Last week we heard about the Respondent whose Response was struck out for threatening the Claimant in the tribunal car park. This week, things get even closer to home - a Respondent threatened a Claimant, using unpleasant and intimidating language, outside the lifts at the Southampton tribunal (see para. 6 of the judgment).
The employment tribunal held that such threats could not amount to an actionable case of victimisation, as they were so closely connected with the hearing that judicial proceedings immunity applied. The EAT overturned this, holding that conversations outside the lift did not form any part of the juducial proceedings (para. 15).
Separately, the EAT held that conduct intended to deter a Claimant from enforcing his statutory employment rights would be sufficient closely connected with the employment relationship to amount to a (potentially) unlawful act by an employer within the meaning of the discrimination legislation (para. 14).
Tuesday, 29 April 2008
Wednesday, 23 April 2008
Strike Out: Intimidatory Conduct
The EAT has held, in Force One Utilities v Hatfield, that it is appropriate to strike out a Response when the employer's main witness threatens the Claimant at the tribunal.
The Respondent's main witness threatened and swore at the Claimant in a car park near the tribunal (see paras. 7-9). The EAT held that:
The Respondent's main witness threatened and swore at the Claimant in a car park near the tribunal (see paras. 7-9). The EAT held that:
- once intimidation of this kind has occurred, it will be a very exceptional case where it can be said that a finding that no fair trial is possible is perverse (para. 28);
- a possible exception is where the intimidation happens very late in the trial, when a fair hearing may well remain possible (para. 31).
Friday, 18 April 2008
TUPE: Who does the thinking?
Thanks to Anthony Johnson of 1 Temple Gardens for preparing this case summary.
In Dynamex Friction v. Amicus, the Court of Appeal held that in TUPE cases, when determining whether the reason for a dismissal was transfer-related or an economic reason, it has be the person who took the decision whose thought process is subject to analysis.
In this case, as the company were in administration, it was the administrator’s decision that came under the microscope. The Tribunal had found as a fact that he had to dismiss the employees because he had no money with which to pay them; it had to be said that was an economic reason. Although a purchaser of the business was subsequently identified a week later, there was no evidence to suggest that the administrator dismissed the staff in order to have a better prospect of selling the business. Accordingly, the employees were not dismissed 'immediately before' the TUPE transfer for the purpose of the 1981 Regulations.
So far so good: however, matters were complicated by an allegation that the administrator's mind had been affected by the "Machiavellian machinations" of the American managing director who had the day-to-day running of the business. It was alleged that the administration had essentially been stage-managed, using the administrator as an "unwitting tool" for the business to be regained via an alternative investment vehicle without having to incur various liabilities.
The Court of Appeal held that, even taking these allegations as proven and at their highest, they would not impact upon its decision. The Shrewsbury ET had found as fact that there was no collusion between the administrator and the director. Ward LJ said that the crucial question was "whose decision was it?" Once it was established that it was the administrator's independent decision, nothing done by the director or anyone else could be said to have any bearing on why he did what he did.
In Dynamex Friction v. Amicus, the Court of Appeal held that in TUPE cases, when determining whether the reason for a dismissal was transfer-related or an economic reason, it has be the person who took the decision whose thought process is subject to analysis.
In this case, as the company were in administration, it was the administrator’s decision that came under the microscope. The Tribunal had found as a fact that he had to dismiss the employees because he had no money with which to pay them; it had to be said that was an economic reason. Although a purchaser of the business was subsequently identified a week later, there was no evidence to suggest that the administrator dismissed the staff in order to have a better prospect of selling the business. Accordingly, the employees were not dismissed 'immediately before' the TUPE transfer for the purpose of the 1981 Regulations.
So far so good: however, matters were complicated by an allegation that the administrator's mind had been affected by the "Machiavellian machinations" of the American managing director who had the day-to-day running of the business. It was alleged that the administration had essentially been stage-managed, using the administrator as an "unwitting tool" for the business to be regained via an alternative investment vehicle without having to incur various liabilities.
The Court of Appeal held that, even taking these allegations as proven and at their highest, they would not impact upon its decision. The Shrewsbury ET had found as fact that there was no collusion between the administrator and the director. Ward LJ said that the crucial question was "whose decision was it?" Once it was established that it was the administrator's independent decision, nothing done by the director or anyone else could be said to have any bearing on why he did what he did.
Fixed Term Workers: ECJ decision may cause chaos for employers
Thanks to Katherine Apps of Littleton Chambers for writing this case summary
The ECJ has handed down judgment in Impact v Minister for Agriculture and Food (Ireland). The case is important both for its ruling on the substantive law and particularly on how Claimants can protect their EC law rights in national Employment Tribunals. The ECJ holds:-
The ECJ has handed down judgment in Impact v Minister for Agriculture and Food (Ireland). The case is important both for its ruling on the substantive law and particularly on how Claimants can protect their EC law rights in national Employment Tribunals. The ECJ holds:-
- Non-discrimination rules in the Fixed Term Workers Directive have direct effect, meaning they can be enforced directly irrespective of the national laws (para 59-68).
- Abuse by use of successive fixed term contract rules do not have direct effect, but national law should be interpreted consistently with the Directive if at all possible (para.80 and para. 104). The ECJ sets out in terms what is 'possible' and holds that retroactive effect must be given to the Irish legislation.
- The principle of non discrimination against fixed term workers extends to pension entitlements: This has the potential to cause chaos for employers which treat fixed term employees differently for pension purposes, or exclude them altogether from their pension scheme. As Article 4(2) has been held to have direct effect this ruling will be of particular concern to public bodies. It should also be noted that the extent of indirect effect through the duty of consistent interpretation could potentially significantly affect private employers as well.
- Employees must be able to bring claims based on EC law in the Employment Tribunal: The ECJ held that where national legislation implementing EC law provides for a specialist court jurisdiction (here the Irish Labour Court, which is similar to the Employment Tribunal system), European law requires that that tribunal have the power to hear and determine disputes arising directly from that European legislation. It is not sufficient for Claimants to have recourse separately to the County Court/ High Court (paras 37-55); the tribunal must have jurisdiction to hear the complaints.
Thursday, 17 April 2008
Unfair Dismissal: Burden of Proof
In Kuzel v Roche, handed down this morning, the Court of Appeal has comprehensively analysed the operation of the burden of proof in unfair dismissal claims. The EAT decision was considered in the Employment Law List bulletin 8/3/07.
Noting "how worked up lawyers can get about something like the burden of proof", Mummery LJ sought to resolve the dispute about who has to show the reason for dismissal in a case where there are rival reasons put forward by each side, one of them being the making of protected disclosures.
Urging that the issue needs to be seen in the context of Part X of the ERA 1996, it was held that it was clearly for the employer to show that it had a (potentially fair) reason for dismissing the employee. When an employee positively asserts a different reason such as whistleblowing the burden of proof does not pass to him or her; whilst the employee must produce some evidence supporting the positive case, the employee does not bear the burden of proving that the dismissal was for that reason.
It is sufficient for the employee to challenge the evidence produced by the employer to show that the reason advanced by him for the dismissal and to produce some evidence of a different reason. As Mummery LJ stated, "An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was."
[Thanks also to Nick Hanning of RWPS Law, and to John Bowers QC of Littleton Chambers (who acted for the Respondent), for telling me about this case]
Noting "how worked up lawyers can get about something like the burden of proof", Mummery LJ sought to resolve the dispute about who has to show the reason for dismissal in a case where there are rival reasons put forward by each side, one of them being the making of protected disclosures.
Urging that the issue needs to be seen in the context of Part X of the ERA 1996, it was held that it was clearly for the employer to show that it had a (potentially fair) reason for dismissing the employee. When an employee positively asserts a different reason such as whistleblowing the burden of proof does not pass to him or her; whilst the employee must produce some evidence supporting the positive case, the employee does not bear the burden of proving that the dismissal was for that reason.
It is sufficient for the employee to challenge the evidence produced by the employer to show that the reason advanced by him for the dismissal and to produce some evidence of a different reason. As Mummery LJ stated, "An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was."
[Thanks also to Nick Hanning of RWPS Law, and to John Bowers QC of Littleton Chambers (who acted for the Respondent), for telling me about this case]
Wednesday, 16 April 2008
ACAS: New advice on depression at work
Acas has, today, issued new advice to employers on how to spot signs of depression in the workplace. This comes in anticipation of Depression Awareness Week.
It coincides with the publication of Acas's new booklet on Health, Guide and Wellbeing (warning: large file!), which includes sample checklists and policies.
It coincides with the publication of Acas's new booklet on Health, Guide and Wellbeing (warning: large file!), which includes sample checklists and policies.
Tuesday, 15 April 2008
Constructive Dismissal
Here's a dare: read this judgment of the EAT and try not to laugh...
In this sorry story of bullying within a Peugeot dealership in Oxford, learn about the manager who "habitually grabbed colleagues...in the testicles" and called a senior salesman "the old parsonage", "old buzzard" and "old git". Try not to imagine the "hairdryer treatment" (aka Sir Alex Ferguson) dealt out to underperforming salesmen, or the peculiar games played with airguns and mini motorbikes...
Anyway, the EAT decided that such conduct was plainly and unarguably likely to destroy the employment relationship, and overturned the tribunal's finding that there had not been a constructive dismissal (substituting a finding that there was one).
Parsons v Bristol Street Motors
In this sorry story of bullying within a Peugeot dealership in Oxford, learn about the manager who "habitually grabbed colleagues...in the testicles" and called a senior salesman "the old parsonage", "old buzzard" and "old git". Try not to imagine the "hairdryer treatment" (aka Sir Alex Ferguson) dealt out to underperforming salesmen, or the peculiar games played with airguns and mini motorbikes...
Anyway, the EAT decided that such conduct was plainly and unarguably likely to destroy the employment relationship, and overturned the tribunal's finding that there had not been a constructive dismissal (substituting a finding that there was one).
Parsons v Bristol Street Motors
Monday, 14 April 2008
'Unless' Orders
The Court of Appeal has held that 'Unless' orders take effect without further action from the tribunal. So if a date passes under an 'Unless' order without the relevant party complying, the consequence (usually a strike-out) takes effect automatically on that date - no further application or action is required by either the tribunal or the other party.
Prior to a 2007 case in the Court of Appeal in normal civil litigation, it was unclear whether a further application or Order was required to give effect to the consequences of a failure to comply with an 'Unless' Order. The 2007 case, Marcan Shipping v Kefalas, made it clear that no further action was needed. This new case, Chukwudebelu v Chubb Security, makes it clear that the same principle applies in employment tribunals (see paras. 38-39).
Prior to a 2007 case in the Court of Appeal in normal civil litigation, it was unclear whether a further application or Order was required to give effect to the consequences of a failure to comply with an 'Unless' Order. The 2007 case, Marcan Shipping v Kefalas, made it clear that no further action was needed. This new case, Chukwudebelu v Chubb Security, makes it clear that the same principle applies in employment tribunals (see paras. 38-39).
When is a controlling shareholder an employee?
A different division of the EAT has agreed with Elias P.'s analysis in Clark v Clark Construction (see bulletin 29/2/08), setting out the guidance for whether a controlling shareholder of a company is also its employee.
In Neufeld v A&N Communication in Print Ltd., HHJ McMullen QC affirmed the guidance given by Elias P., holding that a 90% shareholder of a company was also its employee. Two additional points of interest arose:-
In Neufeld v A&N Communication in Print Ltd., HHJ McMullen QC affirmed the guidance given by Elias P., holding that a 90% shareholder of a company was also its employee. Two additional points of interest arose:-
- the date at which the individual's status is to be considered is the date of the dismissal, not the date that s/he is alleged to have entered into a contract of employment (para. 14); and,
- the fact that the individual has offered guarantees (eg guaranteeing the company's debts to a bank)s not inconsistent with employment status (para. 30).
Friday, 11 April 2008
Immigrant Workers
The application process for companies wishing to apply for a licence as a Sponsor under Tier 2 of the New Points Based System which will replace the existing work permit system has now started.
The significance of this application process should not be underestimated. As from later this year, possibly 1st October, any company wishing to take on an individual on a work permit or apply for an extension for an individual to their existing work permit, must be licensed as a Sponsor.
The application process involves an online application and then the submission of specified documentation within 10 working days of the application date. Most applicants will then receive a visit from an officer of the Border and Immigration Agency as part of the evaluation procedure.
[Thanks to Mark Barnett, Head of Immigration at Steeles Law, for telling me about this.]
The significance of this application process should not be underestimated. As from later this year, possibly 1st October, any company wishing to take on an individual on a work permit or apply for an extension for an individual to their existing work permit, must be licensed as a Sponsor.
The application process involves an online application and then the submission of specified documentation within 10 working days of the application date. Most applicants will then receive a visit from an officer of the Border and Immigration Agency as part of the evaluation procedure.
[Thanks to Mark Barnett, Head of Immigration at Steeles Law, for telling me about this.]
Definition of 'Redundant'
The EAT, in Martland v Cooperative Insurance Society, has considered whether a dismissal, when the workforce is immediately offered re-engagement on new terms and conditions of employment, amounts to a 'redundancy' dismissal (entitling the workforce to redundancy payments).
The tribunal found that such dismissals were not redundancy dismissals, but were dismissals for some other substantial reason.
The employees appealed, arguing that they had been dismissed because there was a reduction in the need for employees to do 'work of a particular kind', i.e. work under those terms and conditions.
The EAT upheld the ET's decision, holding that 'work of a particular kind' referred to the generic type of job - in this case, insurance salesmen. The tribunal was entitled to find that the job was still essentially the same, despite the substantial changes to the terms and conditions of employment.
The tribunal found that such dismissals were not redundancy dismissals, but were dismissals for some other substantial reason.
The employees appealed, arguing that they had been dismissed because there was a reduction in the need for employees to do 'work of a particular kind', i.e. work under those terms and conditions.
The EAT upheld the ET's decision, holding that 'work of a particular kind' referred to the generic type of job - in this case, insurance salesmen. The tribunal was entitled to find that the job was still essentially the same, despite the substantial changes to the terms and conditions of employment.
Wednesday, 9 April 2008
Wasted Costs Order against Solicitors
The EAT has discharged a wasted costs order made against a firm of solicitors.
During a tribunal case, the tribunal found that the "voluminous documentation" showed conclusively that the employee's case was "unsustainable", and that some of her allegations were "wholly unfounded and unsupported".
The tribunal held that any competent adviser would have been bound to point out to the Claimant, after she had been cross-examined, that her case was bound to fail - but that her solicitor did not do so. Therefore, the tribunal held, her solicitor should be liable for subsequently incurred wasted costs.
The EAT discharged the wasted costs order, holding that the tribunal had failed to consider whether the solicitor had "failed in his duty to the court" (in accordance with Ridehalgh v Horsefield). It also noted the difficulty inherent in wasted costs order, which usually entails the waiver of legal professional privilege as to the advice given. Finally, it noted that the tribunal had failed to consider causation, i.e. if the solicitor had advised the Claimant to withdraw her claim, would she have kept going anyway?
Mitchells v Funkwerk Information Technologies
During a tribunal case, the tribunal found that the "voluminous documentation" showed conclusively that the employee's case was "unsustainable", and that some of her allegations were "wholly unfounded and unsupported".
The tribunal held that any competent adviser would have been bound to point out to the Claimant, after she had been cross-examined, that her case was bound to fail - but that her solicitor did not do so. Therefore, the tribunal held, her solicitor should be liable for subsequently incurred wasted costs.
The EAT discharged the wasted costs order, holding that the tribunal had failed to consider whether the solicitor had "failed in his duty to the court" (in accordance with Ridehalgh v Horsefield). It also noted the difficulty inherent in wasted costs order, which usually entails the waiver of legal professional privilege as to the advice given. Finally, it noted that the tribunal had failed to consider causation, i.e. if the solicitor had advised the Claimant to withdraw her claim, would she have kept going anyway?
Mitchells v Funkwerk Information Technologies
Wednesday, 2 April 2008
SI's coming into force on 1st and 6th April 2008
This is a list of British employment law related Statutory Instruments which come into force on 1st and 6th April 2008. This list is compiled by and reproduced with permission of www.emplaw.co.uk, which provides a page of dedicated deep links direct to these and other employment law SIs.
On 1st April 2008:-
On 6th April 2008:-
On 1st April 2008:-
- The Emergency Workers (Scotland) Act 2005 (Modification) Order 2008, SSI 2008/37 - in force 1.4.08
- The European Qualifications (Health and Social Care Professions) Regulations 2007, SI 2007/3101 - in force 3.12.07 & 1.4.08
- The Income Tax (Pay As You Earn) (Amendment No. 4) Regulations 2007, SI 2007/2969 - in force 1.4.08 and 1.4.09
- The Occupational and Personal Pension Schemes (General Levy) (Amendment) Regulations 2008, SI 2008/661 - in force 1.4.08
- The Pension Protection Fund (Prescribed Payments) Regulations 2008, SI 2008/664 - in force 1.4.08
- The Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2008, SI 2008/650 - in force 1.4.08
- The Scottish Commission for Human Rights Act 2006 (Commencement No. 2) Order 2008, SSI 2008/112 - in force 1.4.08
- The Social Security Benefits Up-rating Order 2008, SI 2008/632 - in force 1.4.08 to 10.4.08
- The Social Security (Miscellaneous Amendments) (No. 5) Regulations 2007, SI 2007/2618 - in force 1.10.07, 1.4.08 and 7.4.08.
- The Teachers’ Pensions (Miscellaneous Amendments) Regulations 2008, SI 2008/541 - in force 1.4.08
- The Value Added Tax (Increase of Registration Limits) Order 2008, SI 2008/707 - in force 1.4.08
- The Welfare Reform Act 2007 (Commencement No. 5) Order 2008, SI 2008/411 - fully in force 1.4.08
- The Welfare Reform Act 2007 (Commencement No. 6 and Consequential Provisions) Order 2008, SI 2008/787 - partly on 1.4.08 and fully on 27.10.08
On 6th April 2008:-
- The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007 SI 2007/3575 - in force 6.4.08
- The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No.1) Order 2008, SI 2008/401 - in force 6.4.08
- The Corporate Manslaughter and Corporate Homicide Act 2007 (Amendment of Schedule 1) Order 2008, SI 2008/396 - in force 6.4.08
- The Disability Discrimination (Public Authorities) (Statutory Duties) (Amendment) Regulations 2008, SI 2008/641 - in force 6.4.08
- The Employment Equality (Age) Regulations 2006 (Amendment) Regulations 2008, SI 2008/573 - in force 6.4.08
- The Gangmasters (Licensing Conditions) (No.2) (Amendment) Rules 2008, SI 2008/638 - in force 6.4.08
- The Guaranteed Minimum Pensions Increase Order 2008, SI 2008/581 - in force 6.4.08
- The Health and Safety (Fees) Regulations 2008, SI 2008/736 - in force 6.4.08
- The Income Tax (Car Benefits) (Reduction of Value of Appropriate Percentage) (Amendment) Regulations 2007, SI 2007/3068 - in force 6.4.08
- The Income Tax (Construction Industry Scheme) (Amendment) Regulations 2008, SI 2008/740 - in force 6.4.08
- The Income Tax (Pay As You Earn) (Amendment) Regulations 2008, SI 2008/782 - in force 6.4.08
- The Information and Consultation of Employees Regulations 2004, SI 2004/3426 - fully in force 6.4.08
- The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007, SI 2007/3075 - in force 23.2.08; 6.4.08 and 6.4.2011
- The Occupational Pension Schemes (Employer Debt and Miscellaneous Amendments) Regulations 2008, SI 2008/2008/731 - in force 6.4.08
- The Occupational Pension Schemes (Internal Dispute Resolution Procedures Consequential and Miscellaneous Amendments) Regulations 2008, SI 2008/649 - in force 6.4.08
- The Occupational Pension Schemes (Non-European Schemes Exemption) Regulations 2008, SI 2008/624 - in force 6.4.08
- The Pensions Act 2004 (Commencement No. 11) Order 2008, SI 2008/627 - in force 6.4.08
- The Sex Discrimination Act 1975 (Amendment) Regulations 2008, SI 2008/656 - in force 6.4.08
- DRAFT The Sex Discrimination (Amendment of Legislation) Regulations 2008 - in force 6.4.08 or on the 5th day after they are made whichever is the later
- The Social Security (Contributions) (Amendment) Regulations 2008, SI 2008/133 - in force 6.4.08
- The Social Security (Contributions) (Amendment No. 2) Regulations 2008, SI 2008/607 - in force by 6.4.08
- The Social Security (Contributions) (Amendment No. 3) Regulations 2008, SI 2008/636 - fully in force by 6.4.08
- The Social Security (Contributions) (Re-rating) Order 2008, SI 2008/579 - in force 6.4.08
- The Social Security (Contributions) (Re-rating) Consequential Amendment Regulations 2008, SI 2008/703 - in force 6.4.08
- The Social Security Pensions (Low Earnings Threshold) Order 2008, SI 2008/726 - in force 6.4.08
- The Tax Credits Up-rating Regulations 2008, SI 2008/796 - in force 6.4.08
- The Tribunals, Courts and Enforcement Act 2007 (Commencement No. 3) Order 2008, SI 2008/749 - in force 6.4.08
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