Rosemary Connolly and Jenine McCourt, Partners at Rosemary Connolly Solicitors, Warrenpoint and Belfast write regular emails on GB case law that they think will interest employment lawyers and HR professionals. Sometimes they will discuss the importance of cases that we have already reported on via or weekly review emails. Other times they will refer you to entirely new cases that you might not have seen before.

Cases highlighted on this occasion are:

1. Council of the City of Sunderland v Brennan & Ors [2012] EWCA Civ 41 (Equal Pay)
2. Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330 (Age Discrimination)
3. Halpin v Sandpiper Books UKEAT/0171/11/LA (Redundancy)
4. Crawford and Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 (Disciplinary Hearings)

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1. Council of the City of Sunderland v Brennan & Ors [2012] EWCA Civ 41

Female employees of the Sunderland City Council brought Equal Pay Claims based on a historical pay disparity dating back to the 1970s when it was common for certain jobs within the Council to enjoy locally negotiated bonus arrangements. These workers would have received in total earnings 33-50% above the basic pay grade for that job and included gardeners, road sweepers, drivers and refuse collectors. Typically these jobs were predominantly carried out by men and those jobs predominantly carried out by women (including caterers, cleaners, carers, school support staff and leisure centre attendants) did not attract the bonus arrangement.

The Council put forward, as an explanation to explain the pay differential, that the bonus arrangement was linked to a productivity scheme. At first instance the Employment Tribunal concluded ‘that the scheme was a sham and a pretence and could not therefore be a genuine explanation for the variations in pay’. The EAT had set aside the finding that it was a sham simply because the scheme was no longer in operation, but found that since the bonus arrangements had long ceased to be linked to productivity they could not therefore be relied on by the Council as a Genuine Material Factor.

The Council was appealing to The Court of Appeal on the ground that the EAT’s finding was perverse, their argument was that the productivity link remained unbroken until the scheme was abolished. The Court of Appeal held that by the 1990s the material link between productivity and the bonus had broken down and was perceived as being a fixed part of salary. Considerations taken into account were that there was little monitoring or measuring of the performance scheme, there were very few instances where a bonus to an employee was withdrawn or reduced a new scheme had been introduced where bonus earners could finish early once the workload had been completed, all of which had no effect on overall performance levels.

As the Council could not rely on this explanation, there was a prima facie case of indirect discrimination. The Council’s appeal was dismissed.
http://www.bailii.org/ew/cases/EWCA/Civ/2012/413.html

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2. Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330

The Appellant, Mr Woodcock, appealed to the Court of Appeal against the decision of an EAT that dismissed his claim for age discrimination.

His former employer was the Cumbria Primary Care Trust at which he had held the position of CEO. In 2006 the NHS effected a re-organisation which left his position redundant. He was entitled to apply for a new CEO role in the new configuration but was unsuccessful in interview and was not awarded a new post.

Just short of Mr Woodcock’s 49th birthday, the Trust gave him 12 months' notice of dismissal, timed to ensure that the notice would not expire after Mr Woodcock had attained the age of 50 when he would be entitled to take an early retirement with an enhanced pension package (in essence an additional 6 ½ years and no reductions for early receipt, estimated by the employer to be in excess of £500,000). A comparator who had not attained their 49th birthday would not have received a dismissal notice and so the ET had held that this was direct discriminatory treatment.

The main issue however was whether this treatment could be justified as a ‘proportionate means of achieving a legitimate aim’ and centred on the extent that cost consideration could be taken into account. The approach as outlined in Cross & Ors v British Airways 2005 is that considerations based on cost or financial/economical factors alone cannot justify discriminatory treatment based on age. It can only be a legitimate aim if linked to a non-cost factor.

The Court of Appeal held the notice was served with the aim of giving effect to the Trust’s decision to terminate employment on grounds of redundancy and it was a legitimate aim to save the additional costs. The difficulty was that because of his approaching birthday the Trust needed to cut a “procedural consultation corner” and the Appellant was deprived of a consultation prior to dismissal. This was considered as proportionate, Mr Woodcock had a long period of notice and consultation would not have achieved anything as his post was redundant.

The appeal was dismissed.

There is discussion within the judgement on the approach taken on the admissibility of cost considerations, the basic example being that an employer cannot justify paying employee ‘A’ less than employee ‘B’ simply because it would cost more to pay both employees the same. As cost considerations are often on the mind of an employer, doubt was placed on the approach that an employer can ‘add on’ a legitimate aim to justify discriminatory treatment. In this case however, it was clear that the dismissal notice was not solely aimed at avoiding costs. There was a genuine redundancy of which the Appellant was aware of, he had received redundancy notice and a consultation meeting had been arranged but was delayed. To be retained beyond his 50th birthday would have resulted in a windfall for him.
http://www.bailii.org/ew/cases/EWCA/Civ/2012/330.html

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3. Halpin v Sandpiper Books UKEAT/0171/11/LA

The Claimant was employed by the Respondent Company, Sandpiper Brooks whose main business is the distribution of books. The Claimant was the only employee to be based in China and his role was primarily to promote sales in China.

The Claimant contended that he was unfairly selected for redundancy. In short his argument was that no reasonable employer would dispense with a post and automatically decide that the person holding that post should be dismissed. The Respondent Company argued that the need for employees to carry out the work in China had ceased or diminished, since the Claimant was the only person based in China, the decision could only be based on a pool of one.

“The decision as to the pool (we use the word advisedly, since there was only one) is for the management” and the EAT upheld the Tribunal’s view that the decision to have a pool of one is open to the Respondent and it was entirely logical here. The Claimant was working on his own in China and that work there was no longer of interest to the Respondent. He was the sole person within the decision of management that the China position should cease.
http://www.bailii.org/uk/cases/UKEAT/2012/0171_11_0602.html

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4. Crawford and Anr v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138

The Appellants were both nurses employed by the Respondent Trust until they were both dismissed in 2009 for alleged gross misconduct arising from the manner in which they handled a patient on a particular evening, following which they were suspended, their actions notified to the police and eventually dismissed. They entered claims of unfair dismissal, ultimately based on procedural defects in the investigation and dismissal procedures. Their claims were successful at Tribunal but overturned at The EAT and they now sought to have the initial Tribunal decision restored.

The Court of Appeal restored the Tribunal’s decision in part but of particular interest are the additional comments of Lord Justice Elias on what appears to be the “almost automatic response” to suspend and forbid an employee from contacting anyone as soon as a complaint is made. He notes that such a knee-jerk reaction would be a breach of the duty of trust and confidence towards an employee.

He finds it “short of astonishing” that the matter was thought appropriate to refer to the police and highlights the difficulties faced by an employee remaining on suspension or awaiting the outcome of a police investigation. Employees “frequently feel belittled and demoralised by the total exclusion from work and their work colleagues, many of whom will be friends”.

It is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as is the case here, the employee’s reputation or ability to work in his or her chosen field of employment is likely to be affected by a finding of misconduct.

The Tribunal at first instance had noted that the two nurses were very long serving with no disciplinary records and against whom no malicious intent was alleged. Further a reference would involve a nurse being unable to gain other employment in the profession and so the evidence of misconduct must be clear and cogent.

Lord Justice Elias comments that often, even if “subsequently cleared of charges, suspicions are likely to linger and that the suspension itself can appear to add credence to them.”
http://www.bailii.org/ew/cases/EWCA/Civ/2012/138.html

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Legal-Island would like to thank Rosemary Connolly, who provided the main content of this email. Rosemary is a partner in Rosemary Connolly Solicitors with offices in Warrenpoint and Belfast. Rosemary works exclusively in employment law and can be contacted on 028 4175 3121 or 028 9066 0823.
http://www.solicitorsni.net/default.asp

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Legal-Island
17 April 2012

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