Temporary Typist / Paralegal

I am looking for a typist / paralegal to sit next to me during a four week employment tribunal case in Manchester during July 2011, and type a (thorough) note of all evidence, submissions etc during the course of the trial.

Place: Employment Tribunal, The Parsonage (off Deansgate), Manchester City Centre

Dates: Tuesday 5th July to Friday 29th July (subject to case finishing or settling early)

Hours: About 9.45am to 4.30pm (subject to court sitting slightly early or late)

Equipment: Bring your own laptop, or I can provide an iPad and keyboard

Pay: £85 per day, self-employed basis

Skills: 70+wpm typing (100% accuracy unnecessary, as long as it is comprehensible

If you are interested, please contact me on daniel.barnett@outertemple.com (with a mini-CV), and I will ask you to take a short, online, speed typing test. Please note I am away between 1st and 7th June, so you will receive an out of office reply, but I will respond on or shortly after 7th June.

Closing date: Tuesday 7 June 2011

Equal Pay

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Beddoes v Birmingham City Council, which is authority for the propositions that in determining if Claimants (here school staff but Council employees) are in the 'same employment' as comparators (other Council staff) for the purposes of the EPA, the fact that school governors - who are not the employer - set the Claimants' terms and conditions (albeit on Council recommendations) did not mean that the Claimants were not under a 'single source' of terms and conditions with other Council staff, meaning Council staff were potential comparators.

The EAT said that 'the same employment' should be construed naturally, but observed that with sufficient evidence of departures by governors from Council recommendations, the outcome might differ. The EAT suggested that a material factor defence might arise for an employer in such situations.

In mass Equal Pay litigation, with mistakes in job titles being "inevitable", Tribunals should be very ready to accept amendments to correct misdescriptions of job titles, subject to considerations of jurisdiction and prejudice to the employer.

A failure to properly state the basis of a grievance under the (now-repealed) Modified Grievance Procedure will not mean a claim is barred under S32 EA 2002 if a Collective Grievance under Regulation 9 of the 2004 Dispute Resolution Regulations covers that grievance. The EAT set a low threshold for complying with the Collective Grievance provisions by a Union or appropriate representative, allowing for compliance by 'happy accident'.

The EAT also held that agreeing to follow the Modified Procedure is binding, and a Claimant cannot retract agreement and revert to the Standard Procedure to get round a S32 bar if a grievance under the Modified Procedure fails to do so.

Unfair Dismissal Time Limits

[Thanks to David Campion of EAD Solicitors for preparing this case summary]

The EAT (Underhill P) has handed down its decision in John Lewis Partnership v Charman, which restates the proposition that it may not be 'reasonably practicable' for an unfair dismissal claim to be presented within the time limit, if an employee is reasonably ignorant of the time limit prior to receiving the outcome of an internal appeal against dismissal and presents the claim within a reasonable period thereafter.

The Claimant was dismissed on 13th March 2010 and had, under the three month time limit, until 12th June 2010 to present an unfair dismissal claim. The Claimant, who was not aware of time limits, attended an appeal hearing on 24th May 2010. The Claimant was sent a letter dated 28th June 2010 dismissing his appeal which was only received by the Claimant in mid-July 2010 due to him being away. The Claimant's claim was presented on 21st July 2010.

The EAT upheld the Employment Tribunal's decision that it had not been reasonably practicable for the Claimant to present a claim before the determination of his internal appeal and that he had presented his claim within a reasonable period thereafter. The EAT confirmed that whether it is reasonably practicable for a claim to be brought within time is normally a question of fact for an Employment Tribunal and therefore will only be overturned if found to be perverse.

New Consultation: Family Friendly, Working Time and More

The Department for Business Innovation and Skills has launched a new consultation document entitled 'Consultation on Modern Workplaces'.

It proposes the following:-

• Flexible parental leave: retaining 18 weeks' maternity leave for mothers, then reclassifying the remaining maternity leave as 'parental leave' and allowing it to be taken by either mother, or father, or both. Either way, most of it will be paid. The consultation will also cover allowing employers and employees to agree for parental leave to be taken in chunks, or on a part-time basis
  
  
• Flexible working: extending the right to request flexible working to all employees, not just those with children under 17 (or 18 for parents of disabled children)
  
  
• Working time regulations: amending the WTR to bring them into line with ECJ caselaw, namely providing that employees can carry over untaken holiday into subsequent years if they have lost the chance to take paid holiday because of sickness absence or maternity/parental leave. The proposal is to limit carried-over holiday for sickness absence to the four weeks' compulsory paid leave under the Working Time Directive (ie the employee would lose the extra 1.6 weeks they receive, above EU minimum requirements, under the WTR). The government is also considering proposals to allow employers to 'buy out' that extra 1.6 weeks
  
  
• Equal Pay: introducing a duty for employment tribunals to require employers to conduct a pay audit if they have been found guilty of breaching equal pay legislation, unless it is not productive to do so.

The consultation closes on 8th August 2011.

Discrimination: Compensation for Future Losses

[Thanks to Jahad Rahman from Kervin & Barnes Solicitors, for preparing this case summary]

The Court of Appeal has handed down its decision in the case of Wardle v Credit Agricole Corporate and Investment Bank, which is authority for the proposition that when calculating future losses, tribunals should assess the loss suffered up to a certain point in time when an employee would be likely to secure another job on similar terms, rather than award compensation up to the point when there was certainty that the employee would secure another job on equivalent terms. However, losses after that date should be ignored. The tribunal's prediction may not be accurate but this is the best that can be achieved to bring 'finality' to the assessment of compensation for future loss.

The claimant unsuccessfully applied for promotion. He then brought a claim for discrimination on the grounds of his nationality. Shortly after this, he was dismissed. He issued a further claim for unfair dismissal and victimisation. The Tribunal upheld his claims and he was awarded compensation for loss on the basis that there was an 80% chance that he would have left his employment in any event at a certain point in time.

Elias LJ concluded that career long loss should only be awarded in exceptional circumstances and that the Tribunal's approach to the assessment of compensation for future loss over the claimant's career was flawed.

Government announces Employment Law Reforms - Not.

A number of national papers floated leaks this morning about proposals due to be announced today to cap discrimination awards, reform TUPE and reduce redundancy consultation periods. See, for example, reports in The Telegraph and The Guardian.

But it's all turned out to be a damp squib. The government announcement, issued earlier this afternoon, simply states that the government will be "looking carefully at the arguments for reform" but that "legislation will not necessarily be the route to implement any change if there is a case for reform".

In other words, the government knows perfectly well it cannot slash away at TUPE, or cap discrimination awards, without the ECJ having something to say about it.

Daniel Barnett

Redundancy Scoring

[Thanks to Sarah Russell, solicitor at Ventura, for preparing this case summary]

The EAT (HHJ Serota) has handed down its decision in Dabson v David Cover & Sons, which is authority for the proposition that when assessing the fairness of selection for redundancy, the marks awarded in the selection exercise should only be investigated in exceptional circumstances such as bias or obvious mistake.

There had also been an accidental failure to consult the Claimant individually on redundancy. As the only complaint was of unfair dismissal, the only matter to be determined was that the selection was fair in general terms and was applied reasonably in the case of the employee (Buchanan v Tilcon Ltd [1983] IRLR 417). The consultation was found to be adequate for these purposes and failure to consult did not of itself render the dismissal unfair.

Public Sector Equality Duty

The Government Equalities Office has issued a replacement 'quick start' guide on the public sector equality duty.

The public sector equality duty, which came into force on 5 April 2011, requires public bodies to consider the impact of their policies and methods of delivering services on those who possess certain protected characteristics.

In particular, public bodies must have due regard to the need to eliminate unlawful discrimination and advance equality of opportunity. The Equality and Human Rights Commission has power to issue compliance notices and take further steps if necessary.

Agency Workers

The Department for Business, Innovation and Skills has published its guidance on the Agency Workers Regulations 2010, which come into force on 1st October 2011.

The Regulations provide that agency workers (ie temps) will have the same rights to pay, benefits, rest periods and holidays as someone recruited directly by the hirer (including the hirer's own directly recruited temp workers and employees).

There is a 12 week qualifying period, so genuine short-term agency temps will not qualify for this right. The 12 weeks do not have to be continuous; there can be breaks between assignments and absences on grounds of eg sickness or jury service.

[Thanks to Adrian Marlowe of LawSpeed for correcting an earlier draft of this bulletin]

Negligent (non-)References

[Thanks to Dr John McMullen of Durham University for preparing this case summary]

The QBD has handed down its decision in McKie v Swindon College, which is authority for the proposition that an employer may be liable to a former employee in tort for damages for negligent misstatement when communicating with a future employer about him.

It is well established, since Spring v Guardian Assurance [1995] 2 AC 296, that an employee may make such a claim following a reference negligently prepared by an employer. HH Judge Denyer QC extended this principle to a statement made by a former employer which was not a reference.

McKie was an exemplary employee of the College. He received a fine reference when he left. He later joined Bath University. His new job involved contact with his old employer, Swindon College. The new HR Director of Swindon, on behalf of the College, caused an email about Mr McKie to be sent to Bath in damaging terms. On the facts this was "fallacious and untrue" and its preparation "sloppy and slapdash". It cost Mr McKie his job at Bath.

Although this was not a reference case the Court held that a duty of care applied. The claim should succeed because the damage sustained was foreseeable, the relationship was sufficiently proximate, the claim fair, just and reasonable and there was a causal connection between the negligence in and about the sending of the email and the damage claimed.

Statutory Questionnaires and Costs

[Thanks to Sarah Russell, solicitor at Ventura, for preparing this case summary]

The EAT has handed down its decision in Deer v Walford and Anor, an appeal regarding the inferences to be drawn from a statutory questionnaire. Underhill P commented that if answers to a questionnaire were less than full it would not necessarily follow that they were evasive nor justify an inference of victimisation. He emphasised that the process of deciding whether an inference should be drawn in the case of an evasive or equivocal answer is the same as that to be applied in any case regarding inferences of discriminatory behaviour - does the act or omission tend to show that the respondent acted in the way complained of.

The EAT also dismissed a ground of appeal that it was wrong in principle for the employment tribunal to have determined a costs application without having first produced written reasons. The order for full costs was justified, given that the Claimant had brought a claim based on 'implausible speculation' and persisted after a warning from the tribunal.

Internal Disciplinaries and Human Rights

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The High Court has handed down its decision in Puri v Bradford Teaching Hospitals, which is authority for the proposition that Article 6 of the European Convention of Human Rights is not engaged in respect of internal disciplinary procedures if their effect is not to deprive the employee concerned of the right to practise his profession.

The claimant was dismissed for rudeness but the General Medical Council did not impose any sanctions against him. Although it became difficult for him to find work within the NHS, he was able to obtain a job in private practice and it was found that it would not be impossible for him to return to the NHS at some point. Therefore, there was no need for his dismissal to comply with Article 6.

The High Court also said that, even if Article 6 had been engaged, it would not have been breached by the use of a disciplinary panel constituted of three members, only one of whom was from outside of the employer Trust. Fairness did not require either all, or the majority of, the panel to be from outside the Trust.

Implied Terms

[Thanks to James Medhurst of Employment Law Advocates for preparing this case summary]

The Court of Appeal has handed down its decision in Garratt v Mirror Group Newspapers, which is an interesting case about the implication of terms into an employment contract. It was held that a term requiring Mr Garratt to sign a compromise agreement before receiving an enhanced redundancy payment could be implied because:

• no employee had been paid an enhanced redundancy payment without signing a compromise agreement since 1993.
  
  
• the requirement to sign a compromise agreement was expressly notified to all employees identified as redundant and the signing of such an agreement was an automatic consequence of being dismissed as redundant.
  
  
• no employee, other than Mr Garratt, has sought to insist on a contractual right to an enhanced redundancy payment in the absence of a signed compromise agreement.
  
  
• before the redundancy process started, Mr Garratt knew that he would have to sign a compromise agreement in order to get the enhanced redundancy payment provided by his contract.

Employment Status Under DDA 1995

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ Birtles) has handed down judgment in the case Breakell v Shropshire Army Cadet Force which is authority for the proposition that a paid volunteer is not an 'employee' under the Disability Discrimination Act 1995 if there is no mutuality of obligation between the parties.

The EAT also held that mutuality of obligation is not necessarily established where a volunteer is required to provide services when at work or can expect to be paid for them.

The Claimant was a paid volunteer Adult Instructor for the Cadet Force, although not entitled to the National Minimum Wage. An Employment Tribunal found the parties' arrangements created no mutuality of obligation; the Claimant neither had to take work, nor had the Cadet Force to provide him with it, although he had to follow instructions when at work. As he was not an 'employee' under S68(1) DDA, his claim was struck out.

The EAT upheld the Tribunal's decision largely on the factual findings of a lack of mutuality of obligation, which was open to it on the facts.

However, the EAT refused to consider employee status under S212 Employment Rights Act 1996 (a series of connected contracts) since the Claimant had not raised it at the Employment Tribunal, so the effect of the decision may be limited.

This decision relied on different reasoning to that in X v Mid Sussex CAB (see bulletin 26th January 2011), but applied South East Sheffield CAB v Grayson (UKEAT/0283/03).

Notice of Dismissal and the EDT

[Thanks to Ed McFarlane of Deminos HR for providing this case summary]

The EAT (HHJ Hand QC) has handed down judgment in the case of Wang v University of Keele which is authority for the proposition that, unless a contract provides otherwise, contractual notice, whether oral or written, runs from the day after notice is given.

The Claimant was dismissed with three months notice by a letter emailed and read on the afternoon of 3rd November. He presented a claim for Unfair Dismissal the following May 2nd. The ET dismissed the claim as a day out of time, counting notice as running from 3rd November to 2nd February.

On appeal, the EAT held, in a comprehensive review of authorities, that the principle in West v Kneels - that when verbal notice is given, notice starts on the following day - applies equally to written notice. Therefore, in this case, notice ran from 4th November, with dismissal taking effect on 3rd February, so the Claim was in time. It was irrelevant that the Claimant had only been paid to and stopped work on 2nd February; notice once given cannot be shortened without agreement.

The EAT indicated that if the giver of notice makes the dismissal date ambiguous, the notice should be construed in favour of the recipient, and observed (without recommending) that notice could be given by text, email or even instant messaging.

Pregnancy, Positive Discrimination & Polkey

[Thanks to Lionel Stride of Temple Garden Chambers for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Eversheds v De Belin, which is authority for the proposition that the obligation to protect employees who are pregnant or on maternity leave under S 2(2) of the SDA 1975 is limited to treatment that is "reasonably necessary [meaning proportionate] to compensate them for the disadvantages occasioned by their condition". Thus, a colleague who is disadvantaged by the provision of a disproportionate pregnancy or maternity benefit - for example when other less discriminatory alternatives are available - would be entitled to claim sex discrimination.

Accordingly, the EAT upheld the Tribunal's finding of sex discrimination and unfair dismissal where the claimant had been scored lower in a redundancy exercise than a colleague on maternity leave solely because she had been given a maximum notional score for "lock up", measuring the length of time between undertaking work and receiving payment from the client. The maternity benefit was disproportionate because there were less discriminatory alternative measures that could be adopted, such as measuring performance at a time when both candidates were still at work.

There was some success for the employers, however: the EAT upheld their appeal against the Tribunal's decision not to make any Polkey reduction on the basis that they had disregarded cogent evidence that the claimant would have been made redundant in any event some 9 months later. The claim was therefore remitted to a different Tribunal to consider whether the claim for loss of earnings should be capped or discounted on this basis.

TUPE Dismissals

[Thanks to Dr John McMullen of Durham University for preparing this case summary]

The EAT (HHJ Richardson presiding) has handed down its judgment in Spaceright Europe Ltd. v Baillavoine which stands for the proposition that, in order for a dismissal to be automatically unfair under regulation 7 (1) of the Transfer of Undertakings (Protection) Protection) Regulations 2006 (prohibited dismissal by reason of the transfer), it is not necessary for the transferor to have a specific transferee in contemplation.

In the case, the claimant was managing director of a business which was up for sale. Although no transferee (buyer) had been identified, a view had been taken that an incumbent managing director was too expensive for a purchaser and he was dismissed, ostensibly on ground of redundancy. This, the employment tribunal held, connected the dismissal to the ultimate transfer for the purposes of Reg 7 (1) and made the dismissal unfair. In this regard the EAT followed Harrison Bowden v Bowden [1994] ICR 986 in preference to Ibex Trading v Walton [1994] ICR 907.

The EAT also considered, given the dismissal was by reason of the transfer, was there an economic, technical, or organisational (ETO) reason for the dismissal which entailed changes in the workforce which would render a transfer connected dismissal not automatically unfair? It held that the employee was a managing director and that there was a continuing need for that role. As such, there could not be an ETO for the dismissal.

Illegality

[Thanks to Rad Kohanzad, pupil at Old Square Chambers, for preparing this case summary]

The EAT (Silber J) has handed down its decision in Allen v Hounga, which is a tragic case of abuse and exploitation demonstrating the harsh operation of the law applicable to illegality, while also providing a useful review of the relevant authorities.

The Claimant was engaged in Nigeria to work in the UK as a domestic servant. On the employer's instigation, the Claimant obtained a Nigerian passport in their family name and falsely suggested in her visa application that she was a relative of theirs visiting for a holiday. She then intentionally overstayed.

The Claimant was paid £50 per month and was subjected to serious physical abuse by the Respondent. She ultimately resigned.

Upholding the tribunal's decision, the EAT held that:

• despite the Respondent instigating the illegality, the Claimant knowingly participated in it and therefore her claims of unfair dismissal, holiday pay and breach of contract were unenforceable;
  
• she was entitled to an award for injury to feelings because it was held that her discrimination claim was not "inextricably linked with the illegal conduct"; but
  
• she was not entitled to any potential loss of earnings resulting from her discriminatory dismissal because she never had the right to work in this country, which seems to conflate principles of tortuous damages with illegality.

Minimum Wage increase announced

The government has announced that the adult national minimum wage will increase by 15p an hour, to £6.08, from 1st October 2011.

Other increases are:-

• 18-20 year olds: by 6p to £4.98ph
• 16-17 year olds: by 4p to £3.68ph
• apprentices: by 10p to £2.60ph

See the Press Association press release.

Appeals and Fresh Evidence

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ Richardson presiding) has handed down judgment in the case of Aslam v Barclays Capital Services & others which is authority for the proposition that the EAT may consider fresh evidence appeals, where a fair hearing might not be achieved by a review by an Employment Tribunal.

The Claimant appealed having lost a discrimination case. Only during the appeal did the Respondent disclose an e-mail, which the Claimant sought to admit as it might have impacted on the credibility of the parties.

The EAT admitted the e-mail and allowed the appeal, having considered Adegbuji v Meteor Parking (see bulletin 8th July 2010). Concurring that the usual approach to fresh evidence is to seek a review from the Employment Tribunal rather than appeal, having applied Anya v University of Oxford, the EAT distinguished situations where an appeal is appropriate. As a review is generally held by the original Tribunal, its findings on witnesses' credibility may be difficult for it to re-visit. If credibility is a serious issue, the right to a fair hearing is maintained and justice can be seen to be done by remission to a fresh Tribunal, which can be ordered after an appeal.