Tuesday 30 August 2005

Age Discrimination Seminar

1 Temple Gardens are presenting seminars in London, Birmingham and Manchester on age discrimination. New laws are expected to have a substantial impact on practice for all employment lawyers and HR professionals. The seminars are designed to help delegates advise clients, deal with the ramifications of the legislation and avoid pitfalls leading to tribunal claims.

5th October 2005 - Manchester (location details)
18th October 2005 - Birmingham (location details)
31st October 2005 - London (location details)


Chair: Alison Hewitt

Age Discrimination at the start of employment
Speakers: Paul McGrath / Keith Morton
- advertising
- selection / recruitment

Age discrimination during employment
Speakers: Shaman Kapoor / David Barr
- terms and conditions
- training
- promotion
- harassment

Age discrimination at the end of employment
Speaker: Daniel Barnett
- dimissal to make way for younger workers
- mandatory retirement ages
- the right to request working beyond retirement

Solicitors who are advising clients on how to cope with the forthcoming age discrimination laws, and HR professionals who need to know how the new laws will impact on the workplace.

6.00pm Registration
6.30pm Seminar commences
8.30pm Drinks and canapes

CPD: 2 hours

First delegate: £62.50 + VAT
Subsequent delegates: £55 + VAT

Just click here for the booking form.

Please telephone Gaye Spencer-King on 020 7842 8646 with any enquiries.

Thursday 18 August 2005

Updated ACAS Guides

Acas has just published updated versions of three of its advisory booklets:
It has also published the summer/autumn edition of its national newsletter, Acas News.

Monday 15 August 2005

Employee's Rights on Insolvency - Court of Appeal Resolves Conflicting Authorities

In the last three weeks, the High Court has handed down two inconsistent decision on whether, when a company is in administration, liability for protective awards and payments in lieu of notice take priority (or not) over the expenses of the administration. Peter Smith J. held (27/7/05) that protective awards and PILONs take priority over the expenses of the administration. This has caused enormous panic within the insolvency community.

Two weeks later, Etherton J. (9/8/05) held that they did not take priority - reaching exactly the opposite conclusion to Etherton J..

The Court of Appeal has heard urgent appeals from both these cases and has handed down judgment.

It describes the relevant legislation as "not merely opaque; it is a most unsatisfactory piece of drafting. It is scarcely surprising that it has led to the sharp difference of opinion between two judges..." (para. 29)

Neuberger LJ, after a careful analysis of the statutory provisions, upholds Etherton J.'s decision, holding that protective awards and PILONs do not take priority over the expenses of the administration.

Re Ferrotech Ltd.

Wednesday 10 August 2005

Discrimination against BNP Members

The EAT has handed down a decision holding that BNP activists are entitled to rely on the race discrimination legislation.

Mr Redfearn was a postal delivery driver for the West Yorkshire Transport Service. He was found to have been a "perfectly satisfactory employee". However he was dismissed following union representations when the union and his employer discovered that he stood for, and was elected as, a local authority councillor representing the BNP.

The employment tribunal found he had not been dismissed "on racial grounds", because the reason for dismissal was a fear of violence in the workforce flowing from his political beliefs, and therefore that his claim for direct discrimination under the Race Relations Act 1976 failed.

The EAT (Burton P. presiding) quashed that decision. Relying on the well-established Showboat Entertainment Centre v Owens line of authorities, it held that the phrase 'on racial grounds' must be interpreted widely. It included a dismissal where the decision to dismiss was significantly influenced by questions of race - whether it be the complainant's or somebody else's - and noted that the employer's motive, no matter how benign, was not a defence to the employer.

This decision is undoubtedly correct - the EAT was bound by long-standing authority to rule as it did. However, much with as upper qualifying age unfair dismissal cases allowed age discrimination in through the back door of sex discrimination, this decision allowed discrimination on grounds of political belief in through the back door of race discrimination.

Redfearn v Serco Ltd t/a West Yorkshire Transport Service

[Thanks to John Bowers QC of Littleton Chambers, who represented Serco, for telling me this decision was due]

Friday 5 August 2005

Powers of Review

The EAT has handed down an important judgment dealing with, amongst other things, the ET's powers of review. Importantly, passages in the decision (dealt with below under 'Postscript') encourage tribunals to take a practical rather than rigidly technical approach to the new procedural rules.

The Claimant was ordered to pay £500 as a deposit as a condition of continuing with her unfair dismissal claim. The formal Order did not arrive at the Claimant's solicitors' offices, because the Claimant (when completing her Claim Form) had written their postcode down incorrectly.

The claim was therefore struck out when the deposit was not paid. Upon later enquiry, the Claimant's solicitor discovered what had gone wrong and a cheque for £500 was immediately sent. The tribunal then reviewed its earlier decision, adjusted the date for payment of the £500 and allowed the claim to proceed.

Did the tribunal have power to review its earlier decision?

EAT Decision
The EAT (HHJ Peter Clark sitting alone) held:

contrary to earlier thinking, a strike out under rule 20(4) of the 2004 Rules is a judgment within the meaning of rule 28 and is capable of being reviewed.

an application for a review does not need to formally set out the statutory grounds (eg that the decision is made as the result of an administrative error). It is sufficient if the grounds may be discerned from the document containing the application.

the expression 'administrative error' includes administrative errors by the parties (as well as the tribunal). This is a change from the 2001 rules, which only covered errors by the tribunal;

the 'interests of justice' ground for review should be construed more widely than it was before the 2001 rules introduced the overriding objective;

an order requiring the payment of a deposit is not capable of review (unlike the subsequent order striking out a claim for failing to pay a deposit). However, it may be the subject of revocation or variation under rule 10(2), including the granting of an extension of time for payment.

The following observations of the EAT may be of interest to tribunal chairmen who wish to adopt a practical approach to some of the technicailites under the new Rules:

"42. The 2004 Rules introduce what, on one view, may be thought to be a series of carefully crafted hurdles designed to restrict access to Employment Tribunals and thus reduce the costs of administering the Employment Tribunal system to both Claimants and Respondents...

"84. ...Standing back, one can only speculate at what Lord Donovan and the members of his Commission, reporting in 1965, would have made of the arcane procedural points...discussed in this judgment... I nevertheless prefer to believe that the gradual modification and sophistication in Employment Tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding objective and the increased power of employment tribunal Chairmen to make orders on their own initiative should be seen as valuable signposts to Chairmen to exercise their independent judgment to ensure fairness between the parties. It is what, to return to an earlier theme, truly distinguishes between judicial and administrative decisions."

Sodexho v Gibbons

[Thanks to Alex Lock of Beachcroft Wasbroughs, who represented Sodexho, for telling me about this judgment]