Friday 28 November 2003

New EAT Decisions

[An advertisement for employment lawyers for Abbey Legal Services in = Croydon appears below]

These decisions have been placed on the EAT website this week.

Appeal - Inadequate Reasons

Bax Global Ltd v French (Lord Johnston, 20/10/03)

This is an important case for those who appear in the EAT.

The EAT found that the tribunal's reasons were inadequate. Normally,= this would result in the appeal being allowed and the case being remitted = for re-hearing.

However, in this case the EAT adjourned the appeal and directed that = the original employment tribunal provide fuller reasons for its decision. = It did this following a recent Court of Appeal decision allowing this appro= ach in the personal injury context, and directly contrary to established EA= T convention. Indeed, this approach (adjourning the appeal and asking the = tribunal to provide further reasons) was prohibited by an earlier division = of the Court of Appeal in Tran.

With luck, other divisions of the EAT will follow this approach, whic= h should reduce the number of 'technical' appeals based upon complaints of = inadequate reasoning rather than genuine errors of law.

Implied Term of Trust and Confidence

Billington v Michael Hunter & Sons Ltd (HHJ Richardson, 16/10/03)

If an employer tells an employee that she is likely to face dismissal= but may, instead, resign on a generous resignation package, this is conduc= t likely to damage or destroy the employment relationship. Therefore unles= s the employer establishes it had reasonable and proper cause for acting in= the way it did, it is in breach of trust and confidence and the employee c= an claim constructive dismissal.

Friday 21 November 2003

Pension Losses: 3rd edtn. of Guidelines published

The Employment Tribunal Compensation for Loss of Pension Rights booklet, 3rd edtn., is being published on Monday.

It replaces the 2nd edition, published in 1991, which was criticised by the EAT in Clancy v Cannock Chase Tech [2001] IRLR 331 as being over-simplistic. Rumour has it that the 3rd edition, which is the bible used by tribunal chairman when there is no actuarial evidence, is very different from the draft version which was put out to consultation earlier this year.

The booklet is available from The Stationary Office or 0870 240 3701 price £10.75.

New EC Employment Website

The European Commission DG Employment and Social Affairs Department has, today, launched a new website.

According to the Press Release, it "brings together a wealth of legislation, documentation and publications on the subject of labour law and work organisation. Not only will it provide access to a lot of information for the general public but it will also be an excellent source of information for social partners, researchers and national administrations."

Thursday 20 November 2003

Illegality - Colen v Cebrian

The Court of Appeal has, today, handed down its judgment in Colen & anor. v Cebrian (UK) Ltd.

The case deals with whether a tribunal has jurisdiction to hear unfair and wrongful dismissal claims where the contract of employment is tainted with illegality.

Most of the three judgments (Waller, Carnwath and Peter Gibson LJJ) deal with whether the tribunal was entitled to make the findings of fact that it did. There is a useful summary of existing caselaw at paras. 21-23 of Waller LJ's judgment. But two points of interest emerge from the case:

(1) the burden of proof is firmly on the employer to establish illegality, not on the employee to establish he is entitled to bring a claim;

(2) there is nothing illegal or objectionable in an employer agreeing that remuneration shall be paid jointly to husband and wife in respect of services provided by them as a team, notwithstanding that the precise division of remuneration may not be agreed and may fluctuate from time to time to minimise tax exposure.

Thursday 13 November 2003

TUPE - Celtec v Astley

In a judgment handed down this morning, the House of Lords has referred the Celtec v Astley case to the ECJ.

Prior to 1990, vocational training and enterprise activities were managed by the Department of Education. In 1989, the government announced the creation of Training and Enterprise Councils (known as TECs). Approximately 80 TECs were set up, using (in the main) the same premises, databases and staff as had been doing the job under the Department of Education. They took over the Department of Education's existing contracts with suppliers and other third parties.

This case was concerned with the North Wales TEC, which began operations in about September 1990. In common with the other TECs, it was a company limited by guarantee and was initially staffed by civil servants, previously working for the Department of Education, who were seconded out for a 3-year period to the TEC. The terms of secondment provided that they continued to be civil servants and that, at the end of the period, they could extend the period of secondment or return to normal civil service duties.

In September 1991 the government decided to end the secondments and arrange for staff to be directly employed by the TECs. Following a period of consultation, all staff were offered the opportunity to return to the civil service at the end of their secondment, or resign from the civil service and enter into contracts of employment with the TEC. Many employees, including the Respondents to this appeal, adopted the latter option. The three in question, who brought their claims as test cases, resigned and entered into new contracts in about October 1993 (although the process extended until 1996 for other employees).

If the TUPE transfer took place in September 1990, then "at the time of the transfer" (being the wording in ERA 1996, s218, dealing with continuity of employment) the employees were, and remained, employees of the Department of Employment. Thus s218 would not grant them continuity of employment.

If, however, the TUPE transfer was a gradual process occurring between September 1990 and October 1996 (as the staff transferred), then the employees would have retained continuity of employment for their years spent with the civil service.

Issues Referred to ECJ
(I am paraphrasing the questions posed by the House of Lords)

1. Should the phrase "rights and obligations...existing on the date of a transfer", in the Acquired Rights Directive (which gave rise to TUPE and which had direct effect) be interpreted as meaning that there is a particular point in time at which the undertaking is deemed to have transferred?

2. If so, how is that date to be ascertained when a transfer takes place as a series of transactions over a period of time?

3. If not, how should the words 'on the date of a transfer' be interpreted?

Wednesday 12 November 2003

Legal Services Commission can be sued for Discrimination

The Court of Appeal has handed down its decision in Legal Services Commission v Yvonne Patterson, overturning the decision of the EAT.

Ms Patterson is a sole practitioner whose firm is overwhelmingly (98%) made up of legal aid work. She brought a claim in the tribunal under the Race Relations Act 1976 when she was refused a franchise, alleging that she had been discriminated against on grounds of race.

The Court of Appeal has held that the tribunal has jurisdiction to consider such a claim, because:
  • (a) although Ms Paterson would not be an 'employee' of the Legal Services Commission (since she would not be required to 'personally execute any work or labour', so as to bring her within the definition of an 'employee');
  • (b) a legal aid franchise is an 'authorisation or qualification' and, as the body which awards that authorisation or qualification, the Legal Services Commissions had a duty not to discriminate under section 12 of the Act.
Although the Court of Appeal were at pains to point out that they were deciding this case under the Race Relations Act 1976 only, there seems to be no good reason why it should not apply to other forms of discrimination.

This decision may result in a large number of unsuccessful franchisee applicants, particularly sole practitioners, bringing discrimination claims against the Legal Services Commission. (It does not, of course, mean they will win!)

Thursday 6 November 2003

New EAT Decisions

Metropolitan Police v Logan (HHJ Serota, 31/10/02 and 20/9/03)

The EAT's power to award costs includes cases where the receiving party's costs are being met by a trade union. The fact that a union is paying the bill does not offend the indemnity principle.


Pay v Lancashire Probation Service (HHJ McMullen, 29/10/03)

Mr Pay was a probation officer, responsible (amongst other things) for dealing with sex offenders and their victims. In his spare time, he ran a company selling bondage, domination and sado-masochism merchandise through a website. He also had involvement with a club called 'Club Lash'. The probation service dismissed him on the grounds that his extra-curricular activities, advertised in the public domain, were inconsistent with the duties of a probation officer dealing with victims of sex crimes and would bring the probation service into disrepute. The tribunal found the dismissal was fair and, in particular, did not offend Mr Pay's rights under the European Convention of Human Rights.

The EAT upheld the finding of a fair dismissal. Article 6 (right to private life etc.) was not engaged because, by advertising on a web-site, Mr Pay's activities had been brought into the public domain. Although article 10 (freedom of expression) was engaged, the EAT upheld the tribunal's conclusion that the probation service's right to uphold its reputation, when balanced against Mr Pay's right to freedom of expression, meant that the probation service was entitled to dismiss him.

Wednesday 5 November 2003

New ACAS Guides - Final Version

Further to my Email of yesterday (announcing the draft versions), the final version of ACAS's guides to sexual orientation discrimination, and to discrimination on grounds of religion/belief, have now been published.

The links are:

Sexual orientation


I had several complaints yesterday that the links did not work. They do work - but ACAS's website cannot cope with the flurry of demand when the recipients of this bulletin all click on the link simultaneously. As the advert says, if you can't get through, try again later.

(Thanks to Victoria Wright of Vizold Oldham for telling me the final version had been published)

Tuesday 4 November 2003

New ACAS Guides

ACAS has, today, published draft guides on discrimination on:

(a) sexual orientation discrimination; and,

(b) discrimination on grounds of religion/belief.

The guides are really, really good. They are not that long, and contain a comprehensive summary of the new law, worked case examples, suggestions as to what practices employers should follow or avoid, and a useful Q&A section. If you haven't read the legislation itself (and even if you have), these two documents are well worth reading.

Monday 3 November 2003

Statutory Dispute Resolution

[An advertisement for an employment lawyer at nicholasfrimond, Guildford, appears below]

The DTI has produced a website summarising the anticipated changes (and implications) of the forthcoming statutory disciplinary and grievance procedur= es.

Along with copies of government press releases, there is a copy of a DTI training Powerpoint presentation.

Alternatively, I have now put my seminar Powerpoint presentation on the web (to accompany my seminar notes on the forthcoming changes, which were put on the web in July).