Employment law

Career breaks

Curr v Marks & Spencer plc [2003] IRLR 74

The central question in this case was whether Ms Curr's continuity of employment was broken because of her four-year absence from work under her employer's 'child break scheme'.

Reversing the decision of the Employment Appeal Tribunal (EAT), the Court of Appeal ruled that continuity was, on the facts, broken.

There was mutuality of obligation (essential for an employment contract to exist) by virtue of Ms Curr being required to work for at least two weeks in each year of the child break.

However, despite the existence of mutuality, the other provisions of the contract were not consistent with it being a contract of employment.

Although Ms Curr was obliged to work for at least two weeks in each year of her absence, she was not told when or where she was to work or how much she would be paid.

The obligation to work for a minimum period each year was qualified by the stipulation that the hours had to be convenient to both parties, but it was not stated what would happen if the parties could not agree.

Moreover, the scheme was not an 'arrangement' within section 212(3)(c) of the Employment Rights Act 1996, so as to preserve continuity during the child break.

For continuity to be preserved on this basis, there must be a mutual recognition that the ex-employee, though absent from work, nevertheless continues in the employment.

Without there being a meeting of minds, section 212(3)(c) will not be satisfied.

An intention that there should be some continuing relationship is not enough.

There must be continuity of employment for some purpose.

The parties might, for example, agree that for pension purposes, the ex-employee is to be treated during a period of absence as continuing in the employment.

However, unless in every week during the relevant period of absence the ex-employee is regarded as continuing in the employment for some purpose, there will be a break in continuity.

A question that the court did not address was whether the employer's failure to explain the implications of agreeing to the child break gave Ms Curr any redress.

Minimum wage

Walton v Independent Living Organisation Ltd, The Times, 27 February 2003

The Court of Appeal held that the decision whether an employee was doing 'time work' or 'unmeasured work' for the purposes of calculating whether the requirements of the national minimum wage had been fulfilled, was a matter of fact for an employment tribunal to decide.

In this case, a tribunal decided that the employee was not paid by reference to the time for which she worked.

There was an evidential basis for that decision and it would not be right for the court to reject that finding.

Medical retirement

Catherall v Michelin Tyre plc [2003] IRLR 61

In the context of a redundancy exercise, an employee agreed to retire on medical grounds.

He claimed that he had been placed under pressure to leave on this basis, but a tribunal ruled that this did not constitute unlawful discrimination on the ground of disability.

The EAT allowed an appeal.

If the choice was between redundancy or retirement on health grounds, the employee was not being asked whether he wanted to terminate his employment, but only how it was to be terminated.

This effectively gave him no choice at all and could in itself be said to amount to a dismissal.

The tribunal should have considered whether the absence of any real choice in such circumstances was the cause of termination or whether (as in Sheffield v Oxford Controls Ltd (1979) IRLR 133) the context merely provided the opportunity for satisfactory terms to be negotiated for termination of employment.

Further, the tribunal erred in failing to decide whether the employer's redundancy selection process amount to a constructive dismissal.

'Dismissal' under the Disability Discrimination Act 1995 includes constructive dismissal.

The reasoning in Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 was preferred to that in Commissioner of Police for the Metropolis v Harley [2001] IRLR 163.

There is no reason why 'dismissal' should be narrowly construed so as to exclude constructive dismissal.

A purposive construction is, according to the EAT, necessary and appropriate.

This view is in line with proposed regulations to implement the European Race Discrimination and Framework Employment Directive.

Compensation for bias

Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102

An employment tribunal awarded compensation totalling more than 250,000 to a probationary police constable who suffered sex discrimination.

This included compensation not only for future loss of earnings, but also 65,000 for injury to feelings, including 15,000 by way of aggravated damages.

The Court of Appeal maintained that the tribunal's original award was so excessive as to constitute an error of law.

Subjective feelings of upset, frustration, worry, anxiety, mental stress, fear, grief, anguish, humiliation, stress, depression and so on, and the degree of their intensity, are incapable of objective proof or of measurement in monetary terms.

As Lord Justice Mummery said: 'Translating hurt feelings into hard currency is bound to be an artificial exercise.'

Nevertheless, tribunals have to do the best they can on the available material to make a sensible assessment.

The EAT said that three broad bands of compensation for injury to feelings (as distinct from compensation for psychiatric or similar personal injury) can be identified:

- The top band should normally be between 15,000 and 25,000.

Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race.

Only in the most exceptional case should an award of compensation for injury to feelings exceed 25,000.

- The middle band of between 5,000 and 15,000 should be used for serious cases which do not merit an award in the highest band.

- Awards of between 500 and 5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off incident.

In general, awards of less than 500 are to be avoided altogether, since they risk being regarded as so low as not to be a proper recognition of injury to feelings.

Tribunal procedures

Gee v Shell UK Ltd [2003] IRLR 82

In this case (decided under the 1993 regulations concerning the procedure of employment tribunals), the Court of Appeal held that a tribunal should only make a costs warning where there is a 'real risk' that an order for costs will be made against an unsuccessful party at the end of the hearing.

The critical question in this case was whether the risk of a costs order being made was sufficiently high to justify the tribunal putting pressure on the applicant to withdraw.

On the facts, the court considered that the pressure put by the tribunal upon a litigant in person was disproportionate to the likelihood of a costs order being made against her.

Practice direction

EAT Practice Direction 2002 [2003] IRLR 65

This practice direction came into force on 9 December 2002.

Its overriding objective is to enable the EAT to deal with cases justly, which includes (so far as is practicable):

- Ensuring that the parties are on an equal footing;

- Saving expense;

- Dealing with the case in ways which are proportionate to the complexity and importance of the issue;

- Ensuring that it is dealt with expeditiously and fairly.

The practice direction as a whole repays careful study by practitioners.

It includes direction as to the responsibilities in respect of preparation of papers for use at the hearing, case management and how to deal with complaints about the conduct of an employment tribunal hearing.

By Martin Edwards, Mace & Jones, Liverpool