Through the looking glass
Date: 23 July 2009
Authors: Ian Smith
Issue: Vol 159, Issue 7379
Categories: Features, Employment
At first sight, a “contingent male” may appear to be a feminist dream but in the looking glass world of local authority equal pay claims it has a more prosaic meaning.
If a woman (F1) makes an equal pay claim citing as a comparator a man doing a different job (M2) and succeeds, can a man doing the same work as F1 (M1) claim equal pay with her? If so, can M1 in effect pre-empt the issue by bringing a “contingent” claim on the basis that if she wins he should win too?
In his judgment in Hartlepool BC v Llewllyn [2009] UKEAT/006/08 (in fact four consolidated appeals) Underhill P posed two questions: (i) do contingent males have a claim at all; and (ii) if so, what is its scope (in particular in relation to a claim for arrears).
Same work no pay
Normally M1 can claim equal pay if F1 is doing the same work but paid more, but the twist in this instance (on which, curiously, there is no previous direct authority) is that F1 only ends up on the higher wage because of the statutory modification required by equal pay law.
Counsel for the employers resisted a claim by M1 on the wording of the Equal Pay Act 1970, s 1(2) which uses the phrase “apart from the equality clause”; in the alternative, they argued that the fact of the woman’s equal pay claim was a material difference between M1 and F1, so that the employer could rely on the s 1(3) defence.
The Employment Appeals Tribunal held against both of these arguments, both as to principle and also in the light of such tangential authority as there has been.
Turning to the second question (the scope of M1’s claim) the issue was what arrears the successful M1 could claim. The claimants argued that he is entitled to go back for the full period in respect of which F1 has been awarded arrears.
The employers argued that there should be no arrears before the date of the tribunal decision in F1’s favour because up to that point the modification of her contract was only potential, not actual (indeed, a “legal fiction”).
Again the Employment Appeal Tribunal (EAT) held for the claimant, on the basis that under the legislation the modification of the pay term in F1’s contract occurs automatically if the required conditions apply, and is not dependent on a tribunal decision to that effect; the significance of the tribunal decision is, however, that in relation to M1’s claim “there is no actual discrimination unless and until F1 is paid, or receives an award, in respect of that period.
His claim depends on the payment or award of arrears, not the accrual to F1 of the underlying theoretical right” (para 33). Thus, apparently, M1 could not bring a claim purely on the hypothesis that an F1 might have brought an action.
Contingent claims
A further point then arose—can M1’s claim be brought contingently? The employers had argued procedurally that even if M1 had a claim and it included arrears, any proceedings by him brought prior to the award to F1 are premature.
Again, this point had not previously been addressed directly but the EAT took the view that what authority there was had to be construed as being against the employer’s argument. In addition, there may be advantages to allowing such contingent claims: “As the history of this and other mass equal pay litigation shows, there are obvious conveniences in male contingent claims being included in the proceedings from the start, even though it may be appropriate as a matter of case management to put them, or aspects of them, on the back burner pending determination of the primary claims.” (para 40)
The final point to notice is that there are apparently 12,000 contingent male claims currently stayed pending decision of these points. Permission has been granted to the employers to appeal.
Victimisation claim as a means of enforcing a tribunal award?
At a time when there has been concern expressed by the justice minister about employers refusing to honour employment tribunal awards, Rank Nemo (DMS) Ltd v Coutinho [2009] EWCA Civ 454 shows an interesting possibility for an employee in such circumstances.
The award in this case was of £72,000 for unfair dismissal and race discrimination. The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) successor of the original respondent refused to pay. The employee adopted the novel approach of suing the present respondent for victimisation.
The employer resisted it on the ground that the employee’s proper remedy was in enforcing the original award; moreover, the provisions on post-termination discrimination should not avail the employee here.
The claimant, however, argued that what was relevant was the reason for the refusal to pay the award, which independently amounted to victimisation (as retaliation for bringing the original claim). The tribunal rejected the claimant’s claim but the EAT allowed his appeal. The Court of Appeal dismissed the employer’s appeal from that decision.
The employers had relied on D’Souza v Lambeth LBC, one of the joined appeals in Relaxion Group plc v Rhys-Harper [2003] ICR 867 HL, [2003] All ER (D) 258 (Jun) where victimisation was not allowed in a case of failure to reinstate. By a piece of nimble judicial footwork, however, Lord Justice Mummery distinguished D’Souza as not applying to a case of failure to pay compensation.
Although the court had had some initial doubts about allowing an action that would not be open to ordinary judgment creditors, it was held that the claimant’s status as such a creditor did not necessarily sever the connection with the employment in question, and so it remained arguable that the elements of victimisation under the statute had been made out. The matter was remitted to a tribunal hearing on the facts.
What did Rhys-Harper decide?
At the beginning of his judgment, Mummery LJ quoted the words of Lord Justice Ward in Woodward v Abbey National [2006] ICR 1436 CA, [2006] All ER (D) 253 (Jun)—“What did Rhys-Harper decide?” He also echoed the sentiment that this was not the occasion to attempt to answer that question definitively and said that it was now necessary for Parliament to “enact just one reasonably workable test for determining discrimination liability in the sensitive area of expired employment”.
A welcome decision on TUPE
Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] UKEAT/286/08 is a welcome and timely judgment by Judge Burke that emphasises that the insertion into the TUPE Regulations 2006 of a special definition of “service provision change” (reg 3(1)(b) ) is to be viewed as a fresh start in dealing with contracting out cases, meaning that it is not now necessary to go back to the pre-2006 case law on whether the old definition of relevant transfer (the economic entity approach) could cover such a case.
This affirmation of the “year zero” approach (advocated in Harvey) is well demonstrated by the facts of the case. A Home Office agency had a contract with Co A to provide accommodation for asylum seekers. Prior to its termination, the agency contracted with Co B to take it over, but at a different location. By the time of the end of the contract, most clients had already been moved to Co B’s premises and Co A was dealing with very few. The tribunal held that on the facts there had been a TUPE transfer.
On Co B’s appeal it was argued that the tribunal should have applied the pre-2006 “multi-factorial” test as summed up in Cheeseman v Brewer Contracts Ltd [2001] IRLR 144, EAT, [2000] All ER (D) 2047. The judge held against that submission and said that “service provision change” is a wholly new statutory concept which is to be applied as a question of fact and in a pragmatic and common sense manner, by going through the wording of reg 3(1)(b) and (3).
What is noticeable is that the judge accepted that there may well have been no TUPE transfer here under the old Cheeseman rules, but there was under reg 3(1)(b), making the decision a very clear one on this vital point.
An interesting twist
In one sense, the decision of the Court of Appeal in London Ambulance Service NHS Trust v Small [2009] IRLR 563 is just a timely reminder to tribunals that they must not just direct themselves to assess the fairness of the employer’s dismissal decision (the “range” test) and not to substitute their own view, but they must then go on to do so.
Here, it was held that the tribunal had succumbed to the temptation to re-evaluate the employee’s guilt of the misconduct in question and so had failed to apply the range test properly. In one passage (in para 43) Mummery LJ warns that it is easy for a tribunal to fall into this error when what the employee wants to do is to clear his name by re-arguing the primary facts which went against him at the disciplinary hearing.
There is, however, one aspect of the case that may add to the usual nostra in this well-worn area. It seems that the reason why the tribunal had fallen into error was that much of the argument before it related to contributory fault by the employee. The tribunal had formed a view of the facts on that which it had then read over into the overall fairness test.
The Court of Appeal points out that in assessing contributory fault the tribunal does have a primary fact finding role, ie it is not subject to the range test.
However, the tribunal must not allow cross-infection, and with this in mind the suggestion was made that it may be best practice for the tribunal to keep its findings of fact on the unfair dismissal issue separate from its findings on disputed facts on other issues.
The obvious “other issue” here was contributory fault, but mention was also made of constructive dismissal and discrimination and victimisation claims. This was recommended even at the price in some cases of an element of duplication.
And finally…this month’s rant
If ever there is a need for an example of what a mess we end up in when trying to govern the amorphous world of employment with black letter rules (especially those not arising domestically) rather than discretion and best practice, the Working Time (Amendment) Regulations 2009 (SI 2009/1567) are a good place to start.
There has been much concern expressed recently in the newspapers and letters columns about the effects of finally putting doctors down on to a 48 hour week. Much of this has been as a matter of principle, and often concerned with whether sufficient training could be given at all under such a regime. However, a more immediate concern has been whether the health authorities are in any event ready for the change, that was due by 31 July. The answer now apparently is that some are not.
The result is these Regulations which postpone the change until 31 July 2011, but only for certain doctors. This is achieved by amending the Working Time Regulations 1998 reg 25A and adding a Sch 2A setting out a table of employing Trusts, individual hospitals, hospital departments and grades and rotas of doctors affected.
A phrase about a canine’s first meal of the day may come to mind when reading it. Still, to look on the bright side, it is the lawyers who benefit the more that employment law legislation comes to resemble the worst reaches of tax or social security legislation.
Ian Smith is Clifford Chance professor of employment law at the Norwich Law School, a barrister in Devereux Chambers, & an editor of Harvey on Industrial Relations and Employment Law (Butterworths)
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