Employment law roundup

Susan Belgrave rounds up some important employment law cases, including a ruling that provides a salutary reminder of the proper role of the Employment Tribunal and risk of bias.

The proper role of the Employment Tribunal and risk of bias

In East of England Ambulance Service NHS Trust v Sanders UKEAT/0217/14/RN Langstaff P has recently handed down a rather forthright decision setting out precisely the role of the tribunal after having to deal with a case which highlights a tribunal which overstepped its role.

The claimant, as is so often the case, was unrepresented before the tribunal which had to consider as a preliminary issue the question of whether she was disabled. She suffered from stress/depression. Unfortunately there was a dearth of information provided by the claimant about her condition. While there was an expert report from a psychiatrist the claimant had not disclosed her GP records for the tribunal hearing and the psychiatrist did not support her claim. She had been on medication and had later stopped taking this.

After evidence was concluded the tribunal retired and looked at Wikipedia to find out more about the claimant’s medication and the dosage which she had been given. They returned with printouts of their research, informing the parties what they had done and the judge questioned the claimant further asking whether her doctor had not told her she was severely depressed. Unfavourable comments were made about the consultant’s report. The following day the respondent asked the tribunal to recuse themselves as they had showed some bias in favour of the claimant. They refused to do so.

The task of an employment tribunal is always more difficult when a party is not legally represented and while a tribunal can legitimately assist a party in ensuring that they put all of their case the tribunal cannot run the case for them. The tribunal must accept the evidence which the parties have produced for its adjudication and not seek to perform an inquisitorial role where it takes leads the way in considering what evidence is necessary and how it can be adduced.

The EAT was extremely critical of the approach of the tribunal and the inquisitorial role it had adopted in its handling of the claim. The respondent had been correct to ask the tribunal to recuse itself. The EJ had, for instance, asked the claimant leading questions in relation to her doctor’s assessment of her depression in the hope of eliciting evidence which was more favourable to her case than she had actually provided. In doing so it had stepped into the arena and the decision was tainted by the appearance of bias.

Can a requirement that an applicant hold a PhD be indirectly discriminatory?

The case of Stephen Games v University of Kent UKEAT/0524/13/DA raised the interesting but as yet unanswered question of whether a requirement that an applicant for a teaching and research post must hold a PhD was indirectly discriminatory on the grounds of age.

Mr Games argues that applicants his age, late 50s, frequently did not have PhDs because when they did their training it was not a requirement. The claimant had applied for a full-time post as lecturer in the respondent’s School of Architecture. It was an essential criterion for appointment that the applicant should hold a PhD in the subject area. The claimant had no PhD. His application was rejected on paper at the short-listing stage.

The School of Architecture had become part of the University in 2005. A review of its activities took place in 2010. The review specified a desire to increase the reputation of the School by research, aiming to become a leading research intensive institution in the South East of England.

This required funding, which in turn depended on positive assessments under a system known now as the Research Excellence Framework. The review stressed the importance of an active PhD cohort in the School.

In two recruitment rounds following the 2010 review the Dean of the Faculty insisted on the need for candidates to possess a PhD. In 2012 the respondent advertised five new full-time lectureship posts for the School. It was an essential requirement that the appointee in each case should hold a PhD. The claimant had been given encouragement to apply, and he did so. But he was rejected during the short-listing procedure because he did not have a PhD and there was no reasonable expectation of his being awarded a PhD before he would take up the post. 

The employment tribunal rejected the claim on the basis that the claimant had not provided statistics to show that fewer people his age could comply with the requirement. The tribunal also accepted an argument from the respondent that there was nothing preventing the claimant from completing a PhD or equivalent as he had an entire working lifetime to do so.

The case was remitted for a fresh hearing. HH Judge Richardson QC pointed out that the claimant was not required to adduce statistical evidence as the tribunal had suggested but to consider what evidence had in fact been presented by the claimant and it had not done so in the instant case.

Further the appropriate time at which to consider whether there was a disadvantage to the claimant was the position he found himself in when provision was applied to him. Evidence of what he could or might have done might be relevant to remedy but not to the first stage of the claim: Chief Constable for West Yorkshire v Homer [2012] ICR 704. Nor had the tribunal properly considered whether the university had established justification in relation to requirement  for candidates to have a PhD. The case had to be remitted to a fresh tribunal for reconsideration of all the issues.

Holiday pay and injury to feelings

The case of Sash Windows Workshop & Dollar v King UKEAT/0057/14/MC was heard after the recent case of Bear Scotland. It dealt with two important issues: holiday pay and how awards for injury to feelings should be calculated.

The Claimant Mr King was a self-employed commission only salesman and won his case for age discrimination when Sash Windows decided they no longer wished to use his services. He had worked with Sash Windows since 1999 until 2012 when he reached the age of 65.

The tribunal ruled that this dismissal was discriminatory pursuant because of his age. He had not been paid holiday for several years and claimed that he had been deterred from taking such holiday because he would not have been paid. The ET judge had upheld this claim and awarded him the equivalent of 24 weeks' holiday pay for the leave not taken.

The EAT ruled that this was wrong in principle. The remedy for being denied the opportunity to take holiday was a claim for liquidated damages as the worker would have been paid for having worked instead.  What a worker in this situation was being compensated for was the lost health and welfare benefits of being unable to take this holiday at the appropriate time. In the instant case there was insufficient evidence to show that the claimant had been denied the opportunity to take holiday. In any event any award in relation to a series of unlawful deduction from wages would have to be considered in the light of the Bear Scotland decision which states that where there are gaps in the deductions the claim is limited to three months.

The tribunal had also concluded that the award for injury to feelings should be reduced because the claimant would have been aware that his services could have been terminated in any event. The EAT held that this approach was wrong in principle as the tribunal has to take into account the feelings of anger, hurt and humiliation occasioned by the discriminatory act. It also stated that any award was subject to a 10% uplift under the principle laid down in Simmons v Castle [2013] 1WLR 1239 which held that such an uplift applied to damages for personal injury.

Susan Belgrave is a barrister at Seven Bedford Row.