from reducing contributions to their pension fund.

In 2010 an actuarial valuation revealed a funding level of 99.1% and a prediction that if the Joint Contribution Rate (the money paid into the fund by management and workers) stayed the same, then the fund would probably move into surplus.

With the current financial turmoil, drivers are rightly concerned that any reduction now will leave a deficit in 2013. The company has been asked to provide an interim valuation to confirm that the fund is in surplus now but has refused. In other companies where recent valuations have shown actual surpluses union members have voted to reduce the contributions. EMT has also been unwilling to commit to make up any shortfall if the reduction goes ahead. Drivers are suspicious that, as 2013 is the end of the franchise, EMT are looking to make a fast buck at our expense before they give up or lose the franchise.

So far, only members of the drivers’ union ASLEF have taken action. The other unions organising on EMT, RMT and Unite, are in the process of balloting their members on this issue. ASLEF will probably wait for the results of those ballots before deciding what to do next. If the other unions vote for action (and this could be a proxy for all the other issues we currently have with the company including victimisation of reps, pay, rosters and the car park levy), it will be difficult for EMT to maintain their strike day skeleton service if different grades strike on different days. It would be feasible for instance that the drivers could strike one day, other train crew the following day and platform staff the day after that. Coupled with a possible week long strike by train maintainers, which would see trains gradually becoming unfit for service, there is a good chance we could win this one quickly. If we don’t get the results, ASLEF could call token strikes to keep the ballot live and then have another push during the Olympics, which would give the dispute national publicity.

As we are always being told to save more for our pensions, the company would be shown up to be the pension raiders that they are, and we can rightly portray ourselves as the responsible party trying to maintain them.

Train drivers in pensions battle Submitted on 23 May, 2012 - 09:04 Share Author: A train driver Train drivers working for East Midlands Trains (EMT) have taken 6 days of strike action in the past 3 weeks to try and prevent the company from reducing contributions to their pension fund. In 2010 an actuarial valuation revealed a funding level of 99.1% and a prediction that if the Joint Contribution Rate (the money paid into the fund by management and workers) stayed the same, then the fund would probably move into surplus. With the current financial turmoil, drivers are rightly concerned that any reduction now will leave a deficit in 2013. The company has been asked to provide an interim valuation to confirm that the fund is in surplus now but has refused. In other companies where recent valuations have shown actual surpluses union members have voted to reduce the contributions. EMT has also been unwilling to commit to make up any shortfall if the reduction goes ahead. Drivers are suspicious that, as 2013 is the end of the franchise, EMT are looking to make a fast buck at our expense before they give up or lose the franchise. So far, only members of the drivers’ union ASLEF have taken action. The other unions organising on EMT, RMT and Unite, are in the process of balloting their members on this issue. ASLEF will probably wait for the results of those ballots before deciding what to do next. If the other unions vote for action (and this could be a proxy for all the other issues we currently have with the company including victimisation of reps, pay, rosters and the car park levy), it will be difficult for EMT to maintain their strike day skeleton service if different grades strike on different days. It would be feasible for instance that the drivers could strike one day, other train crew the following day and platform staff the day after that. Coupled with a possible week long strike by train maintainers, which would see trains gradually becoming unfit for service, there is a good chance we could win this one quickly. If we don’t get the results, ASLEF could call token strikes to keep the ballot live and then have another push during the Olympics, which would give the dispute national publicity. As we are always being told to save more for our pensions, the company would be shown up to be the pension raiders that they are, and we can rightly portray ourselves as the responsible party trying to maintain them.

Solidarity

Wednesday, 30 May 2012

Are inquiries “fit for purpose”?

The “inquiry into inquiries” is the initiative of not-for-profit mediation body the Centre for Effective Dispute Resolution (CEDR), which has highlighted low public confidence in the public inquiry process.
Lord Woolf, a former Lord Chief Justice, says: “Public inquiries have been normalised in UK society by their sheer frequency and the level of attention provided by media outlets.
“What’s needed is a serious review of the design and execution of public inquiries, to answer the fundamental question of whether, in its current form, the public inquiry is still fit for purpose.”
An independent survey commissioned by CEDR revealed more than half of 2,000 adults questioned believe public inquiries are too costly, take too long and that politicians have too much influence over the process. Less than half believe public inquiries result in the recommended changes being made.
More than two-thirds would like to see members of the public represented on public inquiry panels.
Only just over a quarter said they had confidence in the system. However, this may be partly due to a lack of understanding—more than three-quarters of respondents had little or no understanding of public inquiries.
“For anyone with access to the news, public inquiries would appear to be a mainstay of daily life,” says Dr Karl Mackie, CEO of CEDR.
“But the impact of public inquiries, good and bad, is far-reaching and deserves further consideration beyond what is said in the headlines. By launching the ‘inquiry into inquiries’, we hope to encourage necessary changes in the commissioning, management and integration of inquiry findings with public policy.”
The longest and most expensive public inquiry was the Saville Inquiry into the events of Bloody Sunday, which lasted 12 years and cost £195m. Lord Hutton’s inquiry into the death of Dr David Kelly cost £2.5m and lasted six weeks. A public inquiry into the 2005 outbreak of E. coli in South Wales also lasted six weeks and cost £2.3m.
CEDR is inviting experts, past inquiry participants and other potential project partners to share their experiences at www.cedr.com/inquiry.

Ian Smith provides a round-up of the latest employment law decisions

Date: 21 May 2012 Authors: Ian Smith Issue: Vol 162, Issue 7514 Categories: Features, Employment
Man in business suit with ball and chain on ankle

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 [2012] UKSC 15, [2012] All ER (D) 122 (Apr) and Seldon v Clarkson Wright and Jakes [2012] UKSC 16, [2012] 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 [2012] 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.

Fixed EDT

The decision of the EAT under Cox J in Horwood v Lincolnshire CC [2012] 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 [1999] 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 [2010] UKSC 41, [2010] 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 [2003] All ER (D) 327 (Dec) and George v Luton BC [2003] 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 [2004] IRLR 916, [2004] 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 [2004] EWCA Civ 143, [2004] 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 [2012] 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 [2007] IRLR 14, [2006] 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.

Harassing remark

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 [2012] 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’”.

Unsuccessful applicants

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

Sunday, 27 May 2012

Supreme Court rules on justification of enforced retirement

The Supreme Court has handed down its judgment in Seldon v Clarkson Wright and Jakes – the long-running case concerning the question of whether the compulsory retirement of a partner in a firm of solicitors was justified under the Employment Equality (Age) Regulations 2006. In dismissing the claimant’s appeal, the Court held that the justification tests for direct and indirect age discrimination are not one and the same. Although the wording of the justification defence in Reg 3 does not differ depending on the form of discrimination, it must be read consistently with the jurisprudence of the ECJ, which has shown that direct age discrimination can only be justified by reference to legitimate objectives of a public interest nature, rather than purely individual reasons particular to the employer’s situation. However, the Court went on to confirm that staff retention, workforce planning and limiting the need to expel partners by way of performance management are all legitimate aims capable of justifying direct age discrimination, as they fall within the two categories of social policy objective identified by the ECJ: ‘inter-generational fairness’ and ‘dignity’.

A clause in the partnership deed of the law firm Clarkson, Wright and Jakes (CWJ) provided for the compulsory retirement of partners at 65. When S was retired, he argued that this was unjustified direct age discrimination contrary to Reg 17, which prohibits such discrimination in partnerships. It being accepted that the retirement clause was directly discriminatory, an employment tribunal (Brief 847) examined CWJ's defence of objective justification, finding that CWJ had the legitimate aims of ensuring that senior solicitors are given the opportunity of partnership; facilitating partnership and workforce planning; and creating a congenial and supportive firm culture by limiting the need to expel partners by way of performance management. The tribunal found that a retirement age of 65 was a proportionate means of achieving these aims and rejected S's claim of direct discrimination.

On appeal, the EAT (Brief 869) held that the tribunal had correctly approved CWJ's legitimate aims. However, the third aim was based on a discriminatory stereotype that partners' performance tends to drop at 65. This particular aim could not, therefore, justify a retirement age of 65 in the absence of any evidence that performance tends to fall off at this age. As a result, the EAT remitted the case to the same tribunal to reconsider the question of justification by reference to the two remaining legitimate aims. S appealed unsuccessfully to the Court of Appeal (Brief 908), before appealing three questions to the Supreme Court: (i) whether the three aims of the retirement clause were capable of being legitimate aims for the purpose of justify direct age discrimination; (ii) whether the firm has to justify both the retirement clause generally and its application to S; and (iii) whether the tribunal was correct to conclude that the clause was a proportionate means of achieving any of the three aims.

In dismissing S’s appeal and confirming the decision of the EAT to remit the case to the tribunal, Lady Hale – with whom Lords Hope, Brown, Mance and Kerr were all in agreement – observed that the tribunal had reached its decision prior to the development of an extensive body of ECJ jurisprudence concerning the justification of age discrimination. These cases showed that, contrary to the tribunal’s view, the justification test for direct discrimination is narrower than for the indirect form: direct discrimination can only be justified by reference to legitimate objectives of a public interest nature, rather than purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness. In this respect, the ECJ had identified two broad categories of legitimate social policy objective: ‘inter-generational fairness’ and ‘dignity’. Applying the ECJ jurisprudence to the instant case, Lady Hale held that the staff retention and workforce planning aims were not, as S contended, simply individual aims of the business, but instead fell within the category of ‘inter-generational fairness’. Furthermore, the aim of limiting the need to use performance management to expel partners clearly fell within the ‘dignity’ category of legitimate aim. As a result, all three aims had the requisite ‘social policy/public interest dimension and were thus legitimate.

On the question of proportionality, Lady Hale stressed that this requires an employer or partnership to show that the means adopted to achieve the aim are both appropriate and necessary. Noting that the case was already being remitted to the tribunal as a result of the EAT’s ruling on the performance management aim, Lady Hale stated she would not rule out the tribunal considering whether the choice of age 65 was a proportionate means of achieving the first two aims, as ‘there is a difference between justifying a retirement age and justifying this retirement age’. Lord Hope added that it would be proper for the tribunal to take into account the fact that, when the clause was agreed and when S was retired under the clause, there existed a designated retirement age of 65 for employees. As a final matter, Lady Hale held that where it is justified to have a general rule – such as a compulsory retirement age – the existence of that rule will usually justify the treatment which results from it. However, she stressed that while it will not be necessary to justify the application of a retirement age to a particular employee (for that would negate the purpose of having such a rule), it is necessary to justify the rule in the particular circumstances of the business.

Although the case was decided under the Age Regulations – which were repealed with effect from 1 October 2010 – Lady Hale recognised that the principles she identified would apply equally to the justification of direct age discrimination under S.13(2) of the Equality Act 2010.

This case will be reported in the next edition of IDS Employment Law Brief.

Further information:
http://www.supremecourt.gov.uk/docs/UKSC_2010_0201_Judgment.pdf

Briefing for MPs Home Affairs Select Committee
Introduction
Unite and Unison represent Police staff. We are frankly aghast that there is a serious discussion taking place about privatising our police force less than a year after the Home Secretary tasked HM Inspectorate of Constabulary to “[investigate] and consider instances of undue influence, inappropriate contractual arrangement and other abuses of power in police relationships”1 as a result of the recent spotlight placed on alleged police corruption.
West Midlands and Surrey Police forces have begun a process of privatising all of what they designate as ‘non-core’ services. These are services that do not require the office of constable, i.e. the powers of arrest. The privatisation would take place through two contracts; firstly, for custody, and the second contract covering all other service areas. It is essential to explain that many of these services are still roles which the public would regard as being, and are, central to the function of the police force and the exercise of their duties. These roles include: Forensic scene investigators, contact centres (first point of contact for calls from the public), arrest referral workers, Police National Computer bureau (handles the updating of all Police National Computer records), analysts (analysis crime patters to assist in the early detection and prevention of crime, for example, high volumes of burglary in an area), economic crime teams (police staff are employed as financial investigators to investigate high value crime), 999 call takers.
In short, the services it is proposed to privatise cover;
• Dealing with confidential, sensitive information
• Crime prevention, detection and investigation
• Police response to 999 calls
• Victim handling and public safety
• Custody
On 13th March 2012 a bidders conference was held, bringing together interested companies. These included, amongst others; Amey, Accenture, Serco, G4S and many others. The conference also brought together other Police forces – the advert placed in the Official Journal of the European Union allows other police forces to join in with the privatisation process.
We believe this Business Partnership – the privatisation of parts of our police force – will be detrimental to the quality and functioning of those services. It threatens the transparency and accountability of local policing services – two key principles of the Police forces’ commitment to the public. This carries grave implications for the safety of the public and the future integrity of our policing system. The HMIC report Without Fear or Favour highlighted several areas that police forces need to concentrate on to ensure the impartiality and honesty of policing. Most importantly it found that the public believe a service to have integrity not only with being treated fairly, but in also being absolutely transparent and being seen to be fair.
There is no business case that outsourcing will improve services or generate savings
The Home Office has refused to reveal its business case for privatisation; West Midlands and Surrey police forces have agreed to start the competition without seeing a proper business case either. In the case of West Midlands the privatisation is being justified on the grounds of needing to meet the financial reductions in the current Comprehensive Spending Review. However, they already have a budget plan in place to achieve these reductions without the need to privatise services. For the financial year 2011-12 West Midlands Police force has a planned under spend of £9million. In addition, the force has yet to submit their own detailed business case to the Police Authority about the benefits of outsourcing.
The economic case for outsourcing services on the grounds of efficiency has not yet been proven, nor has it been proven that as outsourced service would be of a higher quality or of a lower cost. Across the public sector the empirical evidence over many years does not show that the private sector is more efficient2, and even the IMF admits that “the evidence is mixed”3. There is evidence to demonstrate that in the long-run