The 'Age Positive' website has just published ten 'Key Facts your business needs to know about age discrimination' (rather embarrassingly, under the headling '20 key facts', although there are only 10 of them!).
They can be accessed by clicking here
Thursday, 27 October 2005
Monday, 24 October 2005
Claim and Response Forms online
The Employment Tribunals Service has introduced a service enabling Claimaints and Respondents to save their Claim / Response Forms online.
This makes it much easier to use the online facility, as the forms can be filled in over a period of time and do not need to be completed in the one sitting.
Claim and Response Forms
Thanks to Ed McFarlane of Qdos Consulting for telling me about this development
This makes it much easier to use the online facility, as the forms can be filled in over a period of time and do not need to be completed in the one sitting.
Claim and Response Forms
Thanks to Ed McFarlane of Qdos Consulting for telling me about this development
Compromise Agreements
A majority decision from the EAT sitting in Scotland, holding that a Compromise Agreement did not exclude an Equal Pay claim...
As often happens, the Claimant signed a Compromise Agreement on termination of employment. In exchange for signing away her statutory rights, she was given a payment exceeding her statutory entitlements. She had some 12 or so discussions with her solicitor before signing the agreement.
Several months later, she read an article in the newspapers about part-time workers' pension claims. She brought fresh proceedings under the Equal Pay Act 1970 on the basis she had been excluded from her employer's pension scheme whilst a part-time worker. The employer responded by asserting she had signed a compromise agreement which excluded proceedings under the Equal Pay Act.
It was common ground for the purpose of the appeal that the Claimant did not know of her right to bring a part-time pension claim, and equally that her solicitors had not enquired of her whether she might be able to bring such a claim.
The majority of the EAT held that the Compromise Agreement did not prevent her from bringing a new claim because, at the time of signing the agreement, she did not know that such a claim existed. They placed reliance on the fact that the Compromise Agreement stated that she was only excluding such claims as "you believe you have against the Company". So here is a drafting tip: if you are acting for the employer, don't use a phrase like that in your Compromise Agreements.
The minority (wing) member held that it was contrary to policy to allow an employee to avoid the effect of a Compromise Agreement, the purpose of which is to create industrial certainty for employer and employee.
Just out of interest, the EAT also held that it was not relevant that the Claimant's solicitor was only being paid £250 for dealing with the Compromise Agreement (see paragraph 18 of the judgment)!
Hilton Hotels v McNaughton
As often happens, the Claimant signed a Compromise Agreement on termination of employment. In exchange for signing away her statutory rights, she was given a payment exceeding her statutory entitlements. She had some 12 or so discussions with her solicitor before signing the agreement.
Several months later, she read an article in the newspapers about part-time workers' pension claims. She brought fresh proceedings under the Equal Pay Act 1970 on the basis she had been excluded from her employer's pension scheme whilst a part-time worker. The employer responded by asserting she had signed a compromise agreement which excluded proceedings under the Equal Pay Act.
It was common ground for the purpose of the appeal that the Claimant did not know of her right to bring a part-time pension claim, and equally that her solicitors had not enquired of her whether she might be able to bring such a claim.
The majority of the EAT held that the Compromise Agreement did not prevent her from bringing a new claim because, at the time of signing the agreement, she did not know that such a claim existed. They placed reliance on the fact that the Compromise Agreement stated that she was only excluding such claims as "you believe you have against the Company". So here is a drafting tip: if you are acting for the employer, don't use a phrase like that in your Compromise Agreements.
The minority (wing) member held that it was contrary to policy to allow an employee to avoid the effect of a Compromise Agreement, the purpose of which is to create industrial certainty for employer and employee.
Just out of interest, the EAT also held that it was not relevant that the Claimant's solicitor was only being paid £250 for dealing with the Compromise Agreement (see paragraph 18 of the judgment)!
Hilton Hotels v McNaughton
Wednesday, 19 October 2005
New Family Friendly Proposals
The government has just announced its new family-friendly proposals, following extensive consultation. They will appear in the Works and Families Bill, to be published soon.
The new / changed laws will be:
The new / changed laws will be:
- extending Statutory Maternity Pay and Maternity Allowance to nine months from April 2007 with the ambition of moving to a year by the end of the Parliament;
- a power to introduce new paternity leave for fathers, enabling them to benefit from leave and statutory pay if the mother returns to work after six months but before the end of her maternity leave period;
- extending the right to request flexible working to carers from April 2007;
- measures to help businesses manage the administration of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay;
- introducing 'keeping in touch'days so that where employees and employers agree, a women on maternity leave can go into work for a few days, without losing her right to maternity leave or a week's statutory pay;
- extending the period of notice for return from maternity leave to two months enabling employees and employers to more effectively plan for return to work;
- making clear in the regulations that employers can make reasonable contact with their employees on maternity leave to help employers plan and ease the mother's return to work.
Wednesday, 12 October 2005
Personality Dismissals
The Court of Appeal has, today, handed down its judgment in Perkin v St Georges Healthcare NHS Trust.
It stands as authority for the proposition that employers are entitled to dismiss employees for having a difficult personality, even when they are technically good at their jobs and there are no criticisms of their integrity, on the grounds of 'some other substantial reason'. (Note, on the facts, the dismissal was technically unfair because the decision-maker was biased, but the tribunal declined to award compensation).
It is also authority for the proposition that, in an appropriate case, it is possible to:
It stands as authority for the proposition that employers are entitled to dismiss employees for having a difficult personality, even when they are technically good at their jobs and there are no criticisms of their integrity, on the grounds of 'some other substantial reason'. (Note, on the facts, the dismissal was technically unfair because the decision-maker was biased, but the tribunal declined to award compensation).
It is also authority for the proposition that, in an appropriate case, it is possible to:
- have a finding of 100% contributory fault; and,
- because of the aggressive way in which the employee defended himself (making allegations of fraud against the Chief Executive of the NHS Trust), any disciplinary panel - even if not chaired by the biased chairperson - would be 100% certain to have dismissed him on the grounds he would not be able to continue working with senior executives of the Trust.
Wednesday, 5 October 2005
'Gender Duty' Consultation
Probably of interest only to those who deal in/with the public sector...
The government has launched a consultation on its proposals to introduce a public sector duty to promote gender equality - commonly referred to as the 'gender duty'. These proposals will require public authorities to eliminate discrimination and promote equality of opportunity between men and women. The main three themes oblige public authorities to:
The government has launched a consultation on its proposals to introduce a public sector duty to promote gender equality - commonly referred to as the 'gender duty'. These proposals will require public authorities to eliminate discrimination and promote equality of opportunity between men and women. The main three themes oblige public authorities to:
- identify and implement specific gender equality goals;
- develop and publish an equal pay policy statement; and
- assess the impact of new policies and changes to services on men and women - allowing negative effects to be mitigated.
Thursday, 29 September 2005
Redundancy Consultation
The EAT decision in Leicestershire City Council v UNISON has just been placed on the EAT website.
Leicestershire City Council were renegotiating terms and conditions for about 2,600 employees. As commonly happens, they gave notice of dismissal and offered new jobs on new terms. This consitutes a 'redundancy' for the purpose of the collective consultation obligations in s188 of TULR(C)A 1998.
The EAT (HHJ McMullen QC presiding) upheld the tribunal's decision that the time for consultation (ie when the dismissals were 'proposed') began when the practical decision had been taken by the Council's staff - notwithstanding that it needed a formal political vote/decision by the Council to ratify it - and not when the Council voted in favour of the decision to dismiss / re-hire.
This was consistent with the ECJ decision in Junk v Kuhnel, namely that consultation must take place before the decision to dismiss was taken.
The EAT also upheld the award of 90 days' pay (by way of protective award) to a large group of the workforce. It considered that the fact the employer had provided information before the technical obligation to consult arose did not mean that there must be an automatic reduction from the presumed 90 days' pay (as set out in Susie Radin). The protective award to another section of the workforce was reduced (on fact-specific grounds).
Leicestershire City Council v UNISON
Leicestershire City Council were renegotiating terms and conditions for about 2,600 employees. As commonly happens, they gave notice of dismissal and offered new jobs on new terms. This consitutes a 'redundancy' for the purpose of the collective consultation obligations in s188 of TULR(C)A 1998.
The EAT (HHJ McMullen QC presiding) upheld the tribunal's decision that the time for consultation (ie when the dismissals were 'proposed') began when the practical decision had been taken by the Council's staff - notwithstanding that it needed a formal political vote/decision by the Council to ratify it - and not when the Council voted in favour of the decision to dismiss / re-hire.
This was consistent with the ECJ decision in Junk v Kuhnel, namely that consultation must take place before the decision to dismiss was taken.
The EAT also upheld the award of 90 days' pay (by way of protective award) to a large group of the workforce. It considered that the fact the employer had provided information before the technical obligation to consult arose did not mean that there must be an automatic reduction from the presumed 90 days' pay (as set out in Susie Radin). The protective award to another section of the workforce was reduced (on fact-specific grounds).
Leicestershire City Council v UNISON
Tuesday, 27 September 2005
Compulsory ET1 and ET3 Forms
As subscribers will know, use of the 'official' ET1 and ET3 forms becomes compulsory from next week.
Following comments made at user group meetings in Cardiff and Bristol, it seems tribunal staff are being trained to accept and reject the following...
Acceptable from 1st October 2005
Not acceptable from 1st October 2005
The administrative staff at the tribunal offices have all received extensive training in what forms to accept (and reject!) from next week.
The lesson is simple: use the official forms. If you don't have them, they are available on the ETS website.
Further information can be obtained from the Employment Tribunals Service Public Enquiry Line on 0845 7959775.
ETS website - download forms from here
[Thanks to Barry Clarke of Russell Jones & Walker for providing the above information]
Following comments made at user group meetings in Cardiff and Bristol, it seems tribunal staff are being trained to accept and reject the following...
Acceptable from 1st October 2005
- riders (i.e. separate attached sheets);
- a pdf version of the forms which will soon appear on the Emplotment Tribunals website which can be downloaded and completed offline (the ETS will be providing software to enable users to fill in these forms - I am told this is likely to happen over the weekend);
- faxed ET1 / ET3 forms; and
- black and white photocopies of ET1 / ET3 forms (but note that the coloured guidance notes and text boxes on the forms may not reproduce on a b&w photocopy).
Not acceptable from 1st October 2005
- any in-house or commercial version that is not produced by the ETS.
The administrative staff at the tribunal offices have all received extensive training in what forms to accept (and reject!) from next week.
The lesson is simple: use the official forms. If you don't have them, they are available on the ETS website.
Further information can be obtained from the Employment Tribunals Service Public Enquiry Line on 0845 7959775.
ETS website - download forms from here
[Thanks to Barry Clarke of Russell Jones & Walker for providing the above information]
Tuesday, 20 September 2005
Commission for Racial Equality
The Commission for Racial Equality has just published its 'Race Equalty Scheme' for 2005-2008, setting out the way in which it intends to meet its obligations under the Race Relations Act 1976. Click here to view the Scheme.
It has also just published, on its website, a case law database for court decisions relating to race discrimination. Click here for access.
It has also just published, on its website, a case law database for court decisions relating to race discrimination. Click here for access.
Wednesday, 7 September 2005
Unfair Dismissal Time Limits
The EAT has handed down a decision restating the importance of a solicitor ensuring he does not leave presentation of the Claim Form to the last day.
The Claimant instructed solicitors a week after she was dismissed. The firm, which had only one employment lawyer, was extremely busy and the lawyer concerned adopted a 'time-bar list' approach, i.e. leaving cases to just before the limitation deadline before dealing with them.
On the Friday (before time expired on the following Monday), the solicitor was about to go on holiday but told his secretrary to fax the Claim Form on the Monday morning. She fell ill over the weekend, did not work on Monday, and faxed the Claim Form on Tuesday, i.e. one day late.
The tribunal (sitting at Dundee) held it was not reasonably practicable for the Claim Form to be presented within three months, as the failure to present the claim in time was caused by an unforeseen absence by the solicitor's secretary.
The Employment Appeal Tribunal (HHJ Serota QC presiding) held that this conclusion was wrong in law because the tribunal only looked at the events of the last few days. What it should have done was look at the entire three month period - and there was no good reason why the Claim Form could not have been presented earlie. It reaffirmed cases stating that if a solicitor leaves presenting the Claim Form until the last moment, he does so at his own risk.
Agrico v Ireland
The Claimant instructed solicitors a week after she was dismissed. The firm, which had only one employment lawyer, was extremely busy and the lawyer concerned adopted a 'time-bar list' approach, i.e. leaving cases to just before the limitation deadline before dealing with them.
On the Friday (before time expired on the following Monday), the solicitor was about to go on holiday but told his secretrary to fax the Claim Form on the Monday morning. She fell ill over the weekend, did not work on Monday, and faxed the Claim Form on Tuesday, i.e. one day late.
The tribunal (sitting at Dundee) held it was not reasonably practicable for the Claim Form to be presented within three months, as the failure to present the claim in time was caused by an unforeseen absence by the solicitor's secretary.
The Employment Appeal Tribunal (HHJ Serota QC presiding) held that this conclusion was wrong in law because the tribunal only looked at the events of the last few days. What it should have done was look at the entire three month period - and there was no good reason why the Claim Form could not have been presented earlie. It reaffirmed cases stating that if a solicitor leaves presenting the Claim Form until the last moment, he does so at his own risk.
Agrico v Ireland
Managing Change: Practical Ways to reduce long hours and reform working practices
The DTI has just published the booklet: Managing Change - Practical Ways to reduce long hours and reform working practices. This is a joint project between the TUC, CBI and DTI.
The booklet identifies practical ways of implementing change management programmes in the workplace and share this learning between businesses.
It is very much aimed at HR practitioners rather than lawyers. But there is a case study of working practices at Eversheds (where flexible working seems to be huge success) - see p20.
Download booklet here (large file - 1.8Mb - Adobe Acrobat required)
The booklet identifies practical ways of implementing change management programmes in the workplace and share this learning between businesses.
It is very much aimed at HR practitioners rather than lawyers. But there is a case study of working practices at Eversheds (where flexible working seems to be huge success) - see p20.
Download booklet here (large file - 1.8Mb - Adobe Acrobat required)
Friday, 2 September 2005
London Central Tribunal
Some information for aficionados of the London Central tribunal...
Their phone systems and Email systems have been down since (about) the beginning of the week. They now have intermittent phone access and 'slow' - whatever that means - Email access.
So if you think you're being ignored, don't panic (unless you're facing a time limit - in which case, panic!). I am told they do not know when normal service is to be resumed.
Their phone systems and Email systems have been down since (about) the beginning of the week. They now have intermittent phone access and 'slow' - whatever that means - Email access.
So if you think you're being ignored, don't panic (unless you're facing a time limit - in which case, panic!). I am told they do not know when normal service is to be resumed.
Tuesday, 30 August 2005
Age Discrimination Seminar
1 Temple Gardens are presenting seminars in London, Birmingham and Manchester on age discrimination. New laws are expected to have a substantial impact on practice for all employment lawyers and HR professionals. The seminars are designed to help delegates advise clients, deal with the ramifications of the legislation and avoid pitfalls leading to tribunal claims.
WHEN AND WHERE?
5th October 2005 - Manchester (location details)
18th October 2005 - Birmingham (location details)
31st October 2005 - London (location details)
SPEAKERS AND TOPICS
Chair: Alison Hewitt
Age Discrimination at the start of employment
Speakers: Paul McGrath / Keith Morton
- advertising
- selection / recruitment
Age discrimination during employment
Speakers: Shaman Kapoor / David Barr
- terms and conditions
- training
- promotion
- harassment
Age discrimination at the end of employment
Speaker: Daniel Barnett
- dimissal to make way for younger workers
- mandatory retirement ages
- the right to request working beyond retirement
WHO SHOULD ATTEND?
Solicitors who are advising clients on how to cope with the forthcoming age discrimination laws, and HR professionals who need to know how the new laws will impact on the workplace.
TIMINGS
6.00pm Registration
6.30pm Seminar commences
8.30pm Drinks and canapes
CPD: 2 hours
HOW MUCH DOES IT COST?
First delegate: £62.50 + VAT
Subsequent delegates: £55 + VAT
HOW DO I BOOK?
Just click here for the booking form.
Please telephone Gaye Spencer-King on 020 7842 8646 with any enquiries.
WHEN AND WHERE?
5th October 2005 - Manchester (location details)
18th October 2005 - Birmingham (location details)
31st October 2005 - London (location details)
SPEAKERS AND TOPICS
Chair: Alison Hewitt
Age Discrimination at the start of employment
Speakers: Paul McGrath / Keith Morton
- advertising
- selection / recruitment
Age discrimination during employment
Speakers: Shaman Kapoor / David Barr
- terms and conditions
- training
- promotion
- harassment
Age discrimination at the end of employment
Speaker: Daniel Barnett
- dimissal to make way for younger workers
- mandatory retirement ages
- the right to request working beyond retirement
WHO SHOULD ATTEND?
Solicitors who are advising clients on how to cope with the forthcoming age discrimination laws, and HR professionals who need to know how the new laws will impact on the workplace.
TIMINGS
6.00pm Registration
6.30pm Seminar commences
8.30pm Drinks and canapes
CPD: 2 hours
HOW MUCH DOES IT COST?
First delegate: £62.50 + VAT
Subsequent delegates: £55 + VAT
HOW DO I BOOK?
Just click here for the booking form.
Please telephone Gaye Spencer-King on 020 7842 8646 with any enquiries.
Thursday, 18 August 2005
Updated ACAS Guides
Acas has just published updated versions of three of its advisory booklets:
It has also published the summer/autumn edition of its national newsletter, Acas News.
It has also published the summer/autumn edition of its national newsletter, Acas News.
Monday, 15 August 2005
Employee's Rights on Insolvency - Court of Appeal Resolves Conflicting Authorities
In the last three weeks, the High Court has handed down two inconsistent decision on whether, when a company is in administration, liability for protective awards and payments in lieu of notice take priority (or not) over the expenses of the administration. Peter Smith J. held (27/7/05) that protective awards and PILONs take priority over the expenses of the administration. This has caused enormous panic within the insolvency community.
Two weeks later, Etherton J. (9/8/05) held that they did not take priority - reaching exactly the opposite conclusion to Etherton J..
The Court of Appeal has heard urgent appeals from both these cases and has handed down judgment.
It describes the relevant legislation as "not merely opaque; it is a most unsatisfactory piece of drafting. It is scarcely surprising that it has led to the sharp difference of opinion between two judges..." (para. 29)
Neuberger LJ, after a careful analysis of the statutory provisions, upholds Etherton J.'s decision, holding that protective awards and PILONs do not take priority over the expenses of the administration.
Re Ferrotech Ltd.
Two weeks later, Etherton J. (9/8/05) held that they did not take priority - reaching exactly the opposite conclusion to Etherton J..
The Court of Appeal has heard urgent appeals from both these cases and has handed down judgment.
It describes the relevant legislation as "not merely opaque; it is a most unsatisfactory piece of drafting. It is scarcely surprising that it has led to the sharp difference of opinion between two judges..." (para. 29)
Neuberger LJ, after a careful analysis of the statutory provisions, upholds Etherton J.'s decision, holding that protective awards and PILONs do not take priority over the expenses of the administration.
Re Ferrotech Ltd.
Wednesday, 10 August 2005
Discrimination against BNP Members
The EAT has handed down a decision holding that BNP activists are entitled to rely on the race discrimination legislation.
Mr Redfearn was a postal delivery driver for the West Yorkshire Transport Service. He was found to have been a "perfectly satisfactory employee". However he was dismissed following union representations when the union and his employer discovered that he stood for, and was elected as, a local authority councillor representing the BNP.
The employment tribunal found he had not been dismissed "on racial grounds", because the reason for dismissal was a fear of violence in the workforce flowing from his political beliefs, and therefore that his claim for direct discrimination under the Race Relations Act 1976 failed.
The EAT (Burton P. presiding) quashed that decision. Relying on the well-established Showboat Entertainment Centre v Owens line of authorities, it held that the phrase 'on racial grounds' must be interpreted widely. It included a dismissal where the decision to dismiss was significantly influenced by questions of race - whether it be the complainant's or somebody else's - and noted that the employer's motive, no matter how benign, was not a defence to the employer.
This decision is undoubtedly correct - the EAT was bound by long-standing authority to rule as it did. However, much with as upper qualifying age unfair dismissal cases allowed age discrimination in through the back door of sex discrimination, this decision allowed discrimination on grounds of political belief in through the back door of race discrimination.
Redfearn v Serco Ltd t/a West Yorkshire Transport Service
[Thanks to John Bowers QC of Littleton Chambers, who represented Serco, for telling me this decision was due]
Mr Redfearn was a postal delivery driver for the West Yorkshire Transport Service. He was found to have been a "perfectly satisfactory employee". However he was dismissed following union representations when the union and his employer discovered that he stood for, and was elected as, a local authority councillor representing the BNP.
The employment tribunal found he had not been dismissed "on racial grounds", because the reason for dismissal was a fear of violence in the workforce flowing from his political beliefs, and therefore that his claim for direct discrimination under the Race Relations Act 1976 failed.
The EAT (Burton P. presiding) quashed that decision. Relying on the well-established Showboat Entertainment Centre v Owens line of authorities, it held that the phrase 'on racial grounds' must be interpreted widely. It included a dismissal where the decision to dismiss was significantly influenced by questions of race - whether it be the complainant's or somebody else's - and noted that the employer's motive, no matter how benign, was not a defence to the employer.
This decision is undoubtedly correct - the EAT was bound by long-standing authority to rule as it did. However, much with as upper qualifying age unfair dismissal cases allowed age discrimination in through the back door of sex discrimination, this decision allowed discrimination on grounds of political belief in through the back door of race discrimination.
Redfearn v Serco Ltd t/a West Yorkshire Transport Service
[Thanks to John Bowers QC of Littleton Chambers, who represented Serco, for telling me this decision was due]
Friday, 5 August 2005
Powers of Review
The EAT has handed down an important judgment dealing with, amongst other things, the ET's powers of review. Importantly, passages in the decision (dealt with below under 'Postscript') encourage tribunals to take a practical rather than rigidly technical approach to the new procedural rules.
Facts
The Claimant was ordered to pay £500 as a deposit as a condition of continuing with her unfair dismissal claim. The formal Order did not arrive at the Claimant's solicitors' offices, because the Claimant (when completing her Claim Form) had written their postcode down incorrectly.
The claim was therefore struck out when the deposit was not paid. Upon later enquiry, the Claimant's solicitor discovered what had gone wrong and a cheque for £500 was immediately sent. The tribunal then reviewed its earlier decision, adjusted the date for payment of the £500 and allowed the claim to proceed.
Issue
Did the tribunal have power to review its earlier decision?
EAT Decision
The EAT (HHJ Peter Clark sitting alone) held:
contrary to earlier thinking, a strike out under rule 20(4) of the 2004 Rules is a judgment within the meaning of rule 28 and is capable of being reviewed.
an application for a review does not need to formally set out the statutory grounds (eg that the decision is made as the result of an administrative error). It is sufficient if the grounds may be discerned from the document containing the application.
the expression 'administrative error' includes administrative errors by the parties (as well as the tribunal). This is a change from the 2001 rules, which only covered errors by the tribunal;
the 'interests of justice' ground for review should be construed more widely than it was before the 2001 rules introduced the overriding objective;
an order requiring the payment of a deposit is not capable of review (unlike the subsequent order striking out a claim for failing to pay a deposit). However, it may be the subject of revocation or variation under rule 10(2), including the granting of an extension of time for payment.
Postscript
The following observations of the EAT may be of interest to tribunal chairmen who wish to adopt a practical approach to some of the technicailites under the new Rules:
"42. The 2004 Rules introduce what, on one view, may be thought to be a series of carefully crafted hurdles designed to restrict access to Employment Tribunals and thus reduce the costs of administering the Employment Tribunal system to both Claimants and Respondents...
"84. ...Standing back, one can only speculate at what Lord Donovan and the members of his Commission, reporting in 1965, would have made of the arcane procedural points...discussed in this judgment... I nevertheless prefer to believe that the gradual modification and sophistication in Employment Tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding objective and the increased power of employment tribunal Chairmen to make orders on their own initiative should be seen as valuable signposts to Chairmen to exercise their independent judgment to ensure fairness between the parties. It is what, to return to an earlier theme, truly distinguishes between judicial and administrative decisions."
Sodexho v Gibbons
[Thanks to Alex Lock of Beachcroft Wasbroughs, who represented Sodexho, for telling me about this judgment]
Facts
The Claimant was ordered to pay £500 as a deposit as a condition of continuing with her unfair dismissal claim. The formal Order did not arrive at the Claimant's solicitors' offices, because the Claimant (when completing her Claim Form) had written their postcode down incorrectly.
The claim was therefore struck out when the deposit was not paid. Upon later enquiry, the Claimant's solicitor discovered what had gone wrong and a cheque for £500 was immediately sent. The tribunal then reviewed its earlier decision, adjusted the date for payment of the £500 and allowed the claim to proceed.
Issue
Did the tribunal have power to review its earlier decision?
EAT Decision
The EAT (HHJ Peter Clark sitting alone) held:
contrary to earlier thinking, a strike out under rule 20(4) of the 2004 Rules is a judgment within the meaning of rule 28 and is capable of being reviewed.
an application for a review does not need to formally set out the statutory grounds (eg that the decision is made as the result of an administrative error). It is sufficient if the grounds may be discerned from the document containing the application.
the expression 'administrative error' includes administrative errors by the parties (as well as the tribunal). This is a change from the 2001 rules, which only covered errors by the tribunal;
the 'interests of justice' ground for review should be construed more widely than it was before the 2001 rules introduced the overriding objective;
an order requiring the payment of a deposit is not capable of review (unlike the subsequent order striking out a claim for failing to pay a deposit). However, it may be the subject of revocation or variation under rule 10(2), including the granting of an extension of time for payment.
Postscript
The following observations of the EAT may be of interest to tribunal chairmen who wish to adopt a practical approach to some of the technicailites under the new Rules:
"42. The 2004 Rules introduce what, on one view, may be thought to be a series of carefully crafted hurdles designed to restrict access to Employment Tribunals and thus reduce the costs of administering the Employment Tribunal system to both Claimants and Respondents...
"84. ...Standing back, one can only speculate at what Lord Donovan and the members of his Commission, reporting in 1965, would have made of the arcane procedural points...discussed in this judgment... I nevertheless prefer to believe that the gradual modification and sophistication in Employment Tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding objective and the increased power of employment tribunal Chairmen to make orders on their own initiative should be seen as valuable signposts to Chairmen to exercise their independent judgment to ensure fairness between the parties. It is what, to return to an earlier theme, truly distinguishes between judicial and administrative decisions."
Sodexho v Gibbons
[Thanks to Alex Lock of Beachcroft Wasbroughs, who represented Sodexho, for telling me about this judgment]
Saturday, 30 July 2005
Victimisation by Litigation
The Court of Appeal has (by a majority) overturned the EAT's decision in St Helens MBC v Derbyshire.
Issue
Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.
Facts
510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.
About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.
The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.
The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.
The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.
They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.
In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.
St Helens MBC v Derbyshire
Issue
Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.
Facts
510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.
About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.
The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.
The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.
The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.
They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.
In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.
St Helens MBC v Derbyshire
Remember the Sabbath Day(...Six days shalt thou labour, and do all thy work)
The Court of Appeal has (by a majority) overturned the EAT's decision in St Helens MBC v Derbyshire.
Issue
Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.
Facts
510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.
About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.
The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.
The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.
The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.
They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.
In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.
St Helens MBC v Derbyshire
Issue
Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.
Facts
510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.
About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.
The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.
The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.
The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.
They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.
In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.
St Helens MBC v Derbyshire
Wednesday, 27 July 2005
Intervention in Solicitors' Firms - TUPE?
Note- I have entered this case in emplaw under redundancy/meaning of but the internet is not working so have not been able to put in the reference.
The Court of Appeal has today handed down a conceptually complex judgment concerning the effect of the Law Society's intervention in a firm of solicitors on the contracts of employment of those employed by the firm.
It held that where the firm is that of a sole practitioner, the act of intervention by the Law Society does not operate to terminate the employment contracts of staff. Nor does the suspension of the principal's Practising Certificate. Therefore the staff will be transferred under TUPE if the practice is sold as a going concern.
However, where there is a partnership (i.e. not a sole practitioner), the question of whether intervention dissolves the partnership depends on the facts of each case. Intervention will normally dissolve the partnership, as it becomes unlawful for the firm to continue in practice. Thus:
Rose v Dodd
The Court of Appeal has today handed down a conceptually complex judgment concerning the effect of the Law Society's intervention in a firm of solicitors on the contracts of employment of those employed by the firm.
It held that where the firm is that of a sole practitioner, the act of intervention by the Law Society does not operate to terminate the employment contracts of staff. Nor does the suspension of the principal's Practising Certificate. Therefore the staff will be transferred under TUPE if the practice is sold as a going concern.
However, where there is a partnership (i.e. not a sole practitioner), the question of whether intervention dissolves the partnership depends on the facts of each case. Intervention will normally dissolve the partnership, as it becomes unlawful for the firm to continue in practice. Thus:
- if, following dissolution, it becomes impossible or unlawful for the employee to do any of the work he is employed to do, the contract of employment is frustrated and comes to an end. Accordingly, if the practice is later sold, the employee will not transfer under TUPE;
- if, following dissolution, the parties try to keep the contract alive and to continue it while steps are taken to challenge the intervention or transfer the practice as a going concern, there is no reason for the contracts of employment to terminate automatically. In that situation, if the practice is transferred, TUPE will apply.
Rose v Dodd
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