If you have read my earlier blogs or been reading the newspapers over the past few months you will be aware that the default retirement age (DRA) is no more. Since the abolition of the DRA employers have been frantically trying to decipher what happens with employees reaching retirement age.

Any dismissal since 6 April 2011 by reason of retirement is discriminatory unless it can be justified. It may also be deemed unfair unless the employer can show the dismissal was for some other substantial reason. Employers can have an Employer Justified Retirement Age (EJRA) but it has to be a proportionate means of achieving a legitimate aim. The difficulty employers face and also lawyers advising employers is going to be formulating an EJRA until some poor employer is faced with a claim and then there is some case law to follow.  

Commentators have made suggestions regarding legitimate aims with regard to justifying an EJRA and these include: succession planning, so promoting recruitment and retention by ensuring defined career paths created by compulsory retirement of older workers; collegiality, limiting the need to dismiss employees on diminishing performance and allowing people to leave with dignity; facilitating long term employment planning; and the extra cost of employing older workers, previously cost was not considered a legitimate aim but recent case law is indicating that it could be possible. The issue is currently before the ECJ and so we shall wait and see.

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Both an employer and an employee can be made respondents and found liable in a discrimination claim brought by another employee. In previous cases tribunals have assumed that they have discretion to apportion liability between the employer and any employees found liable. This is not the case.  In the case of London Borough of Hackney v Sivanandan & Others the EAT held that the wronged party is entitled to recover the entirety of their award from any of the guilty parties. As a result of this it may become increasingly common for employees to find themselves paying 100% of the damages particularly where the employer has become insolvent and been dissolved. Now that is a scary thought for employees and is another good reason why employers should stress to employees that they do not tolerate discrimination in the workplace and should ensure that their policies are up to date and known to the workforce.

Katie Rolfe

A retirement notice must explain the essential requirements of  the right to request working beyond retirement

In the recent case of Bailey v R & R Plant Ltd the EAT held that for an employer to have complied with the requirement to inform an employee of his right to request working beyond retirement it must have informed the employee of the essential conditions for exercising his right.

Prior to 6 April 2011 an employer could retire an employee at 65. If they wished to do this they had to notify the employee in writing of the employee’s right to make a request not to retire and state the date on which the employer intended the employee to retire. For an employee to make a request it had to be in writing and state that it was a request made pursuant to paragraph 5 of the Employment Equality (Age) Regulations 2006.

In the case of Bailey the Respondent had not advised the employee that he had to state in his written request that it was pursuant to paragraph 5. As a result of the invalidity of the notice the employer’s dismissal for retirement was held as unfair by the tribunal. Employers that have issued notices that do not comply with these requirements cannot now remedy the situation by issuing fresh notices as the last date for issuing such notices was 5 April 2011. Employees that have not been given valid notices will be able to exploit any breach in the employer’s retirement notice obligations and argue that their dismissals were unfair and discriminatory because of age.

Perhaps the employer should have taken advice……

Katie Rolfe

The Court of Appeal has held in the case of Wardle v Credit Agricole Corporate and Investment Bank that future losses should only be assessed over a career lifetime in exceptional cases where the tribunal considers that the employee has no chance of ever securing an equivalent job. The Court of Appeal found that compensation should not have been awarded beyond the date that it was likely the Claimant would have found a similar job.

The tribunal made an award for compensation for the whole period until the Claimant’s likely retirement in 2024. However the tribunal made various adjustments to the award. The Claimant secured a new job on a lower salary in November 2008 after being dismissed on 31 July 2008. The tribunal awarded the difference between the new salary and the old salary from that point. The tribunal found that there was an 80% chance that the Claimant would have left the Respondent in April 2010 and so reduced the compensation from that date by 80%. A further reduction of 70% was applied from the end of 2011 on the basis that the tribunal concluded that the Claimant would have secured a similar job at that point. The tribunal awarded a 50% uplift as the Respondent had failed to follow the statutory procedures that were in force at the time of the Claimant’s dismissal.

The tribunal was wrong to assess losses after the end of 2011 when they thought there was a 70% likelihood that the Claimant would have secured an equivalent job. The Court of Appeal held that there was a better than evens chance that the Claimant would have secured a job by June 2011. The Court of Appeal also criticised the tribunal for applying an 80% reduction from the point at which it thought the Claimant would have moved jobs. It is wrong to consider evidence about what an employee would have done but for the discriminatory dismissal when assessing loss. This is because a discriminatory dismissal not only shortens the length of employment but also may alter the career path of the employee which they may have otherwise pursued had it not been for the discrimination. This was a particularly valid point in this case as it is very rare for an employee to leave a job for lower paid employment. The Court of Appeal also criticised the tribunal for awarding the maximum 50% uplift as this should only be awarded in the most serious cases. All in all the tribunal demonstrated how to get it wrong!

Katie Rolfe

In the recent case of Eversheds v De Belin the EAT handed down the proposition that the obligation to protect employees who are pregnant or on maternity leave under s2 of the SDA 1975 is limited to treatment that is reasonably necessary, i.e. proportionate, to compensate them for the disadvantages occasioned by their condition. This means that a colleague who is disadvantaged by the provision of a disproportionate benefit associated with pregnancy or maternity when other less discriminatory alternatives are available would be able to claim sex discrimination.

In this case the Claimant had been scored lower in a redundancy exercise than a colleague on maternity leave purely due to the fact that she had been give a maximum notional score for “lock up” – the length of time between completing the work and receiving payment from the client. The ET found that there was less discriminatory measures that could have been adopted such as comparing performance when both employees were at work. The Tribunal found in favour of the Claimant and upheld her claims of sex discrimination and unfair dismissal. The EAT did however uphold the employer’s appeal against the Tribunal’s findings not to make a Polkey reduction. The EAT upheld the appeal on the basis that the Tribunal had ignored cogent evidence that the Claimant would have been made redundant 9 months later in any event. This element of the claim has been referred to a fresh tribunal to consider whether the loss of earnings award should be capped or discounted.

Katie Rolfe

A paid volunteer is not an employee under the Disability Discrimination Act 1995 (‘DDA’) if there is not mutuality of obligation between the parties. In the case of Breakell v Shropshire Army Cadet Force the Claimant was a paid volunteer but the Claimant neither had to accept the work, nor did the Cadet Force have to provide it to the Claimant. As a result the Tribunal found that there was no mutuality of obligation between the parties and the Claimant’s claim for disability discrimination was struck out as he was not an employee under s 68(1) DDA. The EAT upheld the decision. This decision is likely to apply to claims brought under the Equality Act 2010 which repeals the DDA.

Katie Rolfe

In the recent case of Lisboa v Realpubs Ltd and others the EAT held that the Respondent’s policy of rebranding a gay pub to widen its clientele was implemented in a way that resulted in less favourable treatment of gay customers on the ground of their sexual orientation and consequently resulted in direct discrimination against a gay employee who did not feel comfortable implementing the policy. The EAT also found that it constituted a repudiatory breach of contract enabling the employee to resign and claim constructive unfair dismissal.

The Respondent was in the business of purchasing failing pubs and rebranding them as gastropubs. This case involved the purchase of a pub which attracted gay customers. The Respondent rebranded the pub to attract all members of the public. The Respondent interviewed the Claimant, an openly gay man, for the assistant manager role and the Claimant commenced the role in December 2008.

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In the case of Allen (nee Aboyade-Cole) v Hounga and another, the EAT upheld a tribunal’s decision that an employee who entered the UK dishonestly and did not have the right to work in the country was able to pursue a claim for race discrimination against her UK employers. The discrimination was not linked to the illegal conduct of the employee and the tribunal did not believe it was condoning the employee’s conduct by awarding compensation for the discrimination. The tribunal did not however award compensation for loss of earnings because the claimant was not entitled to work in the UK.

The EAT distinguished this case from that of Vakante v Addey and Stanhope School. In the case of Vakante the Court of Appeal held that an employee’s claim was barred on the ground of illegality. In addition, the employer in the Vakante case was innocent as it did not know that the employee was not entitled to work in the UK. In the case of Allen v Hounga, the employer’s involvement in the illegality was much greater than that of the employee as the employer had wanted the employee to come to the UK to work for them. The employee had been dismissed on racial grounds and this was not linked with her illegal conduct. Miss Hounga’s claim for unfair dismissal did not succeed as it was barred on the grounds of illegality.

Katie Rolfe

The recent case of British Airways Plc v Ms Eliza Mak & Ors held that jurisdiction is conferred on an ET to hear race and age discrimination claims provided the Claimant does his or her work partly in Great Britain.

In this case the Claimants worked for the Respondent as cabin crew and were of Chinese origin based in Hong Kong. The case centred round whether employment was at a place in Great Britain. The Court of Appeal agreed with the Employment Tribunal that the lead Claimant did do her work partly in Great Britain although it only made up a small percentage of her work. The case can therefore be heard in an English Tribunal.

Katie Rolfe

In the recent case of Orr v Milton Keynes Council the Court of Appeal found that an employer cannot be held to know key mitigating facts known to other employees about an individual. When assessing whether a dismissal is fair under s98 of Employment Rights Act 1996, it is the person deputed to carry out the employer’s functions whose knowledge or state of mind is intended to count as the employer’s knowledge or state of mind. It was held that the employee in this case had not been unfairly dismissed where the relevant facts were known to his line manager but not the dismissing manager. The Claimant, Mr Orr, a black youth worker was dismissed following two separate incidents, including rudeness to his line manager, M. The employer found that both incidents amounted to gross misconduct. However, the dismissing manager had not been aware that the second incident had been provoked by the conduct and language of M. M had attempted to change Mr Orr’s hours in an underhand manner and had also said to Mr Orr “I can’t understand a word you lot are saying” when he spoke in Jamaican dialect. The Tribunal found that M’s conduct amounted to direct race discrimination however the dismissal was still deemed a fair response.  

The Court of Appeal agreed with the Tribunal and held by majority that the Tribunal had been correct to conclude that the dismissal remained fair because the decision based on the facts known to the decision maker was reasonable. Reasonableness should therefore be considered in light of that person’s investigation and knowledge. One point to note, Mr Orr did not attend his disciplinary meeting. Had he done so he may have had the opportunity to highlight all of the facts relevant to the incidents surrounding his dismissal. This highlights the importance of exhausting the procedures in place, including the appeal procedures in order to ensure full exposure and investigation of the facts. I believe particular issues will arise where for example there is a case of bullying, harassment or victimisation and the guilty party may be intimidating not only to the Claimant but to all employees under their supervision and those employees may not feel able to disclose the relevant information to the investigator.

Katie Rolfe