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June 2011 Updates

Apportioning liability in discrimination claims

The Employment Appeal Tribunal has decided, in London Borough of Hackney v Sivanandan & Others, that, where an employer and employee Respondent are jointly liable for discrimination, there is no basis for the apportionment of damages (i.e. splitting up the damages award amongst them so that each Respondent pays a specific portion of it).

The Claimant applied for employment with a charity but was unsuccessful. She claimed that she wasn't given the position as an act of discrimination and victimisation because of a previous discrimination claim which she made against the charity.

The Claimant brought proceedings for race and sex discrimination and victimisation against the charity and Hackney Council, which funded the charity.

She also named employees of the Council and the charity and committee members as Respondents in the proceedings.

The Tribunal upheld the complaints of victimisation and determined that the Respondents (save for an employee of the Council who was awarded to pay £1,250 for injury to feelings) were jointly and severally liable to pay the Claimant £421,415.

The Council appealed against the Tribunal's decision that the award be joint and several and sought to have it apportioned. The Employment Appeal Tribunal dismissed its appeal. The Respondents had been found to be jointly liable for the loss caused to the Claimant. Consequently, it held that the Respondents were each liable for the entire award of compensation and that it wasn't necessary to apportion liability between them.

Cost can justify discrimination

The Employment Appeal Tribunal has decided, in Cherfi v G4S Security Services Ltd, that an employer can rely upon cost alone in order to justify an otherwise indirectly discriminatory policy.

Mr Cherfi, a Muslim, was employed as a security guard. He regularly left the site on Friday to attend a Mosque. His employer stopped this practice on the ground that their firm was contracted to ensure that the specified number of security guards were present throughout operating hours.

Mr Cherfi brought a claim for indirect religious discrimination, alleging that G4S's policy placed Muslims at a particular disadvantage.

The Employment Tribunal held that the financial implications for G4S of being in potential breach of contract justified the requirement.

The Employment Appeal Tribunal held that financial implications were sufficient to make the discriminatory policy reasonable and proportionate.

Wasted costs against a party's representative

The Employment Appeal Tribunal has announced its decision in Jackson v Cambridgeshire County Council. It is a case with extraordinary facts, including the covert recording of the private deliberations of the Tribunal.

An order for wasted costs against the representative concerned was overturned on the grounds that the Tribunal had not properly addressed his argument that he had not been acting in pursuit of profit. He was representing a family member. There was consequently no a reason to believe that he might have been acting in pursuit of profit. In those circumstances, the Tribunal needed solid grounds for a finding to the contrary. The fact that he was an unreliable witness in other respects was not sufficient.

The representative had made a complaint to the Regional Employment Judge about the Employment Judge hearing the case. He had supported his complaint with transcripts of the unlawful recording, which he denied having made himself. He quoted selectively from the recording. He then destroyed it. He also engaged in correspondence described as "arrogant and bullying" and posted material attacking the Respondent on Facebook.

Unsurprisingly, there was no challenge to the conclusion that his conduct had been unreasonable.

Costs in Employment Tribunals

The Employment Appeal Tribunal has handed down its decision in two costs cases.

In the first, a Tribunal was held not to have made a mistake in making a costs order without taking into account a paying party's ability to pay given that the Claimant had left the hearing (albeit not the Tribunal building), was being represented by a relative and had conducted the overall proceedings in an "outrageous'" manner. The Tribunal was held to have a wide ambit of discretion on costs, including whether it takes into account a party's means (Mirikwe v Wilson & Co Solicitors & others).

In the second, an Employment Tribunal was held not to have the power to make a preparation time order in favour of a non-legally represented party for time spent in attending a hearing. This is because the Tribunal's Rules do not allow for preparation time to be awarded for time spent at any type of hearing. The Judgment in this case suggests that preparation time might cover time spent outside of Tribunal rooms during or between days of hearings. (Andrew v Eden College & others).

Discrimination and dress codes

The High Court has decided, in SG v St Gregory's Catholic Science College, that a uniform policy of prohibiting a cornrows hairstyle for all pupils (without exception) can result in indirect race discrimination but not sex discrimination.

The High Court found that there was evidence that there are those of African-Caribbean ethnicity who regard the cutting of their hair to be wrong on the basis of their culture and ethnicity. As such, they needed their hair to be kept in cornrows and there was a group who could be at particular disadvantage by a blanket policy that refused to allow cornrows.

The School's arguments that a blanket policy could be justified were rejected.

On sex discrimination, the High Court found that rules concerning appearances that enforce a common principle of smartness or conventionality will not be discriminatory. This means that a policy that allowed cornrows for girls, but not boys, did not amount to unlawful sex discrimination.

Ex gratia payments not set off against notice pay

The Employment Appeal Tribunal has decided, in Publicis Consultants v O'Farrell, that the true construction of the meaning of the words used by an employer in a letter of dismissal in which it paid monies to an employee as an "ex gratia payment", was a question of law.

An employee entitled to three months' notice was dismissed with four days' notice. The letter of dismissal stated that she would receive an ex gratia payment equivalent to three months' salary. She brought a claim for breach of contract for failure to pay her salary for the three months' notice period. The employer argued that the ex gratia payment was actually made in respect of the notice pay. The Tribunal found that the payment was truly ex gratia and that the employer was in breach of contract.

Agency workers

The Employment Appeal Tribunal has decided, in BIS v Studders, that no contract of employment existed between an agency worker and the employment agency when the contract between them showed no intention to create an employment relationship and neither of the two key requirements of an employment contract existed. These are (1) mutuality of obligation (i.e. each one owing the other certain obligations) and (2) an appropriate degree of control which the employer can exercise over the employee.

Unity Personnel was an employment agency which placed the Claimants in roles with an end user. The contract between the agency and worker stated that it was not an employment contract. Unity had no obligation to provide work. The Claimants had no obligation to accept work when offered. Unity became insolvent and still owed the Claimants remuneration. They claimed they were employees for the purposes of seeking re-imbursement. The Employment Tribunal found in their favour. The Employment Appeal Tribunal reversed its decision.

Tribunal recommendations

The Employment Appeal Tribunal has decided, in Lycée Franšais Charles de Gaulle v Delambre, that an Employment Tribunal has a wide discretion in making recommendations when upholding a discrimination complaint and that, on appeal, there is a narrow ability to interfere with that discretion.

The employer, a French school in London, committed age discrimination and victimisation against the Claimant ,who remains employed there, by not considering her for promotion. The Employment Tribunal's remedies included three recommendations:

  • To inform the "governing board" and senior management of the Tribunal Judgments.
  • To engage an HR Professional to review the school's policies and procedures.
  • To have a programme of equality and diversity training carried out throughout the organisation.

The employer argued that the three recommendations were inappropriate on various bases, principally with them being too broad. The Employment Appeal Tribunal disagreed, holding that recommendations to avoid discrimination against the Claimant were within the Employment Tribunal's discretion.


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SRA number 404293