The Volume of Employment Protection Legislation

Introduction:

Over the last forty years there has been a steady growth in the volume of employment protection legislation. During this era the law has also evolved as a result of a great outpouring of decisions of the courts and tribunals. Most of them occupy the interpretation and application of statutory provisions. At the same time, it is important not to lose sight of the fact that there have also been noteworthy developments in the common law of the employment contract. This question invites us to consider some current legal issues and developments regarding the respective employment rights and responsibilities of those involved in employment. In particular, I am asked to consider the central legal question of the nature of, employee status, contractual terms of employment, unfair dismissal and equality. Each of these issues will be considered in turn.

Employment Status:

The division between contracts of employment and self-employment is of basic importance, because only employees qualify for employment protection rights such as unfair dismissal, redundancy payments, and minimum notice on termination. Wider protection is provides under the Health and Safety at Work etc. Act 1974, and the discrimination and equal pay legislation which applies to those both under a contract of service and contract ‘personally to execute any work or labour’ includes the self-employed.

Given the fundamental importance of the division, it is unfortunate the formulation of the test of employee status has come from the courts and tribunals rather than from statute. The legal process for determining who, in given factual situations, are employees or self employed (or, indeed, “workers”) is notoriously complex, and often inconsistent and unconvincing. The only guidance on the question in the legislation is so completely circular as to be absolutely useless. Employee “means an individual who has entered into works under (or where the employment has ceased, worked under) a contract of employment”. ‘Contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. The case law on this subject is confusing and contradictory. Although hopelessly cumbersome and circular, the definition does make a couple of intentions clear. First, to include all employees and then some others. And second, to maintain a number of requirements associated with the term ‘employee’, in particular the contractual relationship, the personal nature of the engagement, and the lack of an independent business undertaking.

There are three different forms of defined status within the legislation: workers, those performing contracts for services and employees. The Employment Rights Act 1996 s.230(3)(b) provides that there are three elements to the definition of worker. Firstly there must be a contract to perform work or services. Secondly, there must be an obligation to perform that work personally, and thirdly, the individual will not be a worker or (home worker) if the provision of service is performed in the course of running a business and the other party is the client. An individual who is employed under a contract of employment could also be categorised as a worker.

There has been a plethora of cases examining employee status but it is only recently that the categorisation of “workers” has received analysis and comment. The Employment Appeal Tribunal (hereinafter EAT) noted that more recent cases show that it is now necessary to differentiate between employees, workers, and those engaged in a business undertaking of their own, which would require more sophisticated analysis. Moreover, the EAT suggested that tribunals should be careful if they rely on such cases establishing employee status to determine who is a worker. Elias J argued that the degree of dependence of the putative “ employee” on the “ employer” referred to as critical in Byrne Brother (Formwork) Limited v Baird was not determinative of worker status because small businesses could be dependent on one large client . He preferred instead to draw an analogy with the definition of in “ employment” used in discrimination legislation and defined in s.82 Sex Discrimination Act 1975 and s.78 Race Relations Act 1976: “ employment under a contract personally to execute any work or labour” .

This has been interpreted more broadly by considering whether the “dominant purpose” of the contract is the provision of personal services or “whether that is an ancillary or incidental feature.” The EAT has thus created a further test for the establishment of worker status, although the judgment makes clear that any tribunal failing to apply the “ dominant purpose” test or any other test would not be acting erroneously as careful analysis of all the elements of the relationship and all relevant factors should be assessed .

In the past, the leading approach was to apply the test of ‘control’, i.e. could the employer control how, when and where the worker was to work? If he could, that worker was his employee. More problematic have been the discussions in case law on the need for “control” in contracts of employment. Opinion has differed as to the exact ambit of this simple test as applied to an employment contract. It has long been recognised that the mere provision of instructions on what work to do and when and how to do it is too simplistic a notion to determine the precise incidence of an employment relationship in a modern organisation employing sophisticated skills. However, as nowadays many employees possess skills not held by their employer, control as the sole determination of status had been rejected. Along the way the test ‘ integration’ was floated, i.e. whether the worker was fully integrated approach has been to abandon the search for a single test and adopt a multifactorial test, weighting up all the factors for and against the existence of a contract of employment to determine whether the worker is ‘ in business on his own account’.

Although Byrne Brother (Formwork) Limited v Baird focused upon the definition of a worker under the provisions of the National Minimum Wage Act 1998, the decision has important ramifications for employment protection generally, since the identical definition exists within s.230 of the Employment Rights Act 1996, the Working Time Regulations regulation 2, and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Under these measures, part-time workers enjoy the right not to be discriminated against because of their part-time status. Other protection for workers generally includes the right not to suffer unlawful deductions from wages and the right to be accompanied at grievance or disciplinary hearings. The decision is noteworthy as it specifically addresses the definition of worker and thus broadens the scope of protection to the ever increasing atypical workforce which has developed flexible working practices to balance work and other commitments. Further developments in this area will be of interest particularly in view of the rejection of the Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill in March 2007.

Contractual Terms Of Employment:

The contract of employment, comprising express, compulsory and implied terms, forms the structure upon which working arrangements between employees and employers are orchestrated. Categories of implied terms have been described as “shades on a continuous spectrum.” Terms may be implied by fact – for ‘business efficacy’ or because they are obvious to the officious bystander, representing the intentions of the parties. They may also be implied by law. These are “default rules,” “inherent in the nature of the contract.” They are based on “wider considerations” as a “necessary incident” to the employment relationship. The implied term of mutual trust and confidence between an employer and employee is such an incident and is said to have become the “cornerstone” and “crucial, overarching principle of interpretation” of such contracts.

There is no succinct, clear or generally agreed categorisation of the different types of terms that make up a contract of employment. Employees have traditionally been bound by a number of implied contractual duties, including a duty to obey lawful and reasonable orders, a duty of co-operation, a duty to exercise skill and care and a duty of fidelity. The recent development by the courts of the implied term of mutual trust and confidence has been highly significant. What is more, as each year goes by it is further developed in ways which can have major consequences for employers and employees. There is some debate about accurately when a duty on employers and employees to maintain a relationship of mutual trust and confidence was first found to amount to an implied term, but it is clear that it became well established in cases that were decided from the late 1970s onwards. The obligation of mutual trust and confidence is viewed as having evolved from the general duty of co-operation between contracting parties. However, the latter duty only covers attempts by one side to actively frustrate the other’s performance. The distinctive feature of mutual trust and confidence is that it is said to be a positive version of the general duty. The decision of the HL in Malik v. BCCI , to endorse the implied obligation of mutual trust and confidence, provides more than adequate proof of that. Undoubtedly, Malik is the most significant decision on the common law of the employment contract in many years. The existence of the obligation of mutual trust and confidence was endorsed with considerable enthusiasm by the Law Lords: it “is a useful tool, well established now in employment law.” Moreover, it has “..proved a workable principle in practice. It has not been the subject of adverse criticism in any decided cases and it has been welcomed in academic writings.”

What would be the consequence if “an employer attempts to contract-out of the obligation of mutual trust and confidence? The topic is not dealt with expressly in either judgment in Malik”. The CA has consequently sought to reduce the impact of the ‘implied term.’ In Johnson v Unisys the claimant suffered a breakdown as a result of his dismissal and a claim for damages was rejected. The court held that as Parliament had developed statutory remedies for dismissal it was unsuitable that they should coexist with an implied term, particularly one which dealt with continuing employment rather than with termination. There is a fine line to be drawn between conduct leading up to dismissal and actual termination itself which may be a difficult and artificial difference to make. On the other hand it may be said that once a decision has been taken to terminate employment mutual trust and confidence have already broken down and cannot be relevant to the dismissal. The formulation of the term is necessarily affecting its scope. Johnson, although removing dismissal from the scope of the ‘implied term’ did not remove its influence on assessing damages. Damages awarded for a breach of the ‘implied term’ may be considerably larger than that awarded for unfair dismissal. Employees are therefore better protected by implied terms than in those areas in which Parliament has legislated. On the contrary, employers are in a better position if they dismiss, rather than suspend, an employee.

This obvious policy decision has been criticised as “contrived” and a “ brake on the development of the common law,” reflecting the tension between common law and statutory dismissal procedures. This was acknowledged in Eastwood where Lord Steyn held that “ the boundary between common law and statutory rights poses a great structural problem…It prevents…the natural and sensible evolution of our employment law in a critical area…A re-examination by Parliament is needed.” He suggested that removing the cap on damages for unfair dismissal would solve the problem.

Lord Millet has stated that the ‘implied term’ “must yield to the express provisions of the contract” and Lord Steyn that “parties are free to exclude or modify” implied terms. There is conceptual inconsistency in allowing modification or exclusion of a term implied by law as a result of the nature of the contract. Although in orthodox contract law an implied term cannot override an express term, it has been held the express terms must be exercised in the light of those implied and they must be “capable of co-existence.” More in recent times it has been held that the ‘ implied term’ could “ supplement” express terms. In United Bank v Akhtar it was stated that the ‘implied term’ controls the exercise of an employer’s discretionary use of an express term. It therefore forms an ‘ umbrella’ under which other ‘ implications’ fall and under which managerial decision-making may be regulated. Brodie has stated that employers’ discretionary powers should be grouped under an “ all-embracing principle” of mutual trust and confidence and has used the ‘ implied term’ to rationalise past decisions.

As I mentioned above, Lord Steyn stated that implied terms in general, that they operate as default rules: “The parties are free to exclude or modify them.” This might be taken to suggest that contracting out would be possible. This issue also arose in Johnstone v. Bloomsbury HA [1991] I.R.L.R. 118 which concerned the employer’s implied obligation to take reasonable care for the health and safety of the employees. The express term as to working hours was construed as an attempt to restrict the employer’s liability for personal injury. The CA took the view that the Unfair Contract Terms Act 1977 prevented the employer relying on the express term to exclude a claim based on the implied obligation. Section 16 would not be relevant to an attempt to contract out of mutual trust and confidence. Its scope is confined to breach of obligations to take reasonable care or exercise reasonable skill. Section 17 deals with terms in consumer or standard form contracts which attempt to exclude or restrict liability in respect of breach or to render a performance substantially different to that which was reasonably expected. Such terms are subject to a ‘fair and reasonable’ test. It may be that an employment contract would be regarded as a consumer or standard form contract. If that were the case, section 17 might defeat any attempt to contract-out of mutual trust and confidence. It is submitted from fact of Malik that notions of good faith will become increasingly central to employment law.

It is arguable that the trust duty already overarches all of these duties even if the courts have tended, despite its name, to view the mutual trust duty as applicable to employers rather than employees. Because the mutual trust duty seems to have originated in the employee’s duty of fidelity it is natural to regard it as overarching that duty. Indeed, Lord Steyn in Johnson v Unisys Limited referred to the trust and confidence duty as forming an ‘overarching obligation implied by law as an incident of the contract of employment’. And the generality of the trust duty means that the trust duty is also capable of overarching the other implied duties of an employee in some extent.

Unfair Dismissal

The issue is to be considered whether principal applied in terms unfair dismissal is fair? Since the principal of unfair dismissal was developed as a mechanism to protect employee’s from arbitrary treatment, the importance of adherence to procedurally fair steps in dismissing the employee has shifted over time. In this paragraph I shall examine : the criteria for claim of unfair dismissal; the courts initial position on procedural fairness; the impact of the Court of Appeal’s decision in the case of British Labour Pump Co Ltd v Byrne ; the reinstatement of the importance of procedural fairness by the House of Lords (hereinafter HL) in the case of Polkey v EA Dayton Services Ltd ; and, finally, the courts position after Polkey, and the potential impact of the provisions of the Employment Act 2002 in terms of unfair dismissal.

There are a number of procedural steps to be adhered to in determining an unfair dismissal claim. The first step is to determine eligibility- the worker must be an “employee”, must also have at least one year’s continuity service. Secondly, there must have been a dismissal, and the third step is to ascertain a whether the employer had an honest belief that the reason for dismissal fell within one of the five following potentially fair reasons as defined by section 98 of the Employment Rights Act 1996 (hereinafter referred to as the ERA 1996). In determining the employers “honest belief”, the HL stipulated in the case of W Devis & Sons v Atikns , that the employer could not rely on the facts that they were unaware of at the time of the dismissal to justify their reason to dismiss. The Court of Appeal has held that it is for the employer to prove that it had a potentially fair reason for dismissing an employee, and even when t he employee asserts a different reason for the dismissal, the burden of proof does not pass to them.

Prior to 1980, the burden of proof in unfair dismissal claims at this stage was on the employee. The Employment Act (EA) 1980 amended the test, primarily by removing the requirement that the employer shall satisfy the industrial tribunal as to reasonable of his action, and so rendered the burden of proof ‘neutral’. A further amendment required tribunals to have regard to the size and administrative resources of the employer’s undertaking in assessing the reasonableness of the dismissal. The specific reference to size and administrative resources is encouragement to tribunals to be less exacting in their examination of the disciplinary

The final step relates to the fairness or reasonableness of the employer’s actions in the light of potentially fair reason to dismiss applying to the employee. This is referred to as the “band of reasonable responses test” as expounded by Browne Wilkinson J in Iceland Frozen v Jones as approved in Post Office v Foley; HSBC Bank plc (Formerly Midland Bank) v Madden. Commenting on this case, Rubenstein has identified “the practical difficulties of a drawing a meaningful distinction between the range of reasonable response and test of perversity”. Parliament did not say that no dismissal is to be held unfair unless the decision to was perverse. In Sainsbury’s Supermarkets Ltd v Hitt CA held that the range of reasonable responses test applies to the question of whether the employer’s investigation into suspected misconduct was reasonable in the circumstances- the third element of the British Home Stores v Burchell test. The EAT, had held that the band of reasonableness test applies to whether the employer had reasonable grounds for believing that the employee was guilty but does not apply to the question as to whether there was an adequate investigation.

This decision provides a solid underpinning to managerial prerogative in dismissals for misconduct. The effect of Hitt is to hold that tribunals should not find that a dismissal is not unfair merely because the employer failed to adhere to these components of a fair investigation. It is only where dismissal without, for example, affording the employee an opportunity of explaining can be said to be outside the range of reasonable responses that the dismissal should be found to be unfair. The problem with this standard is that it is difficult to reconcile with laid down by HL’ decision in Polkey that “ in a case of failure to give an opportunity to explain, except in the rare case where a reasonable employer could properly take the view on the facts known to him at the time of dismissal that no explanation or mitigation could alter his decision to dismiss, an industrial tribunal would be likely to hold that the lack of “equity” inherent in the failure would render the dismissal unfair.” Thus, in effect, Polkey means that a dismissal without an opportunity to explain is unfair unless a reasonable employer could take the view that no explanation was necessary.

In Hadden v Van Den Bergh Foods Ltd, held that the “range of reasonable responses” test is an unhelpful gloss on the statute and should no longer be applied by employment tribunals. Instead, the test of fairness should be applied “without embellishment, and without using mantras so favoured by lawyers in this field”. In the place of the authorities favouring the band of reasonableness test, the EAT advocates the approach adopted in Gilham v Kent County Council (No 2). This latter decision emphasised that whether a dismissal was fair or unfair is pure question of fact for the tribunal. .

The EAT in the case of Whitebread & Co plc v Mills stipulated that in determining the reasonableness of the employers conduct in dismissing one must consider: (a) compliance with pre dismissal procedures which a reasonable employer could and should have adopted in the circumstances; and (b) compliance with an appeal process. In misconduct dismissals especially, but also with incapability and “some other substantial reason”, the employees should have a chance to state their case. Also under s10 of ERA 1999 the employee is entitled to be accompanied at a disciplinary or grievance hearing by a single companion. If the employer fails to comply with this, the worker may present a complaint to an employment tribunal under section 11 of ERA 1999. In West Mildands Co-opertive Society v Tipton the HL held that the appeals’ procedure was integral part of deciding the question of fair procedure. Indeed, a properly conducted appeal can remedy procedural deficiencies in the original hearing. The ACAS Code of Practice on Discipline and Procedure provides an important framework for the conduct of dismissal procedure, which employers must consider. Also, s207 TULR(C)A 1992, states that the code is admissible in evidence before a tribunal and that if any of its provisions are relevant to the proceedings they shall be taken into consideration.

One of main criticisms made of unfair dismissal law is that the remedies available to victories claimants are inadequate, and that employers are thus not properly deterred from dismissing an employee unfairly. Where an employee is found to have been unfairly dismissed, the compensation is assessed by reference to the employee’s financial losses which flow from the termination. The HL has ruled that employment tribunals are not permitted to award damages for personal injury or injury to feelings as part of unfair dismissal compensation. However, where the employer’s act of dismissal has caused the employee to suffer illness, difficult questions may emerge in terms of how the financial loss is to be calculated. In Dunnachie v Kingston Upon Hull County Council , brought an end to the long running debate as to whether it is competent for an employee to seek damages for injury to feelings in an unfair dismissal case. Their Lordships ruled that it is not. Unfair dismissal compensation is about financial losses. It is not concerned with wider considerations of damages for distress, personal injury or injury to feelings. Various commentators have suggested reforms to aspects of unfair dismissal law that would have the effect of improving the deterrent. They stated for removing the various caps on compensation levels and parliament could overturn Dunnachie, requiring tribunals to make awards that compensated for loss dignity, injury to feeling or stress associated with the dismissal as well as financial loss. .

It is submitted that the development of disciplinary and dismissal procedures has been a somewhat gradually affair, constituting a mixture of common law decision, codes of practice and statutory provisions. First, with the development of “no difference rule” in British Labour Pump Co Ltd v Byrne and then the current re-establishment of the importance of procedural adherence subject to limited exception in Polkey v A E Dayton Services Ltd. The Employment Act 2002 will continue to assert the importance of disciplinary procedures with the establishment of its “statutory dismissal and disciplinary procedures” into all employees contracts. The Act however contains detractions and paradoxes in its incomplete procedural detail and its reaffirmation of the no difference rule for additional contractual disciplinary procedures.

Discrimination:

Discrimination law is currently undergoing a huge change and expansion, largely driven by Europe. In this paragraph provides an overview, although each area is dealt with separately in detail. Changes to race, sex and disability law and sexual orientation law and religious discrimination have all been brought in by regulations. Under the European Communities Act 1972 s2, regulations implementing Directives can go no further than the directive which is being put into effect. The result of the government choosing this mode of implementation therefore means fragmented law and particular problems under the Race Relations Act (RRA) 1976. It was generally considered that the Sex Discrimination Act 1975(SDA) was designed to prevent unlawful discrimination against women, its provisions apply equally to the treatment of men.

The issue is what constitutes discrimination? The test for determining whether or not an act was discrimination is objective, not subjective. In other words, regard must be had to what was done, not the reasons or motives behind what was done. The question to be asked is ‘would the complainant have received the same treatment from the defendant but for his or her sex’? In James v Eastleigh BoroughThe plaintiff and his wife, who were both aged 61, visited a public swimming pool run by the defendant council, which had adopted a policy of providing free swimming facilities for persons of pensionable age. Since the effect of that policy was that women over 60 were admitted free while men were not admitted free until they were 65, the plaintiff was charged 75p for admission while his wife was admitted free. The plaintiff brought an action against the council claiming that it had unlawfully discriminated against him on the grounds of sex, contrary to s 29 of the Sex Discrimination Act 1975 (SDA), because the refusal to provide him with free swimming while providing it for his wife amounted to less favourable treatment and therefore discrimination under s 1(1)(a) of SDA 1975 that Act.

It was held that since the statutory pensionable age of 60 for women and 65 for men was itself a gender-based criterion which directly discriminated between men and women, in that it treated women more favourably than men ‘on the ground of sex’ for the purposes of s 1(1)(a) of the 1975 Act, any other differential treatment of men and women which adopted the same criterion likewise involved gender-based discrimination which was unlawful under s 1(1)(a), regardless of whether the person doing the discriminatory act used the shorthand expression ‘pensionable age’ or spelt out in full that the act applied to women aged 60 and men aged 65. Furthermore, it was irrelevant whether the motive for the discriminatory act was benign or not, since whether a person afforded less favourable treatment to another because of his sex was a matter to be determined objectively. Accordingly, since the plaintiff would have received the same treatment as his wife but for his sex, the council had discriminated against him ‘on the grounds of his sex’ for the purposes of s 1(1)(a), notwithstanding that it had not intended to discriminate between men and women but had intended to provide free swimming to pensioners. It followed that the council had been guilty of unlawful discrimination in refusing to provide the plaintiff with swimming facilities on the same terms as women of the same age.

Direct discrimination is the most well recognized of the forms of discrimination recognised by domestic law and, indeed, is the form of discrimination which is most litigated before employment tribunals. It is the formalistic idea that likes should be treated alike, or, at any rate, not treated dissimilarly on grounds of a protected characteristic. Direct discrimination is defined by SDA 1975 and Race Relations Act 1976 (RRA) as less favourable treatment on grounds of sex, on racial grounds or on grounds of marital status. This definition applies to discrimination in all fields. In the employment field the forms of discrimination which are unlawful are defined by SDA 1975, s76 and RRA 1976.

The EE (RB) Regs 2003 and EE (SO) Regs 2003 contain similarly worded provisions. It is worth noting that the EE (RB) Regs 2003 restrict the protection to the religion, religious belief, or belief. Political and similar beliefs are not sheltered. These regulations also enclose a different interpretation of ‘on grounds of’. It can comprise the discriminator’s ‘perception’ of the victim’s religion or sexual orientation, even if incorrect. Thus a claim may be brought where a disadvantage is suffered because of assumptions made about religion or sexual orientation, and there is no requirement for the victim to disclose their religion or sexual orientation to bring that claim.

Tribunals and courts may consider direct discrimination claims in one of two ways. Firstly, they might ask, on the one hand, why the person has been treated in the manner in which they have been treated. If the answer is that the person has been treated that way, at least in part, by reason of the relevant protected characteristic, then the individual will have been directly discriminated against. Instead, the rather more complex task of identifying a comparator might be adopted. Such a comparator might be real or hypothetical but must possess all of the ‘relevant circumstances’ which the putative discriminator had in mind when determining to treat the putative victim in the way in which that individual was treated, other than the relevant protected characteristic. If the complainant was treated less favourably than an appropriate comparator, then the court or tribunal must consider whether or not such treatment was on grounds of the relevant protected characteristic.

Direct discrimination does not, therefore, seek to assess substantive outcomes; rather, it looks to form. Richard W. Painter & Ann Holmes stated that “discrimination has become more covert and subtle, direct discrimination has proved to be difficult to establish”. Direct discrimination is not capable of being legally justified. The editor of Harvey stated that “notion of ‘detriment’ is flexible, and the requirement that a reasonable worker would see the acts as detrimental is easy to satisfy”. An example is provided by the case of Moyhing v Barts and London NHS Trust 860, EAT, where it was held that a male nurse who had to be chaperoned when attending to a female patient could complain of direct discrimination, on the basis that no similar rule applied to a female nurse attending to a male patient. Direct discrimination whichever of the approaches outlined above is adopted, provided that a person exhibiting a different protected characteristic would have been treated in the same manner in the same circumstances, the treatment of an individual will not amount to direct discrimination irrespective of the results that such treatment creates. A useful standard is that enunciated by May LJ in De Souza v Automobile Association which merely required that the court or tribunal find that ‘by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work’.

Indirect Discrimination

This branch of the statutory provisions is designed to deal with situations where discrimination is arguably unintentional. It is for the claimant to show that such discrimination exists, and it is therefore for her to bring to the tribunal the statistical and factual evidence needed to demonstrate indirect discrimination.