Calm down everyone. The Employment Equality (Age) (Amendment No.2) Regulations 2006 have been laid before Parliament.
Coming into force in just a fortnight (1st December 2006), the regulations make substantial amendments to Schedule 2 of the main Age Regs. They clarify and extend many of the exemptions relating to trustees and managers of pension schemes.
Sorry - just paused a moment to yawn. Anyway, carrying on, it's always nice to see the government complying with the Cabinet Office's Better Regulation Guidelines (which say that companies should have a minimum of 12 weeks to comply with new regulations). Still, it's not like we haven't known age laws were coming since 2000...
And if anyone is still reading, the CBI have hailed these amendments as a great victory for common sense - see their press release.
The Employment Equality (Age) (Amendment No.2) Regulations 2006
Friday, 17 November 2006
Thursday, 16 November 2006
Statutory Grievance Procedures: Time Limits
A great description by a High Court Judge of the 2004 procedures as "rebarbative" (go on, look it up here!).
In this case, the EAT rejected the argument that the three-month extension of time following sending a grievance does not engage if the grievance is sent before the effective date of termination.
Curiously, the argument is technically correct (if you suffer from a virulent strain of pedantry). But the result is absurd, and the EAT had no hesitation in dismissing the appeal. Underhill J. held that the extension of time for presenting a claim arises even when the grievance is lodged before the effective date of termination, and therefore not technically 'within the normal time limit'.
Curiously, the point arose in two cases on which judgment was handed down by the same judge on the same day. The main case is HM Prison Service v Barula, and the reasoning was affirmed then in Lewisham v Colbourne
In this case, the EAT rejected the argument that the three-month extension of time following sending a grievance does not engage if the grievance is sent before the effective date of termination.
Curiously, the argument is technically correct (if you suffer from a virulent strain of pedantry). But the result is absurd, and the EAT had no hesitation in dismissing the appeal. Underhill J. held that the extension of time for presenting a claim arises even when the grievance is lodged before the effective date of termination, and therefore not technically 'within the normal time limit'.
Curiously, the point arose in two cases on which judgment was handed down by the same judge on the same day. The main case is HM Prison Service v Barula, and the reasoning was affirmed then in Lewisham v Colbourne
DDA: Reasonable Adjustments on Redundancy
The Court of Appeal has handed down its decision in NTL Group Ltd v Difolco.
Mrs Difolco, who was partially paralysed and could only work part-time, was made redundant. She was offered the chance to apply for another job as being suitable alternative employment. This other job was advertised on a full-time basis but she was told that (should she be appointed) the employer would consider changing the role to part-time. However, she refused to apply unless the job was changed to part-time before she applied.
She claimed that by failing to convert the job to part-time, the employer had failed to make reasonable adjustments.
The Court of Appeal, disagreeing with the EAT, held that this could not amount to a failure to make reasonable adjustments. Until Mrs Difolco had applied for the job, no duty to make reasonable adjustments arose. As Laws LJ said: "If the mere fact of advertising for a full-time job can constitute an 'arrangement' for the purposes of the DDA then on the face of it it would potentially discrimination against the whole innominate class of possible disabled applicants for the job. That, it may well be thought, would be a reductio ad absurdum." (para. 13)
NTL Group v Difolco
Mrs Difolco, who was partially paralysed and could only work part-time, was made redundant. She was offered the chance to apply for another job as being suitable alternative employment. This other job was advertised on a full-time basis but she was told that (should she be appointed) the employer would consider changing the role to part-time. However, she refused to apply unless the job was changed to part-time before she applied.
She claimed that by failing to convert the job to part-time, the employer had failed to make reasonable adjustments.
The Court of Appeal, disagreeing with the EAT, held that this could not amount to a failure to make reasonable adjustments. Until Mrs Difolco had applied for the job, no duty to make reasonable adjustments arose. As Laws LJ said: "If the mere fact of advertising for a full-time job can constitute an 'arrangement' for the purposes of the DDA then on the face of it it would potentially discrimination against the whole innominate class of possible disabled applicants for the job. That, it may well be thought, would be a reductio ad absurdum." (para. 13)
NTL Group v Difolco
Monday, 13 November 2006
New DTI Guide: Rights and Responsibilities of Employees
It's competition time...
The DTI has published a new 96- page guide for both employers and employees, entitled 'Rights and Responsibilities of Employees'.
It is an extremely impressive summary of employment law: comprehensible, thorough and written in plain English. View it here:
http://www.dti.gov.uk/files/file34565.pdf
So, who can do better? Why not send me your suggestions for 'rights and responsibilities for employees'. Who knows, I might even publish the most amusing...
The DTI has published a new 96- page guide for both employers and employees, entitled 'Rights and Responsibilities of Employees'.
It is an extremely impressive summary of employment law: comprehensible, thorough and written in plain English. View it here:
http://www.dti.gov.uk/files/file34565.pdf
So, who can do better? Why not send me your suggestions for 'rights and responsibilities for employees'. Who knows, I might even publish the most amusing...
Thursday, 9 November 2006
Flexible Working for Carers
The DTI has, this morning, announced who will qualify as a 'carer' under the new right for carers to request flexible working (coming into force on 6th April 2007 under the Work and Families Act 2006).
The definition of 'carer' will cover any employee who is or expects to be caring for an adult who:
The 'near relative' definition includes parents, parent-in-law, adult child, adopted adult child, siblings (including those who are in-laws), uncles, aunts or grandparents and step-relatives. The DTI estimates that this definition will cover about 80% of carers.
View DTI Press Release
[Thanks to Eugenie Verney for telling me about this press release]
The definition of 'carer' will cover any employee who is or expects to be caring for an adult who:
- is married to, or the partner or civil partner of the employee; or
- is a 'near relative' of the employee;
- falls into neither category but lives at the same address as the employee.
The 'near relative' definition includes parents, parent-in-law, adult child, adopted adult child, siblings (including those who are in-laws), uncles, aunts or grandparents and step-relatives. The DTI estimates that this definition will cover about 80% of carers.
View DTI Press Release
[Thanks to Eugenie Verney for telling me about this press release]
Non-compliance with Statutory Dismissal Procedure
The EAT has held that there is no free-standing right to bring a claim before a tribunal for breach of the statutory procedures.
The Claimant lacked the one-year qualifying period for claiming unfair dismissal. Nevertheless, he argued that he could bring a claim for breach of the statutory dismissal procedure, as contained in the Employment Act 2002. HHJ McMullen QC upheld the tribunal's decision to strike out his claim.
This decision is plainly correct and one would have thought relatively uncontroversial. However, the surprising number of times one sees Claimants running this argument in correspondence makes this case a useful piece of ammunition in rebuttal.
Scott-Davies v Redgate Medical Services
The Claimant lacked the one-year qualifying period for claiming unfair dismissal. Nevertheless, he argued that he could bring a claim for breach of the statutory dismissal procedure, as contained in the Employment Act 2002. HHJ McMullen QC upheld the tribunal's decision to strike out his claim.
This decision is plainly correct and one would have thought relatively uncontroversial. However, the surprising number of times one sees Claimants running this argument in correspondence makes this case a useful piece of ammunition in rebuttal.
Scott-Davies v Redgate Medical Services
Tuesday, 7 November 2006
Collective Redundancies and Protective Awards
In an important decision, the EAT (Burton J. presiding) has held that employees who are not of a description in respect of which a trade union is recognised by their employer are not entitled to 'cash in' on a protective award obtained by the union.
Recognising that allowing such employees to obtain the benefit of a protective award would be a more elegant (and less litigious) alternative to requiring them to bring their own individual tribunal claims under TULR(C)A s189, Burton J. held that the wording of ss188 and 189 did not allow such employees to rely on the protective award obtained by a recognised trade union.
As this case involved an untested (and important) point, permission has been given to appeal to the Court of Appeal. It is. however, unclear whether any appeal will in fact take place as the amounts of money involved do not appear large and the EAT has strongly encouraged settlement.
TGWU v Brauer Coley (in administration)
Recognising that allowing such employees to obtain the benefit of a protective award would be a more elegant (and less litigious) alternative to requiring them to bring their own individual tribunal claims under TULR(C)A s189, Burton J. held that the wording of ss188 and 189 did not allow such employees to rely on the protective award obtained by a recognised trade union.
As this case involved an untested (and important) point, permission has been given to appeal to the Court of Appeal. It is. however, unclear whether any appeal will in fact take place as the amounts of money involved do not appear large and the EAT has strongly encouraged settlement.
TGWU v Brauer Coley (in administration)
Thursday, 2 November 2006
New from ACAS - Sexual Orientation
Acas has just launched its eight e-Learning packgake - this one on Sexual Orientation. The course focuses on:
... and finishes up with a quiz so you can see how much you have learned. You can also find a sexual orientation audit tool on the Acas website.
Acas E-Learning Guides
- defining sexual orientation and gender reassignment
- explaining the legal aspects of the sexual orientation Regulations
- explaining how the Regulations affect recruitment and existing employees
- exploring issues around gender identity
... and finishes up with a quiz so you can see how much you have learned. You can also find a sexual orientation audit tool on the Acas website.
Acas E-Learning Guides
Friday, 27 October 2006
Ministers of Religion can claim Unfair Dismissal
The EAT has, today, handed down a decision holding that ministers of religion can claim unfair dismissal.
Ministers of religion have been regarded by the UK courts as appointed to a holy office and not as employees of a church. In December 2005, the House of Lords held that they might qualify as employees for the purpose of discrimination claims, but left the position regarding unfair dismissal open (see bulletin 15/12/05).
The EAT (HHJ Ansell presiding) has now held that the old cases stating that ministers are not employees for the purposes of unfair dismissal claims cannot stand: "if the relationship between church and minister has many of the characteristics of a contract of employment...these cannot be ignored simply because the duties are of a religious or pastoral nature" (para. 27).
New Testament Church of God v Reverend Sylvester Stewart
Ministers of religion have been regarded by the UK courts as appointed to a holy office and not as employees of a church. In December 2005, the House of Lords held that they might qualify as employees for the purpose of discrimination claims, but left the position regarding unfair dismissal open (see bulletin 15/12/05).
The EAT (HHJ Ansell presiding) has now held that the old cases stating that ministers are not employees for the purposes of unfair dismissal claims cannot stand: "if the relationship between church and minister has many of the characteristics of a contract of employment...these cannot be ignored simply because the duties are of a religious or pastoral nature" (para. 27).
New Testament Church of God v Reverend Sylvester Stewart
Thursday, 19 October 2006
s98A Partial reversal of Polkey
The EAT has handed down another decision dealing with the controversial interpretation of s98A(2) of the Employment Rights Act 1996.
This provision, often referred to as the partial reversal of Polkey, states that "a failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded...as by itself making [the dismissal unfair] if he shows that he would have decided to dismiss the employee if he had followed the procedure." This defence can only be invoked if the employer has complied with the statutory dismissal procedure.
Earlier this year, two divisions of the EAT handed down two judgments dealing with what was meant by 'a procedure'.
In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that the word 'procedure' applies to any procedural failing, including (say) general breaches of the Acas Code of Practice. By contrast, in Mason v Ward End Primary School, HHJ McMullen adopted a narrower approach, holding that procedural defects which were capable of being ignored by virtue of s98A(2) applied only to formal procedures, such as those incorporated into a contract or handbook.
In a judgment handed down this morning, the EAT in Kelly-Madden v Manor Surgery has "diffidently" preferred the approach in Alexander v Bridgen. Elias P., giving the judgment, explains why he believes parliament intended the partial reversal of Polkey to be wider rather than narrower (paras. 34-49).
The position remains that there is a conflict of authorty on this very important issue. Clarification from the Court of Appeal, please...
Kelly-Madden v Manor Surgery
[Thanks to Rebecca Thomas, Counsel for the employee, who referred me to this decision]
This provision, often referred to as the partial reversal of Polkey, states that "a failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded...as by itself making [the dismissal unfair] if he shows that he would have decided to dismiss the employee if he had followed the procedure." This defence can only be invoked if the employer has complied with the statutory dismissal procedure.
Earlier this year, two divisions of the EAT handed down two judgments dealing with what was meant by 'a procedure'.
In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that the word 'procedure' applies to any procedural failing, including (say) general breaches of the Acas Code of Practice. By contrast, in Mason v Ward End Primary School, HHJ McMullen adopted a narrower approach, holding that procedural defects which were capable of being ignored by virtue of s98A(2) applied only to formal procedures, such as those incorporated into a contract or handbook.
In a judgment handed down this morning, the EAT in Kelly-Madden v Manor Surgery has "diffidently" preferred the approach in Alexander v Bridgen. Elias P., giving the judgment, explains why he believes parliament intended the partial reversal of Polkey to be wider rather than narrower (paras. 34-49).
The position remains that there is a conflict of authorty on this very important issue. Clarification from the Court of Appeal, please...
Kelly-Madden v Manor Surgery
[Thanks to Rebecca Thomas, Counsel for the employee, who referred me to this decision]
Wednesday, 18 October 2006
Claim Forms - Missing Information
The EAT has held that the failure by a Claimant to include her address on her Claim Form (as required by the rules) is not necessarily a fatal omission.
Under rules 1 and 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, all Claim Forms must contain certain required information or they will not be accepted. Amongst the required information is "each Claimant's address".
Ms Hamling left the address space blank, but completed box 12 with the details of her solicitors (including their address).
In a wonderful example of judicial sophistry, the EAT held that the phrase "The Secretary shall not accept the claim...if it is clear to him that...the claim does not include all the relevant required information" meant that the Claimant's address had to be relevant to the substance of her claim - and it was not (paras. 36-37). This is nonsense - the word 'relevant' refers back to the list of mandatory items to be included in a claim form (set out in rule 1), and not to a value judgement on the importance or significance of that information.
The EAT went on to hold, following Burton J. in Richardson v U Mole, that the Claimant's address was not a material omission (paras. 38-39). This is a much better reason for its decision!
Ultimately, this again shows the appellate courts' willingness to stretch the wording of the rules so as to prevent technical points depriving a Claimant (or Respondent) of justice.
Hamling v Coxlease School
Under rules 1 and 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, all Claim Forms must contain certain required information or they will not be accepted. Amongst the required information is "each Claimant's address".
Ms Hamling left the address space blank, but completed box 12 with the details of her solicitors (including their address).
In a wonderful example of judicial sophistry, the EAT held that the phrase "The Secretary shall not accept the claim...if it is clear to him that...the claim does not include all the relevant required information" meant that the Claimant's address had to be relevant to the substance of her claim - and it was not (paras. 36-37). This is nonsense - the word 'relevant' refers back to the list of mandatory items to be included in a claim form (set out in rule 1), and not to a value judgement on the importance or significance of that information.
The EAT went on to hold, following Burton J. in Richardson v U Mole, that the Claimant's address was not a material omission (paras. 38-39). This is a much better reason for its decision!
Ultimately, this again shows the appellate courts' willingness to stretch the wording of the rules so as to prevent technical points depriving a Claimant (or Respondent) of justice.
Hamling v Coxlease School
Monday, 16 October 2006
Statutory Disciplinary / Grievance Procedures
The EAT has handed down a decision (London Borough of Lambeth v Corlett) dealing with two points on the statutory dispute resolution procedures:
Extension of Time
The EAT held that a breach of contract claim dealing with failure to pay notice (following a summary dismissal) fell within the 'dismissal' provisions of the 2004 regs, so as to attract an extension of time for bringing a claim, rather than the 'grievance' section (which does not actually apply to breach of contract claims). The EAT's reasoning is possibly controversial (paras 11 and 12) but the result seems a fair one, to make up for the political decision by the DTI to exclude breach of contract claims from the extention of time rules.
Discrimination: grievances against fellow employees? On 31/8/06 I reported Bissett v Martins, which is authority for the proposition that the statutory grievance procedures do not apply when an employee brings a discrimination claim against a fellow employee, criticising the reasoning of the EAT.
HHJ Peter Clark has now officially cast doubt on the reasoning in Bissett and stated that, whilst he did not need to decide the point, it will fall for decision in the future as to whether Bissett was correctly decided (paras. 25-27).
London Borough of Lambeth v Corlett
Extension of Time
The EAT held that a breach of contract claim dealing with failure to pay notice (following a summary dismissal) fell within the 'dismissal' provisions of the 2004 regs, so as to attract an extension of time for bringing a claim, rather than the 'grievance' section (which does not actually apply to breach of contract claims). The EAT's reasoning is possibly controversial (paras 11 and 12) but the result seems a fair one, to make up for the political decision by the DTI to exclude breach of contract claims from the extention of time rules.
Discrimination: grievances against fellow employees? On 31/8/06 I reported Bissett v Martins, which is authority for the proposition that the statutory grievance procedures do not apply when an employee brings a discrimination claim against a fellow employee, criticising the reasoning of the EAT.
HHJ Peter Clark has now officially cast doubt on the reasoning in Bissett and stated that, whilst he did not need to decide the point, it will fall for decision in the future as to whether Bissett was correctly decided (paras. 25-27).
London Borough of Lambeth v Corlett
Thursday, 5 October 2006
Update: High Court Challenge to Age Regulations
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.
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.
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
Subscribe to:
Posts (Atom)
