Friday 30 November 2007

New Practice Direction: Agency Workers

The President of Employment Tribunals, HHJ Meeran, has issued a Practice Direction staying all agency worker cases. The stay will be lifted once the Court of Appeal gives judgment in James v London Borough of Greenwich.

[Thanks to Jonathan Cohen of Cloisters for telling me about this new Practice Direction]

Tribunal Chairmen to be Abolished

Okay - a slightly alarming (and inaccurate) headline. It's not the role that is being abolished, but the title which is being changed.

From tomorrow (yes, a Saturday!), employment tribunal chairmen become known as Employment Judges.

This change, which has received virtually no publicity, is contained in para. 36 of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007. The commencement order is here.

Wednesday 28 November 2007

Tribunals Service Consultation Paper

The Tribunals Service has, today, issued a consultation paper entitled Transforming Tribunals.

It's not particularly exciting, though. Core points are:-

  • cross-ticketing between wing members will be allowed (ie employment tribunal wing members can sit on other types of tribunal) but the existing statutory requirements for sitting on ETs and the EAT will be retained so as not to dilute the expertise of wing members
  • enforcement of tribunal awards and Acas settlements is made easier

Anybody who wants to respond to the consultation paper can do so by 22nd February 2008. Details on how to respond here.

Practice Direction - Age Discrimination

The President of the Employment Tribunals, HHJ Meeran, has handed down a Practice Direction staying all current (and future) tribunal claims which involve an allegation that regulation 30 of the Age Regulations (providing for lawful retirement at or beyond 65) is unlawful. The cases will all be stayed until the ECJ has dealt with the Heyday case.

You can see the full text of the Practice Direction here. Interestingly, the Practice Direction records that the recent Solent decision in the EAT is being appealed to the Court of Appeal.

The Practice Direction applies in England and Wales. I am informed that Scotland will not be issuing a similar Practice Direction, but cases will be referred to chairmen for individual decisions.

[Thanks to Marivi Prescott of McRoberts for telling me about this Practice Direction]

Thursday 22 November 2007

Statutory Dismissal Procedures

The EAT has held, in Venniri v Autodex, that tribunals are obliged to consider whether a dismissal is automatically unfair under the statutory dismissal procedures. It is not necessary for the employee to raise compliance as an issue (see para. 34).

This contrasts with the position for grievance procedures, where tribunals are not obliged to consider whether the employee has lodged a grievance and waited 28 days before submitting a claim. The burden is on the employer to raise this as a defence.

Note that the judgment leaves open the question of whether a tribunal is likewise obliged to consider the s98A(2) defence (the partial reversal of Polkey), or whether it has to be expressly raised by the employer

Wednesday 21 November 2007

TUPE: Objecting to Transfer

An interesting decision from the Chancery Division, in New ISG Ltd v Vernon.

Five employees objected to a TUPE transfer two days after it had taken place, once they discovered the (previously withheld) identity of the new employer and realised they did not want to work for it.

The new employer sought interim injunctions to enforce restrictive covenant clauses in their contracts, arguing that the right to object must be exercised before the transfer and, since it wasn't, the benefit of the restrictive covenants had transferred over to it.

The court disagreed, holding that a valid objection can take place after the date of transfer, where the employee does not initially know the identity of the transferee and objects promptly as soon as s/he finds out. The objection then has retrospective effect, and prevents the operation of TUPE. Accordingly the benefit of the restrictive covenants had not transferred to the new employer, and the application for injunctive relief was refused.

[Thanks to Michael Herman of Times Online for telling me about this decision]

Discrimination against Parliamentary Candidates

The House of Lords has, today, ended the long-raging battle in Labour Party v Ahsan.

The Labour party did not select Mr Ahsan as its candidate for a parliamentary seat. He claimed this failure to select him was on grounds of race. Considering the jurisdictional position under the RRA 1976, the House of Lords held:-

  • political party, in selecting candidates, is not conferring an 'authorisation or qualification' enabling someone to be engaged in a profession - therefore s12 of the RRA 1976 does not apply; but,
  • the Labour party is an 'association' within s25 of the RRA 1976, and so a potential claim would exist against it in the county court.

Tuesday 20 November 2007

TUPE: Variation of Contract Terms

The Court of Appeal has, today, upheld the EAT's decision in Regent Security Services v Power.

The case is a departure from previous TUPE-law, holding that an employee is entitled to elect to rely on changes to terms and conditions of employment following a TUPE transfer. Previous authorities suggested that such changes were always void.

There remain areas of uncertainty following this decision. In particular, if an employee elects to rely on some of the beneficial changes, is s/he obliged to give credit for the detrimental changes? Is there a time period after which the employee is deemed to lose the right of election? These matters will no doubt be resolved in future cases.

Monday 5 November 2007

8 seconds past midnight

We all thought the 88 second case was amusing, but here's an even closer shave! A second-year law student, charging �150ph to represent the Claimant, hit the 'transmit' button on the ETS website at 1 second before midnight on the last day for presentation of an ET1 claim. It arrived on the ETS server at 8 seconds past midnight.

The EAT (HHJ McMullen presiding) confirmed the claim was out of time.

The EAT also drew attention to the provisions of the Compensation Act 2006, which prohibits non-lawyers from representing litigants (other than for free, or in limited cases such as charities) unless they are formally registered with, and regulated by, the new Regulated Claims Management Service. The EAT sent a clear warning shot to unqualified and unregistered representatives by referring this law student to the Regulated Claims Management Service. Breach of the registration requirements is punishable by two years in prison.

[Thanks to Ed McFarlane of Mentor Services for telling me about this case]

Miller v Community Links Trust