Circular No: NP/110/17
Our Ref: LA/2017
13th July 2017
To: Branches, Regional Councils & Regional Offices
LEGAL UPDATE SUMMER 2017
Dear Colleague,
- The Supreme Court handed down its decision in the joined cases of Essop v Home Office and Naeem v Secretary of State for Justice.
The Supreme Court overruled decisions of the Court of Appeal in both cases, holding that there is no need for a Claimant to establish the reason for a particular disadvantage suffered by a group sharing a protected characteristic in an indirect discrimination claim. It is enough first to show there is a disadvantage.
The case of Essop v Home Office concerned a number of claimants from black and ethnic minority (BME) backgrounds who were over 35 years old. The Home Office imposed a core skills assessment which had to be passed before any positions above that of higher executive officer could be attained. The Claimants did not pass the assessment and were not promoted as a consequence. The claimants brought claims in the Employment Tribunal of indirect discrimination on the ground of race. They argued that the core skills assessment was a provision, criterion or practice (PCP) which was applied to everyone but which put older people from a BME background at a disadvantage. They put forward statistical evidence that BME candidates over the age of 35 were less likely to pass the test than those who were younger and from a non-BME background. Although the tribunal accepted that the statistical evidence showed older BME candidates were less likely to pass, the claims were rejected on the basis that the claimants has failed to show the reason why they had suffered the disadvantage, in other words why they had failed the assessment. The EAT disagreed, holding that it was not necessary in an indirect discrimination claim for claimants to show why they had suffered a particular disadvantage. On further appeal to the Court of Appeal, this finding was overturned on the basis that it was necessary for the claimants to show why the assessment put them at a particular disadvantage and that they had failed the assessment for that reason.
In the case of Naeem v Secretary of State for Justice, Mr Naeem worked as an imam in the Prison Service. Until 2002, the Prison Service employed only Christian chaplains on a permanent basis. Chaplains of other religions were employed temporarily from time to time. Chaplains’ salaries increased with length of service and through performance appraisals. Mr Naeem complained to an employment tribunal of indirect discrimination on the grounds of both religion and race. He brought statistical evidence to show that Christian chaplains were more likely to be at the top of the pay scale than Muslim chaplains. The employment tribunal found that the claimant had established indirect discrimination but that the employer’s PCP of rewarding length of service through pay was justified as a proportionate means of achieving a legitimate aim. On appeal, the EAT disagreed, stating that the tribunal was wrong to include Christian chaplains who had been employed before 2002 in the comparison pool. It found that the circumstances of these Christian chaplains were materially different to those of employees who were engaged after 2002. It held that chaplains of any religion who were appointed at the same time as the claimant would all face the same disadvantage and so the pay system could not be said to be indirectly discriminatory against the claimant. The Court of Appeal agreed. It found that Muslim chaplains were not put at a particular disadvantage and also stated that the claimant had to show that the reason behind the disadvantage was connected to the protected characteristic in question.
The Supreme Court, dealing with both appeals in conjoined cases, overturned both Court of Appeal decisions. It held that there is no requirement for a claimant to show the reason why a PCP puts a disadvantaged group sharing a protected characteristic at a particular disadvantage and that there is no need for there to be a connection between the reason why the PCP disadvantages the group and the protected characteristic. Lady Hale’s judgment brings clarity to the requirements for an indirect discrimination claim to be made out. She stated that there has never been any express requirement for an explanation of the reasons why a PCP puts a group at a disadvantage when compared with others. She noted that it has always been enough to show simply that there is a disadvantage. She observed that the purpose of indirect discrimination legislation is to achieve a level playing field for employees with and without protected characteristics. She notes that there may be various reasons why a group finds it harder to comply with a particular PCP than other groups, but that is not necessary to pin down the reason behind the disadvantage suffered. She also noted that the legislation allows an employer to justify the use of a discriminatory PCP, and that there is no shame in such justification as there may be very good reasons for the PCP in question.
The Supreme Court judgment also clarifies that all workers affected by a PCP should be placed in the pool for comparison. In the case of Naeem, the correct pool was all employed prison chaplains, including Christian chaplains employed before 2002. The Supreme Court found no error of law in the tribunal’s finding that rewarding length of service through pay was a proportionate means of achieving a legitimate aim. As it was not able to disturb the factual finding of the tribunal on this point, the claim was ultimately unsuccessful on the facts.
This judgment makes clear that the purpose behind indirect discrimination legislation is to protect people with a protected characteristic from suffering disadvantage where an apparently neutral PCP is applied. While the reason for the disadvantage will often be obvious, it need not be and there is no need to establish the reason for the disadvantage before the claim can be made out.
- Job Applicant with Asperger’s disadvantaged by multiple choice test (Government Legal services v Brookes)
The EAT upheld the decision of an employment tribunal that in requiring a job application with Asperger’s to sit a multiple choice test at the first stage of its recruitment process the GLS subjected her to indirect disability discrimination and discrimination arising in consequence of her disability; the EAT upheld the finding that by refusing her request to provide answers to the test in narrative form rather than choosing from multiple options the GLS failed in its duty to make reasonable adjustments.
- Discussing claim with a journalist while under oath leads to strike out
So ruled an employment tribunal they struck out the claim as they considered the claimants behavior during an adjournment amounted to unreasonable conduct as she was still under oath, she had been warned not to discuss the case and ignored this. This case is a reminder of keeping parties and witnesses apart during adjournments while they are under oath. The tribunal did note that if the incident had involved a witness as opposed to a party it might have been possible to disregard the witness evidence. It is important therefore that where members are giving evidence they are kept apart from others involved and if approached by the press they decline to comment at all. The case is Chidzoy v BBC.
- Weatherilt v Cathay Pacific Airways LTD
The EAT held that an employment tribunal is entitled to determine issues relating to the construction of a contract of employment or the implication of any term of the contract for the purposes of resolving a claim for unlawful deduction from wages under Part II of the Employment Rights Act 1996. The EAT declined to follow the earlier decision in Agarwal v Cardiff University and anor, which had been given by a different division of the EAT, because it considered that the appeal Tribunal in that case had not been referred to the relevant Court of Appeal case on the point with the result that the decision had been wrongly decided. In this case the claimant was off sick at short notice for two days on which he had been rostered to fly. He received only his basic flat pay and didn’t receive excess fling pay or hourly duty pay. He claimed that his pay should have included both payments. He claimed an unlawful deduction contrary to s13 ERA. The employers claimed that Part II of the ERA did not permit an employment tribunal to interpret a written contract of employment or imply terms into it.
- Beware seeking a second ACAS certificate (Commissioners for HM Revenue and Customs (HMRC) v Garau)
There is a strict time limit of three months less one day from the date of the incident complained of to lodge a claim form with an Employment Tribunal. Before a claim can be submitted to the Employment Tribunal, a Claimant must first have registered with the Advisory, Conciliation and Arbitration Service (“ACAS”) and attempted a process known as Early Conciliation to try and resolve their claim. This must be done within the three month time limit.
Registering with ACAS “stops the clock” for the limitation period for issuing the claim.
If either party does not wish to engage in Early Conciliation, or if settlement is not reached within the applicable timeframe (generally up to one month) then ACAS will issue an Early Conciliation Certificate to the Claimant as proof that he or she has contacted them to try and resolve their claim.
Once this Certificate is issued the limitation clock beings to run again and it is only once the Claimant has received the Certificate that he or she is allowed to present a claim to the Employment Tribunal.
In the recent case of Commissioners for HM Revenue and Customs (HMRC) v Garau, the Employment Appeal Tribunal (EAT) considered whether the time limit for bringing a claim of unfair dismissal and disability discrimination could be extended where the period of Early Conciliation took place before the expiry of the employee’s notice period, and where a second Certificate was issued some months later.
Mr Garau was given three months’ notice of the termination of his contract on 1 October 2015. He registered with ACAS on 12 October 2015 and ACAS issued him with a Certificate on 4 November 2015. Mr Garau’s notice period expired on 30 December 2015 and he registered with ACAS a second time on 28 March 2016. He was issued with a second Certificate on 25 April 2016. Mr Garau lodged his claims on 25 May 2016 and the Respondent argued his claims were out of time and should be dismissed.
The EAT confirmed that the time spent in early conciliation prior to the expiry of Mr Garau’s notice had no effect on the primary limitation period, because that period had yet to begin until 30 December 2015.
The EAT went on to hold that Mr Garau had not extended the time limit by contacting ACAS a second time as the statue does not allow for more than one Certificate per ‘matter’ to be issued by ACAS. If more than one such Certificate is issued, a second or subsequent Certificate has no impact on the limitation period.
This meant that Mr Garau’s claims must have been submitted to the Employment Tribunal by 29 March 2016 and were therefore out of time.
It is therefore important to note that extension of time applies only if time spent in Early Conciliation takes place during the primary limitation of three months less one day from the date of the matter complained of and not before, and a second Certificate will have no impact on time limits.
Yours sincerely
Mick Cash
General Secretary