Acas has prepared a nine-minute online video, explaining how its conciliation process works. It's a really useful resource, particularly for Claimants, to put their minds at ease as to how the Acas conciliation process works.
Please note: the link below DOES work. It's likely the Acas website will lack sufficient bandwith to let all the recipients of this bulletin watch the video simulteneously. If it doesn't work, try again later.
Click here to view video
Tuesday, 31 January 2006
Monday, 30 January 2006
New TUPE 2006 Guidance
The Transfer of Undertakings (Protection of Employment) Regulations 2006, which were widely expected to be published today, are not quite ready...
In the meantime, the DTI has published its official guidance on the new TUPE regulations. The main changes in the Regulations from the existing 1981 version are as follows:
o the information contacted in their statutory statement of particulars of employment
o details of any disciplinary action or grievances in the previous two years
o details of actual or potential legal action brought by the employees in the previous two years
I will be running a web/telephone seminar on the new TUPE regulations later in the year - watch this space for details.
Click here for DTI Guidance Notes (large .pdf document)
In the meantime, the DTI has published its official guidance on the new TUPE regulations. The main changes in the Regulations from the existing 1981 version are as follows:
- a widening of the scope of the Regulations to make it clearer that outsourcing and insourcing (known as 'service provision changes') will be covered by TUPE. It appears from p10 of the Guidance that there will be an exception where the service provision is a "one-off" service provision "of short-term duration"
- a new duty on the transferor to provide 'employee liability information' to the transferee (see p22 of Guidance Notes). This include
o the information contacted in their statutory statement of particulars of employment
o details of any disciplinary action or grievances in the previous two years
o details of actual or potential legal action brought by the employees in the previous two years
- The transferee can complain to a tribunal if the transferor fails to provide this information, and the tribunal can order the transferor to award compensation for any loss suffered by the transferee (with a minimum award of £500 per employee unless it is unjust to do award the minimum)
- special provisions making it easier for insolvent businesses to be transferred to new employers
- clarifying the ability of employers and employees to agree variations to contracts of employment, when the reason for the variation is an "economic, technical or organisational reason"
- provisions clarifying the circumstances under which it is unfair for employers to dismiss employees for reasons connected with a transfer.
I will be running a web/telephone seminar on the new TUPE regulations later in the year - watch this space for details.
Click here for DTI Guidance Notes (large .pdf document)
Thursday, 26 January 2006
Age Discrimination Analysis Notes
A detailed commentary and analysis of the new laws, written by Daniel Barnett and Kate Palka. Spanning over 150 pages, the commentary explains how the new laws will work, highlighting practical difficulties and setting out arguments on both sides when the Regulations are unclear.
The notes will be updated free of charge at regular intervals during 2006.
For further details click here, or click here to view sample extracts.
The notes will be updated free of charge at regular intervals during 2006.
For further details click here, or click here to view sample extracts.
Serco v Lawson
The House of Lords has, this morning, delivered its opinion in Serco v Lawson (and associated appeals).
The issue relates to the territorial scope of the right not to be unfairly dismissed. Section 196(3) of the Employment Rights Act 1996, which provided that the right did not apply to "any employment where...the employee ordinarily works outside Great Britain" was repealed in 1999 and not replaced.
Lord Hoffman, giving the only reasoned judgment, stated (para 23) that "it is a mistake to try to formulate an ancillary rule of territorial scope, in the sense of a verbal formula such as s196 used to provide...". He then went on (para 25) to say that the right to claim unfair dismissal applies to "the employee who was working in Great Britain", and that overreliance on the contractual position shold be avoided (paras 26 and 29).
Lord Hoffman also highlighted the problem of the peripatetic employee (look it up in a dictionary!!) and said that tribunals should look at the base of the peripatetic employee (para 29), i.e. the place he should be regarded as ordinarily working even though he may spend months working overseas.
The problem of expatriate employees was more difficult, as the concept of a 'base' provides no help with expatriates. Lord Hoffman held that it would be unusual for an employee who works and is based abroad to come within the scope of British labour legislation (para. 36-40), although some occasionally may do so if there are other factors so powerful that the employment relationship has a closer connection with Great Britain than with the foreign country where the employee works. Examples include an employee posted abroad to work for a business conducted in Britain, and the employee working in a political or social British enclave.
Serco, a UK company, employed Mr Lawson (an ex-RAF policeman) to work as a security operator on Ascension Island, where Serco had a contract to service the RAF base. Ascension is a 35 square mile volcanic island in the South Atlantic with no indigenous population. Both employer and employee had close connections with the UK, but all the services were performed abroad. The House of Lords held that this was sufficient for Mr Lawson to have the right to claim unfair dismissal.
Clear? If only.
Serco Ltd. v Lawson
The issue relates to the territorial scope of the right not to be unfairly dismissed. Section 196(3) of the Employment Rights Act 1996, which provided that the right did not apply to "any employment where...the employee ordinarily works outside Great Britain" was repealed in 1999 and not replaced.
Lord Hoffman, giving the only reasoned judgment, stated (para 23) that "it is a mistake to try to formulate an ancillary rule of territorial scope, in the sense of a verbal formula such as s196 used to provide...". He then went on (para 25) to say that the right to claim unfair dismissal applies to "the employee who was working in Great Britain", and that overreliance on the contractual position shold be avoided (paras 26 and 29).
Lord Hoffman also highlighted the problem of the peripatetic employee (look it up in a dictionary!!) and said that tribunals should look at the base of the peripatetic employee (para 29), i.e. the place he should be regarded as ordinarily working even though he may spend months working overseas.
The problem of expatriate employees was more difficult, as the concept of a 'base' provides no help with expatriates. Lord Hoffman held that it would be unusual for an employee who works and is based abroad to come within the scope of British labour legislation (para. 36-40), although some occasionally may do so if there are other factors so powerful that the employment relationship has a closer connection with Great Britain than with the foreign country where the employee works. Examples include an employee posted abroad to work for a business conducted in Britain, and the employee working in a political or social British enclave.
Serco, a UK company, employed Mr Lawson (an ex-RAF policeman) to work as a security operator on Ascension Island, where Serco had a contract to service the RAF base. Ascension is a 35 square mile volcanic island in the South Atlantic with no indigenous population. Both employer and employee had close connections with the UK, but all the services were performed abroad. The House of Lords held that this was sufficient for Mr Lawson to have the right to claim unfair dismissal.
Clear? If only.
Serco Ltd. v Lawson
Age Discrimination - Consultation Responses
The DTI has published 248 of the responses it received to its consultation paper on the draft Employment Equality (Age) Regulations 2006. A further 143 respondees asked that their responses remain confidential.
Winner of the 'most apt name for a respondee' competition is 'Wrinklies Direct Ltd.'
See Responses to Consultation Paper
Winner of the 'most apt name for a respondee' competition is 'Wrinklies Direct Ltd.'
See Responses to Consultation Paper
Wednesday, 25 January 2006
Reinstating Withdrawn Claims
The EAT has handed down an esoteric case on the construction of rule 25 of the Employment Tribunal (Constitution and Rules of Procedure etc.) Regulations 2004.
Under rule 25, a Claimant can withdraw his case at any time. If the Respondent chooses, it can then apply to have the withdrawn proceedings formally dismissed.
In Khan v Heywood Primary Care NHS Trust, Dr Khan withdrew his race discrimination claim on legal advice. Following a change of advisers (and, presumably, advice), he applied to set aside the withdrawal so as to enable him to resume his claim.
The Employment Appeal Tribunal (Rimer J.) held that a tribunal has no power to set aside a notice of withdrawal. The effect of withdrawing a claim means that the Claimant is free to issue a fresh claim based on the same facts (subject to any limitation issues), whereas if the Respondent successully applies to have the claim dismissed upon withdrawal, the Claimant then becomes debarred from issuing a fresh claim based on the same facts.
The crux of the judgment (the arguments are complex!) is at paragraph 24.
The EAT also upheld a costs order under Dr Khan, on the basis it was unreasonable for him to withdraw his claim, and then renege on his withdrawal and seek to have the claim reinstated.
Khan v Heywood Primary Care NHS Trust
Under rule 25, a Claimant can withdraw his case at any time. If the Respondent chooses, it can then apply to have the withdrawn proceedings formally dismissed.
In Khan v Heywood Primary Care NHS Trust, Dr Khan withdrew his race discrimination claim on legal advice. Following a change of advisers (and, presumably, advice), he applied to set aside the withdrawal so as to enable him to resume his claim.
The Employment Appeal Tribunal (Rimer J.) held that a tribunal has no power to set aside a notice of withdrawal. The effect of withdrawing a claim means that the Claimant is free to issue a fresh claim based on the same facts (subject to any limitation issues), whereas if the Respondent successully applies to have the claim dismissed upon withdrawal, the Claimant then becomes debarred from issuing a fresh claim based on the same facts.
The crux of the judgment (the arguments are complex!) is at paragraph 24.
The EAT also upheld a costs order under Dr Khan, on the basis it was unreasonable for him to withdraw his claim, and then renege on his withdrawal and seek to have the claim reinstated.
Khan v Heywood Primary Care NHS Trust
Setting Aside Default Judgment
Another example of the EAT overturning a default judgment when the tribunal declined to do so.
As subscribers will know, a Response has to be entered within 28 days, or the tribunal may enter default judgment against the Respondent.
On day 27, the Respondent's solicitors posted the Response Form to the tribunal (by first class-post). It arrived two days later, on day 29, by which time default judgment had been entered.
The solicitors also faxed a copy of the Response Form, but in error faxed it to Acas rather than the tribunal.
The chairman refused to set aside default judgment, taking the view that first-class post should be expected to take two days to be delivered (as, indeed, it did), and so no good reason for failing to enter a Response within 28 days had been shown.
The EAT (HHJ Peter Clark) overturned this and set aside the default judgment. He agreed that no good reason had been shown for the failure to enter the Response within 28 days. However, showing a good reason was not a hurdle which had to be overcome by the Respondent - rather, it was one of the many factors that should be taken into account. When others were taken into account, including the prejudice to each party and that there was an attempt to fax the Response Form within time (albeit it was faxed to Acas in error).
The Pestle & Mortar v Turner
As subscribers will know, a Response has to be entered within 28 days, or the tribunal may enter default judgment against the Respondent.
On day 27, the Respondent's solicitors posted the Response Form to the tribunal (by first class-post). It arrived two days later, on day 29, by which time default judgment had been entered.
The solicitors also faxed a copy of the Response Form, but in error faxed it to Acas rather than the tribunal.
The chairman refused to set aside default judgment, taking the view that first-class post should be expected to take two days to be delivered (as, indeed, it did), and so no good reason for failing to enter a Response within 28 days had been shown.
The EAT (HHJ Peter Clark) overturned this and set aside the default judgment. He agreed that no good reason had been shown for the failure to enter the Response within 28 days. However, showing a good reason was not a hurdle which had to be overcome by the Respondent - rather, it was one of the many factors that should be taken into account. When others were taken into account, including the prejudice to each party and that there was an attempt to fax the Response Form within time (albeit it was faxed to Acas in error).
The Pestle & Mortar v Turner
Tuesday, 24 January 2006
Temporary Deemed Employer
The Court of Appeal has, this morning, handed down its judgment in the case of Hawley v Luminar Leisure Ltd..
Mr Hawley was visiting a nightclub when one of the doormen hit him so hard he fell to the floor and suffered serious and permanent brain injuries.
The doorman was not employed by the nightclub, but by another company (ASE Security Services Ltd) to whom the nightclub had subcontracted its security.
The Court of Appeal upheld the High Court's finding that the nightclub exercised sufficient practical control over the doorman to make it the "temporary deemed employer" for the purpose of vicarious liability. Important factors taken into account were that the doormen were subject to the nightclub's code of conduct, and the nightclub's manager supervised the doormen both in terms of where they should be stationed, and also on detailed issues such as who should be admitted and what should be done about customers who were proving troublesome.
This case is a useful example of when an organisation to whom an employee is seconded might be regarded as having legal responsibility for that employee. It is part of the developing trend seen in employment agency cases, where implied contracts of employment can arise over a period of time between agency worker and end-user.
Hawley v Luminar Leisure Ltd
Mr Hawley was visiting a nightclub when one of the doormen hit him so hard he fell to the floor and suffered serious and permanent brain injuries.
The doorman was not employed by the nightclub, but by another company (ASE Security Services Ltd) to whom the nightclub had subcontracted its security.
The Court of Appeal upheld the High Court's finding that the nightclub exercised sufficient practical control over the doorman to make it the "temporary deemed employer" for the purpose of vicarious liability. Important factors taken into account were that the doormen were subject to the nightclub's code of conduct, and the nightclub's manager supervised the doormen both in terms of where they should be stationed, and also on detailed issues such as who should be admitted and what should be done about customers who were proving troublesome.
This case is a useful example of when an organisation to whom an employee is seconded might be regarded as having legal responsibility for that employee. It is part of the developing trend seen in employment agency cases, where implied contracts of employment can arise over a period of time between agency worker and end-user.
Hawley v Luminar Leisure Ltd
Friday, 13 January 2006
New SI to help people build up pension rights
The Occupational Pension Schemes (Early Leavers: Cash Transfer Sums and Contribution Refunds) Regulations 2006 have been laid before Parliament today.
They provide that, where a member of an occupational pension scheme leaves the scheme with at least three months' qualifying service, but with no right to a pension from the scheme, they will be entitled to receive either a cash sum to be transferred to another pension scheme, or to a refund of their contributions. The choice is the member's. Currently, people are usually only entitled to a refund of contributions.
The DTI states "This will provide more of an incentive to build up pension rights than currently exists. If the member decides to take the cash transfer sum then they will benefit not only from their own contributions to the scheme but also those of the employer."
The new Regulations will come into force on 6th April 2006.
Occupational Pension Schemes (Early Leavers: Cash Transfer Sums and Contribution Refunds) Regulations 2006
They provide that, where a member of an occupational pension scheme leaves the scheme with at least three months' qualifying service, but with no right to a pension from the scheme, they will be entitled to receive either a cash sum to be transferred to another pension scheme, or to a refund of their contributions. The choice is the member's. Currently, people are usually only entitled to a refund of contributions.
The DTI states "This will provide more of an incentive to build up pension rights than currently exists. If the member decides to take the cash transfer sum then they will benefit not only from their own contributions to the scheme but also those of the employer."
The new Regulations will come into force on 6th April 2006.
Occupational Pension Schemes (Early Leavers: Cash Transfer Sums and Contribution Refunds) Regulations 2006
Friday, 6 January 2006
Mutuality of Obligation
A new decision from the Employment Appeal Tribunal, providing an example of when mutuality of obligation can exist despite no express obligation on the 'employee' to do anything!
Mr Younis was engaged to generate sales for a three year period, terminable on 60 days' notice. He was paid a small daily/monthly retainer, plus a commission. He worked for other organisations, and there was no direct contractual obligation on him to actually do any work for the 'employer' during the three year period of the contract.
The EAT (HHJ Peter Clark presiding) overturned the employment tribunal's finding that there was no mutuality of obligation.
It recognised that the normal question is whether the employer is under an obligation to provide work, and the worker to do it when provided. However, the EAT considered (on the facts of the case) that the existence of an overriding contract of three years' duration - notwithstanding that there was no express obligation to do anything during those three years - was sufficient to create mutuality of obligation.
Younis v TransGlobal Projects
Mr Younis was engaged to generate sales for a three year period, terminable on 60 days' notice. He was paid a small daily/monthly retainer, plus a commission. He worked for other organisations, and there was no direct contractual obligation on him to actually do any work for the 'employer' during the three year period of the contract.
The EAT (HHJ Peter Clark presiding) overturned the employment tribunal's finding that there was no mutuality of obligation.
It recognised that the normal question is whether the employer is under an obligation to provide work, and the worker to do it when provided. However, the EAT considered (on the facts of the case) that the existence of an overriding contract of three years' duration - notwithstanding that there was no express obligation to do anything during those three years - was sufficient to create mutuality of obligation.
Younis v TransGlobal Projects
Thursday, 5 January 2006
Statutory Grievance Procedures
Yet another decision on statutory grievances, this time dealing with the issue of whether a questionnaire under the Equal Pay Act 1970 can constitute a statement of grievance.
Under regulation 14 of the Dispute Resolution Regulations, statutory questionnaires are expressly excluded from what constitutes a statement of grievance.
The Claimant, who had served an Equal Pay questionnaire but not lodged any other grievance before bringing her claim, argued that a statutory questionnaire should be broken down into two parts. In the first part, the Claimant sets out the information about her case - and this can amount to a statement of grievance. It is only the second part, where the Claimant asks her questions, that is debarred from amounting to a statement of grievance.
The EAT (HHJ Peter Clark presiding), whilst recognising the point as arguable, rejected the submission. They held that the policy behind regulation 14 was to exclude altogether the statutory anti-discrimination questionnaire procedure from the statutory definition of grievance.
The EAT also rejected a subsidiary argument that the requirement to lodge a statutory grievance before claiming breached the Equal Pay Directive.
Holc-Gale v Makers UK Ltd EAT 2005
Under regulation 14 of the Dispute Resolution Regulations, statutory questionnaires are expressly excluded from what constitutes a statement of grievance.
The Claimant, who had served an Equal Pay questionnaire but not lodged any other grievance before bringing her claim, argued that a statutory questionnaire should be broken down into two parts. In the first part, the Claimant sets out the information about her case - and this can amount to a statement of grievance. It is only the second part, where the Claimant asks her questions, that is debarred from amounting to a statement of grievance.
The EAT (HHJ Peter Clark presiding), whilst recognising the point as arguable, rejected the submission. They held that the policy behind regulation 14 was to exclude altogether the statutory anti-discrimination questionnaire procedure from the statutory definition of grievance.
The EAT also rejected a subsidiary argument that the requirement to lodge a statutory grievance before claiming breached the Equal Pay Directive.
Holc-Gale v Makers UK Ltd EAT 2005
Monday, 19 December 2005
Review of the year 2005
For those who appreciate a light-hearted review of the employment law year, Wragge & Co. have produced a first-class summary of this year's employment law developments (and a preview of anticipated issues for 2006).
Click here to download (.pdf file)
Click here to download (.pdf file)
Thursday, 15 December 2005
Transexuals - Advocate General says UK in break of EU law
The Advocate General has, today, handed down an opinion stating that the UK is in breach of EU law.
In the UK, men are entitled to draw a state pension at 65, but women are entitled to draw a state pension at 60.
Sarah Richards is a male-to-female transexual. She underwent gender reconstruction surgery in 2001. In 2002, she applied to be paid her state pension from the age of 60, but was refused by the DWP on the grounds she was still male.
Advocate General Jacobs considered that in that situation the correct comparator is a female person whose identity is not the result of gender reassignment surgery.
In this instance, Ms Richards was denied her pension in circumstances where, had she been registered as female at birth, she would have been entitled to it. The alleged discrimination lies in the United Kingdom's failure to recognise transsexual persons in his or her acquired gender on equal terms with persons recorded as of that gender at birth. The Advocate General therefore considered that it is contrary to Community law for a Member State to refuse to grant a retirement pension before the age of 65 to a male-to-female transsexual where that person would have been entitled to a pension at the age of 60 had she been regarded as a woman as a matter of national law.
Richards v Secretary of State for Work and Pensions (press release - full text of opinion not available until later today)
[Thanks to Marianna Patane of White & Case for telling me about this case]
In the UK, men are entitled to draw a state pension at 65, but women are entitled to draw a state pension at 60.
Sarah Richards is a male-to-female transexual. She underwent gender reconstruction surgery in 2001. In 2002, she applied to be paid her state pension from the age of 60, but was refused by the DWP on the grounds she was still male.
Advocate General Jacobs considered that in that situation the correct comparator is a female person whose identity is not the result of gender reassignment surgery.
In this instance, Ms Richards was denied her pension in circumstances where, had she been registered as female at birth, she would have been entitled to it. The alleged discrimination lies in the United Kingdom's failure to recognise transsexual persons in his or her acquired gender on equal terms with persons recorded as of that gender at birth. The Advocate General therefore considered that it is contrary to Community law for a Member State to refuse to grant a retirement pension before the age of 65 to a male-to-female transsexual where that person would have been entitled to a pension at the age of 60 had she been regarded as a woman as a matter of national law.
Richards v Secretary of State for Work and Pensions (press release - full text of opinion not available until later today)
[Thanks to Marianna Patane of White & Case for telling me about this case]
Ministers of Religion are Employees
The House of Lords, in a judgment handed down this morning, has overturned decades of practice/authority by holding that ministers of religion are employees (at least for the purpose of the Sex Discrimination Act 1975).
Ms Percy was an ordained Minister of the Church of Scotland. She claimed sex discrimination. The employment tribunal, EAT and Court of Session all held she was not an employee within the meaning of the Sex Discrimination Act 1975.
It is important to note that Ms Percy did not appeal the employment tribunal's finding that she was not an employee for the purpose of claiming unfair dismissal. She said that she fell within the wider definition in the Sex Discrimination Act 1975, i.e. that she was engaged "under a contract to personally execute any work or labour".
The House of Lords upheld her appeal by a 4:1 majority.
The majority (Lords Nicholls, Hope, Scott and Baroness Hale) held:
Although the case only dealt with the definition of employee for the purpose of the SDA 1975, this decision does open the door for Ministers to argue that they are employees within the meaning of the unfair dismissal legislation as well (both Lord Nicholls and Baroness Hale suggested that the cases stating that Ministers cannot claim unfair dismissal may need to be revisited).
Percy v Church of Scotland (.pdf version)
Ms Percy was an ordained Minister of the Church of Scotland. She claimed sex discrimination. The employment tribunal, EAT and Court of Session all held she was not an employee within the meaning of the Sex Discrimination Act 1975.
It is important to note that Ms Percy did not appeal the employment tribunal's finding that she was not an employee for the purpose of claiming unfair dismissal. She said that she fell within the wider definition in the Sex Discrimination Act 1975, i.e. that she was engaged "under a contract to personally execute any work or labour".
The House of Lords upheld her appeal by a 4:1 majority.
The majority (Lords Nicholls, Hope, Scott and Baroness Hale) held:
- the fact that somebody is an office-holder does not mean they cannot simultaneously be working under a contract;
- the difficulty of establishing the identity of the 'employer', given the fragmented nature of many religious institutions, should not of itself defeat a claim;
- the offer and acceptance of a church post, with provisions for the appointee's duties and remuneration, holidays, accommodation etc. will give rise to an intention to enter legal relations;
- * it is quite apparent, given the degree of control and the requirement for Ms Percy to undertake duties in a personal capacity, that there was a contract to personally undertake work or labour.
Although the case only dealt with the definition of employee for the purpose of the SDA 1975, this decision does open the door for Ministers to argue that they are employees within the meaning of the unfair dismissal legislation as well (both Lord Nicholls and Baroness Hale suggested that the cases stating that Ministers cannot claim unfair dismissal may need to be revisited).
Percy v Church of Scotland (.pdf version)
Annual Increase in Compensation Limits
The statutory instrument containing the annual increase in compensation limits has just been laid before Parliament.
The increases take effect, as always, on 1st February (2006). They apply to dismissals occurring on or after that date).
The important increases are:
The Employment Rights (Increase of Limits) Order 2005
The increases take effect, as always, on 1st February (2006). They apply to dismissals occurring on or after that date).
The important increases are:
- maximum compensatory award to rise from £56,800 to £58,400
- maximum on a 'week's pay' to increase from £280 to £290
The Employment Rights (Increase of Limits) Order 2005
Tuesday, 13 December 2005
New President of EAT Announced
The DCA has just (12.15pm) announced that the new President of the Employment Appeal Tribunal is the Honourable Mr Justice (Patrick) Elias.
His term is from 3 January 2006 until 2 January 2009 inclusive. He will succeed the Honourable Mr Justice Burton.
His term is from 3 January 2006 until 2 January 2009 inclusive. He will succeed the Honourable Mr Justice Burton.
Friday, 9 December 2005
Maternity Suspension - Obligation to 'Avoid' Risks
An interesting point of construction of regulation 16 of the Management of Health and Safety at Work Regulations 1999 is dealt with in the EAT's judgment in New Southern Railway v Quinn.
Mrs Quinn was (effectively) demoted from the Duty Station Manager's post at Brighton station when she announced her pregnancy. The Respondent justified the demotion on the basis that it was taking steps to "avoid" physical risks (eg assault) flowing from the Duty Station Manager's position.
The employment tribunal found that this assertion was a sham, and that the Respondent had simply adopted "an extremely paternalistic and patronizing attitude towards the Claimant and her condition." It also found that the risk of assault was small and could easily be reduced further.
Before the EAT, the Appellant (employer) argued that the obligation to "avoid" risks was an absolute obligation under European law, so that if there was any risk of harm, the employer was under an absolute obligation to avoid it - in this case, by demoting the Claimant.
The EAT held this argument was wrong. Adopting a purposive approach to the word 'avoid', it held that it meant 'reduce to a low risk' or 'reduce the risk as far as possible', rather than 'eliminate the risk entirely'.
The EAT also dealt with a number of other arguments, including waiver of breach (for the purpose of constructive dismissal). This decision makes interesting reading, not least for the very lucid way both sides arguments are set out and analysed.
New Southern Railway v Quinn
Mrs Quinn was (effectively) demoted from the Duty Station Manager's post at Brighton station when she announced her pregnancy. The Respondent justified the demotion on the basis that it was taking steps to "avoid" physical risks (eg assault) flowing from the Duty Station Manager's position.
The employment tribunal found that this assertion was a sham, and that the Respondent had simply adopted "an extremely paternalistic and patronizing attitude towards the Claimant and her condition." It also found that the risk of assault was small and could easily be reduced further.
Before the EAT, the Appellant (employer) argued that the obligation to "avoid" risks was an absolute obligation under European law, so that if there was any risk of harm, the employer was under an absolute obligation to avoid it - in this case, by demoting the Claimant.
The EAT held this argument was wrong. Adopting a purposive approach to the word 'avoid', it held that it meant 'reduce to a low risk' or 'reduce the risk as far as possible', rather than 'eliminate the risk entirely'.
The EAT also dealt with a number of other arguments, including waiver of breach (for the purpose of constructive dismissal). This decision makes interesting reading, not least for the very lucid way both sides arguments are set out and analysed.
New Southern Railway v Quinn
Statutory Grievance letters
They're coming fast and furious...
Yesterday, the EAT published yet another decision on step 1 statutory grievance letters (judgment was given on 13th October, although the transcript was not released until yesterday).
As well as winning first prize in the 'easy case name to remember' competition, Commotion Ltd. v Rutty is another example of the relaxed view that tribunals are taking to whether a letter amounts to a statutory grievance letter under step 1 of the standard grievance procedure.
Mrs Rutty applied in writing for a variation to her working pattern under the flexible working provisions in s80F of the Employment Rights Act 1996. Her letter did not suggest it was to be regarded as a grievance.
Following the employer's unreasonable refusal of the request, in circumstances which the tribunal found was a breach of trust and confidence, she resigned and claimed constructive dismissal. She did not send a subsequent grievance letter.
The EAT (HHJ Burke presiding) upheld the employment tribunal's ruling that the original request to vary her contractual working pattern amounted to a step 1 grievance letter. The EAT relied upon regulation 2(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which provides that it is irrelevant whether the purported grievance letter deals with any other matter.
This decision, whilst demonstrating the relaxed view that tribunals are taking on this issue, is possibly open to being challenged at a future date on the basis that Mrs Rutty's true complaint - and reason for resigning - was not her original working pattern, but was the failure to deal properly with her request for flexible working contained within her letter. This is clearly a fact-sensitive area, which the employment tribunal (and EAT), in this case, considered fell on the side of the line where the letter complied with s32 Employment Act 2002.
The transcript is not yet on the EAT website, but it should be put up in the next week or so. Due to copyright constraints, I cannot attach a copy of the transcript to this Email.
[Thanks to Chris Carr of 36 Bedford Row (who represented Mrs Rutty) for sending me a copy of the transcript.]
Yesterday, the EAT published yet another decision on step 1 statutory grievance letters (judgment was given on 13th October, although the transcript was not released until yesterday).
As well as winning first prize in the 'easy case name to remember' competition, Commotion Ltd. v Rutty is another example of the relaxed view that tribunals are taking to whether a letter amounts to a statutory grievance letter under step 1 of the standard grievance procedure.
Mrs Rutty applied in writing for a variation to her working pattern under the flexible working provisions in s80F of the Employment Rights Act 1996. Her letter did not suggest it was to be regarded as a grievance.
Following the employer's unreasonable refusal of the request, in circumstances which the tribunal found was a breach of trust and confidence, she resigned and claimed constructive dismissal. She did not send a subsequent grievance letter.
The EAT (HHJ Burke presiding) upheld the employment tribunal's ruling that the original request to vary her contractual working pattern amounted to a step 1 grievance letter. The EAT relied upon regulation 2(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which provides that it is irrelevant whether the purported grievance letter deals with any other matter.
This decision, whilst demonstrating the relaxed view that tribunals are taking on this issue, is possibly open to being challenged at a future date on the basis that Mrs Rutty's true complaint - and reason for resigning - was not her original working pattern, but was the failure to deal properly with her request for flexible working contained within her letter. This is clearly a fact-sensitive area, which the employment tribunal (and EAT), in this case, considered fell on the side of the line where the letter complied with s32 Employment Act 2002.
The transcript is not yet on the EAT website, but it should be put up in the next week or so. Due to copyright constraints, I cannot attach a copy of the transcript to this Email.
[Thanks to Chris Carr of 36 Bedford Row (who represented Mrs Rutty) for sending me a copy of the transcript.]
Polkey Reductions
Another case from the EAT (HHJ McMullen presiding) reminding tribunals that it is incumbent on them to consider making a Polkey reduction to compensation for unfair dismissal, and that the King v Eaton situation where no reduction should be made because of the difficulty of reconstructing 'what would have happened' should rarely be adopted.
The EAT split the possible Polkey options into four categories (para. 22):
1. Length of time cases, where a dismissal would have occurred in due course;
2. Loss of chance cases, where there was a chance of surviving dismissal;
3. Cases where a reduction has been effected because the Claimant was likely to have been dismissed on another ground; and,
4. Cases where there has been no reduction because there was a complete sham
Gover v PropertyCare Ltd.
The EAT split the possible Polkey options into four categories (para. 22):
1. Length of time cases, where a dismissal would have occurred in due course;
2. Loss of chance cases, where there was a chance of surviving dismissal;
3. Cases where a reduction has been effected because the Claimant was likely to have been dismissed on another ground; and,
4. Cases where there has been no reduction because there was a complete sham
Gover v PropertyCare Ltd.
Thursday, 8 December 2005
What is a Grievance Letter?
Hot on the heels of HHJ Peter Clark's decision in Thorpe & Soleil Investments v Poat & Lake (see bulletin 25/11/05) comes an even more important decision on what does (or does not) constitute a step 1 grievance letter for the purpose of the (standard) statutory grievance procedure.
In Shergold v Fieldway Medical Centre (EAT, 5/12/05), the Claimant wrote a three-page resignation letter setting out the reasons for her resignation. She did not ask for it to be treated as a grievance, although her employers invited her to a meeting to discuss the issues she raised before accepting her resignation.
The employment tribunal held that this did not amount to a step 1 grievance letter, but was instead properly classified as a resignation letter.
The Employment Appeal Tribunal (Burton P. presiding) overturned this, holding:
Shergold v Fieldway Medical Centre
In Shergold v Fieldway Medical Centre (EAT, 5/12/05), the Claimant wrote a three-page resignation letter setting out the reasons for her resignation. She did not ask for it to be treated as a grievance, although her employers invited her to a meeting to discuss the issues she raised before accepting her resignation.
The employment tribunal held that this did not amount to a step 1 grievance letter, but was instead properly classified as a resignation letter.
The Employment Appeal Tribunal (Burton P. presiding) overturned this, holding:
- there is no formality required in a statutory standard grievance letter. The requirements "are minimal" - all an employee needs to do is set out his or her complaint in writing (para 30)
- the statutory procedures should rarely result in the Claimant being debarred or the employer being liable for an automatic unfair dismissal. Burton P. states that the purpose behind the statutory grievance procedures is, like the civil court pre-action protocols, to give the parties a chance to settle disputes before litigating. "The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here...It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those are sanctions, which should be very rarely used; the purpose of the legislation is quite other, as we have described" (para 28)
- the fact that the written grievance is contained in a letter of resignation "makes no difference at all", provided that it is the setting out of a complaint in writing (para 31)
- it is not necessary to make it plain in the writing that it is a grievance, or is an invocation of a grievance procedure (para 33)
- there is equally no requirement that an employee must comply with any company or contractual grievance procedure (para 34)
- it is not necessary that every detail of the complaint be set out, as a grievance letter is not a pleading. It is sufficient if the employe can "understand the general nature of the complaint being made" (para 37)
- it is also unnecessary that the employer have the chance to respond to the grievance; all the statute requires (for the standard procedure) is for the employee to set out his complaint in writing (para 38)
Shergold v Fieldway Medical Centre
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