In GMB v Allen and ors, the EAT has overturned a contentious employment tribunal decision that a trade union subjected some of its female members to indirect sex discrimination and victimisation when it reached a settlement with, and failed to support their equal pay claims against, a local authority.

The case concerned the ongoing saga of equal pay in local authorities and the implementation of so–called ‘single status’ agreements. Allen was one of a group of women employed by Middlesbrough Metropolitan Borough Council who had historically been paid less than men doing equivalent work, and thus she was in a position to claim up to six years’ back pay.

However, in negotiating a single status agreement with the Council, GMB had to balance the interests of Allen against the interests of staff whose job was being downgraded and would need pay protection. Bearing in mind the limited financial resources of the Council, GMB struck an agreement whereby Allen would receive a settlement which amounted to 25 per cent of the value of her claim.

Allen consulted solicitors and brought a claim against GMB, arguing that in reaching the agreement it had subjected her to sex discrimination, and that certain acts after the agreement amounted to victimisation. An employment tribunal found that GMB had not committed an act of direct sex discrimination, but went on to conclude that, in reaching a low back pay settlement in order to release monies for future pay protection, it had subjected Allen to indirect sex discrimination. The tribunal further found that the failure to support Allen in her equal pay claim against the Council was an act of victimisation. GMB appealed.

Allowing the appeal, the EAT held that the settlement of the claims was a legitimate aim, and that while it might not agree with GMB’s approach, it could not be said that it was not proportionate. Accordingly, there had been no indirect discrimination. The EAT held that there was no evidential basis on which the tribunal could have found that GMB victimised Allen in failing to support her claim, particularly as it was not in a position to do so since she had instructed solicitors. The EAT substituted a finding that there was no discrimination.

Incomes Data Services, July 31, 2007

There has been a decrease in the number of claims to employment tribunals, according to the Advisory, Conciliation and Arbitration Service (ACAS).

Publishing its annual report for 2006/07, ACAS said that there had been 105,177 employment tribunal cases in 2006/07, compared to 109,712 in 2005/06.

Unfair dismissal continued to be the largest category of complaint with 35,583 claims, while the number of requests for ACAS to intervene in employment disputes and conciliate between the two sides fell slightly, with 912 this year compared to 952 in 2005/06. The issue of pay continued to be the single biggest category.

The annual report also revealed that:

• 2.7 million people accessed good practice guidance on the ACAS website last year;
• the most frequently viewed pages were the A–Z of work and rights at work;
• the ACAS helpline answered 839,335 calls.

Copies of the ACAS annual report can be found at: www.acas.org.uk

ACAS press release, August 6, 2007

Rock star Sting and his wife have been ordered to pay damages to their former chef for wrongful dismissal.

Jane Martin was employed by the couple’s management company Lake House for nearly eight years, earning around £26,000 a year. However, an employment tribunal heard how things started to go wrong after she fell pregnant in 2005. She claimed that Sting’s wife, Trudie Styler, made increasing demands on her and complained when she took time off.

The tribunal found the couple guilty of sexual discrimination and awarded Miss Martin £24,944. The sum included £10,000 for injury to feelings and £16,000 for loss of earnings with deductions for redundancy pay already received.

The tribunal chairman, James Simpson, said that he had expected the level of compensation set for Miss Martin’s hurt feelings to be much higher.

“The tribunal was therefore surprised when Mr Norman, for the claimant, suggested the figure of £10,000 and that the claimant was not seeking aggravated damages or costs,” he added.

BBC, July 17, 2007

A Filipino care worker who was shown a racially insulting text message sent by one white British care worker to another was discriminated against on the ground of race, an employment tribunal has ruled.

Jo Nombreda was one of seven Filipino care workers employed by Charing Rose Ltd at its residential care home in Dover. In June 2005, one of the white care workers, Rebecca King, sent her colleague, Linda Jackson, a message in which she wrote: “The Phillippinos [sic] are ignorant and useless most of the time”.

Mr Nombreda became aware of the text and passed it on to the home’s manager, Scott Melville, complaining about its racist language. Shortly afterwards, Mr Melville told Ms King that the message was not acceptable and that she should apologise. A few days later, Mr Melville called all the Filipino staff together and read out Ms King’s apology. He confirmed that if Ms King repeated any racist comments she would be disciplined.

Mr Nombreda resigned the following August and brought a number of claims, including one of race discrimination based on Ms King’s text message.

The tribunal upheld the text message claim, finding that “Ms King’s text message was an act of discrimination against the claimant as on racial grounds she treated him less favourably than white British employees of the respondent by direct words of racial disparagement and this was to his detriment”.

It rejected a submission that, because it had taken such steps as were reasonably practicable to prevent her from doing the discriminatory act, the employer should not be held liable for Ms King’s conduct.

“The only step which the first respondent had taken was to give new staff the opportunity to read its equal opportunities policy,” the tribunal found.

IDS Diversity at Work, July, 2007

HM Revenue and Customs (HMRC) has suffered a major defeat after the Law Lords gave the legal all-clear to a tax-saving arrangement used by thousands of husband-and-wife small businesses.

The HMRC had hoped to use rules dating back to before the Second World War to stop husbands and wives using company dividends to reduce their joint tax bills. Accountants estimated that as many as 200,000 firms operate in this way and may have faced back-dated tax claims of around £42,000 each.

The landmark ruling brings to an end a seven-year battle between Arctic Systems, the small Sussex-based IT company run by Geoff and Diana Jones, and HMRC.

The couple arranged their affairs so that in the financial year being challenged by HMRC, Mr Jones paid himself a £7,000 salary and his wife received almost £4,000, from the £91,000 turnover. After expenses and corporation tax, the couple shared the remaining £60,000 equally in dividends.

HMRC had successfully argued in the High Court that husbands and wives who both draw dividends should be taxed as if the income was all the breadwinner’s. This would prevent the spouse making use of his or her personal allowance and lower rates of income tax.

But in the Court of Appeal, Lord Justice Carnwath said the HMRC wanted a “significant extension” of the rules that determine whether income is being illegally diverted to avoid tax.

Peter Pennycard, PKF partner and national director of tax, described the decision as “a common sense win for small businessmen and women” but pointed out that it demonstrates, yet again, the Government’s failure to make a stable tax environment for small business.

Mr Pennycard believes that HMRC will now simply look for a legislative change to end the practice of sole traders forming consultancy companies so that they can pay themselves and co-owning spouses dividends which attract less tax.

PKF press release, July 25, 2007

A test case that dyslexia is a disability in the eyes of the law has been won by a Metropolitan Police officer.

The Employment Appeal Tribunal ruled that Chief Inspector David Paterson – who gained promotion despite his condition – is “a disabled person”.

Mr Paterson had accused the Met of discriminating against him because he suffered from dyslexia. He said that the force had failed to make reasonable adjustments, particularly in the processes of deciding whether he might be promoted to superintendent.

An earlier Employment Tribunal had ruled that Mr Paterson was not disabled within the terms of the Disability Discrimination Act 1995.

However, Mr Justice Elias, one of the country’s senior High Court judges, has now ruled that, as his professional advancement depended upon his sitting examinations, the dyslexia did constitute a “substantial” impairment.

“This is a landmark judgment, which has the potential to benefit the millions of dyslexia sufferers in the UK who are perfectly capable employees, but who may struggle with exams,” commented Mr Paterson’s solicitor, Mohini Bharania.

Further information: As well as ruling that workplace examinations and assessments are “day–to–day activities” for the purposes of the Disability Discrimination Act, the EAT was also of the view that activities such as “reading and comprehension” should be covered. Given that around 10 per cent of the population suffers from some form of dyslexia, this could have a huge impact for organisations that don’t currently make any special provision for dyslexic employees or even recognise dyslexia as a disability.

It is recommended that employers revisit their equal opportunities policies to ensure that, where they are aware that someone is suffering from dyslexia – even if it is only mild – reasonable adjustments are made to their working conditions. This could include allowing them extra time to complete assessments or reports or providing a quiet environment to carry out work. Also remember that some employees may not even be aware they are dyslexic. Being able to identify performance issues symptomatic of dyslexia (such as problems with short-term memory, sequencing or organisation) will enable employers to deal with those issues more effectively, and therefore improve efficiency and morale.

Employers can contact Dyslexia Action (http://www.dyslexiaaction.org.uk) for further information on tackling dyslexia in the workplace.

The Times, July 24, 2007

The prospect of taking annual leave is causing employees anxiety, stress and longer working hours, according to research from Investors in People (IiP).

The research found that 51 per cent of employees report working extra hours in the run-up to taking annual leave, with the problem worst among owner-managers with 14 per cent saying that they could work 16 or more hours extra just before a holiday.

When asked how they felt when they were finally on holiday, only 51 per cent said that they didn’t think about work. Nearly one in 10 workers claimed to feel guilty about leaving colleagues and 15 per cent feel stressed that work might not be done properly in their absence. Just 30 per cent said that they are confident that colleagues would handle things effectively in their absence.

Simon Jones, acting chief executive of IiP UK, said: “Holidays should be time to relax – not worry. It’s important that employees have confidence in their employers and their colleagues to handle things effectively whilst they are away, rather than getting stressed or putting in ever-longer hours in the days before they go.

“Part of this is down to individuals but managers can guard against the inevitable ‘summer stretch’ by co–ordinating and discussing holiday dates, identifying potential pinch points and planning extra resource or balancing workloads accordingly. It’s about careful planning and prioritisation well in advance.”

Investors in People, July 16, 2007

A solicitor who left her job because of the pressures she was put under while pregnant was the victim of sexual discrimination, Exeter Employment Tribunal has found.

Susan Heale said that her former law firm, Thornley’s of Plymouth, had forced her to come to work despite her morning sickness and to work in an office that was too small for her to move around in comfortably. She had found out that she was pregnant on the same day that she was offered promotion to partnership; subsequently, she was told that her department was being shut down and that taking full six months of maternity leave might result in her being made redundant.

She also noticed a change in managing partner Tony Pearce’s attitude towards her: she claimed that he had told her that having children would have a negative impact on her career.

Mr Pearce denied this and the other claim made against him, arguing that he had not pressured Ms Heale into considering a shorter period of maternity leave or attending work with morning sickness; however, the tribunal favoured Ms Heale’s evidence that her concern for the health of her unborn twins had forced her to resign, and is expected to award her compensation of up to £100,000.

In a statement, Ms Heale said: “I had the distinct feeling that I was being pushed out of the firm simply because I had announced one change of circumstances: my pregnancy. My office was so unbearably hot that I felt I was going to pass out, and I could not elevate my feet to alleviate the swelling because of the constraints of the room.”

She added: “I believe that this has cost me my career. It has certainly caused me untold stress and hardship over the past 18 months, with the result that have lost precious time that I could have spent with my boys during the first year of their lives. There is no compensation for that.”

Workplace Law Network press release, August 7, 2007

Employers can be liable for a wide variety of staff misdeeds. Sometimes this is criminal liability if a statute so provides but more often it is civil liability to, for example, a customer or client or a member of the public under the general law on “vicarious liability”.

The use of vehicles by staff provides particular risks to employers. The key to minimising the risk is to have a standard company policy which all staff must adhere to, set out in a document and possibly supplemented with simple instructions in each vehicle for the driver to refer to in case of any incident.

While having a car policy and issuing guidelines is important, it is not enough – employers must also take reasonable steps to ensure that their employees follow the guidelines. In respect of vehicles, items to be covered in a policy might include:

• setting out the maximum number of hours driving without a break;
• forbidding use of hand-held mobile phones when driving on company business or in a company car;
• no-smoking rules if the vehicle is used by more than one person;
• rules covering alcohol and drugs abuse;
• policies and training regarding safe operation of vehicles;
• who is allowed to drive;
• responsibility for reporting/repairing defects;
• ensuring that employees are properly licensed;
• ensuring that proper insurance is in place (especially if staff use their own cars on company business).

If a company has a vehicle fleet manager it will be important not only for the HR department to know about issues which might affect employer liability but also that HR has a system to ensure that the fleet manager is kept updated on these issues as well.

www.emplaw.co.uk, July 2, 2007

A red-headed waitress who was taunted about the colour of her hair has been awarded £17,618 compensation by an employment tribunal.

Sarah Primer, 41, took the cafe where she worked to an employment tribunal claiming sexual harassment and unfair dismissal.

Miss Primer, from Keyham, Plymouth, worked at a cafe in the city between November 2004 and October 18, 2006. She said that during the past six months a series of lewd and embarrassing comments had been made to her by the cafe’s night manager.

“They wanted to know if the colour of my hair matched the rest of my body,” Ms Primer said.

“They thought it was quite funny to laugh about – they do not see many people with red hair.”

The tribunal chairman described the harassment suffered by Ms Primer as “denigrating, highly personal and demeaning”.

The divorced mother of three said that she spent £90 every three months to keep her hair – which used to be wavy and ginger – straight and blond. Miss Primer said that she was “staggered” by the amount of compensation that she had been awarded.

BBC News, June 26, 2007