Employment law

By Martin Edwards, Mace & Jones, Liverpool

Redundancy and fixed-term workersWhiffen v Milham Ford Girls' School (2001) IRLR 468The Court of Appeal upheld a tribunal's finding that the proportion of women who could comply with the condition of a school's redundancy selection policy - that an employee had to be employed under a permanent contract in order not to have the employment terminated at an early stage - was considerably smaller than the proportion of men who could comply.However, the tribunal had erred in finding that a redundancy selection policy under which employees on fixed-term contracts were dismissed first was justified under the Sex Discrimination Act (because the policy was not inherently discriminatory on the ground of sex, despite its disproportionate impact on women).

What had to be justified in the present case was the condition that those on fixed-term contracts could not avoid redundancy selection, and there was no attempt by the employers to show why it was necessary that only permanent employees were permitted to take part in the selection procedure to avoid redundancy.Compensation for psychiatric injuryH M Prison Service v Salmon (2001) IRLR 425In this interesting case, the employment appeal tribunal (EAT) upheld a tribunal's assessment of damages for psychiatric injury resulting from sexual harassment at 15,000 before discounting that figure by 25% on the basis that her depressive illness was only caused to the extent of 75% by the proved acts of discrimination.The assessment of damages for psychiatric injury caused by unlawful discrimination is a matter of fact to be determined by the tribunal.

The figure of 15,000 was entirely within the range of possible awards in this case and the 25% reduction was appropriate.

The tribunal's assessment was 'inevitably...

very broad'.

On the facts the tribunal was entitled to find aggravating conduct and its award of 20,000 for injury to feelings, including 5,000 aggravated damages, was not so excessive as to constitute an error of law, even though on the high side.

The EAT thought that the overlap between the injury to feelings and the injury covered by the damages for psychiatric injury was not such as to give rise to a substantial degree of double recovery.

In principle, the two types of injury are distinct, but the EAT recognised that in practice they are not always easily separable, giving rise to a risk of double recovery.There is nothing wrong in a tribunal treating 'stress and depression' as part of the injury to be compensated for as 'injury to feelings', provided it identifies the elements in the victim's condition which the award is intended to reflect: 'But where separate awards are made, tribunals must be alert to the risk that what is essentially the same suffering may be being compensated twice under different heads.'ReferencesT Cox v Sun Alliance Life Ltd (2001) IRLR 448This case illustrates the perils of carelessness when giving a reference.

An employee was suspended on pay pending an investigation into alleged misconduct.

He was informed of the gist of the allegations, but they were never fully investigated or discussed with him in detail.There was no evidence of fraud and at no time was he accused of dishonesty.

Eventually, he resigned on terms recorded on ACAS form COT3, including a severance payment and an undertaking by the employers to provide him with an agreed reference.The essence of the agreed reference was that questions about the reason for the termination of his employment would be answered by saying that he had resigned and that any request for additional information would be answered within the spirit of a favourable and bland resum of his career - which made no mention of the dispute which preceded his departure.

He soon found another job, but the employment was terminated after a personnel manager at his former company provided a reference suggesting that he had been suspended pending investigation into alleged dishonesty and that he would have been dismissed but was allowed to resign.

A reference provided to another employer also suggested that his honesty was in issue.

A county court judge ruled that the former employers were not in breach of contract, but that they were liable in negligence which had caused the employee's subsequent employment difficulties.

The Court of Appeal dismissed the employer's appeal because it had breached its duty of care.

Lord Justice Mummery said: 'The essential point about a reference is that it will normally satisfy the requirements of a duty to take reasonable care if it is accurate and fair.

Although it must not contain misleading information or create a misleading impression, the reference does not, as a general rule, have to provide a full and comprehensive report on all the material facts concerning the subject.' His Lordship recognised that careful ex-employers face a dilemma in cases of this kind.

He suggested that some guidance may be found in unfair dismissal law; in making reasonable inquiry into the factual basis of the statements in the reference, it is appropriate to take a similar approach to that set out in British Home Stores Ltd v Burchell (1978) IRLR 379.

An employer should confine unfavourable statements about the employee to those matters into which he has made reasonable investigation and has reasonable grounds for believing to be true.

If an investigation is discontinued, unfavourable comments should be confined to matters that were investigated before the employee's departure.

As a practical matter, Lord Justice Mummery said that: 'In a case where the terms of an agreed resignation or of the compromise of an unfair dismissal claim make provision for the supply of a reference, the parties should ensure as far as possible that the exact wording of a fair and accurate reference is fully discussed, clearly agreed and carefully recorded in writing in a COT3 at the same time as other severance terms.'Sexual orientationSecretary of State for Defence v MacDonald (2001) IRLR 431The Court of Session has, by a majority, allowed an appeal against the controversial decision of the EAT in this case, reported at (2000) IRLR 748.

For the purpose of section 1(1) Sex Discrimination Act, treatment 'on the ground of ...

sex' does not include discrimination on the ground of sexual orientation.

The relevant circumstances for the purpose of section 5(3) of the Act was that the applicant was employed in the armed forces and was sexually attracted to persons of his own sex.

The appropriate comparator was a woman employed in the armed forces who was sexually attracted to members of her own sex, rather than a comparison with a heterosexual woman who was attracted to men.

Since a homosexual woman would similarly have been required to resign, it followed that the applicant was not discriminated against contrary to the Act.

ImpartialityR v Chief Constable of Merseyside Police, ex parte Bennion (2001) IRLR 442The Court of Appeal decided that a judge erred in holding that the chief constable acted unlawfully and in breach of judicial impartiality by hearing disciplinary charges against a police officer when he and she were also opposing parties in a pending sex discrimination case, which included a complaint in relation to the disciplinary charges.It could not be accepted that in every case where a police officer is proceeding against the chief constable in the tribunal, the chief constable must disqualify himself, on grounds that he would be sitting as a judge in his own cause, from adjudicating in any disciplinary proceedings where the outcome would have any bearing on the tribunal proceedings.