Max Lansman and Ryan Anderson look back at some of the practice and procedure highlights from employment tribunals and the EAT in the past year.
Three disclosure cases are worth noting from 2021. The first, in the EAT, issued a timely reminder of the relevant test to be applied in disclosure cases.
The case, Tesco Stores Ltd v Element, concerned equal value claims brought by around 9,000 employees. The claimants were hourly paid, store-based employees (or former employees) who were predominantly female.
They claimed their work was of equal value to that of workers based in Tesco’s Distribution Centres, who were predominantly male (the comparators) and who enjoyed terms and conditions that were more favourable than the claimants’ terms, contrary to equal pay law.
After initial disclosure, the claimants made an application for further disclosure and information from Tesco on how much comparators are paid and what work they do, so that they could identify specific, appropriate comparators. Tesco resisted on the grounds it would be onerous. The tribunal ordered the disclosure.
On appeal, an issue arose as to whether the claimants needed to establish a prima facie case, which must cross an ‘evidential threshold’ by adducing ‘credible evidence’ to support the claim. To support this argument, Tesco relied on the EAT’s judgment in Leverton v Clwyd CC, an equal pay case using the phrase prima facie case.
Choudhury P dismissed Tesco’s appeal, and set out at para 28 a helpful summary of the law governing the tribunal’s powers as to disclosure:
- the tribunal’s powers under rule 31 (now rule 29 following Sarnoff, below) of the ET Rules are coterminous with those of the court under CPR 31;
- as such, the guiding principle is not relevance but whether the documents are relied on by a party, or are likely to support or be adverse to a party’s case. A document falling within that description will be relevant;
- if relevance in that sense is established, the test for making an order for disclosure is whether it is necessary for the fair disposal of the proceedings; and
- the tribunal has a discretion as to whether to order disclosure. Such discretion must be exercised in accordance with the overriding objective.
Any concerns that the absence of a prima facie evidential threshold would enable purely speculative claims containing nothing more than assertion to seek futile disclosure are unfounded – they can be addressed by a strike-out or deposit application, or by failing the relevant test (ie, disclosure is not necessary for the fair disposal of proceedings).
The second case, Sarnoff v YZ – satellite litigation in the Harvey Weinstein case – concerned whether the tribunal has the power to order disclosure against a person who is not ‘in Great Britain’. The appellant, one of the respondents in the tribunal, who lives and works in California, argued that the tribunal’s power to make a disclosure order derives only from rule 31 Employment Tribunal Rules of Procedure 2013, which reads in relevant part: ‘31. The tribunal may order any person in Great Britain to disclose documents or information …’ (emphasis added).
The respondent (the claimant in the tribunal) argued that rule 31 applies only to disclosure against non-parties – disclosure against parties is governed by the tribunal’s general case management power in rule 29. Underhill LJ, in the Court of Appeal, agreed with the claimant, not least due to the absurd result that would otherwise ensue, ie, ‘many thousands of wrong orders for disclosure’ against parties outside the UK would have been made, and parties would be able to avoid disclosure obligations by going abroad.
In Abbeyfield (Maidenhead Society) v Hart, Bourne J, in the EAT, held that an email from the respondent to their HR consultants stating, ‘Mr Hart’s rudeness and gross insubordination has caused major problems to both Donna and Shirley and this cannot be allowed to continue any longer. He will not therefore be returning to Nicholas House under any circumstances’ (para 13, page 4), did not contain a request for advice (or advice) on how to act illegally and as such it did not fall within the iniquity exception to litigation privilege, whereby communications which would otherwise be privileged must nevertheless be disclosed.
Although it contained an indication by the employer of a determination to dismiss the employee come what may, the employer did not seek and the adviser did not give advice on how to act unlawfully. This was the kind of ‘frank instruction that a party may feel able to give in a privileged communication’ (para 48, page 12).
As such, it was covered by litigation privilege and was inadmissible.
Since summer 2021, there have been three EAT cases on anonymisation orders, which it is important to read together.
TYU v ILA SPA Ltd dealt with a non-party’s rights to anonymity. The EAT held that the Article 8 rights of a non-party were engaged by an employment tribunal judgment identifying her and mentioning allegations against her of (inter alia) witness intimidation and fraud. The fact that a non-party has not chosen to be involved in proceedings is relevant to the engagement of their Article 8 rights because it bears on whether the publicity of a judgment was a foreseeable consequence of their own actions. The fact that information has already been mentioned in open court does not preclude Article 8 rights being engaged by the repetition of the information in a judgment, and is less significant where the applicant relies on the ongoing and future impact of the repetition on their reputation, rather than the information being private. The EAT granted the non-party anonymity.
In contrast, relying on damage to reputation did not assist the claimant in A v Burke and Hare. In that case, the EAT held that damage to reputation the claimant – a former stripper – claimed she would suffer by being identified was not sufficient in itself to displace the presumption of open justice, being an ordinary consequence of litigation. Evidence of something more – such as risk of verbal insult, injury, handicap on the labour market or injury to mental health – must be provided.
There was, however, an important postscript. The emphasis on open justice is greatest in relation to a substantive hearing and it did not preclude the making of an anonymisation order in relation to a preliminary application for anonymity where the claimant chose to discontinue her claim before it reached final hearing, as here.
The postscript in Burke and Hare highlights that additional protections on anonymity may be available at private preliminary hearings, but the latest judgment in the long-running case of Ameyaw v Pricewaterhousecooper Services Ltd makes clear that will not always be the case. The EAT held the fact that a judgment criticised the claimant’s misconduct at a ‘private’ preliminary hearing was no ground for anonymising it. The ‘privacy’ of a hearing, ie, one from which the public is excluded, cannot be conflated with a litigant’s ‘private life‘, and it is foreseeable that those who misconduct themselves at tribunal hearings – even private ones – will have their misconduct set out in a public decision.
Time limits (discrimination)
In Adedeji v University Hospitals Birmingham NHS Foundation Trust, the Court of Appeal clarified the approach to extensions of time in discrimination cases under Equality Act 2010 s.123. The claim had been brought three days out of time; the tribunal and EAT refused an extension. The Court of Appeal agreed. In addressing the correct approach, the court rejected the continuing influence of British Coal Corp v Keeble, which has been incorrectly read as stating that certain potentially relevant factors from Limitation Act 1980 s.33 should be used as a checklist or framework (known as ‘the Keeble factors’) for the tribunal when making EA 2010 s.123 decisions. It said the best approach for tribunals considering exercising the s.123 discretion is ‘to assess all the factors in the particular case which it considered relevant to whether it was just and equitable to extend time’ including in particular the length of, and the reasons for, the delay.
De Lacey v Wechseln Ltd t/a Andrew Hill Salon highlights the potential importance of seemingly historic discrimination allegations. The claimant claimed sex/maternity discrimination and constructive unfair dismissal, relying on the same allegations for each claim including a last straw event in 2017 and two particular incidents in 2015.
The tribunal held that the two 2015 incidents established prima facie discrimination, but rejected them as out of time while upholding constructive unfair dismissal. The EAT held that the tribunal erred in failing to consider whether the constructive dismissal was itself discriminatory because of the 2015 incidents. It noted that a ‘last straw’ constructive dismissal can be discriminatory if some of the matters relied upon are acts of discrimination, and the discriminatory acts ‘sufficiently influenced’ the overall repudiatory breach (para 68, citing Williams v Governing Body of Alderman Davies Church in Wales Primary School).
Where there is a discriminatory constructive dismissal, time runs from the date of the acceptance of the repudiatory breach, not from the date of the discriminatory events, if earlier. While the 2015 events were out of time for the purposes of a free-standing discrimination claim, they were in time (or not ‘disregarded’) for the purposes of a discriminatory constructive dismissal claim (see para 72).
Moore Stephens LLP v Parr (unreported 24 June 2021) is a reminder of the distinction between a discriminatory course of conduct (for which conduct is treated as done at the end of the period within which the conduct took place, for limitation purposes) and a one-off discriminatory act with continuing effects (where time starts to run from the discriminatory act). More narrow is the distinction between the continuing application of a discriminatory rule or policy to a claimant, and the continued existence of such a rule or policy and its one-off application to a claimant (with continuing effects). This is one to watch as the claimant appealed to the Court of Appeal, which heard the case on 16 December last year.
The claimant was an equity partner. The firm had a normal retirement age of 60 for partners, subject to a discretion on the part of the managing partner to disapply it. Upon reaching 60, the claimant was allowed to continue on the basis of becoming an ordinary (non-equity) partner. He accepted, but shortly after discovered the firm was to be part-sold and, as a non-equity partner, he was not entitled to any sale proceeds. He therefore brought a claim for age discrimination, alleging losses in relation to the sale proceeds.
The tribunal considered the firm’s conduct to have extended over a period. The EAT disagreed, focusing on the discretion set out at para 29.4 of the firm’s members’ agreement: an equity partner could be allowed to continue as so beyond 60, and the firm had allowed that to happen in the past with others but had exercised its discretion differently in respect of the claimant. The discretion was a genuine one: demotion at 60 was not certain. Therefore, there was no continuing application of a discriminatory rule/policy to the claimant. Rather, there was a one-off decision to make a permanent change in status to the claimant’s status from equity partner to normal partner.
This article was written for, and first published, in the Employment Lawyers Association Briefing for January/February 2022.