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Remedies in Employment Disputes

a seminar by the 2 Gray's Inn Square Chambers Employment Group

Wednesday, 27th June 2001

TOPICS TO BE COVERED

• gathering evidence for the compensatory award, eg proving and disproving a failure to mitigate; the problem of older workers; employees who start a new business
• remedies in discrimination claims, including 'personal injury' damages in the tribunal, and remedies other than compensation
• settlement and compromise agreements, with special consideration of the tax implications of settlement
• TUPE update (written presentation only)


SPEAKERS

Milan Dulovic (1982)
Adrian Roberts (1988)
Daniel Barnett (1993)



ADMINISTRATIVE DETAILS

Date: Wednesday, 27th June 2001

Venue: The Morrison Hall, 1 Atkin Buildings, Gray's Inn, London

Time: 6.15pm registration (seminar commences 6.30pm; drinks and buffet 8.30pm)

Fees: First Delegate - £50+VAT; Subsequent Delegates - £45+VAT


For further information and a booking form, please contact Claire Halas on claire@2gis.co.uk

ACAS Arbitration Scheme

Employment Law (UK) List - http://www.danielbarnett.co.uk
Instructions on how to subscribe to this bulletin, and a DISCLAIMER, appear at the bottom of this Email.

The new ACAS Arbitration Scheme went 'live' yesterday (21st May 2001). It was initially delayed after fears that it would contravene the Human Rights Act 1998.

It is available for unfair dismissal claims only (ie not discrimination, working time, breach of contract etc.) and cannot be used where there are issues as to whether the employee was dismissed, or whether the employee has sufficient continuity of service to bring a claim. The parties must agree to adopt the arbitration route, and it is not appropriate for complicated questions of law (eg TUPE or EC issues). The hearings are private and are inquisitorial rather than adversarial in nature.

A short - and excellent - summary of the arbitration procedure can be found at http://www.oneclickhr.com/hrupdate .

The relevant statutory instrument, namely the ACAS Arbitration Scheme (England and Wales) Order 2001 (SI 2001/1185) can be found at http://www.legislation.hmso.gov.uk/si/si2001/20011185.htm.

ACAS have produced a guide to the arbitration scheme, at www.acas.org.uk/index-11.htm .

Jurisdiction for Ex-Employee to bring Sex Discrimination Claim

The Court of Appeal has held that claims cannot be brought under the Sex Discrimination Act 1975 by ex-employees, in respect of alleged acts of discrimination occurring after the dismissal.

The case is Christine Rhys-Harper v Relaxion Group plc (C of A, 3rd May 2001, reported at http://wood.ccta.gov.uk/courtser/judgements.nsf/6ff876ba66f8361a8025683c00411386/4abe4ebd835b7de280256a4700467803/$FILE/civil_rhys_harper.htm).

Facts
The Applicant was dismissed in October 1998. Shortly after dismissal, in November, she raised allegations of sexual harassment by her manager whilst she was employed. The Respondent held an investigation and rejected her complaint. She claimed that the failure to allow her complaint was a detriment for the purposes of the Sex Discrimination Act 1975.

Issue
Does section 6 of the Sex Discrimination Act 1975, which refers to a woman "employed by" a Respondent to claim that she was subjected to a detriment, allow an ex-employee to claim that she was subjected to a detriment?

Decision
No. The wording of section 6 is plain, and only allows claims brought by people who were employees at the date of the alleged discrimination. The ECJ in Coote v Granada Hospitality (where it was held that a reference provided after a dismissal was capable of founding a claim of victimisation under the Sex Discrimination Act) allowed very limited categories of claims. The Court of Appeal's reasoning in Post Office v Adekeye, where the Court held that ex-employees could not claim under the Race Relations Act 1976, should be followed when considering non-victimisation claims under the Sex Discrimination Act 1975.

Comment
Whilst a consistent approach towards ex-employees under the sex and race legislation is laudable, it is regrettable that Coote still complicates matters in claims of victimisation. Further, it is unfortunate that the sex and race legislation does not protect ex-employees in these situations - but that is a legislative matter and not one for the courts!