Unfair Dismissal Investigations

The EAT has handed down judgment in Corus UK Ltd v Mainwaring, considering various points arising out of a conduct / capability investigation where an employee was accused of malingering. The two key points are:-

• there is no obligation to take a statement from the person who 'tips-off' the employer about possible malingering, if the employer then relies on medical/video evidence (rather than the original statement) when dismissing (para. 28)
• there is no obligation to seek a report on malingering from a consultant - an occupational health physician will suffice (para. 43)

Equal Pay

The Court of Appeal has, today, killed off the argument that the equal pay legislation does not apply where the woman is doing higher rated work than a man (rather than work rated the same).

In Redcar v Cleveland Borough Council, the Court rewrites s1(5) of the Equal Pay Act 1970 to make this clear - see para. 25 of the judgment.

EAT Time Limits

The EAT has provided consolidated guidance on the rules relating to the 42-day time limit for appealing a tribunal decision, including the circumstances when an extension of time will be considered. The guidelines appear at para. 5 of HHJ McMullen's judgement in four consolidated appeals here.

The facts of the four appeals are then considered, providing useful examples of how the EAT exercises its discretion.

Part-time Tribunal Chair not 'Worker' for PTWR 2000

On 24th July 2007, I sent out a bulletin about this important case, Christie v DCA, saying that I would send the link out when the judgment was put on the internet.

Well, it's gone up:-
http://www.bailii.org/uk/cases/UKEAT/2007/0140_07_2307.html

New Acas Chair

Edward Sweeney has, this afternoon, been announced as the new Chair of the Acas (Advisory, Conciliation and Abritration Service) Council. He is deputy General Secretary of AMICUS, and is a past General Secretary of UNIFI and BIFU.

He replaces Rita Donaghy with effect from 1st October 2007. The appointment is for three years.

See Press Release

Data Protection: what is 'personal information'?

A new 21-page technical guidance note, 'Determining what is personal data', explains and illustrates the Information Commissioner's view of what is 'personal data' for the purposes of the Data Protection Act. The guidance provides many examples to illustrate circumstances when data relates to an identifiable, living individual.

There is an accompanying short Press Release on the ICO website.

The introduction to the new guidance says that they will soon also be producing new guidance on the meaning of 'relevant filing system'.

[Information provided by www.emplaw.co.uk, to whom I express my thanks]

Employment Tribunal Statistics

The Tribunals Service has just published the 2006/07 employment tribunal statistics (some of the headline statistics were included in the ETS annual report in July - these stats are far more detailed).

Headline points:

• number of cases brought increased by 15%
• number of cases disposed of increased by 19%
• 972 (of 238,546) jurisdictions claimed were age discrimination (note the statistics cover 1st Apr 06 to 31st Mar 07 - and age discrimination only came in on 1st Oct 06, so this should be doubled to get a true pro rata figure)
• equal pay and unfair dismissal came out tops, each with about 44,000 (of 238,546) jurisdictions
• 8% of submitted claims were rejected. Of those, about one-third were resubmitted and accepted.

Much of the increase can be attributed to the substantial number of local authority equal pay claims.

Also of interest, is that the EAT heard 432 cases at a full hearing, a decrease of 22% on the year before.

When is a shareholder an employee?

This vexed question tends to crop when the owners of a company claim a statutory redundancy payment from the DTI following the company's insolvency.

Underhill J. considers a number of conflicting authorities, the best-known of which, Bottrill, poses the question 'who really owns the company?'. He sets out his view (as obiter) that:

"the fact that a claimant under the employment protection legislation is a majority shareholder and a director of the company which employs him does not affect his status as employee unless the tribunal finds that the company is a 'mere simulacrum' ... (and thus, by the same token, that the contract between it and the putative employee is a sham)" (para. 29)

Nesbitt v Secretary of State for Trade and Industry