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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bopari v. Grasshopper Babywear (Wolverhampton) Ltd [2002] UKEAT 284_01_0507 (5 July 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/284_01_0507.html Cite as: [2002] UKEAT 284_01_0507, [2002] UKEAT 284_1_507 |
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At the Tribunal | |
On 16 April 2002 | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MISS C HOLROYD
MR N D WILLIS
APPELLANT | |
(WOLVERHAMPTON) LTD |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR ROHAN PIRANI (of Counsel) Instructed By: Messrs Bailey ![]() ![]() ![]() Solicitors ![]() 3rd Floor Guildhall Buildings Navigation Street Birmingham B2 4BT |
For the Respondent |
MR ANDREW J McGRATH (of Counsel) Instructed By: Messrs Manby & Steward ![]() George House St John's Square Wolverhampton WV2 4BZ |
MR JUSTICE LINDSAY (PRESIDENT):
"(1) An employee who is dismissed shall be regarded for the purposes of this Part [Part X; Unfair Dismissal] as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that -
a) ............
b) ............
c) the employee qualifies, or will or might qualify, for the National Minimum Wage ...."
"A reason for the dismissal of an employee is a set of facts known to the employer or it may be beliefs held by him, which cause him to dismiss the employee."
Thus, as a main question before it on this part of the case, the Tribunal below had to examine into whether the facts known to Grasshopper or the beliefs held by it and which caused it to dismiss Mrs Bopari were or included, as the principal amongst the facts or beliefs which were causative of the dismissal, that she qualified for the National Minimum Wage.
"On the 13th May all these employees attended a collective first stage interview and were warned (orally) that their performance must be improved within the next four weeks in order to meet the necessary performance targets (including one at 94% which was set as the appropriate return for the National Minimum Wage rate) and that if these were not met, further disciplinary process would follow; this warning was confirmed by letter of the 18th May 1999 ...."
That 94% was presumably not 94% of what Mrs Bopari herself had once produced or even of what it was thought that she personally would be able to produce but was some notional or average figure related to a wider number of operatives. Precisely what it is, though, is not explained in the Extended Reasons, nor is it explained how it was computed, although it is plain that, "as the appropriate return for the National Minimum Wage rate", it had within it the then £3.60 an hour as a factor.
"She had been urged to increase her performance since May, that her standard was clearly not going to improve adequately (the company required a 94% performance rate to justify the National Minimum Wage rate in operation) and she was given one week's notice of termination of her employment and advised of her right to appeal ...."
She did appeal but the appeal was dismissed and the Group Chief Executive of Grasshopper decided to confirm Mrs Bopari's dismissal as from the 3rd December 1999.
"Prior to the advent of the National Minimum Wage my employers were satisfied with my work ........
It is my belief that I have been treated this way because management has set me higher targets because of the introduction of the minimum wage and hence my dismissal on the strength of the failure to meet those targets is unfair."
"The introduction of increased performance targets were necessary for the company to maintain its competitive edge within the textile industry and to assist in the survival of the business."
Grasshopper managed to complete its IT3 without making any reference at all to the National Minimum Wage Act or the rates payable thereunder.
"It is the unanimous decision of the tribunal:
a) that the Applicant's dismissal was not automatically unfair by virtue of section 104 A of the Employment Rights Act 1996, being neither solely or principally for the reason that the Applicant qualified for the national minimum wage;
b) that the Applicant's dismissal was on grounds of capability and, measured against the criteria of section 98 (4) of the Employment Rights Act 1996, was not unfair; and
c) the Applicant was not subjected to any detriment (for the purposes of Section 23 of the National Minimum Wage Act 1998) by being involved in a disciplinary process that was neither unwarranted, unreasonable, nor the direct consequence of her being entitled to the national minimum wage."
1. Section 104 A
"What was clear to the Tribunal was that the applicant understood that she had to work harder to meet her employers' productivity standards (which were not at any point challenged as being unreasonable) and that she was in danger of losing her job if she did not."
We have some difficulty with that. The 1999 Act did not have the effect of changing the terms of Mrs Bopari's contract; it remained a piece-work contract but, on and after the 1st April 1999, it had a statutory "floor" or minimum level of remuneration which (in the absence of any finding as to a "fair estimate agreement" within regulation 25 of the National Minimum Wage Regulations 1999) was to be computed by reference to the statutory minimum hourly rate and the number of hours which she had spent on her work, which was (presumably) "time" or "output" work within regulation 3 or 5 of the 1999 Regulations - see regulations 20 and 24. If that was the only effective alteration to Mrs Bopari's contract then questions arise as to whether Grasshopper was, at law, able unilaterally to require a higher rate of output than had been observed, without objection, from Mrs Bopari in the past, a higher rate which had not been contractually agreed, and then to threaten her with the loss of employment if that higher unagreed rate was not attained. This is an area which the Employment Tribunal leaves totally unexplained. We do not say that the Tribunal's decision is necessarily wrong in law here but, in the absence of explanation, its decision is in our judgment, vulnerable to the Meek -v- City of Birmingham doctrine to which we shall need to return below.
"We are satisfied, however, that in the case before us, the imposition of that wage rate was neither the sole nor the principal reason for the Applicant's dismissal."
That also, in our view, requires some further explanation. As we have mentioned, there is no finding that Mrs Bopari's work under her piece-work contract had been complained of before the 1999 Act came into effect. The new level of output rightly or wrongly demanded of her was by reference to a rate required by the employer "to justify the National Minimum Wage rate in operation". The initial time and motion checks had found unacceptably low levels of output in May 1999. There is no finding that it was mere coincidence that that was immediately after the first full month of the operation of the 1999 Act. These surrounding circumstances do suggest a prima facie case that there was a close causal connection between the higher output rate required "to justify the National Minimum Wage Rate" and Mrs Bopari's dismissal and hence there was a need for the Tribunal to explain more fully than does that single sentence cited above that, in the Tribunal's view, the dismissal was not because Mrs Bopari was qualified for the National Minimum Wage.
"We considered that the company was entitled to employ work study measures to determine required standards of productivity, and that they did so properly, openly and without oppression. We believed it was significant that no challenge was made either to the level of production required to be met by the applicant or to that aligned to the National Minimum Wage cost, and would observe that some employees were achieving productivity rates well above that."
Of course, the fact that other employees were achieving better productivity rates than Mrs Bopari would not, of itself, provide a reason to dismiss Mrs Bopari. Moreover, that no challenge was made by her to the level of production required of her is immaterial unless it could be said that the absence of challenge over a period represented acquiescence in and acceptance of new minimum piece-work rates contractually to be required of her, as to which there is no finding. Equally, although the company's entitlement to employ work study measures to determine standards of productivity could not be challenged, it does not follow from that that a person, such as Mrs Bopari, on a piece-work contract with no specified rate of output required of her, could be dismissed by reason of falling short of such standards. Further explanation is needed.
"..... was in fact on grounds of capability and, measured against the criteria of section 98 (4) of the Employment Rights Act 1996, was not unfair."
It is to be remembered that for the purposes of section 98 "capability" means, in relation to an employee, his capability assessed by reference to skill, aptitude, health or any other physical or mental quality. The Tribunal does not explain what assessment by reference to skill, aptitude, health or any other physical or mental quality was carried out by Grasshopper or was in Grasshopper's contemplation at the point of dismissal. It does not seem to us to follow that a failure to meet a given target output is necessarily a shortcoming in, for example, skill or aptitude as quite different factors (such as the adequacy of training or of the equipment given to the particular worker to do the job) may require to be taken into account. Simply to say that Mrs Bopari achieved, say 67% whereas others did 94% is not, of itself, an indication of a want of skill or aptitude in Mrs Bopari. However, the appeal, we were told, was limited to sections 104 A and 23 so that we attach no weight to our doubts in that area of section 98.
2. Section 23
"(1) A worker has the right not to be subjected to any detriment by any act ... by his employer, done on the ground that -
a) ..........
b) ..........
c) the worker qualifies .... for the National Minimum Wage ..."
Sub-section (4) disapplies the section where the detriment is a dismissal within Part X of the Act. The word "detriment" is left undefined but it is reasonable to suppose that Parliament had in mind the meaning attributed to the word (in the context of sex discrimination) by the Court of Appeal in Jeremiah -v- Ministry of Defence [1979] IRLR 437 as consisting of "Putting under a disadvantage" (paragraph 22, per Brandon L.J.) or more fully (per Brightman L.J. at paragraph 47):-
"I think a detriment exists if a reasonable worker would or might take the view that [the matter complained of] was in all the circumstances to his detriment."
"We have also considered section 23 of the National Minimum Wage Act 1998 but cannot accept that the applicant was subjected to any detriment by being involved in a disciplinary process that was neither unwarranted nor unreasonable, and was not, in our view, the direct consequence of her being entitled to the National Minimum Wage."
But whether it was "unwarranted" depends, in our view, upon whether Grasshopper had any contractual right to specify increased targets, a matter which, as we have said, the Tribunal does not explain. Moreover, and even assuming that the statutory words "on the ground that" in section 23 are as restricted as the Tribunal's phrase "the direct consequence", a practical test for the Employment Tribunal to have applied to find the existence or not of a causal link between the new targets and the consequential disciplinary process on the one hand and the payment of the minimum wage on the other would have been for the Tribunal to examine whether Grasshopper would have required the higher targets and hence been able to have used disciplinary process as they did or would otherwise have been minded to dismiss Mrs Bopari if it had not had to pay her the minimum wage.
3. Conclusion