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Case Law Update – June 2017

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06/06/2017

Court of Appeal upholds the Central Arbitration Committee’s (CAC) decision that a small group of Lidl warehouse staff was an appropriate trade union bargaining unit – R v Central Arbitration Committee [2017] EWCA Civ 328

The Court of Appeal has held that a group of warehouse operatives constituting 1.2% of Lidl’s total UK workforce was an appropriate trade union bargaining unit in an appeal against a decision of the CAC. This case highlights that the question of whether a bargaining unit is ‘appropriate’ (under the Trade Union and Labour Relations (Consolidation) Act 1992 requires a broad view and, as such, the Courts are unlikely to be willing to interfere with CAC decisions on this point.

Facts

Lidl had unsuccessfully issued judicial review proceedings against the CAC’s decision that a small group of its warehouse staff was an ‘appropriate bargaining unit’ for the purposes of collective bargaining with the GMB trade union. The staff in question made up just 1.2% of Lidl’s UK workforce.  The case reached the Court of Appeal where Lidl argued that the CAC had failed to properly apply the statutory test contained in paragraph 19B of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act). This test required it to take into account “the desirability of avoiding small fragmented bargaining units within an undertaking.” The policy reason for this test is that it is thought undesirable for an employer to have to negotiate in more than one forum in relation to groups of its workforce that are not essentially different.

Lidl argued that the CAC was wrong to hold that this test was not relevant in this case because there was only a single proposed bargaining unit and no evidence of any demands for additional bargaining units (and as such, fragmentation was not an issue).

The Court of Appeal held that the CAC had correctly applied the statutory test. The word “fragmented” in the Act suggested a whole entity that has been broken into parts. It held that paragraph 19B was intended to avoid fragmentation of collective bargaining so that employers would not have to negotiate with a number of different unions in respect of the same categories of staff.  It was not intended to prevent a situation where a union is recognised in respect of a small number of employees and where the rest of the workforce remains non-unionised.

Lidl’s concern that only a very small proportion of staff at the same site were in the bargaining unit should instead have been considered under the more general requirement in the Act to take into account the need for the proposed bargaining unit to be compatible with effective management. The CAC had considered this point and was satisfied that it was.

Walker Morris comment

The first point to note from this case is that no trade union recognition request can be considered ‘too small’.

The second point to note is that we are seeing recognition requests being brought as a ‘back door’ method of establishing ‘worker’ status for individuals who are classified (the union would say wrongly) as self-employed. For example, courier company Deliveroo is currently facing such a request and the CAC are due to make a decision shortly.  This is because, in its role as the ultimate arbiter of the recognition request, the CAC must determine whether the individuals in question are workers.

To this end, it is noteworthy that in the Lidl case, the Court of Appeal observed that the CAC is an expert body. This validation suggests that its decisions will be viewed by the appeal courts in that context so, unless there is a clear error of law, they are unlikely to be especially vulnerable to judicial challenge.

Union recognition is area where specialist advice is always recommended.   If you would like advice please contact David Smedley or Andrew Rayment.

Multiple choice application test discriminated against applicant with Asperger syndrome – The Government Legal Service v Brookes UKEAT/0302/16

The Employment Appeal Tribunal (EAT) has held that a job applicant with Asperger syndrome suffered disability discrimination because she was required to undergo a multiple choice test to apply for a role.

Facts

Ms Brookes applied to join the Government Legal Service (GLS) as a trainee lawyer in July 2015. At the first stage of the recruitment process, she was required to sit a multiple choice test.  Ms Brookes contacted the GLS and asked if an adjustment could be made to the format of the test because she is a person with Asperger syndrome. She asked if she could provide short narrative answers instead.

GLS refused her request but stated that extra time might be given for tests at a later stage, if she were able to pass the three entry level tests. Ms Brookes took the test at the end of July but failed it, scoring 12 out of 22 points – the pass mark was 14.

Ms Brookes brought claims in the employment tribunal for disability discrimination. She claimed that:

  • GLS had indirectly discriminated against her by requiring her to sit a multiple choice test without justification
  • GLS had failed to make reasonable adjustments to the test by allowing her to submit short written answers to the multiple choice test
  • GLS’ discrimination against her arose as a consequence of her disability.

An employment tribunal upheld Ms Brookes’ complaints of disability discrimination on all three grounds. It accepted that GLS was pursuing the legitimate aim of testing the competency of applicants to make effective decisions but it held that the means by which it did this were not proportionate. A reasonable adjustment could have been made to the format of the test by allowing Ms Brookes to supply written answers as she had requested.

As well as ordering compensation, the employment tribunal recommended that GLS review its procedures for recruiting disabled candidates, with a view to providing greater flexibility in the psychometric testing regime.

GLS appealed to the EAT arguing that the employment tribunal had not placed enough emphasis on its need to assess a core competency, which it said was inextricably linked with the multiple choice method of testing for that competency. The EAT dismissed the appeal. It acknowledged that GLS needed to test the core competency of an applicant’s ability to make effective decisions, however, the tribunal had been entitled to reject the argument that the only way of doing this was by means of the test. Allowing Ms Brookes to provide short written answers might have presented logistical problems, extra expense and introduced the need for a subjective ‘human’ assessment of a test designed to be marked by a computer but these inconveniences did not outweigh the disadvantage to Ms Brookes in requiring her to undergo a multiple choice test.

Walker Morris comment

Multiple choice testing is fairly common in volume selection procedures and is a tried and tested method of sifting applications. It has the advantage of providing a level playing field (for most candidates) and avoiding subjective human bias.  This important decision makes it clear, however, that binary selection systems can still lead to discrimination.  If a candidate requests an adjustment to a selection process because of a disability, then it may well be a reasonable adjustment to do so.  As in Ms Brookes’ case demonstrates, additional inconvenience and cost on their own might not be enough to justify a refusal of an adjustment.

If you would like any advice on the issues raised by this case please contact David Smedley or Andrew Rayment.

Tribunal awards £2 for breach of right to be accompanied – Gnahoua v Abellio London Ltd ET/2303661/2015

An employment tribunal has awarded nominal compensation of £2 for a breach of an employee’s right to be accompanied.

Facts

Abellio had a policy of refusing to permit two brothers (who were both union officials) to accompany employees at disciplinary or grievance meetings. This was because, in a previous employment tribunal claim against Abellio, the tribunal had awarded £10,000 costs against the brothers for vexatious conduct. The vexatious conduct involved falsifying the date on which a witness statement was prepared. Following that hearing and costs award, Abellio felt it reasonable to take the view that the brothers had attempted to obtain substantial compensation from it using dishonest means.  It therefore barred them from acting as companions to other employees at disciplinary and grievance meetings.

Sometime later and in line with its policy, Abellio refused to permit Mr Gnahoua to be accompanied by one of the brothers at a meeting under its disciplinary procedure. This was a clear breach of Mr Gnahoua’s legal right to be accompanied because the brother was a union official. However, the tribunal found that Mr Gnahoua had not suffered any loss or detriment as a result of the breach. This was because Abellio had conducted Mr Gnahoua’s disciplinary hearing in a reasonable and thorough way, had given appropriate consideration to his representations and had taken into account his long service.

Walker Morris comment

The EAT has held previously that an employee has an unfettered right to be accompanied by their chosen companion provided that the companion comes within one of the permitted categories (an employed trade union official, a certified trade union official or a colleague). The Acas guidance on the right to accompaniment was updated as a result of this decision. However, the previous EAT decision also suggested that nominal compensation of £2 was an option for tribunals in cases where the employee had not suffered any loss or detriment as was found to be the case here.

This decision shows that employers who are prepared to take a pragmatic and commercial view on risk in such cases will not be ‘held hostage’ by the law as long as the employer acts reasonably throughout the process. Whilst there may be a technical breach of the legal requirement, the exposure to compensation may well be nominal. We would, nevertheless, always recommend taking professional advice and weighing up the risk in each case.

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