Thursday 27 January 2005

Delay by Employment Tribunals

The Court of Appeal has, this morning, handed down its judgment in Bangs v Connex South Eastern on the question of whether lengthy delay by a tribunal when promulgating its decision is, of itself, a ground of appeal.

This case was heard as one of four similar cases by the EAT under the conjoined title Kwamin v Abbey National (see bulletin 9th March 2004). There was a gap of 14 months between ending the evidence and issuing the written decision.

The Court of Appeal has set out a more stringent approach than the EAT did on the question of delay in issuing the decision. It made it clear that no appeal can lie on the basis of facts found by the tribunal so - differing from the EAT - even if delay meant the tribunal had got the facts wrong (short of a plain case of perversity), this was NOT a valid ground of appeal (see para 42). The Court of Appeal did hypothosise, though, that a claim might lie against the State in such circumstances (para. 51).

The Court of Appeal set out clear guidelines dealing with the consequence of delay, at para. 43 of its decision. The essence is that, in the absence of perversity, delay will not normally be a ground of appeal. It emphasised that most tribunals do issue decisions within the target period of 3.5 months after conclusion of the hearing, and that this 'delay' issue should rarely arise in practice.

Yaya Bangs v Connex South Eastern Ltd.

Making more of Alternative Dispute Resolution

Acas has, today, issued the first in a new series of policy discussion papers.

This paper, entitled 'Making more of Alternative Dispute Resolution', is a thoughtful analysis over 16 pages of trends, advantages and possible future of conciliation and mediation as ways of resolving workplace disputes.

Acas Policy Discussion paper - Making more of Alternative Dispute Resolution

Tuesday 25 January 2005

Redundancy - Collective Consultation

It is well known that the collective consultation provisions in s188 of TULR(C)A 1988 are engaged when an employer is 'proposing to dismiss' as redundant more than 20 employees within 90 days. The obligations can be quite onerous, with breach leading to a protective award of up to 90 days' pay for each affected employee.

In Hardy v Tourism South East, the EAT (HHJ Richardson presiding) confirmed that the collective consultation obligations are engaged even when the employer intends to offer alternative employment to the majority of employees, thereby bringing the number actually dismissed below twenty.

The rationale is that the employer is still 'proposing to dismiss' more than 20 employees, even if alternative employment is offered to some or all of them.

This case should serve as a warning to lawyers advising on general business restructures, where fundamental changes in job duties / working patterns etc. can be regarded as redundancy dismissals (within the extended meaning for the collective consultation obligations) and offers to re-engage on different terms and conditions.

Hardy v Tourism South East

Abuse of Process: Issuing contract claims in the High Court after employment tribunal proceedings struck out

The Court of Appeal has handed down its judgment in London Borough of Enfield v Sivanandan - a highly complex decision.

Ignoring the facts completely, the principles that can be extracted are:

(1) if a breach of contract claim is struck out (rather than withdrawn) by an employment tribunal, it is an abuse of process to re-issue it in the High Court. The rule in Sajid v Chowdhury 2001 (reported at [2002] IRLR 113, CA) - i.e. that a Claimant can withdraw a contract claim and re-issue in the High Court to avoid the £25,000 cap on damages - does not apply if the employment tribunal claim is struck out (judgment para. 120)

(2) if a Claimant wishes to withdraw such a claim in the employment tribunal, it is incumbent on the tribunal to record the position on the face of the decision (para. 122) - and thus incumbent on the Claimant to ASK the tribunal to record the reason for withdrawal on the face of the decision.

(3) even where a breach of contract claim IS properly withdrawn in the employment tribunal, it is nevertheless an abuse of process to re-issue it in the High Court if existing claims in the employment tribunal cover the same facts and have unlimited compensation. In Sajid (above), the Applicant could not recover unlimited damages OTHER than by re-issuing his claim in the High Court. If a Claimant in employment tribunal proceedings was also claiming discrimination in respect of the dismissal, which carried an uncapped award, it is open to a tribunal to award compensation reflecting a Claimant's real losses. Since there is no need for the Claimant to withdraw and re-issue a breach of contract claim, to do so is an abuse of process judgment, para. 133)

A word of warning: do not read this decision unless you are willing to risk a major headache.

Monday 24 January 2005

Incapacity Benefit

The EAT has handed down an important decision on compensation for unfair dismissal, in Morgans v Alpha Plus Security Ltd.

It has long been the practice in tribunals to reduce the compensatory award by 50% of any incapacity benefit received by a Claimant. Thus if losses of earnings are £10,000, and the Claimant has received £2,000 in incapacity benefit, his award will be reduced by 50% of £2,000 - i.e. to £9,000.

This rule, known as the rule in Rubenstein v McGloughlin, has now been overturned.

The Employment Appeal Tribunal (Burton P. presiding) has held that tribunals must deduct the ENTIRE amount of incapacity benefit from the compensatory award. To fail to do so would result in a wrongful windfall to the Claimant (para. 22.4). Receiving incapacity benefit, says the EAT, is a form of mitigation of loss (para. 18), and the monies must be deducted in full.

The EAT left open the question of whether a Claimant who fails to apply for incapacity benefit can be said to have failed to mitigate his loss (also para. 18) - a question which will give Respondent representatives some new approaches for cross-examination.

[Thanks to Andrew Knorpel of ASB Law, who successfully represented the employer, for telling me this decision was out]

Morgans v Alpha Plus Security Ltd.

Friday 14 January 2005

Shifting Burden of Proof

In Webster v Brunel University, the EAT has decided what it describes as a "novel point" on the shifting of the burden of proof in discrimination cases.

The Claimant was on the telephone to a co-employee. She overheard someone else in the room say 'Paki'. There was no evidence on whether that person was an employee or a visitor.

The tribunal found that she had failed to establish that the individual was an employee, so the burden of proof did not shift to the Respondent to disprove discrimination.

The EAT (Burton P. presiding) reversed this decision and remitted the case. They held (para. 34) that once the employee established a prima facie case that the speaker COULD have been an employee, the burden shifts and it is for the Respondent to DISPROVE that the speaker was an employee.

Helpfully, the decision reviews all the recent cases on the shifting burden of proof - and so should become a key case when dealing with this tricky issue.

Webster v Brunel University

Wednesday 12 January 2005

The Information and Consultation of Employees Regulations 2004...

... are now available on the HMSO website. They were passed last month, and have just been placed on the internet.

The Regulations come into force on 6th April 2005, applying intitially to 'undertakings' with at least 150 employees. From 6th April 2007, they will apply to undertakings with at least 100 employees, and to undertakings with at least 50 employees from 6th April 2008.

Subject to a request from a sufficient number of employees, it places an obligation on the employer to provide information (and to consult with) with the workforce over:

(a) the recent and probable development of the undertaking's activities and economic situation;

(b) the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged, in particular, where there is a threat to employment within the undertaking; and

(c) decisions likely to lead to substantial changes in work organisation or in contractual relations, including collective redundancies or TUPE transfers.

If an employer fails to comply (note: there is an express duty to cooperate), an application is made to the CAC, which will make such orders as it thinks fit. If the employer fails to comply with those orders, the Employment Appeal Tribunal can impose a fine of up to £75,000.

The Information and Consultation of Employees Regulations 2004

[thanks to Raymond Jeffers, chairman of the Employment Lawyers' Association, whose nocturnal surfing habits led to discovery of these Regulations!]

Information and Consultation 2

Today seems to be a big day for I & C fans.

The DTI has, this morning, published its Guidance Notes on the new I & C Regulations. At 66 pages, it's quite lengthy, but it looks a much easier read than the Regulations themselves.

DTI Guidance Notes

Tuesday 4 January 2005

Managing Dismissals: Practical Guidance on the Art of Dismissing Fairly - NEW EDITION

Daniel Barnett
December 2004

The new edition of Managing Dismissals Fairly is updated to be fully compliant with the statutory disciplinary and dismissal procedures introduced in October 2004.

The text provides strategic advice on how to dismiss someone, as well as explaining the legal implications. Presented in an easy-to-read format, it is highly practical and addresses unfair dismissal from the point of view of the employer contemplating dismissal of a particular employee. Chapters are organised under headings such as 'How to dismiss for sickness absence', 'How to dismiss for computer misuse', 'What you must pay' and 'What to do when things go wrong'.

Published by Tolley IRS, £38

The easiest ways to purchase the book is via Hammicks Legal Bookshop or Amazon. See below for details of both.

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Reviews of Previous Edition

ELA Briefing (April 2003, p48)
"well presented and easy to use...of particular help to a human resources department or to a lawyer advising a small employer without the luxury of a HR department

"an extremely useful book for the minutiae of dismissal procedure, and one which I can recommend highly."

JSB Employment LawLetter (April 2003)
"combines authoritative legal writing with practical, workplace relevant, easy to read text...

"Personnel managers will find this slim paperback (under 250 pages) more useful than many books double the size."

Reviews of 'Avoiding Unfair Dismissals' (as this book was called when published by another publisher)

"In a practical rather than academic style, the book shows employers the practical steps they need to take before dismissing staff, how to gather evidence against employees, and how to handle the dismissal itself successfully" - The Independent, 4th April 1999

"The style is readable throughout and the author employs an innovative structure, with each chapter broken down into different factual situations. Readers who have to cope with these specific circumstances will find the book a valuable tool, as it provides clear, practical guidance." - People Management Magazine, 15th July 1999

"The book is practically written with the first ten chapters devoted to how to dismiss someone for a variety of reasons ranging for incapability and redundancy to breaches of discipline and criminal acts. The remaining chapters highlight the amounts you must pay upon dismissal, and the amount you may pay if you get it wrong, as well as showing a few of the more common pitfalls." The Legal Executive, August 1999

"A first class book...written in straightforward English." - Hardware & Garden Review, October 2001