Tuesday 29 June 2010

Termination Payments

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Gibb v Maidstone & Tunbridge Wells NHS Trust , which is authority for the proposition that when a public body relies on the irrationality of its own financial and management decision making as a defence to a claim by an employee, the court will generally only interfere with the decision where the figures are plainly inexplicable.

The Appellant was the Chief Executive of an NHS Trust that suffered the outbreak of a super-bug. The Trust decided, per Lord Justice Sedley, "that the sacrifice most likely to propitiate the deities of Whitehall and the media was their chief executive officer".

The High Court had erred in concluding that the decision to pay the Appellant £250,000 in a compromise agreement was ultra vires. The judge had reached his own conclusions as to what financial prudence might require. He had also wrongly concluded that the Trust's costs savings in entering into the compromise agreement rather than face a claim for unfair dismissal were likely to be illusory. The fact the Trust had, in deciding on the figure of £250,000, taken into account the Appellant's many earlier years of good service and the time it might take her to find other employment was not irrational.

Unfair Dismissal Time Limits

[Thanks to Richard Hayes of Devon Law Centre for providing this case summary]

The EAT (Underhill P) has handed down its decision in Northamptonshire County Council v Entwhistle , which is authority for the proposition that it remains reasonably practicable for the employee to file their unfair dismissal claim within the usual time allowed (now three months from the effective date of termination), even though their employer has mistakenly advised them that the time limit for claiming unfair dismissal ran from the date of the rejection of their appeal. This was because the employee's solicitor should have known the limitation date (which ran from the date of dismissal) and filed the claim in time.

Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53 and Marks & Spencer PLC v Williams-Ryan [2008] ICR 193 were correct. Unless the adviser was misled as to the correct limitation date by inaccurate information from the employer, the employee's only remedy was to claim damages in negligence from his adviser.

Wednesday 23 June 2010

Employment Consultants and Litigation Privilege

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT (HHJ McMullen) has handed down its decision in Scotthorne v Four Seasons, which is authority for the proposition that advice given by employment consultants about how to deal with an alleged act of gross misconduct does not have to be disclosed because it is protected by litigation privilege. The reason for following a disciplinary procedure is to avoid litigation and so the dominant purpose for seeking the advice was litigation and it did not matter that the consultants were not legally qualified.

The suggestion that advice from non-qualified advisers at an earlier stage would attract legal advice privilege was said to be "fraught with difficulty" but it was found on the facts that it was not required to be disclosed in this case because it was not relevant to the claim as pleaded. Although it had been alleged that the dismissal had been concocted in response to earlier events, this was supported by no more than bare assertion.

Disability Discrimination

[Thanks to Anna Thomas of Devereux Chambers for providing this case summary]

The case of Aitken v Commissioner of Police of the Metropolis is authority for the proposition that treatment on the basis of a mistaken perception that an employee is suffering from a particular disability does not fall within the definition of direct disability or disability-related discrimination.

In this case a police officer (who suffered from OCD) contended that, following the ECJ's reasoning in Attridge Law LLP v Coleman, s3 Disability Discrimination Act should be interpreted so as to include discrimination on the grounds of perceived disability. The EAT disagreed. Slade J held:
  • the case was not one in which the Respondent acted on the basis of an assumption that the claimant had a dangerous mental illness; rather the Respondent acted on the basis of how the Claimant presented himself

  • in any event the words of section s3 DDA ['...the disabled person's disability '] are distinguishable from those used in other discrimination statutes which do not relate the relevant characteristic to the complainant

  • DDA requires an actual disability albeit, since Coleman, the actual disability of a person related to the complainant

Tuesday 22 June 2010

Equality Act 2010 - implementation

Q. How do you make the switchboard at the Government Equalities Office go mad?

A. Send out a bulletin pointing out that the implementation date for the Equality Act 2010 has been removed from the GEO website.

Apparently the GEO has been inundated with requests for more information. And they've helpfully provided it. Deidre Wright, professional support lawyer at Shepherd and Wedderburn LLP, tells me that the GEO has announced, on its Latest News

page, that:

"The provisions in the Equality Act will come into force at different times to allow time for the people and organisations affected by the new laws to prepare for them. The Government is currently considering how the different provisions will be commenced so that the Act is implemented in an effective and proportionate way. In the meantime, the Government Equalities Office continues to work on the basis of the previously announced timetable, which envisaged commencement of the Act's core provisions in October 2010."

Daniel Barnett

Statutory Grievance Procedure

[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The EAT (Cox J) has handed down its decision in Reddy v Bedfordshire NHS Trust , which is authority for the proposition that the requirement in regulation 9(1)(a) of the Dispute Resolution Regulations 2004 that a person who is an appropriate representative of the employee having the grievance has "written to the employer setting out the grievance" was satisfied where the grievance was not sent directly to the employer but was forwarded on by a third party.

The Claimants' union representative sought to raise a collective grievance regarding equal pay. The union representative sent the grievance by email to Bedfordshire County Council, but in error did not succeed in sending it to the employer (Bedfordshire and Luton Partnership NHS Trust) although she had sought to copy the employer in to the email.

The Council forwarded the grievance to the Trust. The tribunal concluded that regulation 9(1)(a) required the Claimants' representative to send the grievance to the employer, and it was not sufficient that the employer had received the grievance indirectly.

The EAT, stressing the importance of focusing on substance rather than technicality, concluded that the tribunal had erred in requiring that regulation 9(1)(a) demanded that the grievance should have been sent to the employer directly, in circumstances where the employer had in fact received the grievance.

Thursday 17 June 2010

Equality Act 2010 - implementation

Damian McCarthy of Cloisters has pointed out that the Government Equality Office has removed the implementation dates for the Equality Act 2010 from its website.

It may be that parts of the Act are no longer being implemented in October as anticipated, or that the Act is being put out to pasture. Or we could all be reading too much into it!

Definition of Disability

[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The EAT (Underhill P presiding) has handed down judgment in J v DLA Piper UK LLP, where the EAT had to consider closely the definition of 'disability' for mental impairments within the meaning of the DDA. It stated:-
  • A GP is fully qualified to express an opinion on whether a patient is suffering from depression;
  • it remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it); but
  • the tribunal should not proceed by rigid consecutive stages; if there is a dispute about the existence of an impairment, it will make sense to start with the question of whether a claimant's ability to carry out normal day-to-day activities is adversely affected.
The EAT added that there is a technical difference between 'depression' and a reaction to adverse life events; in practice little turns on the distinction because tribunals are concerned with the impact of any symptoms on day-to-day activities, and the clinical label applied (if any) was of little relevance under the statutory test.

Tuesday 15 June 2010

Conditional Resignations

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The EAT (HHJ Pugsley) has handed down its decision in Heaven v Whitbread Group, which is authority for the proposition that, as the effective date of termination is a statutory construct, the date of termination in a 'conditional resignation' claim depends on what happened between the parties. Their wishes, or subsequent agreement as to a different date, are irrelevant (applying Fitzgerald v University of Kent [2004] EWCA Civ 143).

Thus, even though the Claimant had later stated that his resignation should be effective from the date of his conditional letter of resignation, the statutory date of termination still ran from when he confirmed his intention to resign several days later. This meant that the Tribunal had erred in finding that his claim had been brought out of time.

Friday 11 June 2010

Statutory Disciplinary and Dismissal Procedures

[Thanks to Claire Darwin of Matrix Chambers for providing this case summary]

In Ngo Mbog v Whitbread Group Plc, the EAT (HHJ Hand QC) was asked to decide the meaning of the words "substance of the Tribunal complaint" in Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The employee in this case presented two ET1s. The first ET1 complained only of unfair dismissal pursuant to s94 and s98 of the Employment Rights Act 1996. The second ET1, presented approximately a month later, complained that the same dismissal was contrary to the Race Relations Act 1976. The EAT held that both ET1s relied on more or less the same factual matrix.

Both ET1s were presented out of time, and the employee sought to rely on Regulation 15 to extend time.

The employee had pursued an internal appeal in relation to her unfair dismissal complaint. This was concluded before the primary limitation period expired. She had also complained by way of the employer's grievance procedure that her dismissal was discriminatory. This procedure was ongoing at the time of the expiry of the primary limitation period.

East London ET held that the circumstances specified in Regulation 15(2) did not apply to the unfair dismissal complaint, because at the time of the expiry of the primary limitation period, no procedure was being followed in respect of that particular cause of action.

The EAT allowed the appeal by the employee, and held that the words "substance of the complaint" in Regulation 15(2) referred to the factual matrix of the complaint rather than the individual cause of action relied on.

This case serves as yet another reminder that ETs should avoid approaching the question of compliance with the Statutory Procedures in an overly-technical manner.

Tuesday 8 June 2010

Fresh Evidence

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

The EAT (Underhill P) has handed down its decision in Adegbuji v Meteor Parking, which is authority for the proposition that the EAT might not have jurisdiction to hear fresh evidence appeals as no error of law arises where a Tribunal makes a decision on the evidence before it. The EAT can only hear appeals on matters of law, not fact.

The President suggested that the proper course for a litigant with fresh evidence is to apply to the Employment Tribunal for a Review under Rule 34 (3) (d), and that in genuine fresh evidence cases, it would normally be just to extend time to hear a Review. Furthermore, an Employment Tribunal will normally be better placed to apply the second and third questions of the Ladd v Marshall test.

The President hoped that fresh evidence appeals would be stayed pending review applications unless pertinent to other issues under appeal.

The appeal against a grievance-related jurisdictional point was dismissed.