CHIEF CONSTABLE OF NORFOLK v COFFEY
We have previously reported on this case which has now reached the Court of Appeal. Ms Coffey was a police officer who suffered a degree of hearing loss which had never caused her any problems in doing her job and therefore did not amount to a disability within the meaning of Equality Act as she was able to carry out normal day to day activities. In 2013 she applied for a transfer from Wiltshire to Norfolk Constabulary, but her request was refused because on a medical test her hearing fell just outside the standards for recruitment. Ms Coffey brought a disability discrimination claim alleging she had been discriminated against because of a perceived disability. Perception discrimination occurs where an act occurs because someone believes that a person has a particular protected characteristic even if in fact, they do not. She was successful at both Employment Tribunal and the Employment Appeal Tribunal. The EAT had held that the wording “normal day to day activities” should be interpreted in a way which encompassed the activities relevant to participation in professional life. Norfolk’s belief that Ms Coffey’s hearing loss would in the future render her unable to perform the duties of a front-line police officer was a perception that it would have an effect on her ability to carry out normal day to day activities. The Court of Appeal upheld this finding. The Court of Appeal was also asked the question, whether to refuse employment because of perception of a risk of future inability to work as a front-line officer, fell within the terms of the Act. The Court held that this was the case because if an individual was perceived to have a progressive condition then he or she has to be treated as disabled within the meaning of the Equality Act.
CHIEF CONSTABLE OF NORTHERN IRELAND POLICE v AGNEW
In this case the Northern Ireland Court of Appeal looked at what was meant by a “series” of deductions from wages in relation to holiday pay and the meaning of “series” contained within the Employment Rights (Northern Ireland) Order 1996 (which is Northern Ireland legislation which mirrors the Employment Rights Act 1996). In the case of Bear Scotland Ltd v Fulton, which is an EAT decision binding courts and tribunals in England and Wales and in Scotland, there was a finding by Mr Justice Langstaff that a gap of more than 3 months between deductions broke a series. In the Agnew case the Judge decided this could lead to arbitrary and unfair results and agreed with the Claimants that “there is nothing in the ERO which imposes a limit on the gaps between particular deductions making up a series. We do not consider that there is anything implied from the terms of the ERO which compels to such an interpretation of a series. As a matter of the proper construction of the ERO we conclude that a series is not broken by a gap of 3 months or more”. The Judge also decided that if there was sufficient similarity between the subject matter and each event was factually linked with the next in the alleged series then that would be enough to amount to a “series”. As the case was decided based on Northern Irish law it is not formally binding on tribunals in Scotland or England and Wales which are required to follow Bear Scotland Ltd. However, the wording of the ERO in the Employment Rights Act 1996 is identical. The Agnew case will be strong persuasive authority on any future challenge to the Bear Scotland case which argues that the decision in that case was wrong. This is mainly of historical interest as since July 2015, there is legislation within Scotland and England and Wales which caps backdated holiday pay claims to a 2-year period. This legislation has not been enacted in Northern Ireland.
KOSTAL UK -v- DUNKLEY
We reported on this case previously. The Employment Appeal Tribunal found that the employer had made offers direct to employees where there was a recognised trade union and that this amounted to an unlawful inducement to move away from collective bargaining. They fined the employer substantial amounts.
Facts
Following a ballot which rejected a pay proposal in the context of collective bargaining, Kostal made offers direct to union members. Claims were brought by members of Unite, that the employer had breached their rights under Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 by doing so. The employment tribunal found that the company had acted in breach of Section 145B and awarded substantial sums to the union members totalling over £400,000 on the basis that the offers, had the employees accepted, would have changed the terms of the employment outwith the collective bargaining arrangements then in place.
The company appealed to the EAT and, by majority, the EAT confirmed the previous Tribunal’s decision. This finding was made on the basis that Section 145B prevents employers from making offers that would have the prohibited result if the employer’s sole or main purpose was to achieve that prohibited result. The prohibited result would be that the worker’s terms of employment or any of those terms will not or will no longer be determined by collective agreement negotiated by or on behalf of the trade union.
The Court of Appeal has now overturned that finding. It reached the decision that the EAT’s decision went much further than necessary to protect the rights of workers to be represented by a trade union and that it cannot have been parliament’s intention to give a trade union a veto over employer proposed changes. There was clarification given as to where the prohibited result would arise, and these would cover: –
Where a trade union is seeking recognition and an employer makes an offer with the purpose of blocking any collective agreement applying to terms and conditions; or
Where an employer with a recognised union makes an offer seeking to block terms and conditions (either fully or in part) being determined by a collective agreement on a permanent basis.
This case does offer more flexibility to employers when collective bargaining results in a deadlock, but caution should be adopted as: –
This case was set against a background where the company was not hostile to unions nor seeking to remove collective bargaining but was simply trying to resolve an impasse which had been reached during collective negotiations.
The trade union in this case is seeking leave to appeal to the Supreme Court so this may not be the last word on the matter.
Even if this decision does become the settled position, it will remain good industrial relations practice to exhaust collective processes before any attempt is made to try to negotiate with individuals. If that happens, it should be made very clear why an employer is making a direct offer to individuals which may help to mitigate the perception of the union (and ultimately an Employment Tribunal) that the purpose behind this is simply to evade future collective bargaining.
