This is the first decided case that I am aware of dealing with a party's ability to pay costs.
Since 1st October 2004, tribunals (and the EAT) have been entitled to take into account the paying party's ability to pay when deciding what sum to award in costs. This reversed the pre-existing position, as stated by the Court of Appeal in Kovac v Queen Mary & Westfield College.
In a decision published today, Burton P. had to decide the issues of costs in the EAT. He states (at para. 38) that the following two factors are relevant when taking into account a Claimant's ability to pay costs:
- that the Claimant has recovered a sum of money as part of the proceedings (in this case, a basic award of £2,520); and,
- that any legal fees the Claimant is ordered to pay is likely to be met by the trade union which was funding his employment tribunal claim.
Also of interest is that the EAT made it very clear that the costs of adjournments should always, if possible, be decided at the time of the decision to adjourn and shoud not be reserved (para. 63) - although a caveat should be added that it may not always be possible to know what additional costs are incurred (particularly if Counsel will be acting on a refresher basis at the resumed hearing, and that fee still has to be negotiated).
Walker v Heathrow Refuelling Services Co Ltd
Friday, 5 November 2004
Wednesday, 3 November 2004
ACAS publishes new booklet on Stress at Work
Acas has, this morning, published a new booklet on Stress at Work.
As always, it is a model of good practice, very readable and has useful worked examples.
I suspect it will be used in civil PI claims as evidence of the standard of reasonable care, as well as in tribunals as evidence of what may constitute a reasonable adjustment in DDA cases.
http://www.acas.org.uk/publications/b18.html
As always, it is a model of good practice, very readable and has useful worked examples.
I suspect it will be used in civil PI claims as evidence of the standard of reasonable care, as well as in tribunals as evidence of what may constitute a reasonable adjustment in DDA cases.
http://www.acas.org.uk/publications/b18.html
Tuesday, 26 October 2004
New EAT Decisions
Porn and Pensions
Two new EAT cases today: one on porn, one on pensions. No prizes for guessing which will have the highest click-through rate!
Daniel Barnett
Office Porn
The EAT has held that it amounts to sex discrimination for men to download porn in the office, if there is a woman in the room, unless the woman has participated in, or enjoyed, the downloading.
It overturned a tribunal decision that there was no discrimination on grounds of sex because the woman employee had not complained at the time.
Applying the Barton v Investec Guidelines, the EAT held that downloading porn in a place where it could be seen by a woman gave rise to a prima facie case of less favourable treatment (by affecting the woman's dignity and creating an intimidating atmosphere). This shifts the burden of proof onto the employer to establish a non-discriminatory reason, such as the woman was party to, or enjoyed, what was going on.
On the facts of the case, the employer had been debarred from defending, so the shifting of the burden of proof meant that the EAT substituted a finding of sex discrimination.
Moonsar v Fiveways Express
Calculating Pensions Losses
Last year, a committee of employment tribunal chairmen developed the 3rd edition of the Employment Tribunal: Compensation for Loss of Pension Rights booklet (see bulletin 21/11/03).
This booklet replaced the much-criticised 2nd edition, published in 1992.
The Employment Appeal Tribunal has held that it is an error of law for a tribunal to adopt the pension loss calculations set out in the Guidelines if the parties have their own credible evidence relating to pension losses. The Guidelines, say the EAT, are a fall-back position only if the parties do not have their own evidence, or if their own evidence is not credible.
Port of Tilbury v Birch
Two new EAT cases today: one on porn, one on pensions. No prizes for guessing which will have the highest click-through rate!
Daniel Barnett
Office Porn
The EAT has held that it amounts to sex discrimination for men to download porn in the office, if there is a woman in the room, unless the woman has participated in, or enjoyed, the downloading.
It overturned a tribunal decision that there was no discrimination on grounds of sex because the woman employee had not complained at the time.
Applying the Barton v Investec Guidelines, the EAT held that downloading porn in a place where it could be seen by a woman gave rise to a prima facie case of less favourable treatment (by affecting the woman's dignity and creating an intimidating atmosphere). This shifts the burden of proof onto the employer to establish a non-discriminatory reason, such as the woman was party to, or enjoyed, what was going on.
On the facts of the case, the employer had been debarred from defending, so the shifting of the burden of proof meant that the EAT substituted a finding of sex discrimination.
Moonsar v Fiveways Express
Calculating Pensions Losses
Last year, a committee of employment tribunal chairmen developed the 3rd edition of the Employment Tribunal: Compensation for Loss of Pension Rights booklet (see bulletin 21/11/03).
This booklet replaced the much-criticised 2nd edition, published in 1992.
The Employment Appeal Tribunal has held that it is an error of law for a tribunal to adopt the pension loss calculations set out in the Guidelines if the parties have their own credible evidence relating to pension losses. The Guidelines, say the EAT, are a fall-back position only if the parties do not have their own evidence, or if their own evidence is not credible.
Port of Tilbury v Birch
Monday, 18 October 2004
Is 'length of service' automatic justification for different pay for men and women?
The Court of Appeal has, today, published its judgment in Cadman v HSE (judgment was officially handed down last week, on Friday, 15th October).
Ms Cadman received less pay than men in the same grade as her at the Health & Safety Executive. But they had been employed for longer, which was the reason they were paid more.
It was common ground that in this country (and across the EC), the length of service of female workers, taken as a whole, is less than that of male workers.
The employment tribunal, relying on the ECJ case of Danfoss, held that the use of length of service as a criterion in a pay system does not require specific justification.
The Court of Appeal analysed subsequent decisions of the ECJ in detail. It noted that there have been indications in subsequent decisions which would seem to require justification for a 'length of service' criterion.
Although Danfoss has never been expressly departed from, the Court of Appeal noted that the ECJ has a tendency to just ignore previous decisions it dislikes rather than expressly overrule or depart from them. Indeed, in all the years of the ECJ's existence, there is only one recorded instance of the ECJ expresly overruling its own previous decision!
Thus the fact that some subsequent cases had cast doubt meant that the Danfoss decision had to be viewed with caution.
The Court of Appeal accordingly remitted the issue to the ECJ, for the ECJ to decide whether the use of 'length of service' as a factor in a pay system requires objective justification.
Cadman v HSE
Ms Cadman received less pay than men in the same grade as her at the Health & Safety Executive. But they had been employed for longer, which was the reason they were paid more.
It was common ground that in this country (and across the EC), the length of service of female workers, taken as a whole, is less than that of male workers.
The employment tribunal, relying on the ECJ case of Danfoss, held that the use of length of service as a criterion in a pay system does not require specific justification.
The Court of Appeal analysed subsequent decisions of the ECJ in detail. It noted that there have been indications in subsequent decisions which would seem to require justification for a 'length of service' criterion.
Although Danfoss has never been expressly departed from, the Court of Appeal noted that the ECJ has a tendency to just ignore previous decisions it dislikes rather than expressly overrule or depart from them. Indeed, in all the years of the ECJ's existence, there is only one recorded instance of the ECJ expresly overruling its own previous decision!
Thus the fact that some subsequent cases had cast doubt meant that the Danfoss decision had to be viewed with caution.
The Court of Appeal accordingly remitted the issue to the ECJ, for the ECJ to decide whether the use of 'length of service' as a factor in a pay system requires objective justification.
Cadman v HSE
Monday, 11 October 2004
ACAS E-Learning Information and Consultation
ACAS has just published its Electronic Learning (E-Learning) Guide on the new Information and Consultation laws. As readers will know, they start to come into force (for large businesses) in April 2005.
This is the second E-Learning Guide ACAS has produced (the first was on discipline and grievance procedures).
They can be accessed for free on ACAS's website, although visitors need to register first.
http://www.acas.org.uk/elearning/
This is the second E-Learning Guide ACAS has produced (the first was on discipline and grievance procedures).
They can be accessed for free on ACAS's website, although visitors need to register first.
http://www.acas.org.uk/elearning/
Thursday, 30 September 2004
New EAT Procedural Rules
The government has published its response to the recent Public Consultation on proposed amendments to the EAT Rules of Procedure. As a result, the final amendments have been laid before parliament and come into force tomorrow (1st October).
The changes are as follows:
- introduction of the overriding objecting into the EAT procedural rules;
- it will become mandatory for the Appellant to lodge the Claim Form and Response Form at the same time as lodging the Notice of Appeal and ET decision
- the time period for lodging an appeal will remain at 42 days after written reasons (or notification of the decision, if written reasons are not requested) are sent out. The government has withdrawn its proposal to start the 42-day time period running from the date of verbal reasons, if a verbal decision is given at the tribunal hearing;
- procedures for 'weeding out' meritless appeals are being tightened up, but the proposal for a 'permission to appeal' system is not being implemented;
- provision will be made for temporary restricted reporting orders;
- costs rules in the EAT will be brought into line with the new costs rules in employment tribunals, including provision for wasted costs orders against representatives and preparation time orders in favour of unrepresented litigants.
The Employment Appeal Tribunal (Amendment) Rules 2004
Government response to consultation paper (much easier to read!)
The changes are as follows:
- introduction of the overriding objecting into the EAT procedural rules;
- it will become mandatory for the Appellant to lodge the Claim Form and Response Form at the same time as lodging the Notice of Appeal and ET decision
- the time period for lodging an appeal will remain at 42 days after written reasons (or notification of the decision, if written reasons are not requested) are sent out. The government has withdrawn its proposal to start the 42-day time period running from the date of verbal reasons, if a verbal decision is given at the tribunal hearing;
- procedures for 'weeding out' meritless appeals are being tightened up, but the proposal for a 'permission to appeal' system is not being implemented;
- provision will be made for temporary restricted reporting orders;
- costs rules in the EAT will be brought into line with the new costs rules in employment tribunals, including provision for wasted costs orders against representatives and preparation time orders in favour of unrepresented litigants.
The Employment Appeal Tribunal (Amendment) Rules 2004
Government response to consultation paper (much easier to read!)
And yet more happening on 1st October - a whole day's notice from the DTI!
The DTI has just announced that it will be bringing some of the newly passed Employment Relations Act 2004 (which received Royal Assent on 16th September 2004) into force tomorrow. The sections coming into force are:
- extending the role of a representative at a disciplinary / grievande hearing (s37 of the new Act, replacing s10 of the Employment Relations Act 1999);
- extending the EAT's jurisdiction to cover appeals from claims brought for breach of the right to allow a representative at disciplinary or grievance hearings (through a drafting omission, technically the EAT has never had jurisdiction to hear such appeals, meaning that cases on the point are ultra vires) (s38 of the new Act)
- introducing a right for workers not to be offered an inducement not to join a trade union, and extending protection against suffering a detriment on trade union grounds (ss29-32 of the new Act).
Employment Relations Act 2004
- extending the role of a representative at a disciplinary / grievande hearing (s37 of the new Act, replacing s10 of the Employment Relations Act 1999);
- extending the EAT's jurisdiction to cover appeals from claims brought for breach of the right to allow a representative at disciplinary or grievance hearings (through a drafting omission, technically the EAT has never had jurisdiction to hear such appeals, meaning that cases on the point are ultra vires) (s38 of the new Act)
- introducing a right for workers not to be offered an inducement not to join a trade union, and extending protection against suffering a detriment on trade union grounds (ss29-32 of the new Act).
Employment Relations Act 2004
Wednesday, 29 September 2004
New EAT Decisions
Relaxed Approach to Unfair Dismissal Time Limits
The EAT has upheld a tribunal's decision that it was not reasonably practicable for an employee to present her claim within three months when she had been advised, by a CAB, to exhaust her employer's internal appeals procedure first.
The EAT held that 'reasonable practicability' is a question of fact, and that there was no rule of law stating that incorrect or incomplete advice from an advisor meant that it was reasonably practicable to present a claim in time.
The focus, according to the EAT (following the Court of Appeal's decision in London International College v Sen) is to concentrate on the state of mind of the employee, and the extent to which she understood her position (para. 21). If she did not understand a claim must be presented within three months, it is not reasonably practicable to do so.
This case is only likely to be relevant to dismissals which were contemplated before 1st October 2004, as the new statutory dismissal procedures provide for an automatic extension of time if the employee reasonably believes the employer's dismissal procedures to be continuing on the date the three-month time limit expires.
Marks and Spencer plc v Williams-Ryan CA 2005
Costs: Giving Reasons for the Assessment
An example of a case where the tribunal decided to award costs. It assessed costs of £750 to be payable by the employee when the Respondent (a firm of solicitors) had claimed £28,000 in costs.
The tribunal expressed the assessment of £750 to be an amount 'taken in the round', but gave no other explanation.
The EAT, whilst acknowledging existing authority stating that reasons for costs awards need only be 'brief', considered the reasoning given to be grossly inadequate and remitted the case for a further explanation of the reasons (with a fairly strong hint that the tribunal might like to review the costs award of its own volition)
Bryant Hamilton & Co v Weir
Pregnancy Dismissal requires knowledge of pregnancy
The EAT has confirmed that an employer must know (or believe) that an employee is pregnant for a dismissal to be automatically unfair on grounds of pregnancy.
In so holding, the EAT has upheld its earlier decision in Del Monte Foods v Mundon, and not adopted the criticisms of that decision by another division of the EAT in Heinz v Kenrick.
Ramdoolar v ByCity Ltd, EAT 2004
The EAT has upheld a tribunal's decision that it was not reasonably practicable for an employee to present her claim within three months when she had been advised, by a CAB, to exhaust her employer's internal appeals procedure first.
The EAT held that 'reasonable practicability' is a question of fact, and that there was no rule of law stating that incorrect or incomplete advice from an advisor meant that it was reasonably practicable to present a claim in time.
The focus, according to the EAT (following the Court of Appeal's decision in London International College v Sen) is to concentrate on the state of mind of the employee, and the extent to which she understood her position (para. 21). If she did not understand a claim must be presented within three months, it is not reasonably practicable to do so.
This case is only likely to be relevant to dismissals which were contemplated before 1st October 2004, as the new statutory dismissal procedures provide for an automatic extension of time if the employee reasonably believes the employer's dismissal procedures to be continuing on the date the three-month time limit expires.
Marks and Spencer plc v Williams-Ryan CA 2005
Costs: Giving Reasons for the Assessment
An example of a case where the tribunal decided to award costs. It assessed costs of £750 to be payable by the employee when the Respondent (a firm of solicitors) had claimed £28,000 in costs.
The tribunal expressed the assessment of £750 to be an amount 'taken in the round', but gave no other explanation.
The EAT, whilst acknowledging existing authority stating that reasons for costs awards need only be 'brief', considered the reasoning given to be grossly inadequate and remitted the case for a further explanation of the reasons (with a fairly strong hint that the tribunal might like to review the costs award of its own volition)
Bryant Hamilton & Co v Weir
Pregnancy Dismissal requires knowledge of pregnancy
The EAT has confirmed that an employer must know (or believe) that an employee is pregnant for a dismissal to be automatically unfair on grounds of pregnancy.
In so holding, the EAT has upheld its earlier decision in Del Monte Foods v Mundon, and not adopted the criticisms of that decision by another division of the EAT in Heinz v Kenrick.
Ramdoolar v ByCity Ltd, EAT 2004
ACAS Flowcharts on Disciplinary and Grievance
ACAS has, this afternoon, published some really useful flowcharts on operating the statutory dismissal and grievance procedures.
They are ideal for small employers, or as an 'aide memoire' for lawyers.
You need Adobe Acrobat to view the flowcharts.
ACAS Flowcharts
They are ideal for small employers, or as an 'aide memoire' for lawyers.
You need Adobe Acrobat to view the flowcharts.
ACAS Flowcharts
Friday, 24 September 2004
Statutory Dismissal and Grievance Procedures
From 1st October, mandatory dismissal procedures exist which, if not followed by employers, give employees the right to claim automatic unfair dismissal (subject to one year qualification period), plus an increase in compensation.
In addition, a mandatory grievance procedure debars employees from bringing most types of tribunal claims unless they have first lodged a written grievance with the employer and waited 28 days.
Analysis and Commentary on new rules
What's the next number in the series? 20, 23, ...
Yes - it's 61. The number of rules in the new Rules of Procedure, replacing the existing 23 which, in turn, replaced a previous 20.
The new rules are pretty straightforward once you sit down and read them (and DO sit down and read them). The main changes are:
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
Many changes - the main ones being:
And there is a new rate for 16 and 17 year old (above compulsory school leaving age) of £3.00ph. This new rate does not apply to 16 and 17 year old apprentices.
DTI Minimum Wage website
In addition, a mandatory grievance procedure debars employees from bringing most types of tribunal claims unless they have first lodged a written grievance with the employer and waited 28 days.
Analysis and Commentary on new rules
New Tribunal Rules of Procedure
What's the next number in the series? 20, 23, ...
Yes - it's 61. The number of rules in the new Rules of Procedure, replacing the existing 23 which, in turn, replaced a previous 20.
The new rules are pretty straightforward once you sit down and read them (and DO sit down and read them). The main changes are:
- Originating Application and Notice of Appearance now called Claim Form and Response Form
- 28 (not 21) days for the Respondent to file Notice of Appearance; but time runs from date the Response Form is sent out (rather than received);
- early sifting, and default judgment procedure where claim uncontested. Default judgment can be entered for a money sum, where it can be assessed from the contents of the Claim Form, not just for liability with award to be assessed;
- restriction in ACAS's power/duty to conciliate to 13 weeks from start of claim (in most cases), or 7 weeks in some cases (eg unlawful deduction from wages, statutory redundancy pay) - and no hearing can take place during this 'conciliation' period;
- substantial, and complex, changes to costs rules, including costs awards for preparation time for (subject to caveats) unrepresented parties, and a power to make wasted costs orders against representatives;
- if a decision is given verbally at the tribunal, written reasons will not be produced unless requested. The distinction between 'summary' and 'full' written reasons is abolished;
- the Register will no longer contain names and addresses of the parties (sometimes used by employers for 'blacklisting' purposes, and often used by representatives engaging in 'ambulance chasing'). Now it will just contain the decision and any written reasons.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
Disability Discrimination
Many changes - the main ones being:
- the small employer exemption is removed - employers with less than 15 employees have to comply with the Act;
- the justification defence is abolished for failures to make reasonable adjustments: if a reasonable adjustment is not made, the employer is liable;
- new definitions of 'discrimination' - direct discrimination (less favourable treatment on grounds of disability - which CANNOT be justified) and disability-related discrimination (less favourable treatment for a reason relating to disability, which CAN be justified).
- a formal definition of 'harassment';
- DDA protection extended to partners (and prospective partners) of firms, to barristers and to pupil barristers;
- DDA protection extends to police.
Equal Pay
Two minor changes, namely:- allowing a tribunal to decide whether work is of 'equal value' without first obtaining a report from an independent expert. Previously, the tribunal had to obtain a report unless satisfied there was no reasonable prospect of an equal value claim succeeding.
- creating a strong presumption that, where a job evaluation study has allocated different values to the man and woman's jobs, then the man cannot be a valid comparator.
National Minimum Wage
Okay, it's boring. But it is important. The main (adult) rate for workers over 22 increases to £4.85ph. The 'development rate' (for workers aged 18-21 inclusive) increases to £4.10ph.And there is a new rate for 16 and 17 year old (above compulsory school leaving age) of £3.00ph. This new rate does not apply to 16 and 17 year old apprentices.
DTI Minimum Wage website
Wednesday, 15 September 2004
ACAS Code on Disciplinary and Grievance Procedures out
The new version of the ACAS Code on Disciplinary and Grievance Procedures has been formally published by The Stationery Office today.
It has been updated to incorporate the statutory dismissal and grievance procedures which, with the ACAS Code, come into force on 1st October 2004.
ACAS Code on Disciplinary and Grievance Procedures (Adobe Acrobat required)
It has been updated to incorporate the statutory dismissal and grievance procedures which, with the ACAS Code, come into force on 1st October 2004.
ACAS Code on Disciplinary and Grievance Procedures (Adobe Acrobat required)
Friday, 10 September 2004
Order for Medical Records - not breach of Human Rights
A nice, discrete human rights point which engages an important aspect of tribunal procedure has been decided by in the EAT (HHJ Ansell) in Hanlon v Kirklees Council.
It is well-known that courts and tribunals cannot order disclosure of a Claimant's / Applicant's medical records, since that would breach the Access to Medical Reports Act 1988.
Thus tribunals routinely order Applicants to consent to disclosure of medical records under the Act, failing which they will stay (or strike out) a claim.
Mr Hanlon refused his consent, arguing it was a breach of his right to respect for privacy under the European Convention of Human Rights.
The EAT, upholding the tribunal's decision to strike out his case, held that the right to respect for privacy must be balanced against a protection for the rights of others - and in litigation, the rights of the other party to have a fair trial must always be important.
Accordingly striking out a case because an Applicant refuses to consent to disclosure of medical records does not offend the right to respect for privacy under the ECHR.
Hanlon v Kirklees Council
It is well-known that courts and tribunals cannot order disclosure of a Claimant's / Applicant's medical records, since that would breach the Access to Medical Reports Act 1988.
Thus tribunals routinely order Applicants to consent to disclosure of medical records under the Act, failing which they will stay (or strike out) a claim.
Mr Hanlon refused his consent, arguing it was a breach of his right to respect for privacy under the European Convention of Human Rights.
The EAT, upholding the tribunal's decision to strike out his case, held that the right to respect for privacy must be balanced against a protection for the rights of others - and in litigation, the rights of the other party to have a fair trial must always be important.
Accordingly striking out a case because an Applicant refuses to consent to disclosure of medical records does not offend the right to respect for privacy under the ECHR.
Hanlon v Kirklees Council
Thursday, 9 September 2004
Race Equality Guidance
The Commission for Racial Equality, in collaboration with the Home Office, has this morning issued a step-by-step 'Race Equality Impact Assessment' guidance.
Primarily designed for policy makers in the public sector, all employers will find compliance with this guidance a very useful step in establishing the statutory defence against vicarious liability for employees' acts (s32 of the Race Relations Act 1976 - that the employer has taken reasonable steps to prevent discrimination)
Race Equality Impact Assessment Guide
Primarily designed for policy makers in the public sector, all employers will find compliance with this guidance a very useful step in establishing the statutory defence against vicarious liability for employees' acts (s32 of the Race Relations Act 1976 - that the employer has taken reasonable steps to prevent discrimination)
Race Equality Impact Assessment Guide
Friday, 3 September 2004
Rutherford v DTI: Court of Appeal confirms that Upper Qualifying Age does not contravene EU law
(Thanks to Paul Troop of Tooks Chambers, junior Counsel for Mr Rutherford, for telling me this decision was out)
At 10.00am the Court of Appeal handed down its judgment in Rutherford v DTI (no. 2) (previously known as Rutherford v Harvest Town Circle). The "ambitious aim of the two test actions is to secure judicial application of long standing statutory limitations on the jurisdiction of the employment tribunal." (judgment, para. 1)
Mr Rutherford, who was 67 when dismissed, claimed the upper qualifying age in ss109 and 156 of the Employment Rights Act (providing that employees cannot claim unfair dismissal or redundancy payments if over normal retirement age - in his case, 65) contravened EU law as it had an adverse effect on more men than women.
The employment tribunal found in his favour. The EAT allowed the employer's case and remitted the point for re-hearing. The tribunal again found in his favour, deciding that the relevant 'pool' of comparators was people in the workforce who could realistically claim to be affected by the upper qualifying age. It assessed this as people aged over 55, ie within 10 years of retirement, and found that far more men than women fell into this group - thus the upper qualifying age had an adverse impact on men. It held that the DTI failed to justify the upper qualifying age on objective grounds, thus the upper qualifying age was unlawful and must be disapplied.
The EAT overturned that decision, holding the upper qualifying age was lawful. The Court of Appeal has, today, agreed.
Mummery LJ, giving the leading judgment, held that the employment tribunal had failed to give effect to the House of Lords' judgment in R v Secretary of State ex p. Seymour-Smith, which provided that the ENTIRE workforce must be used as a pool when determining whether a national provision had an adverse impact on one gender compared with the other.
When using the statistics for the entire workforce, the difference between the proportion of men affected by the upper qualifying age, and the proportion of women, was negligible.
Accordingly, the employment tribunal was wrong to disapply the upper qualifying ages, and the UK limitations on unfair dismissal stand.
As a separate point, the DTI has recently announced that publication of the draft Regulations on Age Discrimination have been delayed until next year, to allow time for additional consultation on whether to maintain mandatory retirement ages.
Rutherford v Harvest Town Circle
At 10.00am the Court of Appeal handed down its judgment in Rutherford v DTI (no. 2) (previously known as Rutherford v Harvest Town Circle). The "ambitious aim of the two test actions is to secure judicial application of long standing statutory limitations on the jurisdiction of the employment tribunal." (judgment, para. 1)
Mr Rutherford, who was 67 when dismissed, claimed the upper qualifying age in ss109 and 156 of the Employment Rights Act (providing that employees cannot claim unfair dismissal or redundancy payments if over normal retirement age - in his case, 65) contravened EU law as it had an adverse effect on more men than women.
The employment tribunal found in his favour. The EAT allowed the employer's case and remitted the point for re-hearing. The tribunal again found in his favour, deciding that the relevant 'pool' of comparators was people in the workforce who could realistically claim to be affected by the upper qualifying age. It assessed this as people aged over 55, ie within 10 years of retirement, and found that far more men than women fell into this group - thus the upper qualifying age had an adverse impact on men. It held that the DTI failed to justify the upper qualifying age on objective grounds, thus the upper qualifying age was unlawful and must be disapplied.
The EAT overturned that decision, holding the upper qualifying age was lawful. The Court of Appeal has, today, agreed.
Mummery LJ, giving the leading judgment, held that the employment tribunal had failed to give effect to the House of Lords' judgment in R v Secretary of State ex p. Seymour-Smith, which provided that the ENTIRE workforce must be used as a pool when determining whether a national provision had an adverse impact on one gender compared with the other.
When using the statistics for the entire workforce, the difference between the proportion of men affected by the upper qualifying age, and the proportion of women, was negligible.
Accordingly, the employment tribunal was wrong to disapply the upper qualifying ages, and the UK limitations on unfair dismissal stand.
As a separate point, the DTI has recently announced that publication of the draft Regulations on Age Discrimination have been delayed until next year, to allow time for additional consultation on whether to maintain mandatory retirement ages.
Rutherford v Harvest Town Circle
Tuesday, 24 August 2004
Parental Leave must be taken in blocks of a week
By a majority, the EAT has decided that parental leave can only be taken in blocks of one week, under the Maternity and Parental Leave etc. Regulations 1999.
The employee purported to take one day's parental leave. The employment tribunal held this to be lawful, in satisfaction of his entitlement to one week of his thirteen weeks' parental leave. The EAT (by a majority) overruled this, holding that for absence to attract the protection of the parental leave legislation, it MUST be taken in blocks of a week.
The EAT has given permission to appeal to the Court of Appeal.
[Thanks to Maxine Pieri of Kennedys, solicitors for the successful employer, for telling me about this case]
South Central Trains v Rodway
The employee purported to take one day's parental leave. The employment tribunal held this to be lawful, in satisfaction of his entitlement to one week of his thirteen weeks' parental leave. The EAT (by a majority) overruled this, holding that for absence to attract the protection of the parental leave legislation, it MUST be taken in blocks of a week.
The EAT has given permission to appeal to the Court of Appeal.
[Thanks to Maxine Pieri of Kennedys, solicitors for the successful employer, for telling me about this case]
South Central Trains v Rodway
Thursday, 19 August 2004
Statutory Right to Time Off
The Applicant took time off work, on medical advice, for grief following a bereavement. She was dismissed.
As she lacked a year's continuity of employment, she brought a claim alleging dismissal for exercising her statutory right to time off "to take action...in consequence of the death of a dependant" under s57A(1) of the Employment Rights Act.
The EAT held that sickness absence caused by grief is not time off to take action in consequence of the death of a dependant; that phrase only extends to matters such as time off to make funeral arrangements, registering the death and applying for probate.
Since the absence did not fall within s57A, the employee failed in her unfair dismissal claim.
Forster v Cartwright Black
As she lacked a year's continuity of employment, she brought a claim alleging dismissal for exercising her statutory right to time off "to take action...in consequence of the death of a dependant" under s57A(1) of the Employment Rights Act.
The EAT held that sickness absence caused by grief is not time off to take action in consequence of the death of a dependant; that phrase only extends to matters such as time off to make funeral arrangements, registering the death and applying for probate.
Since the absence did not fall within s57A, the employee failed in her unfair dismissal claim.
Forster v Cartwright Black
Friday, 6 August 2004
Information and Consultation
ACAS has just published its Good Practice Advice on the forthcoming information and consultation rules.
The Good Practice Advice has been produced in collaboration with the CBI, the TUC and the DTI. It takes the form of a brief overview, plus a series of modules dealing with specific issues such as 'Information', 'Employee representation', and so on.
It is only available as a series of pages on ACAS's website; hopefully, it will be made available as a self-contained document to download soon.
The Good Practice Advice has been produced in collaboration with the CBI, the TUC and the DTI. It takes the form of a brief overview, plus a series of modules dealing with specific issues such as 'Information', 'Employee representation', and so on.
It is only available as a series of pages on ACAS's website; hopefully, it will be made available as a self-contained document to download soon.
Wednesday, 4 August 2004
Fresh or Unfresh? Remissions from the EAT
The Employment Appeal Tribunal (Burton P.) has provided, for the first time, guidelines on whether a case should be remitted to the same or a different tribunal, following a successful appeal. The factors, contained in para. 46 of the judgment in Sinclair Roche & Temperley v Heard & Fellows, are:
"It follows, that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision...) then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."
He also described remission to the same tribunal as appropriate where "there is unfinished business to be done." (para. 47.2)
- proportionality: ordering a fresh hearing always adds considerably to the cost;
- passage of time: the EAT should not send a matter back to the same tribunal if there is a real risk they will have forgotten about the case;
- bias or partiality: if there is a question (note: the word 'question' is not defined) of bias, or the risk of prejudgment, the matter should not be sent back to the same tribunal;
- totally flawed decision: it is not appropriate to remit to the same tribunal if the first decision is completely flawed, or there has been a complete mishandling of it;
- second bite: the EAT should guard against the risk of a tribunal wanting to reach the same result, if only on the basis of the natural wish to say 'I told you so'; but balance this against,
- tribunal professionalism: in the absence of clear indications to the contrary, the EAT should assume that the tribunal below is capable of a professional approach in dealing with the matter on remission. ETs are only too familiar with legal approaches changing, and applying a different legal test one week to that which they applied a year or a week before.
"It follows, that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision...) then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."
He also described remission to the same tribunal as appropriate where "there is unfinished business to be done." (para. 47.2)
Vexatious Litigants
The EAT has barred Mr D'Souza (as in D'Souza v Lambeth) from bringing proceedings in the employment tribunal without obtaining prior leave from the EAT.
Mr D'Souza initially brought seven cases against the London Borough of Lambeth between 1987 and 1989. One of his claims reached the House of Lords in June 2003, in which (in a series of conjoined appeals) the House of Lords held that it is possible for post-termination discrimination to fall within the discrimination statutes (but, on the facts, rejecting Mr D'Souza's appeal).
He then brought a second series of cases - this time eight cases - between 1997 and 2004. The Attorney General argued that this second series of cases rendered Mr D'Souza a vexatious litigant.
In a detailed judgment, the EAT has agreed, and has made a 'restriction of proceedings' order against him. The case affirms and follows the previous 'vexatious litigant' cases of Attorney-General v Wheen [2000] IRLR 461 and Attorney-General v Barker [2001] FLR 759. Like all these cases, it makes sad reading and emphasises the need for multiple, habitual and persistent claims arising out of the same of similar facts and causes of action.
Mr D'Souza initially brought seven cases against the London Borough of Lambeth between 1987 and 1989. One of his claims reached the House of Lords in June 2003, in which (in a series of conjoined appeals) the House of Lords held that it is possible for post-termination discrimination to fall within the discrimination statutes (but, on the facts, rejecting Mr D'Souza's appeal).
He then brought a second series of cases - this time eight cases - between 1997 and 2004. The Attorney General argued that this second series of cases rendered Mr D'Souza a vexatious litigant.
In a detailed judgment, the EAT has agreed, and has made a 'restriction of proceedings' order against him. The case affirms and follows the previous 'vexatious litigant' cases of Attorney-General v Wheen [2000] IRLR 461 and Attorney-General v Barker [2001] FLR 759. Like all these cases, it makes sad reading and emphasises the need for multiple, habitual and persistent claims arising out of the same of similar facts and causes of action.
Friday, 30 July 2004
Kamlesh Bahl v Law Society
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