Tracey and Others v Crosville Wales Limited
Times Law Reports (1997) IRLR
Strikers who were sacked while others were selectively re-employed following industrial action are entitled to full compensation for their claims for unfair dismissal the House of Lords has ruled. It ruled that the Industrial Tribunal was not entitled to make a deduction from the compensation because of the individual strikers involvement in the Industrial action.
The House of Lords also held that as there had been collective action and because everyone was dismissed it was impossible to allocate blame for the industrial action to any individual striker.
The case arose when Crosville Wales Ltd dismissed 119 bus drivers who had taken part in a walkout in support of union branch officers who had been disciplined. 22 of the drivers were subsequently re-employed and 73 drivers made complaints of unfair dismissal.
The drivers had not been re-engaged because the employers had taken the decision only to advertise their jobs through the media and the Job Centre rather than direct offers to the individuals.
The difficulties for the employers arose from the wording of what is now Section 239 of the Trade Union and Labour Relations Consolidation Act 1992). This provides that in selective re-engagement cases the reason for dismissal is the reason they were not taken back, not the reason they were originally dismissed.
The result of this was that each and every one of the strikers was entitled to full compensation for their claims for unfair dismissal. The House of Lords did not like this outcome and called for the law to be re-considered by the Law Commission.
Such a move would involve the courts assessing the merits of industrial disputes to decide the rights of individual strikers: a controversial step.
Rights for trans-sexuals
Chessington World of Adventures Ltd v Reed [1997] IRLR 556 EAT
Private Sector Employees are now protected against discrimination on the ground of trans-sexuality (gender reassignment) following a new ruling by the Employment Appeal Tribunal based on the Equal Treatment Directive. Once again European law offers protection to UK employees not explicitly available under domestic legislation.
Since P v S and Cornwall County Council [1997] IRLR 347, public sector employees who face discrimination based on gender reassignment (trans-sexuality) have been protected by the Equal Treatment Directive. Public sector workers can directly enforce a Directive while private sector workers have to wait for the UK domestic legislation which brings the directive into effect.
In Chessington the EAT construed the Sex Discrimination Act 1975 in line with the decision in P v S effectively extending this protection to private sector workers.
Ms Reed is a biological male who worked for Chessington World of Adventures as a rides technician. Four years after she started work she announced her change of gender identity from male to female.
She then suffered prolonged and serious harassment by her colleagues. Her tools and mugs were repeatedly stolen; workmates refused to work with or assist her; her car and motorbike were tampered with; and she was verbally abused by workmates.
The harassment started in 1991 and went on until she went off work sick in March 1994. She was dismissed on the grounds of incapability in July 1994.
Management became aware of the difficulties Ms Reed was facing from February 1992. Despite her complaints and request for a transfer no help was forthcoming from management. Nor was any disciplinary action taken to identify and discipline those responsible for the harassment.
Ms Reed took her complaint of sex discrimination to an Industrial Tribunal and was successful. Chessington World of Adventures appealed.
The EAT decided that discrimination arising from an intention to undergo gender reassignment falls within the Sex Discrimination Act 1975. It therefore interpreted the domestic legislation of the Sex Discrimination Act in line with the European Court of Justice decision in P v S that discrimination for a reason related to gender reassignment is contrary to the Equal Treatment Directive.
The EAT went on to say that where the reason for the unfavourable treatment is sex based, here a declared intention to undergo gender reassignment, there is no requirement for a male/female comparison to be made.
This means that discrimination on the basis of gender reassignment should be treated in the same way as discrimination on the grounds of pregnancy (Webb v EMO) as discrimination in itself without needing to look at how someone else would have been treated.
The decision in Reed has wide significance for private sector employees providing protection against discrimination on the basis of their trans-sexuality, protection which has been available for public sector employees since the decision in P v S last year.
We now await the decision from the European Court of Justice in Grant v South West Trains (see Issue 15 of LELR: Granting rights to lesbians and gays). If the ECJ follows the Advocate General's view that discrimination on the basis of sexual orientation is based essentially - if not exclusively - on the sex of the person concerned, then Reed can be used to argue that the Sex Discrimination Act can also cover discrimination on the grounds of sexuality for private sector employees, without waiting for Government business managers to find parliamentary time for domestic legislation to put the Equal Treatment Directive in force for private sector workers.