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Employment Law

Amendments to the employment tribunal rules of procedure

* The correct test for unfair dismissal see more

* Fixed-term Workers Rights: see more ...

DETRIMENT IN DISCRIMINATION CASES

Most discrimination, if not all, will amount to a detriment to the complainant. A detriment under section 4(1)(a) RRA means no more than a “disadvantage” and in determining in a particular case whiter the act complained of amounts to a detriment the Tribunal should ask itself whether it is such that a reasonable applicant could justify complaining about the treatment.

It is trite law that the detriment need not be significant.

Motive is irrelevant

The is a long line of cases, including two HL cases, from which it is now well established, that motive is not a necessary condition to a finding of direct discrimination (see R v Birmingham City Council ex parte EOC [1989] IRLR 173 HL; James v Eastleigh B.C. [1990] 288 HL.

Nor is motive relevant in victimisation (see  Swiggs and Others V Nagarajan (A.P.) [1999] 15 July HL, pg 4, 5, 6, 7, 13, 15-17.

See here for an important case by the EAT on the failure to appoint/shortlist for job vacancy.

See here for article on the right to 'Privacy in the workplace' and employee misconduct.

See here for article on the application of Article 141 (formerly 119) EC Treaty: in sex discrimination cases before the ETs.

HOW TO APPEAL A DECISION OF THE EMPLOYMENT TRIBUNAL OR THE EAT

1. THE MEEK TEST

If the ET failed to give a decision, or make findings complying with the comprehensibility test laid down in the cases of (Meek v City of Birmingham and affirmed in Llewellyn Ryland Ltd. v Jones & Kemp(Charles J., 15th May 2001), that would amount to an error of law and in breach of Article 6. In discrimination cases 14 ECHR may also be relevant.

In considering whether, in the light of those authorities, the Tribunal made any error of law in any particular case, the most useful approach is to start with the point of law on comprehensiveness, namely whether the ET/EAT has given reasons which contain sufficient detail to enable the parties to know that the Tribunal had made no error of law in reaching its findings of fact.

In deciding on the comprehensibility of the ET’s decision the ET is required to apply the well-known test set out in Meek by Bingham LJ (as he then was) – see Meek v City of Birmingham District Council [1987] IRLR 250, at 8 to 10, namely that:

"The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises ...."

and that:

"The overriding test must always be: is the Tribunal providing both parties with the materials which will enable them to know that the Tribunal has made no error of law in reaching its findings of fact?"

The absence of reasons which accord with or failure to give reasons consistent with the oral and documentary evidence will constitute an error in law under the principles in Meek.

The “Meek attack” is supported by later authority (see in particular Lindsay, paragraphs 29 to 50, 51 to 55, 62 and 81, Dione, paragraphs 7 to 10, 23 and 25 and Sands, paragraphs 18 to 27). [see Dione v DSG Retail Ltd (10/11/2000); Lindsay v Alliance & Leicester plc (25/1/200); Sands v Greater Manchester Passenger Transport Executive (11/1/2001)].

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2. TEST FOR BIAS

Where an ET acted or conducted the proceedings in a manner which give cause for concern as to its impartiality, an attack can be mounted n the grounds of bias. This attack can be made during the hearing itself, with a request that the ET recuse itself, or withdraw from the case.

Failure to follow the correct approach or use the correct test when deciding not to accept an Applicant’s allegation of bias and request for  recusal will be an error of law.

The case of Director General of Fair Trading v (1) Proprietary Association of Great Britain (2) Proprietary Articles Trade Association (2000) CA (Lord Phillips MR, Brooke L.J., Robert Walker L.J.) 21/12/2000, gives the legal position on determining allegations of bias.

In that case the Court of Appeal held, that when the European Convention of Human Rights was involved (e.g. the right to a fair hearing under Article 6.1 ECHR), it had to be considered whether the material circumstances in question gave, rise to a reasonable apprehension of bias; and that this was an objective test. This test had to be applied to the circumstances, without passing judgment on the likelihood that the particular tribunal under review was in fact bias, but only whether it gave reasonable apprehension of bias. The CA also held that Magill v Porter [2001] UKHL 67; NLC 2011223801, was to be taken into account in determining bias, and a modest adjustment of the test in the case of Gough was called for.

This modified test for bias was clarified in Man O'War Station Ltd & Anr v Auckland City Council & Anr (June 11, 2002)(Filed: 20/06/2002), Privy Council per Lord Steyn, Lord Mackay of Clashfern, Lord Millett, Lord Phillips of Worth Matravers, Lord Scott of Foscote. There the test was clarified as being whether ‘a fair-minded observer could possibly have doubted the neutrality and objectivity of the judge ’ or ET.

Thus in assessing bias the court must first ascertain all the circumstances, which had a bearing on the suggestion that the judge/Tribunal was biased. It must then ask whether those
circumstances would lead a fair-minded and informed observer to conclude
that there was a real possibility, or a real danger (the two being the
same) that the tribunal was biased.

The material circumstances would include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation was accepted by the applicant requesting the review it could be treated as accurate.

Where it was not accepted, it became one further matter to be considered from the viewpoint of the fair-minded observer.

The ET therefore must ask itself the right questions in relation to the circumstances that relate to the allegation of bias - (Director General of Fair CA); see also Re Medicaments and Related Classes of Goods (No 2) H.L. (Dec. 21, 2000)

The EAT is not required to rule whether the explanation of the ET should be accepted or rejected, but whether the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced.

It was not appropriate for the ET below to have set out to answer the question of whether their/ the Chairman’s conduct was in fact bias. It should have considered what impression the ET/Chairman’s conduct, including any explanation for it, would have had on a fair-minded observer.

When arguing bias, it may be useful to cite Sedley LJ said in Bennett v London Borough of Southwark (21/06/02) C.A., where he said “this case is both inexorable and deeply depressing”. Or as Ward LJ put it:  

“In getting on their high horse, the Tribunal fell of the judgment seat”.

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3. GROSS ERRORS IN FINDINGS OF FACT AMOUNTING TO ERRORS OF LAW

  No evidence I support of findings of the Tribunal:

The circumstances referred to here are where the Employment Tribunal made certain material findings of primary fact, which are wholly unsupported by evidence. Such errors in findings of fact must be particularised. If valid they form a legitimate ground(s) of appeal – see Piggott Bros Ltd v Jackson [1992] ICR 85, 92D (Per Lord Donaldson MR). 

4. FAILURE TO ACT PROPORTIONALLY OR FAIRLY - 

It is not unheard of for an ET to strike out a party’s case. If it does so the ET must without complied with the rules of the ET Regulations 1993 (e.g. rule 13(2)(a) ET Rules 1993).  Further before such drastic step, the ET must send a notice in writing to the party concerned giving him/her the opportunity to show cause why the ET should not strike out the parties claim of defence (rule 4(7) ET Regulations 1993). This requirement on the ET to send such a notice is mandatory: Beacardy Property Management and Construction Ltd v Day [1984] ICR 837.

If it failed to do so the ET will have acted disproportionately, unfairly, and in excess of its powers. See also the EAT's decision in National Grid Co plc v Virdee [1992] IRLR 555: the power to strike out should not be used punitively except in serious cases of deliberate non-compliance with an order, an where any judgment obtained could not be considered fair between the parties.

The duty to act fairly necessarily implies dealing with a case justly, and included actually dealing with the case (Seray-Wurie v London Borough of Hackney (Filed: 04/07/2002) Court of Appeal (Civil Division) Simon Brown, Brooke and Dyson, LJJ  June 25, 2002

5. DEPARTURE FROM EVIDENCE AMOUNTING TO UNREASONABLENESS IN THE WEDNESBURY SENSE

If it can be shown, that the ET departed from the evidence presented,  it follows that the ET acted on some irrelevant consideration or for an improper motive -  i.e. it was Wednesbury unreasonable (see Associated Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223), and in breach of Article 6.1 and 14 ECHR

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GENERAL APPROACH TO APPEALS

The proper approach of the appeal court or EAT to a decision challenged, is to review the proceedings in, and the decision of, the employment tribunal in order to determine whether a question of law arose from them.

Such an appeal ought to succeed where an overwhelming case was made out that the employment tribunal reached a decision, which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached.

EXAMPLE OF FINDINGS YOU MAY SEEK FROM AN APPEAL COURT:

(i) Whether the ET erred in law (and in breach of Article 6.1 and 14), in departing from the oral and/or documentary evidence or the pleaded case

(ii) Whether the ET erred in law in making findings, which were so wrong and bias as to amount to Wednesbury unreasonableness and perversity.

(iii) Whether the ET erred in law in failing to apply the correct test for bias in and whether in fact their conduct, findings would give the reasonable onlooker the appearance of bias.

(iv) Whether the Employment Tribunal erred in law in failing to provide both parties with extended reasons which contained sufficient detail to enable the parties to know the Tribunal had made no error of law in reaching its findings of fact: Meek

This list is not exhaustive, as it will depend on your particular appeal.

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LIST OF USEFUL CASE AUTHORITIES FOR APPEALS

The following are a list of case authorities you should look at as they have useful points of law and may be of direct relevance to you appeal.

Sadiq v Royal Mail  (EAT927/97), Morison J –President: Misunderstanding/or alternatively a complete lack of understanding of the requirements of the legislation and misapplication of the relevant law

Anya v Oxford University: Failure to consider as evidence the Appellant’s complaints of discrimination pre-dating the complaints in the IT1

Anyanwu v South Bank Students Union [2001] IRLR 305: Injustice caused long delay in promulgating decision leading to loss of memory of  the ET.

Miriki v General Council of the Bar CA Jan. 22, 2002, The Times

Piggott Bros Ltd v Jackson [1992] ICR 85, 92D (Per Lord Donaldson MR). 

Meek v City of Birmingham [1987] IRLR 250; Llewellyn Ryland Ltd. v Jones & Kemp (Charles J., 15th May 2001): Failure to give a Decision or make findings complying with the comprehensibility test

Director General of Fair Trading v (1) Proprietary Association of Great Britain (2) Proprietary Articles Trade Association (2000) CA (Lord Phillips MR, Brooke LJ, Robert Walker LJ) 21/12/2000: Bias and not asking the right questions in relation to those circumstances. See also Re Medicaments and Related Classes of Goods (No 2) H.L. (Dec. 21, 2000): Bias.

See also Magill v Porter [2001] UKHL 67; NLC 2011223801: Bias.

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See also Man O'War Station Ltd & Anr v Auckland City Council & Anr (June 11, 2002) (Filed: 20/06/2002), Privy Council: Bias.

Stenning v Jarman and London Borough of Hackney (EAT/1288/99); Marks and Spencer v Martins [1998] ICR 1005; [1998] IRLR 326: Failure to make any comparisons or any proper comparisons or to carry out the three-stage test for direct discrimination as required by section 3(4) RRA 1976.

Chapman v Simon [1994] IRLR 124

Effa v Alexandra Healthcare NHS Trust (CA 5.11.99)

Dione v DSG Retail Ltd (10/11/2000)

Lindsay v Alliance & Leicester plc (25/1/200)

Sands v Greater Manchester Passenger Transport Executive (11/1/2001). 

Majid v London Guildford University

Glasgow City Council v Zafar [1998] ICR 120

King v Great Britain-China Centre [1992] ICR 516

James v Eastleigh BC [1990] 3 WLR 55: Failure to consider the but for test.

Nagarajan v London Regional Transport [1999] IRLR 572; [1999] 3 WLR 425

Swiggs and others v Nagarajan, [1999] 4 All ER 65, HL

Racial Equality Council V Widlinski [1998] ICR 1124 EAT

British Gas Trading Limited (2) Alan Burkey v Aaron Clarke EAT Appeal No: EAT/1367/99, Sir Christopher Bellamy QC

Geliot Whitman Ltd v J O’Dongohue EAT 23/11/2000

B Crofton v S Yeboah (2001) EAT (Burton J, Mr P Dawson, Mr I Ezekiel) 16/5/2001

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Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Market Force (UK) Ltd v Mr A D Hunt, EAT/393/01 (Mr Recorder Langstaff QC on 10 April 2002)

Qureshi v London Borough of Newham CA

Lander Carlisle Ltd v T A Highfield; Lambert Clarke v (1) Leroy Parkes (2) Securitas UK Ltd (2001) EAT (Mr Recorder Burke QC) 22/1/2001; Hartwell Services ltd V. A. G. J. Chambers (2001) CA , per Thorpe LJ, Laws LJ, 15/5/2001; Davey v Williams & Anor  CA, April 18, 2000: Failing to consider or address at all a main plank of the Applicant’s case

West Midlands Passenger Transport v J. Singh CA: Failing to consider the Applicant’s reliance of statistics suggesting discrimiation.

Trevor Boyce v (1) Wyatt Engineering (2) S J Tapsell Ltd (3) Black & Veatch Ltd CA May 1^st, 2001: Paying too much attention and/or alternatively giving too much weight to one partys’ evidence (Trevor Boyce v (1) Wyatt Engineering (2) S J Tapsell Ltd (3) Black & Veatch Ltd CA May 1^st, 2001

R Plettell v British Aerospace (Operations) Ltd EAT (Douglas Brown J, Ms S R Corby, Miss S M Wilson) 20/7/2001; DSG Retail Ltd - v - Mr Manmoham Bawa: The ET ‘given’ of its own evidence making their conclusions perverse.

Davey v Williams & Anor CA                           return to top

Clapson v Bristish Airways plc EAT (Feb, 21, 2001); Noorani v Mersyside TEC Ltd CA: fettering her discretion in refusing to exercise her discretion to grant the witness orders requested by the Applicant/Appellant: Sch. 1 r.4(2) ET (Constitution and Rules of Procedure) Regs. 1993 SI 1993/2687.

Elahi v Bristol and Weston Health Authority EAT 138/89

Saunders v Richmond BC [1977] IRLR 362).

Ali v Pindersfield Hospital NHS Trust (EAT/184/87-Morison J (President 22/5/97): ET’s failure to take account of a partys’ lies in reply to the Questionnaire or their breaches of and failure to follow or apply the CRE’s Code of Guidance in Employment.

Ealing London Borough Council v B Garry (2001) CA (Pill LJ, May LJ, Rimer J) 25/7/2001)

Lambert Clark v Securitas UK Ltd; Richards v Brighton B.C (20/5/92 case no. 14213/91)

Sivanandan v Enfield LBC

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Davey v Williams & Anor CA, April 18, 2000

Rosengrenstann Ltd v R J Ayres (T/A Ace Safe Company) (2001) CA (Simon Brown LJ V-P, Dyson LJ) 22/6/2001, Lawtel: The Reasoning/decision, which departed substantially from the pleaded case.

R v The Chief Constable of Merseyside Police, ex parte Carol Anne Bennion; Mr A Mohamed v Chubb Security Personnel (ET case no. 322567/99/S): Failure to make any findings on the serious risk of bias against the Applicant in a shortlisting exercise.

Prentice v Hereward Housing Association and Another CA (2001): The interest of justice requires a retrial where it is shown that the trial judge/tribunal was wilfully misled by the winning party.

Bennett v London Borough of Southwark (21/06/02) C.A.

London Borough of Greenwich (2)   Simon Trotter Ms v Jacinth Browne, EAT/0604/01, per His Honour Judge Peter Clark (Judgment delivered on 9 May 2002).

Hawkins v Ball and Barclays Bank Plc [1996] IRLR 258

Danfoss [1989] IRLR 532, ECJ: Reversal of burden of proof in Equal pay/sex discrimination cases where pay system is less than transparent. Possible argument in race cases??

Science Research Council v Nasse [1979] 3 WLR 762: Orders for discovery/particulars.

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