Employment Law Newsletter – March 2014

Welcome to our March 2014 Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent case law developments over the last month.


Discrimination – Liability for Agents

The Court of Appeal in the case of KEMEH –v- Ministry of Defence has held that in the field of discrimination an employee as an independent contractor will not be ordinarily an agent of a third party employer simply because they carry out work on behalf of a third party.

To put this into English, the Appellant was employed by the Army as a cook. The Ministry of Defence had contracted with a third party to provide facilities and management services at the particular Garrison. That third party had in turn sub-contracted with a fourth party for the provision of catering services. The Appellant was subjected to two discriminatory remarks, one by his Ministry employed Line Manager and the other by a butcher employed by the fourth party. The Court of Appeal dismissed the claim in respect of the fourth party employee holding that it would not normally be appropriate to label such individuals as agents of the ultimate employer.

Interestingly in the lower Courts, the Appellant had been awarded £12,000 as compensation for injury to feelings in relation to the comment made by his Ministry employed Line Manager. However this was overturned as being far too excessive. The Court of Appeal stated that although each case will turn on its own facts it will not normally be appropriate for a one of remark to merit an award above the lower band of the Vento Guidelines (currently up to £6,000).

Discrimination and Illegal Workers

The EAT has held in the case of Wijefundera –v- Heathrow Logistics that a Claimant who is illegally working in the UK could bring a claim for sexual harassment against her unlawful employers. The Appellant who was a Sri Lankan national had informed the Respondents that she required a Work Permit however she commenced employment before this was secured. The actual Permit was not obtained until 1 year later.

She was then dismissed leading to a claim for acts of sexual harassment which took place during the period of her unlawful employment. The EAT relying on the principals of Hall and Woolston Hall held that the claim of sexual harassment, save for Ms Wijefundera’s dismissal was not so inextricably bound up with the Contract of Employment or the illegality as to be defeated by the Defence. This is a stark warning to employers relying on principals of illegality to end a contract. Employers need to be conscious of the context and ensure the background of any issues arising are fully considered before a decision is made to dismiss.

Reasonable Adjustments and Time Limits

The employer in the case of Job Centre Plus –v- Jamil had refused to make a reasonable adjustment for a disabled employee. The employer had a policy, which in itself was not discriminatory, but stated that it would keep its refusal under review. The question was does the Tribunal time limit for bringing a claim within 3 months run from the refusal or continue whilst it was being kept under review. The EAT held that the discriminatory act extended over a period of time and therefore the Claimant was not out of time.

The EAT said that when considering such cases it found the reference to a “continuing state of affairs” helpful in considering whether conduct extends over a period of time. In this particular case the disabled employee worked at Job Centre and had been refused a reasonable adjustment of a transfer to a workplace closer to home.

Vicarious Liability – Assault on a Customer

We try to include a case that you could not possibly imagine taking place on your premises and this month the case of Mohamud –v- Morrison Supermarkets is the one. A customer had visited a Morrisons Supermarket Petrol Station in Birmingham. The customer had entered the shop and asked a Morrisons employee, Mr Khan, if it was possible to print off some documents which were stored on a USB stick which the customer had in his possession.

Mr Khan responded in an abusive manner which included racist language. He then proceeded to follow the customer to his car, punched him in the head and then subjected him to a serious physical attack involving further punches and kicks whilst the customer lay on the petrol station forecourt. The customer sought to bring a claim against Morrisons claiming that they were vicariously liable for Mr Khan’s actions.

The Court of Appeal stated that the customer could not pursue Morrisons for damages. They held that there was not a sufficiently close connection between the assault carried out by Mr Khan and his employment with Morrisons. The Court stated that it would not have been fair and just to hold Morrisons vicariously liable.

The facts at the hearing highlighted that Mr Khan’s supervisor had told him not to follow the customer out of the premises and therefore it was found that for “no good or apparent reason” Mr Khan had carried out the act “purely for reasons of his own”. However the outcome could have been entirely different if Mr Khan’s duties had included exercising authority or keeping order, which clearly in this situation was not the case.


Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure)

We have now had confirmation that the Early Conciliation will come into force on 6th April 2014. Claimants will now need to contact ACAS before issuing a Tribunal Claim, however there is actually no obligation for them to engage in conciliation.

Tribunal Fees – Judicial Review Result

The High Court held against Unison’s Judicial Review of the imposition of fees for Claimant’s to bring Employment Tribunal proceedings. Therefore fees are here to stay subject to a possible future review when the impact of the introduction of fees in the Employment Tribunals will become more apparent. In the meantime Unison has stated that they intend to Appeal to the Court of Appeal. We will keep you updated as to any further developments.

Compensatory Award

The Employment Rights (Increase of Limit) Order 2014 has been placed before Parliament and is due to come in 6th April 2014.

It will increase the maximum compensatory award from £74,200.00 to £76,574.00. This of course will be subject to the limit of one year’s pay which has been in force since July 2013. The Order also increases the maximum for “a week’s pay” from £450.00 to £464.00.

Contact Us

If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.

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