Thursday 30 September 2004

New EAT Procedural Rules

The government has published its response to the recent Public Consultation on proposed amendments to the EAT Rules of Procedure. As a result, the final amendments have been laid before parliament and come into force tomorrow (1st October).

The changes are as follows:

- introduction of the overriding objecting into the EAT procedural rules;

- it will become mandatory for the Appellant to lodge the Claim Form and Response Form at the same time as lodging the Notice of Appeal and ET decision

- the time period for lodging an appeal will remain at 42 days after written reasons (or notification of the decision, if written reasons are not requested) are sent out. The government has withdrawn its proposal to start the 42-day time period running from the date of verbal reasons, if a verbal decision is given at the tribunal hearing;

- procedures for 'weeding out' meritless appeals are being tightened up, but the proposal for a 'permission to appeal' system is not being implemented;

- provision will be made for temporary restricted reporting orders;

- costs rules in the EAT will be brought into line with the new costs rules in employment tribunals, including provision for wasted costs orders against representatives and preparation time orders in favour of unrepresented litigants.

The Employment Appeal Tribunal (Amendment) Rules 2004

Government response to consultation paper (much easier to read!)

And yet more happening on 1st October - a whole day's notice from the DTI!

The DTI has just announced that it will be bringing some of the newly passed Employment Relations Act 2004 (which received Royal Assent on 16th September 2004) into force tomorrow. The sections coming into force are:

- extending the role of a representative at a disciplinary / grievande hearing (s37 of the new Act, replacing s10 of the Employment Relations Act 1999);

- extending the EAT's jurisdiction to cover appeals from claims brought for breach of the right to allow a representative at disciplinary or grievance hearings (through a drafting omission, technically the EAT has never had jurisdiction to hear such appeals, meaning that cases on the point are ultra vires) (s38 of the new Act)

- introducing a right for workers not to be offered an inducement not to join a trade union, and extending protection against suffering a detriment on trade union grounds (ss29-32 of the new Act).

Employment Relations Act 2004

Wednesday 29 September 2004

New EAT Decisions

Relaxed Approach to Unfair Dismissal Time Limits

The EAT has upheld a tribunal's decision that it was not reasonably practicable for an employee to present her claim within three months when she had been advised, by a CAB, to exhaust her employer's internal appeals procedure first.

The EAT held that 'reasonable practicability' is a question of fact, and that there was no rule of law stating that incorrect or incomplete advice from an advisor meant that it was reasonably practicable to present a claim in time.

The focus, according to the EAT (following the Court of Appeal's decision in London International College v Sen) is to concentrate on the state of mind of the employee, and the extent to which she understood her position (para. 21). If she did not understand a claim must be presented within three months, it is not reasonably practicable to do so.

This case is only likely to be relevant to dismissals which were contemplated before 1st October 2004, as the new statutory dismissal procedures provide for an automatic extension of time if the employee reasonably believes the employer's dismissal procedures to be continuing on the date the three-month time limit expires.

Marks and Spencer plc v Williams-Ryan CA 2005

Costs: Giving Reasons for the Assessment

An example of a case where the tribunal decided to award costs. It assessed costs of £750 to be payable by the employee when the Respondent (a firm of solicitors) had claimed £28,000 in costs.

The tribunal expressed the assessment of £750 to be an amount 'taken in the round', but gave no other explanation.

The EAT, whilst acknowledging existing authority stating that reasons for costs awards need only be 'brief', considered the reasoning given to be grossly inadequate and remitted the case for a further explanation of the reasons (with a fairly strong hint that the tribunal might like to review the costs award of its own volition)

Bryant Hamilton & Co v Weir

Pregnancy Dismissal requires knowledge of pregnancy

The EAT has confirmed that an employer must know (or believe) that an employee is pregnant for a dismissal to be automatically unfair on grounds of pregnancy.

In so holding, the EAT has upheld its earlier decision in Del Monte Foods v Mundon, and not adopted the criticisms of that decision by another division of the EAT in Heinz v Kenrick.

Ramdoolar v ByCity Ltd, EAT 2004

ACAS Flowcharts on Disciplinary and Grievance

ACAS has, this afternoon, published some really useful flowcharts on operating the statutory dismissal and grievance procedures.

They are ideal for small employers, or as an 'aide memoire' for lawyers.

You need Adobe Acrobat to view the flowcharts.

ACAS Flowcharts

Friday 24 September 2004

Statutory Dismissal and Grievance Procedures

From 1st October, mandatory dismissal procedures exist which, if not followed by employers, give employees the right to claim automatic unfair dismissal (subject to one year qualification period), plus an increase in compensation.

In addition, a mandatory grievance procedure debars employees from bringing most types of tribunal claims unless they have first lodged a written grievance with the employer and waited 28 days.

Analysis and Commentary on new rules

New Tribunal Rules of Procedure

What's the next number in the series? 20, 23, ...

Yes - it's 61. The number of rules in the new Rules of Procedure, replacing the existing 23 which, in turn, replaced a previous 20.

The new rules are pretty straightforward once you sit down and read them (and DO sit down and read them). The main changes are:
  • Originating Application and Notice of Appearance now called Claim Form and Response Form
  • 28 (not 21) days for the Respondent to file Notice of Appearance; but time runs from date the Response Form is sent out (rather than received);
  • early sifting, and default judgment procedure where claim uncontested. Default judgment can be entered for a money sum, where it can be assessed from the contents of the Claim Form, not just for liability with award to be assessed;
  • restriction in ACAS's power/duty to conciliate to 13 weeks from start of claim (in most cases), or 7 weeks in some cases (eg unlawful deduction from wages, statutory redundancy pay) - and no hearing can take place during this 'conciliation' period;
  • substantial, and complex, changes to costs rules, including costs awards for preparation time for (subject to caveats) unrepresented parties, and a power to make wasted costs orders against representatives;
  • if a decision is given verbally at the tribunal, written reasons will not be produced unless requested. The distinction between 'summary' and 'full' written reasons is abolished;
  • the Register will no longer contain names and addresses of the parties (sometimes used by employers for 'blacklisting' purposes, and often used by representatives engaging in 'ambulance chasing'). Now it will just contain the decision and any written reasons.
Also, from April 2005, the DTI will introduce redesigned, mandatory Claim and Response Forms.

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

Disability Discrimination

Many changes - the main ones being:
  • the small employer exemption is removed - employers with less than 15 employees have to comply with the Act;
  • the justification defence is abolished for failures to make reasonable adjustments: if a reasonable adjustment is not made, the employer is liable;
  • new definitions of 'discrimination' - direct discrimination (less favourable treatment on grounds of disability - which CANNOT be justified) and disability-related discrimination (less favourable treatment for a reason relating to disability, which CAN be justified).
  • a formal definition of 'harassment';
  • DDA protection extended to partners (and prospective partners) of firms, to barristers and to pupil barristers;
  • DDA protection extends to police.
Disability Discrimination Act (Amendment) Regulations 2003

Equal Pay
Two minor changes, namely:

  • allowing a tribunal to decide whether work is of 'equal value' without first obtaining a report from an independent expert. Previously, the tribunal had to obtain a report unless satisfied there was no reasonable prospect of an equal value claim succeeding.
  • creating a strong presumption that, where a job evaluation study has allocated different values to the man and woman's jobs, then the man cannot be a valid comparator.
Equal Pay Act 1970 (Amendment) Regulations 2004

National Minimum Wage
Okay, it's boring. But it is important. The main (adult) rate for workers over 22 increases to £4.85ph. The 'development rate' (for workers aged 18-21 inclusive) increases to £4.10ph.

And there is a new rate for 16 and 17 year old (above compulsory school leaving age) of £3.00ph. This new rate does not apply to 16 and 17 year old apprentices.

DTI Minimum Wage website

Wednesday 15 September 2004

ACAS Code on Disciplinary and Grievance Procedures out

The new version of the ACAS Code on Disciplinary and Grievance Procedures has been formally published by The Stationery Office today.

It has been updated to incorporate the statutory dismissal and grievance procedures which, with the ACAS Code, come into force on 1st October 2004.

ACAS Code on Disciplinary and Grievance Procedures (Adobe Acrobat required)

Friday 10 September 2004

Order for Medical Records - not breach of Human Rights

A nice, discrete human rights point which engages an important aspect of tribunal procedure has been decided by in the EAT (HHJ Ansell) in Hanlon v Kirklees Council.

It is well-known that courts and tribunals cannot order disclosure of a Claimant's / Applicant's medical records, since that would breach the Access to Medical Reports Act 1988.

Thus tribunals routinely order Applicants to consent to disclosure of medical records under the Act, failing which they will stay (or strike out) a claim.

Mr Hanlon refused his consent, arguing it was a breach of his right to respect for privacy under the European Convention of Human Rights.

The EAT, upholding the tribunal's decision to strike out his case, held that the right to respect for privacy must be balanced against a protection for the rights of others - and in litigation, the rights of the other party to have a fair trial must always be important.

Accordingly striking out a case because an Applicant refuses to consent to disclosure of medical records does not offend the right to respect for privacy under the ECHR.

Hanlon v Kirklees Council

Thursday 9 September 2004

Race Equality Guidance

The Commission for Racial Equality, in collaboration with the Home Office, has this morning issued a step-by-step 'Race Equality Impact Assessment' guidance.

Primarily designed for policy makers in the public sector, all employers will find compliance with this guidance a very useful step in establishing the statutory defence against vicarious liability for employees' acts (s32 of the Race Relations Act 1976 - that the employer has taken reasonable steps to prevent discrimination)

Race Equality Impact Assessment Guide

Friday 3 September 2004

Rutherford v DTI: Court of Appeal confirms that Upper Qualifying Age does not contravene EU law

(Thanks to Paul Troop of Tooks Chambers, junior Counsel for Mr Rutherford, for telling me this decision was out)

At 10.00am the Court of Appeal handed down its judgment in Rutherford v DTI (no. 2) (previously known as Rutherford v Harvest Town Circle). The "ambitious aim of the two test actions is to secure judicial application of long standing statutory limitations on the jurisdiction of the employment tribunal." (judgment, para. 1)

Mr Rutherford, who was 67 when dismissed, claimed the upper qualifying age in ss109 and 156 of the Employment Rights Act (providing that employees cannot claim unfair dismissal or redundancy payments if over normal retirement age - in his case, 65) contravened EU law as it had an adverse effect on more men than women.

The employment tribunal found in his favour. The EAT allowed the employer's case and remitted the point for re-hearing. The tribunal again found in his favour, deciding that the relevant 'pool' of comparators was people in the workforce who could realistically claim to be affected by the upper qualifying age. It assessed this as people aged over 55, ie within 10 years of retirement, and found that far more men than women fell into this group - thus the upper qualifying age had an adverse impact on men. It held that the DTI failed to justify the upper qualifying age on objective grounds, thus the upper qualifying age was unlawful and must be disapplied.

The EAT overturned that decision, holding the upper qualifying age was lawful. The Court of Appeal has, today, agreed.

Mummery LJ, giving the leading judgment, held that the employment tribunal had failed to give effect to the House of Lords' judgment in R v Secretary of State ex p. Seymour-Smith, which provided that the ENTIRE workforce must be used as a pool when determining whether a national provision had an adverse impact on one gender compared with the other.

When using the statistics for the entire workforce, the difference between the proportion of men affected by the upper qualifying age, and the proportion of women, was negligible.

Accordingly, the employment tribunal was wrong to disapply the upper qualifying ages, and the UK limitations on unfair dismissal stand.

As a separate point, the DTI has recently announced that publication of the draft Regulations on Age Discrimination have been delayed until next year, to allow time for additional consultation on whether to maintain mandatory retirement ages.

Rutherford v Harvest Town Circle