Wednesday 29 November 2000

Age Discrimination / New EAT decisions

1. Age Discrimination - Awards of Excellence for Age Awareness
2. New EAT decisions


1. Age Discrimination - Awards of Excellence for Age Awareness

Margaret Hodge, Employment and Equal Opportunities Minister, has today awarded eight recruitment consultancies the first Age Diversity in Recruitment Awards of Excellence. This is part of the government's effort to ensure that business considers candidates on the basis of their skills and experience, and not their age.

Readers will recall that the government issued a Code of Practice on Age Diversity in Employment on 16th June 1999. This was in lieu of its pre-election promise to introduce age discrimination legislation (Hansard, 9th Feb 1996). However, the Code is voluntary only and appears to have had little effect. A survey by the Employers’ Forum on Age revealed that 3 in 10 employers had never heard of the Code, less than 1 in 10 intended to make any changes to the way they recruit and train, and 68% said that a voluntary code will make no difference to the way they run their business. According to a report in The Times (15th June 2000), the Prime Minister’s advisory unit on older people recommended that the Code of Practice be replaced with a statutory code.

The proposed EC Employment Framework Directive is due to be formally agreed within the next day or so, which will require member states to introduce age discrimination legislation by 2006.


2. New EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at

Adegbite v Commissioners of Inland Revenue [14.11.2000, Bell J.]
The Applicant appealed on the basis that, in a long(ish) race discrimination case, her comparatively inexperienced trade union representative was against a very experienced employment Counsel and was thus at a disadvantage, leading to a possible perception of bias. The EAT rejected this argument, holding that the parties chose their own representatives and the informality of tribunal hearings did not lend themselves to such arguments. The EAT also endorsed the Chairman's power when limiting the length of a representative's cross-examination.

Chelsea Village Management Ltd -v- Omar Ali [1.11.2000, HHJ Wilson]
The Applicant was awarded approx. £22,000 in a race discrimination case. Although the appeal was allowed on the merits on the grounds of insufficient reasoning, the EAT specifically stated that the failure to set out the factors for, and the different heads of, the award rendered the decision on quantum flawed.

Professional Development & Selection Ltd. -v- Wahab [26.10.2000, Mr Commissioner Howell]
The employer attended a full hearing without any witnesses, having been erroneously informed by his solicitors that it was a directions hearing only and that he needed neither witnesses nor legal representation. The chairman, who was sitting alone, rejected an application for an adjournment. The EAT remitted the substantive case to a fresh tribunal on the basis that the chairman had not properly considered whether it was appropriate for him to hear the case alone. It did not comment on whether the refusal of the adjournment was a wrongful exercise of discretion.

Monday 27 November 2000

ET costs increase to £10,000

As leaked to this morning's Daily Telegraph(!), at midday the DTI formally announced the proposed new changes to Employment Tribunal powers.

The main changes, which are expected to come into force in early Spring 2001, are:

• an increase in the costs limit for frivolous, vexatious etc. behaviour from £500 to £10,000. Although the press release does not make this clear, presumably tribunals will retain the power to send costs to the county court to be assessed. A new power will be introduced to allow tribunals to take into account the unreasonable behaviour of representatives;

• a new power for tribunals to strike-out cases which have no real prospect of success;

• an increase in the deposit for weak cases (after a PHR) from £150 to £500;

• measures to increase tribunal case management.

Draft Regulations will be published early in the New Year.

New ACAS Arbitration Scheme

The DTI announced today that ACAS is introducing a new arbitration scheme, for unfair dismissal claims only.

It will provide a cheap(!) and informal alternative to tribunal hearings. One advantage is that the arbitration is confidential, ie not in the public doman like tribunal hearings.

ACAS will be producing formal guidance on the scheme in due course.

Friday 24 November 2000

Guide for Employees taking Industrial Action

The DTI has today published a guide for employees / trade union members who are considering taking industrial action.

Entitled 'Industrial Action and the Law (PL869 REV4), it can be downloaded from

Thursday 23 November 2000

Legal Aid Available for ETs in Scotland

According to an article in The Scotsman (20.11.00), the Scottish executive has made legal aid available for bringing claims in employment tribunals. This is regarded as a 'pre-emptive strike' in view of the current claims being brought in Scotland under Article 6 of the ECHR for failing to provide legal aid (see bulletin 23/5/00)

It is expected that legal aid will be available for ETs in Scotland (not England or Wales) from 15th January 2001.

Friday 17 November 2000

TUC calls for Email Code at Work

The TUC and the Industrial Society are, at today's (Friday's) TUC Conference on Human Rights, calling on employers to sit down with unions and draw up Codes of Practice for their staff on Email usage. They have jointly produced a set of guidelines of do's and don'ts regarding the sending and receiving of emails.

The guidelines suggest that any code of practice should set out to encourage responsible behaviour, good management practice and safeguard worker privacy. Policies should:

• warn users that emails may be electronically scanned for obscene, indecent, racist or illegal remarks

• allow for the occasional and reasonable personal use of email, as long as this does not interfere with an employee's work

• give assurances that emails between union reps and members will not be monitored or read by managers

• remind employees that their emails may be checked by others at work if they are unexpectedly absent or have gone on leave without leaving forwarding arrangements.

TUC General Secretary John Monks said: "Good relationships at work are based on trust. The recent regulations have left many employees worried that managers might be snooping on their personal emails. And employers fear that if they open any email containing private information, they could be breaching the Human Rights Act. But instead of reacting by banning the personal use of email at work, it makes more sense for employers to consult with their workforce and draw up guidance which protects and reassures everyone."

Industrial Society Chief Executive Will Hutton said: "The explosion of new technologies in the workplace has risks as well as rewards. Employers are increasingly aware of `cyberliability' and email abuse and are using more covert and intrusive methods of surveillance. While employers have legitimate interests to protect, over zealous monitoring can undermine employees' dignity and autonomy within the workplace. It is essential that employers develop sensible solutions with their employees to promote good practice in this area, based around openness, consent and consultation with their employees."

The TUC guidelines say that employers need to protect themselves and their staff from abusive or obscene email, but that this should not be at the expense of employee privacy. Good employers with email policies will usually seek the consent of an employee before monitoring takes place, and only act after a complaint has been received.

Thursday 16 November 2000

Responses to Tribunal Review consultation

Yesterday the Lord Chancellor's Department published the results of the responses to the Tribunal Review consultation. Sir Andrew Leggatt, heading the Review team (see bulletin 18/5/00), is due to report to the Lord Chancellor by April 2001.

The responses can be seen at

Almost 300 responses were received. The review dealt with all tribunals - thus covered (eg) educational needs tribunals, mental health tribunals, the Child Support Agency, immigration tribunals, rent review tribunal as well as employment tribunals.

I summarise some of the important responses (so far as they apply to ETs):

Most of the jurisdiction comments related specifically to employment tribunals. Many responses thought that ETs should:
• become the forum for litigation instituted by the employer, not just the employee;
• hear all cases involving contractual jurisdiction, whether or not the employee remained in employment and including restrictive covenants;
• therefore have authority to grant injunctive relief;
• be enabled to make recommendations to the employer to improve work practices (as well as awarding compensation) after a successful unfair dismissal claim;
• have an increased limit on claims (particularly basic and compensatory awards) or an unlimited jurisdiction;
• be the starting point for ALL discrimination claims (including discrimination re goods and services), although there should be the possibility of transfer to the county court;
• take the work of the reserve forces appeal tribunals.

There was some comment about the overlap between DDA cases in the ETs, and PI actions in the county court, but no firm recommendations were made.

A (small) minority of those responding said that tribunals should have a general power to award costs. Employment tribunals were specifically mentioned as being a venue where the limited costs powers were not effectively used in practice. In particular, it was suggested that the late withdrawal of an employment application should ordinarily attract cost sanctions.

It was noted that employment tribunals were amongst the most expensive of all tribunals, with costs for employers sometimes running into tens of thousands of pounds.

For employment tribunals, formal procedures were appropriate. Oral hearings, rather than paper submissions, were desirable.

The significant majority wished to retain employment tribunals as separate bodies (even if in favour of merging other types of tribunals).

A significant minority thought that tribunals (generally - not limited to ETs) were not, or not perceived as, independent. The main problems revolved around appointment procedures and the inherent lack of independence in the wing members (again, not specifically ETs).