London Underground Ltd v Edwards (No 2) [1997] IRLR 157

London Underground Limited indirectly discriminated against a single parent with a young child, by introducing a shift system which did not satisfy her needs as a single parent, the Employment Appeal Tribunal has held.

Under the old shift system Mrs Edwards was able to work hours which were compatible with her parental responsibilities. The IT found the new rostering arrangements were a requirement or condition with which Mrs Edwards could not comply. LUL did not appeal this part of the decision.

The IT concluded that the proportion of female train operators who could comply with the new arrangements was "considerably smaller" than the proportion of male train operators. All of the 2023 men could comply compared with 95.2% of women (20 out of 21).

London Underground argued that this proportion was not "considerably smaller" and referred to the case of R v Secretary of State ex parte Unison (1996 IRLR 438) where the High Court said that if there were only a 4% disparity in the relevant groups it was too small to justify taking legal action.

The EAT disagreed. What is a considerably smaller proportion is a question of fact for the IT as "it would be a misuse of authority to take one proportion from one case and then use it as a yardstick or marker in another".

London Underground argued that the IT was not entitled to take into account the overall number of men relative to the number of women but only to consider relative proportions, or the fact that only one woman could not comply or that women are more likely to be single parents caring for children than men.

Again the EAT disagreed. The IT was entitled to take into account all those matters and the possibility that some kind of assumption may exist that a particular type of work is "mens work" and not "womens work" and to consider whether the number of women drivers was so small as to be statistically unreliable.

In assessing proportionate impact on such a small pool of women, the IT could take account of a wider view to include statistical evidence that women are more likely to have primary child care responsibility than men.

The discrimination was not justified. London Underground should have accommodated Mrs Edwards' personal requirements, she had been working for them for nearly 10 years and her family demands were of a temporary nature.

The EAT observed that Mrs Edwards might have had a case of direct discrimination as well as indirect discrimination by changing the roster, in a way which London Underground must have appreciated would cause her a detriment.

Employers should carefully consider the impact which a new roster might have on a section of their work force and should recognise the need to take a reasonably flexible attitude to accommodate the particular needs of their employees. This is a welcome decision which takes a realistic approach to the issues in indirect discrimination cases.

Trade unionists have feelings too

Cleveland Ambulance NHS Trust v Blane [Times, March 1997] (EAT)

The Employment Appeal Tribunal has upheld an Industrial Tribunal decision to award £1,000 for injury to feelings to an ambulance paramedic who had not been shortlisted for a management post because of his trade union activities.

The case, brought by UNISON against Cleveland Ambulance Service, adds bite to laws which make it unlawful for employers to take action against employees that prevent or deter them from taking part in trade union activities or penalise them for doing so.

Although claims for breach of contract or unfair dismissal cannot lead to compensation for injury to feelings, claims for victimisation on union grounds are different. This is because compensation must be just and equitable "having regard to the infringement complained of". This goes beyond the financial loss suffered by the employee.

As with claims for race or sex discrimination, compensation for injury to feelings was payable and an award of £1,000 was appropriate in this case, the EAT said. This leaves open the possibility of higher awards for injury to feelings, bearing in mind recent developments in discrimination cases reported in previous editions.

The tribunal concluded there was a 25% chance Mr Blane would have been promoted but for the discrimination on union grounds. It awarded 25% of the extra pay he would have received. This means it is not necessary for the employee to show he would have been promoted if he had not been victimised. Compensation will be assessed on the percentage chance of promotion.

UK in breach of the law

The Committee of Ministers of the Council of Europe has condemned UK union laws for breaching international law and says they should be changed. Although not legally binding, the recommendation of the Committee of Ministers has made it clear that the UK government will be expected to amend the offending legislation.

The Committee polices the European Social Charter signed in 1961 and which took effect with respect to UK law in 1965. The ruling is another embarrassment to the Government, previously condemned by the United Nations linked International Labour Office for stripping away union rights at GCHQ.

The committee condemned S.13 of the Trade Union and Employment Rights Act 1993 which allows employers to offer inducements to give up collective bargaining rights as an infringement of the rights to organise and bargain collectively. It could, the committee says, be used by employers to dissuade workers to become or to remain trade union members.

This section was hastily introduced by the Government after the Court of Appeal decided in favour of trade union members in the Wilson and Palmer case. The amendment made it lawful for employers to offer inducements to employees to give up union membership or collective bargaining. The case was later overturned in the House of Lords, but the punitive section remains.

The committee also condemned the legislation which restricts unions' rights to draft their own rules and procedures and opens them to heavy financial penalties if they do not comply. It also condemned the employers right to dismiss all those taking part in a strike and re-employ them selectively three months later.

EAT rewrites redundancy rules 

Safeway Stores Plc v Burrell [1997] IRLR 200 (EAT)

What is the meaning of redundancy? The right to a redundancy payment is one of the oldest statutory employment rights and after 30 years the Employment Appeal Tribunal has reinterpreted the meaning of 'redundancy' and rejected 20 years of case law.

The definition of a redundancy situation is contained in Section 139 of the Employment Rights Act 1996. The area that has caused most problems is interpreting the meaning of the words:

'The fact that the requirements of that business for employees who carry out work of a particular kind... have ceased or diminished'.

What is 'work of a particular kind'? Courts have developed the so-called 'contract test', most notably in the Court of Appeal judgment of Cowen v Haden Limited [1983] ICR 1. They held that it is necessary to look to see whether there is a diminishing need for the kind of work the employee may be required to do under his or her contract of employment, not the particular kind of work which he or she was actually carrying out.

But this approach has been rejected in the case of Safeway Stores Plc v Burrell and the EAT have set out a three stage test to be applied.

1. Was the employee dismissed? If so,

2. Had the requirements of the employer's business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease of diminish? If so,

3. Was the dismissal of the employee caused wholly or mainly by the redundancy situation; ie. stage 2?

Stage 2 of the process involves looking only at the requirement for employees in general to perform work of a particular kind, not the terms of the individual employee's contract of employment. The EAT has held that you must look only at the work being performed for the employer. This avoids decisions based on the wording of the contract and focuses on the work actually done.

Stage 3 involves looking to see whether the redundancy caused the dismissal.

The EAT went on to say that the terms of an individual's contract of employment will be relevant only where an employee is redeployed under the terms of his or her contract and does not wish to move. In this case the cause of dismissal will not be redundancy (even though a redundancy situation arises), but the refusal to move or transfer. This could then fall into the conduct category of dismissals and be judged on its fairness accordingly. If the dismissal was unfair, the employee could receive a basic award and compensation for unfair dismissal.

The EAT has provided clear and logical guidance in this case. It remains to be seen whether the EAT judgment will be followed or if ITs will continue to adopt the older tests that Safeway v Burrell seeks to discredit. Time will tell.