Monday 20th August 2012 at 6:00am
The decision in Steel v Haringey has been available for 2 weeks without getting much notice. On its face, it raises only the relatively narrow issue of whether a job evaluation done prior to the finalisation of a new pay scheme is binding. The side issues though are more revealing.
The claimant/appellant Helen Steel was not merely a shop steward working for Haringey council and a litigant in person; she is also a former defendant in the Mclibel case, where she and Dave Morris famously fought off McDonalds in the longest civil case in UK history. Along the way, they had a number of victories, including in establishing the principle that article 6 extends to providing legal aid to complex and unusual cases.
So, after Ms Steel felt that her Tribunal case had been conducted in an unfair manner by Employment Judge Pettigrew sitting at Watford, Steel, entirely sensibly, included article 6 among her grounds of appeal.
Her complaints included:
i) the Judge brought to the hearing – midway through it – the names of cases which he, not the Respondent, thought made the claim inadmissible and were therefore relevant. Without providing copies and without giving any extra time to consider them, he asked both parties to make submissions on them. This was a process which naturally favoured the council, which was legally represented, over Ms Steel, who is not a lawyer.
ii) the Judge interrupted and then limited her, but not the Respondent’s, cross examination
iii) the Judge was wrong to refuse an adjournment where the Respondent had served on her shortly before the hearing a bundle of around 1000 pages – and the index only the night before the hearing (the EAT Judge intimated that although the documentation was copious, the Respondent appeared to have held back documents which were relevant and unfavourable to it).
This is how HHJ Shanks dealt with the fairness of the Tribunal hearing:
“The parties and Judge Pettigrew have each given accounts of what happened at the hearing; apart from differences of emphasis which no doubt result from the different perspectives of the participants it does not seem to me that there is much dispute about it. It is common ground that it was the Judge who raised the question of jurisdiction and the Delaney and Coors cases to which I refer below at the outset of the hearing of his own motion; I accept Ms Steel’s assertions that she had no opportunity to consider those cases and that, when it came to submissions, she did not feel able to deal with the point at such short notice. Mr Davies gave evidence first and it seems clear that the Judge, having reached a certain view of the case in the light of the jurisdiction point, was somewhat impatient with Ms Steel’s cross-examination of him and that (in the Judge’s own words) when she started asking Mr Davies about the August 2009 email referred to at para 9 above he ‘…indicated that [he] would not intervene further to assist the Claimant to pursue a relevant line of cross-examination, but that she was in danger of wasting the time she had available.’ It is common ground between Haringey and Ms Steel that the Judge indicated that unless she could show him a document sent to her after the collective agreement came into effect stating that her job had been evaluated at scale 4 he was not willing to open up the question of whether it had been evaluated at scale 3 or scale 4. I accept that from Ms Steel’s point of view the Judge’s approach was unhelpful and rather intimidating and that she did not feel that she was able to present her case fully.”
HHJ Shanks then moved on – without adjudicating on the article 6 appeal.
What is striking from this passage is how little desire the EAT showed in considering the fairness of the hearing in article 6 terms. If the same complaint of procedural unfairness had been made in any other area of law – civil, crime, family or housing – an appeal court would have felt obliged to answer it, rather than simply pretend that the issue had not arisen.
It is another small illustration of one long-running theme of this blog – namely how desperately employment law is still in need of a proper human rights jurisprudence.
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Friday 17th August 2012 at 3:01pm
Congratulations to Cait Reilly and Jamieson Wilson who took the Department for Work and Pensions (DWP) to court over the workfare scheme. Judge Mr Justice Foskett rejected their claim that the scheme was unlawful last week. Most press coverage has focused on this and not noticed where the pair succeeded. In fact, they did manage to obtain declarations that the DWP had acted unlawfully.
The judgment’s defining principle is that the government can force people to take unpaid jobs under the threat of having their benefits taken away. But this should not happen if they have a good reason for not signing up.
In Reilly’s case, it hadn’t told her that the scheme was not (quite) compulsory, and that she could avoid it if she had a good reason. Instead, the DWP told her the scheme was compulsory, with the practical result that she was compelled to give up an (unpaid) volunteering job which might well have led to a skilled job. Instead she was made to work unpaid for Poundland helping that company to make as much money as possible during the Christmas rush.
In Wilson’s case, the department told him that he had to attend a training session. He was told that if he didn’t he might lose up to 26 weeks’ benefits. In fact, the maximum sanction they had power to impose on him was around two weeks.
Their solicitors, Public Interest Lawyers, estimate that around 20,000 people have seen their benefits removed under this scheme. There will be a significant proportion whose benefits have been deducted unlawfully and may be able to bring claims against the department.
First published in Socialist Worker, 18 August 2012
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Wednesday 15th August 2012 at 6:00am
“The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.” (Consistent Group Ltd v Kalwak  IRLR 560)
The search for more and more sophisticated means by which an employer may have the benefits of a person’s work, without the responsibilities, has taken many forms in recent years: casual worker contracts, contracts placing chains of contractors and sub-contractors between the worker and the employer… The big picture seems to be that the courts are decreasingly willing to take these contracts at face value – finding that all these categories are in fact employees, with the important (and indefensible) anomaly of agency workers who remain, thank to the decision of Elias LJ in James v Greenwich Council  ICR 577, bereft of the main employment law rights.
The most recent wheeze of the employers has been to place workers on “zero hours contracts”, ostensibly giving the worker no right to expect the continuation of their contract beyond that day’s shift, while at the same time requiring them to work under the supervision and control of managers, while they are actually at work. The “zero hours” refers to the amount of future work that an employer offers the worker in theory, absolutely none. Invariably, on closer inspection, the “zero hours” turns out to be nothing of the sort. The company really does want workers to attend – whether 5 or 4 days per week, or whether only on Tuesdays in the teaching term, or for whatever period of time. The employer always wants the reliability of labour as dependable resource, which explains why it has issued a written contract in the first place. (In the true “casual worker” cases, which are now as rare as hen’s teeth, there is almost never any such document).
Fortunately, in a recent decision of the EAT, Pulse Healthcare Ltd v Carewatch Care Services Ltd & Ors  EAR 0123/12, which concerned healthcare workers who said that they had been employed on regular shifts amounting to 36 or 24 hours per week, HHJ Richardson dealt with the employer’s purported zero hours contracts by saying, very simply, that they did not reflect the reality of the situation, and in these terms the Tribunal was right to focus on the employment reality rather than the piece of paper.
The decision is good news in particular for workers in Further and Higher Education, where such bogus arrangements are increasingly prevalent.
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Monday 13th August 2012 at 6:00am
A guest post by Thomas Barker, student caseworker at the University of Kent’s Law Clinic
Earlier this year, the Clinic represented four members of a five-man workforce who had all been dismissed following an investigation into large scale losses at a branch of a regional building materials merchant. Our four clients (along with their manager) were dismissed on the grounds they were jointly responsible for the losses as a result of theft and/or grossly negligent management of stock controls.
Group dismissals and the law
While the fairness of misconduct dismissals is usually analysed in terms of the well-known 3-step Burchell test (the Tribunal akss whether the employer genuinely believed that the employee was responsible for an act legitimising dismissal, whether that belief was held on reasonable grounds and whether that belief was arrived at after a reasonable investigation), the case of Monie v Coral Racing  ICR 109 creates an exception applying to instances where an employer dismisses a group of employees rather than an individual.
The dismissal in Monie occurred when money was stolen from a safe in a secure location and, with no sign of forced entry, it was the employer’s belief that responsibility for the theft lay with at least one of the two employees who had authorised access to it. With neither able to offer evidence that would exclude them from suspicion, the employer decided to dismiss them both. The dilemma recognised by the Court of Appeal was whether this dismissal could be seen as fair even though, as counsel admitted, there was ‘no more than an even chance that the employee was guilty’. The Court held that it could be fair.
From the Tribunal’s perspective, a balance needed to be struck between the need to protect employees from being dismissed for acts they did not commit and preventing the potential outcome of employers having to use company resources to employ an individual who has previously stolen those very resources. In the exceptional circumstances of the secure safe in Monie the ability to fairly dismiss both key holders seemed reasonable. Unfortunately developments since this case suggest the exception is very much becoming the rule for group dismissals.
The expansion of the exception’s applicability can be traced back to the case of Whitbread v Parr. Here the Employment Appeals Tribunal introduced the following test to aid the tribunal in applying this exception:
Can the employer show that the act committed was one that would individually justify dismissal?
Had the employer conducted a reasonable investigation?
As a result of that investigation did the employer reasonably believe more than one person could have committed the act?
Had they acted reasonably in identifying each individual ‘capable’ of doing it without being able to identify an individual perpetrator?
Were these beliefs held on solid and sensible grounds at the date of dismissal?
If the answer to each of these questions is ‘yes’ then the dismissal will be fair. The significant departure from Burchell can be found in the fourth question as once it is established that the employee is capable of carrying out the act the burden of proof is, effectively, reversed. The onus is then on the employee to eliminate themselves from suspicion. It is also worth noting that, similarly to Monie, emphasis is placed on using this exception sparingly later in the judgment, that ‘such cases must… be approached by employers and tribunals alike with circumspection’.
The success of our clients’ claim hinged on the Tribunal’s interpretation of Whitbread. We relied upon distinguishing the facts of their dismissal from Whitbread and Monie on the grounds that it lacked the exceptional circumstances necessary for departing from the Burchell test.
There were many factors to distinguish our clients’ situation from the safe scenario in Monie. With shambolic management, feeble site security and a new accounting process there were several credible alternative explanations for the large scale losses experienced at the branch. Regardless, the Tribunal applied the test without even acknowledging our submissions, suggesting the Whitbread test to be the standard approach for instances of group dismissal. Once the test was recognised as applicable it became very difficult for our clients’ claim to succeed.
With the workers’ roles ill-defined by management it was exceptionally difficult for any of them to prove they had not committed the acts they were accused of, leaving the employer’s evidential burden unproblematic. The suspected act was one worthy of dismissal; a reasonable investigation was, arguably, conducted; with no labour division any of the staff could have carried out the act and, so, all could be reasonably suspected.
The manner in which group dismissal law legitimised these dismissals appears to demonstrate another obstacle in ensuring workers’ rights are protected at the Employment Tribunal.
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Wednesday 1st August 2012 at 6:00am
A couple of weeks ago a claimant wrote to me to describe what had happened to them in their case. It sounded horrific. I am often sent letters of that sort, and I attach my response to that claimant. I am not trying to devalue what I wrote to them, which was meant personally, but I thought it might be useful to others as indicative of my general approach, particularly towards the issue of whether Judges are biased (ironically, that correspondent was not saying directly to me that he thought his Judge had been biased, but it is a theme of others of my correspondents):
“I am grateful to you for writing, and I am truly sorry about what happened to you in your case. It sounds to me as if you have passed the point where there might be an legal remedy, and that is of the course the area in which I normally get involved.”
“In my book, I am trying (amongst other things) to give people a more satisfying explanation of why it is that so many good cases lose. Often people tell me that it seemed to me that the judge was biased against them, and I understand that, and I know it’s often how it feels. But what I try to explain is how even decent judges (who are the majority) are constrained by dynamics which just run deep in our legal culture, which the result that the right answer in law is often the wrong answer in terms of justice.”
“If you were to design the system from scratch you wouldn’t invent this one; and (because of the Coalition’s reforms), the future will be worse, not better. I appreciate that that is not a particularly cheerful note on which to end, but in a world peopled by adults sometimes it is better to face the truth.”