Sky News: Office of Fair Trading drops Bank Charge Litigation

Sky News have broken the story that the OFT will announce at 7am tomorrow that it intends to drop the Bank Charges case. See below for an interview spot with me on Sky News.

IVF Treatment and Sex Discrimination

[Thanks to Caroline Musgrave of Cloisters for providing this case summary]

The EAT (Underhill P) has handed down its decision in Sahota v Home Office, which considers whether IVF treatment should be treated as equivalent to pregnancy for the purposes of the Sex Discrimination Act such that a comparator need not be identified.

The appeal failed for different reasons but the EAT expressed their view on the comparability of IVF treatment and pregnancy as follows:

• The woman undergoing IVF treatment is clearly to be regarded as pregnant for the period following the implantation of the fertilised ova until the end of the protected period as set down in s.3A(3)(a)(i)-(iii) SDA.
  
• Prior to implantation, less favourable treatment of a woman on the ground that she is receiving IVF treatment may constitute sex discrimination during the limited, closely defined, period set down by the ECJ in Mayr v Backerei und Konditorei Gerhard Flockner OHG [2008] IRLR 387. The period in question is the advanced stage between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus. The EAT did not accept that there should be a wider period of protection.

Drop in Annual Compensation Limit

For the first time ever, the annual review of compensation limits has resulted in a reduction to the maximum compensatory award limit.

From 1st February 2010, the maximum compensatory award drops from £66,200 to £65,300.

A week's pay (for basic award and redundancy pay purposes) remains the same at £380.

Employment Rights (Revision of Limits) Order 2009

Contingency Fees: Consultation

Following consultation, the above Regulations have now been published and are currently the subject of further consultation with the appropriate consultees. It is the Government's proposal to lay the Regulations as early as possible in the new Parliamentary term with a view to implementation in April 2010.

The draft Regulations and covering letter are available here.

In summary, the proposed Regulations:

• Render unenforceable any DBA (damage based agreement, also known as contingency fee agreement) that does not comply with certain specific requirements including the costs and expenses payable and the reasons for setting the fee at the agreed level;
  
• Before the agreement is signed, the client must be informed of certain specific matters including other methods of available funding and the circumstances in which the client may seek a review of the costs and expenses incurred;
• Impose a maximum costs percentage of 25% of damages;
• Allow a Claimant to terminate the DBA at any time leaving their liability to their representative limited to the reasonable costs actually incurred (at an hourly rate) for work undertaken to the point of termination.

You are at liberty to make any representations to the Ministry of Justice (privatefundingbranch@justice.gsi.gov.uk) and/or via any of the named Consultees who include the ELA and Law Society. Any comments are to be received for submission to the MoJ by Friday 8 January 2010.

All the relevant consultation papers are available at
http://www.justice.gov.uk/consultations/regulating-damges-based-agreements.htm including a list of all the Consultees.

Review of the Year (and other exciting things!)

On behalf of everyone who produces these bulletins, I am writing to wish you a very happy Christmas and New Year, and to thank you for continuing to read these newsletters.

I would also like to highlight these two really useful resources:-

• first, the excellent Review of the Year produced by the employment team at Wragge & Co, who have given me permission to distribute this link
  
  
• second, free access to a webinar recorded earlier this year by Tom Croxford of Blackstone Chambers on Whistleblowing . This will give everyone in your office two hours' CPD upon watching the webinar and completion of a short multiple-choice test. You can also obtain access to webinars for the next 12 months via CPD Webinar's website.

Finally, on a lighter note, if you are looking for a Christmas read, may I be bold enough to suggest the legal comedy novel by Tim Kevan entitled 'BabyBarista and the Art of War' which The Times recommended as "a cross between The Talented Mr Ripley, Rumpole and Bridget Jones’s Diary" and Jeremy Vine described as "a wonderful, racing read - well-drawn, smartly plotted and laugh out loud". Or for something even lighter, try the Unfair Dismissal song.

Daniel Barnett

Compromise Agreements

[Thanks to Lionel Stride of 1 Temple Gardens for providing this case summary]

The EAT (Silber J) has handed down its decision in Industrious Ltd v Vincent, which is authority for the proposition that the Employment Tribunal does have jurisdiction to determine whether a compromise agreement, otherwise complying with the provisions of section 203(3) of the ERA, is unenforceable because of misrepresentation.

There was conflicting authority on whether the Employment Tribunal had any jurisdiction to set aside such a compromise agreement. However, applying the principle in Hennessey v Craigmyle [1985] ICR 879 that the word agreement is subject to all the qualification by which an agreement can be voided at common law, the EAT found that the Employment Tribunal had to ensure that any purported compromise disposing of employment proceedings was a valid agreement. As such an enquiry was not expressly precluded under the ERA, it therefore had jurisdiction to determine the issue.

Supreme Court Decision on JFS Case

The Supreme Court has, this morning, held by a 5:4 majority that the (old) admissions policy of JFS is directly discriminatory on grounds of race.

I'm not going to summarise the reasoning (it's very long). Both a press release and the full judgment are available.

Religious Belief v Sexual Orientation

[Thanks to Claire Darwin of Matrix Chambers for summarising this case]

The Court of Appeal has this morning handed down its judgment in Ladele v London Borough of Islington (the Christian registrar case).

It is authority for the proposition that there is nothing in the Religion or Belief Regulations 2003 that entitled Ms Ladele, as a civil partnership registrar, to insist on her right not to have civil partnership duties assigned to her because of her belief that civil partnerships were contrary to the will of God.

The Court of Appeal agreed with the EAT that Ms Ladele was neither directly nor indirectly discriminated against, nor harassed contrary to the 2003 Regulations, by being designated a civil partnership registrar, by being required to officiate at civil partnerships, or by any other aspect of her treatment by Islington.

Interestingly, the Court of Appeal (unlike the EAT) did go on to consider the conflict of rights issue, namely whether the effect of the Sexual Orientation Regulations 2007 is to "trump" the right to freedom of religion. The Court of Appeal held that the prohibition of discrimination by the 2007 Regulations took precedence over any right which a person would otherwise have by virtue of their religious belief or faith, to practice discrimination on the ground of sexual orientation (save for in the limited circumstances provided for in Regulation 14 of those Regulations).

Costs - Important Case

The Court of Appeal has handed down a short supplemental judgment in St Albans' Girl School v Neary (see bulletin 16/11/09) dealing with the School's application for the costs of the Court of Appeal hearing.

The Court of Appeal held that where a Claimant in the employment tribunal "is pitched against his will into a costs-bearing jurisdiction", it would be normally be wrong to make a costs order against him if the appeal is successful.

This is a very different approach to that which the Court of Appeal normally adopts, and it is unclear whether this practice will be followed by subsequent divisions of the Court.

St Albans' Girl School v Neary - supplemental costs judgment

Protection from Harassment Act

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Veakins v Keir Islington Ltd, which is authority for the proposition that ...

In a claim for harassment under the Harassment Act 1997, when deciding whether the conduct complained of constitutes harassment within section 1, the primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which would sustain criminal liability (per Lord Nicholls in Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34).

Although there is nothing in the language of the Act which excludes workplace harassment, Lord Maurice Kay giving the leading speech did not expect that many workplace cases will give rise to liability under the Harassment Act. The Employment Tribunal will more fittingly provide the remedy for the great majority of cases of high-handed and discriminatory conduct.

Veakins, a trainee electrician, gave unchallenged evidence that she was a usually robust woman who had been victimised and demoralised by her supervisor and became clinically depressed. Lord Maurice Kay held that in this unusually one-sided case the proven conduct crossed the line into conduct which is oppressive and unreasonable which he considered would, in the event of a prosecution, be sufficient to establish criminal liability.

TUPE - Failure to Consult

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (HHJ Peter Clark) has handed down its decision in Cable Realisations v GMB , which is authority for the proposition that:

• in a TUPE transfer, the obligation to inform affected employees is a discrete obligation which arises even if no measures are contemplated in relation to the transfer;
  
• in setting a protective award for a breach of Regulation 13 TUPE, applying Susie Radin (a redundancy consultation case) the size of the protective award should reflect the justice of the case; and,
  
• on the facts, an award of three weeks pay per affected employee, appealed by both sides, was "like baby bear's porridge,... just right".

Accordingly, employers who make a porridge of their Regulation 13 obligations do not automatically face a compensation (honey) pot of 13 weeks' pay per affected employee. The EAT also remarked that the provision of information is designed to facilitate informed consultation, whether or not it is obligatory.

Religious Belief Discrimination

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (Underhill P) has handed down its decision in McFarlane v Relate, which is authority for the proposition that:-

• following Ladele (the Registrar case), dismissing a Christian who was a relationship counsellor required to counsel same-sex couples about their sex lives when he equivocated about conforming to that requirement, was not direct discrimination, as it arose from a manifestation of belief rather than the belief itself
  
  
• indirect discrimination was justified since the employer had the legitimate aim of providing services equally to all users, achieved by requiring staff to participate in the provision of services, even if that conflicted their with religious beliefs
  
  
• this type of dismissal can be fair for conduct or SOSR, but the EAT deprecated the increasing tendency of employers to dismiss on grounds of 'loss of trust and confidence', when the concept of trust and confidence is a constructive dismissal - not really an actual dismissal - concept.
  
  

The EAT decided the appeal with the parties' consent despite the pending Court of Appeal Judgment in Ladele.