Acas to conciliate in EAT cases

Acas is extending its conciliation services to cover certain categories of EAT cases, at the EAT's invitiation. The type of cases where conciliation may be appropriate will include cases where:

• the employment relationship is ongoing
• a case might be referred back to the employment tribunal; or,
• appeals covering monetary awards

Thanks to Eugenie Verney for telling me about this development

Click here for Acas press release

Statutory Grievances - Admissibility of Claims

The EAT has come up with another clever way of circumventing s31 of the Employment Act 2002 in Mackay v Blakes Newsagents (HHJ Serota QC).

It held that where an ET1 is presented prematurely (because 28 days from the grievance letter had not elapsed), an employment tribunal has jurisdiction to permit the ET1 to be amended after the 28 days has elapsed, provided it contains one or more causes of action that are not caught by s32(2).

Increase in Annual Leave

The draft Working Time (Amendment) Regulations 2007 are now available. They phase in an increase in the annual leave entitlement from 4 weeks to 5.6 weeks.

[Thanks to www.emplaw.co.uk for this information.]

Updated Acas Guides

Acas has updated its website guides on maternity and annual leave. It has also just published two research papers on sexual orientation discrimination.

Unfair Dismissal Compensation - Sick Employees

The EAT has handed down an important decision, GAB Robins v Trigg, dealing with the calculation of a compensatory award for a constructively dismissed employee who had been off work sick.

The issue, on which there was no direct authority, was whether such an employee's loss of earnings has been caused by the constructive dismissal or, instead, caused by her long-term sick absence. The employer argued that since the employee had been off work for four months prior to her dismissal, her absence after the dismissal had not been caused by that dismissal.

HHJ Peter Clark distinguished an 'actual' dismissal, where loss of earnings might not be awarded, from a 'constructive' dismissal (para. 66). The constructive dismissal covered a whole series of events, not just the 'last straw' (failure to deal with a grievance properly), some of which were the incidents of bullying and overwork which gave rise to the sickness absence in the first place.

In those circumstances, the course of conduct by the employer amounted to a breach of the implied term, formed part of the constructive dismissal, and thus the Claimant’s ill-health caused by that breach is to be treated as a consequence of the dismissal leading to loss of earnings which would otherwise have been received at the full rate from the employer, such loss being attributable to action taken by the employer (para. 75)

Cheekiest Legal Argument of the Year

As part of my ongoing quest to find the cheekiest legal argument of the year (see bulletin 18/5/07), the second contender is the employer in Cummings v Scholarest.

The Claimant presented an equal pay claim to the employment tribunal with an equal pay claim. Her solicitor misspelled her name on the ET1 as Mrs W.E. Cummings (it should have been Mrs W.E. Cowings). The Claimant, who had worked for the employer for 30 years, set out her place of work and address correctly.

The employer applied to strike out the claim on the basis that the Claim Form did not correctly identify the Claimant. The employment tribunal granted the application.

Quashing the decision, the EAT made it clear that there was a power to amend the name of the Claimant, and sent the case back to a different chairman with a clear steer to make a finding that it was just and equitable to allow the Claimant to amend her name on the ET1.

(any other contributions for 'cheekiest legal argument of the year' gratefully received)

Introducing New Claims outside the Limitation Period

The EAT has handed down judgment in the important case of TGWU v Safeway Stores. It is authority for the proposition that it will almost always be permissible to amend a Claim Form to introduce a new legal cause of action which relies on already pleaded facts, even if the new cause of action is out of time (see paras. 13 and 15).

Even if you don't have a case involving this particular point, this is a decision well worth reading for Underhill J.'s analysis and explanation of the authorities on amending Claim Forms.

New Points on Appeal

Quite simply, the perfect guidelines on whether new points can be taken on appeal - see paragraph 50 of HHJ McMullen QC's judgment in this case with a very long name.