MOBILITY AND/OR REDUNDANCY
LATE COMPLETION OF PROCEDURE—USE OF THE ORDINARY TIME EXTENSION
One potential bear-trap for the employee in the statutory procedures has always been that if an employer “completed” the relevant procedure only just before the normal time limit expired, the special time extension for a further three months cannot apply because there is no continuing procedure as at the end of that initial period. This problem has now been addressed in two cases.
The first was the decision of the EAT under Judge Richardson in Bevan v Royal Bank of Scotland [2007] UKEAT/440/07, [2007] All ER (D) 389 (Nov) where it was held that in a case where the employer “completes” the statutory procedure very shortly before the end of the original three month time limit (so that reg 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752) cannot apply to grant an automatic three month extension) the employee may seek an extension of time under the general “not reasonably practicable” rubric in the Employment Rights Act 1996, s 111. In that case, the employee had only been told of the failure of his appeal five hours before the expiry of the normal three month limit.
Second, in Ashcroft v Haberdashers Aske’s [2007] UKEAT/151/07, [2008] All ER (D) 186 (Feb) the result of the appeal was given only six hours beforehand. Mr Justice Burton in the EAT came to just the same result as in Bevan, namely that the answer was the use of s 111 instead of reg 15, in spite of the fact that the two cases were decided effectively contemporaneously and so Bevan had not been cited. Again, the reasoning was that the normal s 111 rule that waiting for the result of an internal procedure is not a good reason to extend should not apply to a reg 15 case under the statutory procedure because the policy aim of the latter is that the employee should wait and exhaust the statutory procedure before bringing tribunal proceedings. When the statutory procedures finally go, it will be interesting to see if this case law is then used to seek reconsideration of that general s 111 rule (as enshrined for many years now in Palmer and another v Southend-on-Sea Borough Council [1984] IRLR 119, [1984] 1 All ER 945).
TERRITORIAL JURISDICTION (1)—EU BACKED STATUTORY RIGHTS
The question of the territorial jurisdiction of GB unfair dismissal law was exhaustively considered in Lawson v Serco Ltd [2006] UKHL 3, [2006] 1 All ER 823 in which it was clearly stated that working for a GB employer would not in itself be sufficient to found jurisdiction in a GB tribunal.
In Bleuse v MBT Transport Ltd and another [2007] UKEAT/339/07, [2007] All ER (D) 392
(Dec) the claimant was a lorry driver working mainly in and . He worked for a company registered in and the proper law of his contract of employment was stated to be English law. He sought to bring statutory proceedings in an English tribunal for unfair dismissal, unlawful deductions from wages and failure to pay holiday pay under the Working Time Regulations. The tribunal struck all of these out under Lawson v Serco. On appeal, the EAT (Elias P sitting alone) added a significant caveat to that case.
It was held that the tribunal was right to exclude the unfair dismissal and unlawful deductions claims, both of which fell under Lawson v Serco, being purely domestic law claims (contained in the Employment Rights Act 1996). However, a complication arose in that the holiday provisions are in the Working Time Regulations which transpose rights from an EU Directive. Here, Lawson v Serco does not apply because the court is obliged to apply the principle of effectiveness of EU rights. The European Court of Justice has held that the holiday provisions of the Working Time Directive are sufficiently precise to be directly effective (ex p BECTU v Secretary of State for Trade [2001] IRLR 559, [2001] All ER (D) 272 (Jun)) and so an English court is required—at least where the proper law is English—to modify normal jurisdictional rules to ensure that directly effective rights can be enforced here.
Although the logic behind this decision is apparent (once an EU stance is taken) it can lead to odd results depending on the provenance of the right in question. On the facts, the claimant’s case was dismissed in relation to unfair dismissal and unlawful deductions, but allowed to proceed on the (relatively minor?) ground of holiday pay.
TERRITORIAL JURISDICTION (2)—TRANSNATIONAL TUPE
Much speculation has arisen in the past as to whether TUPE, or the backing Acquired Rights Directive can apply to transnational transfers. The Regulations are silent on the matter, merely stating in reg 3(1)(a) that they apply to a transfer of an undertaking or part thereof “situated immediately before the transfer in the ”. The decision of the EAT in GMB and another v Holis Metal Industries Ltd [2007] UKEAT/17/07, [2007] All ER (D) 304 (Dec) finally tested the issue, with the added twist—given the EU provenance of the Regulations—that the business in question (the making of curtain rails) was transferred from England to Israel, a non-EU country (on the assumption that the Eurovision Song Contest does not count). The matter was fully argued before Judge Ansell who held that TUPE and the Directive can apply to transfers to outside the and that this is not confined to transfers to other member states. The case itself concerned not mainstream employee rights but whether or not the obligation to inform and consult had arisen. The judgment sets out in extenso the very full arguments on both sides, and acknowledges the practical difficulties that may arise in relation to enforcement against a foreign undertaking, but nevertheless comes to the conclusion that the overall aim of the regulations of employment protection requires transnational application. Indeed, the judge drew support for this from the new provisions in reg 3 of the 2006 regulations on service provision changes, which he said “clearly aimed at the modern outsourcing of service provisions, particularly call centres, whether inside or outside the EU”.
The editor of Div F of Harvey on Transfers of Undertakings, John Mc- Mullen (whose leading work on TUPE is cited in the judgment), was quoted in New Law Journal as approving of this decision and adding that “Employers should seek indemnities against the possibility of TUPE claims on cross-border transfers. Those advising foreign transferees would be negligent not to consider negotiating such indemnities” (see NLJ 11 January 2007, p 42).
MOBILITY AND/OR REDUNDANCY
What is the relationship between a mobility clause and normal redundancy procedures? Received wisdom has tended to be that a mobility clause gives the employer the best of all worlds (subject probably to an implied obligation not to exercise it capriciously), in that the employer can choose to exercise it to move the employee or can choose not to exercise it and go down the redundancy route instead. Home Office v Evans [2008] IRLR 59, affirms that position. The facts concerned the closure of an immigration office at . Two immigration officers, who had mobility clauses in their contracts, were told to move to Heathrow. They refused to do so, declined to take part in any discussions, and resigned claiming constructive unfair dismissal. The tribunal found in their favour, holding that the employers had breached their own redundancy procedures, and also the term of trust and respect—in utilising the mobility clause in order to avoid a redundancy at Waterloo. The Employment Appeal Tribunal (EAT) agreed, but the Court of Appeal allowed the employers’ appeal. It held that it was open to the employers to go down either the mobility or the redundancy route, and that their deliberate and clear choice was not to be impugned in this way. The tribunal had relied on Curling v Securicor Ltd [1992] IRLR 549, but that was construed as only applying where the employers had decided to go down the redundancy route, in which case they would not be permitted to rely on a mobility clause at a late stage instead. Where, however, the employers have clearly gone for the mobility/relocation option, the employee cannot (in effect) make them go the redundancy route instead.
Davies v Farnborough College of Technology [2007] All ER (D) 288 (Nov)
This case concerned the information that must be given by an employer before the stage 2 meeting in the standard dismissal procedure. It was a redundancy dismissal case, as was the leading case of Alexander v Bridgen Enterprises Ltd [2006] IRLR 422, [2006] All ER (D) 224 (Apr) which was much in contention.
Alexander established that the test of sufficiency of information is a general, not a mechanistic, one, namely whether or not the employee has been given sufficient to give him a reasonable opportunity to consider his response. However, at one point in Alexander the EAT appeared to say that in a redundancy case this would include giving the employee his own score (even if it was not always necessary to give others’ scores). Burton J held in Davies that there is no such rule—it all comes under the general rule of sufficiency. Applying that test, however, the EAT held that there had been serious deficiencies generally in the procedure adopted and that these made the employee’s dismissal unfair (not just the fact that he had not been given his or others’ scores). Interestingly, this employee had been given easily the lowest score. On that basis, there was a Polkey reduction of 100% in the compensatory award because he would have been chosen anyway; a basic award was made, which was uplifted by 25% for breach of the statutory procedure.
Highland Council v TGWU/UNISON [2007] UKEAT/20/07
The judge did then (at paras 33 and 34) consider what was to happen if, having specified certain comparators at stage one, the employee then discovers others later. She said that that would depend on the stage of the proceedings. If EAT proceedings had not been started, the employee would have to lodge a further grievance document. If such proceedings had been started, the claimant would need to seek to amend the existing claim, which would have to be considered by the tribunal on normal principles. Ultimately, it would also be open to the claimant to raise a new grievance and start a fresh tribunal complaint. The point might well be made at this point that cases such as these demonstrate the wisdom of the Gibbons Report when it said that the need now is to get back to a position where the aim of procedures is actually to settle disputes, rather than being seen principally as the prelude to litigation.
This case concerned the information to be given by an employee raising a grievance, in the specialised context of an equal pay claim. Founding on the leading authority of Edebi v Canary Wharf Management Ltd [2006] IRLR 416, [2006] All ER (D) 03 (Apr) with its emphasis on the employer being given the essence of what he has to respond to, Smith LJ here held that the comparative element of an equal pay claim is so vital to the cause of action that the employee, in raising the grievance at stage 1 of the statutory procedure, must give “some specification of comparator, at least by reference to job or job type, in the grievance document”. Merely to stipulate “equal pay” would be “to reduce the stage one grievance communication to a relatively meaningless level of generality or tokenism”.
AND FINALLY…
My Employment Law Brief last November (see 157 NLJ 7297 pp 1606–07) concentrated on the renewed legal profile of the redundancy consultation provisions in the Trade Union and Labour Relations Act 1992, s 188. To that can be added one more nuance, once again spelling out how important it can now be for the employer to get it right (or face a serious financial penalty). According to GMB and others v Susie Radin Ltd [2004] EWCA Civ 180, [2004] 2 All ER 279 the protective award is meant to be punitive and a deterrent, and so a tribunal should always start at the maximum. However, in Evans v Permacell Ltd [2007] UKEAT/350/07 the question arose as to what is the proper “maximum”. Section 189(4) fixes the maximum at 90 days, without qualification. However, with regard to the consultation period, 90 days only applies where 100 or more employees are to be made redundant (s 188(1A)). In this case it was less than 100 and so the consultation period was only 30 days. In the light of that, when making a protective award for failure to consult, the tribunal (applying Susie Radin) started at a “maximum” of 30 days. On appeal by the individuals concerned, the EAT under Judge McMullen held that this was a mistake. Originally the legislation did link the maximum protective award in s 189 to the length of the consultation period in s 188 but that link was broken by amending legislation in 1999. Thus, the maximum protective award is now 90 days, irrespective whether the consultation period was 30 or 90 days. In the case itself, this had the effect (given that it was the maximum to be applied on the facts) of raising the awards from £2,742 to £8,226 per individual.
