Monday, 21 December 2009
Friday, 18 December 2009
[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:
Thursday, 17 December 2009
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
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 (firstname.lastname@example.org) 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.
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.
Wednesday, 16 December 2009
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  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.
I'm not going to summarise the reasoning (it's very long). Both a press release and the full judgment are available.
Tuesday, 15 December 2009
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).
Monday, 14 December 2009
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.
Thursday, 3 December 2009
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  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.
Wednesday, 2 December 2009
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.
Tuesday, 1 December 2009
[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:-
The EAT decided the appeal with the parties' consent despite the pending Court of Appeal Judgment in Ladele.