Friday 27 October 2006

Ministers of Religion can claim Unfair Dismissal

The EAT has, today, handed down a decision holding that ministers of religion can claim unfair dismissal.

Ministers of religion have been regarded by the UK courts as appointed to a holy office and not as employees of a church. In December 2005, the House of Lords held that they might qualify as employees for the purpose of discrimination claims, but left the position regarding unfair dismissal open (see bulletin 15/12/05).

The EAT (HHJ Ansell presiding) has now held that the old cases stating that ministers are not employees for the purposes of unfair dismissal claims cannot stand: "if the relationship between church and minister has many of the characteristics of a contract of employment...these cannot be ignored simply because the duties are of a religious or pastoral nature" (para. 27).

New Testament Church of God v Reverend Sylvester Stewart

Thursday 19 October 2006

s98A Partial reversal of Polkey

The EAT has handed down another decision dealing with the controversial interpretation of s98A(2) of the Employment Rights Act 1996.

This provision, often referred to as the partial reversal of Polkey, states that "a failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be by itself making [the dismissal unfair] if he shows that he would have decided to dismiss the employee if he had followed the procedure." This defence can only be invoked if the employer has complied with the statutory dismissal procedure.

Earlier this year, two divisions of the EAT handed down two judgments dealing with what was meant by 'a procedure'.

In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that the word 'procedure' applies to any procedural failing, including (say) general breaches of the Acas Code of Practice. By contrast, in Mason v Ward End Primary School, HHJ McMullen adopted a narrower approach, holding that procedural defects which were capable of being ignored by virtue of s98A(2) applied only to formal procedures, such as those incorporated into a contract or handbook.

In a judgment handed down this morning, the EAT in Kelly-Madden v Manor Surgery has "diffidently" preferred the approach in Alexander v Bridgen. Elias P., giving the judgment, explains why he believes parliament intended the partial reversal of Polkey to be wider rather than narrower (paras. 34-49).

The position remains that there is a conflict of authorty on this very important issue. Clarification from the Court of Appeal, please...

Kelly-Madden v Manor Surgery

[Thanks to Rebecca Thomas, Counsel for the employee, who referred me to this decision]

Wednesday 18 October 2006

Claim Forms - Missing Information

The EAT has held that the failure by a Claimant to include her address on her Claim Form (as required by the rules) is not necessarily a fatal omission.

Under rules 1 and 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, all Claim Forms must contain certain required information or they will not be accepted. Amongst the required information is "each Claimant's address".

Ms Hamling left the address space blank, but completed box 12 with the details of her solicitors (including their address).

In a wonderful example of judicial sophistry, the EAT held that the phrase "The Secretary shall not accept the claim...if it is clear to him that...the claim does not include all the relevant required information" meant that the Claimant's address had to be relevant to the substance of her claim - and it was not (paras. 36-37). This is nonsense - the word 'relevant' refers back to the list of mandatory items to be included in a claim form (set out in rule 1), and not to a value judgement on the importance or significance of that information.

The EAT went on to hold, following Burton J. in Richardson v U Mole, that the Claimant's address was not a material omission (paras. 38-39). This is a much better reason for its decision!

Ultimately, this again shows the appellate courts' willingness to stretch the wording of the rules so as to prevent technical points depriving a Claimant (or Respondent) of justice.

Hamling v Coxlease School

Monday 16 October 2006

Statutory Disciplinary / Grievance Procedures

The EAT has handed down a decision (London Borough of Lambeth v Corlett) dealing with two points on the statutory dispute resolution procedures:

Extension of Time
The EAT held that a breach of contract claim dealing with failure to pay notice (following a summary dismissal) fell within the 'dismissal' provisions of the 2004 regs, so as to attract an extension of time for bringing a claim, rather than the 'grievance' section (which does not actually apply to breach of contract claims). The EAT's reasoning is possibly controversial (paras 11 and 12) but the result seems a fair one, to make up for the political decision by the DTI to exclude breach of contract claims from the extention of time rules.

Discrimination: grievances against fellow employees? On 31/8/06 I reported Bissett v Martins, which is authority for the proposition that the statutory grievance procedures do not apply when an employee brings a discrimination claim against a fellow employee, criticising the reasoning of the EAT.

HHJ Peter Clark has now officially cast doubt on the reasoning in Bissett and stated that, whilst he did not need to decide the point, it will fall for decision in the future as to whether Bissett was correctly decided (paras. 25-27).

London Borough of Lambeth v Corlett

Thursday 5 October 2006

Update: High Court Challenge to Age Regulations

As reported in my bulletin of 4/7/06, Heyday (an organisation created by and closely associated with Age Concern) has issued a judicial review application in the High Court challenging the legality of the Employment Equality (Age) Regulations 2006.

In essence, they argue that the Regulations permit forced retirement at age 65, which is inconsistent with the EU Equal Treatment Framework Directive.

At a recent permission application, the Divisional Court has 'rolled-up' the permission and substantive JR applications, to be expedited and heard together on December 6th 2006.

For Heyday's report, see here. And it's worth having a look at their interesting 'Six myths about Forced Retirement', on pages 8 and 9 of this document.

Enhanced Redundancy Payouts

The Court of Appeal has, today, handed down judgment in Keeley v Fosroc International Ltd..

For once, it's easy to summarise. Here goes...

Where a staff handbook contains details of an enhanced redundancy payment, there is a presumption that it has contractual status (rather than 'policy' status) and can be relied upon by an employee to bring a breach of contract claim.

If you're running any cases where this is an issue, paragraph 34 is the one to read.

Keeley v Fosroc International Ltd.

Wednesday 4 October 2006

Strike Outs

The EAT has handed down an interesting and practical decision dealing with strike outs.

The employer had been in breach of various tribunal orders. It then turned up to a two-day tribunal hearing, having not peviously served witness statements, clutching a 26-page statement which the Claimant was unable to deal with. The tribunal debarred the employer from defending the liability hearing, on the basis a fair trial was not possible, but allowed it to contest quantum.

The EAT upheld the decision to debar the employer from contesting liability. Importantly (and usefully for defaulting litigants), the EAT pointed out that an adjournment, with the consequent delay, is not usually going to be enough to mean a fair trial is not possible - see para. 17.

However, the two additional factors which meant a fair trial was not possible were:

* the employer had seen the Claimant's statements before drafting its own, giving it an unfair advantage (para. 14); and,

* the Claimant's barrister was acting pro bono, and s/he might not have been available at any adjourned hearing (also para. 14).

Premium Care Homes v Osborne

Tuesday 3 October 2006

Equal Pay

The ECJ has, today, handed down its decision in Cadman v Health & Safety Executive (see bulletin 18/10/04 for more information on the reference to the ECJ).

Departing from the Advocate-General's opinion, the ECJ held that it is not necessary for an employer to provide objective justification for pay disparities which arise as the result of 'length of service' criteria. The two key points from the judgment are:

  • "since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard"
  • "where a job classification system based on an evaluation of the work to be carried out is used in determining pay, there is no need to show that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better."

The case will now (October 2006) go back to the Court of Appeal to decide whether the points raised on behalf of Mrs. Cadman amount to "serious doubts" as to whether it was "appropriate" for the HSE to use of length of service in setting pay levels designed "to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better".

With thanks to for allowing me to reproduce their case summary

Cadman v Health & Safety Executive