The EAT has held, in Homeserve v Dixon, that a step 1 letter need not state that the employer is contemplating dismissal.
The employer, having caught the employee red-handed in an act of gross misconduct, sent him a letter inviting him to a 'formal disciplinary meeting' for 'breach of contractual obligations'.
The employment tribunal held that the dismissal was automatically unfair, as the letter did not state that the employer was contemplating dismissal.
The EAT, presided over by HHJ Peter Clark, overturned this decision, holding that it was sufficient that the letter invited the employee to a 'formal disciplinary meeting', as it was implicit in that that the employer was contemplating dismissal or some other disciplinary action.
Wednesday, 10 October 2007
Monday, 8 October 2007
Disability Discrimination: Failure to consult over redeployment
The EAT has hammered yet another nail in the coffin of the argument that an employer's failure to consult a disabled employee over alternatives to dismissal (or conduct a risk assessment) is, itself, a failure to make reasonable adjustments giving rise to liability.
The EAT confirms that the correct approach is that set out in Tarbuck (2006), and that the earlier line of authorities based on Mid Staffordshire General Hospitals (2003) should no longer be followed.
Thus there is plainly no longer scope for arguing that an employer who fails to investigate redeployment or reasonable adjustments is thereby in breach of the DDA. It is necessary for the Claimant to go a step further and establish precisely what reasonable adjustments could have been made to retain him/her in the workplace.
Scottish & Southern Energy plc v Mackay
The EAT confirms that the correct approach is that set out in Tarbuck (2006), and that the earlier line of authorities based on Mid Staffordshire General Hospitals (2003) should no longer be followed.
Thus there is plainly no longer scope for arguing that an employer who fails to investigate redeployment or reasonable adjustments is thereby in breach of the DDA. It is necessary for the Claimant to go a step further and establish precisely what reasonable adjustments could have been made to retain him/her in the workplace.
Scottish & Southern Energy plc v Mackay
Thursday, 4 October 2007
Re-Enagement and Loss of Statutory Rights
A couple of interesting points crop up in the EAT's decision in Wolff v Kingston upon Hull City Council.
Unreasonable pursuit of re-engagement claim
The EAT approved the award of costs against Mr Wolff for unreasonably pursuing a re-engagement claim. He had been dismissed from a school and accepted he could not return to that school, but sought re-engagement in another school run by the city council. The city council argued - correctly - that it is the governors of individual schools, not the Council itself, that has the power to appoint teachers.
In the absence of financial losses, the Council offered �1,000 in settlement but the Claimant insisted on his day in court to argue re-engagement. The ET (and EAT) held that this was unreasonable, particularly in the context of a clear steer from the employment tribunal at a case management discussion.
Loss of Statutory Rights
An interesting point arose here. The Claimant found a new job immediately, and over a year had elapsed prior to the remedies hearing. The Respondent argued he should not be entitled to the conventional �250 for loss of statutory rights, as he had succeeded in re-establishing statutory protection and therefore suffered no loss. The EAT rejected this argument, holding that the Claimant was entitled to compensation for having worked for a year "under the shadow of being dismissed without statutory protection" and upheld the award of �250.
Unreasonable pursuit of re-engagement claim
The EAT approved the award of costs against Mr Wolff for unreasonably pursuing a re-engagement claim. He had been dismissed from a school and accepted he could not return to that school, but sought re-engagement in another school run by the city council. The city council argued - correctly - that it is the governors of individual schools, not the Council itself, that has the power to appoint teachers.
In the absence of financial losses, the Council offered �1,000 in settlement but the Claimant insisted on his day in court to argue re-engagement. The ET (and EAT) held that this was unreasonable, particularly in the context of a clear steer from the employment tribunal at a case management discussion.
Loss of Statutory Rights
An interesting point arose here. The Claimant found a new job immediately, and over a year had elapsed prior to the remedies hearing. The Respondent argued he should not be entitled to the conventional �250 for loss of statutory rights, as he had succeeded in re-establishing statutory protection and therefore suffered no loss. The EAT rejected this argument, holding that the Claimant was entitled to compensation for having worked for a year "under the shadow of being dismissed without statutory protection" and upheld the award of �250.
Tuesday, 2 October 2007
Statutory Grievance Procedure
As aficionados of employment law will know, tribunals consistently strain to turn lumps of clay into statutory grievances so that employees are not shut out from bringing tribunal applications.
But there is a limit, the EAT has held in Dick Lovett v Evans. Notwithstanding the Canary Wharf case, which held that employers should be taken to have regard to the factual background against which a written grievance letter is sent, it goes too far to impute an employer with knowledge arising from a meeting occurring after the date the 'grievance' letter was sent.
On the facts, a letter complaining of nosebleeds was insufficient to amount to a statutory grievance letter complaining of pregnancy discrimination, notwithstanding that a few days later, the employee told the employer that she believed the two were connected.
But there is a limit, the EAT has held in Dick Lovett v Evans. Notwithstanding the Canary Wharf case, which held that employers should be taken to have regard to the factual background against which a written grievance letter is sent, it goes too far to impute an employer with knowledge arising from a meeting occurring after the date the 'grievance' letter was sent.
On the facts, a letter complaining of nosebleeds was insufficient to amount to a statutory grievance letter complaining of pregnancy discrimination, notwithstanding that a few days later, the employee told the employer that she believed the two were connected.
Monday, 1 October 2007
New Evidence as a Ground of Appeal
The EAT has handed down a decision confirming the strict approach it takes to allowing an appeal on grounds of fresh evidence.
The employer dismissed an employee for trying to poach customers. At the tribunal hearing, the employer had no real evidence of the poaching, which it explained on the grounds that it did not know it was expected to obtain such evidence.
Following the decision, the employer obtained four witness statements which, if accepted, would be fairly overwhelming evidence that the ex-employee had been approaching clients to solicit work (whilst still employed).
The EAT held that this did not enable the employer to have a second bite at the cherry. Whilst clearly credible and relevant, there was no proper explanation for not having obtained the evidence first time round. Neither ignorance, nor possibly incompetent advice from the employer's employment consultants, came close to being sufficient.
Hygia Professional Training v Cutter
The employer dismissed an employee for trying to poach customers. At the tribunal hearing, the employer had no real evidence of the poaching, which it explained on the grounds that it did not know it was expected to obtain such evidence.
Following the decision, the employer obtained four witness statements which, if accepted, would be fairly overwhelming evidence that the ex-employee had been approaching clients to solicit work (whilst still employed).
The EAT held that this did not enable the employer to have a second bite at the cherry. Whilst clearly credible and relevant, there was no proper explanation for not having obtained the evidence first time round. Neither ignorance, nor possibly incompetent advice from the employer's employment consultants, came close to being sufficient.
Hygia Professional Training v Cutter
Holiday Pay
In the light of the increased statutory holiday pay, effective today, Acas has issued a new Advice Leaflet on Holidays and Holiday Pay.
For those who need a quick reminder, minimum annual holiday entitlement increases today to 4.8 weeks (and on 1st April 2009, it increases to 5.6 weeks - intended to reflect 20 days plus 8 days' bank holiday).
For those who need a quick reminder, minimum annual holiday entitlement increases today to 4.8 weeks (and on 1st April 2009, it increases to 5.6 weeks - intended to reflect 20 days plus 8 days' bank holiday).
Tuesday, 25 September 2007
Unfair Dismissal Investigations
The EAT has handed down judgment in Corus UK Ltd v Mainwaring, considering various points arising out of a conduct / capability investigation where an employee was accused of malingering. The two key points are:-
- there is no obligation to take a statement from the person who 'tips-off' the employer about possible malingering, if the employer then relies on medical/video evidence (rather than the original statement) when dismissing (para. 28)
- there is no obligation to seek a report on malingering from a consultant - an occupational health physician will suffice (para. 43)
Friday, 21 September 2007
Equal Pay
The Court of Appeal has, today, killed off the argument that the equal pay legislation does not apply where the woman is doing higher rated work than a man (rather than work rated the same).
In Redcar v Cleveland Borough Council, the Court rewrites s1(5) of the Equal Pay Act 1970 to make this clear - see para. 25 of the judgment.
In Redcar v Cleveland Borough Council, the Court rewrites s1(5) of the Equal Pay Act 1970 to make this clear - see para. 25 of the judgment.
Thursday, 20 September 2007
EAT Time Limits
The EAT has provided consolidated guidance on the rules relating to the 42-day time limit for appealing a tribunal decision, including the circumstances when an extension of time will be considered. The guidelines appear at para. 5 of HHJ McMullen's judgement in four consolidated appeals here.
The facts of the four appeals are then considered, providing useful examples of how the EAT exercises its discretion.
The facts of the four appeals are then considered, providing useful examples of how the EAT exercises its discretion.
Monday, 17 September 2007
Part-time Tribunal Chair not 'Worker' for PTWR 2000
On 24th July 2007, I sent out a bulletin about this important case, Christie v DCA, saying that I would send the link out when the judgment was put on the internet.
Well, it's gone up:-
http://www.bailii.org/uk/cases/UKEAT/2007/0140_07_2307.html
Well, it's gone up:-
http://www.bailii.org/uk/cases/UKEAT/2007/0140_07_2307.html
Monday, 10 September 2007
New Acas Chair
Edward Sweeney has, this afternoon, been announced as the new Chair of the Acas (Advisory, Conciliation and Abritration Service) Council. He is deputy General Secretary of AMICUS, and is a past General Secretary of UNIFI and BIFU.
He replaces Rita Donaghy with effect from 1st October 2007. The appointment is for three years.
See Press Release
He replaces Rita Donaghy with effect from 1st October 2007. The appointment is for three years.
See Press Release
Wednesday, 5 September 2007
Data Protection: what is 'personal information'?
A new 21-page technical guidance note, 'Determining what is personal data', explains and illustrates the Information Commissioner's view of what is 'personal data' for the purposes of the Data Protection Act. The guidance provides many examples to illustrate circumstances when data relates to an identifiable, living individual.
There is an accompanying short Press Release on the ICO website.
The introduction to the new guidance says that they will soon also be producing new guidance on the meaning of 'relevant filing system'.
[Information provided by www.emplaw.co.uk, to whom I express my thanks]
There is an accompanying short Press Release on the ICO website.
The introduction to the new guidance says that they will soon also be producing new guidance on the meaning of 'relevant filing system'.
[Information provided by www.emplaw.co.uk, to whom I express my thanks]
Monday, 3 September 2007
Employment Tribunal Statistics
The Tribunals Service has just published the 2006/07 employment tribunal statistics (some of the headline statistics were included in the ETS annual report in July - these stats are far more detailed).
Headline points:
Much of the increase can be attributed to the substantial number of local authority equal pay claims.
Also of interest, is that the EAT heard 432 cases at a full hearing, a decrease of 22% on the year before.
Headline points:
- number of cases brought increased by 15%
- number of cases disposed of increased by 19%
- 972 (of 238,546) jurisdictions claimed were age discrimination (note the statistics cover 1st Apr 06 to 31st Mar 07 - and age discrimination only came in on 1st Oct 06, so this should be doubled to get a true pro rata figure)
- equal pay and unfair dismissal came out tops, each with about 44,000 (of 238,546) jurisdictions
- 8% of submitted claims were rejected. Of those, about one-third were resubmitted and accepted.
Much of the increase can be attributed to the substantial number of local authority equal pay claims.
Also of interest, is that the EAT heard 432 cases at a full hearing, a decrease of 22% on the year before.
When is a shareholder an employee?
This vexed question tends to crop when the owners of a company claim a statutory redundancy payment from the DTI following the company's insolvency.
Underhill J. considers a number of conflicting authorities, the best-known of which, Bottrill, poses the question 'who really owns the company?'. He sets out his view (as obiter) that:
"the fact that a claimant under the employment protection legislation is a majority shareholder and a director of the company which employs him does not affect his status as employee unless the tribunal finds that the company is a 'mere simulacrum' ... (and thus, by the same token, that the contract between it and the putative employee is a sham)" (para. 29)
Nesbitt v Secretary of State for Trade and Industry
Underhill J. considers a number of conflicting authorities, the best-known of which, Bottrill, poses the question 'who really owns the company?'. He sets out his view (as obiter) that:
"the fact that a claimant under the employment protection legislation is a majority shareholder and a director of the company which employs him does not affect his status as employee unless the tribunal finds that the company is a 'mere simulacrum' ... (and thus, by the same token, that the contract between it and the putative employee is a sham)" (para. 29)
Nesbitt v Secretary of State for Trade and Industry
Wednesday, 29 August 2007
Statutory Dismissal Procedures
The EAT has decided two interesting points on the statutory dismissal procedure - one on liability, one on quantum - in Aptuit Ltd v Kennedy.
First, it held that the statutory dismissal process does not require notification of the right to appeal to be given in writing. Verbal communication is sufficient (see paras. 35 and 44).
Second, it overturned an uplift of 40% which the tribunal had assessed because (a) it was a large employer; (b) there had been a general lack of consultation; and, (c) the Claimant had been treated in a 'shoddy' manner. The EAT stated that these were all irrelevant factors; in calculating the uplift, tribunals should only have regard to the failure to follow the statutory procedure (para. 47). This second point is likely to prove controversial, as there is nothing in the wording of the statute prohibiting tribunals from having regard to the surrounding circumstances.
First, it held that the statutory dismissal process does not require notification of the right to appeal to be given in writing. Verbal communication is sufficient (see paras. 35 and 44).
Second, it overturned an uplift of 40% which the tribunal had assessed because (a) it was a large employer; (b) there had been a general lack of consultation; and, (c) the Claimant had been treated in a 'shoddy' manner. The EAT stated that these were all irrelevant factors; in calculating the uplift, tribunals should only have regard to the failure to follow the statutory procedure (para. 47). This second point is likely to prove controversial, as there is nothing in the wording of the statute prohibiting tribunals from having regard to the surrounding circumstances.
Tuesday, 21 August 2007
Acas e-Learning module on Age Discrimination
Acas has issued a new e-Learning module on Age Discrimination. You can access it here (free registration is required).
I particularly recommend the flowcharts, specimen letters and case studies for retirement dismissals - they're very comprehensive but easy to follow.
I particularly recommend the flowcharts, specimen letters and case studies for retirement dismissals - they're very comprehensive but easy to follow.
Monday, 20 August 2007
Statutory Procedures: Adjustments to awards
Almost three years on, and we still haven't had any guidance on when awards should be increased by 10%, 50%, or somewhere in between, for failing to comply with the statutory dismissal procedures.
In Cex Ltd v Lewis, the EAT refused to lay down general guidelines but commented that it was appropriate for a tribunal to take into account the employer's ignorance of the statutory dismissal procedures when deciding to impose the minimum uplift of 10%.
The lack of guidelines is leading to inconsistent results; I have seen cases where a 50% uplift was awarded precisely because of the employer's ignorance of the law (rationalised as 'if they can't be bothered to learn how to act fairly...'). However, if the dismissal procedures are abolished, as the government intends, this may be a (relatively) short-lived problem.
[Thanks to Richard Linskell of Dawsons LLP, who acted for Cex Ltd. in this appeal, for telling me about the case]
In Cex Ltd v Lewis, the EAT refused to lay down general guidelines but commented that it was appropriate for a tribunal to take into account the employer's ignorance of the statutory dismissal procedures when deciding to impose the minimum uplift of 10%.
The lack of guidelines is leading to inconsistent results; I have seen cases where a 50% uplift was awarded precisely because of the employer's ignorance of the law (rationalised as 'if they can't be bothered to learn how to act fairly...'). However, if the dismissal procedures are abolished, as the government intends, this may be a (relatively) short-lived problem.
[Thanks to Richard Linskell of Dawsons LLP, who acted for Cex Ltd. in this appeal, for telling me about the case]
Tuesday, 7 August 2007
Time-Limits
The EAT has upheld a decision not to accept an unfair dismissal claim which was presented 88 seconds late.
The Claimant tried to present his claim electronically about 15 mins before midnight on the last day for presentation. However, he mistyped the web address (typing 'qsi' instead of 'gsi'). He then sent a test message about 3 mins before midnight, and sent his actual Claim Form 1 min 28 secs after midnight.
The EAT upheld the ET's decision that the claim was out of time. It stated that it was reasonably practicable for the claim to have been presented within time (ie before midnight), and although the result seemed harsh, time limits are there to be followed.
The Claimant tried to present his claim electronically about 15 mins before midnight on the last day for presentation. However, he mistyped the web address (typing 'qsi' instead of 'gsi'). He then sent a test message about 3 mins before midnight, and sent his actual Claim Form 1 min 28 secs after midnight.
The EAT upheld the ET's decision that the claim was out of time. It stated that it was reasonably practicable for the claim to have been presented within time (ie before midnight), and although the result seemed harsh, time limits are there to be followed.
Friday, 3 August 2007
Practice Statement on Citing Authorities in the EAT
The EAT has handed down a short practice statement (unusually, within the body of a judgment) on citing authorities.
The EAT reminds litigants and advocates that they should not rely on transcripts of authorities printed off from the internet, when the cases are reported in the IRLRs or ICRs.
The Practice Statement appears within the decision in Sage v Bacco at paras. 14-17.
The EAT reminds litigants and advocates that they should not rely on transcripts of authorities printed off from the internet, when the cases are reported in the IRLRs or ICRs.
The Practice Statement appears within the decision in Sage v Bacco at paras. 14-17.
Thursday, 2 August 2007
Agency Workers
BANG!
The sound of another nail in the Dacas coffin. This time, it's the EAT sitting in Scotland, which repeats Elias P.'s comments in recent cases that it will not be necessary to imply an employment contract between worker and end-user when the relationship is explained by tri-partite (ie through an agency) contractual documentation - see para 15 of the judgement.
Wood Group Engineering v Robertson
The sound of another nail in the Dacas coffin. This time, it's the EAT sitting in Scotland, which repeats Elias P.'s comments in recent cases that it will not be necessary to imply an employment contract between worker and end-user when the relationship is explained by tri-partite (ie through an agency) contractual documentation - see para 15 of the judgement.
Wood Group Engineering v Robertson
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