Wednesday 30 September 2009

Employment Tribunal Statistics 2008/09

The Employment Tribunal and EAT statistics 2008/09 have been published today.

Key findings:-
  • 20% decrease in the number of claims accepted - but if multiple airline (cabin crew) claims are excluded, there is in fact a 4% decrease
  • unfair dismissal, redundancy pay and breach of contract claims rose in number. Working time claims, equal pay and sex discrimination fell.
  • maximum award (in a race case) - £1,353,432
  • 21 age discrimination claims disposed of (average award £8k)
  • costs awarded in 367 (0.2%) cases (average costs award £2,470)
  • for the first time, the EAT rejected over 50% of all appeals at the sift stage

Friday 25 September 2009

Default Retirement Age - More Detail

[Thanks to Schona Jolley for writing this case summary, and Declan O'Dempsey (who appeared in the Heyday case) for sending me the decision ]

Judgment was handed down today in the Heyday litigation. Age UK challenged the Default Retirement Age (DRA) of 65 in the Age Regulations arguing that Regulation 30 should be struck down since there was no clear and consistent social policy aim pursued by government. They argued the choice of a DRA at 65 was not proportionate. The EHRC submitted that 70 was the earliest appropriate age for a DRA.

The Government succeeded in respect of Regulation 30, but only just. Although the Court held that Regulation 30 (and a DRA in principle) was both legitimate and proportionate, there were powerful reasons why an age over 65 should have been adopted. Two days before trial the Defendant announced it would review Regulation 30 in early 2010. The Court considered that if there had been no indication of this imminent review it would have granted the application. Likewise, if Regulation 30 had been adopted for the first time in 2009, the application would have been granted.

The Claimants lost on their argument that the Regulation 3 justification test should be struck down for want of clarity since the Court considered the Government had spelled out sufficiently its social policy aims about the integrity of the labour market.

To listen to Daniel Barnett discussing this case on LBC 97.3, click here(allow 30 seconds for the download).

Breaking News: Heyday Decision Out...

The High Court has just handed down its decision in the Heyday appeal, ruling that it is legal for UK law to allow employers to force employees to retire at age 65.

BBC news story here... (and see the history of this litigation here).

Thursday 24 September 2009

Employment Status - Ultra Vires contracts

[Thanks to Chris Milsom of St Philips Chambers for preparing this case summary]

The EAT (Slade J) has handed down its decision in Shrewsbury NHS Trust v Lairikyengban. In upholding the appeal, the EAT ruled that an employment contract renewed in contravention of the NHS Regulations was ultra vires. However, an employee who continues to work under an ultra vires contract of employment is nevertheless entitled to be treated as an employee under the ERA (Eastbourne Borough Council v Foster [2002] ICR 234 applied).

The EAT stated that a failure to renew a fixed-term contract is not in itself sufficient grounds for a redundancy claim where there was no reduction in the overall level of work required to be completed by an employer and there remained a vacancy for a permanent employee. In those circumstances, the ET's decision to uphold a claim for contractual redundancy payment was perverse.

Further, the ET acted erroneously where it determined remedy on the evidence despite a previous agreement between the judge and the parties to conduct a split hearing.

Wednesday 23 September 2009

Gordon Brown to fast-track agency workers' rights

[Thanks to for allowing me to use their summary]

Speaking at the TUC annual conference in Liverpool, the Prime Minister has said: "I believe that the fight for fairness must include agency workers and so I pledge... that when parliament returns our new legislative programme will include equal treatment for agency workers".

It presumably follows that Gordon Brown intends to ensure that Britain does not delay implementation in the UK of the EC Agency Workers directive "on temporary agency work" of 19th November 2008). The Directive itself allows until 5th December 2011 for implementation.

See here for more.

Tuesday 15 September 2009

Workers can reclaim holidays lost to sickness

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary]

The ECJ has handed down its decision in Pereda, which is authority for the proposition that a period of illness whilst on holiday does not count towards the minimum period of 4 weeks paid annual leave under the Working Time Directive (WTD).

Mr. Pereda, a specialist driver, suffered an accident at work around 14 days before the commencement of his allocated period of 4 weeks annual leave. The injury put him out of action for 6 weeks. His sick leave therefore almost entirely overlapped with his planned holiday but his request for an additional period of annual leave was refused. Under the ECJs ruling his period of sick leave should not have counted towards his holiday time.

The ruling emphasises that there can be no derogations from the entitlement to paid annual leave, the purpose of which is to enable a worker to rest and enjoy a period of relaxation and leisure. By contrast the purpose of entitlement to sick leave is to ensure that he can recover from being ill. Consequently, if a worker decides not to take annual leave during a period of illness, he must be granted a replacement holiday period to ensure that he is not deprived of his entitlement to rest, relaxation and leisure. This principle is likely to apply whether the employee falls sick before or during the actual period of leave.

Click to hear Daniel Barnett discussing this case with David Mellor on LBC 97.3

Avoiding the statutory uplift…

[Thanks to Ed McFarlane of EEF for preparing this case summary]

An interesting case...

The EAT has handed down judgment in the case of Tim Arrow & Sons v Olney, which is authority for the proposition that where a Tribunal award includes an uplift, if the respondent pays the claimant a sum to cover the award before Judgement, the uplift is calculated on the outstanding sum due, rather than the total amount of the award.

This case was decided under the Employment Act 2002, it is likely to have application under the 2008 provisions, given the similarity of the uplift provisions in the two Acts. Conversely, where a reduction is made to an award, by the same reasoning, any advance payment offset against an award would be likely to disregarded in any reduction of compensation. The EAT also overturned an award for loss of statutory rights where the dismissal was inevitable.

Wednesday 9 September 2009

Norton Tool and Constructive Dismissal

The Court of Appeal has overturned the EAT (see summary of the EAT decision) in Stuart Peters v Bell, holding that the Norton Tool principle does not extend to constructive dismissal, and so a constructively dismissed employee must give credit for sums earned from other employment during the notice period.

For more detail, I recommend the summary of the Court of Appeal's decision on (who tipped me off about this decision - thank you).

Thursday 3 September 2009

London (East) Tribunal is moving

No more trips to Stratford.

From 30th September 2009, the London (East) tribunal moves to new premises in London E14 (Docklands, near Canary Wharf). The old hearing centre closes for business on 24th September.

Full details here.

New DCSF Guidance on Employing Children

Ever wondered whether Mr Grimes breached health and safety laws when sending Tom up the chimney? Or whether Miss Hannigan breached the Working Time Regulations when forcing Annie to sweep the orphanage floor?

Well, wonder no more. The Department for Children Schools and Family has produced an excellent Guide on Employing Children, covering everything from the types of work children can (and cannot) do, through the number of hours they can be required to work, to specific health & safety requirements. It's a really good guide to print off and keep for future reference.

Tuesday 1 September 2009

Costs: Lying Litigants

[Thanks to Will Dobson of Cloisters for providing this case summary]

The EAT in Dunedin Canmore Housing Association v Donaldson has held that it was perverse for the Tribunal to have refused to award costs where the claimant's assertions that she had not disclosed details of her compromise agreement in breach of a confidentiality clause were false.

The Claimant brought proceedings for breach of a compromise agreement, claiming she had not been in breach of a confidentiality clause. The Tribunal rejected her evidence and found she had made disclosures to two people. Nonetheless, it declined to award costs against her as it took the view that it was necessary for her to bring proceedings as the employer had alleged that the claimant had breached the clause.

The EAT disagreed and observed:
  • there was no basis for the view that proceedings were 'necessary' or that the claimant had no other alternative but bring proceedings where she knew her assertions were false;

  • the fact that the claimant was a lay person was irrelevant - what mattered was whether she had or had not, in simple human terms, approached the essential factual matters that lay at the heart of her case honestly and reasonably
Because she had not approached the case honestly and reasonably, the EAT reversed the tribunal's decision on costs and ordered the Claimant to pay her ex-employer's legal costs.

This case follows the EAT's earlier judgment in Daleside Nursing Home Ltd v Mathew which held that it was perverse for a Tribunal not to award costs where the central allegation of racial abuse was a lie.