Message from the Editors,
Dan Hobbs & Clare Harrington
Welcome back to ‘Five from 5’, the free employment law bulletin created by the employment team at 5 Essex Court in association with Bloomsbury Law Online.
This month’s bulletin contains five short articles on (i) the essentials of an indirect discrimination claim; (ii) the ‘reasonableness’ threshold in SOSR dismissals; (iii) construing payment terms and assessing unlawful deductions from earnings; (iv) when ACAS conciliation wont extend the limitation period; and (v) new rates for Maternity Pay & SSP.
The editors continue to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team whose members include Queen’s Counsel, part-time employment judges and those appointed by the Attorney General to represent the Crown.
Do you have to be good at chess to get a job in the Home Office?
Those wanting to develop a better understanding of the essential elements of a claim of indirect discrimination would be well advised to read the Supreme Court decision in Essop and Others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice  UKSC 27.
The principal point of law in issue was whether section 19(2)(b) and (c) of EqA 2010 requires that the reason for the disadvantage suffered by the group in question be established.
The Supreme Court held that there was no such requirement. In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual.
The point is illustrated by a number of examples given by Lady Hale in her judgment. Somewhat controversially, given the recent tirade by a Polish MEP in the European parliament, these include the suggestion that there is no generally accepted explanation for why women have on average achieved lower grades as chess players than men.
If that is right (news to me!) a requirement to hold a high chess grade will put women at a disadvantage, which the employer would then have to justify. There is no requirement to go further and explain why women should be less able at chess.[John-Paul Waite of 5 Essex court appeared in the case]
What threshold applies in a “some other substantial reason” dismissal case?
In Ssekisonge v Barts Health NHS Trust UKEAT/0133/16/LA
the Claimant had obtained leave to remain and British Citizenship, but the Home Office had since accused her of having given a false identity. The Claimant obtained employment with the Respondent, an NHS Trust, and did not disclose the Home Office issue, or the subsequent revocation of her British Citizenship. When the Respondent later became aware of this through the Disclosure and Barring Service, which also withdrew her DBS certificate, the Claimant was suspended.
Following an investigation and consideration of material provided by the Claimant and the Home Office, the Claimant was dismissed. It was recognised that the Claimant’s residency status was subject to judicial review, but decided that the Respondent could not await the outcome of this as it would take too long. The dismissal was upheld on internal appeal, even though by this date the Claimant had proof of leave to remain and a new DBS certificate had been obtained.
The ET sympathised with the Claimant but held that her dismissal was fair on the grounds of ‘some other substantial reason’ of a kind such as to justify dismissal. The Claimant appealed to the EAT.
The EAT upheld the ET’s decision finding:
• The threshold for the reasonableness of a dismissal for “some other substantial reason” was not higher than that for a dismissal for conduct reasons.
• The nature of the Claimant’s role meant that certainty over her identity was essential: this was key to the fairness of her dismissal.
• An employer would generally be permitted to rely upon information provided by a responsible and expert public authority.
To deduct or not to deduct – that is the question
Victoria von Wachter
When can an Employment Tribunal make a finding that there has been an unlawful deduction form wages? Certainly not if it has had to first construe a term in the employment contract under s11 Employment Rights Act 1996.
S11 Employment Rights Act allows the Employment Tribunal to construe a term of a contract if the employer has failed to do so in breach of ss1, 4 or 8.
The Act also empowers an Employment Tribunal to order the payment of wages if there has been an unlawful deduction either by the withdrawal of money or the non-payment of money legitimately owed to the employee under the terms of the contract.
What it seems is not possible is for these two sets of dots to be joined. The latest case in this saga is Agarwal v Cardiff University & Anor where the EAT held that if the Employment Tribunal has had to construe a contractual term they cannot then make a finding of unlawful deductions pursuant to that construed term. The hapless employee must then go to the County Court to get his or her money. In other words you can get the payment term clarified or you can get the money owed to you, but not both. Yet another blow for accessible justice in the Employment Tribunal.
But just today (time of writing) in Weatherilt v Cathay Pacific Airways Ltd, the EAT has held that an employment tribunal does have jurisdiction to construe a term in a contract of employment (in this case deciding whether an implied term existed in the context of a wages claim under Part II of the Employment Rights Act 1996) and resolve any unlawful deductions point flowing from breach of that term.
In this case, the EAT held that the earlier EAT in Agarwal had not been directed to the right CA authorities. Battle lines are now drawn which can only be resolved by a trip to a higher court.
Beware the Early Conciliation provisions– Limitation will not always be extended
1. Days spent in early conciliation before the effective date of termination will not be added to the limitation period
In Fergusson v Combat Stress an employment judge has held that, when calculating the time limit for bringing a Tribunal claim, no extension of time will be permitted in relation to Acas conciliation that takes place prior to the EDT.
Departing from two earlier tribunal decisions the judge reasoned that S.207B ERA is a ‘stop the clock’ provision, and thus only applies to days when the time limit would otherwise be running.
2. Extension of time does not apply to second early conciliation period
In Commissioners for HM Revenue and Customs v Garau, the EAT has held that the early conciliation provisions in the Employment Rights Act 1996 only require one ACAS certificate per ‘matter’. If more than one certificate is issued, the second will be outside the statutory scheme and will not extend the limitation period.
In this case, the Claimant entered into the first ACAS conciliation period during his notice period. As the first period of conciliation occurred before the EDT it did not act to extend limitation. The second period of ACAS conciliation took place immediately after the EDT. However, as it was surplus to requirements, it also did not extend limitation. Consequently, the claim was time barred.
New rates for Maternity Pay and SSP
From 2 April 2017, the standard rates of statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory shared parental pay will rise from £139.58 to £140.98 per week (or 90 per cent of the person’s average weekly earnings if lower) in accordance with the Social Security Benefits Up-rating Order 2017 SI 2017/260.
The Order also increases the standard rate of statutory sick pay from £88.45 to £89.35 per week with effect from 6 April 2017.