Monday, June 18, 2018
David Renton

David Renton

Garden Court Chambers 

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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.

Friday, 17 August 2012 20:45

Legal setback for workfare schemes

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.

Full Case Transcript HERE

One of the themes of my book Struck Out, is the modesty of the impact made on UK employment law by the European Covention on Human Rights, and I draw a contrast with a number of other, comparable, areas of UK law (not least the law relating to landlords and tenants) where the Convention, purposivley applied by the European Court of Human Rights, has made deeper inroads into the UK's common law traditions.

Part of the reason why human rights have never really "flown" at the EAT has been that claimants have attempted to use the rights set out in the European Convention as a shield, to protect cases which were weak on their facts. The two most important cases have been X v Y (a development officer for a charity working with young offenders who had been prosecuted for cottaging, and was dismissed) and Pay v UK (a probation officer involved in the treatment of sex offenders was dismissed as a result of his connection with an organisation involved in S&M events). Both were dismissals, and in both cases, the Convention was invoked to bolster claims which were unlikely to have the starting sympathy of the judiciary.

(Of course, that raises a delicate question for lawyers about which cases you want to go up to appeal – it's a bold lawyer who tells their client unequivocally, "you musn't appeal as you will muck up the law for thousands of other people", but it's one of our jobs, and any political lawyer will know the speech by heart).

The trend towards weak cases going "higher" in the system than does anyone else any good has unfortunately continued, as can be seen at work in the recent Court of Appeal decision of Leach v Ofcom, in which an employer was made aware of very serious allegations of child sex abuse against a worker, who was said to have abused minors in Cambodia.

The employer investigated the allegations and dismissed the worker, who was latterly sentenced to 12 years imprisonment in Cambodia. Their claim for unfair dismissal failed at the ET and they fared no better on appeal to the EAT. The Court of Appeal eventually granted permission for their appeal which took place in their absence (the worker still being in prison).

In his decision Mummery LJ doubted that the protection of article 8, "which is not some kind of universal haven for the protection of the whole of human life" was not engaged, or if it was engaged, the employer's interference with the worker's art 8 rights was lawful.

You can understand why the (unrepresented) appellant took it this fair, but all they have done in reality is gift the employers in general yet another case to say that article 8?s applicability to the sphere of employment is limited.

"The" strong article 8 case is out there – if only lawyers can find it, and shepherd it to the right conclusion. My own view is that it the Convention will be most use in a case where the employer is clearly cuplable (even if the behaviour is not obviously actionable), i.e. the Convention is made into a "sword".

Monday, 30 July 2012 11:52

The war of the two Presidents?

Scrolling through the new EAT decisions on Bailii, as everyone does, I came across the judgment of Lady Smith, President of the Scottish EAT, in Welch v The Taxi Owners Association (Grangemouth) Ltd that a telephone operator was not made redundant in circumstances where there was a decrease in the total amount of work available for her but an ongoing need for a part-time worker to fill some of her role.

Dismissing the claimant's appeal, Lady Smith held that these circumstances did not and could not amount to redundancy. (The appeal could not succeed, she also found, because the claimant had not sought a redundancy payment in her ET1; neither had she put in any facs to satisfy the reasonableness issues in a dismissal for reason of redundancy) So far so good, and comprehensible as far as it goes.

The difficulty of the decision, which was heard at the Tribunal on 15 June 2012, is that just a month earlier (on 16 May 2012) the President of the EAT in England and Wales, Mr Justice Langstaff, had determined in Packman (t/a Packman Lucas Associates) v Fauchon, a case which turned on what looks to me like exactly the same issue, and in which the same authorities were cited, that there was a redundancy where hours were reduced but there was no reduction in the total number of employees working for a company.

The decision in Packman was explained by Langstaff J in the following terms:

"the lay members in particular of this Tribunal are glad that the result of the appeal is as it is, not least because from an industrial background one would approach the question of hours and number of employees by adopting an FTE (a full?time equivalent) approach. Essentially, as the extract from Harvey suggests, the full?time equivalent workforce in that example is cut from two to one, even though the number of employees actually working remains the same. There is a real reduction in headcount, measured by FTE. It is therefore, they consider, entirely consistent with actual industrial approach that the statute should have the interpretation which we think in law properly belongs to it; the consequences of another interpretation would, as it seems to them, have significant adverse effects upon the employment market."

The decision in Packman appears not to have been brought to the attention of Lady Smith, presumably because it was only published after her own decision had been made.

Now, strictly speaking, it is possible to distinguish these cases as even if the law was rightly decided in Packman, the claimant in Welch probably "should" have lost her appeal – in that even if she was right on the law, she hadn't properly lined up a complaint of unfair redundancy dismissal at the ET.

But, this is to underestimate the vehemence with which Lady Smith dismissed the claimant's legal arguments in Welch – which she treated as hopeless (not knowing that her felow President had approved them just 4 weeks before)

Two questions then on the issue of principle (i.e. whether you need a reduction in the headcount for a redundancy):

1) Is there an underlying consistency between these two decisions that I've missed?

2) Who is more authoritative: the President of the EAT in Scotland, or the President in England and Wales?

Underhill J has published both his proposed new Employment Tribunal rules, and his letter to the Ministry explaining their rationale. The documents were published on Wednesday last week, and have been well summarised by other employment law blogs, which have spotted the key proposals – a pre-hearing "sift" where Judges will be able to take action if it appears that a claim or a defence is weak; the merger of the present PHRs and CMDs into a single preliminary hearing with the power to strike out claims; removing the £20,000 cap on the amount that a Judge can order a party to pay by way of costs.

Here is my own list of the second-order proposals which I also found interesting

  • There will be new ET1 and ET3 forms (so far unpublished)
  • Style: Underhill's team have taken real care to make the rules comprehensible. They are much clearer and easier to read, and to that extent are just better rules
  • Presidential guidance: although almost none of this is published yet, Underhill wants to be remembered for what might be termed "intermediate" guidance, which will not be binding (unlike rules) but illustrative, especially for unrepresented parties who want some sort of advance idea of how their case will be judged
  • ADR: as in all new civil codes for the past two decades, the parties are encouraged to mediate rather than litigate. There doesn't appear to have been any real thought on how this is supposed to interact with the Coalition's penal proposals to compel parties to spend time in the care of ACAS (without ACAS having the time or resources to do anything useful with their cases)
  • In the letter to the Minister, Underhill says (in effect) that he resisted pressure from the Coalition to look for changes that would increase the number of cost orders (although the removal of the £20K cap will no doubt increase the amount of costs orders, when orders are made)
  • Underhill dodged the question of whether / how to give powers to legal officers
  • And, a surprising one this, Underhill has suggested that primary legislation should be drafted enabling costs orders to be made where a party is represented by non-lawyers (this could in theory be a route back into Tribunal litigation for trade unions, whose officials could get their time paid, if the claim succeeded).

As for the rules themselves, here they are.

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