Thursday 26 March 2009

Bye-bye, wing members…

Bye-bye, wing members... We all speculate about whether the Ministry of Justice is trying to reduce the involvement of wing members in tribunals.

Well, we now have proof. Barrister Neil Ashley of East Anglian Chambers has, this morning, photographed this sign displayed on a door opposite the main reception at Newcastle tribunal, for all to see.

Bet it won't be there in half an hour...

Wednesday 25 March 2009

TUPE hits solicitors too…

Scary stuff here for solicitors - it's been splashed all over the Law Society Gazette and The Lawyer...

It's the first (known) example of a firm of solicitors winning a big new client, and suddenly finding themselves stuck with some of their predecessor's fee-earners under TUPE. The new firm potentially faces substantial awards for unfair dismissal and failure to consult - which rather takes the fun out of the coup.

In this case, Barnetts solicitors in Southport won a contract from the Britannia Building Society to do their conveyancing work. Lees Lloyd Whitley lost the work as a result of the tender process. However, a tribunal found that some of Lees Lloyd Whitley's employees (the ones assigned to the Britannia contract) had transferred over to Barnetts, who found themselves stuck with unfair dismissal and failure to consult awards.

I can't do much better than refer to the excellent article by Charles Newman in The Lawyer - except for the fact that we've also got the tribunal's written reasons available.

[Thanks to Gordon Turner of Partners employment lawyers, who acted for the employees in this case, for sending me the tribunal's written reasons]

Thursday 19 March 2009

Right to Legal Representation at Internal Disciplinary

The High Court has held that in certain circumstances, an employee has the right to be represented by a lawyer - and not just a workplace colleague or union official - at internal disciplinary hearings.

In R (on the application of G) v The Governors of X School, the Claimant was employed as a music assistant at X School. The School commenced disciplinary procedures against him for breach of trust as a result of him having kissed a 15year old boy. The Claimant was dismissed.

The School had a duty to report the Claimant to the Secretary of Sae for Children Schools and Families to determine whether he should be entered on the register or those who are unsuitable to work with children.

The Claimant sought to be represented by his legal representative at the internal disciplinary hearings. The School refused.

The Claimant sought to judicially review the School, alleging that the refusal to permit legal representation at the internal hearings constituted a breach of Article 6 of the ECHR (right to a fair trial).

The Administrative Court held that:
  • the school was required to have regard to Article 6 of the ECHR
  • the internal disciplinary and appeal procedures must be viewed as part of the same procedure as the Secretary of State’s procedures relating to entry onto the register of those unsuitable to work with children.
  • as the consequences of a dismissal for the reasons given by the School the Claimant should have been entitled to be represented by his legal representatives, and not just a trade union representative or fellow worker
  • the potential to claim unfair dismissal in the employment tribunal would not be an adequate alternative remedy.

Paragraphs 67-69 are the important ones to read. The School has been granted permission to appeal to the Court of Appeal (as has the Claimant, who lost a separate argument that the internal disciplinary proceedings amounted to a 'criminal' charge).

[Thanks to John Bowers QC, who represented the school, for telling me about this case, and to Katherine Apps for providing the above summary]

Tuesday 17 March 2009

Court of Appeal reminds tribunals to avoid the substitution mindset

How often have you seen a tribunal remind itself that it must not substitute its own view for that of the employer, only to go on to do just that?

In London Ambulance Service NHS Trust v Small, the Court of Appeal reaffirms that in unfair dismissal claims, the function of a tribunal is to review the fairness of the employer’s decision, not to substitute its own view. Although the tribunal in this case repeatedly reminded itself that it must not re-try the factual issues or substitute its own view, the Court of Appeal says that is just what it did. The tribunal should have confined its consideration of the facts to the facts relating to the Trust’s handling of the dismissal, and not made its own findings as to matters which were in dispute in the internal proceedings.

Further, the Court of Appeal rejects the EAT’s conclusion that this was permissible because the tribunal was bound to make these findings of fact given that the employer argued in the alternative that the claimant was guilty of contributory fault. If the dismissal is properly found to be unfair applying the well known principles in BHS v Burchell and Post Office v Foley, then the tribunal is indeed obliged to make its own findings as to the claimant’s conduct, but such findings should not be allowed to seep into the tribunal’s reasoning as to the fairness of the dismissal in the first place. The Court of Appeal suggests that as a matter of good practice it might be advisable for tribunals to keep such findings of fact separate to avoid this.

The Court of Appeal also rejects the conclusion that the dismissal was procedurally unfair where the Claimant was not interviewed about the allegations against him until 10 weeks after the event.

[Thanks to Anya Palmer of Old Square Chambers, junior Counsel for the successful employer, for providing this case summary]

Monday 16 March 2009

Sky News Interview - RBS collapse

Phonecall from Sky News to discuss the US class action brought by North Yorkshire and Merseyside Council pension funds against Sir Fred Goodwin and the Royal Bank of Scotland. 

View below:

New P45s

HMRC has introduced new P45 forms, which must be used from 6th April (the old ones will become invalid from that date). They are now A4 size (rather than A5), and contain extra fields for the employee's date of birth and gender.

More details from the HMRC press release, or view the new form (unhelpfully - and pointlessly - stamped 'For Information Only' all over it).

Friday 13 March 2009

EAT Time Limits - Cross Appeals

The EAT has handed down judgment in Slingsby v Griffith Smith Solicitors. This case is authority for the proposition that whilst the strict Abdelghafar principles do not apply to the grant of an extension of time for the delivery of an Answer, the strict approach to time limits does apply to any Cross-Appeal.

In this case, the Respondent’s Answer (which included a cross-appeal) was lodged at the EAT one day late. The Registrar granted an extension of time to cover the late filing of the Answer and Cross-Appeal on the basis that the EAT takes a more liberal view in relation to time limits imposed upon respondents who wish to cross appeal than in relation to the institution of initial appeals.

The Appellant appealed to HHJ Burke QC, who held that the strict approach applied to cross-appeals. Consequently, the outcome of the appeal was that the Answer, lodged one day out of time, was permitted to stand; but the Cross-Appeal was not.

[Thanks to Daniel Matovu of 2 Temple Gardens, who represented the successful appellant, for providing this case summary]

Thursday 12 March 2009

Disability Discrimination: EAT follows Malcolm again

In Stockton on Tees Borough Council v Aylott, the EAT has handed down a second judgment confirming that employment tribunals should follow the approach to a comparator set out in Malcolm v London Borough of Lewisham, and not that in Clark v Novacold (see trail of previous bulletins on this point).

In this case, Slade J. followed the approach in Malcolm but made it clear this did not herald the end of protection for disabled employees. She said, at para. 113 of her judgment,:-

"113. In our judgment this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non disabled people without the possibility of redress. Although they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of Section 3A(1), they may be able to establish discrimination by the employer's failure to make reasonable adjustments under Section 3A(2) and 4A. An employee who is not able to drive because of his disability who is disciplined for frequently arriving late for the night shift would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However, depending on the circumstances, he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport.

Wednesday 11 March 2009

Statutory Dismissal Procedure: When is 'action taken'?

Here's a very interesting case on the dearly beloved statutory dismissal procedures (not much longer...)

It is authority for the proposition that employers who announce an intention to dismiss before the step 1 letter and step 2 meeting can recover the situation by sending the letter and holding the meeting afterwards, provided they have not actually dismissed the employee.

In Smith Knight Fay v McCoy, the EAT held that the phrase 'action taken' in the statutory dismissal procedure referred to the act of dismissal, not the decision to dismiss. Thus an employee who was told he was being made redundant, and then given a step 1 letter and invited to a meeting, was not automatically unfairly dismissed.

See paras. 31-34 of the judgment (and feel free to comment on the case).

[Thanks to David Lewis of Hardwicke Buildings, who represented the employer, for telling me about this case]

Statutory Dismissal Procedure: When is 'action taken'?

Here's a very interesting case on the dearly beloved statutory dismissal procedures (not much longer...)

It is authority for the proposition that employers who announce an intention to dismiss before the step 1 letter and step 2 meeting can recover the situation by sending the letter and holding the meeting afterwards, provided they have not actually dismissed the employee.

In Smith Knight Fay v McCoy, the EAT held that the phrase 'action taken' in the statutory dismissal procedure referred to the act of dismissal, not the decision to dismiss. Thus an employee who was told he was being made redundant, and then given a step 1 letter and invited to a meeting, was not automatically unfairly dismissed.See paras. 31-34 of the judgment (and feel free to comment, below).

Tuesday 10 March 2009

Annual Leave of Offshore Workers

By a majority, the EAT has held in Craig & ors v Transocean & ors that annual leave under the Working Time Regulations 1998 can be accommodated within an established work/rest pattern, and does not have to be taken from time that is otherwise working time.

The employers had told their employees that annual leave was not to be taken during periods rostered for work, but only in the off shift time (known in the industry as field breaks). The EAT held that such notices were effective. It added that the employers could have given advance notice to the employees of the periods that they could or could not take annual leave rather than do so in response to Regulation 15 notices by the employees seeking leave.

[Thanks to Sandy Kemp of Simpson & Marwick, who acted for the successful employer, for producing this summary]

Sharon Shoesmith - should she get the money?

I've just been chatting to Nick Ferrari on LBC about Sharon Shoesmith's tribunal claim - she presented a claim on Friday at Watford employment tribunal. The headlines say she is claiming £175,000-odd, presumably made up of c. £65k for unfair dismissal and c. £110k for one year's notice.

This case raises really interesting issues. It is quite legitimate to dismiss somebody because of the serious consequences of their poor performance - even when they haven't had any previous warnings. The best-known example is Taylor v Alidair [1978] IRLR 82, where an airline pilot was unlucky enough to have the airline's chief executive in the back of his plane when he performed a hard landing. The Court of Appeal held that the potential consequences of a pilot getting something wrong were so serious that it was acceptable for an employer to dismiss without a warning, to avoid the risk of a second error of judgment.

Equally, it can be legitimate to dismiss if an employer is subject to intense third party pressure. This is normally seen where a customer insists that an individual be removed from a particular contract and there is no alternative job available for him. But there is no reason why media pressure should not suffice (and here, The Sun delivered a petition bearing 1.2 million signatures to Downing Street, David Cameron called for her dismissal and Ed Balls, the Childrens' Secretary, demanded that she be dismissed).

Other issues arise in her claim for notice pay. Apparently, Sharon Shoesmith was entitled to a year's notice, being about £110,000. The law provides than unless an employee is so incompetent that they are in repudiatory breach of contract, they are entitled to their notice pay - although here it would be a county court and not a tribunal claim due to the value. Another issue arises if an employee's contract contains a clause entitling the employer to dismiss without notice if he/she was guilty of actions bringing the employer into disrepute.

Thursday 5 March 2009

Heyday Appeal - ECJ Decision

The UK retirement age of 65 might be legal - but it might not be. The ECJ has, this morning, referred the issue back to the High Court to consider whether a mandatory retirement age of 65 can be objectively justified, whilst stating that in principle it is capable of justification.

For more information, click here.

Tuesday 3 March 2009

Abolition of Statutory Dismissal and Grievance Procedures

We all know that the statutory dismissal and grievance procedures are being abolished on 6th April, right?

Wrong. The transitional provisions are a bit more complicated than than. I've put together a summary here. It's a lot more readable than the actual statutory instrument, which is horrendous.

Monday 2 March 2009

Equal Pay: Genuine Material Factor

[Thanks to Catherine Rayner, junior Counsel for Unite, for providing this case summary]

In Coventry City Council -v- Nicholls & ors, the EAT have held that the Council's GMF defences were rightly rejected by the employment tribunal.

The EAT dismiss Coventry’s argument that their liability for pay inequality arising from historical differences in male and female pay ended when the trade unions rejected a proposed new pay structure as part of single status. The EAT noted that the hostile stance of the trade union to proposed changes in a pay structure could not be considered either as the cause of pay inequality, or as a supervening cause which could bring the liability of an employer for pay inequality to an end.

The EAT also upholds findings of the ET that a bonus scheme paid to a largely male group of refuse workers was discriminatory, and not justified, and remitted the question of the legality of a pay protection scheme which protected only workers who had actually lost pay, as opposed to those largely female groups who would have lost pay but for the pay inequality, to the ET for further consideration.