The Department for Business, Innovation and Skills has just issued a Press Release announcing that the right to request time off for training is not going to be extended to all employees from April 2011.
The right to request time off for training was introduced for employees of large employers (250+ employees) in April 2010, with a view to it being extended to all employers from April 2011. The maximum penalty for an employer which failed to consider such a request is eight weeks' pay. In November 2010, the government announced that employers with fewer than 50 employees would be exempt. The announcement today means that the right will not be extended as previously anticipated.
Wednesday, 16 February 2011
Right to request Time Off for Training
Update: Abolition of Default Retirement Age
Rumours are circulating about the transitional provisions abolishing the default retirement age, which are expected to be published later this week. According to a number of usually impeccable sources, including PLC, the transitional provisions will provide for the default retirement age to survive until 6th April 2012 (not 30th September 2011 as previously thought), provided the employee has reached 65 on or before 30th September 2011. This allows for up to 12 months' notice of intention to retire to be issued before 5th April 2011.
Support for this can be seen on the Acas website (about halfway down, under 'Timescales and transitional arrangements').
And with The Telegraph reporting today that "Human Resource professional are in disarray" because of uncertainty over how to deal with retirement dismissals, we can continue to expect uncertainty for a while.Further news will be provided as soon as it is available
Tuesday, 15 February 2011
Costs in the EAT
[Thanks to Ed McFarlane of EEF for preparing this case summary]
The EAT (Burton J) has handed down its decision in G4S Services v Rondeau, which is authority for the proposition that a failure by a party to consider a reasonable settlement offer, even if just by making a reasonable counter-offer, can amount to unreasonable conduct and justify a costs order.
The Tribunal Claimant was resisting the appeal, and settled just before the hearing, accepting an offer he had turned down some months previously. The EAT held that not accepting the initial offer, and/or failing to make a reasonable counter-offer, was unreasonable conduct which justified a costs award, even in the EAT, which, like the Employment Tribunals, is normally costs-free.
The EAT observed that a party is entitled to resist an appeal unless and until there is an outcome or an offer which requires consideration, and described making and considering offers as "part and parcel of any litigation proceedings".
The EAT (Burton J) has handed down its decision in G4S Services v Rondeau, which is authority for the proposition that a failure by a party to consider a reasonable settlement offer, even if just by making a reasonable counter-offer, can amount to unreasonable conduct and justify a costs order.
The Tribunal Claimant was resisting the appeal, and settled just before the hearing, accepting an offer he had turned down some months previously. The EAT held that not accepting the initial offer, and/or failing to make a reasonable counter-offer, was unreasonable conduct which justified a costs award, even in the EAT, which, like the Employment Tribunals, is normally costs-free.
The EAT observed that a party is entitled to resist an appeal unless and until there is an outcome or an offer which requires consideration, and described making and considering offers as "part and parcel of any litigation proceedings".
Friday, 11 February 2011
Default Retirement Age
Some important news: the Supreme Court has granted permission to appeal in Seldon v Clarkson, Wright & Jakes. The Court of Appeal's judgment suggested that a compulsory retirement age of 65 could be justified for partners in a law firm, and its reasoning provided some comfort to those who are looking at the approaching abolition of the default retirement age (on 1 October 2011) with dread.
For more information on Seldon, see the previous case reports.
Employment Status - IR35
[Thanks to Ed McFarlane of EEF for preparing this case summary]
The First tier tribunal tax chamber has handed down its decision in MDB Design Services v HMRC, which is authority for the proposition that the guidelines for determining employment status for income tax and/or National Insurance purposes for contractors under IR35 under the notional contract between "employee" and end-user involve consideration of the combined effect of a contract and its practical outworking, as well as mutuality, control, business risk and integration.
HMRC ruled that the sole director of a service company contracted to Airbus over several contracts was an Airbus employee for tax & NI purposes under IR35, the service company successfully appealed. The Tribunal reviewed the case law and set out guidelines at paragraph 53.
Applying the notional contract test to the relationship between the "employee" and end-user as if the service company wasn't involved, the reality of the relationship was typical of a contract for services. Where aspects might point to employee status, due to various factors arising from the special needs of the undertaking including hourly payment, time recording, work approval, on-site working, and intellectual property vesting in the end-user, they had less weight, and were held to be consistent with a contract for services.
The First tier tribunal tax chamber has handed down its decision in MDB Design Services v HMRC, which is authority for the proposition that the guidelines for determining employment status for income tax and/or National Insurance purposes for contractors under IR35 under the notional contract between "employee" and end-user involve consideration of the combined effect of a contract and its practical outworking, as well as mutuality, control, business risk and integration.
HMRC ruled that the sole director of a service company contracted to Airbus over several contracts was an Airbus employee for tax & NI purposes under IR35, the service company successfully appealed. The Tribunal reviewed the case law and set out guidelines at paragraph 53.
Applying the notional contract test to the relationship between the "employee" and end-user as if the service company wasn't involved, the reality of the relationship was typical of a contract for services. Where aspects might point to employee status, due to various factors arising from the special needs of the undertaking including hourly payment, time recording, work approval, on-site working, and intellectual property vesting in the end-user, they had less weight, and were held to be consistent with a contract for services.
Thursday, 3 February 2011
Defamatory Comments in Correspondence
[Thanks to Claire Darwin of Matrix Chambers for preparing this case summary]
Wallis & GHP Securities Limited v Justin Meredith, or the case of the "two burly men with Eastern European accents" as it will doubtless become known, is authority for the proposition that if an employee sends a letter alleging unlawful conduct by the employer to the employer's own solicitor, this does not amount to a real and substantial act of defamation.
The letter had been sent in the context of a commercial dispute, and the allegation (that the employer had sent the two burly men to visit the employee's home) was denied by the employer. This denial was repeated by his solicitor in correspondence. Accordingly the High Court (QBD) held that it was doubtful that the employer's solicitor had thought any the worse of his client on account of the allegation, and no need for vindication of the employer's reputation arose.
Clarke J observed that solicitors routinely receive publications about their own clients which are defamatory. However such publications are likely to be covered by qualified privilege or perhaps absolute privilege, both of which provide a defence to an action for defamation.
Wallis & GHP Securities Limited v Justin Meredith, or the case of the "two burly men with Eastern European accents" as it will doubtless become known, is authority for the proposition that if an employee sends a letter alleging unlawful conduct by the employer to the employer's own solicitor, this does not amount to a real and substantial act of defamation.
The letter had been sent in the context of a commercial dispute, and the allegation (that the employer had sent the two burly men to visit the employee's home) was denied by the employer. This denial was repeated by his solicitor in correspondence. Accordingly the High Court (QBD) held that it was doubtful that the employer's solicitor had thought any the worse of his client on account of the allegation, and no need for vindication of the employer's reputation arose.
Clarke J observed that solicitors routinely receive publications about their own clients which are defamatory. However such publications are likely to be covered by qualified privilege or perhaps absolute privilege, both of which provide a defence to an action for defamation.
Wednesday, 2 February 2011
Unfair Dismissal
[Thanks to Lionel Stride of Temple Garden Chambers for preparing this case summary]
The Court of Appeal has handed down its decision in Orr v Milton Keynes Council, which is authority for the proposition that in an unfair dismissal claim, an employer cannot be held to know key mitigating facts known to other employees about an individual, including his line manager, of which the decision maker had been unaware. It is only the person who is "deputed to carry out the employer's functions" whose knowledge or state of mind is relevant. Thus, ignorance of key information known to another employee does not render a dismissal unfair, provided it could not reasonably have been acquired through an appropriate disciplinary procedure.
O, the appellant, had been dismissed following two separate incidents, including rudeness to his line manager, M, both of which his employer found amounted to gross misconduct. However, the decision maker had been unaware that the second incident had been provoked by the conduct and language of M, which the Tribunal later found amounted to direct race discrimination.
Nevertheless, the Court of Appeal held by a majority that the tribunal had been correct to conclude that the dismissal remained fair because the decision, on the facts known to the decision maker, was reasonable.
Interestingly Sedley L.J (in the minority) preferred to take a holistic approach, examining the totality of the information known to an employer, including any of its employees. This, he acknowledged, would be a departure from the current construction of 'reasonably' in s98(4) of the Employment Rights Act 1996.
The Court of Appeal has handed down its decision in Orr v Milton Keynes Council, which is authority for the proposition that in an unfair dismissal claim, an employer cannot be held to know key mitigating facts known to other employees about an individual, including his line manager, of which the decision maker had been unaware. It is only the person who is "deputed to carry out the employer's functions" whose knowledge or state of mind is relevant. Thus, ignorance of key information known to another employee does not render a dismissal unfair, provided it could not reasonably have been acquired through an appropriate disciplinary procedure.
O, the appellant, had been dismissed following two separate incidents, including rudeness to his line manager, M, both of which his employer found amounted to gross misconduct. However, the decision maker had been unaware that the second incident had been provoked by the conduct and language of M, which the Tribunal later found amounted to direct race discrimination.
Nevertheless, the Court of Appeal held by a majority that the tribunal had been correct to conclude that the dismissal remained fair because the decision, on the facts known to the decision maker, was reasonable.
Interestingly Sedley L.J (in the minority) preferred to take a holistic approach, examining the totality of the information known to an employer, including any of its employees. This, he acknowledged, would be a departure from the current construction of 'reasonably' in s98(4) of the Employment Rights Act 1996.
Tuesday, 1 February 2011
Correction: Equal Pay
CORRECTION: Thanks to all the eagle-eyed readers who spotted this case involved Sunderland (not Sutherland) City Council. Our mistake transcribing the case summary; not the author's mistake. Amended version below.
Equal Pay
The EAT (Underhill P) has handed down a lengthy decision in Bury MBC v Hamilton and Sunderland City Council v Brennan, two appeals heard together about Genuine Material Factor defences to claims for bonuses and pay protection.
Women employed in female-dominated roles by both Councils claimed to be entitled to the benefit of bonus payments originally genuinely linked to productivity, but by the relevant time paid as a conventional supplement to wages - enjoyed by their comparators in male-dominated jobs. In Bury, the claimants also sought the benefit of pay protection provided to the predominantly male groups on withdrawal of their bonuses.
At first instance, both Councils' defences under section 1(3) of the Equal Pay Act 1970 that the differences in pay were genuinely due to a material factor (the existence of historic bonuses) which were not the difference of sex were rejected on the basis that by the relevant dates, any link between receipt of bonuses and productivity on the part of the comparators had been lost; and accordingly the Councils' explanation of the differential was not genuine. In Bury, the claims to pay protection were rejected on the grounds that the Council could not have been under an obligation to pay sums that were not susceptible to calculation at the time the obligation arose; and in any event, even in the absence of precise calculation, to extend pay protection to the claimants would be unaffordable. Both Councils appealed against the rejection of their section 1(3) defences, and the claimants in Bury cross-appealed on the pay protection point.
The Councils' appeals failed. The EAT held that the tribunal had been wrong to characterise their explanation for the bonuses as a 'sham' merely because the link with productivity had been lost: contrary to the tribunals' findings, the factor which they had identified as explaining the bonuses was genuine (¶¶18,25, 29,44-45). But showing that the bonus schemes had been non-discriminatory when first introduced did not establish that the differential was due to a non-discriminatory factor in the period to which the claims related (¶31). The difference in gender breakdown of the claimant and comparator groups gave rise to Enderby-type indirect discrimination, calling for justification; and the loss of the link between the bonuses and productivity meant that the Councils could not justify the differential (¶¶29-34, 49).
The Bury claimants' cross-appeal succeeded. The impossibility of determining, at the time the payments should have been made, the amount that should have been paid to the claimants by way of pay protection did not establish a section 1(3) defence (¶¶71-73); nor could the Council establish by mere assertion (which was as far as their evidence on the matter went) that extending pay protection to the claimant groups would have been unaffordable (¶¶75-79).
The judgment is notable for a discussion and restatement of the 'structured analysis' of equal pay cases formulated by Elias P (as he then was) in Middlesbrough BC v Surtees [2007] ICR 1644 and developed in later cases: see ¶¶14-25; and a caution against excessive focus on the requirement in section 1(3) that the difference in pay be 'genuinely' due to the material factor (¶8).
Equal Pay
[Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary]
The EAT (Underhill P) has handed down a lengthy decision in Bury MBC v Hamilton and Sutherland City Council v Brennan, two appeals heard together about Genuine Material Factor defences to claims for bonuses and pay protection.
Women employed in female-dominated roles by both Councils claimed to be entitled to the benefit of bonus payments originally genuinely linked to productivity, but by the relevant time paid as a conventional supplement to wages - enjoyed by their comparators in male-dominated jobs. In Bury, the claimants also sought the benefit of pay protection provided to the predominantly male groups on withdrawal of their bonuses.
At first instance, both Councils' defences under section 1(3) of the Equal Pay Act 1970 that the differences in pay were genuinely due to a material factor (the existence of historic bonuses) which were not the difference of sex were rejected on the basis that by the relevant dates, any link between receipt of bonuses and productivity on the part of the comparators had been lost; and accordingly the Councils' explanation of the differential was not genuine. In Bury, the claims to pay protection were rejected on the grounds that the Council could not have been under an obligation to pay sums that were not susceptible to calculation at the time the obligation arose; and in any event, even in the absence of precise calculation, to extend pay protection to the claimants would be unaffordable. Both Councils appealed against the rejection of their section 1(3) defences, and the claimants in Bury cross-appealed on the pay protection point.
The Councils' appeals failed. The EAT held that the tribunal had been wrong to characterise their explanation for the bonuses as a 'sham' merely because the link with productivity had been lost: contrary to the tribunals' findings, the factor which they had identified as explaining the bonuses was genuine (¶¶18,25, 29,44-45). But showing that the bonus schemes had been non-discriminatory when first introduced did not establish that the differential was due to a non-discriminatory factor in the period to which the claims related (¶31). The difference in gender breakdown of the claimant and comparator groups gave rise to Enderby-type indirect discrimination, calling for justification; and the loss of the link between the bonuses and productivity meant that the Councils could not justify the differential (¶¶29-34, 49).
The Bury claimants' cross-appeal succeeded. The impossibility of determining, at the time the payments should have been made, the amount that should have been paid to the claimants by way of pay protection did not establish a section 1(3) defence (¶¶71-73); nor could the Council establish by mere assertion (which was as far as their evidence on the matter went) that extending pay protection to the claimant groups would have been unaffordable (¶¶75-79).
The judgment is notable for a discussion and restatement of the 'structured analysis' of equal pay cases formulated by Elias P (as he then was) in Middlesbrough BC v Surtees [2007] ICR 1644 and developed in later cases: see ¶¶14-25; and a caution against excessive focus on the requirement in section 1(3) that the difference in pay be 'genuinely' due to the material factor (¶8).
The EAT (Underhill P) has handed down a lengthy decision in Bury MBC v Hamilton and Sutherland City Council v Brennan, two appeals heard together about Genuine Material Factor defences to claims for bonuses and pay protection.
Women employed in female-dominated roles by both Councils claimed to be entitled to the benefit of bonus payments originally genuinely linked to productivity, but by the relevant time paid as a conventional supplement to wages - enjoyed by their comparators in male-dominated jobs. In Bury, the claimants also sought the benefit of pay protection provided to the predominantly male groups on withdrawal of their bonuses.
At first instance, both Councils' defences under section 1(3) of the Equal Pay Act 1970 that the differences in pay were genuinely due to a material factor (the existence of historic bonuses) which were not the difference of sex were rejected on the basis that by the relevant dates, any link between receipt of bonuses and productivity on the part of the comparators had been lost; and accordingly the Councils' explanation of the differential was not genuine. In Bury, the claims to pay protection were rejected on the grounds that the Council could not have been under an obligation to pay sums that were not susceptible to calculation at the time the obligation arose; and in any event, even in the absence of precise calculation, to extend pay protection to the claimants would be unaffordable. Both Councils appealed against the rejection of their section 1(3) defences, and the claimants in Bury cross-appealed on the pay protection point.
The Councils' appeals failed. The EAT held that the tribunal had been wrong to characterise their explanation for the bonuses as a 'sham' merely because the link with productivity had been lost: contrary to the tribunals' findings, the factor which they had identified as explaining the bonuses was genuine (¶¶18,25, 29,44-45). But showing that the bonus schemes had been non-discriminatory when first introduced did not establish that the differential was due to a non-discriminatory factor in the period to which the claims related (¶31). The difference in gender breakdown of the claimant and comparator groups gave rise to Enderby-type indirect discrimination, calling for justification; and the loss of the link between the bonuses and productivity meant that the Councils could not justify the differential (¶¶29-34, 49).
The Bury claimants' cross-appeal succeeded. The impossibility of determining, at the time the payments should have been made, the amount that should have been paid to the claimants by way of pay protection did not establish a section 1(3) defence (¶¶71-73); nor could the Council establish by mere assertion (which was as far as their evidence on the matter went) that extending pay protection to the claimant groups would have been unaffordable (¶¶75-79).
The judgment is notable for a discussion and restatement of the 'structured analysis' of equal pay cases formulated by Elias P (as he then was) in Middlesbrough BC v Surtees [2007] ICR 1644 and developed in later cases: see ¶¶14-25; and a caution against excessive focus on the requirement in section 1(3) that the difference in pay be 'genuinely' due to the material factor (¶8).
Should Employment Judges sit alone?
The government's consultation paper on Resolving Workplace Disputes, published last month, seeks views at p43 on whether Employment Judges should sit alone, without wing members, in unfair dismissal claims.
Wing members are typically highly capable and experienced small business owners, HR professionals or union representatives. They add a very real benefit to tribunal hearings. They provide perspective as to what is (and isn't) acceptable in the workplace. They act as a fetter to an occasionally overbearing employment judge (of whom there are thankfully far fewer these days) - never in public, but often behind the scenes. And the need for structured panel debate before reaching a conclusion avoids a swift rush to judgment.
But these benefits come at a price. Not only the considerable financial cost of paying the wing members' fees and reimbursing their expenses, or the administrative cost of the wing member selection and allocation processes. But the following costs are also real and significant:-
(a) slowing down proceedings: the tribunal goes at the speed of the slowest reader of the three tribunal members, and the speed of the slowest writer of the three members.
(b) delay: when cases go part-heard, the frustration at having to wait months for another date when everyone can attend can be reduced (albeit not eliminated) if the dates do not need to fit the convenience of the wing members' diaries.
(c) legal issues: it is very rare for a judge or wing member to have difficulty applying the Burchell test. But once one comes to the application of a tricky equal pay or working time regulations point, it is undesirable that (in theory, at least) the two unqualified wing members can overrule the legally qualified and experienced employment judge on a point of law.
The requirement for a panel of three has been eroded over the years. Employment judges now sit alone on case management discussions, most pre-hearing reviews, and claims relating to unlawful deducions, unpaid holiday pay and redundancy payments. In some cases, the parties can consent to the employment judge sitting alone. If the case is particularly complex, the Regional Employment Judge can still direct it be heard by a panel of three rather than a single judge (s4(5) Employment Tribunals Act 1996).
Notwithstanding the benefits that wing members bring, 'mainstream' justice has never seen the need to temper a judge's assessment of the facts, or of what is reasonable, with wing members who can overrule him. County court and High Court judges made decisions all the time about whether someone has acted reasonably (which is the fundamental issue in any unfair dismissal case). It is the bread and butter of judging. It is difficult to see why central funds should pay for wing members to help employment judges make this sort of decision, when other judges (often hearing much higher-value and more complex claims) do not receive such help.
If the judge sits alone, the case is dealt with faster. That might not be a popular statement, but it's true. That means less cost and time for the parties, and less cost for the tribunal system. It also means that employment judges will be able to get through more cases, either reducing the backlog of cases waiting for a full hearing or dealing with the neverending boxes of case management applications which require a decision on paper.
Sometimes it will be desirable for an Employment Judge to have the assistance of wing members. Such cases are probably not common, but they do exist. Such a case will inevitably require at least one case management discussion, at which the judge can raise the issue (or the parties can make an application), and an informed decision can be made.
There were 9,700 unfair dismsisal claims disposed of at a full hearing by the employment tribunal system last year. Assuming each lasts an average of one day, this would potentially eliminate the deployment of 19,400 wing member days. The daily fee paid to a tribunal wing member is £194, although the Department of Business, Innovation and Skills assesses this at about £230 if administrative and other support costs are added in. So there would be an immediate annual cost saving of up to £3.8m (or £4.5m if including support costs) if wing members were no longer required in unfair dismissal claims.
A caveat must be added; many claims involve multiple jurisdictions. A Claimant may allege discrimination at the same time as unfair dismissal. Assuming that wing members will remain for such hearings, it is apparent that the savings will not be as high as set out in the previous paragraph. But, nevertheless, they remain substantial. Balanced against this is the fact that a very significant proportion of unfair dismissal cases take more than a day, increasing the overall cost to the system.
As an ancillary benefit, abolishing the requirement for wing members in unfair dismissal claims would also enable the Employment Tribunals Service to cancel the recruitment exercise, due to take place later this year, for a further 300 wing members to cope with current needs. This would make an immediate saving of £0.5m (the cost of the previous recruitment exercise).
Wing members are typically highly capable and experienced small business owners, HR professionals or union representatives. They add a very real benefit to tribunal hearings. They provide perspective as to what is (and isn't) acceptable in the workplace. They act as a fetter to an occasionally overbearing employment judge (of whom there are thankfully far fewer these days) - never in public, but often behind the scenes. And the need for structured panel debate before reaching a conclusion avoids a swift rush to judgment.
But these benefits come at a price. Not only the considerable financial cost of paying the wing members' fees and reimbursing their expenses, or the administrative cost of the wing member selection and allocation processes. But the following costs are also real and significant:-
(a) slowing down proceedings: the tribunal goes at the speed of the slowest reader of the three tribunal members, and the speed of the slowest writer of the three members.
(b) delay: when cases go part-heard, the frustration at having to wait months for another date when everyone can attend can be reduced (albeit not eliminated) if the dates do not need to fit the convenience of the wing members' diaries.
(c) legal issues: it is very rare for a judge or wing member to have difficulty applying the Burchell test. But once one comes to the application of a tricky equal pay or working time regulations point, it is undesirable that (in theory, at least) the two unqualified wing members can overrule the legally qualified and experienced employment judge on a point of law.
The requirement for a panel of three has been eroded over the years. Employment judges now sit alone on case management discussions, most pre-hearing reviews, and claims relating to unlawful deducions, unpaid holiday pay and redundancy payments. In some cases, the parties can consent to the employment judge sitting alone. If the case is particularly complex, the Regional Employment Judge can still direct it be heard by a panel of three rather than a single judge (s4(5) Employment Tribunals Act 1996).
Notwithstanding the benefits that wing members bring, 'mainstream' justice has never seen the need to temper a judge's assessment of the facts, or of what is reasonable, with wing members who can overrule him. County court and High Court judges made decisions all the time about whether someone has acted reasonably (which is the fundamental issue in any unfair dismissal case). It is the bread and butter of judging. It is difficult to see why central funds should pay for wing members to help employment judges make this sort of decision, when other judges (often hearing much higher-value and more complex claims) do not receive such help.
If the judge sits alone, the case is dealt with faster. That might not be a popular statement, but it's true. That means less cost and time for the parties, and less cost for the tribunal system. It also means that employment judges will be able to get through more cases, either reducing the backlog of cases waiting for a full hearing or dealing with the neverending boxes of case management applications which require a decision on paper.
Sometimes it will be desirable for an Employment Judge to have the assistance of wing members. Such cases are probably not common, but they do exist. Such a case will inevitably require at least one case management discussion, at which the judge can raise the issue (or the parties can make an application), and an informed decision can be made.
There were 9,700 unfair dismsisal claims disposed of at a full hearing by the employment tribunal system last year. Assuming each lasts an average of one day, this would potentially eliminate the deployment of 19,400 wing member days. The daily fee paid to a tribunal wing member is £194, although the Department of Business, Innovation and Skills assesses this at about £230 if administrative and other support costs are added in. So there would be an immediate annual cost saving of up to £3.8m (or £4.5m if including support costs) if wing members were no longer required in unfair dismissal claims.
A caveat must be added; many claims involve multiple jurisdictions. A Claimant may allege discrimination at the same time as unfair dismissal. Assuming that wing members will remain for such hearings, it is apparent that the savings will not be as high as set out in the previous paragraph. But, nevertheless, they remain substantial. Balanced against this is the fact that a very significant proportion of unfair dismissal cases take more than a day, increasing the overall cost to the system.
As an ancillary benefit, abolishing the requirement for wing members in unfair dismissal claims would also enable the Employment Tribunals Service to cancel the recruitment exercise, due to take place later this year, for a further 300 wing members to cope with current needs. This would make an immediate saving of £0.5m (the cost of the previous recruitment exercise).
Sunday, 30 January 2011
Paralegal sought
Daniel Barnett is looking for someone to help with a one-off piece of research, involving:
- locating and reviewing relevant extracts from Hansard and parliamentary committee papers, to try to establish legislative intention; and,
- caselaw research on a piece of statutory interpretation.
The ideal candidate will have a first-class or postgraduate degree, and will be accustomed to spending time in the library. S/he will be academically minded and thorough, whilst being able to work efficiently and quickly. The position is offered on a self-employed basis, acting as a paralegal, and the appointee will need to have access to a full legal library (eg an Inn of Court library). It is envisaged that about 10-15 hours work will be required. Further work may be available, but this is offered as a one-off task.
If you are interested in working with me, please send me an email, attaching a CV and setting out in the body of the email (in no more than 200 words) what experience you have that makes you a good candidate. My email address is deliberately not included in this post (as it would get picked up by spam bots), but is on the 'Contact Me' page on my website.
Closing date: 4pm Friday, 4th February 2011
Friday, 28 January 2011
Redundancy
[Thanks to Rad Kohanzad, pupil at Old Square Chambers for preparing this case summary]
The EAT has handed down its decision in Morgan v The Welsh Rugby Union where it reiterates that the redundancy guidance set out in Williams v Compair Maxam does not apply to cases where redundant employees are applying for a new and different role. Where an employer has to appoint new roles their decision must of necessity be forward-looking, centring upon the individual's ability to perform the new role.
The Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role; both of them were interviewed for the new role. Despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.
The tribunal found the interview process was conducted in a fair and objective and that the dismissal was fair, notwithstanding the interview panel did not adhere to the job description and the format of the interview substantially differed between the candidates.
The EAT refused to disturb the tribunal's finding as they were satisfied that the tribunal decided the case in accordance with section 98(4) Employment Rights Act 1996 and were not persuaded that the tribunal's conclusion was perverse.
The EAT has handed down its decision in Morgan v The Welsh Rugby Union where it reiterates that the redundancy guidance set out in Williams v Compair Maxam does not apply to cases where redundant employees are applying for a new and different role. Where an employer has to appoint new roles their decision must of necessity be forward-looking, centring upon the individual's ability to perform the new role.
The Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role; both of them were interviewed for the new role. Despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.
The tribunal found the interview process was conducted in a fair and objective and that the dismissal was fair, notwithstanding the interview panel did not adhere to the job description and the format of the interview substantially differed between the candidates.
The EAT refused to disturb the tribunal's finding as they were satisfied that the tribunal decided the case in accordance with section 98(4) Employment Rights Act 1996 and were not persuaded that the tribunal's conclusion was perverse.
Thursday, 27 January 2011
TUPE
[Thanks to Dr John McMullen of Short Richardson & Forth LLP for preparing this case summary]
The European Court of Justice has handed down its judgment in CLECE SA v Maria Socorro Martin Valor and Ayuntamiento de Cobisa (Case C-463/09) which is authority for the proposition that, for the purposes of the Acquired Rights Directive 2001/23/EC a mere change of service provider is not a transfer of an undertaking.
A local authority had contracted out the cleaning of schools and premises belonging to it. It terminated the contract and brought the service back in house. But it declined to employ the contractor's staff and, instead, hired in new employees to do the work. No assets transferred from the outgoing contractor to the local authority and as no staff were taken on, the Directive did not apply.
This is an application of the European Court test of a transfer on service provision change under which the mere change of provider cannot, without the transfer of assets or the taking of employees, amount to a transfer (see Süzen [1997] IRLR 255). If the situation had arisen in the UK, however, there would have been a relevant transfer under TUPE because Regulation 3 (1) (b) trumps European law and has effectively overruled Süzen, providing that a mere change in service provider can alone trigger a transfer of an undertaking.
The European Court of Justice has handed down its judgment in CLECE SA v Maria Socorro Martin Valor and Ayuntamiento de Cobisa (Case C-463/09) which is authority for the proposition that, for the purposes of the Acquired Rights Directive 2001/23/EC a mere change of service provider is not a transfer of an undertaking.
A local authority had contracted out the cleaning of schools and premises belonging to it. It terminated the contract and brought the service back in house. But it declined to employ the contractor's staff and, instead, hired in new employees to do the work. No assets transferred from the outgoing contractor to the local authority and as no staff were taken on, the Directive did not apply.
This is an application of the European Court test of a transfer on service provision change under which the mere change of provider cannot, without the transfer of assets or the taking of employees, amount to a transfer (see Süzen [1997] IRLR 255). If the situation had arisen in the UK, however, there would have been a relevant transfer under TUPE because Regulation 3 (1) (b) trumps European law and has effectively overruled Süzen, providing that a mere change in service provider can alone trigger a transfer of an undertaking.
Employment Tribunal Reform
According to reports in the Daily Mail and the Telegraph, Prime Minister David Cameron and Business Secretary Vince Cable are due to announce fundamental reforms today to the employment tribunal system today. Whilst the details remain unclear, the article asserts the following reforms are proposed:-
Similar reports appear in The Times (paywall) and the Financial Times (registration required).
- a fee to lodge a claim. The Daily Mail states this is believed to be £500, other sources suggest a fee of one week's pay
- compulsory mediation for all tribunal claims
- increase in unfair dismissal qualifying period from one year to two years
- employment judges to sit alone (presumably meaning in all cases, not just the jurisdictions where they currently can/do)
Similar reports appear in The Times (paywall) and the Financial Times (registration required).
Wednesday, 26 January 2011
Certain Volunteers not protected from Disability Discrimination
[Thanks to Sheryn Omeri, pupil barrister at Cloisters, for providing this case summary]
The Court of Appeal has handed down judgment in X v Mid Sussex Citizens Advice Bureau, which is authority for the proposition that certain voluntary workers are not protected under the Disability Discrimination Act 1995 or Directive 2000/78/EEC establishing a general framework for equal treatment in employment and occupation. See here for the earlier EAT decision.
When she commenced work at the CAB, the appellant was given a volunteer agreement which was described as being binding in honour only, not a contract of employment or legally binding.
The Court of Appeal dismissed the appellant's appeal. As the purpose of her role was not to determine whether she should be offered employment with the CAB, it did not come within the protection offered by s.4(1)(a) of the Act. Similarly as the purpose of the appellant's voluntary work was not vocational training, she was not protected by Article 3(1)(c) of the Directive. Finally, the Court held that the term "occupation" in the Directive overlaps with that of "worker" which has been limited by European jurisprudence to persons who are remunerated. It therefore could not operate to bring the appellant within the scope of the Directive, nor the Act as read in conformity with it.
The Court of Appeal has handed down judgment in X v Mid Sussex Citizens Advice Bureau, which is authority for the proposition that certain voluntary workers are not protected under the Disability Discrimination Act 1995 or Directive 2000/78/EEC establishing a general framework for equal treatment in employment and occupation. See here for the earlier EAT decision.
When she commenced work at the CAB, the appellant was given a volunteer agreement which was described as being binding in honour only, not a contract of employment or legally binding.
The Court of Appeal dismissed the appellant's appeal. As the purpose of her role was not to determine whether she should be offered employment with the CAB, it did not come within the protection offered by s.4(1)(a) of the Act. Similarly as the purpose of the appellant's voluntary work was not vocational training, she was not protected by Article 3(1)(c) of the Directive. Finally, the Court held that the term "occupation" in the Directive overlaps with that of "worker" which has been limited by European jurisprudence to persons who are remunerated. It therefore could not operate to bring the appellant within the scope of the Directive, nor the Act as read in conformity with it.
Charities allowed to discriminate against unpaid volunteers, says Court of Appeal
The Court of Appeal has held that unpaid volunteers are not protected by anti-discrimination laws, as they are not ‘workers'.
In a judgment handed down this morning (26 January 2011), Lord Justices Elias, Rix and Tomlinson dismissed a claim by Ms ‘X’ against the mid-Sussex Citizens’ Advice Bureau, who she alleged had terminated her status as a CAB volunteer advisor for a reason relating to her disability.
The Court of Appeal held that an unpaid volunteer does not fall within the definition of ‘employee’ or ‘worker’ in the Disability Discrimination Act 1995. To qualify as an ‘employee’ or ‘worker’, she would need to be paid a salary. Since she did not, the provisions of the Disability Discrimination Act 1995 did not apply and Ms ‘X’ could not bring a claim.
Although the case was decided under the Disability Discrimination Act 1995, it applies to all strands of discrimination law in the UK. It is also unaffected by the consolidation of the DDA 1995 within the Equality Act 2010.
It reveals a loophole in the law. It shows that a charity, or even a business, can take decisions to hire or fire unpaid volunteers based on pregnancy, race, sexual orientation or other factors which are normally regarded as impermissible.
Charities have campaigned against extending equality law to cover unpaid volunteers because they say it would tie them up in too much red tape. A report in 1999 by the Disability Rights Task Force found it was ‘far from self-evident’ that it was desirable to bring the voluntary sector into the scope of discrimination law, certainly as far as the disabled are concerned. Certainly it has long been thought undesirable and unworkable to give other employment rights, such as the right to the national minimum wage, to volunteers.
In a judgment handed down this morning (26 January 2011), Lord Justices Elias, Rix and Tomlinson dismissed a claim by Ms ‘X’ against the mid-Sussex Citizens’ Advice Bureau, who she alleged had terminated her status as a CAB volunteer advisor for a reason relating to her disability.
The Court of Appeal held that an unpaid volunteer does not fall within the definition of ‘employee’ or ‘worker’ in the Disability Discrimination Act 1995. To qualify as an ‘employee’ or ‘worker’, she would need to be paid a salary. Since she did not, the provisions of the Disability Discrimination Act 1995 did not apply and Ms ‘X’ could not bring a claim.
Although the case was decided under the Disability Discrimination Act 1995, it applies to all strands of discrimination law in the UK. It is also unaffected by the consolidation of the DDA 1995 within the Equality Act 2010.
It reveals a loophole in the law. It shows that a charity, or even a business, can take decisions to hire or fire unpaid volunteers based on pregnancy, race, sexual orientation or other factors which are normally regarded as impermissible.
Charities have campaigned against extending equality law to cover unpaid volunteers because they say it would tie them up in too much red tape. A report in 1999 by the Disability Rights Task Force found it was ‘far from self-evident’ that it was desirable to bring the voluntary sector into the scope of discrimination law, certainly as far as the disabled are concerned. Certainly it has long been thought undesirable and unworkable to give other employment rights, such as the right to the national minimum wage, to volunteers.
Tuesday, 25 January 2011
Cheeky Argument of the Year 2011
[Thanks to Ed McFarlane of EEF for preparing this case summary]
The EAT (Burton J) has handed down its decision in The University of the Arts London v Rule which is authority for the proposition that a Respondent cannot avoid a statutory uplift on an award by simply making an advance payment to a Claimant, applying Tim Arrow & Sons v Onley.
At a remedy hearing, the Respondent faced a large, six-figure award, with an oral Judgment covering some but not all claims. Counsel were left to agree quantum. Shortly before the remedy hearing concluded, the Respondent engaged – in essence – in electronic reverse mugging of the Claimant by transferring the agreed sum, less the uplift, into his bank account, without his knowledge or consent. The Respondent sought to avoid the 45% uplift, arguing that the uplift didn't apply, as nothing was left to award.
The Tribunal disagreed, and the EAT held that the uplift still applied, holding that Arrow v Onley applied where an interim payment is made before hearing, and that a Claimant may refuse payment, hoping to preserve any future uplift.
The EAT also made observations on the interaction between the uplift and grossing-up for tax purposes.
The EAT (Burton J) has handed down its decision in The University of the Arts London v Rule which is authority for the proposition that a Respondent cannot avoid a statutory uplift on an award by simply making an advance payment to a Claimant, applying Tim Arrow & Sons v Onley.
At a remedy hearing, the Respondent faced a large, six-figure award, with an oral Judgment covering some but not all claims. Counsel were left to agree quantum. Shortly before the remedy hearing concluded, the Respondent engaged – in essence – in electronic reverse mugging of the Claimant by transferring the agreed sum, less the uplift, into his bank account, without his knowledge or consent. The Respondent sought to avoid the 45% uplift, arguing that the uplift didn't apply, as nothing was left to award.
The Tribunal disagreed, and the EAT held that the uplift still applied, holding that Arrow v Onley applied where an interim payment is made before hearing, and that a Claimant may refuse payment, hoping to preserve any future uplift.
The EAT also made observations on the interaction between the uplift and grossing-up for tax purposes.
Right to be Accompanied
[Thanks to James Medhurst of Employment Law Advocates for preparing this case summary]
The EAT (Slade J) has handed down its decision in Bullock v Norfolk County Council, which is authority for the proposition that a foster carer is not a worker within the meaning of the Employment Rights Act 1996 or Employment Relations Act 1999. Therefore, there was no right for the claimant to be accompanied to the meeting of a panel which was to consider withdrawing her approval as a foster parent.
The relationship between a foster carer and a local authority is not contractual and it is a prerequisite of the definition of a worker that there must be a contract in place.
The EAT (Slade J) has handed down its decision in Bullock v Norfolk County Council, which is authority for the proposition that a foster carer is not a worker within the meaning of the Employment Rights Act 1996 or Employment Relations Act 1999. Therefore, there was no right for the claimant to be accompanied to the meeting of a panel which was to consider withdrawing her approval as a foster parent.
The relationship between a foster carer and a local authority is not contractual and it is a prerequisite of the definition of a worker that there must be a contract in place.
Monday, 24 January 2011
Third Party Harassment Under the Old Law
[Thanks to Louise Jones of Temple Garden Chambers for preparing this case summary]
The EAT (Langstaff J) has handed down judgment in Conteh v Parking Partners Ltd, which was decided under the (old) Race Relations Act 1976. Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer did not control, an employer is not liable to her for damages for discrimination or harassment on the grounds of race. The tribunal's rejection of the claim for racial harassment under section 3A RRA was upheld.
The Claimant had been subjected to abusive remarks from a third party over whom her employer had no direct control; the Claimant's employer was a contractor to the third party's employer. Thus the employer had not created the adverse environment, and the employer could not be held vicariously liable for the third party's actions.
In the present case, the EAT was able to reach its conclusion by a close examination of the Race Relations Act 1976 with little recourse to common law authority. However, it is interesting to ponder how the analysis would have been different under the Equality Act 2010, which, by section 40, allows an employee to claim against the employer if the employer has not done enough to prevent third party harassment, although an employee will only succeed where (s)he has been subjected to harassment on at least two occasions and the employer has failed to take such steps as would have been reasonably practicable to prevent it.
The EAT (Langstaff J) has handed down judgment in Conteh v Parking Partners Ltd, which was decided under the (old) Race Relations Act 1976. Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer did not control, an employer is not liable to her for damages for discrimination or harassment on the grounds of race. The tribunal's rejection of the claim for racial harassment under section 3A RRA was upheld.
The Claimant had been subjected to abusive remarks from a third party over whom her employer had no direct control; the Claimant's employer was a contractor to the third party's employer. Thus the employer had not created the adverse environment, and the employer could not be held vicariously liable for the third party's actions.
In the present case, the EAT was able to reach its conclusion by a close examination of the Race Relations Act 1976 with little recourse to common law authority. However, it is interesting to ponder how the analysis would have been different under the Equality Act 2010, which, by section 40, allows an employee to claim against the employer if the employer has not done enough to prevent third party harassment, although an employee will only succeed where (s)he has been subjected to harassment on at least two occasions and the employer has failed to take such steps as would have been reasonably practicable to prevent it.
Reasonable Adjustments
[Thanks to Robert Dickason of Outer Temple Chambers for preparing this case summary]
The EAT (Langstaff J) has handed down its decision in RBS v Ashton, which reiterates that the test for a failure to make reasonable adjustments under the Disability Discrimination Act 1995 is objective. What matters is the practical effect of the adjustment on the disadvantage suffered by the claimant, not the reasoning of the employer "flawed or otherwise" for not making it.
The claimant had her sick pay withheld under the employer's sickness absence policy. However, the evidence before the Tribunal was that the triggers for withholding sick pay would be relaxed for employees whose absences were disability-related. To that extent, disabled employees benefited when compared to non-disabled employees. The EAT noted that only in exceptional cases would withholding sick pay in accordance with a sickness absence policy amount to a failure to make reasonable adjustments.
The Tribunal also erred in upholding the claim for disability-related discrimination. One cardinal error was failing to consider, on the issue of justification, whether the reason for the difference in treatment was material and substantial: "[T]he Tribunal's excursion into what was or was not reasonable in this context might have been interesting but it was not answering the statutory questions".
The EAT (Langstaff J) has handed down its decision in RBS v Ashton, which reiterates that the test for a failure to make reasonable adjustments under the Disability Discrimination Act 1995 is objective. What matters is the practical effect of the adjustment on the disadvantage suffered by the claimant, not the reasoning of the employer "flawed or otherwise" for not making it.
The claimant had her sick pay withheld under the employer's sickness absence policy. However, the evidence before the Tribunal was that the triggers for withholding sick pay would be relaxed for employees whose absences were disability-related. To that extent, disabled employees benefited when compared to non-disabled employees. The EAT noted that only in exceptional cases would withholding sick pay in accordance with a sickness absence policy amount to a failure to make reasonable adjustments.
The Tribunal also erred in upholding the claim for disability-related discrimination. One cardinal error was failing to consider, on the issue of justification, whether the reason for the difference in treatment was material and substantial: "[T]he Tribunal's excursion into what was or was not reasonable in this context might have been interesting but it was not answering the statutory questions".
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