The Employment Appeal Tribunal, in Riley-Williams v Argos Ltd, gives guidance for tribunals when deciding whether or not a dismissal is automatically unfair for not permitting an employee to take reasonable time off to sit as a magistrate.
The main points to draw from the decision are:
• tribunals should not consider whether the employer prevented an employee from taking time off, but the extent to which the employer permitted the employee to take time off;
• in deciding what is reasonable, the tribunal must balance the factors listed in section 50(4) of the Employment Rights Act 1996. They are mandatory factors.
• time off for public duties is in a different category to time off for union activities, or time off for personal reasons (such as maternity or parental leave). Thus it is irrelevant to take account of the employer's compassionate leave policy as a factor in determining how much time is reasonable - there is a wider public interest involved for employees who want time off to sit as a magistrate;
• the test of reasonableness is an objective one, balancing out the interests of the employer, the employee and the public. It is incorrect to apply the 'range of reasonable responses' test.
Thursday, 3 July 2003
Wednesday, 2 July 2003
Age Discrimination Consultation
A consultation paper seeking views on legislation to prohibit age discrimination has been published by the DTI.
The paper, entitled 'Age Matters', seeks views on:
• the abolition of employers' mandatory retirement ages (dismissal at a given age) unless employers can objectively justify them;
• the possibility of a default retirement age of 70, at which employers could retire employees without having to justify dismissal on objective grounds;
• proposed legitimate aims which employers, exceptionally, could use to help justify the retention of a small number of age-related practices; and
• changes to the legislation regarding unfair dismissal and redundancy.
The consultation will last until 20th October 2003 and the government intends to enact the legislation (which will take the form of Regulations) by the end of 2004, to give businesses a clear two years to change policies before they commence at the end of 2006.
The paper, entitled 'Age Matters', seeks views on:
• the abolition of employers' mandatory retirement ages (dismissal at a given age) unless employers can objectively justify them;
• the possibility of a default retirement age of 70, at which employers could retire employees without having to justify dismissal on objective grounds;
• proposed legitimate aims which employers, exceptionally, could use to help justify the retention of a small number of age-related practices; and
• changes to the legislation regarding unfair dismissal and redundancy.
The consultation will last until 20th October 2003 and the government intends to enact the legislation (which will take the form of Regulations) by the end of 2004, to give businesses a clear two years to change policies before they commence at the end of 2006.
Thursday, 19 June 2003
Lawal: House of Lords Decision
I have just been told by John Bowers QC of Littleton Chambers that the House of Lords has overturned the Court of Appeal's decision in Lawal v Northen Spirit.
This means that the well-known employment QCs who sit as recorders in the EAT are no longer allowed to do so (unless they give up appearing as advocates in the EAT), due to the risk that they lay members with whom they sit will be influenced into confusing their status as advocate with judge.
The transcript is not yet on the House of Lords website: I will post a fuller summary once it is placed up there. I also understand judgment in MacDonald v Ministry of Defence (whether sexual orientation is sex discrimination under the SDA 1975) and Pearce v Mayfield (the same issue) are due for judgment today.
This means that the well-known employment QCs who sit as recorders in the EAT are no longer allowed to do so (unless they give up appearing as advocates in the EAT), due to the risk that they lay members with whom they sit will be influenced into confusing their status as advocate with judge.
The transcript is not yet on the House of Lords website: I will post a fuller summary once it is placed up there. I also understand judgment in MacDonald v Ministry of Defence (whether sexual orientation is sex discrimination under the SDA 1975) and Pearce v Mayfield (the same issue) are due for judgment today.
Lawal v Northern Spirit Ltd
Further to my earlier Email, the judgment is now available.
It is a very short judgment. The House of Lords holds that there is a real possibility of bias where a Queen's Counsel appears as representative in front of a division of the EAT where he has previously sat as part-time judge with one or both wing members.
At paragraph 23, the House of Lords state:
"...Like Pill LJ in the Court of Appeal we consider that the present practice in the EAT tends to undermine public confidence in the system. It should be discontinued. It follows that the present practice in the EAT should be assimilated to that in the Employment Tribunal by introducing a restriction on part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat."
It is a very short judgment. The House of Lords holds that there is a real possibility of bias where a Queen's Counsel appears as representative in front of a division of the EAT where he has previously sat as part-time judge with one or both wing members.
At paragraph 23, the House of Lords state:
"...Like Pill LJ in the Court of Appeal we consider that the present practice in the EAT tends to undermine public confidence in the system. It should be discontinued. It follows that the present practice in the EAT should be assimilated to that in the Employment Tribunal by introducing a restriction on part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat."
Homosexuals and the SDA 1975
The House of Lords has handed down its decision in the cases of MacDonald v Advocate General for Scotland and Pearce v Mayfield School.
The House of Lords resolved the two competing arguments as to whether homosexuals fall within the Sex Discrimination Act 1975. In five distinct judgments, the five Law Lords were unanimous in dismissing the appeals.
The argument in favour was that if an employer dismisses a male who is sexually attracted to men (ie a homosexual), but would not dismiss a female who is sexually attracted to men (ie a heterosexual), the man has been treated less favourably than the woman and so has been discriminated against on grounds of gender.
The contrary argument was that the two are not in the same position, i.e. there are material differences between the man and the woman. Following the approach in Shamoon, the appropriate comparator would not be woman who was attracted to people of the opposite gender, but a woman who was attracted to someone of the same gender.
The House of Lords unanimously preferred the latter argument, holding that homosexuals are not protected by the provisions of the SDA 1975. If somebody is dismissed because they are homosexual, this is gender-neutral treatment by the employer provided it applies to both homosexual men and homosexual women. The appropriate comparator for a homosexual man is a homosexual woman.
Of just as much importance as the ratio of the case is the fact that the House of Lords stated that Burton v De Vere Hotels (the 'Bernard Manning' case) was wrongly decided. The House of Lords state that whilst an employer's failure to prevent third parties committing acts of sexual/racial harassment might amount to discrimination by the employer, it will only do so if the employer failed to take such steps because of the employee's sex/race. This has significant ramifications for discrimination claims generally, and also for the Liversidge cases where police constables are bringing sex discrimination claims against their chief constables.
The House of Lords resolved the two competing arguments as to whether homosexuals fall within the Sex Discrimination Act 1975. In five distinct judgments, the five Law Lords were unanimous in dismissing the appeals.
The argument in favour was that if an employer dismisses a male who is sexually attracted to men (ie a homosexual), but would not dismiss a female who is sexually attracted to men (ie a heterosexual), the man has been treated less favourably than the woman and so has been discriminated against on grounds of gender.
The contrary argument was that the two are not in the same position, i.e. there are material differences between the man and the woman. Following the approach in Shamoon, the appropriate comparator would not be woman who was attracted to people of the opposite gender, but a woman who was attracted to someone of the same gender.
The House of Lords unanimously preferred the latter argument, holding that homosexuals are not protected by the provisions of the SDA 1975. If somebody is dismissed because they are homosexual, this is gender-neutral treatment by the employer provided it applies to both homosexual men and homosexual women. The appropriate comparator for a homosexual man is a homosexual woman.
Of just as much importance as the ratio of the case is the fact that the House of Lords stated that Burton v De Vere Hotels (the 'Bernard Manning' case) was wrongly decided. The House of Lords state that whilst an employer's failure to prevent third parties committing acts of sexual/racial harassment might amount to discrimination by the employer, it will only do so if the employer failed to take such steps because of the employee's sex/race. This has significant ramifications for discrimination claims generally, and also for the Liversidge cases where police constables are bringing sex discrimination claims against their chief constables.
Wednesday, 18 June 2003
Amendments to Race Relations Act
The Race Relations Act 1976 (Amendment) Regulations 2003 have been laid before parliament.
If passed, they are due to come into force on 19th July 2003. The amendments are required under the EC Racial Treatment Directive of July 2000 which required all countries to amend domestic legislation by - guess when - 19th July 2003.
The main changes are:
• setting out a new definition of indirect discrimination, bringing it into line with the definition under the Sex Discrimination Act 1975;
• creating a new definition of harassment and making harassment an express offence;
• introducing a new defence where race is a "genuine and determining requirement" for the job
• statutory reversal of the burden of proof, in line with s63A of the SDA 1975, so that if an Applicant proves a prima facie case of indirect discrimination, the burden shifts to the Respondent to prove that it was not racially discriminatory
If passed, they are due to come into force on 19th July 2003. The amendments are required under the EC Racial Treatment Directive of July 2000 which required all countries to amend domestic legislation by - guess when - 19th July 2003.
The main changes are:
• setting out a new definition of indirect discrimination, bringing it into line with the definition under the Sex Discrimination Act 1975;
• creating a new definition of harassment and making harassment an express offence;
• introducing a new defence where race is a "genuine and determining requirement" for the job
• statutory reversal of the burden of proof, in line with s63A of the SDA 1975, so that if an Applicant proves a prima facie case of indirect discrimination, the burden shifts to the Respondent to prove that it was not racially discriminatory
Monday, 16 June 2003
New EAT Decisions
Mansi & Mansi v Straw (HHJ Birtles, 20/5/03)
A short case which is authority for the proposition that tribunals are not obliged to make an award of compensation under regulation 11 of TUPE for failure to consult with affected employees. It is lawful to make a nil award.
________________________________________
X v Y (HHJ Peter Clark, 11/6/03)
The Applicant, a male adult, worked with young people on probation. Whilst off duty, he "pulled into a lay-by where there was a transport café and went to the toilet. There he engaged in consensual sexual activity with a man of about his age whom he had never met before". He was arrested and accepted a caution for gross indecency. He lied to the police about what he did for a job (not revealing he worked with young people) and sought to withhold the fact of the conviction from his employers. When they discovered it, they dismissed him - not for the underlying offence but for lying to the police and placing the employer at risk of embarrassing publicity.
The tribunal found the dismissal was fair. The Applicant appealed on the basis that the tribunal had failed to take into account article 8 of the Human Rights Act 1998, namely a right to respect for his "private and family life".
The EAT held that article 8 only protects acts that are "private". They held:
"We think that the offence known as ‘cottaging’ falls on the other side of that dividing line. The offence here took place in toilets to which the public had access. The activities in which the Applicant engaged were ‘genuinely’ in public, to paraphrase the Court in ADT."
Accordingly article 8 was immaterial and the tribunal's failure to consider it was not an error of law.
________________________________________
Emms v UCATT (HHJ Ansell, 28/3/03)
An entirely uninteresting appeal against a tribunal's refusal to grant a costs warning. It is, however, worth a mention because:
(a) the Appellant's representative was 'Mr A Scargill' of the National Union of Mineworkers; and,
(b) costs were ordered against the Appellant on the grounds the appeal was 'unnecessary'.
Of course, it could be said it was just as unnecessary for me to report this case. But I couldn't resist it!
Wednesday, 11 June 2003
Data Protection Code Part 3: Monitoring At Work
The long-awaited Part 3 of the Data Protection Code on Employment Practices, dealing with Monitoring at Work, has been issued.
The four parts are:
Part 1 - Recruitment and Training (see bulletin 14/3/02)
Part 2 - Record Management (see bulletin 3/9/02)
Part 3 - Monitoring At Work (today)
Part 4 - Medical Records (forthcoming)
The Code is 55 pages long. The Supplementary Guidance is a further 49 pages - giving 104 pages in total. Helpfully, the key sections and summaries have been highlighted in a gray colour which does prevents printing and which makes them almost impossible to read on the screen.
In summary, the Code provides:
• employers can monitor workers when the advantage to the business outweighs the intrusion into the workers' affairs;
• employers should normally carry out an impact assessment before monitoring, weighing up the advantage v intrusion equation;
• workers should be told if they are being monitored;
• information discovered through monitoring should normally only be used for the purpose for which the monitoring was carried out;
• the information discovered should be kept secure, which may mean only letting one or two people have access to it
• employers should be careful when monitoring personal communications such as Emails which are clearly personal
• employers should not undertake covert monitoring except in the rarest circumstances where it is used for the prevention or detection of crime, it has been authorised at the highest level of the business, and where there is a risk that notifying workers of the monitoring would frustrate the purpose of the monitoring.
Why does that need 104 pages? Answers on a postcard, please.
Tuesday, 10 June 2003
New EAT Decisions
[A job advertisement for Thomas Eggar, Horsham, appears below]
The following decisions of the Employment Appeal Tribunal have been placed on the EAT website today.
Ogilvie v Neyrfor-Weir Ltd (Burton P., 15/5/03)
An interesting case where an oil executive was told he had to go abroad over the forthcoming bank holiday weekend, when he was expecting to attend his sister-in-law's engagement party. He objected to the short notice, and his superior told him in a heated exchange (with the door open) that he was a "fucking cunt" and would be dismissed if he did not miss the engagement party and travel abroad. Mr Ogilvie resigned and claimed constructive dismissal. The tribunal held that the employer's conduct did not amount to a constructive dismissal.
The EAT's decision (substituting a finding of unfair dismissal) is of interest for two reasons:
First, the Appellant sought to introduce a new ground of appeal at the hearing. In line with Miriki v General Council of the Bar (see bulletin of 28/12/01), the EAT refused permission to amend. Burton P. stated that it was not appropriate to introduce new grounds of appeal "even if they are one or two days late" and that "it is a matter of importance that, save in exceptional circumstances, amendments to Notices of Appeal should not be allowed out of time" (para 18). If followed, this would seem to rule out the very common practice of lodging vague grounds of appeal, so as to meet the 42-day time limit, and then substituting detailed grounds at the preliminary hearing stage.
Second, the EAT made the point that words (such as "fucking cunt") that might be acceptable in the heat of a moment on an oil rig are not necessarily acceptable in the boardroom or the office of a senior oil company executive. The tribunal was wrong to adopt a blanket approach to the use of profanity in particular industries.
Grant v BSS Group (Mr Commissioner Howell, 13/3/03)
This is authority for the proposition that the failure to undertake identical or similar levels of consultation with the entire redundancy pool, even after provisionally selecting one person from the pool for redundancy, renders the dismissal unfair.
This is an important point: it is common practice for lawyers / HR advisors to recommend that individual consultation need take place only with those who have been provisionally selected for redundancy following a matrix selection process. In this case, the EAT stated that the failure to consult with all of the pool - even the one who was not provisionally selected for redundancy - made the dismissal unfair.
The facts of the case dealt with a pool of two employees. I suspect that the case may be distinguished in situations where there is a larger selection pool. Certainly lawyers and employers may need to re-think their standard approach to redundancy consultation in the light of this decision.
The following decisions of the Employment Appeal Tribunal have been placed on the EAT website today.
Ogilvie v Neyrfor-Weir Ltd (Burton P., 15/5/03)
An interesting case where an oil executive was told he had to go abroad over the forthcoming bank holiday weekend, when he was expecting to attend his sister-in-law's engagement party. He objected to the short notice, and his superior told him in a heated exchange (with the door open) that he was a "fucking cunt" and would be dismissed if he did not miss the engagement party and travel abroad. Mr Ogilvie resigned and claimed constructive dismissal. The tribunal held that the employer's conduct did not amount to a constructive dismissal.
The EAT's decision (substituting a finding of unfair dismissal) is of interest for two reasons:
First, the Appellant sought to introduce a new ground of appeal at the hearing. In line with Miriki v General Council of the Bar (see bulletin of 28/12/01), the EAT refused permission to amend. Burton P. stated that it was not appropriate to introduce new grounds of appeal "even if they are one or two days late" and that "it is a matter of importance that, save in exceptional circumstances, amendments to Notices of Appeal should not be allowed out of time" (para 18). If followed, this would seem to rule out the very common practice of lodging vague grounds of appeal, so as to meet the 42-day time limit, and then substituting detailed grounds at the preliminary hearing stage.
Second, the EAT made the point that words (such as "fucking cunt") that might be acceptable in the heat of a moment on an oil rig are not necessarily acceptable in the boardroom or the office of a senior oil company executive. The tribunal was wrong to adopt a blanket approach to the use of profanity in particular industries.
Grant v BSS Group (Mr Commissioner Howell, 13/3/03)
This is authority for the proposition that the failure to undertake identical or similar levels of consultation with the entire redundancy pool, even after provisionally selecting one person from the pool for redundancy, renders the dismissal unfair.
This is an important point: it is common practice for lawyers / HR advisors to recommend that individual consultation need take place only with those who have been provisionally selected for redundancy following a matrix selection process. In this case, the EAT stated that the failure to consult with all of the pool - even the one who was not provisionally selected for redundancy - made the dismissal unfair.
The facts of the case dealt with a pool of two employees. I suspect that the case may be distinguished in situations where there is a larger selection pool. Certainly lawyers and employers may need to re-think their standard approach to redundancy consultation in the light of this decision.
New Archive Service
I have put together an archive for these bulletins. To access it, visit www.danielbarnett.co.uk/archive-index.html
It is possible that excessive demand when this bulletin arrives may mean you cannot access the page (and, yes, sometimes I do live in the real world!). If that happens, please try again later.
It is possible that excessive demand when this bulletin arrives may mean you cannot access the page (and, yes, sometimes I do live in the real world!). If that happens, please try again later.
Monday, 9 June 2003
Dunnachie
As promised in my bulletin of 15th May, I now enclose the link for the Dunnachie v Kingston upon Hull City Council decision. There was also a summary of it in this morning's Times Law Reports.
The bulletin of 15th May is reproduced below.
The bulletin of 15th May is reproduced below.
Wednesday, 4 June 2003
Correction to Previous Bulletin
In my bulletin of 23rd May 2003 ('Compromise Agreements - New Approach by Inland Revenue', reproduced below), I stated that the Revenue's new approach to compromise agreements might be out of date because of new wording in the Income Tax (Earning and Pensions) Act 2003.
That created a flurry of protest from over 100 people (seriously!), all of whom told me they thought I was wrong. So I've looked at it again, and I agree! Irrespective of whether the Revenue's approach is lawful (which has, as far as I am aware, not yet been tested), the different wording in the new Act would not seem to affect the legality of its approach.
That created a flurry of protest from over 100 people (seriously!), all of whom told me they thought I was wrong. So I've looked at it again, and I agree! Irrespective of whether the Revenue's approach is lawful (which has, as far as I am aware, not yet been tested), the different wording in the new Act would not seem to affect the legality of its approach.
Unfair Dismissal - Reasonable Investigation
The Court of Appeal has handed down its decision in The Post Office (Consignia plc) v Burkett.
It is authority for the proposition that tribunals, when deciding whether an employer had reasonable grounds for its belief in misconduct, must set out and analyse the facts as found by the employer at the time of the dismissal (assuming the employer undertook a reasonable investigation).
It is an error of law to set out facts as found by the tribunal, unless a clear distinction is drawn between what the tribunal decides occurred, and what the tribunal decides the employer thought occurred.
Mr Burkett was dismissed for deliberately overfilling a Post Office van with oil, causing an explosion. The tribunal found that there was no evidence to support the fact that he had overfilled it deliberately and held the dismissal to be unfair. The Court of Appeal (after the EAT dismissed the original appeal) allowed the appeal on the grounds that the tribunal had substituted its view, whereas it should have looked at the facts that the Post Office had found after the Post Office's original disciplinary investigation, and decided whether those grounds for belief in misconduct were reasonable.
It is authority for the proposition that tribunals, when deciding whether an employer had reasonable grounds for its belief in misconduct, must set out and analyse the facts as found by the employer at the time of the dismissal (assuming the employer undertook a reasonable investigation).
It is an error of law to set out facts as found by the tribunal, unless a clear distinction is drawn between what the tribunal decides occurred, and what the tribunal decides the employer thought occurred.
Mr Burkett was dismissed for deliberately overfilling a Post Office van with oil, causing an explosion. The tribunal found that there was no evidence to support the fact that he had overfilled it deliberately and held the dismissal to be unfair. The Court of Appeal (after the EAT dismissed the original appeal) allowed the appeal on the grounds that the tribunal had substituted its view, whereas it should have looked at the facts that the Post Office had found after the Post Office's original disciplinary investigation, and decided whether those grounds for belief in misconduct were reasonable.
Tuesday, 20 May 2003
Dispute Resolution: Further Delay
According to a report on Croner's Human Resource Centre website, the government has warned of yet further delay before the mandatory statutory dispute resolution procedures come into force.
These procedures, which insert minimum disciplinary and grievance procedure into all contracts of employment, were introduced in Part 3 of the Employment Act 2002. They were originally expected to come into force in Spring 2003. That was put back to Spring 2004 and, according to Croner, has now been put back further until Autumn 2004.
These procedures, which insert minimum disciplinary and grievance procedure into all contracts of employment, were introduced in Part 3 of the Employment Act 2002. They were originally expected to come into force in Spring 2003. That was put back to Spring 2004 and, according to Croner, has now been put back further until Autumn 2004.
Thursday, 15 May 2003
New Tax Act
The Income Tax (Earnings and Pensions) Bill, referred to in my bulletin dated 5/12/02, has now been enacted and is available on the internet. It is known, unsurprisingly, as the Income Tax (Earnings and Pensions) Act 2003. It came into force on 6th April 2003.
It repeals and replaces the dearly loved employment sections of the Income and Corporation Taxes Act 1988 (including ss19 and 148). The substantive law is essentially unchanged; the wording has been tidied up and the section numbers now differ.
The two sections of the ITEPA 2003 which are of principal relevance to employment lawyers are:=
- section 6, which charges tax on employment income. This is defined, in section 62, as:
(a) any salary, wages or fee,
(b) any gratuity or other profit or incidental benefit of any kind obtained by the employee if it is money or money E28099s worth, or
(c) anything else that constitutes an emolument of employment.
and
- section 401, which charges tax on payments made in respect of E2809Ct he termination of a person E28099s employment E2809D insofar as they exceed C2A330,000 (section 403).=
It is important that firms review their compromise agreements to ensure they contain the correct statutory references.
It repeals and replaces the dearly loved employment sections of the Income and Corporation Taxes Act 1988 (including ss19 and 148). The substantive law is essentially unchanged; the wording has been tidied up and the section numbers now differ.
The two sections of the ITEPA 2003 which are of principal relevance to employment lawyers are:=
- section 6, which charges tax on employment income. This is defined, in section 62, as:
(a) any salary, wages or fee,
(b) any gratuity or other profit or incidental benefit of any kind obtained by the employee if it is money or money E28099s worth, or
(c) anything else that constitutes an emolument of employment.
and
- section 401, which charges tax on payments made in respect of E2809Ct he termination of a person E28099s employment E2809D insofar as they exceed C2A330,000 (section 403).=
It is important that firms review their compromise agreements to ensure they contain the correct statutory references.
Johnson v Unisys Damages
THIS IS AN IMPORTANT BULLETIN
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplem entary bulletin with the link when it becomes available.
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplem entary bulletin with the link when it becomes available.
Johnson v Unisys Damages
THIS IS AN IMPORTANT BULLETIN
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplementary bulletin with the link when it becomes available.
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplementary bulletin with the link when it becomes available.
Wednesday, 14 May 2003
Draft Disability Discrimination Regulations
The draft Disability Discrimination Act 1995 (Amendment) Regulations 2003 h ave been published on the Stationery Office website.
On a quick glance, the snappily titled Regulations include some pretty wide-sweeping changes, including a change to the definition of 'discrimination', a prohibition on harassment, the (well-known) abolition of the small business exemption, minor tweaks to rules on discrimination against contract workers, an extension of the act to police, barristers and advocates, and add itional regulation dealing with what may - and may not - amount to reasonable adjustments.
If anybody would like to produce a summary of the precise changes made by the Regulations, I will happily distribute it. I have no intention of doing it myself!
The draft Regulations are to come into force (subject to being passed) on 1st October 2004.
On a quick glance, the snappily titled Regulations include some pretty wide-sweeping changes, including a change to the definition of 'discrimination', a prohibition on harassment, the (well-known) abolition of the small business exemption, minor tweaks to rules on discrimination against contract workers, an extension of the act to police, barristers and advocates, and add itional regulation dealing with what may - and may not - amount to reasonable adjustments.
If anybody would like to produce a summary of the precise changes made by the Regulations, I will happily distribute it. I have no intention of doing it myself!
The draft Regulations are to come into force (subject to being passed) on 1st October 2004.
Tuesday, 13 May 2003
New EAT Decision - another Liversidge case
[A job advertisement for Whittles, Manchester, appears at the end of this bulletin]
Chief Constable of Kent County Constabulary v Baskerville (HHJ McMullen, 14/4/03)
-------------------------------------------------
Another decision on the mess created by the Liversidge and McGlennon series of cases, holding that chief constables are not vicariously liable for acts of harassment by one police officer upon another, but may be liable for discrimination in the discharge of administrative or management functions carried out by superior officers on behalf of the chief constable.
This case repeats that distinction but emphsises that it will normally be (a) inappropriate to strike out these cases before hearing the evidence, and (b) will normally be appropriate to allow amendments to include a Burton v De Vere argument.
Interestingly, whilst not expressly overruling this aspect of McGlennon, the EAT casts doubt upon its previous decision that the Equal Treatment Directive cannot be used as an interpretative tool in giving a purposive approach to construing the relevant aspects of the SDA 1975.
For further information on the Liversidge series of cases, see bulletins da= ted 25/7/02 and 11/12/02.
Chief Constable of Kent County Constabulary v Baskerville (HHJ McMullen, 14/4/03)
-------------------------------------------------
Another decision on the mess created by the Liversidge and McGlennon series of cases, holding that chief constables are not vicariously liable for acts of harassment by one police officer upon another, but may be liable for discrimination in the discharge of administrative or management functions carried out by superior officers on behalf of the chief constable.
This case repeats that distinction but emphsises that it will normally be (a) inappropriate to strike out these cases before hearing the evidence, and (b) will normally be appropriate to allow amendments to include a Burton v De Vere argument.
Interestingly, whilst not expressly overruling this aspect of McGlennon, the EAT casts doubt upon its previous decision that the Equal Treatment Directive cannot be used as an interpretative tool in giving a purposive approach to construing the relevant aspects of the SDA 1975.
For further information on the Liversidge series of cases, see bulletins da= ted 25/7/02 and 11/12/02.
Friday, 2 May 2003
New EAT Decisions
[A job advertisement for Islington Law Centre appears at the end of this bulletin]
Nottinghamshire Healthcare NHS Trust v Prison Officers' Association
(&716 others)
(Keith J., 4/4/03)
An important decision dealing with the common practice of issuing an originating application attaching a list of multiple applicants (in this case, 716 members of the Prison Officers' Association).
The POA, facing a time-limit problem, issued an IT1 claiming unfair dismissal and failure to consult on behalf of 716 members. It subsequently wrote to those members asking them to confirm they wanted the claims to proceed. It was common ground that those who did not reply had their claims treated as withdrawn.
336 members gave approval after the time limit had expired. The employer applied to strike out their claims on the basis that:
(a) the originating applications had been presented without their authority;
(b) when they purported to ratify the claims, time had expired; and,
(c) because time had expired, the purported ratification was of no effect.
After extensive consideration of the authorities, the EAT held that the applications were valid: the fact that the ratification was provided after expiry of the time limit did not mean that the Originating Applications lodged within the time period were of no effect.
Ree v Redrow Homes (HHJ Prophet, 9/4/03)
A short decision which extends the Burton v De Vere principle (i.e. that an employer can be liable for sex and race discrimination by non-employees, if he has some degree of control over those
non-employees) to claims under the Disability Discrimination Act 1995.
Recognising that the decision was controversial (because of different wording in the DDA which, on its face, makes a Burton v De Vere argument difficult), the EAT granted permission to appeal to the Court of Appeal.
Pacific Direct v Riaz (HHJ Peter Clark, 14/4/03)
Another short decision, being authority for the propositions that:
(a) when an unfairly dismissed employee suffers a fire in her house,
at which she has set up a new business to try to mitigate her losses, that fire does not (of itself) break the chain of causation for loss of earnings; and,
(b) tribunals are not obliged to accept an employee's estimate of future earnings when determining future loss of earnings, particularly where that estimate is given off the cuff in oral evidence. They are entitled to make findings more favourable to the Applicant than her own projections.
Nottinghamshire Healthcare NHS Trust v Prison Officers' Association
(&716 others)
(Keith J., 4/4/03)
An important decision dealing with the common practice of issuing an originating application attaching a list of multiple applicants (in this case, 716 members of the Prison Officers' Association).
The POA, facing a time-limit problem, issued an IT1 claiming unfair dismissal and failure to consult on behalf of 716 members. It subsequently wrote to those members asking them to confirm they wanted the claims to proceed. It was common ground that those who did not reply had their claims treated as withdrawn.
336 members gave approval after the time limit had expired. The employer applied to strike out their claims on the basis that:
(a) the originating applications had been presented without their authority;
(b) when they purported to ratify the claims, time had expired; and,
(c) because time had expired, the purported ratification was of no effect.
After extensive consideration of the authorities, the EAT held that the applications were valid: the fact that the ratification was provided after expiry of the time limit did not mean that the Originating Applications lodged within the time period were of no effect.
Ree v Redrow Homes (HHJ Prophet, 9/4/03)
A short decision which extends the Burton v De Vere principle (i.e. that an employer can be liable for sex and race discrimination by non-employees, if he has some degree of control over those
non-employees) to claims under the Disability Discrimination Act 1995.
Recognising that the decision was controversial (because of different wording in the DDA which, on its face, makes a Burton v De Vere argument difficult), the EAT granted permission to appeal to the Court of Appeal.
Pacific Direct v Riaz (HHJ Peter Clark, 14/4/03)
Another short decision, being authority for the propositions that:
(a) when an unfairly dismissed employee suffers a fire in her house,
at which she has set up a new business to try to mitigate her losses, that fire does not (of itself) break the chain of causation for loss of earnings; and,
(b) tribunals are not obliged to accept an employee's estimate of future earnings when determining future loss of earnings, particularly where that estimate is given off the cuff in oral evidence. They are entitled to make findings more favourable to the Applicant than her own projections.
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