Daniel Barnett's Employment Law Archive

Disclosure of Documents Held Overseas

2012-01-30T04:04:00.000-08:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Does an Employment Judge in Scotland have the power to order a party outside Great Britain to disclose documents?

No, says a division of the EAT in Scotland (the Honourable Lady Smith, sitting alone) in Weatherford UK Ltd v Forbes . The employment tribunal's powers are limited to making orders that apply within Great Britain.

The Claimant obtained orders against the Respondent, a UK subsidiary of Texas-based company, for recovery of documents held overseas by its parent company, the notes of an interview of the Claimant by American attorneys acting for the parent company relating to possible litigation, and an order for additional information. The EAT upheld the Respondent's appeal against the orders.

The EAT held that whilst the power of Employment Judge in Scotland to order recovery of documents under the employment tribunal Rules of Procedure corresponds to those of a sheriff, unlike a Sheriff Court, the scope of that power extends outwith Scotland, to Great Britain, but not overseas, where, like the Sheriff Court, the letter of request procedure would apply, which entails requesting the relevant court in the foreign jurisdiction to order disclosure. The EAT observed that it would be difficult to see how the Respondent could be ordered to disclose documents held by its parent company outside the UK.

The EAT considered the extent to which any legal privilege applied to the documents in question, and, having heard that under US law, privilege would apply to those documents, held that the documents were protected from disclosure by privilege. The EAT also held that the documents were privileged under Scots law as post litem motam "prepared with litigation in mind" and it did not matter that the litigation in mind was not the tribunal proceedings, but other civil and criminal proceedings.

Four Weeks Paid Holiday Under EU Law Has Direct Effect

2012-01-27T02:22:00.000-08:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Does the right to four weeks annual paid leave under Art (7)(1) of the EU Working Time Directive have direct effect?

Yes, says the Court of Justice of the European Union in Dominguez v Centre informatique du Centre Ouest Atlantique, provided the employer is the State or an emanation of the State.

Ms Dominguez's claim against the Centre informatique du Centre Ouest Atlantique (CICOA) (a social security body) arose under the French Civil Code. Under the Code du Travail a worker is only entitled to paid annual leave if she has worked for ten days or a month during the reference period. The CJEU (Grand Chamber) ruled that Art 7(1) must be interpreted as precluding national provisions or practices which make entitlement to paid annual leave subject to such conditions.

The national law must therefore be interpreted, where possible, with a view to ensuring that Art 7 is fully effective, using all the interpretative methods available to it. In the event that this were not possible, it was necessary to consider direct effect.

The provisions of Art 7 were unconditional and sufficiently precise for direct effect against the State or an emanation of the State as employer. It was for the national court to determine the legal status of the employer in question (the CICOA), for that purpose.

Failing these routes to a remedy, the Court reminded us that a party injured as a result of domestic law not conforming with European law may nonetheless rely on the judgement in Francovich and others [1991] ECR 1-5357 in order to obtain, if appropriate, compensation for the loss sustained.

Vicarious Liability in Police Force

2012-01-27T02:12:00.000-08:00

[Thanks to David Campion, Pupil Barrister at Garden Court North Chambers, for preparing this case summary]

Could a chief police officer be vicariously liable for alleged discriminatory acts of a police officer against a civilian employee, under the Sex Discrimination Act 1975?

Yes, says the EAT in Metropolitan Police v Weeks. The Claimant was a Senior Crime Intelligence Researcher employed by the Commissioner of Police of the Metropolis. The Claimant was line managed by a City of London Police Detective Sergeant.

The Claimant's line manager, who had a supervisory responsibility towards the Claimant's employment and her levels of pay, rejected the Claimant's application for flexible working (a decision in turn overruled by a senior officer) and subsequently requested the cessation of the Claimant's shift allowance.

The employment tribunal originally determined that the Claimant's line manager made these decisions with the consent and authority of the Commissioner, a decision upheld by the EAT. The EAT concluded, at paragraph 25 of its Judgment, that the Commissioner was aware of the decisions made by the Claimant's line manager and that it was 'no major leap' to conclude such decisions were made either expressly or impliedly on his instructions, with his consent and on his behalf.

Vicarious Liability - Violent Employees

2012-01-24T09:18:00.000-08:00

[Thanks to Louise Jones of Temple Garden Chambers for preparing this case summary]

In Weddall v Barchester Healthcare; Wallbank v Wallbank Fox Designs Ltd, the Court of Appeal considered the concept of vicarious liability in circumstances of an attack on an employee by another employee, where the attack was a violent response to a lawful instruction of the employer.

The Court explored the key authorities on vicarious liability, including Lister v Helsey Hall [2001], which establish that there must be sufficient connection between what the employee is required to do and unlawful violence towards a third party. The Court identified the importance of the closeness of the connection between the wrongful act and the employment. Each case must be determined by reference to its own facts, although this determination may necessarily involve a 'value judgment'.

Consideration of the closeness of the connection between the wrongful act and the employment produced different results in the two cases:

In Mr Weddall's case, the employee, who had refused on the phone to work a night shift and then had turned up at his workplace and assaulted the claimant, was acting personally for his own reasons, and the underlying instruction was no more than a pretext for an act of violence unconnected with his work. The employer could not be held vicariously liable.
In Mr Wallbank's case, the employee was undertaking a task central to his employment, during which Mr Wallbank sought to work with him, in the course of which the employee threw Mr Wallbank onto a table, causing him injury. The Court was persuaded that the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction given to him.

Acas Issues Guidance for the Olympics

2012-01-24T08:28:00.000-08:00

Acas has issued guidance on how to deal with issues arising from the Olympic Games in the summer.

It covers issues arising for those who do, and don't, want to time off, and has a useful Q&A section for both employers and employees.

Redundancy and Suitable Alternative Employment

2012-01-19T07:50:00.000-08:00

[Thanks to Kate Balmerof Devereux Chambers for preparing this case summary]

Can an employee act reasonably in refusing an offer of suitable alternative employment where the Employment Tribunal correctly concludes that a reasonable employee would have accepted the employer's offer?

Yes, says the EAT in Readman v Devon Primary Care Trust.

Mrs Readman, a nurse, was placed at risk of redundancy and offered three alternative posts by her employer. One of the posts, a Hospital Matron position, was correctly found by the employment tribunal to amount to suitable alternative employment under s 141(3) of the ERA 1996. Mrs Readman refused this post on the grounds that, having worked in community nursing since 1985, she had no desire to return to a hospital setting. In the circumstances, she was denied a redundancy payment by her employer, relying on s 141 of the ERA. The Employment Tribunal similarly refused Mrs Readman a redundancy payment on the grounds that her refusal had been unreasonable. In reaching this conclusion, the tribunal asked itself, in effect, whether a reasonable employee would have accepted the employer's offer and concluded that they would have done.

Overturning the decision on appeal, the EAT held that the tribunal had fallen into error by applying a wholly objective test to the question of reasonableness. The proper question for a tribunal, when considering whether a refusal of suitable alternative employment is unreasonable, is whether the employee in question acted reasonably in refusing the offer. This will involve a consideration of whether the reason, given by the individual, constituted a sound and justifiable reason for turning down the offer.

The EAT therefore allowed the appeal and substituted a finding that Mrs Readman was entitled to receive a redundancy payment.

Detriments and Causation

2012-01-19T07:04:00.001-08:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Does a worker suffer a detriment if he refuses to sign a 48-hour week opt-out, and is then refused an opportunity for overtime by his employer?

Not if the employer's motive, in this case, a desire to enforce a reasonable and necessary policy, is properly separable from conduct that could be a detriment, holds the EAT in Arriva London South Ltd v Nicolaou.

The Claimant, a bus driver, had declined to opt-out of the 48-hour week average limit, so the employer did not consider him for overtime, justifying its decision on the basis that it had a duty to ensure that it kept to its policy of preventing the Claimant exceeding a 48-hour average working week, in line with Regulation 4 (2) WTR 1998. The Claimant claimed a detriment under S45A ERA for asserting his right to opt-out.

The EAT reviewed the authorities relating to causation in discrimination and whilstleblowing, and held that the necessary link between the Claimant's protected act and the withdrawal of overtime for a detriment was not made out, the reason why the employee was refused overtime being to enforce a policy.

The EAT was fortified in its conclusion by the observation that "...It would be a strange result if this employer were to be condemned for adopting a reasonable policy designed to ensure that its employees who exercised their right not to opt out of the 48 hour week maintained that right...".

Adjournment for Unwell Claimant

2012-01-17T02:30:00.000-08:00

[Thanks to Sarah Russell, solicitor at Capita, for preparing this case summary]

Should the tribunal have proceeded to hear a claim in the Claimant's absence when he applied for a second adjournment on the basis of ill-health? No, said the EAT in O'Cathail v Transport for London.

The Tribunal accepted that the Claimant was ill, but refused the adjournment, for reasons including the period since the alleged events. The decision was overturned. The EAT will only examine adjournment decisions in limited circumstances. Where the fairness of the proceedings as a whole is endangered, it will consider whether the decision was a fair solution.

Per Teinaz v London Borough of Wandsworth [2002] IRLR 721, where refusing an adjournment is likely to lead to dismissal of the claim, a tribunal must be careful not to cause injustice to the Claimant. Where his presence is needed for a fair hearing, but he is blamelessly unable to attend, the tribunal should usually grant an adjournment. The tribunal is entitled to be satisfied that the inability is genuine and the onus is on the applicant to prove the necessity of the adjournment.

Legal Fee Indemnities in Compromise Agreement

2012-01-09T02:56:00.000-08:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Did an indemnity in a compromise agreement oblige an employer to pay a former employee's legal expenses associated with a criminal investigation into action alleged to have been taken by him when he was an employee?

No, says the QBD in Coulson v Newsgroup Newspapers.

Mr Andy Coulson was employed as Editor of the News of the World between 2003 and 2007. His termination agreement provided for re-imbursement of legal expenses "which arise from his having to defend, or appear in, any administrative, regulatory, judicial or quasi-judicial proceedings as a result of his having been Editor of the News of the World".

Coulson was arrested and interviewed by the Metropolitan Police in conection with allegations of intercepting communications and making unlawful payments to police officers. He denied the allegations, was bailed, but not charged.

He claimed payment of his professional costs under the agreement. This was refused. Coulson brought proceedings for a declaration as to the effect of the agreement under part 8 of the CPR.

It was held that although the indemnity was wide ranging, seeking to protect Coulson from legal professional expenses from arising from the "ordinary occupational hazards" of being an Editor, it did not cover criminal allegations made against Coulson personally.

If that were wrong, said the trial judge (Supperstone J), the indemnity was not in any event engaged as, following the wording of the agreement, no "proceedings" had been commenced.

Privacy, PHRs and (without) Prejudice

2012-01-06T07:03:00.000-08:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Ought an Employment Tribunal hold a Pre-Hearing Review ('PHR') in private, if it considers the admissibility of ‘without prejudice’ communications that may be covered by privilege?

Yes, says the EAT in Eversheds LLP v Gray, overturning an Employment Judge’s decision to hold a PHR in public.

The Employment Tribunal Rules of Procedure provide exceptions to the rule that hearings other than Case Management Discussions ('CMDs') should be heard in public, Rule 16 (1) (b) permits hearings dealing with matters obtained in confidence to be held in private. The Respondent unsuccessfully applied for a PHR in private to deal with the admissibility of ‘without prejudice’ correspondence, and successfully appealed.
The EAT considered the scope of Rule 16 (1) (b) and, weighing the importance of public hearings and the Convention right to a fair hearing, held that it was in the interests of justice that parties in civil disputes could negotiate with a view to resolving disputes in the knowledge that those discussions would remain private and confidential, directing a private PHR.

The EAT also indicated, obiter, that a CMD, which is a private hearing, would not be the appropriate way to deal with disputes about the admissibility of ‘without prejudice’ communications.

Fiduciary Duties & Confidentiality

2011-12-27T07:34:00.000-08:00

[Thanks to Simon Hale of Hardwicke for preparing this case summary]

The decision of the High Court in Customer Systems Plc v Ranson, Atherton, Edmond and Offland [2011] EWHC 3304 is authority for the proposition that an employee who learns of confidential matters relating to competition from a potential new employer is not bound to pass the information to his existing employer, as he would then be in breach of confidence to the new employer.

The Claimant, an I.T. consultancy, brought claims against a number of former employees who had left to set up or work for a rival business, alleging variously that they were in breach of fiduciary duty, in breach of their restrictive covenants and in breach of the duty of fidelity.

Sir Raymond Jack followed Tullett Prebon Plc v BGC Brokers [2011] IRLR 420 (per Maurice Kay LJ at [42]) and held that a duty of fidelity to one's current employer would not necessarily defeat the duty of confidence to a new employer.

An unusual feature of the decision was that Mr Edmond was awarded indemnity costs, in part due to the Claimant's conduct of the litigation, having brought high value claims of little merit in order to intimidate a young man of limited means.

TUPE - Service Provision Change and Supply of Goods

2011-12-22T10:40:00.000-08:00

[Thanks to Sarah Russell, solicitor at Ventura, for preparing this case summary, and to Laurie Anstis of Boyes Turner for standing in during Daniel Barnett's absence]

Were workers on a manufacturing assembly line providing services for the purposes of a Service Provision Change ('SPC') under Regulation 3(1)(b) of TUPE?

No, according to the EAT in Pannu v Geo W King Ltd. The position was not altered by the fact that the purchaser of the assembled goods also paid for the components. The employment tribunal had found that the overall manufacturing process was more than just assembly of components, as the constituent components were checked for safety, but still found that it was 'wholly or mainly' a supply of goods, and so exempted from the SPC provisions. HHJ Peter Clark upheld this finding. He endorsed the comment of HHJ Burke QC in Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] IRLR 700 (EAT) that the SPC provisions are straightforward and their application to individual cases is a question of fact for the tribunal.

Ministers of Religion As Employees

2011-12-22T00:36:00.000-08:00

[Thanks to Rad Kohanzad of Atlantic Chambers, for preparing this case summary, and to Laurie Anstis of Boyes Turner for standing in during Daniel Barnett's absence]

Is an ordained Minister appointed as Minister to a group of congregations by the Methodist Church an employee?

Yes, says the Court of Appeal in President of the Methodist Conference v Preston.

In upholding Underhill's J judgment, describing it as a masterly and detailed analysis of the authorities, the Court of Appeal held that the employment tribunal was wrong to simply follow President of the Methodist Conference v Parfitt in light of the House of Lords decision in Percy v Board of National Mission of the Church of Scotland.

Although Percy was concerned with the position of a Minister in a different Church and the House of Lords did not expressly overrule Parfitt, the decision of the EAT and Court of Appeal in the present case was that Percy had impliedly overruled Parfitt.

This decision is likely to apply to all Churches and Ministers of a congregation or group of congregations.

TUPE and Company Administrations

2011-12-20T09:33:00.000-08:00

[Thanks to Saul Margo of Outer Temple Chambers for preparing this case summary]

This morning the Court of Appeal handed down Judgment in the case of Key2law (Surrey) LLP v Gaynor De'Antiquis. The issue before the Court was whether administration proceedings under Schedule B1 of the Insolvency Act 1986 can constitute, "insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor" within the meaning of regulation 8(7) of the TUPE Regulations 2006. The Court upheld the decision of the EAT that administration proceedings cannot constitute such proceedings, ie the test is absolute rather than fact-based.

Ms De'Antiquis was a solicitor employed by a firm of solicitors and was dismissed on grounds of redundancy on 21 July 2008. The firm entered administration on 25 July 2008 and on 28 July the administrators entered into a management contract with Key2 in relation to the office that Ms De'Antiquis had worked at prior to her dismissal. She brought claims under various heads against Key2 on the basis that Key2 was liable as transferee of the undertaking in which she had worked.

Regulation 8(7) provides that where insolvency proceedings are analogous to bankruptcy proceedings and have been instituted with a view to liquidation of the assets, then Regulations 4 and 7 do not apply. There is no transfer of staff to the transferee and no claim for unfair dismissal against him. Key2 claimed that exception could, depending on the facts of the particular case, also apply to administration proceedings under Schedule B1 of the Insolvency Act.

In what is a lengthy judgment, Rimer LJ examined in detail the origins and purpose of the Acquired Rights Directive which the TUPE Regulations implemented. He found significance in the fact that an administrator is bound to pursue certain objectives one of which is the rescuing of the company. Even though it may be immediately clear to administrators that a rescue of the company is not on the cards it does not follow that the appointment of administrators was "with a view" to the liquidation. A fact-based approach which focusses on the intention or views of the administrator or upon what is likely to be achieved is therefore not appropriate.

TUPE and Unfair Dismissal

2011-12-15T22:58:00.000-08:00

[Thanks to Nicholas Hill of Outer Temple Chambers for preparing this case summary]

The Court of Appeal has given Judgment in the case of Spaceright Europe Limited v Baillavoine, a case in which the Court of Appeal considered for the first time conflicting lines of authority that had developed at EAT level as to the correct construction of regulation 7(1) of TUPE 2006. The reasoning in Harrison Bowden v Bowden [1994] ICR 186 and Morris v John Grose Ltd [1998] ICR 655 was preferred over the reasoning in Ibex Trading v Walton [1994] ICR 907. The transfer does not need to be in contemplation at the time that the dismissal is effected in order for the dismissal to be caught by regulation 7(1).

Mr Baillavoine was the Managing Director of Ultralon Limited when it entered administration on 23 May 2008. The administrators, who intended to sell the business as a going concern, dismissed a number of employees including Mr Baillavoine. The business was subsequently purchased by Spaceright Europe Limited. The ET held that Mr Baillavoine's dismissal was automatically unfair because he had been dismissed for "a reason connected with the transfer" within the meaning of regulation 7(1). The fact that the dismissal took place in order to achieve a sale at a future date was sufficient for it to fall within regulation 7(1). The EAT upheld that reasoning as did the Court of Appeal.

The Court of Appeal held that the construction of regulation 7(1) adopted in Harrison Bowden and Morris was more consistent than the approach in Ibex with the purpose of the directive which the TUPE regulations implemented. Moreover, the reference to the transfer in regulation 7(1) rather than, for example, a transfer, created no difficulties. It is a common experience of life that an event (A) may sensibly be considered to be "connected with" a later event (B), even though it was not known, contemplated or foreseen at the time of event (A) that event (B) would happen.

In dismissing a further ground of appeal, the Court of Appeal held that the dismissal was not for an ETO reason. An ETO reason is not available in circumstances where an employee is dismissed in order to make the business of a company a more attractive proposition to prospective transferees of a going concern.

TUPE – Service Provision Change

2011-12-15T11:40:00.000-08:00

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during his absence, and to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

For there to be a service provision change under Reg 3 (1) (b) of TUPE, must the activities carried out by different providers before and after the transfer be carried out for the same client? Yes, says the EAT in Hunter v McCarrick.

In this case the claimant was employed by a provider of property services. The company which owned the properties became the subject of a winding up petition. The lender on the properties appointed Law of Property Act Receivers who assumed control of the properties thereafter and appointed a new property services company. It was held there could be no service provision change when not only was there a change in contractors, but also of the client.

Reg 3(1) (b) (ii) provides that an SPC arises where activities cease to be carried out on a client's behalf and are instead carried by a subsequent contractor on the client's behalf. That had to be read as meaning the same client. As a service provision change under Reg (3) (1) (b) is a wholly new statutory concept independent of the Acquired Rights Directive there was no warrant for adopting an interpretation of it other than that required by the ordinary meaning of the language used.

Consultation on Employment Tribunal Fees

2011-12-14T08:08:00.000-08:00

[Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett during his absence, for preparing this summary]

The Ministry of Justice has today issued a consultation document on charging fees in employment tribunals and the Employment Appeal Tribunal.

In the employment tribunal, two alternative options are put forward.

For the first option, the fee would depend on the nature of the claim, with three suggested levels. Level one would cover claims for unpaid wages and redundancy payments, level two would cover unfair dismissal claims and level three would be for discrimination and whistleblowing claims. Separate issue and hearing fees are proposed, with "indicative fees" of between £150-£250 for issue of a claim and £250-£1,250 for a hearing.

The second option would introduce a fourth level of fees, for claims where the claimant is seeking an award of over £30,000, and have issue fees only, ranging from £200 to £1,750.

The consultation paper contains much detail about the proposals, including fee remission, fee refunds, discounts in the case of multiple claims, and fees for other tribunal procedures, such as requesting written reasons for a judgment.

An issue fee of £400 and hearing fee of £1,200 is proposed for the Employment Appeal Tribunal.

The consultation closes on 6 March 2012.

Contractual Damages for Manner of Dismissal

2011-12-14T07:00:00.000-08:00

CORRECTION: The earlier bulletin omitted the name of the case concerned, which is now included in the amended version below.

[Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett during his absence, for preparing this case summary]

Can an employee who is dismissed in breach of a contractual disciplinary procedure claim damages for breach of contract flowing from the manner of their dismissal?

No, says the Supreme Court, with Lady Hale, Lord Kerr and Lord Wilson dissenting, and Lord Philips finding against the employees on difference grounds, in the joined appeals of Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence [2011] UKSC 58.

In Johnson v Unisys Limited [2001] UKHL 13), the House of Lords refused to award damages where the manner of the employee's dismissal was in breach of the implied term of trust and confidence, and suggested that Parliament had intended the employee's remedy in such a case to be by way of an unfair dismissal claim, rather than a breach of contract claim.

In Eastwood v Magnox Electric and McCabe v Cornwall County Council ([2004] UKHL 35), the House of Lords developed the concept of the "Johnson exclusion area". This prohibited claims for damages in relation to a breach of the implied term of trust and confidence arising out of the dismissal itself, but allowed claims which "precede and are independent of" the dismissal.

Giving the leading judgment, Lord Dyson (with whom Lord Walker and Lord Mance agreed) emphasises the development of disciplinary procedures in the context of unfair dismissal law, before holding that:

Johnson operates as a bar to a claim for damages for the manner of dismissal in the case of both implied and express contractual terms.
Both Edwards and Botham fell, on their facts, within the Johnson exclusion area.

Lord Phillips considered that the claims were effectively for "stigma" damages caused by wrongful dismissal, and were precluded by Addis v Gramophone Co Ltd [1909] AC 488.

In her dissent, Lady Hale notes that she is the only member of the Supreme Court to have been an employee, rather than a self-employed barrister or office holder, and holds that unfair dismissal law ought not to be used as a basis for limiting the rights of employees.

Lords Kerr and Wilson distinguished between the two cases, finding that Edwards had established a cause of action before dismissal, which should be permitted, whereas Botham's claim arose solely from the fact of the dismissal, and should be barred.

Contractual Damages for Manner of Dismissal

2011-12-14T05:06:00.000-08:00

[Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett during his absence, for preparing this case summary]

Can an employee who is dismissed in breach of a contractual disciplinary procedure claim damages for breach of contract flowing from the manner of their dismissal?

No, says the Supreme Court, with Lady Hale, Lord Kerr and Lord Wilson dissenting, and Lord Philips finding against the employees on different grounds.

In Johnson v Unisys Limited [2001] UKHL 13), the House of Lords refused to award damages where the manner of the employee's dismissal was in breach of the implied term of trust and confidence, and suggested that Parliament had intended the employee's remedy in such a case to be by way of an unfair dismissal claim, rather than a breach of contract claim.

In Eastwood v Magnox Electric and McCabe v Cornwall County Council ([2004] UKHL 35), the House of Lords developed the concept of the "Johnson exclusion area". This prohibited claims for damages in relation to a breach of the implied term of trust and confidence arising out of the dismissal itself, but allowed claims which "precede and are independent of" the dismissal.

Giving the leading judgment, Lord Dyson (with whom Lord Walker and Lord Mance agreed) emphasises the development of disciplinary procedures in the context of unfair dismissal law, before holding that:

Johnson operates as a bar to a claim for damages for the manner of dismissal in the case of both implied and express contractual terms.
Both Edwards and Botham fell, on their facts, within the Johnson exclusion area.

Live in Housekeepers and Minimum Wage

2011-12-12T02:14:00.000-08:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

What is the test for determining whether a domestic worker treated as a family member is ineligible for the National Minimum Wage under Regulation 2 (2) of the NMW Regulations 1999? A series of conditions are set out in Regulation 2 (2).

The test is to be approached holistically, there is no one single factor, such as the provision of accommodation, meals, or the sharing of tasks, which is decisive, says the EAT in Julio & ors v Jose & ors, a series of conjoined appeals.

Whilst the exemption is to be construed narrowly, and particular regard should be given to the various factors in Regulation 2 (2), the entire arrangement and the nature of the relationship are relevant, with consideration to the general dignity of the worker's situation.

The "sharing of tasks" relates to sharing tasks done by the family as a whole, not sharing the work done by the worker under the contract. The EAT rejected a literal approach to the requirement that the worker undertakes tasks jointly with the family, or that there should be some equivalence between the tasks done by the family and the worker, noting that every family is different and tasks are often divided up between family members.

The judgment suggests, obiter, that an employer exploiting or mistreating an NMW-exempt domestic worker (not an issue in these cases) would not be treating them "as a family member" and would, by implication, lose the exemption from the NMW, with potentially expensive consequences.

Supreme Court: Working Time and Annual Leave

2011-12-07T10:29:00.001-08:00

[Thanks to Catriona Stirling of Cloisters for preparing this case summary]

If an oil and gas industry worker has a shift pattern of two weeks working offshore followed by two weeks onshore, can periods spent onshore count towards that worker's entitlement to annual leave under Regulation 13 of the Working Time Regulations 1998?

Yes, the Supreme Court has said in Russell v Transocean International .

Such workers do not have a right to take their annual leave as time off from their offshore work. It is not necessary that holidays must always be taken from time that would otherwise be work. There is no qualitative requirement to test whether a given period can be counted as rest. A rest period is simply any period that is not working time. Any period when the workers were onshore would fall into that category. The employer was entitled to insist that annual leave was taken during the periods when the workers were onshore.

Injury to Feelings + Aggravated Damages

2011-12-05T03:19:00.000-08:00

[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Metropolitan Police v Shaw where it held:

compensation in whistleblowing cases should be assessed on the same basis as awards in discrimination cases;
aggravated damages are compensatory and not punitive; and
aggravated damages represent an aspect of injury to feelings rather than a wholly separate head of damages.

Although it is common sense for a tribunal to look at the nature of the employer's conduct when assessing aggravated damages, the ultimate question is: what additional distress was caused to this particular employee by the aggravating feature(s) in question?

In order to reduce the risk of a tribunal awarding a punitive element within an aggravated damages award, the EAT suggested that tribunals use the following wording in their judgments:

"injury to feelings in the sum of £X, incorporating aggravated damages in the sum of £Y"

The EAT observed that, personal injury claims arising from whistleblowing detriments or discrimination should be brought in the same tribunal as claims for other losses because there is often an overlap between an award for injury to feelings and injury to mental health, and it is difficult for the second tribunal hearing the case to assess whether the claimant has already received compensation for what is in substance the same suffering.

Finally, the EAT observed that it had doubts about the basis for the award of aggravated damages in principle. However, it considered the practice to be too well entrenched to warrant abolition at EAT level.

Marital Discrimination

2011-12-05T02:32:00.000-08:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Does an employer act unlawfully if he treats an employee less favourably, not because she is married, but because she is married to a particular man?

Yes says the EAT (HHJ McMullen) in Dunn v Insititute of Cemetry and Crematorium Management.

Mrs Dunn was employed as a technical services manager. Following a dispute over her employment terms she resigned and claimed constructive unfair dismissal. But she also claimed breach of the Sex Discrimination Act 1975 because she contended she was less favourably treated because she was married to Mr Dunn, with whom the employer was also in dispute. She was treated as an adjunct of him.

According to the EAT, reviewing the authorities, including Chief Constable of the Bedfordshire Constabulary v Graham [2002] IRLR 239, section 3 of the Sex Discrimination Act 1975 (see Equality Act 2010, s. 8) could be construed as protecting the claimant by reason of her status, not only of being married, but also of being married to her husband. Furthermore, although the 1976 Equal Treatment Directive was not of assistance in this interpretation, the claimant's rights under Arts 8,12 and 14 of the ECHR were engaged, and section 3 of the SDA should be construed accordingly.

Equal Pay: Material Factor Defence

2011-12-05T01:56:00.001-08:00

[Thanks to Jonathan Moffatt of Outer Temple Chambers for preparing this case summary]

If the explanation for a pay differential between employees had nothing to do with sex at the time of their recruitment, can that explain the continuing differential in subsequent years to satisfy the material factor defence under section 1(3) of the Equal Pay Act 1970? Yes, according to the EAT (Underhill P) in Secretary of State for Justice v Bowling.

C and her comparator were recruited on like work at about the same time. The latter was placed two points above C on an incremental scale because of his background and experience. By the time of the next pay review C had matched the performance of her comparator. The tribunal found that the original reasons for the differential ceased to be a material factor.

The EAT disagreed. The "catching up" might have undermined the justification for the differential, but it did not undermine its causative effect. The labelling of the explanation as "historical" was not helpful. The real question was whether a cause ceased to operate as an explanation for the differential at the date under consideration. The explanation in this case was not time-limited.

Equal Pay Claims in the Civil Courts

2011-11-29T03:17:00.000-08:00

[Thanks to Saul Margo of Outer Temple Chambers for preparing this case summary]

The Court of Appeal has this morning given judgment in Birmingham City Council v Abdulla, in which 174 former employees of the Council represented by Leigh Day & Co assert that the failure to give them pay equal to that of various predominantly male groups of staff, in accordance with the Equal Pay Act 1970, comprises a breach of contract enforceable in the civil courts.

The Council applied to strike out on the basis that the civil court should decline to exercise its jurisdiction to hear claims presented to the civil courts after the 6 month time limit for presenting claims to the employment tribunal had expired. Colin Edelman QC, sitting as a Deputy Judge of the QDB, had dismissed the Council's application in December 2010. The Court of Appeal has upheld his decision.

Although there is a discretion to strike out claims that could more conveniently be determined in the ET (in section 2(3) of the Equal Pay Act and effectively reproduced in section 122 of the Equality Act 2010), Mummery LJ held that it would be an extreme exercise of judicial discretion to strike out a claim for breach of an equality clause brought within the limitation period applicable to the civil courts. That discretion should be exercised only for the purpose for which it was conferred, namely the distribution of judicial business, and not to stifle claims that had been made in time.

The Court held that the analogy that had been drawn with the principle of forum non conveniens in the Ashby v Birmingham City Council case (judgment in which had been given after Abdulla) was not helpful. Save in exceptional cases amounting to an abuse of process, it is not for claimants to have to explain why they did not go to the ET in time: Parliament had given them an option as to whether to commence proceedings in the civil courts or the ET.

The Council has applied for permission to appeal to the Supreme Court.

Calculating Pension Losses

2011-11-25T05:35:00.000-08:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

May an employment tribunal adopt a flexible approach to calculating pension loss, for example by using different multipliers to those annexed to employment tribunal pension loss guidelines?

A qualified 'yes', provided it gives cogent and credible reasons for so doing, says the EAT (Langstaff J presiding) in an obiter Judgment on a remedy appeal in Chief Constable of West Midlands Police v Gardner.

The EAT heard the remedy appeal despite overturning the Respondent's liability, and gave guidance on the approaches to calculating pension loss.

The employment tribunal calculated pension loss on the basis of a 'substantial loss' approach, but by using different multipliers from those in the 2003 booklet Compensation for Loss of Pension Rights Employment Tribunals 3rd Edition.

The Claimant's appeal criticised what it termed a 'pick and mix' approach to calculating pension loss. The EAT held that the tribunal had not committed an error of law, but noted that when a tribunal departs from an established approach, it must do so for good reason and state what its reasons are. The EAT stated that it would not recommend straying from established approaches "...except where it is plain that the interests of justice require it...".

The Judgment contains a useful discussion of the various approaches to pension loss and compensation.

Best Employment Law Reforms Joke competition

2011-11-23T07:38:00.000-08:00

Last week, the Secretary of State for Work and Pensions announced substantial reforms to UK employment law. Here are some comments from some of the leading UK commentators on employment law.

The funniest comment will receive a complimentary copy of the 5th edition of the Law Society Handbook on Employment Law; by happy coincidence published on the same day as the reforms were announced and the winner of the 'most immediately out of date book of the world' competition.

To submit a joke, either tweet @daniel_barnett or email me on daniel.barnett@outertemple.com

Several contenders (the highest ones are the most recent submissions)

(sent by Sean Jones)

(sent by Robert McCreath)

(sent by Emma Atkins)

(sent by Rachel Farr)
Picture the scene… An office. Grey. It's November outside. An employer asks an employee if they can have a protected conversation. Nervously, the employee agrees. As he does so, a disco ball is lowered through the polystyrene ceiling tiles and, as the employer strips off his jacket to reveal a sequined bustier, he begins to sing…

"At first I was afraid, I was petrified -
Kept thinking I'd employ you til the day you died.
But now we can talk frankly
And I can tell you how you're wrong
And I've grown strong - I can dismiss you for a song!

'Cos all you do is take up space
You never buy us donuts, you've a sad look on your face
I should have changed that stupid passcode
I should have made you leave your key
If I'd have known for just one second you'd come in to bother me

Go on now, walk out the door
Just turn around now
'Cos you're not welcome anymore.
Weren't you the one who makes the office groan?
Well here's your stuff - and repay your season ticket loan!

Chorus:

Your prospects may dive
But now you're gone here's the news - we're gonna thrive
We can fire without cause
And without breaking any laws
Protected convos are the future,
And now we're gonna boot ya…

Hey hey!"

Music fades...

(sent by Mark McWilliams)
Sacked by your employer? I hear Acas are recruiting...

(sent by Ian Taylor)
Employee: Sir Alan, please could we have a protected conversation?
Sir Alan: Certainly. You're fired.

(sent by Anya Palmer)
Vince walks into a bar and orders that bartender needs 2 years before he can claim unfair dismissal. Then consults on whether to order that.

(sent by Kim Hurley)

INTRODUCING the new and improved Cone of Silence for all your Protected Conversation needs. Buy now and you will also receive a free copy of our users manual entitled “How To tell your employees they Are rubbish, old or should quit or they’ll be Fired in Five Easy Steps.

COMING SOON – The mobile Protected Conversation device. This is an essential piece of kit which will allow you to tell all of your employees how rubbish and old they are while you are on the move!

(sent by Abigail Morris)
Knock Knock
Who's there?
Shhh... I'm having a protected conversation

(author asked to remain anonymous)
There was a minister called Vince Cable
Whose time at the DTI table
Saw the erosion of rights
Lots of union fights
Just because he's a somewhat unstable

Carrying Over Holiday Pay When Sick

2011-11-23T06:21:00.000-08:00

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

The hard-working judges in the CJEU have yesterday, in KHS AG v Schulte, handed down a judgment which casts doubt on whether a holiday taken pursuant to the Working Time Directive should involve mere relaxation and leisure.

It is now long established that workers on long-term sick leave accumulate holiday (Stringer v HMRC). However in Schulte the CJEU confirmed that this right is not without limits, and that to allow workers to accumulate unlimited amounts of holiday entitlement, or pay in lieu, does not reflect the purpose of Article 7 of the Working Time Directive. Whilst many of us might disagree with this, the CJEU held that holiday taken after a certain point in time ceases to provide a rest from work, and becomes "merely a period of relaxation and leisure". They held that a holiday which involves mere relaxation and leisure, but does not provide a worker with a rest from work, is not consistent with the aim of Article 7 of the Working Time Directive.

In Schulte, the CJEU had to consider whether German national law, which provides that workers lose their right to holiday (or pay in lieu) at the end of a "carry over period" of 15 months (starting at the end of the year in which the holiday entitlement had arisen), was compatible with Article 7 of the Working Time Directive.

The CJEU held that it was compatible, and gave the following useful guidance on the use of so-called "carry over periods":

Any carry-over period must be substantially longer than the reference period for the holiday year in respect of which it is granted (Readers will remember that in Schultz-Hoff and Others the CJEU commented that a carry-over period of 6 months was not compatible with the Working Time Directive);
It must ensure that the worker can have, if need be, rest periods that may be staggered, planned in advance and available in the longer-term;
It must protect employers from the risk that a worker will accumulate lengthy periods of absence; and the consequent difficulties in organising work which lengthy periods of absence might entail.

It is noteworthy that the CJEU in their judgment stressed that the entitlement to paid holiday is a particularly important principle of EU social law from which there can be no derogations. Further, Advocate General Trstenjak in his opinion held that the effect of the Schultz-Hoff decision is that the entitlement to paid holiday cannot be undermined by imposing conditions that are difficult to meet. This rather casts doubt on the EAT's recent decision in Fraser v St George's NHS Trust where it was held that an employee absent on sick leave still had to give proper notice pursuant to Regulation 15 in order to be entitled to paid annual leave at a later date.

Why employment law reforms won't work... And why they will !

2011-11-23T04:41:00.000-08:00

WHY THEY WON’T WORK…

1. If a manager is unable to evaluate the suitability or performance of his staff within one year, there is little reason to suppose he will be better able to do it within two years. The extra year simply encourages an extra year of underperformance.

2. Litigation systems exist because people can’t or won’t settle matters amicably. Governments can’t force people – whichever side of the industrial divide they sit on – to be reasonable. They can only provide effective redress systems against unreasonable employers, and effective sanctions against unreasonable employees. The reforms don’t achieve either of those aims.

3. Compulsory mediation won’t help. Without substantial investment, Acas lacks the resources to do much more than hold a few telephone conversations, which it already does in the majority of cases.

4. Protected conversations will hurt, not help, employers. If an employer wants a frank conversation about poor performance, far better to do it on the record as it will help the employer defend any subsequent claim. If an employer simply wants to say, ‘we’re going to push you out unless you resign’, why should they receive protection from the consequences of their actions?

5. The reforms do nothing to eliminate the real problem of employees bringing unfounded discrimination or whistleblowing claims, which are more disruptive to business than unfair dismissal claims and which cost more to defend/settle.

6. Countries with more employment regulation have lower unemployment rates (and thus better economies). America – with almost no employment regulation – has 9% unemployment, contrasted with the UK’s 8%. The lowest unemployment rates in EU are Austria (3.9%), Netherlands (4.5%) & Luxembourg (4.8%) - all countries with far more ‘red tape’ than the UK.

7. Employers hire because they have too much work to cope with, or foresee making a profit on the cost of hire. They don’t refuse to hire because of a fear of a statistically unlikely tribunal claim several years down the line. The premise of Vince Cable’s reforms are wrong.

AND WHY THEY WILL…

1. Making it easier to dismiss means making it easier to hire. Today’s dismissed employee is tomorrow’s new recruit.

2. Employment tribunals dealt with 248,000 claims last year; they are highly expensive to run. Anything that can reduce the cost to the public purse is a good thing.

3. Introducing a compliance fine for employers who breach employment laws and lose a case at tribunal will encourage employers to settle claims rather than fight in court, which reduces the cost to the system.

4. Anybody can bring a tribunal claim, at almost no risk of having to pay any legal costs. When it costs an employer many thousands of pounds to defend claims, it means there is no level playing-field. Introducing a fee to bring a claim shifts risk and helps redress the imbalance.

5. Compulsory attempts at mediation through Acas will resolve a proportion of claims; sometimes the employer will recognise the employee has a point and be willing to settle, before the parties draw the battle-lines of litigation and entrench their positions.

6. Slimming down dismissal procedures means less cost to an employer when dismissing staff, and reduces the risk of ‘techincal’ unfair dismissals.

7. Portable CRB checks, which eliminate the need for a fresh application when moving jobs, will reduce cost and eliminate delay during the recruitment process.

Government announces employment law reforms

2011-11-23T03:38:00.000-08:00

After many months of rumour, Business Secretary Vince Cable has announced the government's proposals for what is claimed to be the biggest shakeup of employment law for decades. The government has also, this morning, published its Response to the Consultation on Resolving Workplace Disputes.

The main proposals are:-

unfair dismissal qualifying period to increase to two years
compulsory lodging of all claims through Acas, for an attempt at mediation, before they can be lodged with the tribunal
consultation on the introduction of protected conversations, with the proviso that they will not extend to protect discriminatory acts
a call for evidence, with a view to consultation, on reducing minimum period for redundancy consultation to 60, 45 or 30 days

And some other proposals, which have not been previously leaked/trailed in the newspapers:-

options for a 'rapid resolution scheme', to enable simple claims to be settled within three months
amendment to s147 of Equality Act 2010, to clarify compromise agreements can be used to settle discrimination claims
complaints about breach of employment contract (Parkin v Sodexho) to be taken out of whistleblowing law
financial penalties to be introduced on employers who breach employment rights, payable to the Exchequer, subject to a discretion exercisable by Employment Judges
a fundamental review of employment tribunal rules of procedure, to be led by Underhill J (who steps down as President of the EAT at the end of next month), to include changes to costs and desposit orders
Employment Judges to sit alone in unfair dismissal cases
CRB checks to be portable, so no need for a fresh application when moving jobs
maternity and paternity leave to be 'modernised', with emphasis on greater involvement for fathers

And the government has said it is still looking at the option of compensated no-fault dismissals for micro-businesses (but it is not publishing any proposals at this time, it remaining a controversial suggestion raised in the Beecroft Report). According to an article in the Financial Times published before Vince Cable's speech, the government intends to call for evidence on the implications of no-fault dismissals for micro-businesses, but at the time of writing I have not seen the text of Vince Cable's speech to confirm it.

A big thanks to PLC Employment, who attended the Press Conference and have tweeted much of the above information before DBIS has published its press release on the internet. For 'live' comment, have a look at the #ukemplaw thread on Twitter.

Compensatory Award – Statutory Cap

2011-11-22T04:05:00.000-08:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

At what stage should an employment tribunal 'gross-up' a Compensatory Award for Unfair Dismissal to allow for taxation when the statutory cap applies?

'Grossing-up' occurs before the cap is applied, says the EAT (HHJ Peter Clark presiding) in Hardie Grant London Ltd v Aspden.

The Claimant won her constructive dismissal claim. Since tax was due on her Compensatory Award over £30,000, the tribunal 'grossed-up' the Compensatory Award to allow for tax, after it had applied the statutory cap (at the time £65,300). The tribunal awarded £87,166.67, on the basis that the Award in the Claimant's hands after tax would be at the cap.

The EAT held that this was the wrong approach, although a Compensatory Award is based on the loss of net earnings, and 'grossing-up' ensures that the Claimant receives net lost earnings from the taxable element of the award, grossing-up occurs before the cap is applied. The EAT reduced the Compensatory Award to the then cap of £65,300.

AG Opinion on Part-time Judges

2011-11-17T10:36:00.000-08:00

[Thanks to Nathaniel Caiden of Cloisters Chambers for preparing this case summary]

Advocate General Kokott has handed down her decision today in O'Brien v Ministry of Justice. She considers that although it is for national law to decide if a part time judge is a worker, it was not permissible for national measure to discriminate between full-time and part-time judges, or between different kinds of part-time judges.

The case was referred by the Supreme Court on 28 July 2010. Mr O'Brien a part-time judge (who was paid a daily fee) had argued at the Supreme Court that the specific exclusion of part-time judges who are paid a daily fee from the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was incompatible with the Part-Time Workers Framework Directive (97/81/EC) and so the Directive had not been properly implemented into UK Law.

The matters referred were

Is it for national law to determine whether or not judges as a whole are workers within the meaning of the Framework Agreement, or is there a Community norm by which this matter must be determined?
If judges as a whole are workers within the Framework Agreement, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?

The AG's opinion on the first question was that it was for national law to determine whether or not judges are workers within the meaning of the Framework agreement, but that there were limits on the discretion of Member States in defining a worker as they must guarantee the result imposed by EU law and EU instruments need to be effective.

The question in the present case was whether the nature of a judge's employment relationship is substantially different from those that fall within the definition of 'worker' in national law. Mere labels attached (such as 'office holders') were therefore irrelevant in determining the nature of the employment relationship and so in answering the 'worker' question.

In answer to the second question, it was not permissible for national law to discriminate between different kinds of judges in the provision of pensions.

It will however be several months until the Court of Justice of the European Union hands down its decision; the CJEU's decisions normally, but not invariably, follow the recommendation of the Advocate General.

Costs - Misguided Allegations of Discrimination

2011-11-17T09:44:00.000-08:00

[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]

Should a tribunal award costs where "scandalous and vexatious" claims are withdrawn or struck out at a PHR on jurisdictional grounds?

Not necessarily – if the claims are contested and the evidence hasn't been tested – according to the Court of Appeal in Dean & Dean v Dionissiou-Moussaoui.

The Claimant made serious allegations of sex discrimination against a partner of her former firm. The Respondent said the allegations were scandalous and salacious, and bound to fail.

The claims were struck out at a PHR on jurisdictional grounds, for non-compliance with the statutory grievance procedure and statutory time limits.

The Respondent sought substantial costs against the Claimant, but the tribunal did not exercise its discretion to order any award. The Respondent appealed, arguing that the particular context of the case had not been properly taken into account by the tribunal.

The EAT and CA found no error of legal principle by the tribunal. The way in which the claims had been determined meant that the tribunal considering the costs application was not in a position to determine whether the sexual misconduct claims were true or false. It had to do the best it could with what it did know, and that decision should not be interfered with even if the CA might have reached a different decision.

Part-Time Pension Claims

2011-11-14T02:47:00.000-08:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Should a part-timer excluded from a pension scheme by indirect discrimination get damages if, when permitted, she does not choose to join it?

No, says the Court of Appeal, in Copple & Others v Littlewoods Plc & others.

The employer's pension scheme was historically closed to part-timers. Having opened it up to female part-timers, the employer did not permit retrospective pension rights for the 'closed period' to those who hadn't joined within three months of it opening to them. The employer applied the 'opt-out' principle; i.e. if you did not join the scheme when you could, then you would not have joined earlier anyway, so no loss means no remedy.

The Claimants challenged the 'opt-out' principle as incompatible with EU law, by not providing an effective remedy for this discrimination.

The Court of Appeal held that the 'opt-out' principle was compatible with EU law; there was no scope for the 'penal' remedy sought for indirect discrimination. However, the Court of Appeal held that part-timers excluded from the scheme who then joined should be entitled to retrospective pension rights for the closed period and an interim period when the scheme was open to them but before they decided to join, provided that the reason they deferred joining was down to their exclusion in the first place, ensuring that the remedy would fully correct the consequences of discrimination. The length of this "relatively short period" is a question of fact.

The judgment also gave guidance on the approach to the question of when an excluded employee would have joined a scheme if hypothetically permitted, the test being on the balance of probabilities.

Government to Consult on 'Protected Conversations'

2011-11-14T02:37:00.001-08:00

[Thanks to Laurie Anstis of Boyes Turner for spotting this]

In a speech last week, Prime Minister David Cameron stated that the government will shortly consult on 'protected conversations', enabling an employer and employee to sit down and have frank conversations about performance / ongoing employment, without the employer fearing his words will be used against him a constructive dismissal claim.

He also confirmed that the government will be introducing fees for bringing employment tribunal claims (although did not commit to a date), and will be increasing the unfair dismissal qualifying period from one year to two years with effect from April.

To view the speech, go to www.number10.gov.uk/news/prime-ministers-speech-on-exporting-and-growth. The relevant parts are at the end of the 'Deregulation' section.

Presenting the ET1 - Fax Error at Tribunal

2011-11-14T00:14:00.000-08:00

[Thanks to Jonathan Moffatt of Outer Temple Chambers for preparing this case summary]

Is an ET1 presented to a tribunal office in writing within the meaning of Rule 1 of the eEmployment tribunal Rules of Procedure where it is faxed to and received by the tribunal office's fax machine but a technical failure prevents that machine from producing a printout or record of receipt?

Yes, according to the EAT (Underhill P) in Yellow Pages Sales Ltd v Davie.

The ET1 was faxed to the correct fax number. The sender received a transmission report confirming that all pages had been received.

The employer argued that the tribunal office did not receive the ET1 in writing, as required by Rule 1. The EAT disagreed. The writing was conveyed to the tribunal office by a particular technological means and, absent the malfunction, would have been translated into a written document. The complaint had been presented in a fixed form that could be communicated in that form to the other party but was, in effect, lost at the tribunal's end.

Interestingly, the EAT expressed caution about accepting the employee's submission that the language of Rule 61, which concerns the sending of documents by different methods, including electronic communication, also supported the finding that the ET1 had been properly presented.

Holiday Pay and Sick Absence

2011-11-09T11:19:00.000-08:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

It is clear from CJEU cases that workers continue to accrue annual leave entitlement during sickness absence, and that workers can choose to take annual leave at the same time as being absent due to sickness. But can such an employee claim holiday pay under Reg 16 (1) of the Working Time Regulations where no notice to take the leave has been given to the employer under WTR, Reg 15?

No, says the EAT (Underhill P) in Fraser v St George's NHS Trust. In this case the employee was injured at work and was on sick leave for four years until her dismissal. For the last two years of her employment she received no pay. On the ending of her employment she sought 4 weeks holiday pay in relation to each of those two years. In the light of Stringer v HM Revenue & Customs Commissioners [2009] ICR 932 there was no doubt that the employee had accrued the right to leave during the years in question. But the employer argued that if she wanted to exercise that right she had to give notice to the employer under Reg 15 (1) – which she had not.

The EAT held the claim should fail. An employee is only entitled to holiday pay under Reg 16 (1) if she has actually taken the leave to which the pay relates and has done so in accordance with the WTR by giving notice pursuant to Reg 15. The authorities of List Design Group Ltd v Catley [2002] ICR 686 and Canada Life Ltd v Gray [2004] ICR 673 were wrong, and Kigass Aero Components Ltd v Brown [2002] ICR 697 was to be preferred. The EAT also considered that the condition of notification by the employee under Reg 15 of the WTR was not inconsistent with the CJEU ruling in Pereda v Madrid Movilidad [2009] IRLR 959.

Legal Expense Insurance

2011-11-04T00:01:00.000-07:00

Can an individual, covered by a Before the Event Insurance policy, reject a panel solicitor and insist on his own choice of solicitor and payment of that solicitors' hourly rate?

Yes and no, says Burton J in Brown-Quinn v Equity Syndicate Management.

It is quite clear, and has been for some time, that legal expense insurers cannot restrict an insured's choice of solicitor. An individual has complete freedom to choose his own solicitor.

But that does not mean the firm – in this case, Webster Dixon LLP – can charge its normal hourly rate. Nor does it mean that the insurer can insist on only paying its panel (or slightly higher) rate, in this case, £139ph. Rather, and subject to assessment, the hourly rate payable by the insurer will be assessed as a reasonable hourly rate having regard to the insurer's standard panel rates. But in cases of particular complexity, substantive Defendants and claims requiring senior and specialist fee-earners, the panel rate becomes less important as a guide when assessing a 'reasonable' recoverable hourly rate from the insurers.

Burton J indicated that because these test cases were complex employment claims against banks and substantial public bodies, and because Webster Dixon LLP is a specialist firm of solicitors in London, recognised in Chambers & Partners for its employment law expertise, the rates charged by panel firms would be "of less weight" when determining a reasonable hourly rate.

The moral? It will still be difficult to negotiate hourly rates with BEI insurers if you are not a panel firm. But they are not entitled to refuse to instruct you if you will not agree their rates. You'll just have to fight about it after the case is finished.

Delay in Disciplinary Procedures

2011-11-01T05:27:00.000-07:00

[Thanks to Nadia Montraghi of Old Square Chambers for preparing this case summary]

Is there an implied term in contracts of employment that disciplinary processes be conducted fairly and without undue delay? In Dr Lim v Royal Wolverhampton Hospitals NHS Trust, the High Court held there is.

Dr Lim is a consultant anaesthetist employed by the defendant Trust. Dr Lim's breach of contract claim concerned a proposed combined capability and conduct hearing.

In respect of the proposed capability hearing, Dr Lim claimed that the Trust had been acting in breach of his contract of employment by referring him to a capability panel without first referring him to NCAS to carry out an assessment to determine whether any of the deficiencies in his practise could be addressed by way of an educational or organisational action plan. The Court held that the Trust was required to refer Dr Lim to NCAS and also to wait until an NCAS assessment panel had considered whether an assessment should be carried out and also to decide that no action plan would have a realistic chance of success. Only then could the Trust proceed directly to a capability hearing. As such the Trust was held to be in breach of contract.

In respect of the proposed conduct hearing, Dr Lim argued that the Trust had breached his contract by seeking to revive allegations of misconduct some three years after the occurrence of the events upon which the allegations were based. The Court however held that, whilst there was an implied (and possibly also express) term requiring that disciplinary processes be conducted fairly and without undue delay, the Trust had not on the facts of the case breached that obligation.

Incorporation of Disciplinary Policy

2011-11-01T03:25:00.000-07:00

[Thanks to Nadia Montraghi of Old Square Chambers for preparing this case summary]

What factors should the Court consider when deciding whether a particular provision has contractual effect? In Hussain v Surrey and Sussex Healthcare NHS Trust, the High Court held that relevant factors included: (a) the importance of the provision to the contractual working relationship; (b) the level of detail prescribed by the provision; (c) the certainty of what the provision required; (d) the context of the provision; (e) whether the provision was workable. (Paragraph 168)

Dr H brought a claim for breach of contract against the defendant Trust in respect of her exclusion from work and disciplinary proceedings being brought against her.

In respect of her exclusion, the Court held that the nature and extent of Dr H's exclusion was in breach the clause of her contract of employment requiring the Trust to give full consideration to whether she could continue in or return to work in a limited capacity or in an alternative, possibly non-clinical role, pending resolution of her case. (Paragraphs 75-94)

In respect of the disciplinary proceedings, Dr H had challenged the Trust's decision to proceed with the conduct allegations only prior to any hearing in respect of the capability allegations. The Court accepted that the contract of employment permitted this and that a valid decision had been made in respect of this. Whilst the Court held that the Trust had improperly exercised its discretion when referring the charges as originally drafted to a conduct hearing on the basis that the charges could not properly be regarded as limited to conduct, the Court did not find that referring the charges as later amended to a conduct hearing would be in breach of Dr H's contract of employment. (Paragraphs 95-115)

A significant part of the judgment relates to the incorporation of the relevant disciplinary policy into Dr H's contract of employment. The Court held that the disciplinary policy was apt for incorporation and that key provisions relating to exclusion from practice and how to proceed where issues of both conduct and capability were involved were incorporated into Dr H's contract of employment.

Costs and a "Campaign Beyond the Proceedings"

2011-10-31T04:21:00.000-07:00

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Sarah Russell, solicitor at Ventura , for preparing this case summary]

Will pre-trial publicity affect the likelihood of an award of costs being made against a claimant in the EAT?

Yes, according to Iteshi v OFWAT. The Claimant had sent a letter to his MP, copied to the EAT, in which he made unsubstantiated allegations of fraud, and conspiracy with the Government between judges. This was described as part of a campaign to expose and discredit the employment tribunals and EAT and was described as 'disgraceful' and an abuse of process.

The Claimant was also heavily criticized on the grounds that his claim was misconceived and unreasonably conducted.

Even though the Respondent had not issued a costs warning in advance, its skeleton argument was said to be sufficient warning of the way in which matters could proceed, given that the Claimant had a legal background. Costs of £750 were awarded".

Lists of Issues

2011-10-31T02:49:00.001-07:00

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Ed McFarlane of Deminos HR for preparing this case summary]

How should a list of issues for an employment tribunal hearing be drawn up?

Not in the way it was done in Price v (1) Surrey County Council (2) Governing Body of Wood Street School says the EAT (Carnwath LJ, sitting as Senior President of Tribunals).

The lay-represented Claimant was constructively dismissed but failed in her whistleblowing case. The EAT made observations about the list of issues drawn up for the employment tribunal hearing, appending that list to its Judgment to illustrate its concerns.

The EAT suggested that lists of issues should distinguish between the central issues "e.g. unfair dismissal and detriment due to a protected disclosure" and the key factual allegations. The EAT noted the failure in the instant case of the list of issues to discriminate between significant factual issues and those found by the employment tribunal to be 'utterly trivial'.

Giving guidance on drafting and using list of issues, the EAT observed "even where lists of issues have been agreed between the parties, they should not be accepted uncritically by employment judges at the case management stage. They have their own duty to ensure that the case is clearly and efficiently presented. Equally the tribunal which hears the case is not required slavishly to follow the list presented to it".

Noting that the case was extended by dealing with peripheral, exaggerated and unsustainable allegations, the EAT called for the provision of basic legal help to unrepresented litigants, in the interests of the efficiency and economy of the justice system, as well as accessibility.

Practitioners may also wish to note a different recent decision of the EAT (Langstaff J) in Land Rover v Short where the parties (both represented) had a legitimate disagreement as to whether 'bumping' was within the list of issues, and noted "the responsibility remains with the Tribunal to deal with the issues which the parties are putting before it, and to identify what they are".

Illegality and Immigration Restrictions

2011-10-31T02:30:00.001-07:00

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Does an employer's reasonable belief that a contract is illegal, and a fear that he would be exposed to penalties provide a defence to an employee's claim for non payment of wages based on that contract?

No, says the EAT in Okuoimose v City Facilities. The question was whether the contract was illegal, not whether it was thought to be illegal.

The claimant was a member, by marriage, of the family of an EEA national. By virtue of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) she was at all times entitled to reside and work in the UK. But a Home Office stamp in her passport confirming this expired. She was then suspended from pay for a period until a confirmatory letter from the UK Border Agency was available. The claimant made a claim for unlawful deductions from pay over the suspension period under s 13 of the Employment Rights Act 1996. The employment judge held the contract was illegal and unenforceable during that time.

The EAT (HHJ McMullen) overturned this decision. The claimant was entitled to work in the UK at all times and this was not affected by the failure obtain a new stamp in her passport. It was therefore irrelevant whether the employer was behaving reasonably, or thought it was behaving reasonably, or that it was worried about penalties. The claimant's claim therefore succeeded.

Causation in Whistleblowing Cases

2011-10-26T01:41:00.000-07:00

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Keira Gore of Outer Temple Chambers for preparing this case summary]

What is the test for causation in whistleblowing claims; is it the test that applies in discrimination cases or unfair dismissal cases?

The Court of Appeal in NHS Manchester v Fecitt & ors [2011] EWCA Civ 1190 held that it is neither. Rather, the correct test is: whether the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.

The Claimants in this case were registered nurses employed by the Respondent in a medical walk-in centre. They made protected disclosures regarding a colleague who had made false statements to other members of staff about his clinical experience and professional qualifications. As a direct result of those disclosures they were subject to unpleasant treatment by a number of other members of staff. The working atmosphere became increasingly dysfunctional and the Claimants were removed from the centre (two claimants were redeployed; one ceased to do shift work at the centre).

The Court of Appeal, allowing an appeal by the employer, held that the Claimants were not unlawfully victimised for making protected disclosures. Although the employers were open to criticism for not better protecting the Claimants from unpleasant treatment, their failure was not a deliberate omission and was not because of the protected disclosures. Nor was the removal of the Claimants from the centre because of the protected disclosures; that action was taken because it appeared to be the only feasible method of addressing the dysfunctional situation in the centre.

Overlap of Conduct and Capability Reasons

2011-10-24T01:30:00.000-07:00

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

If a dismissal letter gives misconduct as the reason for dismissal, but the employment tribunal ET3 pleads "incapability", does the wrong label in the ET3 prevent a tribunal from dealing with the claim on the basis of misconduct?

Not if there is no prejudice to the claimant, says the EAT in Screene v Seatwave.

Mr Screene was a financial controller for an events ticketing business. It was the victim of a fraud when approximately €1.7m were lost from its German bank account. The employer took the view that Mr Screene was grossly negligent in failing to spot this and summarily dismissed him. The employment tribunal found the serious negligence in the employee's failings amounted to gross misconduct and that the dismissal was fair.

On appeal it was argued the tribunal should not have departed from the employer's reason of capability as pleaded in the ET3. Accordingly, it was argued, the tribunal substituted its own reason for dismissal (conduct) in place of the employers pleaded reason (capability) and, as a consequence, failed to direct itself to the relevant law in relation to capability.

The EAT disagreed, relying on comments by Waite J in Hotson v Wisbech Conservative Club [1984] ICR 859. A tribunal was entitled to make its decision on the basis of what it considered to be the real reason for dismissal, provided the claimant was not thereby prejudiced. There was no such prejudice in the present case. At all times the dismissal had been grounded on the same facts, the tribunal plainly conducted the case on the basis of misconduct, and the claimant had acknowledged that he had been summarily dismissed by reason of gross misconduct.

Apparent Bias in Professional Disciplinary Panels

2011-10-21T03:33:00.000-07:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Is a member of the ILEX Council disqualified from participating in disciplinary hearings against or appeals by ILEX members in the interest of avoiding someone judging their own case, and/or apparent bias?

Yes, says the unanimous Court of Appeal, quashing by Judicial Review on appeal the decisions of an ILEX Disciplinary Tribunal and Appeal Tribunal in R (on the application of Kaur) v (1) The Institute Of Legal Executives Appeal Tribunal (2) The Institute of Legal Executives.

The Appellant, a student member of ILEX, faced allegations of bringing ILEX into disrepute. One allegation was upheld by an ILEX Disciplinary Tribunal, on which – by ILEX rules – sat an ILEX council member. She unsuccessfully appealed to the ILEX Appeal Tribunal, which included the Vice-President of ILEX. She sought judicial review, and argued that the composition of ILEX panels gave rise to apparent bias and/or ILEX being judge in its own case. There was no suggestion of actual bias.

The Court of Appeal considered the distinction between a situation where a disciplinary panel member had active involvement in a body – in ILEX, all council members are company directors – and one where membership did not involve panel members in the body's governance, but noted that the ILEX rules requiring council members to sit on panels made it difficult to insulate professional regulation and the pursuit of ILEX's aims and interests.

In a wide-ranging review of the law on bias, the sole reasoned judgment of Rix LJ brought together the doctrine that no one ought to judge their own case and apparent bias from the leading cases of Pinochet No 2 and Porter v Magill as "... two strands of a single over-arching requirement: that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by a fair-minded and informed observer ... that the tribunal could be biased ...".

The judgment will be of particular interest to practitioners involved with professional bodies having disciplinary powers over their members.

Re-engagement and Alternative Vacancies

2011-10-21T01:25:00.000-07:00

[Thanks to Jahad Rahman of Kervin & Barnes Solicitors for preparing this case summary]

Does a finding that a dismissal was genuinely on grounds of redundancy remove the need to explain the remedies of reinstatement or re-engagement?

No, says the EAT in the case of King v Royal Bank of Canada.

Ms King was dismissed by reason of redundancy. The tribunal found that the dismissal was automatically unfair because there was a complete failure to follow the Statutory DDP (now repealed). However, the tribunal concluded that there was a real redundancy situation and as there was no suitable alternative job, the dismissal was not substantially unfair. With regard to remedy, the tribunal awarded compensation for financial loss but overlooked the issue of reinstatement or re-engagement. Ms King asked for reinstatement in her ET1 form and confirmed in her statement that she was seeking re-engagement.

Ms King appealed the decision. She was not legally represented at the time and re-employment was not raised as an issue in her Notice of Appeal. The question of re-employment was only raised at a preliminary hearing by Counsel and permission to amend was granted. RBC applied to vary or discharge the proposed amended grounds.

The EAT held that the tribunal's failure to deal with the remedies of reinstatement and re-engagement constituted a "striking omission" and concluded that it "was and is right to grant permission to amend" on the basis that any prejudice to Ms King would far outweigh any prejudice that RBC would suffer. The EAT also held that the tribunal wrongly restricted itself to considering only vacancies at the time of Ms King's dismissal as the situation with regard to possible vacancies may have changed between the date of dismissal and the period during which RBC ought to have followed a fair procedure.

Mitigation of Loss

2011-10-21T01:14:00.001-07:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Does the duty of mitigation, which applies for the purposes of claiming compensation before the employment tribunal, oblige a wronged employee to consider an offer of new employment with the employer with whom there has been a dispute?

Yes, says the EAT in Debique v Ministry of Defence.

Ms Debique worked for the British Army. She gave birth to a daughter. She was a single parent and found it difficult to combine motherhood with her responsibilities as a serving soldier. After a dispute she gave notice and left. She succeeded in her claim for unlawful indirect sex and race discrimination (see [2010] IRLR 471).

At a remedies hearing before the employment tribunal she was awarded £15,000 for injury to feelings but nothing for loss of earnings, on the basis she had failed to mitigate her loss. She had refused an offer, made by her employer during her period of notice, of a posting which would have provided stability and which would adequately have addressed her childcare difficulties.

The EAT held that whether her refusal to accept the offer made to her was an unreasonable failure to mitigate loss was a question of fact for the tribunal. The tribunal had correctly applied the test and considerations formulated by Potter LJ in Wilding v British Telecommunications plc [2002] ICR 1079 and its decision would not be disturbed. The tribunal's finding that there was no case for aggravated damages was also upheld.

NHS Terms and Conditions of Service

2011-10-17T03:51:00.000-07:00

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Ed McFarlane of Deminos HR for preparing this case summary]

What happens to the pay of a part-time NHS doctor taking up a full-time training position when undergoing approved training? The relevant NHS Terms and Conditions allow clinical staff to have their pay protected, but they do not deal with the pay of part-timers. Should she be paid at a "full-time rate" for her previous job, even if that means that her pay whilst training is considerably higher than her previous, part-time pay?

No, says the Court of Appeal in Barts NHS Trust v Verma, by a majority (Rix and Rimer LJJ), with Elias LJ dissenting.

The Claimant had a sessional post and worked two sessions (7 hours) a week. When she took a full-time House Officer position as approved training, the Respondent Trust limited her protected pay to the maximum pay for her sessional position at five sessions or 17.5 hours – resulting in a pay rise for the Claimant, but not paying a notional full-time equivalent salary at sessional rates.

When the Claimant brought a wages claim, seeking protected pay at the notional full-time sessional rate for her previous role, the employment tribunal held that her pay was protected for five sessions per week. The Claimant appealed successfully to the EAT, and was awarded her notional full-time sessional pay, meaning she was paid more than twice her previous pay. The Respondent Trust conceded that the employment tribunal's decision on five sessions was correct.

On the Trust's appeal, the Court of Appeal, noting the difficulties caused by the wording of the NHS Terms and Conditions, overturned the EAT's decision and restored the employment tribunal Judgment. Although the majority of the Court of Appeal considered that it should only be two sessions that were protected, the Trust's pragmatic concession left the employment tribunal's Judgment unaffected. Rix LJ held that "the natural, rational and purposive interpretation of these provisions relating to protected pay... [protects] ...the practitioner for the pay in a previous role which he or she earned" but does not "[extend] their pay to a figure possibly far in excess of any figure previously earned".

The Judgment sets out the correct approach for part-timers moving to full-time with protected pay, and is likely to be mainly of interest to those dealing with NHS clinical staff, as it relates to terms and conditions of service peculiar to that part of the NHS.

Dismissal Cannot Be Retracted - Normally

2011-10-13T00:52:00.001-07:00

[Thanks to David Campion of EAD Solicitors for preparing this case summary]

Where an employer provides an intended, unambiguous written notice of termination to an employee, can that employer subsequently unilaterally resile from the termination notice on the basis that the notice was premature and/or a mistake?

No, says the Court of Appeal in CF Capital v Willoughby.

In the context of potential future redundancies, the parties discussed the Claimant potentially becoming engaged on self-employed basis.

However, prior to any self-employment arrangement being agreed, on 22nd December 2008 the Respondent sent the Claimant notification that her employment would terminate on 31st December 2008 and informed the Claimant that an alternative agreement would commence on 1st January 2009.

The Claimant contacted the Respondent on 5th January 2009 and stated that she did not accept the alternative agreement and that the Respondent's letter had terminated her employment. The Respondent stated that if the Claimant did not wish to become self-employed then the relationship would continue as before. Once the Claimant failed to return to work, the Respondent concluded that the Claimant had resigned.

The ET dismissed the Claimant's unfair dismissal claim on the basis that the Claimant had resigned. The ET held there were 'special circumstances' that needed to be taken into account as the reference to the termination of the Claimant's employment had to be an error on the Respondent's part and as the Respondent withdrew the dismissal once it had realised its mistake. This decision was overturned by the EAT.

The CA upheld the EAT's decision that the Claimant had been dismissed. The CA held that the Respondent had intended to dismiss the Claimant and had done so using clear and unambiguous terms.

After reviewing relevant case law concerning 'heat of the moment' resignations and dismissals, LJ Rimer concluded that the 'special circumstances' exception is not a true exception to the rule that notice of dismissal cannot be unilaterally retracted; it merely permits the giver of notice an opportunity to satisfy the recipient that he had never intended to give notice.

Overlapping ET and High Court Claims

2011-10-12T03:36:00.001-07:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Should employment tribunal proceedings be stayed when there are threatened High Court proceedings arising from the same facts, but which have not yet been issued?

Yes, given certain conditions, says the EAT (HHJ McMullen) in PaymentShield v Halstead.

H brought employment tribunal proceedings. His solicitors then sent a letter pursuant to the CPR Practice Direction on Pre-Action Conduct threatening High Court proceedings and attaching draft particulars of claim. The employer sought a stay of the tribunal proceedings. The claimant at first agreed but then (wanting to fund the High Court case from the proceeds of the tribunal case) applied for the tribunal proceedings to be reinstated. Two employment judges agreed with him on the ground that the High Court proceedings had not yet been issued. The employer appealed.

The EAT considered the stay should be granted. The principles to be applied in granting a stay were to be found in HHJ McMullen's own decision in Mindimaxnox LLP v Gover (EAT/0225/10). These include where there are complex issues, overlap and where the High Court might be "straitjacketed" by an employment tribunal's finding of fact. And they apply even where the proceedings have not yet been issued. The indication of proceedings in the present case was more than "a glint in the claimant's eye". The pre-action protocol was an important part of the CPR and the claimant's conduct was a clear indication of his intention to claim relief in the High Court.

TUPE and Variation of Contract

2011-10-12T02:26:00.000-07:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

When is an agreed variation of the employment contract following a TUPE transfer effective? When the transfer is not the sole or principal reason for the variation, says the EAT in Smith v Trustees of Brooklands College.

The employees, who were teaching assistants, were employed by Spelthorne College. They enjoyed unusual employment terms. They were paid as full time employees when they only worked part time. In August 2007 the college was transferred, under TUPE, to Brooklands. Afterwards, Brooklands realised the claimants were on terms out of step with the rest of the sector. It sought to bring the contracts into line. Reluctantly, the employees agreed a detrimental adjustment to achieve this, effective from 1 January 2010. Subsequently, the employees claimed the variation in pay was ineffective, since Reg 4(4) of TUPE makes a purported variation of an employment contract void if the sole or principal reason is the transfer itself.

The claimants argued that "but for" the TUPE transfer, the variation would not have taken place. But, said HHJ McMullen, that was not the test. The question was, what was the reason for the change? What caused the employer to do it? This was a clear question of fact and the finding of the employment judge that the variation was not by reason of the transfer would not be disturbed. The judge had correctly had regard to what was in the employer's mind (the need to correct an obvious error in pay), and also the distance between the transfer and the variation, and his decision was "unimpeachable".

Permission to Amend Notices of Appeal

2011-10-10T10:42:00.000-07:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Should an Appellant to the EAT be permitted to amend a Notice of Appeal in a Rule 3 (10) hearing?

'Yes, generally' states the EAT (Underhill P) in Readman v Devon Primary Care Trust, holding that it will generally be in the interests of justice to allow an application to amend a notice of appeal at a 3 (10) hearing.

A Rule 3 (10) hearing permits an Appellant whose Notice of Appeal has been rejected on the sift as showing no material error of law to argue that the appeal ought to proceed as having a reasonably arguable point of law.

The Claimant appealed after failing in her claim for a redundancy payment at Employment Tribunal. The Claimant's Notice of Appeal had been rejected both on the sift and after amendment under Rule 3 (8), and she requested a 3 (10) hearing. With assistance from Counsel via ELAAS, the Claimant successfully applied to amend the Notice of Appeal to include a reasonably arguable point. The Respondent then applied unsuccessfully to set the amendment aside. The EAT considered the leading case on amendments in appeals of Khudados (see bulletin 24th March 2005) and gave guidance on the approach to amendments at a 3 (10) hearing.

The EAT observed that unrepresented Appellants often appeal without showing proper grounds, and a 3 (10) hearing will often be the first point at which they have a practical opportunity to obtain professional advice, when arguable points may emerge, requiring permission to amend. The EAT noted that amendments could include points not raised previously in a Notice of Appeal, provided that they were reasonably arguable. It would be exceptional to not permit amendments at a 3 (10) hearing, as Appellants rarely go there by choice.

The EAT was mindful of the delay arising from this procedure, but held that in this case, it did not outweigh the right to have an appeal determined. The EAT also suggested that Respondents wishing to object to an amendment would be better to raise their objection at the full hearing with the substantive appeal rather than risk the delay and cost of an interim hearing.

The EAT also noted that the right to amend a Notice of Appeal under Rule 3 (8) is absolute.

Disability Discrimination: Reasonable Adjustments

2011-10-05T07:05:00.001-07:00

[Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary]

Is it direct discrimination for an employer to refuse to spend on reasonable adjustments a sum similar to what it would spend on financial assistance for an employee with children? Does an employer in these circumstances fail in a duty to make reasonable adjustments? No, and not necessarily, according to the EAT (Underhill P presiding) in Cordell v FCO UKEAT/0016/11/SM.

Ms Cordell was an FCO employee who, being profoundly deaf, required the support of lipspeakers. A posting to Astana was withdrawn in light of a report estimating the cost of that support at over £300,000 p/a. Ms Cordell relied on the FCO's willingness to pay school fees up to £25,000 per child p/a, and complained of direct discrimination and a failure to make reasonable adjustments. She failed at first instance and on appeal.

The EAT held that there was no direct discrimination: the job was withdrawn because of cost, not because of Ms Cordell's disability. The tribunal's consideration of the cost of lipspeakers in the context of the FCO's total budget for reasonable adjustments and the total cost of embassy staff was legitimate, and what the FCO was prepared to spend on school fees was relevant but not determinative.

Permanent Anonymity Orders

2011-10-04T07:24:00.000-07:00

[Thanks to Lionel Stride of Temple Garden Chambers for preparing this case summary]

In F v G the EAT has provided useful guidance as to the circumstances in which orders for restrictions on reporting and/or anonymity can be made both within and outside the ambit of Rule 49 (anonymity orders in cases involving allegations of sexual offences) and Rule 50 (temporary restrictions on reporting in cases involving allegations of sexual misconduct) of the Employment Tribunal Rules of Procedure.

M Justice Underhill suggested that Tribunals adopt the following approach:

Consider whether Rule 49 applies. If so, anonymisation would normally be considered mandatory.
If Rule 49 does not apply, consider whether restrictions on reporting or anonymisation are required to protect the rights of a party under Article 8 of the Human Rights Act (HRA) and, if so, what measures are necessary and proportionate.
If such protection is required:

If, possible, take any measures under Rule 49 or 50.

If neither rule applies (e.g., because there is no sexual offence or misconduct), the measures should be taken in exercise of the general powers of the tribunal under Rule 10 as set out in A v B [2010] ICR 849.

If the case falls within the scope of Rule 50 but the relief available under that rule is too limited (e.g., because any restriction of reporting is required beyond the end of proceedings), the Tribunal should set out which powers, whether under Rule 50 or Rule 10, are engaged for each part of the order.

If there is no entitlement to protection under the HRA, there is no scope to go beyond the powers within Rule 49 or 50.

Tribunals can consider interim restrictions or anonymity and make the final decision at the conclusion of proceedings.

On the facts of the case, the EAT upheld a permanent anonymity order made under Rule 49 that included the names of the Appellant, F, who had won her claim for sex discrimination, and the college at which she worked, as well as disabled students and staff members. Although Rule 49 had no application because there had been no allegation of any sexual offence, the EAT concluded that the wider powers recognised in A v B justified such an order to protect the rights of the students and staff at the college.

Osborne announces Employment Law Reforms

2011-10-03T06:19:00.000-07:00

Chancellor George Osborne has announced two important changes, intended to reduce the number of employment tribunal claims and boost the economy.

First, the qualifying period for unfair dismissal will be increased from one year to two years with effect from 1 April 2012.

Second, fees will be introduced for tribunal claims. From the (sketchy) information currently available, it appears the following fee structure will apply (note: this is all second-hand information, including from the Evening Standard; I have not seen the text of the speech):

upfront fee of £250 when lodging ET1;
further fee of £1,000 payable by Claimant when the hearing is listed;
higher fees if the claim is for over £30,000;
fee to be refunded if Claimant wins, and forfeited if they lose
fees to be waived for those with no money

The devil is always in the detail. If the test for a fee-waiver is simply being on income support, then most ex-employees will automatically qualify for the waiver (but those still in a job will not). Note that the issue fee of £250 (and hearing fee of £1,000) is substantially greater than the small claims issue fee.

Red Tape Challenge

2011-10-03T03:26:00.000-07:00

The government has opened a three week consultation period for employment legislation under its 'Red Tape Challenge' scheme, aimed at inviting the public to comment on how laws can be simplified.

The Red Tape Challenge, available here, is divided into four sections:

Compliance and Enforcement;
Letting People Go;
Managing Staff; and,
Taking People On

You add your comments on employment law regulation to a 'comments' section on the website, which strikes me as notable only for the lack of any balanced views. My favourite is from the chap who complains about all the abbreviations in employment law which he finds difficult to understand, even though he has a (in his words) 'MBA'.

New President of the Employment Appeal Tribunal Announced

2011-09-30T15:05:00.000-07:00

The Lord Chief Justice has announced the appointment of Mr Justice Langstaff as the President of the Employment Appeal Tribunal with effect from 1 January 2012. The appointment is for a period of three years.

He succeeds Mr Justice Underhill, whose term of office comes to an end on 31 December 2011 and who has sat as President since January 2009. Here is a selection of his past decisions, some of the highlights of which include encouraging tribunals to take witness statements as read, and introducing the word 'rebarbative' to the lexicon of employment lawyers.

Here is the government press release.

UPDATE: Government Proposals for Employment Law Reform

2011-09-28T16:53:00.000-07:00

This is important.

Further to my email bulletin this morning (see below) announcing the government's intention to increase the unfair dismissal qualifying period from one to two years, I have been sent the following statement by the Department for Business, Innovation and Skills:-

"We can confirm that there was a drafting error in the Second Statement of New Regulation. No final decision has been taken to increase the unfair dismissal qualifying period."

increase the unfair qualifying dismissal period from one year to two years
introduce fees for bringing tribunal claims
consult on removing Equality Act provisions imposing liability on employers for third party harassment which they do not take reasonable steps to prevent

All these were the subject of consultation some time ago, but no Response to the Consultation has yet been published. This new document, 'One-In, One-Out, Second statement of new Regulation [LINK REMOVED]', suggests that the government has already decided what steps it intends to take. See page 14 (Appendix D) of the document.

The question does arise whether these proposals are genuine, or whether they are little more than political grandstanding and cannot be implemented due to EU law issues. Watch this space...

Daniel Barnett

Government Proposals for Employment Law Reform

2011-09-28T12:32:00.000-07:00

The Government has published on the internet (but not yet in any sort of press release) proposals to deregulate business. They cover all sorts of things, from planning to procurement. Of interest to employment law practitioners, the proposals are:-

increase the unfair qualifying dismissal period from one year to two years
introduce fees for bringing tribunal claims
consult on removing Equality Act provisions imposing liability on employers for third party harassment which they do not take reasonable steps to prevent

All these were the subject of consultation some time ago, but no Response to the Consultation has yet been published. This new document, 'One-In, One-Out, Second statement of new Regulation', suggests that the government has already decided what steps it intends to take. See page 14 (Appendix D) of the document.

The question does arise whether these proposals are genuine, or whether they are little more than political grandstanding and cannot be implemented due to EU law issues. Watch this space...

Daniel Barnett

Discrimination - Vicarious Liability & Aggravated Damages

2011-09-28T09:13:00.001-07:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Can agents of an organisation make it vicariously liable for acts of discrimination under the Employment Equality (Religion or Belief) Regulations 2003, regs 22 and 23 (now s. 109 of the Equality Act 2010), even though they have not been authorised by the principal to discriminate?

Yes, says the EAT (Silber J) in Bungay v All Saints Haque Centre. The appellants in this case were members of the board of a religious centre. It was held by an employment tribunal that they had caused the unfair dismissal of the claimants, who were employees of the centre, and that they had unfairly discriminated against them on ground of their faith (on account they were Hindu). The appellants were authorised to run the centre even though they did this in a discriminatory manner. Under agency principles however (and see now EA 2010, s. 109 (3)) their acts were treated as being done by the centre.

The tribunal also found the board members were jointly and severally liable with the centre for discrimination damages on the ground they were "prime movers" in the campaign of discrimination.

Further (following The Governing Body of St Andrew's Primary School v Blundell [2010] UKEAT/0330/09/0608), aggravated damages could be awarded in respect of the board members' post-employment conduct in taking a high handed approach to disciplinary proceedings and making unfounded allegations to the police, which cause the claimants much distress.

Government Proposals for Employment Law Reform

2011-09-28T04:28:00.001-07:00

UPDATE: Government Proposals for Employment Law Reform

"We can confirm that there was a drafting error in the Second Statement of New Regulation. No final decision has been taken to increase the unfair dismissal qualifying period."

It seems from conversations that various individuals have had with BIS this afternoon (and thanks to Paul Callaghan of Taylor Wessing for telling me about this), that BIS are still considering the responses to the consultation document and have not reached a decision on whether to increase the unfair dismissal qualifying period.

A correct version of the government proposals is here (see p14). Note that the new phrasing suggests that the increase in qualifying period is a proposal, but the introduction of fees is definitely coming. There is also an excellent blogpost on this topic, from employment barrister Sean Jones, here.

TEXT OF PREVIOUS BULLETIN SENT TODAY 12.30pm

The Government has published on the internet (but not yet in any sort of press release) proposals to deregulate business. They cover all sorts of things, from planning to procurement. Of interest to employment law practitioners, the proposals are:-
increase the unfair qualifying dismissal period from one year to two years
introduce fees for bringing tribunal claims
consult on removing Equality Act provisions imposing liability on employers for third party harassment which they do not take reasonable steps to prevent
All these were the subject of consultation some time ago, but no Response to the Consultation has yet been published. This new document, 'One-In, One-Out, Second statement of new Regulation [LINK REMOVED]', suggests that the government has already decided what steps it intends to take. See page 14 (Appendix D) of the document.

The question does arise whether these proposals are genuine, or whether they are little more than political grandstanding and cannot be implemented due to EU law issues. Watch this space...

Daniel Barnett

Michael Rubenstein's Annual ILS Lecture

2011-09-26T05:17:00.000-07:00

Michael Rubenstein, editor of the IRLRs, is presenting his annual talk for the Industrial Law Society on forthcoming cases.

This lecture, which is one of the highlights of the employment lawyer's calendar, contains a comprehensive list of all employment cases coming up before the EAT, Court of Appeal, Supreme Court and Court of Justice. I really recommend this one as a three-line whip.

Here are the dates:-

London - 10th October
Newcastle - 12th October
Manchester - 17th October
Leeds - 18th October

More details here.

Job References

2011-09-26T03:54:00.000-07:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Can a reference be lawful (i.e. not negligent in its preparation) even though it is, to the layman, unfair?

Yes, says the Court of Appeal in Jackson v Liverpool City Council.

J worked for Liverpool City Council in its youth offending team. He left to join Sefton Borough Council with good references. He then applied for a post with Sefton in its youth offending service. One of his three references from his former employer (Liverpool) was caveated. It was suggested there were record keeping issues. But these had not been investigated before he left (this was made clear in the reference). He failed to get the job and was unemployed for a year.

The trial judge (upheld by the Court of Appeal (applying Spring v Guardian Assurance [1995] 2 AC 296) considered the reference true and accurate even though it referred to matters which were untested and unproved. The claim for negligent mis-statement therefore failed.

The moral of the tale is to try to agree your reference before you leave.

Varying Terms and Conditions of Employment

2011-09-16T03:35:00.000-07:00

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

The EAT (Wilkie J) has handed down its decision in Slade v TNT (UK), which is authority for the proposition that an employer did not necessarily act unfairly when, after failed negotiations to change terms of employment, which included an offer to "buy out" certain existing terms, the employer terminated existing contracts with an offer of re-employment on the new terms which did not include the buy-out payment.

TNT employed loading bay operatives who enjoyed an "end of sort" (EOS) bonus. For legitimate reasons TNT sought to remove that bonus. Negotiations ensued which including an offer of a buy out payment but TNT warned that if the deal was declined, existing contracts would be terminated and an offer of re-employment made.

The employment tribunal decided that there was "some other substantial reason" for the resultant dismissal and the employer had acted fairly. The EAT considered the tribunal had correctly focused on the reasonableness of the employer's decision, balancing the advantages to the business with the effect on the claimants. Applying the band of reasonable responses test, the EAT considered that it was not right to say that the only reasonable response for the employer would be to offer re-engagement on terms which included the buy-out sum. It was open to a reasonable employer to conclude that they should not offer a lump sum on re-engagement when they were not going to achieve any of the benefit of the agreement for which the lump sum had been offered.

Assessing Costs in ETs

2011-09-16T03:06:00.000-07:00

[Thanks to Nadia Motraghi of Old Square Chambers for preparing this case summary]

Does a tribunal have to take into account a Claimant's capital when considering his means in the context of making an expenses award (costs in England & Wales)?

The EAT held that it does in Shields Automotive v Grieg. While a tribunal was not bound to consider a paying party's means (see r41(2) ETR 2004), if it did, it was required to take account of his whole means, including his capital in the former matrimonial home.

Secondly, the Claimant's misrepresentations below came back to bite him after the EAT heard fresh evidence from his estranged wife refuting the nature and extent of his outgoings and regarding disposal of capital prior to the hearing.

The EAT held that given the Claimant's misleading evidence, no tribunal could properly assess the Claimant's means. Therefore it was appropriate for no account to be taken of his means. The EAT ordered the case be remitted to the tribunal for the Claimant to pay the whole of the Respondent's expenses below and ordered remission of the assessment of the expenses to the Auditor of the Sheriff Court (detailed assessment in the County Court in England & Wales).

ECJ - Pilot's Holiday Pay not limited to Basic Salary

2011-09-16T01:17:00.001-07:00

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

When a pilot is on holiday, should holiday pay be calculated from basic salary, or should the calculation include allowances on top of basic salary?

After a reference by the Supreme Court in the cases of Williams & Others v British Airways plc the answer to the question that landed at the European Court of Justice "ECJ" is that generally, allowances must be included in holiday pay where they relate to "any inconvenient aspect" intrinsic to the performance of the job, e.g. a flying allowance paid to a pilot, whereas an allowance for occasional or ancillary costs, e.g. an allowance for time spent away from the pilot's base (but not working) might not need to be taken into account for holiday pay. However, pay during leave should be comparable to pay during periods of work.

The ECJ was concerned that if employers only pay basic salary for annual leave, the prospect of losing pay could deter people from taking annual leave, which would be contrary to the social policy of encouraging people to take leave.

The ECJ left the question of which elements of pay should be incorporated into holiday pay to be determined by the national Court.

The ECJ was considering a question arising from The Civil Aviation (Working Time) Regulations 2004, which cover aircrews, implementing the sector-specific provisions relating to Working Time. However, the Judgment may have broad implications for calculating holiday pay for workers where task-related allowances form part of remuneration.

Reasonable Adjustments

2011-09-15T06:57:00.000-07:00

[Thanks to Sarah Russell, solicitor at Ventura, for preparing this case summary]

Does there need to be a good or real prospect of an adjustment alleviating the disadvantage suffered by a disabled employee for that adjustment to be a reasonable one? Not necessarily, held the EAT in Leeds Teaching Hospital NHS Trust v Foster.

Mr Foster was placed at a substantial disadvantage by the requirement for him to work within the security department, because his disability, stress, was caused by that department. It would have been a reasonable adjustment to put him on the redeployment register. It was not necessary to find that there would have been a good prospect of a redeployment opportunity becoming available and Mr Foster being well enough to work. There need only have been a prospect of that at the date of the decision. A real prospect of an adjustment removing a disadvantage is sufficient to make an adjustment reasonable, but an adjustment may be reasonable even if there is a lower chance.

ECJ – Compulsory Retirement Age for Pilots

2011-09-14T02:17:00.000-07:00

[Thanks to Emma Price of Temple Garden Chambers for preparing this case summary]

Is a compulsory retirement age for pilots contrary to the EU prohibition on age discrimination? 'No', says the European Court in Prigge v Lufthansa, but subject to necessity and proportionality.

The ECJ gave Judgment today on a reference from the German Federal Labour Court arising from a collective agreement to which a German Airline was a party. The agreement automatically terminated the employment of the Airline's pilots when they reached the age of 60.

In respect of Article 2(5) of the Directive, measures that aim to stop human failure causing aeronautical accidents constitute measures aiming to ensure public security and protection of health. Member states can authorise social partners, through collective agreements, to adopt measures in furtherance of this aim. However, since the applicable national and international law considered it unnecessary to prohibit pilots from acting as pilots until the age of 65, a measure prohibiting pilots from acting as pilots after 60 was not necessary.

Similarly, under Article 4(1) of the Directive, possessing particular physical capabilities may be a 'genuine and determining occupational requirement' for pilots and it is undeniable that physical capabilities diminish with age but the requirement was disproportionate where prohibition was from the age of 60.

Rest Breaks

2011-09-12T09:36:00.000-07:00

[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]

Does requiring a security guard to remain on call during his rest breaks contravene the requirements of the Working Time Regulations? Not necessarily, according to the Court of Appeal in Hughes v The Corps of Commissionaires Management Ltd.

Regulation 12 provides that a worker is entitled to an uninterrupted 20 minute rest break when his daily working time is more than 6 hours. Regulation 21 excludes that requirement where the worker "is engaged in security and surveillance activities requiring a permanent presence...", but Regulation 24 provides that an employer should "wherever possible allow him to take an equivalent period of compensatory rest".

The security guard in this case was provided with an area where rests could be taken, but he had to remain on call during those periods, meaning that his break might be interrupted. Significantly, if that happened he was permitted to start his break again.

The Court of Appeal held that the employee's work fell within Regulation 21, and that the breaks provided to him were properly described as an "equivalent period of compensatory rest" (Regulation 24). The employee's suggestion that a risk assessment might be required because of the possibility of interruption was firmly rejected, the Court noting that he might well end up with a break longer than the 20 minutes typically required by the Regulations.

Unfair Dismissal

2011-09-12T05:24:00.001-07:00

[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]

Is an employer considering an appeal against dismissal entitled to find that the dismissal was fair on entirely different grounds from the original decision to dismiss? Yes and no, according to the EAT in the case of Perry v Imperial College Healthcare NHS Trust.

The employee in this case worked for two different NHS Trusts, in different jobs, working different hours. In the Imperial College job she was required to travel whilst the other job was clinic based. Due to medical problems with her mobility she was signed off sick by Imperial but continued with her other job.

When Imperial found out that she was doing the other job she was dismissed for gross misconduct on the basis that she had defrauded Imperial by receiving sick pay. When she appealed it was realised that that decision was unsupportable but nevertheless the appeal panel confirmed her dismissal on completely different grounds, namely that she should have informed Imperial that she was capable of doing other work to which they could have redeployed her.

Despite the indication in the summary at the head of the decision, the EAT did not decide that the appeal panel was not entitled to find other reasons for dismissal but held that the finding made by the panel did not justify summary dismissal. They also found that the tribunal itself did not properly address itself to the fundamental test laid down in British Home Stores Ltd v Burchell, was the decision to dismiss within the range of responses available to an employer acting reasonably. Since, on the facts, the decision was not within the range of reasonable responses the dismissal was held to be unfair.

This case is very factually based and so does not lay down any new principles. It does however emphasise that appeal panels and tribunals must concentrate on whether the facts as found justify dismissal as being a reasonable response. Where the original decision to dismiss was based on facts which cannot be supported at appeal or tribunal level it is likely that the decision to dismiss was unreasonable.

Acas Guidance on Social Networking

2011-09-08T03:38:00.000-07:00

No, it's not an instruction manual on how to use Twitter. Rather, Acas has produced some Guidance Notes on Social Networking, offering tips on how to manage the impact of social networking on managing performance, recruitment, disciplinary and grievance issues.

There is also an excellent section on How to Draw up a Social Networking Policy, including practical tips and an explanation of the legal considerations involved.