These decisions have just been placed on the EAT website. They are currently unreported, but may be reported in due course.
Paggetti v Cobb (HHJ Peter Clark, 22/3/02)
An employee's compensatory award was calculated on the basis of his actual wage, which was £1.88 per hour. The EAT overturned this, holding that when calculating a compensatory award, a tribunal should never base it on less than the minimum wage (then £3.60ph) because, to do so, would be to disregard the National Minimum Wage Act 1988 and allow the employer to benefit from his breach of that Act. Accordingly, the compensatory award should be calculated based on an hourly rate of £3.60, not £1.80.
• click here for the full transcript
Brown v Tomlinsons Dairies (Mr Commissioner Howell QC, 10/4/02)
The employee was at risk of redundancy, but had not been dismissed. He wrote to the employer, asserting he had been dismissed, and refused to attend work. After several attempts to persuade him he had not been dismissed, the employer eventually treated the employee as having resigned. The EAT confirmed this was a dismissal within section 95 of the ERA 1996, by way of the employer accepting the employee's repudiatory breach (refusing to work) and thereby bringing the contract to an end. However, the dismissal was fair, primarily because there was little else the employer could do.
• click here for the full transcript
Wednesday, 1 May 2002
Monday, 29 April 2002
Employment TaskForce Report
The Employment Tribunal System Taskforce, chaired by Janet Gaymer, has today published its report on reform of the employment tribunal system. The report was provided to the DTI and the Lord Chancellor.
The main recommendations are:
• establishing a high-level coordinating body to increase coherence amongst the regions, whose ambit would include IT strategy, research programmes, information for users, websites and complaint handling;
• greater emphasis on the prevention of disputes, including more involvement by ACAS;
• earlier disclosure of information by all parties, to help both sides understand if they have a case and enable better judicial case-handling techniques;
• improved infrastructure for ETs, including better IT links, appropriate resources for the workload, more training and more highly skilled administrative staff;
• generally more investment in the system
Other recommendations include:
• a review be undertaken into regulation of employment law advisers;
• a pilot scheme should be set up, piloting the concept of judicial assistants as used in the civil sector;
• the parties should be asked about their availability before a full hearing date is set;
• the time limit for the IT3 should be extended from 21 to 28 days - but should be enforced more rigorously;
• there should be better preparation for hearings before the case, including the chairman and lay members receiving papers in advance;
• the system of enforcing tribunal awards should be reviewed;
• a study should be undertaken to consider widening the jurisdiction of ETs to other employment-related claims;
• tribunal proceedings should be digitally recorded, so that a transcript may be produced in a cost-effective manner;
• the current register of applications should be terminated;
• stress counselling should be made available to those working in ETs.
Both a summary, and the full report, have been published on the internet.
The main recommendations are:
• establishing a high-level coordinating body to increase coherence amongst the regions, whose ambit would include IT strategy, research programmes, information for users, websites and complaint handling;
• greater emphasis on the prevention of disputes, including more involvement by ACAS;
• earlier disclosure of information by all parties, to help both sides understand if they have a case and enable better judicial case-handling techniques;
• improved infrastructure for ETs, including better IT links, appropriate resources for the workload, more training and more highly skilled administrative staff;
• generally more investment in the system
Other recommendations include:
• a review be undertaken into regulation of employment law advisers;
• a pilot scheme should be set up, piloting the concept of judicial assistants as used in the civil sector;
• the parties should be asked about their availability before a full hearing date is set;
• the time limit for the IT3 should be extended from 21 to 28 days - but should be enforced more rigorously;
• there should be better preparation for hearings before the case, including the chairman and lay members receiving papers in advance;
• the system of enforcing tribunal awards should be reviewed;
• a study should be undertaken to consider widening the jurisdiction of ETs to other employment-related claims;
• tribunal proceedings should be digitally recorded, so that a transcript may be produced in a cost-effective manner;
• the current register of applications should be terminated;
• stress counselling should be made available to those working in ETs.
Both a summary, and the full report, have been published on the internet.
UK in further breach of Working Time Directive
According to a press release just issued, the European Commission has upheld a complaint against the UK government, holding that the Working Time Regulations do not properly implement the EC Working Time Directive.
Amicus, the trade union, complained to the Commission that the WTR fail to implement the Directive because:
• under the Regulations, overtime hours on night shifts are excluded from the 48-hour working week limit, which contravenes the Directive; and,
• under the Regulations, people could volunteer to work additional hours which are unmeasured by the employer, thereby undermining the Directive.
According to the press release, the Commission has issued infringement proceedings against the UK, giving it two months to comply.
The government has already been forced to amend the Regulations, last year, on the basis that the 13-week qualifying period for holiday pay breached the Working Time Directive.
Amicus, the trade union, complained to the Commission that the WTR fail to implement the Directive because:
• under the Regulations, overtime hours on night shifts are excluded from the 48-hour working week limit, which contravenes the Directive; and,
• under the Regulations, people could volunteer to work additional hours which are unmeasured by the employer, thereby undermining the Directive.
According to the press release, the Commission has issued infringement proceedings against the UK, giving it two months to comply.
The government has already been forced to amend the Regulations, last year, on the basis that the 13-week qualifying period for holiday pay breached the Working Time Directive.
Monday, 22 April 2002
New TUPE Decision: RCO v Unison (C of A)
The decision of the Court of Appeal in RCO Support Services Ltd v UNISON (12th April 2002) is now available on the Court of Appeal website.
For details of the EAT's decision, see my bulletin dated 6th July 2000.
Facts
The Aintree Hospitals' NHS Trust decided to transfer much of the work from one hospital to a nearby hospital, three miles away. The issue was whether there was a transfer of undertakings in relation to the cleaning and catering support services (which were undertaken by different companies, one at each of the two hospitals).
The Decisions Below
Both the employment tribunal, and the EAT, held that a transfer of undertakings had taken place.
The Court of Appeal's Decision
The Court of Appeal upheld the decisions below, holding that a transfer had taken place.
Interestingly, Mummery LJ's judgment was supportive of the ECJ's decision in Suzen, indicating movement away from the 'let's all be rude about Suzen' attitude which has appeared in so many recent decisions.
He held:
"24. I agree that it has become clear from Suzen and later judgments that the Court of Justice now interprets the Directive as setting limits to its application in contracting out cases, which were not expressly identified in Spijkers or in Schmidt and other earlier judgments of the Court of Justice. In particular, the mere fact that the putative transferee carries on the same services as the putative transferor had done does not, by itself, support the conclusion that an entity retains its identity. It is not correct to treat that single circumstance as determinative in favour of a transfer. Indeed, there may be no scope for the application of the Directive in a case where, although the same labour-intensive activities are continued or the same services are supplied by a new contractor, none of the workforce has been taken on."
Mummery LJ then goes on to consider the position if a putative transferee deliberately refuses to take on incoming employees so as to avoid the application of the TUPE Regulations. He describes this as "circular" and "not the real point", emphasising that whether staff transfer is merely a factor.
• click here for the full transcript
For details of the EAT's decision, see my bulletin dated 6th July 2000.
Facts
The Aintree Hospitals' NHS Trust decided to transfer much of the work from one hospital to a nearby hospital, three miles away. The issue was whether there was a transfer of undertakings in relation to the cleaning and catering support services (which were undertaken by different companies, one at each of the two hospitals).
The Decisions Below
Both the employment tribunal, and the EAT, held that a transfer of undertakings had taken place.
The Court of Appeal's Decision
The Court of Appeal upheld the decisions below, holding that a transfer had taken place.
Interestingly, Mummery LJ's judgment was supportive of the ECJ's decision in Suzen, indicating movement away from the 'let's all be rude about Suzen' attitude which has appeared in so many recent decisions.
He held:
"24. I agree that it has become clear from Suzen and later judgments that the Court of Justice now interprets the Directive as setting limits to its application in contracting out cases, which were not expressly identified in Spijkers or in Schmidt and other earlier judgments of the Court of Justice. In particular, the mere fact that the putative transferee carries on the same services as the putative transferor had done does not, by itself, support the conclusion that an entity retains its identity. It is not correct to treat that single circumstance as determinative in favour of a transfer. Indeed, there may be no scope for the application of the Directive in a case where, although the same labour-intensive activities are continued or the same services are supplied by a new contractor, none of the workforce has been taken on."
Mummery LJ then goes on to consider the position if a putative transferee deliberately refuses to take on incoming employees so as to avoid the application of the TUPE Regulations. He describes this as "circular" and "not the real point", emphasising that whether staff transfer is merely a factor.
• click here for the full transcript
Friday, 19 April 2002
New Agency Worker Decision
Esso Petroleum v Jarvis [HHJ Pugsley, 18th January 2002]
Esso engaged a number of workers through an employment agency. The workers were paid by the agency, although the rates were set by Esso. They worked alongside Esso employees, were subject to the same lines of authority and under Esso's day-to-day control, sought authority for holidays from Esso, were subject to the same working policies, and received bonuses from Esso. By contrast, there was no grievance procedure or formal disciplinary procedure, and they were not members of the Esso pension scheme.
The employment tribunal decided that they were 'employees' of Esso, within the meaning of the ERA 1996 (and, although not stated in the decision, could presumably therefore claim unfair dismissal against Esso). The EAT overturned this, confirming that the absence of a contract between Esso and the workers meant that they were not capable of being 'employees', since there was no contract in existence which could be said to amount to a contract of employment.
This case is a further example of the lack of employment protection given to agency workers (albeit it should be extended if and when the EC Agency Workers Directive is implemented).
• click here for the Esso decision
Esso engaged a number of workers through an employment agency. The workers were paid by the agency, although the rates were set by Esso. They worked alongside Esso employees, were subject to the same lines of authority and under Esso's day-to-day control, sought authority for holidays from Esso, were subject to the same working policies, and received bonuses from Esso. By contrast, there was no grievance procedure or formal disciplinary procedure, and they were not members of the Esso pension scheme.
The employment tribunal decided that they were 'employees' of Esso, within the meaning of the ERA 1996 (and, although not stated in the decision, could presumably therefore claim unfair dismissal against Esso). The EAT overturned this, confirming that the absence of a contract between Esso and the workers meant that they were not capable of being 'employees', since there was no contract in existence which could be said to amount to a contract of employment.
This case is a further example of the lack of employment protection given to agency workers (albeit it should be extended if and when the EC Agency Workers Directive is implemented).
• click here for the Esso decision
Thursday, 11 April 2002
Government launches new 'Fitness Desk Aid' for GPs
The government has launched a new 'desk aid' for GPs to help them decide whether a patient is fit for work.
It contains the following guidelines:
• the nature of the patients medical condition and how long the condition is expected to last
• the functional limitations which result from the patients condition, particularly in relation to the type of tasks they actually perform at work
• any reasonable adjustments which might enable the patient to continue working - in relation to the workplace it is worth noting that under the Disability Discrimination Act 1995 an employer may be required to make reasonable adjustments for an employee with a long term disability
• any appropriate clinical guidelines - for example the Royal College of General Practitioners has produced clinical guidelines on the management of acute low back pain
• clinical management of the condition which is in the patients best interest regarding work fitness
It continues:
"you should always bear in mind that a patient may not be well served in the longer term by medical advice to refrain from work, if more appropriate clinical management would allow them to stay in work or return to work."
The guide is available here.
It contains the following guidelines:
• the nature of the patients medical condition and how long the condition is expected to last
• the functional limitations which result from the patients condition, particularly in relation to the type of tasks they actually perform at work
• any reasonable adjustments which might enable the patient to continue working - in relation to the workplace it is worth noting that under the Disability Discrimination Act 1995 an employer may be required to make reasonable adjustments for an employee with a long term disability
• any appropriate clinical guidelines - for example the Royal College of General Practitioners has produced clinical guidelines on the management of acute low back pain
• clinical management of the condition which is in the patients best interest regarding work fitness
It continues:
"you should always bear in mind that a patient may not be well served in the longer term by medical advice to refrain from work, if more appropriate clinical management would allow them to stay in work or return to work."
The guide is available here.
Wednesday, 10 April 2002
Government promises to end Age Discrimination
Ian McCartney, Minister for Work and Pensions, has today set out the government's commitment to defeating age discrimination in employment, together with all other forms of ageism.
The pledge is for such action to occur over the next 20 years - perhaps not the most ambitious of targets given the EC Equal Treatment Framework Directive requires member states to implement age discrimination legislation by December 2006.
In the style of the great political orators, Ian McCartney said: "Older people are not the world's problem, they are part of the solution to the world's problem... Age discrimination is wrong and the time has come to bin it."
The pledge is for such action to occur over the next 20 years - perhaps not the most ambitious of targets given the EC Equal Treatment Framework Directive requires member states to implement age discrimination legislation by December 2006.
In the style of the great political orators, Ian McCartney said: "Older people are not the world's problem, they are part of the solution to the world's problem... Age discrimination is wrong and the time has come to bin it."
Tuesday, 9 April 2002
New EAT Decisions
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website
Barlow v PE Jones Contractors Ltd [Mr Recorder Langstaff QC, 4th March 2002]
A potentially important case on the definition of 'worker', where the Respondent had inserted clauses into the contract of employment designed to negative any employment relationship. Many of the clauses were clearly gleaned from previous cases and the contract was a textbook example of the right things to include so as to prevent an employer/employee relationship arising. The employees claimed paid holiday under the Working Time Regulations, and argued that many of these clauses were intended to contract out of the legislation and were therefore void. The EAT did not consider it necessary to deal with this point, instead preferring to allow the appeal on the grounds that the employment tribunal seemed to have applied the test for who is an 'employee' rather than who is a 'worker'.
• click here for the Barlow decision
Curr v Marks & Spencers plc [HHJ Wilkie, 6th March 2002]
An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.
• click here for the Curr decision
Miller Bros. v Johnson [Mr Recorder Langstaff QC, 14th March 2002]
An employment tribunal has no jurisdiction to hear breach of contract claims where the breach occurred after termination of employment, even if the contract (being a compromise agreement) arose because of the termination of employment.
• click here for the Miller Bros. decision
Barlow v PE Jones Contractors Ltd [Mr Recorder Langstaff QC, 4th March 2002]
A potentially important case on the definition of 'worker', where the Respondent had inserted clauses into the contract of employment designed to negative any employment relationship. Many of the clauses were clearly gleaned from previous cases and the contract was a textbook example of the right things to include so as to prevent an employer/employee relationship arising. The employees claimed paid holiday under the Working Time Regulations, and argued that many of these clauses were intended to contract out of the legislation and were therefore void. The EAT did not consider it necessary to deal with this point, instead preferring to allow the appeal on the grounds that the employment tribunal seemed to have applied the test for who is an 'employee' rather than who is a 'worker'.
• click here for the Barlow decision
Curr v Marks & Spencers plc [HHJ Wilkie, 6th March 2002]
An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.
• click here for the Curr decision
Miller Bros. v Johnson [Mr Recorder Langstaff QC, 14th March 2002]
An employment tribunal has no jurisdiction to hear breach of contract claims where the breach occurred after termination of employment, even if the contract (being a compromise agreement) arose because of the termination of employment.
• click here for the Miller Bros. decision
Thursday, 4 April 2002
EC Information and Consultation Directive
The final text of the Information and Consultation Directive was published in the Official Journal of the European Communities on 23rd March 2002.
The Directive gives employees a right to be:
• informed about the business's economic situation,
• informed and consulted about employment prospects (particularly where there is a threat to employment); and,
• informed and consulted about about decisions likely to lead to substantial changes in work organisation or contractual relations (including redundancies and transfers).
Information and consultation has to take place at an appropriate time,. and with the relevant level of management. It is expected it will take place via a union or appropriate employee representatives (although this is yet to be determined by the UK legislation). The representatives will be entitled to meet the employer, submit their views and receive a reasoned response.
Employers may withhold information when disclosure would seriously harm the company or be prejudicial to it, or they may require that it be kept confidential by the employee representatives to whom it is disclosed.
The U.K. has three years to implement the Directive, i.e. until 23rd March 2005, by when it must apply to all businesses with over 150 employees. By March 2007 it must be extended to all businesses with over 100 employees, and by March 2008 it must apply to all businesses with 50 or more employees. The Directive does not apply to businesses with less than 50 employees. Businesses with 50+ employees account for about 75% of UK employees
The Directive gives employees a right to be:
• informed about the business's economic situation,
• informed and consulted about employment prospects (particularly where there is a threat to employment); and,
• informed and consulted about about decisions likely to lead to substantial changes in work organisation or contractual relations (including redundancies and transfers).
Information and consultation has to take place at an appropriate time,. and with the relevant level of management. It is expected it will take place via a union or appropriate employee representatives (although this is yet to be determined by the UK legislation). The representatives will be entitled to meet the employer, submit their views and receive a reasoned response.
Employers may withhold information when disclosure would seriously harm the company or be prejudicial to it, or they may require that it be kept confidential by the employee representatives to whom it is disclosed.
The U.K. has three years to implement the Directive, i.e. until 23rd March 2005, by when it must apply to all businesses with over 150 employees. By March 2007 it must be extended to all businesses with over 100 employees, and by March 2008 it must apply to all businesses with 50 or more employees. The Directive does not apply to businesses with less than 50 employees. Businesses with 50+ employees account for about 75% of UK employees
New EAT Decisions
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website
Rotherham Reboring Services Ltd v Maycock [HHJ Wilkie, 6th Feb 2002]
The employment tribunal disapplied ERA 1996, s109 (upper qualifying age for unfair dismissal) and allowed a 65-year old to claim unfair dismissal. Time for appealing that decision expired (the employer was unrepresented and unaware of Rutherford v Harvest Town Circle). At a subsequent remedies hearing, the tribunal disapplied s119(4) on the same basis. The employer appealed the basic award of £6,600, relying on Rutherford. The EAT held that the employer was issue estopped from bringing the appeal, since the first decision had not been appealed and the tribunal had made an effective finding that a 65-year old was entitled to full compensation for unfair dismissal.
• click here for the Rotherham decision
MSF v Refuge Assurance plc [Lindsay P., 15th Feb 2002]
TULR(C)A 1993, s188 provides that consultations must begin in good time before multiple redundancies, when an employer is proposing to dismiss more than 20 employees. This does not mean when the employer first thinks about redundancies, or contemplates redundancies as a contingency plan. For deciding what is meant by 'in good time', an employer should consider the probable date of redundancies, decide how long will be required for effective, good-faith consultation, and calculate the date when consultation should start from then.
• click here for the MSF decision
Brown v Kigass Aero [Lindsay P., 25th Feb 2002]
This case was summarised in the bulletin dated 5th March 2002, namely that workers on long-term sick absence continue to accrue holiday pay. The transcript is now available.
• click here for the Kigass Aero decision
Rotherham Reboring Services Ltd v Maycock [HHJ Wilkie, 6th Feb 2002]
The employment tribunal disapplied ERA 1996, s109 (upper qualifying age for unfair dismissal) and allowed a 65-year old to claim unfair dismissal. Time for appealing that decision expired (the employer was unrepresented and unaware of Rutherford v Harvest Town Circle). At a subsequent remedies hearing, the tribunal disapplied s119(4) on the same basis. The employer appealed the basic award of £6,600, relying on Rutherford. The EAT held that the employer was issue estopped from bringing the appeal, since the first decision had not been appealed and the tribunal had made an effective finding that a 65-year old was entitled to full compensation for unfair dismissal.
• click here for the Rotherham decision
MSF v Refuge Assurance plc [Lindsay P., 15th Feb 2002]
TULR(C)A 1993, s188 provides that consultations must begin in good time before multiple redundancies, when an employer is proposing to dismiss more than 20 employees. This does not mean when the employer first thinks about redundancies, or contemplates redundancies as a contingency plan. For deciding what is meant by 'in good time', an employer should consider the probable date of redundancies, decide how long will be required for effective, good-faith consultation, and calculate the date when consultation should start from then.
• click here for the MSF decision
Brown v Kigass Aero [Lindsay P., 25th Feb 2002]
This case was summarised in the bulletin dated 5th March 2002, namely that workers on long-term sick absence continue to accrue holiday pay. The transcript is now available.
• click here for the Kigass Aero decision
Sunday, 24 March 2002
Employee's Duty to Mitigate
The Court of Appeal has handed down its decision in Wilding v British Telecommunications plc. It has dismissed the employee's appeal from the finding that he failed to mitigate his losses.
Facts
Mr Wilding worked for BT for 29 years. He developed back problems and, from 1997, was no longer able to work. He was dismissed on grounds of capability in early 1998. The employment tribunal held it to be an unfair dismissal and unlawful discrimination on grounds of disability because, amongst other things, the employer had failed to take into account medical evidence suggesting that Mr Wilding would be fit to work a reduced 20-hour week (and thus failed to make reasonable adjustments).
After the liability decision at the employment tribunal, BT made an open offer of re-engagement to Mr Wilding. This was on the basis of working a 20-hour week, with pro rata benefits and back pay. Mr Wilding refused. His grounds for refusal, set out in writing at the time, included:
• that BT was appealing the liability decision, maintaining it was 'perverse' for the employment tribunal to find Mr Wilding was capable of working a 20-hour week;
• the delay in making an offer of re-deployment;
• the fact that BT had refused to make any payment to Mr Wilding under its Injury Compensation Scheme;
• in the circumstances, trust and confidence had been destroyed.
The employment tribunal held that Mr Wilding's refusal to accept the offer was unreasonable, and that he had failed to mitigate his loss. In particular, it considered that the BT offer was wholly genuine and that Mr Wilding was acting unreasonably in refusing to accept the job, given he was quite incapable of obtaining employment elsewhere.
Decision
The Court of Appeal dismissed Mr Wilding's appeal (as had the EAT).
It held the tribunal had correctly approached the question of mitigation of loss. The correct test for deciding whether an employee had mitigated his/her loss was:
1. it is the duty of an employee to act in mitigation of loss as a reasonable person unaffected by the hope of compensation from the employer;
2. the onus is on the employer to show that the worker had unreasonably refused an offer of re-employment;
3. the test of unreasonableness is an objective one based on the totality of the evidence;
4. in applying that test, the attitude of the employer, the circumstances in which the offer was made and refused and the way in which the employee had been treated must be taken into account; and,
5. the court or tribunal must not be too stringent in its expectations of the injured party.
However, in adopting an objective approach, this will inevitably involve investigation into the employee's circumstances and abilities. In particular, if a suitable offer is made to an employee who has shown himself to be anxious to return to work, and that offer is then rejected for reasons peculiar to the employee, the tribunal is bound to investigate whether that decision was reasonable or unreasonable.
In this case, the tribunal had adopted the correct test and the appeal would be dismissed.
Facts
Mr Wilding worked for BT for 29 years. He developed back problems and, from 1997, was no longer able to work. He was dismissed on grounds of capability in early 1998. The employment tribunal held it to be an unfair dismissal and unlawful discrimination on grounds of disability because, amongst other things, the employer had failed to take into account medical evidence suggesting that Mr Wilding would be fit to work a reduced 20-hour week (and thus failed to make reasonable adjustments).
After the liability decision at the employment tribunal, BT made an open offer of re-engagement to Mr Wilding. This was on the basis of working a 20-hour week, with pro rata benefits and back pay. Mr Wilding refused. His grounds for refusal, set out in writing at the time, included:
• that BT was appealing the liability decision, maintaining it was 'perverse' for the employment tribunal to find Mr Wilding was capable of working a 20-hour week;
• the delay in making an offer of re-deployment;
• the fact that BT had refused to make any payment to Mr Wilding under its Injury Compensation Scheme;
• in the circumstances, trust and confidence had been destroyed.
The employment tribunal held that Mr Wilding's refusal to accept the offer was unreasonable, and that he had failed to mitigate his loss. In particular, it considered that the BT offer was wholly genuine and that Mr Wilding was acting unreasonably in refusing to accept the job, given he was quite incapable of obtaining employment elsewhere.
Decision
The Court of Appeal dismissed Mr Wilding's appeal (as had the EAT).
It held the tribunal had correctly approached the question of mitigation of loss. The correct test for deciding whether an employee had mitigated his/her loss was:
1. it is the duty of an employee to act in mitigation of loss as a reasonable person unaffected by the hope of compensation from the employer;
2. the onus is on the employer to show that the worker had unreasonably refused an offer of re-employment;
3. the test of unreasonableness is an objective one based on the totality of the evidence;
4. in applying that test, the attitude of the employer, the circumstances in which the offer was made and refused and the way in which the employee had been treated must be taken into account; and,
5. the court or tribunal must not be too stringent in its expectations of the injured party.
However, in adopting an objective approach, this will inevitably involve investigation into the employee's circumstances and abilities. In particular, if a suitable offer is made to an employee who has shown himself to be anxious to return to work, and that offer is then rejected for reasons peculiar to the employee, the tribunal is bound to investigate whether that decision was reasonable or unreasonable.
In this case, the tribunal had adopted the correct test and the appeal would be dismissed.
Friday, 22 March 2002
EC Temporary Workers Directive
Further to Wednesday's bulletin, the text of the draft EC Agency Workers Directive is now available from here (Adobe Acrobat required). The site was temporarily down when I tried it, but it should be working again soon!
Thursday, 21 March 2002
Religious Discrimination and Remedies Bill
The Religious Discrimination and Remedies Bill has been placed on the internet today. It is a private member's Bill.
It mirrors the format of the sex and race discrimination legislation, making it an offence for employers to discriminate directly or indirectly against employees on grounds of religious belief or membership (or non-membership) of a religious group.
However, the Bill has no enforcement procedure. So employees cannot actually bring a claim anywhere to enforce their rights. Whoops!
Further, there is no definition section (eg 'employee' is undefined) and, despite the title, is completely silent about remedies.
The Bill can be seen here.
It mirrors the format of the sex and race discrimination legislation, making it an offence for employers to discriminate directly or indirectly against employees on grounds of religious belief or membership (or non-membership) of a religious group.
However, the Bill has no enforcement procedure. So employees cannot actually bring a claim anywhere to enforce their rights. Whoops!
Further, there is no definition section (eg 'employee' is undefined) and, despite the title, is completely silent about remedies.
The Bill can be seen here.
Wednesday, 20 March 2002
EC Temporary Workers Directive
Further to the bulletin on 18th February, the Temporary Workers Directive has now been adopted by the European Commission.
The Press Assocation has issued the following press release (below). As soon as the text of the Directive is available, I will issue a further bulletin summarising it.
More detail can be seen, for now, at the Europa website.
EC proposes new working rights for agency 'temps'
New working rights for agency "temps" are proposed by the European Commission.
The commission wants temporary workers to receive the same pay and conditions as regular company employees.
Brussels has already introduced new measures which give part-time workers a share of holiday entitlement and other agreements routinely offered to full-timers.
Now it wants to boost protection at work for a major sector - the temporary agency worker brought in to fill in for staff shortages for a few weeks or months.
The Commissioner responsible for employment and social affairs, Anna Dimantopoulou, says agency "temps" deserved the same rights as other workers.
She says: "This proposal not only seeks to create more jobs but also aims to provide better jobs for temporary agency workers through a basic minimum of protection across the EU."
She says the plans provided plenty of flexibility for national authorities to apply the rules in line with domestic practice.
The temporary agency work market has been growing steadily for years, with 80% of temporary agency workers in Europe employed in just four member States - Britain, Germany, France and the Netherlands.
Euro MPs have welcomed the move. Labour's Claude Moraes says it's time the rights of full-time and part-time workers were extended to the temporary agency sector.
The proposal now goes to the European Parliament and National Employment Ministers of the member states for consideration.
The Press Assocation has issued the following press release (below). As soon as the text of the Directive is available, I will issue a further bulletin summarising it.
More detail can be seen, for now, at the Europa website.
EC proposes new working rights for agency 'temps'
New working rights for agency "temps" are proposed by the European Commission.
The commission wants temporary workers to receive the same pay and conditions as regular company employees.
Brussels has already introduced new measures which give part-time workers a share of holiday entitlement and other agreements routinely offered to full-timers.
Now it wants to boost protection at work for a major sector - the temporary agency worker brought in to fill in for staff shortages for a few weeks or months.
The Commissioner responsible for employment and social affairs, Anna Dimantopoulou, says agency "temps" deserved the same rights as other workers.
She says: "This proposal not only seeks to create more jobs but also aims to provide better jobs for temporary agency workers through a basic minimum of protection across the EU."
She says the plans provided plenty of flexibility for national authorities to apply the rules in line with domestic practice.
The temporary agency work market has been growing steadily for years, with 80% of temporary agency workers in Europe employed in just four member States - Britain, Germany, France and the Netherlands.
Euro MPs have welcomed the move. Labour's Claude Moraes says it's time the rights of full-time and part-time workers were extended to the temporary agency sector.
The proposal now goes to the European Parliament and National Employment Ministers of the member states for consideration.
Thursday, 14 March 2002
Data Protection Code: Part 1
Part 1 of the long-awaited Employment Practices Data Protection Code has now been issued. It deals with recruitment and selection, and can be seen here.
The main provisions are:
• the code is stated as covering employees, job applicants, agency workers, casual workers and contract workers (whether still working or not);
• it covers data such as salary, Emails, notes about the specific worker and application forms;
• guidance on when it is appropriate to store sensitive personal data (eg race, trade union membership);
• an 'easy to follow' checklist for employers to ensure they are complying with the DPA 1998 in connection with advertising, job applications, verification, short-listing, interviews and retention of records.
Any individual can formally request to see their records (insofar as they are covered by the DPA 1998). A fee of up to (and no more than) £10 is payable, and the employer must provide the information promptly (and, in any event, within no more than 40 calendar days after receipt of the fee).
Part 2 of the Code, dealing with employment records, will be published next month. Parts 3 (monitoring at work) and 4 (medical information) follow at monthly intervals thereafter.
The main provisions are:
• the code is stated as covering employees, job applicants, agency workers, casual workers and contract workers (whether still working or not);
• it covers data such as salary, Emails, notes about the specific worker and application forms;
• guidance on when it is appropriate to store sensitive personal data (eg race, trade union membership);
• an 'easy to follow' checklist for employers to ensure they are complying with the DPA 1998 in connection with advertising, job applications, verification, short-listing, interviews and retention of records.
Any individual can formally request to see their records (insofar as they are covered by the DPA 1998). A fee of up to (and no more than) £10 is payable, and the employer must provide the information promptly (and, in any event, within no more than 40 calendar days after receipt of the fee).
Part 2 of the Code, dealing with employment records, will be published next month. Parts 3 (monitoring at work) and 4 (medical information) follow at monthly intervals thereafter.
Monday, 11 March 2002
Tories are a Workers' best friend
We may be seeing a change to the political agenda. According to a report in The Times, Conservative frontbencher, John Bercow, has urged the Conservatives to end hard opposition to workers' rights and establish a reputation for fairness as Labour develops its associations with big business.
Warning that the Tories should back tough action against employers who discriminate against women, the shadow chief secretary to the Treasury argued that "politically it makes more sense to do so". "After all there are more employees than there are employers", he is reported as saying.
To see the full article, click here.
Warning that the Tories should back tough action against employers who discriminate against women, the shadow chief secretary to the Treasury argued that "politically it makes more sense to do so". "After all there are more employees than there are employers", he is reported as saying.
To see the full article, click here.
Tuesday, 5 March 2002
FOR JOURNALISTS ONLY
This message is being sent to people who selected the
'journalist' category when they joined the list. If you have
received this in error, please use the link at the bottom of the
bulletin to change your details.
This message accompanies the 'Employees Entitled to Holiday Pay whilst on Long Term Sickleave' bulletin, which will follow immediately behind this Email
SUMMARY
Employment Appeal Tribunal says that employers must pay four weeks' holiday pay to employees on long term sickleave.
DETAIL
The Employment Appeal Tribunal has held that companies must pay four weeks' holiday pay to all employees on long-term sickleave, even where their rights under their contract of employment, and their entitlement to statutory sickpay, have run out.
Daniel Barnett, barrister at 2 Gray's Inn Square, says:
"This is an example of an unintended consequence of European legislation 'trumping' common sense. The Employment Appeal Tribunal's decision has unintended social, economic and employment consequences.
"Employers will no longer be able to keep long-term sick employees on their books, at least not without paying them four weeks' salary a year. This will result in otherwise unnecessary dismissals which, in turn, might result in employees losing their entitlements to Permanent Health Insurance (sometimes a perk of remaining employed by large companies when on long-term sick).
"Equally, some employees may feel pressured to return to work before they are well, because of a fear they will be dismissed.
"The government should amend the Working Time Regulations to remove this unintended anomaly."
'journalist' category when they joined the list. If you have
received this in error, please use the link at the bottom of the
bulletin to change your details.
This message accompanies the 'Employees Entitled to Holiday Pay whilst on Long Term Sickleave' bulletin, which will follow immediately behind this Email
SUMMARY
Employment Appeal Tribunal says that employers must pay four weeks' holiday pay to employees on long term sickleave.
DETAIL
The Employment Appeal Tribunal has held that companies must pay four weeks' holiday pay to all employees on long-term sickleave, even where their rights under their contract of employment, and their entitlement to statutory sickpay, have run out.
Daniel Barnett, barrister at 2 Gray's Inn Square, says:
"This is an example of an unintended consequence of European legislation 'trumping' common sense. The Employment Appeal Tribunal's decision has unintended social, economic and employment consequences.
"Employers will no longer be able to keep long-term sick employees on their books, at least not without paying them four weeks' salary a year. This will result in otherwise unnecessary dismissals which, in turn, might result in employees losing their entitlements to Permanent Health Insurance (sometimes a perk of remaining employed by large companies when on long-term sick).
"Equally, some employees may feel pressured to return to work before they are well, because of a fear they will be dismissed.
"The government should amend the Working Time Regulations to remove this unintended anomaly."
Employees entitled to Holiday Pay whilst on Long Term Sickleave
The EAT has handed down its decision in Kigass Aero v Brown (and associated appeals), upholding the decision of the employment tribunal below (see bulletin dated 31/3/00).
On a proper construction of the Working Time Regulations 1988, employees continue to accrue entitlement to paid holiday whilst on long-term sickleave. Thus, even where their contractual sickpay and SSP entitlements have run out, they will be entitled to four weeks' paid holiday per annum during any long-term sickleave.
This decision means it may no longer be practical for employers to keep employees on long-term sickness absence (without pay), since they will be liable to pay four weeks' salary a year whilst the workers remain 'on the books'.
[Thanks to Navdeep Deol and Michael Stokes of Rowley Ashworth for sending me this transcript, which should be available soon on the EAT website]
On a proper construction of the Working Time Regulations 1988, employees continue to accrue entitlement to paid holiday whilst on long-term sickleave. Thus, even where their contractual sickpay and SSP entitlements have run out, they will be entitled to four weeks' paid holiday per annum during any long-term sickleave.
This decision means it may no longer be practical for employers to keep employees on long-term sickness absence (without pay), since they will be liable to pay four weeks' salary a year whilst the workers remain 'on the books'.
[Thanks to Navdeep Deol and Michael Stokes of Rowley Ashworth for sending me this transcript, which should be available soon on the EAT website]
Monday, 4 March 2002
Trade Union Recognition - Appropriate Bargaining Unit
The transcript in R v Central Arbitration Committee, ex p. Kwik-Fit Ltd has been released, being a judicial review of a decision of the CAC.
The case involves a determination of what is the 'appropriate bargaining unit' in an application for compulsory trade union recognition.
The union, and the CAC (who found for the union), argued that the CAC's obligation was to decide whether the bargaining unit proposed by the union was an 'appropriate bargaining unit'. Only if it was not appropriate should the CAC go on to consider the alternative bargaining unit proposed by the employer.
The employer argued that the CAC's statutory duty was to determine 'the' appropriate bargaining unit, i.e. it had to weigh up the suitability of different bargaining units and decide which was best. It was not entitled just to look at the union's proposal (and hold whether it was appropriate or not) before looking at any other proposals.
The Administrative Court held that the truth lay somewhere in between. The CAC had been wrong in just looking at the union's proposal and deciding whether it was 'appropriate'. If this was the correct approach, the statutory wording would have been clearer. Thus the decision of the CAC must be set aside.
However, it is wrong to say the CAC must choose the most appropriate bargaining unit which is compatible with fair management from the evidence before it - the CAC must, instead, have regard to the purpose of the application for recognition and base its decision as to the most appropriate unit on the location and nature of the workers seeking union recognition. As the court states, "it is obviously no answer to a claim for recognition in Bolton that there is a more appropriate bargaining unit in Liverpool."
[Thanks to John Bowers QC of Littleton Chambers, who successfully represented Kwik-Fit]
The case involves a determination of what is the 'appropriate bargaining unit' in an application for compulsory trade union recognition.
The union, and the CAC (who found for the union), argued that the CAC's obligation was to decide whether the bargaining unit proposed by the union was an 'appropriate bargaining unit'. Only if it was not appropriate should the CAC go on to consider the alternative bargaining unit proposed by the employer.
The employer argued that the CAC's statutory duty was to determine 'the' appropriate bargaining unit, i.e. it had to weigh up the suitability of different bargaining units and decide which was best. It was not entitled just to look at the union's proposal (and hold whether it was appropriate or not) before looking at any other proposals.
The Administrative Court held that the truth lay somewhere in between. The CAC had been wrong in just looking at the union's proposal and deciding whether it was 'appropriate'. If this was the correct approach, the statutory wording would have been clearer. Thus the decision of the CAC must be set aside.
However, it is wrong to say the CAC must choose the most appropriate bargaining unit which is compatible with fair management from the evidence before it - the CAC must, instead, have regard to the purpose of the application for recognition and base its decision as to the most appropriate unit on the location and nature of the workers seeking union recognition. As the court states, "it is obviously no answer to a claim for recognition in Bolton that there is a more appropriate bargaining unit in Liverpool."
[Thanks to John Bowers QC of Littleton Chambers, who successfully represented Kwik-Fit]
Rothschild v Ako - Issue Estoppel
The Court of Appeal's decision in Rothschild v Ako is now available. The decision was handed down on Friday, 1st March 2002.
Facts
Mrs Ako lodged an unfair dismissal and race discrimination claim against Rothschild. After seeking advice from the CRE, she realised a claim should also have been brought against a possible transferee under TUPE. She therefore checked that no IT3 had been lodged, and checked in an old law book in her library (the book dating from1980) that there was no rule prohibiting her from withdrawing and re-issuing her claim. She then wrote to the tribunal to withdraw her first claim and, within a week, issued a new claim against both Rothschild and the putative transferee.
During that week, the tribunal issued its standard order dismissing the claim against Rothschild on withdrawal by the Applicant.
Issue
The employment tribunal found the subsequent claim against Rothschild had been disposed of, and that the rules of issue estoppel prevented her from bringing a fresh claim. It relied on the well-known authority of Barber v Staffordshire Council, which provides that once a case has been dismissed on withdrawal, that is the end of the matter - it does not matter why the Applicant chose to withdraw the claim.
Decision
The Court of Appeal held that a tribunal is obliged to examine the factual matrix to decide whether the Applicant had genuinely intended to abandon the claim. If she had intended to abandon the claim, the matter ends under principles of issue estoppel (and the reason, eg being wrongly advised as to the law, is irrelevant).
However, in this case, Mrs Ako had not intended to abandon her claim. The position was similar to the recent case of Sajid v Sussex Muslim Society, where the Applicant expressly reserved the right in the IT1 to re-issue his breach of contract claim in the High Court.
Accordingly the ET's decision would be set aside, and Mrs Ako would be permitted to proceed with her claim against Rothschild.
For a copy of the judgment, click here.
Facts
Mrs Ako lodged an unfair dismissal and race discrimination claim against Rothschild. After seeking advice from the CRE, she realised a claim should also have been brought against a possible transferee under TUPE. She therefore checked that no IT3 had been lodged, and checked in an old law book in her library (the book dating from1980) that there was no rule prohibiting her from withdrawing and re-issuing her claim. She then wrote to the tribunal to withdraw her first claim and, within a week, issued a new claim against both Rothschild and the putative transferee.
During that week, the tribunal issued its standard order dismissing the claim against Rothschild on withdrawal by the Applicant.
Issue
The employment tribunal found the subsequent claim against Rothschild had been disposed of, and that the rules of issue estoppel prevented her from bringing a fresh claim. It relied on the well-known authority of Barber v Staffordshire Council, which provides that once a case has been dismissed on withdrawal, that is the end of the matter - it does not matter why the Applicant chose to withdraw the claim.
Decision
The Court of Appeal held that a tribunal is obliged to examine the factual matrix to decide whether the Applicant had genuinely intended to abandon the claim. If she had intended to abandon the claim, the matter ends under principles of issue estoppel (and the reason, eg being wrongly advised as to the law, is irrelevant).
However, in this case, Mrs Ako had not intended to abandon her claim. The position was similar to the recent case of Sajid v Sussex Muslim Society, where the Applicant expressly reserved the right in the IT1 to re-issue his breach of contract claim in the High Court.
Accordingly the ET's decision would be set aside, and Mrs Ako would be permitted to proceed with her claim against Rothschild.
For a copy of the judgment, click here.
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