Employment Law Case Update - August 2014
Burnetts' team of employment law solicitors examine the latest case law developments.
Getting information about previous claims
When an employer receives notice that an employment tribunal claim against them has been issued, we are often asked if they can find out “if the employee has done this before”. Employers are often looking to argue that the case against them is not genuine and is being brought by a “serial litigant”.
In the recent case of Peninsula Business Services v Information Commissioner, Peninsula were looking for information about employers rather than claimants. Peninsula wanted to know whether the list of respondents held by HM Courts and Tribunals Service (“the Tribunal Service”) could be disclosed to them (presumably, to use that information for contacting those companies without representation to offer their services and products), but the Tribunal Service refused to disclose the information arguing that it was exempt from disclosure under section 32(1)(c) of the Freedom of Information Act (the “FOI Act”).
The actual information held on the ET3 form submitted is exempt under section 32(1)(a) of the FOI Act which protects “any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter”. However, the Tribunals Service had been extracting data from those forms to create a register of claimants and respondents.
Until 2004 that register was publically available. In 2004, that register was made confidential. However the Tribunal Service continued to maintain the register storing the data separately from the ET forms on its computer system.
Under section 32(1)(c) of the FOI Act, information is exempt from disclosure if it is “created by … a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter.”
Peninsula argued that, because the list was created and used for administrative purposes rather than for any part of any particular proceedings, it was not protected under the FOI Act and should be made available to them. The Tribunal Service disagreed and refused to disclose the information. The Information Commissioner supported that decision so Peninsula brought a civil court action to challenge the decision.
This case isn’t an employment law matter so, rather than being held in an employment tribunal, Peninsula’s first court challenge to the Information Commissioner’s decision was heard in the First-tier Tribunal (Information Rights). The First-tier Tribunal agreed that the information was protected but Peninsula appealed again. This time to the Upper Tribunal (Information Rights).
That Upper Tribunal recently decided that, as the source of the information that was being collated by the Tribunals Service was information that respondents were required to provide under the Employment Tribunals Rules of Procedure, the register of claimants and respondents was still being created for the purposes of proceedings and thus the protection under 32 (1) (c) of the FOI Act remained even though the data would never be used in its collated format as part of any proceedings. Thus Peninsula was unable to acquire the information that it was seeking.
As a result of this decision it is now clear that employers cannot use the FOI Act to find out if a particular employee or potential employee has made a claim against a previous employer. That isn’t to say that you can’t find out about previous cases. There is still a public Register of Judgments. This is available both in hard copy and an electronic index. The version covering claims in England and Wales is currently held at the Tribunal Office at Bury St Edmonds. The version for Scotland is held at the Employment Tribunal office at Glasgow. From 21 November 2013 any record on the Register of Judgments which is over 6 years old (from the date of Judgment) has been deleted. However, copies of any Judgment which is less than 6 years old can be requested (there is a charge of £10 for this) but you have to provide the claim number and the names of the parties in the case. That means that you can’t “trawl” the public register to see if a particular person has made a previous claim. Unless you are already aware of the specific details of the case, that information is protected by the FOI Act.
If you have any questions on this matter or would like to speak to someone on a Freedom of Information query or an employment issue, please contact Natalie Ruane Partner in the Employment Team and information law specialist on 01228 552222.
Disability and Redundancy Selection Criteria
Most employers are aware of the general rule that if an employee has a condition that could be classed as a disability under the Equality Act 2010, if that ‘disabled’ employee might be at risk of redundancy, the employer is obliged to consider whether any reasonable adjustments could be made to ensure that the employee does not suffer any disadvantage as a result of his or her disability during the redundancy process. Such reasonable adjustments can include things like discounting disability related absence if sickness absence is one of the criteria being used to score the employees in the selection pool.
However, some employers might be surprised to learn about the decision in Dominique v Toll Global Forwarding Limited where the employee has succeeded with a disability discrimination claim even though the Employment Tribunal acknowledged that the reasonable adjustment being requested would not have made any difference to the outcome of the redundancy exercise.
Mr Dominique had worked for Toll Global Forwarding Limited (Toll) and its predecessor company since 1979. He suffered a stroke in 2003. Although he recovered sufficiently to return to work, the stroke left Mr Dominique with physical and cognitive impairments and his condition was such that he was classed as disabled under the Equality Act 2010.
As a result of the impairments, Mr Dominique made frequent errors and struggled to cope with some of the tasks required of him. Nevertheless, Mr Dominique continued to work as part of the four man Charging Team based at Toll’s Mountnessing Office.
In early 2011, the manager at the Mountnessing Office was instructed to reduce the overall head count at that office by three. The manager decided to remove one post from reception, one from the front desk and one from the Charging Team. The staff in the Charging Team, including Mr Dominique, were informed of this and the four of them were notified that they would be classed as a pool for selection purposes. The staff were also told that criteria would be used to score them including length of service, skill set, productivity (which included mistake levels), flexibility and discretionary effort. There was consultation about the criteria but Mr Dominique did not express any concerns.
When the scoring was done, Mr Dominique scored the lowest. He was given particularly bad scores in relation to productivity. As a result of his poor scores, Mr Dominique was selected for redundancy and dismissed. He appealed against that decision complaining that the scoring system had been weighted in favour of the other candidates. He also mentioned a failure to make reasonable adjustments but both allegations were dismissed by Toll who upheld the original decision.
Mr Dominique brought a claim for unfair dismissal and disability discrimination in the Employment Tribunal. His claim for direct disability discrimination was rejected. However, the Tribunal found that there had been less favourable treatment and detriment which would support findings of indirect disability discrimination and discrimination arising from Mr Dominique’s disability because when the scoring had been done, Toll hadn’t made any allowance for the fact that Mr Dominique’s disability led him to make more errors than other people. Having said that, the Tribunal found that the inclusion of the productivity criterion had been a proportionate means of achieving a legitimate aim and so those two claims failed.
The Tribunal also decided that there had not been a failure to make reasonable adjustments because, in its view, adjusting Mr Dominique’s score in the productivity criteria so as to alleviate the disadvantage that he had suffered in the scoring process would not have led to him avoiding dismissal. The Tribunal decided that, on the facts, Mr Dominique would still have scored the lowest even if his productivity score had been adjusted to take account of the impact of his disability.
Mr Dominique appealed to the Employment Appeal Tribunal (EAT).
The EAT felt that the Employment Tribunal had made an error by focusing on whether Mr Dominique would be dismissed. The EAT stressed that the question is whether there has been detriment or disadvantage. In this case, the EAT felt that there had been substantial disadvantage when Toll had scored Mr Dominique based on productivity without making allowances for the impact of his disability. The EAT stressed that the impact of applying unfair scoring criteria was much less significant than the dismissal but it was still a factor that should have been taken into account.
Having found that a reasonable adjustment should have been made to the scoring criteria, the EAT commented that it was difficult to see how including productivity without adjustment could be objectively justified. Instead, the EAT indicated that the claims of indirect discrimination and discrimination arising from disability should have been upheld but that the compensation awarded for injury to feelings should have been low to take into account the fact that a fairer scoring system probably wouldn’t have made any difference to the outcome.
The lesson to be taken from this case is that scoring employees during a redundancy exercise is incredibly difficult. Employers cannot focus on whether or not an adjustment to the scoring system will prevent the dismissal. Instead, each criteria needs to be looked at in isolation. The employer must decide whether there is anything about the disability which causes a disadvantage in relation to each of the criteria being used and should consider whether it is reasonable to adjust the criteria so as to alleviate that disadvantage. This is a complex exercise and employers with disabled employees in their pool for selection should take legal advice. Kuba Strycharczyk at Burnetts Solicitors would be happy to assist. He can be contacted on 01228 552222.
About the author
Kuba is an employment law expert and Practicing Consultant at Burnetts.
Published: Tuesday 26th August 2014