Thursday 31 January 2002


These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.

(Lindsay J., 15th January 2002)
Resolving the issue of the 5 well-known employment QCs who sit as part-time judges in the EAT. According to the EAT, there is no bias (or appearance of bias) if an EAT lay member who has sat with such a QC in his/her capacity as presiding judge, then sits in a case where that presiding judge appears as Counsel.

PHOTIS & ors. v DTI & ors.
(Lindsay J., 6th December 2001)
Applicants to statutory judicial offices cannot bring claims to employment tribunals under the Race Relations Act 1976 or the Disability Discrimination Act 1995. In particular, three unsuccessful applicants for posts as lay-members of employment tribunals and social security tribunals were not permitted to bring employment tribunal claims for race or disability discrimination, because they did not fall within the jurisdictional limits of the Acts. Their only remedy was for Judicial Review.

(HHJ Peter Clark, 29th November 2001)
A conduct dismissal can be fair even if the employer wrongly labelled the conduct as 'gross misconduct'. In other words, it is still possible for an employer to act reasonably in dismissing for conduct even when the employee has not committed a repudiatory breach of contract.

(HHJ Levy, 12th November 2001)
The employer's representative wrongly conceded that the limit on the compensatory award was £50,000 (when, because of the date of termination, it might have been £12,000). The EAT held that it was an error of law for the tribunal to proceed without formally determining the effective date of termination, despite the formal concession as to the maximum award having been made, and remitted the case.

(HHJ Reid, 17th October 2001)
A profoundly deaf employee was one of seven members of staff dismissed due to redundancy at a meeting. No consultation or warning had occurred. Because of his deafness (which amounted to a disability), he understood that he had been dismissed, but did not understand that others had also been dismissed or that the reason was redundancy. The EAT held that the employer's duty to make reasonable adjustments entailed "having him interviewed separately at the same time, by someone who was capable of communicating with him in a proper manner" and therefore there existed "discrimination in the manner of his dismissal". The EAT added:
"It would be hoped that that declaration will make other employers aware of the need for appropriate and sympathetic treatment of other persons suffering from similar types of disability to Mr Berry at the time of their dismissal. "

Tuesday 22 January 2002

Fixed Term Employee Regulations

Following extensive consultation, the government has published a second draft of the Fixed-Term (Prevention of Less Favourable Treatment) Regulations 2002 and has commenced a period of further consultation.

The Regulations are designed to give effect to the EC Fixed Term Workers Directive, which must be implemented by 10th July 2002. Unsurprisingly, the proposed date for UK compliance is 10th July 2002!

The latest draft is similar to the original, although some tweaking has taken place. The draft Regulations confer the following rights:

• a right for fixed-term employees (note: 'employees', not 'workers') not to be treated less favourably than a comparable permanent employee, unless objectively justified. This does not require like-for-like pro rata entitlements - provided the fixed-term employee's contractual rights are, as a whole, at least as favourable as the permanent employee's, objective justification is deemed to be made out.
• an obligation on employers to advertise permanent vacancies in such a way as is reasonably likely to come to the fixed-term employee's attention;
• a right to receive a written statement of reasons for treatment, if the employee believes less favourable treatment has occurred;
• provision that any dismissal for seeking to enforce these rights is automatically unfair;
• provision that a fixed-term contract will be converted to a permanent contract upon the next renewal/extension if the employee has been employed on a fixed-term contract for over four years (unless the employer can demonstrate an objective justification for continued fixed-term employment). This period can be varied by collective agreement, and the employee can demand a statement that the employment has converted to a permanent basis. The four-year period starts running from the date the Regulations commence (ie fixed-term time before 10th July 2002 does not count as part of the four-years);
• the ability to enter into redundancy payment waiver agreements will be abolished.

Further information, and the draft Regulations, can be obtained here.

Monday 14 January 2002

Increase in Limits for Tribunal Awards

The annual increase in tribunal awards has been announced, pursuant to section 34 of the Employment Relations Act 1999.

The important changes are:
• compensatory award for unfair dismissal - from £51,700 to £52,600;
• basic award for unfair dismissal - from £240pw to £250pw;

The other increases are set out in the statutory instrument, the Employment Rights (Increase of Limits) Order 2002, which can be seen here.

The increases have effect where the 'appropriate date' (which, for unfair dismissal claims, is the effective date of termination) is on or after 1st February 2002.

[Thanks to James Carmody of Bolt Burdon for notifying me of these changes]

Monday 7 January 2002


These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.

(Lindsay P., 11th December 2001)
Practical guidance from the EAT about evidence required to prove mental impairment under the Disability Discrimination Act 1995. Very useful decision, but two points in particular warrant mention. First, Applicants are warned in clear terms that a complaint of 'stress' is not enough - the EAT sets out three methods of proving a recognised psychiatric illness, and says that a catch-all complaint of 'stress' is insufficient. Second, the EAT warns tribunals about forming an impression of the Applicant because of his conduct in the witness box (because of the catch-22 situation of tribunals penalising an inarticulate witness because he cannot explain his level of impairment properly, and penalising an articulate witness because he is thought to be too articulate to be suffering from an impairment!).

JONES & others v 3M HEALTHCARE & others
(Lindsay P., 11th December 2001)
Another chapter in the saga of whether Applicants can claim for post-termination discrimination. This conjoined appeal involved three cases of disability discrimination (including Kirker v British Sugar). The EAT held that the DDA 1995 does not permit a claim to be brought based upon allegations of discrimination occurring after dismissal. The decision is useful in that it contains a first-class summary of all the decisions on this point to date (including those under the SDA 1975 and RRA 1976), and is a concise, readable decision in an area frequently encumbered with precisely the opposite.

Thursday 3 January 2002


These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.

(Lord Johnston, 1st November 2001)
An example of the EAT awarding costs against a party who withdrew an appeal a few days before the hearing. Of interest is the EAT rejecting the argument that lodging an appeal with a view to negotiating a settlement is itself unreasonable or vexatious conduct:
"we recognise as legitimate for an appeal to be taken with a view to achieving a compromise in cases where both sides may reflect their respective weaknesses in achieving such a compromise."

(HHJ Reid, 1st November 2001)
The Applicant, a senior manager at Marks & Spencers, was selected for early retirement and given a retirement package of £151,000 under a discretionary early retirement scheme. The employment tribunal gave credit for this amount to the Respondent when calculating the compensatory award. The EAT held it was right to do so - the ultimate test is what is 'just and equitable' and it would not be just and equitable to ignore the discretionary payment of £151,000. To this extent the EAT distinguishes Parry v Cleaver, which provides that pension benefits should be ignored for the purpose of calculating personal injury compensation, on the basis that this was a discretionary rather than a contractual payment.

(Lord Johnston, 27th November 2001)
When awarding future losses of earnings, a tribunal must state the reason for the period it selects. In this case, the tribunal awarded six months' future loss of earnings without saying why it selected this period. The failure to give reasons was an error of law and the case was remitted to the same tribunal.

(Wall J., 4th December 2001)
The saga continues. After succeeding on liability (following a well-known appeal), Mrs Vento was awarded £166,000 for future loss of earnings, £50,000 for injury to feelings, £15,000 aggravated damages, £9,000 for personal injury and £18,000 interest (total: £258,000). The police force appealed. The EAT held that the tribunal had given inadequate reasons for departing from statistical evidence as to the implausibility of a woman remaining in the West Yorkshire Police Force, and set aside the award for loss of earnings. It also held that the £50,000 injury to feelings and £15,000 aggravated damages awards were so excessive as to be unreasonable, and substituted awards of £30,000 and £5,000 respectively.

(HHJ Peter Clark, 6th December 2001)
The unrepresented Applicant appealed on the grounds he had not had a fair hearing from the tribunal chairman. The EAT rejected his account of what happened at the hearing, and said:

"We would add this. The passing of the Human Rights Act should not be seen as a licence for unruly litigants to misbehave before Employment Tribunals and to then use the appeal process in order to obtain a second bite of the cherry. Speaking for ourselves we shall scrutinise closely any attempt to do so. It is our experience generally that Tribunals sometimes face a difficult task in controlling proceedings in a way which is fair to both parties. Where there are exceptions we shall not hesitate to say so; otherwise, we do not regard it as being part of our function to undermine the need for Tribunals, on occasions, to robustly maintain their judicial authority."

Correction to Previous Bulletin

In the bulletin headed 'Miriki v General Council of the Bar' dated 28th December 2001, I wrongly referred to the decision in Anya v University of Oxford as a House of Lords' decision. In fact, it was a decision of the Court of Appeal.