Thursday 19 September 2002

New EAT Decisions

The following cases have been placed on the EAT website in the last 24 hours. They are not yet officially reported, but may be appear in the law reports in due course.

Royal National Orthopaedic Hospital Trust v Howard
(HHJ Reid, EAT 23rd August 2002)

Mrs Howard brought an unfair dismissal and sex discrimination claim against the National Orthopaedic Hospital, which had employed her for 18 years. The claims were compromised in a COT3 agreement in 1998, which compromised "these proceedings and all claims which the Applicant has or may have against the Respondent."

Two years later, in 2000, she was asked by a surgeon to assist at an operation for one day but the hospital refused to authorise a temporary appointment - she said, because of her previous sex discrimination claim. She therefore brought a claim for victimisation.

The EAT upheld the employment tribunal's decision that the compromise agreement did not prevent her from bringing the later claim of victimisation. Although it was open to parties to contract away future causes of action which had not yet arisen, an objective construction of the words used in the COT3 did not lend itself to that interpretation. Accordingly she could proceed with the victimisation claim.

Kirkton v Tetrosyl
(HHJ Reid, EAT 23rd August 2002)

No real legal principles, but an example of what does not amount to a 'disability'. Mr Kirkton suffered from mild incontinence: he wore one or two incontinence pads a day, had occasional urinary leakage and needed to go the toilet about eight times a day. The EAT upheld the tribunal's decision that this did not amount to a 'disability' within the meaning of the Disability Discrimination Act 1995. In reaching this conclusion, the EAT accepted that the tribunal had properly relied on the experience of two of the three people sitting on the tribunal who also suffered from incontinence and were in a position to judge the severity of Mr Kirkton's symptoms.

Thursday 5 September 2002

[At the end of this bulletin is an advertisement for CLT courses]

The Court of Appeal has handed down judgment in Lawal v Northern Spirit, upholding (by a majority) the EAT's decision that it is legitimate for part-time judges in the EAT to also appear as advocates in the EAT, in front of a lay member they have previously sat with. (note: for the EAT decision, please see my bulletin of 31st January 2002)

Does a real possibility of bias exist when a part-time judge of the Employment Appeal Tribunal appears as an advocate before the Appeal Tribunal chaired by another judge sitting with two lay members, one or both of whom have previously sat with the part-time judge?

Majority Decision (Mummery LJ and Phillips MR)
There is no real risk of bias at common law, and no lack of a fair trial under Art 6(1) of the European Convention on Human Rights. The lay members are educated and intelligent people, with minds of their own, and they are quite capable of distinguishing the role of a neutral presiding judge from that of a partisan advocate. To suggest a lay member cannot tell the difference is condescending and wrong.

Minority Decision (Pill LJ)
It is not appropriate that part-time judges appear as advocates in front of lay members with whom they have sat. The lay members look to the judge for guidance and there is a special degree of trust and confidence reposed in him. To allow him then to appear as an advocate is likely to diminish public confidence in the administration of justice.

Tuesday 3 September 2002

Protection Code of Practice - Part 2

The long-awaited Part 2 of the Data Protection Code of Practice, dealing with record management, is now available.

The Code sets out the procedures (and penalties) for storing personal data about employees and job applicants. It also explains the processes under which employees (and unsuccessful job applicants) can insist on obtaining copies of those records (for a £10 fee). The bulk of the Code deals with data collection and storage procedures.

Slightly worryingly, the Code sets out what it regards as 'best practice', without always distinguishing that best practice from legal obligation. It may therefore mislead small employers who lack specialist HR knowledge (if any actually read it!). Having said that, it is an enormously impressive and thorough document, and one which (if followed) is going to ensure that employers follow the spirit as well as the letter of the law.

For information about Part 1 of the Code (recruitment and selection), see the bulletin of 14th March 2002. Part 3 (monitoring at work) is undergoing consultation, and Part 4 (medical information) is not yet available.