News

Blacklisting for union membership or activities prohibited
Regulations preventing blacklisting of workers from employment as a result of their union membership or activities came into force on 2 March 2010. The regulations make it unlawful for organisations to refuse employment or to dismiss individuals as a result of appearing on a blacklist; or for employment agencies to refuse to provide a service on the basis of appearing on a blacklist. They also enable individuals or unions to pursue compensation or take action against those who compile, distribute or use blacklists. BIS guidance is available here.

Breach of confidentiality?
Should charity boss Christine Pratt be investigated?
Christine Pratt (P), CIPD member and founder/Chief Executive of the National Bullying Helpline is facing increasing calls for her decision to make public the bullying accusations made by staff behind Britain's most famous black door to be investigated.  P's announcement last week that three or four Downing Street staff had contacted her charity with allegations of bullying could be seen to be a breach of the CIPD's code of conduct which states that members should demonstrate appropriate behaviour in business and personal activities and "must respect legitimate needs and requirements for confidentiality". P asserts that she did not breach confidentiality as she did not disclose individual's names.  Were her actions in the public interest or simply of public interest?

Comment
Despite the Charity Commission announcing that it would investigate the National Bullying Helpline's confidentiality and data protection procedures it is widely thought that the CIPD will not investigate the complaints made against CP.  CIPD is not P's employer. However, the lesson for employers is to ensure that any breach or perceived breach of confidentiality is investigated as soon as possible, and appropriate action taken. 

Annual Report of Senior President of Tribunals Service
Lord Justice Carnwath, Senior President of the Tribunals Service, published his first annual report on 24 February.  The report highlights some interesting statistics and trends in employment tribunal litigation.  Here is a selection:

• Employment tribunals saw a 40% increase in individual claims last year, and also an increase in group actions.  The upward trend is expected to continue this year, before levelling out for a few years.  The report also highlights an increase in the complexity of cases and an increase in length of time of hearings.

• Equal pay claims are also on the up.  There are currently over 75,800 Local Authority and 15,500 equal pay cases in England and Wales, and 43,429 Local Authority and 12,662 NHS equal pay cases in Scotland.

• The Tribunals Service has responded by recruiting more employment judges and taking on a further 340 lay members in 2009 across England, Wales and Scotland.

• The report points to improved case management, and more cases being resolved at an earlier stage.

• Tribunal training received a very high assessment rating by the Judicial Studies Board in 2008.  An example is a diversity awareness course covering a number of issues that employment judges come into contact with, including religious practices, mental health issues and disability.  

• The judicial mediation pilot scheme is reported to have had a success rate of 60% in 2006/2007, and has been rolled out to all regions of England and Wales from 1 January 2009.  A similar scheme was started in Scotland in June 2009.

• A new integrated IT system (linking judges, their administration and ACAS) has been further delayed, although a pilot was started in November 2009.

• There has been a slight decrease in the number of appeals being lodged at the Employment Appeal Tribunal, and the EAT is rejecting more cases in the preliminary stages. 

Comment
The increased workload in the Tribunals is clearly reflective of the economic climate and the fact that individuals are perhaps more likely to raise claims about dismissals when there is less scope for gaining alternative employment.  It may be some comfort to employers that it is anticipated that these levels will start to plateau after the end of the financial year, as with previous recessions.

Recent Cases – Constructive Dismissal Special!

Constructive dismissal: conduct directed at others
Hunter v Timber Components (UK) Ltd
In Hunter v Timber Components (UK) Ltd the EAT has confirmed that an employee can found a claim for constructive dismissal on his employer's treatment of other employees, even when the employee bringing the claim has not been subjected to the ill treatment.

Mr Hunter (H) was employed by Timber Components (UK) Ltd as a joiner for over 20 years.  He resigned because he was no longer prepared to witness the way that the owner's son (D), a director in the company, treated other employees.  H walked out after a verbal altercation with D and did not return to work.  The Tribunal found that D was "intimidating and arrogant" and that he bullied younger members of staff. It mentioned one particular occasion when D reduced a young employee to tears for spilling paint.  The Tribunal also found that H did not consider himself to be the target of D's intimidating behaviour and was not scared of him.  H was found to be suffering from stress and depression which was not work related.

The Tribunal held that H had not been constructively dismissed.  On appeal H argued that the Tribunal had wrongly made its decision on the basis that he could only succeed if D's conduct was directed towards him.  The EAT dismissed the appeal and held that the Tribunal had asked the correct question.  The Tribunal had asked whether the employer had, without reasonable and proper cause, conducted itself in a manner which, viewed objectively, was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.  According to the EAT, the Tribunal had entertained the possibility that D's conduct towards other employees could have given H grounds on which to successfully claim constructive dismissal.  However, on the facts of this particular case the Tribunal had been correct to hold that D's conduct did not amount to a repudiatory breach of contract.

Comment
The employer in this case was perhaps fortunate that the Tribunal and the EAT found that H had not been constructively dismissed. It may be that it will be harder for claimants to succeed where they are seeking to rely on their employer's conduct towards others.  However, it is not hard to imagine other cases where an employee might succeed in arguing that an employer's bullying or possibly discriminatory conduct towards others is so serious that it would entitle the employee to resign and succeed in a constructive dismissal claim.

Constructive Dismissal cannot be "cured"
Buckland V Bournemouth University Higher Education Authority
Professor Buckland (B) was employed in the Archaeology Department at Bournemouth University (the University).  There was a high failure rate on one of his courses in 2006.  The 2006 examinations included 16 resits of which B failed 14.  These results were routinely second-marked and the re-marks concurred with B's marking. Further, the Board of examiners, chaired by Dr Astin (A) checked and confirmed the results.

A was concerned about the possibility of appeals from students so decided to have the scripts marked again by another member of staff.  This was done without consultation with B. B raised a complaint and the University set up an inquiry to consider the matter.  The report of this inquiry vindicated B and criticised A for procuring the remarking without his consent.  It was clear that B's marks, once approved by the Board, should have stood.

Despite the result of the inquiry, B resigned and brought a claim for constructive dismissal arguing that the failure of A to consult with him before re-checking the papers was a breach of the relationship of trust and confidence between him and the University which entitled him to resign and to claim unfair dismissal.  The Tribunal upheld his claim.  The University appealed to the EAT who found in favour of the University deciding that the report, in vindicating B, effectively "cured" the initial breach.

B appealed to the Court of Appeal who allowed his appeal.  They stated that there is no authority to support the EAT decision that a fundamental breach of contract can be remedied so as to preclude resignation in response.

Comment
This case makes it clear that constructive dismissal is governed by the general principles of contract law and there was no reason to introduce a new element enabling fundamental breaches to be "cured".

The Court of Appeal also considered whether a subjective "band of reasonable responses" test should be applied to constructive dismissals as in other forms of unfair dismissal.  The court was clear that this has no place in establishing fundamental breach of contract.  A fundamental breach should be assessed objectively.