[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]
Can it be unreasonable conduct for a party to fail to engage with a Costs warning letter?
Yes, says the EAT (Supperstone J presiding) in Peat & ors v Birmingham City Council, dismissing an appeal by ten sample Claimants against a Costs Order.
The Claimants claimed Unfair Dismissal, having been dismissed and re-engaged following an extensive collective consultation over implementing a Single Status Agreement. During proceedings, the Council's solicitors sent the Claimants a detailed Costs warning letter. The Employment Tribunal awarded costs for unreasonably pursuing the cases, having found that the Claimant's solicitors had failed to engage with the points raised in that letter, including the nature and extent of the collective consultation.
The EAT noted that for a party to succeed in arguing for Costs on the basis of unreasonable conduct, it wasn't necessary to show that the other party had no reasonable prospects of success. Had the Claimant's solicitors engaged with the issues in the Costs warning, they would have been likely to have appreciated that the Claimants' reasonable prospects of success were so thin that it was not worth going to the hearing.
A further ground of appeal against Costs for raising post-dismissal matters in relation to fairness also failed.
Thursday, 12 April 2012
Tuesday, 10 April 2012
Effective Date of Termination
[Thanks to Louise Jones of Temple Garden Chambers for preparing this case summary]
When is the effective date of termination when an employee unequivocally resigns on one date, with immediate effect, and her employer subsequently informs her that her resignation is to be taken as commencing on a later date?
The answer says the EAT in Horwood v Lincoln County Council is the former date, i.e. the date that the employee resigns.
The EAT observed that the EDT is not a term of contract law, but a statutory construct, specifically designed for the purposes of a legislative scheme of employment rights based on a personal contract. Ms Horwood had provided a clear letter of resignation, and the law does not allow the EDT to be based on uncertainties, such as whether the letter would have been read on the intended date of receipt or not. The employer could not unilaterally alter the EDT so that it became a later date, and thus the EDT was the date of the employee's clear resignation.
When is the effective date of termination when an employee unequivocally resigns on one date, with immediate effect, and her employer subsequently informs her that her resignation is to be taken as commencing on a later date?
The answer says the EAT in Horwood v Lincoln County Council is the former date, i.e. the date that the employee resigns.
The EAT observed that the EDT is not a term of contract law, but a statutory construct, specifically designed for the purposes of a legislative scheme of employment rights based on a personal contract. Ms Horwood had provided a clear letter of resignation, and the law does not allow the EDT to be based on uncertainties, such as whether the letter would have been read on the intended date of receipt or not. The employer could not unilaterally alter the EDT so that it became a later date, and thus the EDT was the date of the employee's clear resignation.
Thursday, 5 April 2012
TUPE
[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]
What is the right approach to Regulations 3 and 4 of TUPE 2006 when considering if there has been a service provision change?
TUPE enthusiasts should look to Argyll Coastal Services Ltd v Stirling & others where the EAT (Lady Smith) sets out useful guidance, and makes observations on the interpretation of key terms in regulations 3 & 4.
The case arose from a complicated scenario involving two sets of Claimants who were, respectively, from the crew of a vessel - the St Brandan - chartered by the MoD for cargo services in the Falkland Islands, and two employees of another company, based in Scotland, providing support services for that vessel. After re-tendering by the MoD of the cargo services to a Dutch company with its own boat, the Employment Tribunal found that there had been a service provision change under TUPE in respect of the vessel's crew and the support staff, the transferee appealed.
The EAT upheld the appeal, noting that the Tribunal had failed to consider the impact of Regulation 4 (1) - the question of the assignment of employees to a transferring grouping of employees - and remitted the case for reconsideration, making obiter observations on the facts in the case, which provide useful general guidance, as well as considering the definitions of key terms, practitioners may note:
- 'An organised grouping of employees' connotes fewer employees than the transferor's entire workforce, deliberately organised for the purpose of carrying out the activities required by the particular client contract and who work as a team;
- 'Situated in Great Britain' is, naturally enough, just that, albeit that part of the organised grouping may work outside Great Britain;
- 'Principal purpose' should bear its ordinary meaning; it need not be 'sole purpose';
- In considering the 'activities' carried out, consider what was it that the client required of the transferor, rather than simply characterising the activities. The EAT noted that there was a distinction between 'activities' and ancillary matters which may facilitate those activities, but are not the activity itself (e.g. providing support services for a vessel);
Tuesday, 3 April 2012
Are Pupillages Indirectly Discriminatory?
[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]
Is the requirement by the Bar Council that pupils should be paid a "provision, criteria or practice" that is racially discriminatory to Black Africans?
Certainly Not says the EAT (Lady Smith) in the rather unusual case of Iteshi v The General Council of The Bar.
The Claimant, described as a Black African from Nigeria had qualified as a Barrister in England but, like many others, was unable to find a place in Chambers to complete his pupillage. Rules introduced by the Bar in 2003 had made in obligatory for Chambers to pay pupils and the Claimant was unable to obtain a paid pupillage and no Chambers was allowed to offer him the unpaid pupillage he was willing to accept.
The Claimant originally tried to bring judicial review proceedings against the Bar Council but was refused leave after which he brought ET proceedings, lost and then appealed to the EAT. His complaint was that requiring pupillages to be paid was indirectly discriminatory to Black Africans however the EAT in an analysis of the background to the "funded pupillages" rule noted that it had been specifically introduced in order to help Black and Minority Ethnic pupils obtain pupillages and indeed the number of BME pupils had increased since the rule was introduced. The Claimant had failed to produce any evidence that the rule in any way affected prospective Black African pupils more than others. Merely because he had failed to obtain a pupillage was not of itself evidence of discrimination.
Though a peculiar case on its own merits paras 15-22 of the judgment provides a succinct analysis of the approach to be adopted by Tribunals in considering allegations of discriminatory PCP's. In its final paragraph the EAT noted that the Claimant had written to his MP with a copy to the tribunal accusing the tribunal Judge and members of "fraudulent manipulation of evidence..operating a scam" and being "a self constituted panel of deities". Not perhaps the best attitude for someone who wants to be an advocate.
Is the requirement by the Bar Council that pupils should be paid a "provision, criteria or practice" that is racially discriminatory to Black Africans?
Certainly Not says the EAT (Lady Smith) in the rather unusual case of Iteshi v The General Council of The Bar.
The Claimant, described as a Black African from Nigeria had qualified as a Barrister in England but, like many others, was unable to find a place in Chambers to complete his pupillage. Rules introduced by the Bar in 2003 had made in obligatory for Chambers to pay pupils and the Claimant was unable to obtain a paid pupillage and no Chambers was allowed to offer him the unpaid pupillage he was willing to accept.
The Claimant originally tried to bring judicial review proceedings against the Bar Council but was refused leave after which he brought ET proceedings, lost and then appealed to the EAT. His complaint was that requiring pupillages to be paid was indirectly discriminatory to Black Africans however the EAT in an analysis of the background to the "funded pupillages" rule noted that it had been specifically introduced in order to help Black and Minority Ethnic pupils obtain pupillages and indeed the number of BME pupils had increased since the rule was introduced. The Claimant had failed to produce any evidence that the rule in any way affected prospective Black African pupils more than others. Merely because he had failed to obtain a pupillage was not of itself evidence of discrimination.
Though a peculiar case on its own merits paras 15-22 of the judgment provides a succinct analysis of the approach to be adopted by Tribunals in considering allegations of discriminatory PCP's. In its final paragraph the EAT noted that the Claimant had written to his MP with a copy to the tribunal accusing the tribunal Judge and members of "fraudulent manipulation of evidence..operating a scam" and being "a self constituted panel of deities". Not perhaps the best attitude for someone who wants to be an advocate.
Monday, 2 April 2012
Right to Request Not To Retire
When informing an employee of his/her right to request to work beyond retirement, how much does an employer have to say? The Court of Appeal has answered this question in the test case of R&R Plant (Peterborough) Ltd v Bailey, upholding the EAT's decision last year.
Under para 2 of Schedule 6 of the (now defunct) Employment Equality (Age) Regulations 2006, an employer who was intending to retire an employee had to notify that employee in writing of (a) the employee's right to make a request; and (b) the date on which he intends to retire the employee. That letter triggers the employee's right to make a request not to be retired. If the employer fails to send that letter, then the dismissal will usually be unfair.
But what exactly does "the employee's right to make a request" mean? The Court of Appeal says (at paras 27 + 28) that it is not sufficient to simply state 'If you wish to continue working beyond this date, you are required to make an application to the company in writing'. The letter must do more. It must refer the employee to para 5 of Schedule 6, which sets out the obligation for the employee's request to be in writing "and state that it is made under this paragraph".
So a letter from an employer, notifying an employee that s/he has to ask in writing to work beyond retirement, is not sufficient under the old rules. It must go further and expressly set out that the employee has a right to request not to retire pursuant to paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006. If it does not say that, it is invalid and the dismissal will probably be unfair.
Under para 2 of Schedule 6 of the (now defunct) Employment Equality (Age) Regulations 2006, an employer who was intending to retire an employee had to notify that employee in writing of (a) the employee's right to make a request; and (b) the date on which he intends to retire the employee. That letter triggers the employee's right to make a request not to be retired. If the employer fails to send that letter, then the dismissal will usually be unfair.
But what exactly does "the employee's right to make a request" mean? The Court of Appeal says (at paras 27 + 28) that it is not sufficient to simply state 'If you wish to continue working beyond this date, you are required to make an application to the company in writing'. The letter must do more. It must refer the employee to para 5 of Schedule 6, which sets out the obligation for the employee's request to be in writing "and state that it is made under this paragraph".
So a letter from an employer, notifying an employee that s/he has to ask in writing to work beyond retirement, is not sufficient under the old rules. It must go further and expressly set out that the employee has a right to request not to retire pursuant to paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006. If it does not say that, it is invalid and the dismissal will probably be unfair.
Thursday, 29 March 2012
Indirect Discrimination
[Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary]
How does the reversed burden of proof affect the correct approach to an indirect discrimination case? Not very much, according to the President of the EAT in Dziedziak v Future Electronics Ltd UKEAT/0271/11.
The claimant had complained that her employer had taken poor time-keeping into account in a redundancy selection process, and this amounted to indirect sex discrimination. The tribunal had said in its judgment that it was not satisfied that lateness had been taken into account; the claimant argued that because there were facts from which the tribunal could have concluded that it had, s63A of the SDA 1975 (now replaced by s136 of the EqA 2010) meant that it should have so concluded unless the employer could show the contrary.
The EAT succinctly rejects that argument at para 42, explaining that the reversed burden of proof only bites after disparate adverse impact has been shown.
How does the reversed burden of proof affect the correct approach to an indirect discrimination case? Not very much, according to the President of the EAT in Dziedziak v Future Electronics Ltd UKEAT/0271/11.
The claimant had complained that her employer had taken poor time-keeping into account in a redundancy selection process, and this amounted to indirect sex discrimination. The tribunal had said in its judgment that it was not satisfied that lateness had been taken into account; the claimant argued that because there were facts from which the tribunal could have concluded that it had, s63A of the SDA 1975 (now replaced by s136 of the EqA 2010) meant that it should have so concluded unless the employer could show the contrary.
The EAT succinctly rejects that argument at para 42, explaining that the reversed burden of proof only bites after disparate adverse impact has been shown.
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