The Court Of Public Opinion

In the case Saggar v Ministry of Defence [2005, it was held that an overseas based employee of a British business, who was a UK resident when recruited or at any time during the course of the employee?s employment, is entitled to bring a discrimination claim in the UK. The claim can be brought even if the employee did no further work in Britain after the move overseas.

After 16 years at a Ministry of Defence base in Britain, Lieutenant Colonel Surinder Nath Saggar was permanently stationed in Cyprus from 1998 and was still there when he made a claim for race discrimination.

The Employment Tribunal decided that Lieutenant Saggar worked wholly outside Britain and could not file a race discrimination claim in Britain. He appealed against this decision to the Employment Appeals Tribunal (?EAT?).

The EAT dismissed the appeal and held that:-

▪In order for Lieutenant Saggar?s claim to succeed, the EAT would have to look at the whole of his employment from 1982 onwards, and that would be ?absurd?;

▪ The EAT was bound by the decision of the Court of Appeal in the case of Carver v Saudi Arabian Airlines [1999 where for the purposes of establishing whether or not a tribunal has jurisdiction to hear a claim, it is necessary to consider whether, at the time of the alleged discrimination, the claimant was wholly or mainly working in Great Britain;

▪ Accordingly, at the time of the alleged discrimination, Lieutenant Saggar worked wholly in Cyprus.

The case went to the Court of Appeal and it was decided that: -

▪The relevant period for determining whether a claimant worked wholly or mainly outside Great Britain is the whole period of employment;

▪ This approach was supported by the wording in s 8(1) of the Race Relations Act 1976; and

▪ This decision applied equally to all employees even though a person serving in the Armed Forces is not an employee as there is no contract of service.

The matter was remitted to a different tribunal to determine the issue of jurisdiction in accordance with the Court of Appeal?s judgment.

Comment: This is a significant decision in favour of employees. This means that in many cases where employees are posted abroad they are entitled to bring employment claims in the UK. In practice, as well as complying with the rules of the country where employees are working, it would be sensible for employers to apply English employment law standards as well. Please contact us for more information: enquiries@rtcoopers.com

? RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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The case of Webster v Brunel University [2004, was recently decided by the Employment Appeal Tribunal (‘EAT’). The applicant, Webster, was employed by Brunel University as a helpdesk officer providing Information Technology support to the administrative staff of the respondent, Brunel University. The applicant brought proceedings in the employment tribunal against the respondent, claiming racial discrimination.

The tribunal dismissed her complaints. The applicant appealed in respect of the dismissal of one of her complaints, namely that whilst she was giving advice over the telephone she heard laughter in the background and the word ‘Paki’ was mentioned. She claimed racial discrimination and contended that Brunel University was vicariously liable.

Section 54A (1) of the Race Relations Act provides:

‘This section applies where a complaint is presented under s 54 and the complaint is that the respondent (a) has committed an act of discrimination, on grounds of race … which is unlawful (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent (a) has committed such an act of discrimination against the complainant the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act’.

The applicant claimed the following:

Once the tribunal had found that the word ‘Paki’ was used, it had erred in leaving the onus on the applicant, to establish that there had been unfavourable treatment on grounds of race;

Further, the tribunal having left the onus on the applicant to establish unfavourable treatment and by looking at all the facts had simply decided that she had not proved her case;

That the tribunal should at least have considered transferring the onus of proof to the respondent;

That the tribunal ought to have concluded that there could have been discriminatory treatment by Brunel University because the alleged treatment could have been by an employee of the University. Once it concluded discriminatory treatment the tribunal should have transferred the onus from the applicant to the respondent.

The University contended that before the onus of proof could transfer to the respondent:

It was necessary for the applicant to establish that there was unfavourable treatment by the respondent; and Only then could inferences be drawn that that treatment was discriminatory on grounds of sex or race. The EAT allowed the appeal. The EAT ruled that the onus of proof transferred to the respondent once the applicant had established a prima facie case that there had been a discriminatory act by the respondent.

The EAT held that in future tribunals should apply the same prima facie test as applied to all questions relating to race and sex discrimination. In particular, where the treatment complained of by an applicant, amounted to sexual or racial discrimination and, was carried out by an employee of the respondent.

The Tribunals should in future direct themselves that once the facts had been found on the balance of probabilities, from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed such an act, then the tribunal would uphold the complaint unless the respondent proved that it had not committed the act or, that the respondent was not vicariously liable for the employee that had committed the act.

The case was remitted to a fresh tribunal to consider:

Whether there was a prima facie case of unfavourable treatment by the respondent by someone for whom the respondent was vicariously liable; and If so, upon the burden of proof passing from the applicant to the respondent, whether the respondent could establish that there was no unfavourable treatment, significantly influenced by race, of the applicant, by one of its employees.

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? RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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The recent case of Corbett v Superdrug Stores Plc [2006, addressed how to calculate the award for an employment dispute. The employee had been working for the employer for more than 10 years when she was unfairly dismissed. She brought her case before the Employment Tribunal and was awarded the sum of ?1,420 for loss of her statutory rights. However, the Tribunal neglected to give an explanation as to why that figure was reached.

The main problem was that it was not made clear how that figure was reached. There were three potential reasons why the Tribunal awarded her that amount:

* It was compensation for the loss of protection against unfair dismissal which it would have taken the employee until 17 May 2006 to acquire; or

* It was compensation for the loss of the right to long notice which she had built up with the employer and did not receive; or

* Both.

The employer appealed against the amount awarded to the Employment Appeals Tribunal (?EAT?). It argued that the Tribunal had erred in awarding the sum of ?1,420 for ?loss of statutory rights?. The employer said that in making this award the Tribunal had used the conventional label for compensation for loss of protection from unfair dismissal and such an award normally attracted an award of around ?250. By awarding the employee ?1,420 the Tribunal had wildly exceeded its discretion, perhaps due to undue sympathy for the employee.

The employee submitted that the Tribunal had acted within its powers and that the sum of ?1,420 was awarded to reflect the fact that she had lost her statutory rights. Considering she had been employed for over 10 years, she believed that she was entitled to 10 weeks notice which would take a further 10 years to build up again, and therefore the award was justified.

The appeal was allowed. The EAT ruled that the Tribunal had failed to explain why it had reached the conclusions which it had and had awarded almost six times the usual amount of compensation without an appropriate justification. Although the employee had been employed for more than 10 years and would have accordingly been entitled to compensation for the loss of the right to long notice, it was not appropriate to calculate the amount by applying the simple arithmetic multiplier which was relied upon by the Tribunal. In addition, there were no submissions made by the employee before the Tribunal regarding loss of right to long notice, and therefore an award should not have been made in this regard.

The EAT ruled that the award would be recalculated by the same Tribunal after hearing the appropriate submissions.

? RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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In the case Saggar v Ministry of Defence [2005, it was held that an overseas based employee of a British business, who was a UK resident when recruited or at any time during the course of the employees employment, is entitled to bring a discrimination claim in the UK. The claim can be brought even if the employee did no further work in Britain after the move overseas.

After 16 years at a Ministry of Defence base in Britain, Lieutenant Colonel Surinder Nath Saggar was permanently stationed in Cyprus from 1998 and was still there when he made a claim for race discrimination.

The Employment Tribunal decided that Lieutenant Saggar worked wholly outside Britain and could not file a race discrimination claim in Britain. He appealed against this decision to the Employment Appeals Tribunal (EAT).

The EAT dismissed the appeal and held that:-

▪In order for Lieutenant Saggars claim to succeed, the EAT would have to look at the whole of his employment from 1982 onwards, and that would be absurd;

▪ The EAT was bound by the decision of the Court of Appeal in the case of Carver v Saudi Arabian Airlines [1999 where for the purposes of establishing whether or not a tribunal has jurisdiction to hear a claim, it is necessary to consider whether, at the time of the alleged discrimination, the claimant was wholly or mainly working in Great Britain;

▪ Accordingly, at the time of the alleged discrimination, Lieutenant Saggar worked wholly in Cyprus.

The case went to the Court of Appeal and it was decided that: -

▪The relevant period for determining whether a claimant worked wholly or mainly outside Great Britain is the whole period of employment;

▪ This approach was supported by the wording in s 8(1) of the Race Relations Act 1976; and

▪ This decision applied equally to all employees even though a person serving in the Armed Forces is not an employee as there is no contract of service.

The matter was remitted to a different tribunal to determine the issue of jurisdiction in accordance with the Court of Appeals judgment.

Comment: This is a significant decision in favour of employees. This means that in many cases where employees are posted abroad they are entitled to bring employment claims in the UK. In practice, as well as complying with the rules of the country where employees are working, it would be sensible for employers to apply English employment law standards as well. Please contact us for more information: enquiries@rtcoopers.com

RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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In the recent case of Famy v Hilton UK Hotels Ltd [2006, an employee complained of discrimination in relation to promotion opportunities. The employee was of Filipino background and had been employed as a bar supervisor in central London from June 1984 to October 2004. During this time the position of bar manager became available several times. However, it was always external applicants who were appointed. The vacancies were advertised externally and internally. When the positions had become available, the employee had not formally applied for them and subsequently had not been considered for promotion.

On one occasion in 2000, the employee applied for a vacancy as a bar manager. He was informed that the position no longer existed due to the restructuring of the catering department. Following the restructuring in 2004, the position was again advertised both externally and internally. This new position was for the management of three bars which existed within the hotel. The employee expressed a desire to take on the management of the cocktail bar, but no such position existed. The employer said that bar manager role was for all three bars. As the employee did not want to manage all three, he did not apply for the role.

The employee then commenced grievance proceedings against the employer and resigned in early December 2004. He complained that he had been continually overlooked for the position as bar manager. He issued proceedings before the Employment Tribunal (Tribunal). He argued the following:

* The failure to promote him to bar manager was due to racial discrimination by the employer; and

* The grievance procedure was tainted by racial discrimination.

The Tribunal ruled against the employee as there was insufficient evidence to prove racial discrimination by the employer. The employee subsequently appealed to the Employment Appeals Tribunal (EAT). The appeal was dismissed.

The EAT found the following based on the facts presented before them:

* The positions had been advertised both internally and externally

* The applicants who had been assigned to the positions had actually applied for them

* The employee had not applied for those positions; and

* When the employee had applied for the position of bar manager, the position did not exist.

The EAT held that the applicants who had been appointed to the positions would have been treated in the same way as the employee. In those circumstances, the employee failed to make out a case for racial discrimination. The Tribunal was entitled to rule that there was no discrimination.

RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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The recent case of Corbett v Superdrug Stores Plc [2006, addressed how to calculate the award for an employment dispute. The employee had been working for the employer for more than 10 years when she was unfairly dismissed. She brought her case before the Employment Tribunal and was awarded the sum of 1,420 for loss of her statutory rights. However, the Tribunal neglected to give an explanation as to why that figure was reached.

The main problem was that it was not made clear how that figure was reached. There were three potential reasons why the Tribunal awarded her that amount:

* It was compensation for the loss of protection against unfair dismissal which it would have taken the employee until 17 May 2006 to acquire; or

* It was compensation for the loss of the right to long notice which she had built up with the employer and did not receive; or

* Both.

The employer appealed against the amount awarded to the Employment Appeals Tribunal (EAT). It argued that the Tribunal had erred in awarding the sum of 1,420 for loss of statutory rights. The employer said that in making this award the Tribunal had used the conventional label for compensation for loss of protection from unfair dismissal and such an award normally attracted an award of around 250. By awarding the employee 1,420 the Tribunal had wildly exceeded its discretion, perhaps due to undue sympathy for the employee.

The employee submitted that the Tribunal had acted within its powers and that the sum of 1,420 was awarded to reflect the fact that she had lost her statutory rights. Considering she had been employed for over 10 years, she believed that she was entitled to 10 weeks notice which would take a further 10 years to build up again, and therefore the award was justified.

The appeal was allowed. The EAT ruled that the Tribunal had failed to explain why it had reached the conclusions which it had and had awarded almost six times the usual amount of compensation without an appropriate justification. Although the employee had been employed for more than 10 years and would have accordingly been entitled to compensation for the loss of the right to long notice, it was not appropriate to calculate the amount by applying the simple arithmetic multiplier which was relied upon by the Tribunal. In addition, there were no submissions made by the employee before the Tribunal regarding loss of right to long notice, and therefore an award should not have been made in this regard.

The EAT ruled that the award would be recalculated by the same Tribunal after hearing the appropriate submissions.

RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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In the recent case of Mehta v University of London and others [2006, the applicant was a doctor who applied to the second respondent for medical training on 8th August 2003. The second respondent was a body within the University of London (the first respondent). On 6th October the applicant received a letter from the second respondent dated 2nd October. The letter stated that his application had been unsuccessful. The applicant claimed that he wrote back on 12th December to ask for detailed feedback as to why he had not been admitted to establish whether he had a legal claim against the respondents. He received no reply, and the second respondent claimed that no such letter was received.

The applicants original application was presented to the Employment Tribunal on 13th January 2004 he claimed discrimination and victimisation. On 17th January the Employment Tribunal dismissed the claim orally on the ground that it had been presented after the three month time limit. The Employment Tribunal also said it would not be just and equitable to extend the time limit. In addition, at a full hearing on 4th March, it was considered whether the other claims made by the applicant should be struck out due to the Employment Tribunal not having jurisdiction to hear them. Eventually, at the full hearing, the Employment Tribunal decided against the applicant who promptly stormed out of the room.

The respondents made an application for costs. The tribunal declined to consider the costs application in the absence of the applicant, and adjourned the case until 20th May. When the case came to be heard, one of the lay members who was present on 17th and 4th was absent, and the applicant was not happy to proceed with just two members.

A new lay member was appointed and the Employment Tribunal heard oral and written evidence from both sides, as well as a witness statements and oral evidence from the applicant.

The Employment Tribunal held that the costs of the hearings on the 4th and 20th were attributable to applicants unreasonable conduct in bringing his remaining claims which were both misconceived and unreasonable. The applicant appealed to the Employment Appeals Tribunal.

His appeal was dismissed for the following reasons:

* For the purposes of the three month time limit, time ran from the date of the act of discrimination or victimisation. The act which the applicant was relying on in bringing the claim was the failure by the respondent to shortlist him for a position on the training course. This occurred at the very latest by 6th October, when he received the letter rejecting him. As the original application was presented to the Employment Tribunal only on 13th January, the deadline had been missed and the Employment Tribunal had not erred in treating the application as being out of time.

* It was clear that the Employment Tribunal had considered not proceeding with the claim. They decided that in the interests of the overriding objective they should appoint a new lay member in order to dispose of the issues before them fairly and expeditiously. The new Employment Tribunal heard extensive and new submissions from the applicant. This meant it was not inappropriate for them to consider the issues of fact relating to the March hearing, despite the Employment Tribunal being made up of only two of the original three members.

RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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In the case of Atchoe v Camden Primary Care Trust [2006, the issue of unauthorised deduction of wages was heard before the Employment Tribunal. The employee worked in maintenance for the employers estates and facilities directorate. In addition, the employee was also occasionally employed out of hours when an emergency arose. This was an on-call system and was organised on a rota basis. If an employee took part he or she would receive additional payments for being on-call. If an employee was called out in an emergency he or she then received further payment for work carried out.

The employees contract stipulated a number of things:

* He had to show evidence that he held the technical qualifications required to work in the position of maintenance worker

* He was expected to take part in the on-call system; and

* The employer retained the right to vary the terms of his employment.

The employer asked the employee to show evidence of his qualifications. It came into question whether the employee was able to provide this evidence. As a result of this, the employer removed the employee from the rota for the on-call system on the grounds of safety. The employee therefore no longer received the extra payment for being on-call.

The employee relied on s13 of the Employment Rights Act 1996 and claimed that the employer had unlawfully deducted from his pay.

The Employment Tribunal held that the employer had been entitled to remove the employee from the rota on the grounds of safety. However, it was not entitled to deduct from his pay. The Tribunal had based its decision on three authorities upon which the parties had not relied nor made submissions. The employer appealed to the Employment Appeals Tribunal (EAT).

The employer submitted that the Tribunal had erred in its application of s13(3). Having found that the employer was entitled to remove the employee from the rota, the Tribunal should have found that the employer was entitled to deduct from the employees pay. As the employee was removed from the rota, he should not have continued to be paid. In addition, the employer argued that the Tribunal should not have relied on three authorities supporting its judgment upon which the parties had not had any opportunity to make submissions.

The appeal was allowed for the following reasons:

* The Tribunal should not have relied on any authority which the parties did not have an opportunity to make a submission. There had therefore been a material irregularity in the proceedings as neither the employer nor the employee had even mentioned the three authorities.

* The Tribunal had erred in its application of s13(3).

* The Tribunal should have concluded that there had been no unauthorised deduction of pay by the employer. If the employer was legally able to remove the employee from the rota, the employee was no longer entitled to the extra pay.

The decision would therefore reversed.

RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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In the case of Vaseghi and another v. Brunel University and another [2006, the employees made separate complaints of race discrimination and claimed compensation against their employer. Settlement discussions began before an initial set of tribunal hearings in 2004, however, no settlement was reached.

Following the initial hearings, the employer released a quarterly newsletter which outlined that it was spending a large amount of money on defending employment claims. It made particular reference to two tribunal hearings which had cost in excess of 60,000. It also criticised employees and the trade union for pursuing unfounded allegations and making unwarranted demands for money. The two employees lodged grievances in response to the newsletter. They claimed the following:

* The employer had initiated the attempts at settlement;

* The employer had raised the prospect of financial settlement; and

* The newsletter had amounted to victimisation.

The grievance committee heard oral evidence on the discussions between the parties in their attempts to reach a settlement, however, it was decided that the grounds for the grievance had not been established. The employees then began new tribunal proceedings.

At the new hearings the employer challenged the admissibility of the evidence relied upon before the grievance committee by the employees. The employer argued that the evidence concerning the settlement discussions were protected by without prejudice privilege. The tribunal concluded in favour of the employer, and held that the evidence should have been inadmissible. It should be noted however that the tribunal also held that the references to the discussions in the grievance committees report would be admissible. If they were not, the case for the employees would be prejudiced. The employer appealed and the employees cross appealed.

The employer submitted that the references to the discussions in the grievance committees report should have benefited from the without prejudice privilege. They argued that the privilege was of more importance than the due administration of justice in relation to putting the case of the employees under severe prejudice.

The employees submitted that they should be allowed to use the references to the discussions in the grievance committees report, as that was the only evidence of what happened in the settlement discussions in support of their victimisation claims. They claimed that the allegations of unwarranted demands for money were not supported by what had occurred in the settlement discussions. Therefore, they argued that they should have been able to rely on the settlement discussions, despite them technically being subject to the without prejudice privilege, because there was an overriding public interest in eradicating the evils of victimisation. If they could not rely on the evidence they would not be able to present their case for victimisation.

The employment appeal tribunal held that the employees claims would have been too severely hampered were they not permitted to rely on the settlement discussions as evidence against the allegations that they had not made unwarranted demands for money. The employer, through the publication of the newsletter had brought the matter into the public domain, and subsequently could not rely on the without prejudice privilege. To prevent the employees from relying on the evidence in support of their victimisation claims would have been a clear abuse of a privileged occasion. The eradication of discrimination and victimisation was deemed more important than the protection of the without prejudice privilege. Therefore the appeal was dismissed and the cross appeal allowed.

RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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The defendant resigned and found employment with one of the claimants competitors. Shortly after her resignation, the claimant discovered that the defendant had sent three e-mails to her personal e-mail account prior to leaving the company. The e-mails concerned:

* Presentations she had made to the claimants customers;

* Feedback which customers had given in relation to the claimants services; and

* Prices of the claimants products.

The claimant was of the opinion that the information contained in the e-mails was confidential and therefore violated the terms of the defendants contract of employment. The claimant confronted the defendant with its discovery.

The defendant said that she had sent the e-mails to her personal e-mail account in error, and offered to let the claimant view her personal e-mail account to show that she had not breached the terms of her contract. The claimant tried to persuade the defendant to stay in its employment, but was unsuccessful.

The claimant then instructed its solicitors to write to the defendant alleging that the defendant had breached the terms of her employment which amounted to breach of confidence. The claimant also requested the return of all its materials which were in the defendants possession. The defendant replied to the letter stating that the e-mails were not sent to anyone else, and that once the error had been discovered, she had not even opened them.

The claimant did not respond to her letter. They instead issued proceedings against her and applied for an interim injunction. They alleged that the sending of the e-mails to her personal account amounted to her using confidential information in contravention to her contractual obligations. They also alleged that by her failing to immediately return their materials, she had further breached the terms of her contract.

The claim was dismissed. The court held the where the e-mails had remained unopened the confidential information had not been used in a way which amounted to breach of confidence. Although she had not immediately returned the materials, she had previously offered the claimant the permission to view her personal e-mail account and to delete the e-mails relating to the claimants confidential information.

In addition to this, the court held that the information which was the subject of the claimants complaint was utterly innocuous and that the claimant had reacted totally disproportionately. The matter should not have been taken to court and the defendants undertakings had been adequate.

RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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