Tuesday 30 November 2004

ACAS E-Learning Guides

Acas has launched two new E-Learning Guides, to add to its existing guides on Discipline & Grievance, Informing & Consulting, and Absence

Guide 4 is on contracts and written statements. It includes a useful section on how to vary terms and conditions of employment - something frequently overlooked or got wrong.

Guide 5 is on redundancy. It covers definitions of redundancy, collective and individual consultation, statutory and voluntary information, selection procedures and obligations to employees facing redundancy.

You need to register with Acas (free) to access the E-Learning Guides.

Acas E-Learning Guides

Friday 26 November 2004

Redundancy: Failure to Consult

The Employment Appeal Tribunal has considered the position as to protective awards subsequent to the Court of Appeal's judgment in Susie Radin v GMB earlier this year. In Susie Radin, the Court of Appeal held that protective awards were punitive (rather than compensatory) in nature, and the starting point for a total failure to consult would normally be the maximum award of 90 days' pay.

In Smith v Cherry Lewis, the Respondent employer was insolvent. The receiver dismissed all 45 employees on grounds of redundancy without any consultation.

The tribunal chairman held it would not be just and equitable to give any protective award since, under the Susie Radin principles, an award would have no punitive effect on the employer since it was insolvent and the DTI fund would pay any awards.

The EAT reversed this. It held that in assessing the protective award, the tribunal should look at the employer's fault at the time of the failure to consult, not at the time of the Claim Form being lodged or tribunal case being heard. That the employer was insolvent, or that the DTI would pay any award, were irrelevant factors and should not have been taken into account.

Cox J. stated that the 'punitive' purpose to the protective award is not retributive in nature, but dissuasive (so as to discourage employers from ignoring the consultation rules). She substituted the maximum award of 90 days' pay for the Appellants.

Smith v Cherry Lewis

Tuesday 23 November 2004

Annual Increase in Tribunal Limits

The annual increase in limits on various tribunal awards has just been announced. The increases take effect on 1st February 2005.

The main increases are:

- limit on a week's pay: from £270 to £280

- maximum compensatory award: from £55,000 to £56,800

The full list of increases can be found in the statutory instrument, below.

The Employment Rights (Increase in Limits) Order 2004

[Thanks to Ed McFarlane of Qdos Consulting Limited for giving me the above information]

Thursday 18 November 2004

ET1 and ET3 forms available for download

Hard (and online) copies of the new ET1 and ET3 forms are now available. These forms will be mandatory from 1st April 2005.

They replace the 'interim' forms which have been available since October.

These new ET1 and ET3 forms have been available for electronic submission for a few weeks on the ETS website, but neither downloadable nor hard copies have been available.

Now they are! The ET1 is 9 pages long; the ET3 a meagre 5 pages.

[Thanks to Andrew Cohen of W Davies & Son for telling me about this]

Download forms from ETS website

Combined Equality and Human Rights Commission

The DTI has, this morning, announced changes to its plans for a single Combined Equality and Human Rights Commission ('CEHR'), which is intended to incorporate / replace bodies such as the EOC, CRE and DRC from 2008/09.

These changes are being made in response to widespread consultation which took place over the summer.

The main changes include that the CEHR will:
  • have freedom to set its own priorities over which equality cases it supports: there will be no statutory criteria;
  • be able to bring certain proceedings in its own name (without reference to the Secretary of State)
  • be able to conduct inquiries into named bodies or sectors;
  • publish a regular 'state of the nation' report.
DTI Press Release 18/11/04 @ 11.45am

Monday 15 November 2004

5th edition of Ogden Tables published

The Government's Actuarial Department has, last week, published the 5th edition of the Ogden tables.

The tables are widely used in personal injury cases. The EAT recently reminded us that they are generally inappropriate in employment tribunals (see bulletin 9/11/04), although I have never really understood the difference in principle between calculating long-term PI damages - where these tables are always used - and long-term employment damages.

However, the EAT acknowledges the use of the Ogden tables when calculating pension losses.

The discount rate was set by the Lord Chanceller in July 2001 as 2.5% (under the Damages Act 1996, which gives power to prescribe the discount rate in personal injury cases). This rate is also usually adopted in employment tribunals, although the Damages Act 1996 does not actually oblige tribunal's to adopt the Lord Chancellor's prescribed rate.

View the Ogden tables 5th edtn. (656k, Adobe Acrobat needed)

[Thanks to Horwath Clark Whitehill, forensic accounts, for notifying me of the new edition of the Ogden tables]

Visit Horwath Clark Whitehill website

ACAS E-Learning Guide - Absence at Work

Acas has published the third in its series of E-learning guides. The new guide, Managing Absence, follows on from their earlier E-learning guides on Information and Consulting, and Discipline and Grievance.

The guides are in a series of small 'units', such as 'What is absence and what is the cost?', 'How do you handle long-term absence' and 'How do you handle short-term absence'. Some of the units have a short quiz at the end.

These guides are a good first-reference point for employers, HR professionals and advisors, but are probably a little basic for specialist employment lawyers.

You need to register with the Acas website to access the guides. Registration is free.

Acas E-Learning Guides

Monday 8 November 2004

Long Term loss of Earnings

The Employment Appeal Tribunal has produced another decision, following on the footsteps of Dunnachie (no. 3) last year, warning tribunals against using the Ogden tables when calculating future losses.

Burton P. repeats his warning about using a 'broad-brush' Ogden table approach to future losses, particularly where the Claimant "is as young as 31 or 32" (para. 17.1).

He also made it clear that his warning against an Ogden table based approach applies to discrimination cases as well as unfair dismissal cases (Dunnachie being an unfair dismissal case).

This is another useful decision for Respondents who are resisting substantial long-term loss of earnings claims.

Birmingham City Council v Jaddoo

Intention to Vary Contract

The EAT has upheld an employment tribunal's decision that a conversation between the Claimant and his manager at the office Christmas dance did not amount to an enforceable promise to increase pay.

At the end of the company's annual dinner-dance, the manager promised the employee a substantial pay rise over the followign two years.

Two years later, although he did receive a substantial pay rise, it was not quite as large as the one he had been promised two years before. He resigned and claimed constructive dismissal.

The EAT held that the original promise was not contractually enforceable, as there was no intention to create legal relations. The tribunal had been right to take into account that the conversation took place during a social event when spouses attended, and was made during the "convival spirit of the evening".

Accordingly the Claimant failed in his constructive dismissal claim.

This case is worth reading - particularly the rather amusing opening paragraph.

Judge v Crown Leisure Ltd.

Insistence on 48-hour Maximum Week

The Employment Appeal Tribunal, in quite a short judgment, has decided an important point which has vexed practitioners since the Working Time Regulations were introduced in 1998.

Under the WTR, an employee has a right to work a maximum 48-hour week (averaged over a relatively lengthy period of time). He can opt-out of the right if he wishes, but cannot be subjected to a detriment if he refuses to opt out.

Employers and solicitors have been concerned that employees can insist on the same salary being paid for a 48-hour week, that they were previously paid for working 60- or 70- hours a week - since to reduce salary because the employee has exercised his right not to work more than 48-hours might be regarded as a detriment.

The EAT (Burton P. presiding) has taken the common sense approach that a reduction in salary, if an employee withdraws his opt-out from the 48 hour maximum week, is NOT a detriment - but just a "consequence" of the employee's actions. Whilst not a direct point for decision in the case, presumably any reduction in salary would have to be on a pro rata basis.

The core of the decision is in paragraphs 4 and 14.

This decision avoids the device adopted by some employers, which was to argue that the contract of employment was frustrated (because, when the employment started and the salary was negotiated, the parties did not contemplate a 48-hour maximum working week) and new employment has been offered on new terms.

Clamp v Aerial Systems

Friday 5 November 2004

Costs - Ability to Pay

This is the first decided case that I am aware of dealing with a party's ability to pay costs.

Since 1st October 2004, tribunals (and the EAT) have been entitled to take into account the paying party's ability to pay when deciding what sum to award in costs. This reversed the pre-existing position, as stated by the Court of Appeal in Kovac v Queen Mary & Westfield College.

In a decision published today, Burton P. had to decide the issues of costs in the EAT. He states (at para. 38) that the following two factors are relevant when taking into account a Claimant's ability to pay costs:

- that the Claimant has recovered a sum of money as part of the proceedings (in this case, a basic award of £2,520); and,

- that any legal fees the Claimant is ordered to pay is likely to be met by the trade union which was funding his employment tribunal claim.

Also of interest is that the EAT made it very clear that the costs of adjournments should always, if possible, be decided at the time of the decision to adjourn and shoud not be reserved (para. 63) - although a caveat should be added that it may not always be possible to know what additional costs are incurred (particularly if Counsel will be acting on a refresher basis at the resumed hearing, and that fee still has to be negotiated).

Walker v Heathrow Refuelling Services Co Ltd

Wednesday 3 November 2004

ACAS publishes new booklet on Stress at Work

Acas has, this morning, published a new booklet on Stress at Work.

As always, it is a model of good practice, very readable and has useful worked examples.

I suspect it will be used in civil PI claims as evidence of the standard of reasonable care, as well as in tribunals as evidence of what may constitute a reasonable adjustment in DDA cases.