June 11, 2017
FEES FIASCO:
IS THE END IN SIGHT?
For those employment lawyers concerned with access to justice (and aren’t we all?) the fees imposed on those bringing claims in the tribunal are a sorry tale.
It is clear from the statistics that claims have dropped about 80 per cent. The assertion that this is due to the weeding out of unmeritorious claims is not supported by the facts - the percentage of claims succeeding is almost exactly the same as it was before the introduction of fees. And the fees regime plays little part in reimbursing the public purse for the cost of the tribunals - receipts run at the level of £9 million a year or thereabouts - minuscule in the context of spending on the justice system as a whole.
So what are the prospects of a change in the direction of access to justice? The judicial review case pursued by Unison awaits the decision of the Supreme court, expected by the end of July. The trade union has lost in the High Court and the Court of Appeal, but the Supreme Court may well come to a different conclusion. And if it does, it may strike down the order imposing fees and/or give guidance as to what an acceptable level of fees would be. The ball will then be in the government’s court as to whether it wishes to replace the current regime with something rather less exorbitant. As to the political context, Labour and Liberal Democrats have called in their manifestoes for the abolition of fees. The Scottish Nationalists have refused to implement fees in the devolved tribunal system. The Tories have been silent on the issue in their manifesto, but may not wish to face the taunt that they are denying justice to vulnerable workers over an issue where the financial returns for the government are so tiny.
My prediction, for what it is worth, is that if the Supreme Court nails its colours to the mast of access to justice, employment tribunal fees may either disappear or re-emerge at a greatly reduced level. As to the prospects for the way the Supreme Court will go, that is a much more difficult question. All that can be said with certainty is that there is a better prospect for the amelioration of the fees regime than there has been at any time since their introduction in 2013.
INDIRECT DISCRIMINATION:
DO YOU HAVE TO SHOW THE REASON WHY?
One of the planks of the Unison case on fees has been their discriminatory effect - the trade union case is that fees have a disproportionate impact on women because they inhibit the pursuit of discrimination cases. The argument runs that more women than men bring discrimination cases and that therefore the high level of fees for such cases is indirectly discriminatory.
In an important recent decision, the Supreme Court overruled the Court of Appeal to avoid an unnecessary and illogical hurdle to claims of indirect discrimination. The case in question was that of Essop and Others v Home Office (UK Border Agency)[2017] UKSC 27. The background was as follows. The Home Office requires all staff to sit and pass an assessment in order to become eligible for promotion. The statistics showed that black and minority ethnic candidates were less likely to pass the assessment than white candidates, They also suggested that those over 35 were less likely to pass than younger candidates. However, there was no factor which explained the failure of the groups in question. The Court of Appeal held that the claimant must not only prove a group disadvantage, but must also show why the claimed disadvantage arises.
The claimants appealed to the Supreme Court.There it was held that it was not necessary to establish the reason for a particular disadvantage in order to succeed in an indirect discrimination claim. The essential element which must be proved is the causal connection between the provision, criterion or practice (PCP) and the disadvantage suffered both by the group and by the individual. It would be easier to prove the causal connection if the reason for the disadvantage was known, but that would be a matter of fact, not of law. Mr Essop’s appeal succeeded.
This is a very significant decision, and it is to be welcomed that the Supreme Court was prepared to overrule the Court of Appeal on this matter of public importance. The purpose of the law relating to indirect discrimination is to unearth and remedy discrimination which is generally harder to detect than direct discrimination or harassment. If the claimants are required to provide an explanation as well as proof of detriment, their task becomes virtually impossible in many cases. This decision re-affirms the concept that discrimination (and indirect discrimination in particular) is about what happens to those who suffer the detriment in question, rather than something which happens in the mind of the discriminator. It is worth bearing in mind that indirect discrimination is always subject to a defence of justification where there is a legitimate aim pursued by proportionate means.
DISCRIMINATION ARISING FROM DISABILITY AND UNFAIR DISMISSAL:
IS THE TEST THE SAME?
Disability discrimination has various unique features when compared with discrimination based on one of the other protected characteristics. One such feature is contained in s 15 of the Equality Act 2010, which states:
“15 Discrimination arising from disability
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”
There is no equivalent to the right contained in s 15 for any of the other protected characteristics. In considering a claim under this head, a two-stage approach is required: first, one must identify the “something” that is the reason for the unfavourable treatment, second, one must decide whether that “something” arises in consequence of the disability.
In City of York Council v Grosset (UKEAT/0015/16) G was Head of English at a secondary school. He was disabled, suffering from cystic fibrosis (of which the school was aware). He could not cope with an additional workload imposed on him by the school. This was held by the tribunal to constitute a failure to make reasonable adjustments, and discrimination because of something arising from his disability. There was no appeal from those findings, but the tribunal had gone on to find that his subsequent dismissal had also amounted to unfavourable treatment because of something arising from his disability, and that finding was the subject of an appeal. He had been dismissed for misconduct. He had shown the 18-rated film Halloween to a class of vulnerable 15 and 16 year olds. That was the “something” operating on the respondent’s mind which significantly influenced its decision. The tribunal found that the dismissal was fair because, based on what the employer knew at the time, dismissal was within the range of reasonable responses (the doctrine sometimes judged the employer’s “get out of jail free card”).
However, the tribunal went on to find that the error of judgement and the resulting misconduct arose in consequence of G’s disability. In so deciding, it considered medical evidence which was not before the respondent. It followed that he had been treated unfavourably because of something arising in consequence of his disability. The tribunal considered whether the respondent had made out its defence of justification. The safeguarding of children and maintaining disciplinary standards were legitimate aims, but the respondent had failed to demonstrate that dismissal was proportionate, so that they failed to show justification. The respondent appealed, but the EAT dismissed the appeal. The employment tribunal had correctly determined that the misconduct arose in consequence of G’s disability. The reliance on the medical evidence, which was not available to the respondent at the time of dismissal, was permissible since the exercise of determining causation was an objective one. The tribunal had not erred in its approach to the defence of justification, applying the proper balancing exercise.
In this case, then, the EAT considered that the tribunal had acted properly in applying different tests to the claims for unfair dismissal and discrimination arising from disability. The approach of the Court of Appeal was different in O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145. That was a case which dealt with the much more usual context of a dismissal for long-term absence in the context of disability. Ms O’Brien was dismissed after a year’s absence. She had a fit note stating that she was fit to work by the time of her internal appeal. The tribunal held that the employer should, in the circumstances, have at least made proper enquiries as to whether she was in fact fit to return to work. It held that the dismissal was both unfair as contrary to s 98 of the Employment Rights Act 1996 and unlawful discrimination contrary to s 15 of the 2010 Act. This was, in due course, upheld by the majority in the Court of Appeal. As to the relative tests for s 15 discrimination and unfair dismissal, Underhill LJ had this to say:
“…the basic point being made by the tribunal was that its finding that the dismissal was disproportionate for the purpose of section 15 meant also that it was not reasonable for the purpose of section 98(4). I regard that as entirely legitimate…The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so”.
So where does that leave us? Is the test for unfair dismissal and s 15 discrimination the same in practice or not. Clearly this area is a likely one for further cases to be taken on appeal. One suggestion which seems to offer itself is that in the great majority of cases the test is the same as O’Brien suggests. However, there is a distinction to be drawn where, as in Grosset, there is evidence before the tribunal which was not before the employer at the time that the decision to dismiss was taken. The tribunal was entitled to take that evidence into account because the test of determining causation is an objective one: the question was “did the something which resulted in dismissal arise in consequence of the dismissal?”. It was not whether the employer’s response was reasonable or not. There is a further possible limit to the ambit of the Grosset decision: the consequence of the disability (showing the X-rated film) was a surprising and totally unexpected one such that the employer was able to rely on the range of reasonable responses test without difficulty. In more usual cases, such as those of long-term absence, it makes more sense to follow the reasoning of Underhill LJ and say that a discriminatory decision must surely be unreasonable, and proceed to the conclusion that the dismissal was unfair.
CPD COURSE
I am delivering a course for LawWorks on Advocacy in the Employment Tribunals on 21 June at 6.30 pm. If you are interested in attending, contact Valerie Hudson at LawWorks. The course is free of charge to those who are entitled to attend.
John Sprack
