Out of the ordinary claims at the ET

Can a person employed by a prospective transferor under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) be considered an ‘applicant’ for employment to the related prospective transferee, pursuant to section 39(1) of the Equality Act 2010? It would appear so.

In NHS Direct NHS Trust v Gunn UKEAT/0128/14/BA, G worked 8.5 hours per week due to her disability. The prospective transferee (NHS Direct) said that all employees should work at least 15 hours. G refused to be transferred and remained with her employer when her offer to NHS Direct
to work ten hours was rejected.

She successfully brought a claim of disability discrimination at the employment tribunal (ET), against which NHS Direct appealed, arguing
that G was not an ‘applicant’ for a job and did not, therefore, come within section 39(1) of the Equality Act. If NHS Direct was correct, G’s complaint of unlawful discrimination had to fail.

Dismissing the appeal, the Employment Appeal Tribunal (EAT) concluded that the ET was ‘plainly and unarguably right’. It held that G ‘came within the terms of s39(1) as an “applicant”; what was described in its own terms as an “offer” fell within the terms of s39(1); it was exactly what it purported to be, since what is properly to be described as an offer of employment is to be expected where a redundancy situation looms, and one did’.

Clearly, with Gunn in mind, prospective transferees have to be alert not only to their obligations under TUPE, which, naturally, is likely to be their primary focus when considering potential transfers, but to any other possible exposure outside the immediate consideration of potential transfers of employees, such as that, for example, under the Equality Act.

Strike pay

It is not every day that one applies 19th century legislation to an employment matter. However,
in Hartley & Ors v King Edward VI College [2015] EWCA Civ 455, the Court of Appeal had to do just that in respect of the Apportionment Act 1870.
In Hartley, teachers at a college had taken strike action for which the college sought to deduct
what it considered to be the monetary value of
‘the service that the teachers had failed to provide’ on the strike day.

The college used a simple formula of 1/260th of the teachers’ annual salary. This was arrived at by multiplying five working days per week by 52 weeks for the year. The teachers argued that the correct daily rate should be the annual salary divided by 365 days. Obviously, the latter formula arrives at a lower daily deduction.

Section 2 of the Apportionment Act 1870, upon which the teachers submitted they relied, states, among other things, that all annuities (which includes salaries) and other periodic payments in the nature of income shall be considered as accruing ‘from day to day, and shall be apportionable in respect of time accordingly’. However, pursuant to section 7, the Act does not extend to cases where it is expressly stipulated that no apportionment shall take place.

To complicate matters further, in the event that the teachers voluntarily agreed to work an extra day, this was paid at 1/195th of their annual salary, which, naturally, was at a higher daily rate than 1/260th. So, which applied?

The ‘correct starting point is to analyse and construe the key provision of [the] contract of employment’ (Amey v Peter Symonds College [2013] EWHC 2788 (QB)). The Court of Appeal held that as the college had not applied the logic of deducting the equivalent sum paid to teachers who agreed to work voluntarily on an extra day (1/195th), ‘relating work to the total number of annual working days, including days which are paid holidays, provides a sensible and acceptable principle which possibly errs in the employee’s favour.’

‘Out of time’ claim

A complaint of unfair constructive dismissal presented to the ET some six years after the employment ended might, on the face of it, seem an obvious ‘out of time’ case, but that is not necessarily the position without further enquiry.

In Higgins v Home Office & Attorney General UKEAT/0296/14/LA, following her resignation with notice, H’s employment ended on 23 December 2007. She claims she was unfairly constructively dismissed, which in order to be in time would ordinarily have had to be presented to the ET by 22 March 2008. In October 2007 she was admitted to hospital suffering from an acute psychotic illness.

In March 2014 a consultant psychiatrist confirmed in a letter that during the past six years H had not been well enough to pursue a legal case and, therefore, ‘this needs to be taken into account when the “time bar” is considered’. On 27 January 2014, nearly six years out of time, H presented her complaint to the ET. The grounds were not clearly particularised but her claim could nonetheless be made out.

Under rule 12 of schedule 1 of the ET Rules
of Procedure 2013, an employment judge (EJ)
may reject a claim if they consider the ET has no jurisdiction to hear it, or it is in a form that cannot sensibly be responded to or is otherwise an abuse of process. Applying rule 12, the EJ rejected H’s claim on the grounds that it was an abuse of process in that (1) it was brought outside the time limits, (2) the remedies sought did not appear
to be those the ET could award, and (3) H did
not appear to be claiming unfair dismissal.
H appealed.

Allowing the appeal, the EAT held that the EJ was plainly wrong in relation to (2) and (3). With regards to (1), however, a complaint presented out of time is not necessarily an abuse of process, especially as an ET has jurisdiction to extend time in cases of unfair dismissal if satisfied it was not reasonably practicable to have presented the claim in time, pursuant to section 48(3) of the Employment Rights Act 1996. The EAT opined that such orders under rule 12 ‘should only be made in the most plain and obvious cases’. Of course, one can foresee difficulties due to the passage of time (for both sides), but that is another issue.

Employer’s liability

Pursuant to section 109(1) of the Equality Act 2010, anything done by person A in the course of A’s employment must be treated as also done by the employer (R); there is, however, a defence pursuant to section 109(4).

The Court of Appeal decision in CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439 deals with the issue of R’s liability in a situation where A’s act, which
was itself found by the ET not to be one that was motivated by the alleged protected characteristic, was based on information received from another that may have been motivated by such. Would
R still be liable? (While CLFIS was considered
under one of the Equality Act’s predecessors, Employment Equality (Age) Regulations 2006,
this makes no material difference to the answer.)
In CLFIS, the claimant (C) failed to advance the
case against others before the ET, but the question was addressed nonetheless by the EAT and Court of Appeal.

Briefly, C, aged 73, worked for R as a chief medical officer under a consultancy agreement, which was terminated by A after he attended a presentation given by M (with some input from N) that allegedly identified deficiencies in C’s performance. C claimed unlawful age discrimination by A, for which R was naturally liable. Having focused solely on A’s motivation, the ET dismissed C’s claim. Although C’s case was not based on this, the EAT allowed C’s appeal on the grounds that the ET should also have examined
M’s and N’s motivation. R appealed.

Allowing the appeal, the Court of Appeal observed that usually a claim of direct discrimination will stand or fall on the motivation of the person doing the act that immediately impacts on the claimant: ‘I accordingly believe that the correct approach in a tainted information case is to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it’ (Lord Justice Underhill at paragraph 46). Effectively, the information on which A relied may or may not have been ‘tainted’ by others, but R cannot be liable if A’s action is itself found not to be unlawful discrimination. SJ

Ryan Clement is a barrister at Conference Chambers

@PAbarristers