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Suzanne Horne

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Employment law takeaways for January


Employment law takeaways: our bitesize legal updates for busy HR professionals, provided by Suzanne Horne of Morrison and Foerster. This month; a Polkey reduction, six years to bring an equal pay claim and the BBC is in trouble… again.

  1. Arhin v Enfield Primary Care Trust  – Unfairly dismissed employee gets no compensation due to Polkey reduction
  2. Abdullah and Ors v Birmingham City Council  – Out of time equal pay claims can be brought in High Court 
  3. Daniels v British Broadcasting Corporation  – Capability procedure comments not defamatory 

Arhin v Enfield Primary Care Trust – Unfairly dismissed employee gets no compensation due to Polkey reduction

Dr Arhin worked for the Trust until 30 June 2007 when she was dismissed by reason of redundancy. She successfully brought a claim in the ET for unfair dismissal.

The ET found that although there had been a genuine redundancy situation, the Trust had acted unfairly by failing to put her colleague in the pool so as to enable a competitive selection procedure to take place.

The Trust had simply ‘mapped’ the other doctor into the new post.  At the remedies hearing on 15 June 2009, the ET refused reinstatement or reengagement. It also made no compensatory award as the ET held that Dr Arhin “simply had no chance of achieving the post in a competitive selection process”. Therefore, the ET made a 100% deduction under the Polkey principle.

The ET held that even if the two doctors had been correctly put in the pool of selection, Dr Arhin’s director would have been central to the decision as to which doctor should be appointed and he would not have chosen Dr Arhin. Further, Dr Arhin’s failure to attend the redundancy process meetings meant that there was no prospect of a proper working relationship between them and that Dr Arhin would have been dismissed in any event by reason of her ill-health.

Dr Arhin appealed to the EAT and the Court of Appeal but each of her appeals was dismissed.  Therefore, although she had a finding of unfair dismissal, she was not entitled to any compensation.

Takeaway: This case shows the dramatic, and potentially harsh, effect of the Polkey reduction. It also illustrates the need for clear job descriptions and the danger for HR of not taking the time to consider the pool of selection properly when planning a restructuring exercise. Whilst the employer did well in not having to pay a compensatory award on this occasion, it still had to pay the legal costs of defending a claim up to the Court of Appeal. 

Abdullah and Ors v Birmingham City Council – Out of time equal pay claims can be brought in High Court 

The High Court has held that 174 equal pay claims against a Council can be brought as breach of contract claims in the High Court even though they would be out of time in the ET.

Under the Equality Act 2010 and the former Equal Pay Act 1970, an equal pay claim must generally be brought in the ET within six months of the end of employment. However, the equal pay legislation operates to imply an equality clause into the contract of employment. Therefore, equal pay claims are in effect breach of contract claims.  Under the civil court rules, a claimant has six years to bring a breach of contract claim. 

The High Court has a discretion to strike out a claim where it could be more conveniently disposed of in the ET.  In this case, the High Court held that it would not exercise its discretion to strike out the claims as this would mean the claims in the ET would be out of time. Therefore, the claims will proceed to a full court hearing.

Takeaway: This case will be worrying for HR and employers given that it means that employees will have up to six years to bring an equal pay claim. They will also have a choice as to whether to bring their claims in the ET or the High Court but it does mean that both parties are at risk as to legal costs as the losing party usually has to pay the other side’s costs in the civil courts.

Daniels v British Broadcasting Corporation – Capability procedure comments not defamatory

Dr Daniels worked for the BBC on a five month fixed-term contract in an administrative role. After he had been working there for two months, he was invited to a meeting with his managers. At the meeting on 7 January 2010, Ms Eagle informed Dr Daniels that there were three specific areas of concern in respect of his performance which he needed to address or his employment would be terminated on the grounds of capability.

After the meeting, she emailed Dr Daniels to summarise their meeting and set him objectives. Ms Eagle informed him that there would be a further meeting in two weeks time and that she would gather feedback from his colleagues. The following day, Dr Daniels sent an email of complaint to senior managed but they refused to intervene. Dr Daniels then prepared a document responding to the objectives. On 22 January 2010, Ms. Eagle and two HR representatives met with Dr Daniels.

At that meeting, he was presented with a feedback schedule compiled by her. The document contained 13 comments about his performance by other members of his team over the period from 11 January 2010 to 19 January 2010. Dr Daniels reacted badly. On 29 January 2010, he was given notice of termination. He appealed and in doing so he strongly criticised the colleagues. When his appeal was set up, he then complained that the decision-maker was inappropriate. 

On 2 March 2010, the appeal hearing took place. On 31 March 2010, Dr Daniels was told that his appeal was unsuccessful. There then followed a series of letters before action. On 23 June 2010, Dr Daniels issued two sets of proceedings against his former colleagues. On 16 July 2010, he issued proceedings against the BBC. Before the claims went to hearing, the BBC applied to have all three claims struck out.

The High Court granted the BBC’s application and struck out Dr Daniels’ claims. It held that criticism of someone’s performance at work can be defamatory but the "words must impute to the claimant some quality which would be detrimental, or the absence of some quality which is essential to the successful carrying on of his office, profession or trade". The court considered the comments here were about trivial errors, failures to follow instructions and failure to communicate adequately with colleagues. The Court held that the comments were not defamatory and, that even if they were, it was to such a minor degree that they did not meet the threshold of seriousness.

Takeaway: This decision will be welcomed by HR and employers. Disgruntled employees often argue that their reputation has been damaged by comments when they are performance managed. The court here also stated that there was no evidence of malice and the employer had a defence of qualified privilege that was bound to succeed.  However, care should still be taken by HR when dealing with performance management issues to ensure the accuracy of statements made and the collation of evidence to support such statements.

And finally… Sky’s the limit with metal work

Vince Cable, who has not been having the best of times of it lately, has this month pledged that the Government will end the ‘gold plating’ of EU legislation when it is made into UK law. This means that civil servants will now have to copy out the law rather than interpret it. Personally, I have always been fond of precious metals…..


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