As reported in my bulletin of 4/7/06, Heyday (an organisation created by and closely associated with Age Concern) has issued a judicial review application in the High Court challenging the legality of the Employment Equality (Age) Regulations 2006.
In essence, they argue that the Regulations permit forced retirement at age 65, which is inconsistent with the EU Equal Treatment Framework Directive.
At a recent permission application, the Divisional Court has 'rolled-up' the permission and substantive JR applications, to be expedited and heard together on December 6th 2006.
For Heyday's report, see here. And it's worth having a look at their interesting 'Six myths about Forced Retirement', on pages 8 and 9 of this document.
Thursday, 5 October 2006
Enhanced Redundancy Payouts
The Court of Appeal has, today, handed down judgment in Keeley v Fosroc International Ltd..
For once, it's easy to summarise. Here goes...
Where a staff handbook contains details of an enhanced redundancy payment, there is a presumption that it has contractual status (rather than 'policy' status) and can be relied upon by an employee to bring a breach of contract claim.
If you're running any cases where this is an issue, paragraph 34 is the one to read.
Keeley v Fosroc International Ltd.
For once, it's easy to summarise. Here goes...
Where a staff handbook contains details of an enhanced redundancy payment, there is a presumption that it has contractual status (rather than 'policy' status) and can be relied upon by an employee to bring a breach of contract claim.
If you're running any cases where this is an issue, paragraph 34 is the one to read.
Keeley v Fosroc International Ltd.
Wednesday, 4 October 2006
Strike Outs
The EAT has handed down an interesting and practical decision dealing with strike outs.
The employer had been in breach of various tribunal orders. It then turned up to a two-day tribunal hearing, having not peviously served witness statements, clutching a 26-page statement which the Claimant was unable to deal with. The tribunal debarred the employer from defending the liability hearing, on the basis a fair trial was not possible, but allowed it to contest quantum.
The EAT upheld the decision to debar the employer from contesting liability. Importantly (and usefully for defaulting litigants), the EAT pointed out that an adjournment, with the consequent delay, is not usually going to be enough to mean a fair trial is not possible - see para. 17.
However, the two additional factors which meant a fair trial was not possible were:
* the employer had seen the Claimant's statements before drafting its own, giving it an unfair advantage (para. 14); and,
* the Claimant's barrister was acting pro bono, and s/he might not have been available at any adjourned hearing (also para. 14).
Premium Care Homes v Osborne
The employer had been in breach of various tribunal orders. It then turned up to a two-day tribunal hearing, having not peviously served witness statements, clutching a 26-page statement which the Claimant was unable to deal with. The tribunal debarred the employer from defending the liability hearing, on the basis a fair trial was not possible, but allowed it to contest quantum.
The EAT upheld the decision to debar the employer from contesting liability. Importantly (and usefully for defaulting litigants), the EAT pointed out that an adjournment, with the consequent delay, is not usually going to be enough to mean a fair trial is not possible - see para. 17.
However, the two additional factors which meant a fair trial was not possible were:
* the employer had seen the Claimant's statements before drafting its own, giving it an unfair advantage (para. 14); and,
* the Claimant's barrister was acting pro bono, and s/he might not have been available at any adjourned hearing (also para. 14).
Premium Care Homes v Osborne
Tuesday, 3 October 2006
Equal Pay
The ECJ has, today, handed down its decision in Cadman v Health & Safety Executive (see bulletin 18/10/04 for more information on the reference to the ECJ).
Departing from the Advocate-General's opinion, the ECJ held that it is not necessary for an employer to provide objective justification for pay disparities which arise as the result of 'length of service' criteria. The two key points from the judgment are:
The case will now (October 2006) go back to the Court of Appeal to decide whether the points raised on behalf of Mrs. Cadman amount to "serious doubts" as to whether it was "appropriate" for the HSE to use of length of service in setting pay levels designed "to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better".
With thanks to www.emplaw.co.uk for allowing me to reproduce their case summary
Cadman v Health & Safety Executive
Departing from the Advocate-General's opinion, the ECJ held that it is not necessary for an employer to provide objective justification for pay disparities which arise as the result of 'length of service' criteria. The two key points from the judgment are:
- "since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard"
- "where a job classification system based on an evaluation of the work to be carried out is used in determining pay, there is no need to show that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better."
The case will now (October 2006) go back to the Court of Appeal to decide whether the points raised on behalf of Mrs. Cadman amount to "serious doubts" as to whether it was "appropriate" for the HSE to use of length of service in setting pay levels designed "to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better".
With thanks to www.emplaw.co.uk for allowing me to reproduce their case summary
Cadman v Health & Safety Executive
Wednesday, 27 September 2006
Its all happening Sunday...
Sunday, 1st October 2006 sees new employment legislation come into force. Here are the highlights...
Age Discrimination
Yup, we must have all missed that one. Full details here.
New rights for mums
Expectant women who are less than three months pregnant as on 1st October get various new rights with effect from 1st April 2007. Key points include six months' ordinary maternity leave, six months' additional maternity leave - irrespective of length of service. Also, employers can make 'reasonable' contact with women on maternity leave, without fear of being sued for constructive dismissal, sex discrimination and everything else under the sun. Likewise, women can do some work whilst on maternity leave without losing their entitlement to SMP. Importantly, those returning early from maternity leave will need to give eight weeks' notice (previously 28 days). Full details here.
Gangmasters
It becomes a criminal offence for gangmasters to operate without a license. Frankly, I wouldn't know what an unlicensed gangmaster looked like if he kicked me in the teeth (which he probably would!).
Minimum Wage
Increases to £5.35 for those aged 22+, £4.45ph for 18-21 year olds, and £3.30ph for 16 and 17 year olds. Oh yes, and 25p ph for lawyers doing criminal legal aid. Details here.
Collective Redundancies
Section 193 of TULR(C)A 1992 is amended to provide that notice of redundancy must be given to the DTI at least 30 days before giving notice to terminate an employee's contract of employment (rather than before the actual dismissal date). Sounds like Junk to me (think about it!).
Age Discrimination
Yup, we must have all missed that one. Full details here.
New rights for mums
Expectant women who are less than three months pregnant as on 1st October get various new rights with effect from 1st April 2007. Key points include six months' ordinary maternity leave, six months' additional maternity leave - irrespective of length of service. Also, employers can make 'reasonable' contact with women on maternity leave, without fear of being sued for constructive dismissal, sex discrimination and everything else under the sun. Likewise, women can do some work whilst on maternity leave without losing their entitlement to SMP. Importantly, those returning early from maternity leave will need to give eight weeks' notice (previously 28 days). Full details here.
Gangmasters
It becomes a criminal offence for gangmasters to operate without a license. Frankly, I wouldn't know what an unlicensed gangmaster looked like if he kicked me in the teeth (which he probably would!).
Minimum Wage
Increases to £5.35 for those aged 22+, £4.45ph for 18-21 year olds, and £3.30ph for 16 and 17 year olds. Oh yes, and 25p ph for lawyers doing criminal legal aid. Details here.
Collective Redundancies
Section 193 of TULR(C)A 1992 is amended to provide that notice of redundancy must be given to the DTI at least 30 days before giving notice to terminate an employee's contract of employment (rather than before the actual dismissal date). Sounds like Junk to me (think about it!).
Age Discrimination - Superb Resources Page
The Age Positive website has put together a fantastic page of links and resources for age discrimination. Links/resources include:
View Age Positive Links / Resources Page (you'll need to scroll down to the bottom when you open the page)
- precedent letters to employees
- an age-bias free application form
- all the official Acas and DTI guidance
View Age Positive Links / Resources Page (you'll need to scroll down to the bottom when you open the page)
Friday, 8 September 2006
Statutory Dismissal Procedure
The EAT has handed down an important decision on the necessary content of a step 1 dismissal letter.
An employee was dismissed for being found in a company van, about to drive, having consumed alcohol. He was in breach of a 'zero tolerance' rule. The step 1 letter simply referred to ""conduct which fails to reasonably ensure Health and Safety of oneself and others."
The EAT held that that the letter was sufficient to comply with step 1 of the statutory dismissal procedure (adopting an analogous position to the grievance letter cases such as Shergold).
Further, if the words of what is put forward as a Step 1 letter are ambiguous or a Tribunal is doubtful as to whether they are sufficient, the Tribunal is entitled to look at the whole context, including whether the employee knew what the allegations against him were, in deciding whether there had been compliance with Step 1. Interestingly, the tribunal left open for another day the question of whether just putting 'misconduct' in the letter would suffice (para. 49).
Draper v Mears Ltd
An employee was dismissed for being found in a company van, about to drive, having consumed alcohol. He was in breach of a 'zero tolerance' rule. The step 1 letter simply referred to ""conduct which fails to reasonably ensure Health and Safety of oneself and others."
The EAT held that that the letter was sufficient to comply with step 1 of the statutory dismissal procedure (adopting an analogous position to the grievance letter cases such as Shergold).
Further, if the words of what is put forward as a Step 1 letter are ambiguous or a Tribunal is doubtful as to whether they are sufficient, the Tribunal is entitled to look at the whole context, including whether the employee knew what the allegations against him were, in deciding whether there had been compliance with Step 1. Interestingly, the tribunal left open for another day the question of whether just putting 'misconduct' in the letter would suffice (para. 49).
Draper v Mears Ltd
Amending Claim Forms to add newly accrued claims
The EAT has held that it is permissible to amend a Claim Form, so as to include a claim which did not exist at the time the Claim Form was originally presented.
To put it more technically, an Employment Tribunal has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principle set out in Selkent Bus Company v Moore.
This is an important procedural decision - previously it was standard practice for an employee to have to issue a second Claim Form and apply for the two cases to be heard together.
The EAT's reasoning is at paragraphs 61-63, and is very much a (sensible) policy argument.
The case is also authority for what might seem the uncontroversial proposition that a successful appeal against dismissal, taking place after a fixed term contract would otherwise have expired, does not have the effect of extending the employee's employment beyond the agreed date of expiry of the fixed term contract.
Prakash v Wolverhampton City Council
To put it more technically, an Employment Tribunal has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principle set out in Selkent Bus Company v Moore.
This is an important procedural decision - previously it was standard practice for an employee to have to issue a second Claim Form and apply for the two cases to be heard together.
The EAT's reasoning is at paragraphs 61-63, and is very much a (sensible) policy argument.
The case is also authority for what might seem the uncontroversial proposition that a successful appeal against dismissal, taking place after a fixed term contract would otherwise have expired, does not have the effect of extending the employee's employment beyond the agreed date of expiry of the fixed term contract.
Prakash v Wolverhampton City Council
Thursday, 31 August 2006
Grievance Procedures and Limitation
The Employment Appeal Tribunal has held that time limits are not extended under the statutory dispute resolution procedures, where an employee brings a discrimination claim against another employee.
The Claimant brought a race discrimination claim against her employer and the individual she claimed had discriminated against her. The claims were presented over three months, but less than six months, after the discrimination allegedly took place.
As against the employer, the three-month limitation period was undoubtedly extended to six months following her submission of a step 1 grievance letter.
However, the EAT held that there was no extension of time in respect of the claim against the fellow employee, as the statutory grievance procedure did not apply - and therefore the provisions extending the limitation period did not engage. Accordingly the claim was prima facie out of time.
The conclusion is undoubtedly correct. It is quite plain from the wording of the legislation that the statutory dispute resolution framework is not intended to apply to disputes between fellow employees - thus the result of this case is unimpeachable.
However, the EAT's reasoning in reaching that conclusion was (in part) flawed, as the EAT relied on s30 of the Employment Act 2002. This provides that the statutory grievance procedures are deemed to be implied into the contract of employment - and since the Claimant had no contract with her fellow employee, the statutory grievance procedure could not have applied. This reasoning is incorrect as s30 has not been brought into force (the DTI is reviewing this, amongst other matters, later this year).
Bisset v Martins & Castlehill
[Thanks to Sandy Kemp of Simpson & Marwick, who represented the Respondent, for passing me this decision.]
The Claimant brought a race discrimination claim against her employer and the individual she claimed had discriminated against her. The claims were presented over three months, but less than six months, after the discrimination allegedly took place.
As against the employer, the three-month limitation period was undoubtedly extended to six months following her submission of a step 1 grievance letter.
However, the EAT held that there was no extension of time in respect of the claim against the fellow employee, as the statutory grievance procedure did not apply - and therefore the provisions extending the limitation period did not engage. Accordingly the claim was prima facie out of time.
The conclusion is undoubtedly correct. It is quite plain from the wording of the legislation that the statutory dispute resolution framework is not intended to apply to disputes between fellow employees - thus the result of this case is unimpeachable.
However, the EAT's reasoning in reaching that conclusion was (in part) flawed, as the EAT relied on s30 of the Employment Act 2002. This provides that the statutory grievance procedures are deemed to be implied into the contract of employment - and since the Claimant had no contract with her fellow employee, the statutory grievance procedure could not have applied. This reasoning is incorrect as s30 has not been brought into force (the DTI is reviewing this, amongst other matters, later this year).
Bisset v Martins & Castlehill
[Thanks to Sandy Kemp of Simpson & Marwick, who represented the Respondent, for passing me this decision.]
Tuesday, 22 August 2006
Mutuality of Obligation
The EAT has, in a decision handed down yesterday, neatly circumvented the requirement for mutuality of obligation in an employment contract.
The Claimant, a TV reporter for ABC, was employed under a framework agreement whereby ABC was obliged to offer him at least 100 days' work a year, and he was entitled to either accept or refuse the assignment(s).
The employment tribunal held that there was no mutuality of obligation, since the Claimant was not obliged to accept any work.
The EAT, striving to reach a decision which was plainly fair on the facts (read the judgment!), held that there was an implied obligation for the Claimant to decide whether to accept or refuse assignments in good faith. Thus mutuality could be implied into the arrangements, and the Claimant achieved continuity of employment to bring an unfair dismissal claim.
The judgment also contains some interesting (but largely fact-sensitive) comments on the scope of ERA 1996, s100 (automatically unfair dismissals for health & safety reason).
ABC News International v Gizbert
The Claimant, a TV reporter for ABC, was employed under a framework agreement whereby ABC was obliged to offer him at least 100 days' work a year, and he was entitled to either accept or refuse the assignment(s).
The employment tribunal held that there was no mutuality of obligation, since the Claimant was not obliged to accept any work.
The EAT, striving to reach a decision which was plainly fair on the facts (read the judgment!), held that there was an implied obligation for the Claimant to decide whether to accept or refuse assignments in good faith. Thus mutuality could be implied into the arrangements, and the Claimant achieved continuity of employment to bring an unfair dismissal claim.
The judgment also contains some interesting (but largely fact-sensitive) comments on the scope of ERA 1996, s100 (automatically unfair dismissals for health & safety reason).
ABC News International v Gizbert
Friday, 18 August 2006
Judicial Mediation Plot
A new Judicial Mediation Pilot Scheme has been launched.
With the parties' consent, the case will be stayed pending mediation by a full-time tribunal chairman (specially trained for the purpose). The mediation can last for up to two days.
It applies to sex, race and disability discrimination cases, normally where there is an ongoing employment relationship. The trial is running for 6-12 months in Birmingham, London Central and Newcastle (Newcastle will also be mediating equal pay claims).
A guidance note for parties is available, giving further information about the pilot scheme. I've got a rather poor faxed copy of it here, but better copies are probably available somewhere!
[Thanks to Ed McFarlane of RBS Mentor for telling me about this.]
With the parties' consent, the case will be stayed pending mediation by a full-time tribunal chairman (specially trained for the purpose). The mediation can last for up to two days.
It applies to sex, race and disability discrimination cases, normally where there is an ongoing employment relationship. The trial is running for 6-12 months in Birmingham, London Central and Newcastle (Newcastle will also be mediating equal pay claims).
A guidance note for parties is available, giving further information about the pilot scheme. I've got a rather poor faxed copy of it here, but better copies are probably available somewhere!
[Thanks to Ed McFarlane of RBS Mentor for telling me about this.]
Tuesday, 15 August 2006
2004 Workplace Employment Relations Survey
The DTI has today published the first findings from the 2004 Workplace Employment Relations Survey. This is the fifth survey in the series - previous surveys were conducted in 1980, 1984, 1990 and 1998.
It provides an up to date account of the state of employment relations in Britain, together with information on changes that have occurred in workplaces since the last survey was conducted.
They survey covers methods of recruitment, workplace consultation, pay and benefits, workplace conflicts (such as disciplinary and grievance procedures), equal opportunities, work-life balance and other fascinating miscellanea. The summary is at page 35.
View report (large .pdf file - takes 30 seconds to download)
It provides an up to date account of the state of employment relations in Britain, together with information on changes that have occurred in workplaces since the last survey was conducted.
They survey covers methods of recruitment, workplace consultation, pay and benefits, workplace conflicts (such as disciplinary and grievance procedures), equal opportunities, work-life balance and other fascinating miscellanea. The summary is at page 35.
View report (large .pdf file - takes 30 seconds to download)
Paying Tax Twice
The heading makes this case sound boring, but it is important.
This case is authority for the proposition that HM Revenue and Customs is entitled to charge an employer full tax and NI under the PAYE regulations, where the parties have wrongly viewed the employee as self-employed, without giving credit for the tax and national insurance already paid directly by the 'employee'.
Mr Bone and his employer genuine believed he was self-employed. For some ten years, he sent invoices and was paid gross. He completed annual accounts and paid his own tax.
The Inland Revenue (as it was then called) then decided that he was employee rather than self-employed, an assessment with which the Special Commissioner agreed. Following a failure by the employer to agree back-tax, the Revenue levied a tax determination for the full amount of tax, without giving credit for the tax which the individual had been paying each year.
The Special Commissioner upheld this approach. He suggested that the Revenue negotiate an appropriate settlement to give credit for the tax already paid, but he had no power to order such credit.
The effect of this decision is that the Revenue can recover tax twice in a situation where an individual has been paying tax (wrongly) as a self-employed person. Often the individual will be able to recover his own payments of tax in subsequent years; however (as here), sometimes the payments date back too far and the employee will have lost the right to claim back previous overpayments.
Demibourne Ltd v HM Revenue & Customs
This case is authority for the proposition that HM Revenue and Customs is entitled to charge an employer full tax and NI under the PAYE regulations, where the parties have wrongly viewed the employee as self-employed, without giving credit for the tax and national insurance already paid directly by the 'employee'.
Mr Bone and his employer genuine believed he was self-employed. For some ten years, he sent invoices and was paid gross. He completed annual accounts and paid his own tax.
The Inland Revenue (as it was then called) then decided that he was employee rather than self-employed, an assessment with which the Special Commissioner agreed. Following a failure by the employer to agree back-tax, the Revenue levied a tax determination for the full amount of tax, without giving credit for the tax which the individual had been paying each year.
The Special Commissioner upheld this approach. He suggested that the Revenue negotiate an appropriate settlement to give credit for the tax already paid, but he had no power to order such credit.
The effect of this decision is that the Revenue can recover tax twice in a situation where an individual has been paying tax (wrongly) as a self-employed person. Often the individual will be able to recover his own payments of tax in subsequent years; however (as here), sometimes the payments date back too far and the employee will have lost the right to claim back previous overpayments.
Demibourne Ltd v HM Revenue & Customs
Reasons
Regulars in the EAT will be all too familiar with 'reasons' appeals, where it is argued that a tribunal failed to give a sufficient explanation of why they reached their conclusions - hence making it impossible to see whether they fell into an error of law.
The seminal case on this is English v Emery Reimbold (2002, CA). The Court of Appeal has now heard another case, which it describes as 'following on' from English.
In McLoughlin v Jones, the Court of Appeal had to decide on the impact on the decision if one of several reasons given by a judge turns out to be wrong.
Arden LJ, giving the leading judgment, robustly emphasises the reluctance of an appellate court to interfere with the decision below. Her judgment is lengthy, involving a trawl through findings of fact (in a professional negligence case).
The core paragraphs are paras. 72 and 74. The Court holds that a first instance decision should not be overturned where the "overriding reason for rejecting the claim remains" - notwithstanding the presence of four errors in the court's decision.
Arden LJ continues to say (para. 74), "It is necessary, in my judgment, to look at the imperfections in the judgment as a whole, cumulatively. Even so, they are not in my judgment to shake the foundations on which the judgment was based".
'Shaking the foundations of the judgment' - a pretty high test? Certainly one which, if followed by the EAT, will result in far fewer 'reasons' appeals succeeding (or being allowed through the sift).
McLoughlin v Jones
The seminal case on this is English v Emery Reimbold (2002, CA). The Court of Appeal has now heard another case, which it describes as 'following on' from English.
In McLoughlin v Jones, the Court of Appeal had to decide on the impact on the decision if one of several reasons given by a judge turns out to be wrong.
Arden LJ, giving the leading judgment, robustly emphasises the reluctance of an appellate court to interfere with the decision below. Her judgment is lengthy, involving a trawl through findings of fact (in a professional negligence case).
The core paragraphs are paras. 72 and 74. The Court holds that a first instance decision should not be overturned where the "overriding reason for rejecting the claim remains" - notwithstanding the presence of four errors in the court's decision.
Arden LJ continues to say (para. 74), "It is necessary, in my judgment, to look at the imperfections in the judgment as a whole, cumulatively. Even so, they are not in my judgment to shake the foundations on which the judgment was based".
'Shaking the foundations of the judgment' - a pretty high test? Certainly one which, if followed by the EAT, will result in far fewer 'reasons' appeals succeeding (or being allowed through the sift).
McLoughlin v Jones
Wednesday, 9 August 2006
Age Discrimination Questionnaire Published
The DTI has, this morning, published the official age discrimination questionnaire (.pdf document). It is in similar form to questionnaires under other pieces of discrimination legislation.
The new questionnaire repackages, in a more attractive and user-friendly form, the technical questionnaire set out in Schedules 3 and 4 of the Employment Equality (Age) Regulations 2006.
The new questionnaire repackages, in a more attractive and user-friendly form, the technical questionnaire set out in Schedules 3 and 4 of the Employment Equality (Age) Regulations 2006.
Monday, 7 August 2006
No duty to pay full pay to disabled employee when off sick
The Employment Appeal tribunal has handed down an important Disability Discrimination Act case, dealing with whether a failure to pay disabled employees full pay when off sick is either a failure to make reasonable adjustments, or disability-related discrimination.
The employer (HM Revenue & Customs) offers six months' full pay to all employees who were absent from work on grounds of health, followed by six-months on half pay. Mrs O'Hanlon, who was clinically depressed, claimed that the failure to pay her during her absence at full pay was either a failure to make reasonable adjustment to compensate for her disability, or unjustified disability-related discrimination.
The EAT held:
As readers know, once in a while I recommend reading decisions simply for the clarity of reasoning and the useful overview of the law. This is one of those cases. Read it.
O'Hanlon v HM Revenue & Customs
The employer (HM Revenue & Customs) offers six months' full pay to all employees who were absent from work on grounds of health, followed by six-months on half pay. Mrs O'Hanlon, who was clinically depressed, claimed that the failure to pay her during her absence at full pay was either a failure to make reasonable adjustment to compensate for her disability, or unjustified disability-related discrimination.
The EAT held:
- it will be "a very rare case indeed" where the duty to make reasonable adjustments entails paying a disabled absent employee more than a non-disabled absent employee (para. 67), as to do so would mean "the Tribunals would be entering into a form of wage fixing for the disabled sick" (para 68). It would also fall foul of the DDA's policy objective, which is to assist the integration of disabled people into the workplace. If the DDA required employers to provide or enhance long-term sick payments to disabled people, it would actually be providing a disincentive to them returning to work (para. 69)
- a reduction of pay because of sick absence is - where the employee is disabled - disability-related discrimination. The reason for cutting pay is that the employee is absent for 26 weeks, and the underlying reason for her absence was her disability (paras. 83-87)
- however, the disability-related discrimination (not paying full pay) was justified. Once it is established that the duty to make reasonable adjustments does not require an employer to pay full pay to a disabled absent employee, it is very easy to establish that a failure to make such payment is justified.
As readers know, once in a while I recommend reading decisions simply for the clarity of reasoning and the useful overview of the law. This is one of those cases. Read it.
O'Hanlon v HM Revenue & Customs
Monday, 31 July 2006
New Age Positive Guidance Notes
Age Positive, the organisation set up by the Department of Work and Pensions, has issued a series of guidance notes entitled 'The Facts, not the Myths'.
Without wanting to be dismissive of the others, the two which are worth looking at:
The full list can be seen on their news page.
Of course, the best guide to age discrimination (at least, in my humble opinion) remains my 170-page analysis notes on age discrimination.
Without wanting to be dismissive of the others, the two which are worth looking at:
- Insurance and age in the workplace - the facts, not the myths; and,
- Age, health and employability - the facts, not the myths"
The full list can be seen on their news page.
Of course, the best guide to age discrimination (at least, in my humble opinion) remains my 170-page analysis notes on age discrimination.
Smoking Ban - Draft Regs
Fancy a cigarette? It'll cost you £50...
The draft Smoke-Free (General Provisions) Regulations have been published for consultation by the Department of Health. The consultation period expires on 9th October 2006.
In a nutshell...
View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)
The draft Smoke-Free (General Provisions) Regulations have been published for consultation by the Department of Health. The consultation period expires on 9th October 2006.
In a nutshell...
- all work premises are to be 'smoke-free' if enclosed or "substantially enclosed" - defined as meaning premises with a ceiling unless more than 50% of the 'wall' area is open to outside.
- all employers (or, more accuately, occupiers of the premises) must display a prominent 'No Smoking' sign. The sign must be of at least A5 size and contain the 'No Smoking' logo, together with the words "No Smoking. It is against the law to smoke in these premises except in a designated room."
- company cars are deemed to be entirely non-smoking if they might be used by more than one person, unless it is a convertible car and the roof is open
- there is an exemption for bedrooms in residential accommodation
- there is no exemption allowing employers to have designated 'smoking rooms'
- an employer who fails to display a prominent 'No Smoking' sign is subject to a fixed penalty of £200 (discounted to £150 if paid within 15 days). If unpaid (or the fixed penalty notice is challenged), a fine of up to £1,000 (and a criminal record) may be levied
- an employee (or visitor) who is caught smoking is subject to a fixed penalty of £50 (discounted to £30 if paid within 15 days). If unpaid (or the fixed penalty notice is challenged), a fine of up to £200 (and a criminal record) may be levied
- an employer who fails to take reasonable steps to prevent smoking (and displaying the 'No Smoking' sign is not enough) is liable to a fine of up to £2,500. There is no fixed penalty alternative.
View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)
Reinstating Withdrawn Claims
The Court of Appeal has upheld the EAT's judgment in Khan v Heywood & Middleton Primary Care Trust (see bulletin dated 25/1/06). The case deals with the "lamentable" (para.78) drafting of rule 25 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.
The case is authority for the proposition that:
Khan v Heywood & Middleton Primary Care Trust
The case is authority for the proposition that:
- if a Claimant sends a Notice of Withdrawal to the tribunal, the claim is at an end and the tribunal has no power to reinstate the claim at a later date (despite the wording of rule 25(4));
- if the Respondent subsequently applies (successfully) for the withdrawn claim to be formally dismissed, then the Claimant cannot bring a fresh claim based upon the same or similar facts. If the Respondent fails to secure the formal dismissal of the withdrawn claim, the Claimant is free to issue a fresh claim (subject to limitation issues) based upon the same or similar facts.
Khan v Heywood & Middleton Primary Care Trust
Statutory Grievance / Tribunal Procedure
The EAT has handed down a decision dealing with an interesting little problem arising from the statutory grievance procedures.
The Claimant brought three discrimination claims to which the statutory grievance procedure applied. In respect of claim 1, she had waited the mandatory 28 days after submitting a step 1 grievance letter before presenting her claim. In respect of claims 2 and 3, the employer had completed its internal grievance procedure and she therefore presented her claims before the 28 day window had elapsed.
The tribunal heard all three claims, stating it would reach a decision on its jurisdiction to hear claims 2 and 3 as part of its substantive decision. It told the parties that if it found it lacked jurisdiction, it would simply express preliminary conclusions on claims 2 and 3. The Claimant would then be able to re-present those claims, as she was still within the extended limitation period.
In the event, the tribunal found in her favour but found it lacked jurisdiction. She presented fresh claims. By agreement, the evidence at the first hearing was allowed to stand as evidence at the second hearing. However, the tribunal refused to allow the employer to adduce further evidence at the second hearing, on the basis that the overriding objective meant the employer should not have a second bite at the cherry. Unsurprisingly, it found in favour of the employee.
The EAT (Elias P. presiding) held that the tribunal was wrong to refuse to allow the employer to adduce further evidence. It held (para. 30) that the employer is entitled to adduce evidence before a tribunal which has jurisdiction to hear the claim.
Interestingly, the EAT was critical of the existence of the 28-day period when an employee cannot present a tribunal claim - particularly in circumstances such as this where the parties had been through the internal grievance procedure within that period, where the bar on an employee bringing a claim was said to be "most unsatisfactory" (para. 29).
Exel Management Ltd v Lumb
The Claimant brought three discrimination claims to which the statutory grievance procedure applied. In respect of claim 1, she had waited the mandatory 28 days after submitting a step 1 grievance letter before presenting her claim. In respect of claims 2 and 3, the employer had completed its internal grievance procedure and she therefore presented her claims before the 28 day window had elapsed.
The tribunal heard all three claims, stating it would reach a decision on its jurisdiction to hear claims 2 and 3 as part of its substantive decision. It told the parties that if it found it lacked jurisdiction, it would simply express preliminary conclusions on claims 2 and 3. The Claimant would then be able to re-present those claims, as she was still within the extended limitation period.
In the event, the tribunal found in her favour but found it lacked jurisdiction. She presented fresh claims. By agreement, the evidence at the first hearing was allowed to stand as evidence at the second hearing. However, the tribunal refused to allow the employer to adduce further evidence at the second hearing, on the basis that the overriding objective meant the employer should not have a second bite at the cherry. Unsurprisingly, it found in favour of the employee.
The EAT (Elias P. presiding) held that the tribunal was wrong to refuse to allow the employer to adduce further evidence. It held (para. 30) that the employer is entitled to adduce evidence before a tribunal which has jurisdiction to hear the claim.
Interestingly, the EAT was critical of the existence of the 28-day period when an employee cannot present a tribunal claim - particularly in circumstances such as this where the parties had been through the internal grievance procedure within that period, where the bar on an employee bringing a claim was said to be "most unsatisfactory" (para. 29).
Exel Management Ltd v Lumb
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