Employment law and case update

This week, understandably overshadowed by the final stages of the referendum, there have been a number of interesting cases and employment law developments. Here is a summary to bring you up to date.

1. The ACAS Code does not apply to ill health dismissals

In the case of Holmes v QinetiQ, the Claimant was dismissed on the grounds of ill health. This was a case in which it was conceded that the dismissal was unfair because of the failure of the employer to obtain an up to date health report. However, at the Remedies Hearing the Claimant submitted that the ACAS Code applied and that due to the unreasonable failure of his employer to follow the Code, he was entitled to an uplift under s.207A TULR(C)A 1992. The Employment Tribunal did not accept that an uplift applied and so an appeal was made to the Employment Appeal Tribunal (the EAT).

On appeal, the EAT agreed with the Employment Tribunal that the ACAS Code did not apply and no uplift was applicable. It was also clarified that the ACAS Code applies in cases where an employee's alleged act or omissions involve culpable conduct or performance on the employee's part that requires correction or punishment (ie which relate to cases of misconduct or poor performance). In that context, the facts of this ill health case did not fall into those categories.

This case does not mean that there may not be circumstances in which ill health might require the ACAS Code, for example if the ill health of the employee lead to a disciplinary issue such as a failure to comply with a sickness absence procedure. However, for a pure ill health matter it would not apply.

2. Abuse of Migrant Workers is not Unlawful Discrimination

The Supreme Court handed down its decision on Wednesday that abuse of migrant domestic workers on grounds of their status as vulnerable migrants did not amount to unlawful discrimination.

In this case, two Nigerian nationals working in the UK under domestic migrant visas were mistreated and abused by their employers. They escaped and brought successful claims under the minimum wage and other legislation. However, they also brought claims under the Equality Act for direct or indirect discrimination on grounds of their nationality.

Despite having sympathy for the individuals' circumstances, the Supreme Court disagreed that the Equality Act applied. The Supreme Court held that it was not direct discrimination because the mistreatment was due to their vulnerable migrant status and not because of their nationality. Furthermore, it was not indirect discrimination because there was no provision, criterion or practice applied by the employers to their employees.

In concluding, Baroness Hale suggested that Parliament might consider whether Employment Tribunals ought to be given jurisdiction to award compensation under Section 8 of the Modern Slavery Act to grant compensation to vulnerable migrant workers. This has to be right, there is a fundamental inequality here that needs to be addressed; the Modern Slavery Act may well be the appropriate place to do so.

3. The Introduction of Fees has had a devastating effect on Employment Tribunal claims

The Justice Committee report has resulted in major changes being called for in order to restore an acceptable level of access to the Employment Tribunals system. The introduction of issue fees and hearing fees for claimants in Employment Tribunals in July 2013 has resulted in a drop of almost 70% in the number of cases being brought.

There will be more on this topic in due course – of course we were all aware of the significant impact of the introduction of fees, but it will be interesting to see how these findings and the implications of it will be acted upon – and how quickly. It is unlikely that fees will be abolished, but certainly the question of what is an acceptable amount to charge will be revisited.

4. There was no power for the Employment Tribunal to stay the Equal Pay claims of the Asda workers, compelling them to commence proceedings in the High Court.

In this case of Asda Stores v Brieley, the Court of Appeal held that the equal pay claims in the Employment Tribunal should not be stayed, which would have had the effect of compelling the Claimants to pursue High Court Proceedings.

An interesting case, not least because there are over 7,000 equal pay claims against Asda, which makes it a very significant action. The claims are that the work the Claimants do is of equal value to their comparators and yet the comparators are being paid substantially more than they are.

Asda defended the claim, but also made an application to attempt to stop the claims proceeding in the Employment Tribunal. It was accepted that the Employment Tribunal did not have the power to transfer the claims to the High Court itself, but Asda's position was that the Employment Tribunal did have the power to stay the proceedings indefinitely which would have compelled the Claimants to bring claims in the High Court if they had wanted them to go ahead.

The Employment Tribunal rejected Asda's application, stating that it did not have the power to impose an indefinite stay for the reasons sought, and that even if it did it would not have been appropriate to exercise that power in this case.

Asda appeal to the EAT was rejected. Asda then appealed to the Court of Appeal with the rather brave argument that in effect the Employment Tribunal was not up to deciding such a complicated matter. They didn't put it quite as bluntly as that, but submitted that the case was so exceptional, complex and financially significant with ramifications for the whole retail sector, with complex points of law, that this meant that the significance of the case suggested that it would be far better suited to be decided by a High Court Judge rather than an Employment Tribunal Judge.

The Court of Appeal rejected the application. It said that it was true that there was power to stay proceedings, even indefinitely, but that it would not be the correct approach to take – and not only that, the Employment Tribunal Judge was entitled to take the view that an Employment Tribunal was perfectly capable of handling the claims. Lord Justice Elias did not accept the assumption that Employment Tribunal Judges would not be up to the task and that this suggestion did not do justice to the quality of some of the outstanding judges who sit in the Employment Tribunals (and having previously been the President of the EAT, he would be well placed to know).