Where do you live?

Well we are nearly three weeks into the New Year so I thought it was about time that I got back to the blog.

I was up in the EAT last week doing a rule 3(10) hearing. The main issue was what was meant by the phrase ‘ordinarily resident’ under the Age and Disability Discrimination laws (see S 68(2A)(c) DDA 1995 & R 10(2)(c) EEAR 2006). This raised one of those rather interesting arguments as to the meaning of words.

There are no authorities directly on the meaning of these particular words in the context of discrimination. As you might expect the phrase is not a new one having found itself into other legislation over the years

There are a large number of tax authorities dealing with its meaning. I found the authority of The Commissioners for Her Majesty’s Revenue & Customs v Lyle Dicker Grace [2008] EWHC 2708 (link below) provided a very good summary of the Common Law (see paragraph 3 of the Judgment).

It may come as some surprise to employment lawyers that someone can in fact be ‘ordinarily resident’ in more than one place at the same time and that the approach should not be to try and ascertain someone’s base/real home.

The use of the phrase ‘ordinarily resident’ is not universal in employment legislation with the territorial jurisdiction test varying from statute to statute. The conclusions of Serco have limited application when looking at disability/age discrimination jurisdiction issues. It is perhaps Serco that lead the Judge in this case to draw what was possibly the wrong conclusion from the evidence.

Anyway this case has been rated as Category A and so will be heard sooner rather than later. I suspect there should be a decision later this year shedding some light on what is meant by ‘ordinarily resident’.

http://www.bailii.org/ew/cases/EWHC/Ch/2008/2708.html

Peter D

Lecture Notes

We had a good turn out before Christmas at the Team's seminar. Some of the notes are now up on the website covering legal representation and advanced CRB checks as well as length of service.

http://www.12cp.co.uk/furniture/cms/documents/Legal%20Representation%20at%20Disciplinary%20Hearings.pdf

http://www.12cp.co.uk/furniture/cms/documents/The%20End%20of%20Length%20of%20Service.pdf

Peter D

Administrative Inefficiency

I was very busy last month spending a lot of time both in the Tribunal and coping with the fall out caused by Tribunal administration. It is about time that something was done about the present state of the administration.

I suppose it all started a number of months ago when the Tribunal would not accept the word of my instructing solicitor when he said that one of our key witnesses was not available. In the end it took a last minute begging application draft by me to get the matter adjourned.

Then a Tribunal decided to list a matter on dates when our main witness was away (we had completed the listing matrix and sent it off months before). Despite repeated requests for an adjournment it was only given on the first day of a 4 day hearing.

Next I had a 3 day case with witnesses having booked accommodation and arranged travel up to Manchester being postponed at 3 pm on the Friday before the hearing. No judge was available.

I have had repeated complaints from solicitors that correspondence is not being answered promptly or at all and some cases our simply dropping off the radar with no hearing date or directions being issued.

In short the system appears to be breaking under the increasing workload and we can expect little in the way of improvement in 2010. These failures are now impacting on the advice I give my clients. When the client can see the incompetence of the administrative staff it does not fill them with much confidence and this added to the costs of undertaking litigation means that settlement becomes the overriding objective for most employers.

Whatever happened to the overriding objective of the Tribunal?

Peter D

The Long March

Wilson v HSE has now found its way back into the English Courts some seven years after Mrs Wilson started her challenge to service related pay. The Court of Appeal has now in my view removed any doubt that such provisions are open to challenge. All that now remains is the rebuttable presumption that people who do a job for longer tend to be better at it and can be rewarded accordingly (service related pay).

What the Court of Appeal held was that the ‘serious doubts’ test handed down by the ECJ did not add a further hurdle to the Equal Treatment Directive and that the burden of proof remained the same as for any other challenge namely that “the Claimant has established facts from which it may be presumed that there has been direct or indirect discrimination....”

So it seems to me that the ‘serious doubts’ side step adopted by the ECJ has for the moment been downgraded. The test is now what is described as the lower test by Lady Justice Arden namely that the Claimant has to adduce evidence or point to evidence that is capable of establishing credible reasons for doubting the applicability of the general rule that service related pay is ‘automatically’ justified.

It should also be noted that Dinah Rose QC also succeeded on a new appeal point which in effect bypassed the Directive altogether. She argued that as service related pay was not specifically excluded by the 1970 & 1975 Acts the normal equal pay rules applied. This is probably the most important part of the judgment as it effectively removes Danfoss and Cadman from the reckoning and leaves the Claimant with a straightforward claim under the Equal Pay Act.

Why service related pay has become such a sacred cow is beyond me? If the employee deserves a different rate of pay from his female comparator then justify it. Things would be so much easier and Mrs Wilson would have won her case first time round 7 years ago!

http://www.bailii.org/ew/cases/EWCA/Civ/2009/1074.html

Peter D

What is a catering service?

There is not a simple answer to this as was discovered by Mrs Jones and Miss Ciliza. They brought a case against the transferee of a catering contract claiming that the TUPE Regs applied.

In this particular case a catering contract had been transferred because the old contract was losing money. The old service was described as a full canteen service involving the Claimants cooking as well as service. The transferee changed the service from being canteen based to being kiosk based with the Claimants simply selling pre-made sandwiches with some service. The question of course arose as to whether the same ‘activities’ were carried out by the new contractor?

The EAT upheld the Tribunals decision that there was no transfer and carried out a useful review of the service change provisions. The emphasis was as one might expect upon the activities not the fact that a grouping of employees has transferred.

This was decided relatively recently by HHJ Burke in Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08:

“The issue before the Tribunal can be simply expressed, namely, was there a relevant transfer under regulation 3(1) (b) of TUPE 2006. In the circumstances of this case two questions arose, namely were there activities which ceased to be carried out by CD on behalf of a client (MH) which were carried out instead by a subsequent contractor (MRL) on behalf of MH and were the conditions referred to in regulation 3(3) satisfied?”

The question then is simply a matter of fact for the Tribunal as to what similarities there are between the two activities; the important task for a Tribunal being a before and after snap shot of the activity in question.

It was also clear that simply labelling an activity in this case as ‘catering’ was not good enough. A more detailed analysis was required of the pre and post transfer activities. In this particular case the service had gone from being a full canteen service to a sales service of pre-packed foods which the Tribunal found was a wholly different operation.

What does this tell us? It helps us with how we should approach the service transfer provisions but is also demonstrates that there are limits to what is a ‘service’. Generalised labelling will not be sufficient for a service activity to survive a transfer. Tribunals will be looking at the specifics.

Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08
http://www.employmentappeals.gov.uk/Public/Upload/08_0286rjfhwwRN.doc

OCS GROUP UK LTD v JONES & CILIZA [2009] UKEAT/0038/09
http://www.employmentappeals.gov.uk/Public/Upload/09_0038fhwwCEA.doc

Peter D

Lecture Notes Part Two

The lecture notes on Disability Discrimination and Equal Pay have now been uploaded to the Chambers website. Please click on the link below.

Peter D

http://www.12cp.co.uk/furniture/cms/documents/Disability%20Discrimination%20.pdf

The transfer window has closed

I suppose with the transfer window having just closed I should try and make some kind of tenuous link between the start of the football season proper and the Court of Appeal decision in Gutridge & ors v Sodexo & anor [2009] EWCA Civ 729. However I can’t think of one so I will move quickly onto the Court of Appeals decision in this case.

The important bit is that the Court has confirmed that equal pay claims against transferees begin to run from the date of the transfer. This is a practical solution to what was potentially a very difficult issue for a transferee especially in relation to local government contracts where there are many thousands of potential claims arising out of single status. The problem was that many years after a transfer a transferee could have been faced with an equal pay claim which arose before the transfer and about which the transferee would have little or no knowledge (see Elias’s judgment in the EAT).

Although this is a practical solution Lady Smith’s dissenting judgment should be read. Although she saw the problem she came down on the employee's side. In fact the Equal Pay Act allows exactly that when you stay with the same employer it is simply the arrears that are limited by the six year time limit.The argument is persuasive as the Equal Pay Act is all about implying an equality clause into the contract and as the contract is transferred it is difficult to see why time should run from the transfer.

I believe what this case really comes down to is the application of the House of Lords judgment in Powerhouse Retail Limited v Burroughs and others [2006] UKHL 13. This is why it is unlikely that this is the end of the matter so watch out for a further appeal to the House of Lords or perhaps even an ECJ reference.

Peter D

http://www.bailii.org/ew/cases/EWCA/Civ/2009/729.rtf

http://www.bailii.org/uk/cases/UKHL/2006/13.html