Sintons Employment Law E-Bulletin – Issue 60
- Failure to identify constructive dismissal does not mean claim for unfair dismissal brought by unrepresented Claimant should fail – Aynge v Trickett UKEAT/0264/17
- Failure to pay enhanced shared parental leave in line with enhanced maternity pay is not direct sex discrimination – Capita v Ali UKEAT/0161/17
- Claim struck out for Claimant’s discussions with journalist during adjournment while under oath – Chidzoy v British Broadcasting Corporation UKEAT/0097/17
- Updated Vento bands apply from 6 April 2018
Failure to identify constructive dismissal does not mean claim for unfair dismissal brought by unrepresented Claimant should fail – Aynge v Trickett UKEAT/0264/17
The Claimant worked in a pub of which the Respondent was the licensee, until she fell out with the Respondent. On 15 October 2016 there was a row between the two parties and the Claimant left before the end of her shift; there was further interaction on 16 October 2016 when the Claimant went to collect her wages. The Claimant brought a claim for unfair dismissal stating in the ET1 that her employment ended on 15 October and referred to the events on both 15 and 16 October, however, failed to mention constructive dismissal.
The Employment Tribunal (“Tribunal”) held, on the basis of the Claimant’s witness statement and oral evidence, that she was not expressly dismissed on 15 October. Furthermore, as she had not alleged constructive dismissal, or any dismissal on 16 October, her claim could not proceed and was subsequently dismissed.
The Claimant appealed to the Employment Appeal Tribunal (“EAT”). The EAT held that the Tribunal Judge took an ‘unduly technical approach’ and failed to take sufficient account of the context of the events or the fact that the Claimant was representing herself.
The EAT held that the Judge was not entitled to find there was a concession accepting there had been no express dismissal on 15 October and the Claimant had sufficiently raised the essence of her case in the ET1. Moreover, even if the Judge was correct that the ET1 did not allow an analysis involving constructive dismissal on 15 October or actual dismissal on 16 October, the Judge should not have dismissed the claim without considering allowing an amendment to expressly raise those points.
The case was remitted to another Employment Judge for full investigation of the facts on 15 and 16 October 2016.
This case highlights that the fact Claimants represent themselves should be taken into account where the Tribunal is considering dismissing a claim. Additionally, failure to expressly reference constructive dismissal in the ET1 is not a bar to a full investigation of the facts or a fair trial, particularly where Claimants represent themselves.
Failure to pay enhanced shared parental leave in line with enhanced maternity pay is not direct sex discrimination – Capita v Ali UKEAT/0161/17
The Tribunal erred in their conclusion that the purpose of maternity leave is childcare after the initial 2 weeks of maternity leave, as held by the EAT.
The Claimant was a former employee of Telefonica and was transferred to Capita along with Telefonica’s policies. The maternity policy stated that female employees on maternity leave with at least 26 weeks service were entitled to 14 weeks of enhanced maternity pay followed by 25 weeks of statutory maternity pay. New fathers were entitled to 2 weeks on full pay during paternity leave.
The Claimant’s wife gave birth, suffered from post-natal depression and was advised that returning to work would aid her recovery. The Claimant took his 2 weeks of paternity leave on full pay and then enquired about his rights for further leave, to which he was informed that he was eligible for shared parental leave, but was only entitled to be paid statutory shared parental pay. The Claimant asserted that he should be entitled to the same as women receiving enhanced maternity pay.
The Claimant brought a claim for direct and indirect discrimination on the ground of his sex. He argued that although the first 2 weeks’ maternity leave is compulsory for new mothers, male employees should also be entitled to enhanced pay for the following 12 weeks. Furthermore, he argued that the policy assumed a man caring for a baby is not entitled to the same pay as a mother performing the same role and thus removed the right for new parents to decide who is to care for the baby.
The Tribunal dismissed the indirect discrimination claim but upheld the direct sex discrimination claim, accepting that men are encouraged to play a greater role of care for their babies. It could not see why any preferential treatment for women should apply beyond the 2 week compulsory maternity leave period. The Tribunal also agreed that the primary carer role is a choice for parents and should be free of assumptions that the mother is best placed to perform this role and receive full pay. Capita appealed to the EAT.
The EAT held the Tribunal erred in concluding that maternity leave, following the initial 2 weeks, is for the purpose of childcare and that to conclude this was contrary to the Pregnant Workers Directive, which states that the purpose of maternity leave is the health and wellbeing of a woman during pregnancy and after childbirth. The appropriate comparator in these circumstances was not a woman on maternity leave, it was a woman on shared parental leave, who would have been given shared parental leave on the same terms as those the Claimant received. The conclusion was that there was no direct discrimination on the ground of sex and payment of maternity pay at a higher rate was special treatment afforded to a woman in connection with pregnancy or childbirth falling under section 13(6)(b) of the Equality Act 2010.
This case illustrates that Employers are entitled to have different terms in place for male employees on shared parental leave to those of women on maternity leave without being liable for direct discrimination.
Claim struck out for Claimant’s discussions with journalist during adjournment while under oath – Chidzoy v British Broadcasting Corporation UKEAT/0097/17
The EAT has confirmed that a Tribunal was entitled to strike out a claim where the Claimant discussed elements of the case, including her evidence, with a journalist while under oath.
The Claimant was a journalist for the BBC, the Respondent, and had a disagreement with a colleague regarding a story relating to the Dangerous Dogs Act in which she was referred to as ‘Sally Shitsu’. The Claimant pursued claims for whistleblowing, sex discrimination, victimisation and harassment at the Tribunal which was listed for an 11 day hearing, beginning on 6 February 2017.
On 7 February the Claimant was sworn in to give her evidence. There were various breaks throughout the evidence and on each occasion she was advised not to discuss her evidence or any aspect of the case with anyone. During a break on 9 February, the Respondent’s barrister witnessed the Claimant in conversation with a reporter and overheard the words ‘dangerous dogs’ and ‘Rottweiler’ used in conversation. This was reported to the Employment Judge and no satisfactory explanation was put forward by the Claimant thus the Respondent applied for a strike-out on the basis of unreasonable conduct and the impossibility to have a fair hearing pursuant to rules 37(1)(b) and Schedule 1 Employment Tribunals (Constitution and Rule of Procedure) Regulation 2013.
The Tribunal struck-out the case and concluded that the Claimant’s discussion with the journalist constituted unreasonable conduct which damaged the trust of the Judge and panel members and it was therefore unfair to continue. It held that a re-hearing by a fresh Tribunal was impossible as they would be aware of the Claimant’s conduct. The Claimant appealed to the EAT.
The EAT agreed with the Tribunal’s decision and dismissed the appeal on the basis that there was no alternative to striking out the claim upon fair application of the Bolch v Chipman 2004 test which included consideration of whether the proceedings had been conducted unreasonably, whether a fair trial was still possible, the appropriate remedy and if lesser sanctions were more appropriate and the consequences of a Debarring Order.
It is important for witnesses and representatives to heed instructions given by the Tribunal during evidence not to discuss any aspect of the case whilst under oath or affirmation as the Tribunal has the power to strike out a claim or part of a claim at any time during the proceedings.
Updated Vento bands apply from 6 April 2018
Compensation that can be awarded by Tribunals for unlawful discrimination includes awards for ‘injury to feelings’, divided into bands, known as Vento bands.
Joint Presidential Guidance has been issued by the Presidents of the Employment Tribunals in England & Wales and Scotland updating the amount of compensation that can be awarded. These are updated from time to time according to the Retail Price Index. The Tribunals must have regard to this guidance, although it is not binding.
For claims presented on or after 6 April 2018, the amount of compensation that the Tribunal can award for injury to feelings has increased.
In the lower band, for less serious cases, the amount that can be awarded is between £900 and £8,600.
In the middle band, for a serious one-off act of harassment or lengthy but less serious acts of discrimination the amount of compensation that can be awarded is now between £8,600 and £25,700.
In the upper band, for the most serious cases, the amount that can now be awarded is between £25,700 and £42,900, with the most exceptional cases capable of exceeding £42,900.
It is unclear whether a 10% increase to general damages, introduced in 2012 in Scotland, applies.