Tuesday 24 August 2004

Parental Leave must be taken in blocks of a week

By a majority, the EAT has decided that parental leave can only be taken in blocks of one week, under the Maternity and Parental Leave etc. Regulations 1999.

The employee purported to take one day's parental leave. The employment tribunal held this to be lawful, in satisfaction of his entitlement to one week of his thirteen weeks' parental leave. The EAT (by a majority) overruled this, holding that for absence to attract the protection of the parental leave legislation, it MUST be taken in blocks of a week.

The EAT has given permission to appeal to the Court of Appeal.

[Thanks to Maxine Pieri of Kennedys, solicitors for the successful employer, for telling me about this case]

South Central Trains v Rodway

Thursday 19 August 2004

Statutory Right to Time Off

The Applicant took time off work, on medical advice, for grief following a bereavement. She was dismissed.

As she lacked a year's continuity of employment, she brought a claim alleging dismissal for exercising her statutory right to time off "to take action...in consequence of the death of a dependant" under s57A(1) of the Employment Rights Act.

The EAT held that sickness absence caused by grief is not time off to take action in consequence of the death of a dependant; that phrase only extends to matters such as time off to make funeral arrangements, registering the death and applying for probate.

Since the absence did not fall within s57A, the employee failed in her unfair dismissal claim.

Forster v Cartwright Black

Friday 6 August 2004

Information and Consultation

ACAS has just published its Good Practice Advice on the forthcoming information and consultation rules.

The Good Practice Advice has been produced in collaboration with the CBI, the TUC and the DTI. It takes the form of a brief overview, plus a series of modules dealing with specific issues such as 'Information', 'Employee representation', and so on.

It is only available as a series of pages on ACAS's website; hopefully, it will be made available as a self-contained document to download soon.

Wednesday 4 August 2004

Fresh or Unfresh? Remissions from the EAT

The Employment Appeal Tribunal (Burton P.) has provided, for the first time, guidelines on whether a case should be remitted to the same or a different tribunal, following a successful appeal. The factors, contained in para. 46 of the judgment in Sinclair Roche & Temperley v Heard & Fellows, are:
  • proportionality: ordering a fresh hearing always adds considerably to the cost;
  • passage of time: the EAT should not send a matter back to the same tribunal if there is a real risk they will have forgotten about the case;
  • bias or partiality: if there is a question (note: the word 'question' is not defined) of bias, or the risk of prejudgment, the matter should not be sent back to the same tribunal;
  • totally flawed decision: it is not appropriate to remit to the same tribunal if the first decision is completely flawed, or there has been a complete mishandling of it;
  • second bite: the EAT should guard against the risk of a tribunal wanting to reach the same result, if only on the basis of the natural wish to say 'I told you so'; but balance this against,
  • tribunal professionalism: in the absence of clear indications to the contrary, the EAT should assume that the tribunal below is capable of a professional approach in dealing with the matter on remission. ETs are only too familiar with legal approaches changing, and applying a different legal test one week to that which they applied a year or a week before.
In conclusion, Buton P. stated:

"It follows, that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision...) then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."

He also described remission to the same tribunal as appropriate where "there is unfinished business to be done." (para. 47.2)

Vexatious Litigants

The EAT has barred Mr D'Souza (as in D'Souza v Lambeth) from bringing proceedings in the employment tribunal without obtaining prior leave from the EAT.

Mr D'Souza initially brought seven cases against the London Borough of Lambeth between 1987 and 1989. One of his claims reached the House of Lords in June 2003, in which (in a series of conjoined appeals) the House of Lords held that it is possible for post-termination discrimination to fall within the discrimination statutes (but, on the facts, rejecting Mr D'Souza's appeal).

He then brought a second series of cases - this time eight cases - between 1997 and 2004. The Attorney General argued that this second series of cases rendered Mr D'Souza a vexatious litigant.

In a detailed judgment, the EAT has agreed, and has made a 'restriction of proceedings' order against him. The case affirms and follows the previous 'vexatious litigant' cases of Attorney-General v Wheen [2000] IRLR 461 and Attorney-General v Barker [2001] FLR 759. Like all these cases, it makes sad reading and emphasises the need for multiple, habitual and persistent claims arising out of the same of similar facts and causes of action.