[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]
The EAT (HHJ Peter Clark) has handed down its decision in Yorkshire Housing v Cuerden, which is authority for the proposition that awards of personal injury and injury to feelings relating to a tortious act (such as a failure to make reasonable adjustments in a disability discrimination claim) that pre-dates the termination of employment are not taxable and, consequently, should not be subject to 'grossing up'.
It was further held that awards in respect of pension and earnings loss should ordinarily be grossed up by taking into account the appropriate marginal tax rates for each part of the award: it is wrong simply to apply the highest marginal tax rate to the whole sum.
The EAT declined to comment on the controversial observations in Orthet Ltd v Vince Cain [2004] IRLR 857 that awards for injury to feelings are always non-taxable regardless of when the discrimination occurred, which remains open to argument.
Friday, 30 July 2010
Thursday, 29 July 2010
TUPE
[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]
The EAT (Slade J) has handed down its decision in Nationwide Building Society v Benn, which is authority for the proposition that, where there has been a dismissal in the context of a TUPE transfer, it is an error of law for a tribunal to take into account a breach of the consultation requirements in concluding that the dismissal was unfair, in circumstances in which there has been no successful claim for a failure to consult. In this case, no such claim had even been pleaded. However, it would be permissible to take into account the extent of consultation, both collective and individual, about changes to terms and conditions.
An individual employee has no standing to bring a claim for a failure to consult in a case in which employee representatives have been elected but the consultation with those representatives is said to have been inadequate. Such a claim can only be brought by the elected representatives.
In order for there to be an economic, technical or organisational reason entailing changes in the workforce, it is not necessary for the entire workforce to be affected by the changes. It is sufficient for the changes to affect the transferred employees only.
The EAT (Slade J) has handed down its decision in Nationwide Building Society v Benn, which is authority for the proposition that, where there has been a dismissal in the context of a TUPE transfer, it is an error of law for a tribunal to take into account a breach of the consultation requirements in concluding that the dismissal was unfair, in circumstances in which there has been no successful claim for a failure to consult. In this case, no such claim had even been pleaded. However, it would be permissible to take into account the extent of consultation, both collective and individual, about changes to terms and conditions.
An individual employee has no standing to bring a claim for a failure to consult in a case in which employee representatives have been elected but the consultation with those representatives is said to have been inadequate. Such a claim can only be brought by the elected representatives.
In order for there to be an economic, technical or organisational reason entailing changes in the workforce, it is not necessary for the entire workforce to be affected by the changes. It is sufficient for the changes to affect the transferred employees only.
Wednesday, 28 July 2010
Mandatory Retirement Ages
[Thanks to Tom Mountford, pupil barrister at Blackstone Chambers, for providing this case summary]
The Court of Appeal has handed down its decision in Seldon v Clarkson, Wright & Jakes, a case concerning the ability of a partnership to justify a mandatory retirement age of 65. The Court, dismissing the appeal of Mr Seldon, held:
The Court of Appeal has handed down its decision in Seldon v Clarkson, Wright & Jakes, a case concerning the ability of a partnership to justify a mandatory retirement age of 65. The Court, dismissing the appeal of Mr Seldon, held:
- the Framework Directive permitted Member States to derogate from the principle of equal treatment in relation to direct age discrimination by permitting justification. This power of derogation (Article 6) is directed at Member States implementing the Directive and not at private employers.
- the UK implemented that derogation by way of, amongst other provisions, Regulation 3 of the Age Regulations which provides that a person discriminates against another as long as the first person cannot show the treatment or, as the case may be, provision, criterion or practice is a proportionate means of achieving a legitimate aim. Regulation 3 thus allows for employers to justify both direct and indirect discrimination. This was held by Blake J to be a lawful derogation in Age UK.
- the requirement in Article 6 of the Framework Directive of an objective and reasonable justification by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, achieved by appropriate and necessary means, (which the ECJ in Heyday has glossed as a requirement of "legitimate social policy objectives") is not a test which private employers need to satisfy in seeking to justify direct age discrimination under Regulation 3 of the Age Regulations.
- rather, an employer's legitimate aims are not limited to "social policy objectives". As the ECJ noted the legislation gives employers "some discretionary powers or a degree of flexibility". The Court of Appeal held that the appropriate test is whether an employer's actions are consistent with the social or labour policy of the United Kingdom which justified the Regulations.
- the principle that a discriminatory measure may be justified by a legitimate aim other than that which was specified at the time when the measure was introduced, applied by the ECJ in the context of indirect discrimination in Schönheit, is equally applicable in the context of direct discrimination.
- a private employer's aim of producing a happy workplace is within, or consistent with, the UK Government's social policy justification for the Age Regulations. To allow people to retire with dignity would also seem to be a justification for having a mandatory retirement age.
- it is a legitimate consideration that a rule such as a mandatory retirement age in a partnership deed has been agreed by parties of equal bargaining power.
- the assessment of justification in the context of a mandatory retirement age must be made at the point of termination, involving the two interrelated questions: (1) as at the date of termination was a rule requiring retirement at that age justified? (2) was the application of that rule justified in the particular circumstances?
- however, in general, it is of the essence of a mandatory rule that it is generally applied. As such, it will be rare that the second question requires much beyond the justification of the general rule.
- a compulsory retirement age cannot be defeated on the basis that a less discriminatory means could be employed by reference to a higher age. Such an effect cannot have been within the legislative intendment as it would mean that it would be impossible to justify any retirement age yet Recital 14 of the Directive seems to contemplate the legitimacy of a retirement age.
Tuesday, 27 July 2010
Pension Losses
The EAT has given Judgment in the case of Sibbit v The Governors of St Cuthbert's Catholic Primary School (HHJ McMullen presiding) which is a case dealing with the appropriate assessment of pension loss.
The case illustrates the correct approach to be followed by the Employment Tribunal when using the Guidance to Tribunals on the assessment of compensation for pension loss, and, crucially, in making the decision as to whether the "simplified loss approach" or the "substantial loss approach" ought to be followed.
In this case, Mrs Sibbit was a teacher dismissed on grounds of gross misconduct by the Respondent.
She was 58 at the time and intended to retire within 12 months of her dismissal, meaning that she would have a further one-year's pensionable service remaining but for her dismissal.
The Employment Tribunal found her to be unfairly dismissed and awarded pension loss in accordance with the simplified loss approach.
The Claimant appealed, arguing that the substantial loss approach ought to have been followed. The EAT agreed, stating that on the facts, the correct application of Section 123 (1) of The Employment Rights Act 1996 was for the Tribunal to follow the substantial loss approach set out in the Guidance.
The EAT held that they were entitled to interfere with the Tribunal's judgment; saying it was wrong as a matter of principle for the Tribunal to have awarded pension loss in accordance with the simplified loss approach when the guidance clearly indicated that the substantial loss approach would be more appropriate.
The case illustrates the correct approach to be followed by the Employment Tribunal when using the Guidance to Tribunals on the assessment of compensation for pension loss, and, crucially, in making the decision as to whether the "simplified loss approach" or the "substantial loss approach" ought to be followed.
In this case, Mrs Sibbit was a teacher dismissed on grounds of gross misconduct by the Respondent.
She was 58 at the time and intended to retire within 12 months of her dismissal, meaning that she would have a further one-year's pensionable service remaining but for her dismissal.
The Employment Tribunal found her to be unfairly dismissed and awarded pension loss in accordance with the simplified loss approach.
The Claimant appealed, arguing that the substantial loss approach ought to have been followed. The EAT agreed, stating that on the facts, the correct application of Section 123 (1) of The Employment Rights Act 1996 was for the Tribunal to follow the substantial loss approach set out in the Guidance.
The EAT held that they were entitled to interfere with the Tribunal's judgment; saying it was wrong as a matter of principle for the Tribunal to have awarded pension loss in accordance with the simplified loss approach when the guidance clearly indicated that the substantial loss approach would be more appropriate.
Wednesday, 21 July 2010
Effective Date of Termination
[Thanks to Rosa Dickinson of St Philips Chambers for providing this case summary]
The EAT (Silber J) has handed down judgment in Wedgewood v Minstergate Hull Ltd., which is authority for the proposition that the effective date of termination is not altered simply because the employee is absolved of their duty to work.
As the claimant wished to leave earlier than his notice expired on 1st December 2008, the respondent wrote to him on 26th November 2008 stating: "you can be released today and will still be paid up to and including your notice period date of Monday 1st December 2008".
The claim form was issued on 28th February 2009. At first instance, the tribunal found that the claim was out of time as the letter of 26th November 2008 had brought the EDT forward to that date.
The EAT allowed the claimant's appeal. Although the case of Palfry v Transco [2004] IRLR 916 means the EDT can be altered by agreement, on the facts of this case, the letter dated 26th November 2008 did not constitute a variation as it referred to "your notice period date of 1st December 2008". Applying the case of Lees v Greaves [1974] 2 All ER 393, the mere fact of the claimant not being required to work was insufficient to effect a variation.
The EAT (Silber J) has handed down judgment in Wedgewood v Minstergate Hull Ltd., which is authority for the proposition that the effective date of termination is not altered simply because the employee is absolved of their duty to work.
As the claimant wished to leave earlier than his notice expired on 1st December 2008, the respondent wrote to him on 26th November 2008 stating: "you can be released today and will still be paid up to and including your notice period date of Monday 1st December 2008".
The claim form was issued on 28th February 2009. At first instance, the tribunal found that the claim was out of time as the letter of 26th November 2008 had brought the EDT forward to that date.
The EAT allowed the claimant's appeal. Although the case of Palfry v Transco [2004] IRLR 916 means the EDT can be altered by agreement, on the facts of this case, the letter dated 26th November 2008 did not constitute a variation as it referred to "your notice period date of 1st December 2008". Applying the case of Lees v Greaves [1974] 2 All ER 393, the mere fact of the claimant not being required to work was insufficient to effect a variation.
Monday, 19 July 2010
Costs
It's another judgment from the EAT suggesting, even more bluntly than the previous two, that a Claimant who lies in the tribunal should be ordered to pay the Respondent's costs. See paragraph 21 of the judgment for the comment from the Hon. Lady Smith.
On the facts, the EAT substituted an order that a Claimant who had been defrauded his employer should have to pay the Respondent's costs for (basically) having the cheek to bring a tribunal claim. However, a couple of interesting pointers arose:
- the fact that the Claimant's solicitors ceased acting does not, of itself, suggest the Claimant is not listening to legal advice (para 38).
- a Claimant cannot argue he was acting reasonably in bring a claim because he simply wanted a 'declaration' of unfair dismissal (para 39). This largely contradicts Telephone Information Services Ltd v Wilkinson (1991) IRLR 148, a case which was not cited to the EAT, and probably rightly so (see here for a discussion of Wilkinson).
Wednesday, 14 July 2010
Collective Agreements
[Thanks to Ed McFarlane of EEF for providing this case summary]
The EAT (Silber J) has handed down its decision in Worrall v Wilmott Dixon Partnership, which is authority for the proposition that:
The EAT (Silber J) has handed down its decision in Worrall v Wilmott Dixon Partnership, which is authority for the proposition that:
- to incorporate a term of a Collective Agreement into a contract, the term must be brought to the employees' notice or agreed (paragraph 20). It isn't enough for the term simply to be in a readily-available document, such as a handbook. On the facts, a term in a Collective Agreement providing for enhanced redundancy pay was held to have not been incorporated into the Claimants' contracts, as there was no evidence of it being brought to the Claimants' notice or agreed.
- on a TUPE transfer, an incorporated Collective Agreement is frozen at the transfer, so transferred employees cannot benefit from future changes to the original Agreement. However, if legislation affects the original Agreement, then it also affects the transferred Agreement. In this case legislation would have deprived the Claimants - transferred Council staff - of enhanced redundancy pay, if a term to that effect had been incorporated into their contractsOn a TUPE transfer, an incorporated Collective Agreement is frozen at the transfer, so transferred employees cannot benefit from future changes to the original Agreement. However, if legislation affects the original Agreement, then it also affects the transferred Agreement. In this case legislation would have deprived the Claimants - transferred Council staff - of enhanced redundancy pay, if a term to that effect had been incorporated into their contracts.
Monday, 12 July 2010
Stigma Damages
[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]
The EAT (Cox J) has handed down its decision in Brown v Careham Hall, which is authority for the proposition that stigma damages will only be awarded where the employee's difficulty in finding new employment is attributable to the dismissal.
Brown was a care home worker automatically unfairly dismissed during her notice period amid allegations that she was rough with the residents. She claimed that her employer had torpedoed her new job by giving her an unfavourable reference. The tribunal concluded that even if she had not been unfairly dismissed, her employer would still have given her an unfavourable reference. It could not therefore be said that the difficulties she experienced in obtaining new employment were because of the unfair dismissal. Those difficulties were due to the reference and so could not sound in compensation under section 123 ERA 1996. The EAT also held that as the tribunal found that there had been a significant and serious breach of the now defunct statutory procedures, an uplift of 30% to 50% pursuant to section 31 EA 2002 was appropriate. However, where within that range the uplift was to fall was entirely a matter of fact for the tribunal and the EAT declined to interfere with the uplift of 30% awarded.
The EAT (Cox J) has handed down its decision in Brown v Careham Hall, which is authority for the proposition that stigma damages will only be awarded where the employee's difficulty in finding new employment is attributable to the dismissal.
Brown was a care home worker automatically unfairly dismissed during her notice period amid allegations that she was rough with the residents. She claimed that her employer had torpedoed her new job by giving her an unfavourable reference. The tribunal concluded that even if she had not been unfairly dismissed, her employer would still have given her an unfavourable reference. It could not therefore be said that the difficulties she experienced in obtaining new employment were because of the unfair dismissal. Those difficulties were due to the reference and so could not sound in compensation under section 123 ERA 1996. The EAT also held that as the tribunal found that there had been a significant and serious breach of the now defunct statutory procedures, an uplift of 30% to 50% pursuant to section 31 EA 2002 was appropriate. However, where within that range the uplift was to fall was entirely a matter of fact for the tribunal and the EAT declined to interfere with the uplift of 30% awarded.
Thursday, 8 July 2010
Caps on Redundancy Payments not Age Discrimination
[Thanks to Richard Hayes of Devon Law Centre for providing this case summary]
Kraft Foods had an "exceptionally generous" contractual redundancy scheme. Because of the high levels of payment under the scheme, it capped redundancy payments at the sum that a redundant employee would have earned if he had remained in employment until normal retirement age.
Mr Hastie, a 62 year old employee, found his redundancy payment was capped at £76,560 - being what he would have earned if he had remained employed until 65. If no cap existed, he would have received about £90,000. He complained the cap amounted to indirect discrimination on grounds of age, as it would only bite against older workers.
The Employment Appeal Tribunal held that the cap was justified. The company's aim of preventing employees receiving a 'windfall' met a legitimate aim, namely giving appropriate payments to employees to compensate them for future loss of earnings. And the cap was a proportionate means of achieving that aim.
Kraft Foods v Hastie
Kraft Foods had an "exceptionally generous" contractual redundancy scheme. Because of the high levels of payment under the scheme, it capped redundancy payments at the sum that a redundant employee would have earned if he had remained in employment until normal retirement age.
Mr Hastie, a 62 year old employee, found his redundancy payment was capped at £76,560 - being what he would have earned if he had remained employed until 65. If no cap existed, he would have received about £90,000. He complained the cap amounted to indirect discrimination on grounds of age, as it would only bite against older workers.
The Employment Appeal Tribunal held that the cap was justified. The company's aim of preventing employees receiving a 'windfall' met a legitimate aim, namely giving appropriate payments to employees to compensate them for future loss of earnings. And the cap was a proportionate means of achieving that aim.
Kraft Foods v Hastie
Wednesday, 7 July 2010
Equality Act Implementation
[Thanks to Matthew White of St John's Chambers for providing this case summary]
According to a press release on the GEO website, the first wave of implementation of the Equality Act will go ahead to the planned October timetable following the publication of the first commencement order in Parliament next week. This will pave the way for the implementation of landmark provisions to protect disabled people from discrimination and tackle the gender pay gap.
According to a press release on the GEO website, the first wave of implementation of the Equality Act will go ahead to the planned October timetable following the publication of the first commencement order in Parliament next week. This will pave the way for the implementation of landmark provisions to protect disabled people from discrimination and tackle the gender pay gap.
Tuesday, 6 July 2010
Employment Tribunal Statistics 2009/10
[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]
The Tribunal Annual Statistics for 2009/10 have just been published. The key findings are as follows:
The Tribunal Annual Statistics for 2009/10 have just been published. The key findings are as follows:
- There was a 56% increase from 2008/09 in the number of claims accepted by Employment Tribunals, which were at their highest ever level. This is mainly attributable to multiple claims.
- There was a 14% increase in the number of single claims accepted by Employment Tribunals.
- There was a 17% increase in the number of tribunal claims associated with unfair dismissal, breach of contract and redundancy. This is likely to be caused by the economic recession.
- There was a 22% increase in the number of disposals by Employment Tribunals. This did not keep pace with receipts with the result that more than 400,000 claims remained outstanding.
- There was a significant drop in the number of Employment Tribunal claims in which the first hearing took place within 26 weeks of the claim being received. It fell from 74% to just 65%.
Tuesday, 29 June 2010
Termination Payments
[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]
The Court of Appeal has handed down its decision in Gibb v Maidstone & Tunbridge Wells NHS Trust , which is authority for the proposition that when a public body relies on the irrationality of its own financial and management decision making as a defence to a claim by an employee, the court will generally only interfere with the decision where the figures are plainly inexplicable.
The Appellant was the Chief Executive of an NHS Trust that suffered the outbreak of a super-bug. The Trust decided, per Lord Justice Sedley, "that the sacrifice most likely to propitiate the deities of Whitehall and the media was their chief executive officer".
The High Court had erred in concluding that the decision to pay the Appellant £250,000 in a compromise agreement was ultra vires. The judge had reached his own conclusions as to what financial prudence might require. He had also wrongly concluded that the Trust's costs savings in entering into the compromise agreement rather than face a claim for unfair dismissal were likely to be illusory. The fact the Trust had, in deciding on the figure of £250,000, taken into account the Appellant's many earlier years of good service and the time it might take her to find other employment was not irrational.
The Court of Appeal has handed down its decision in Gibb v Maidstone & Tunbridge Wells NHS Trust , which is authority for the proposition that when a public body relies on the irrationality of its own financial and management decision making as a defence to a claim by an employee, the court will generally only interfere with the decision where the figures are plainly inexplicable.
The Appellant was the Chief Executive of an NHS Trust that suffered the outbreak of a super-bug. The Trust decided, per Lord Justice Sedley, "that the sacrifice most likely to propitiate the deities of Whitehall and the media was their chief executive officer".
The High Court had erred in concluding that the decision to pay the Appellant £250,000 in a compromise agreement was ultra vires. The judge had reached his own conclusions as to what financial prudence might require. He had also wrongly concluded that the Trust's costs savings in entering into the compromise agreement rather than face a claim for unfair dismissal were likely to be illusory. The fact the Trust had, in deciding on the figure of £250,000, taken into account the Appellant's many earlier years of good service and the time it might take her to find other employment was not irrational.
Unfair Dismissal Time Limits
[Thanks to Richard Hayes of Devon Law Centre for providing this case summary]
The EAT (Underhill P) has handed down its decision in Northamptonshire County Council v Entwhistle , which is authority for the proposition that it remains reasonably practicable for the employee to file their unfair dismissal claim within the usual time allowed (now three months from the effective date of termination), even though their employer has mistakenly advised them that the time limit for claiming unfair dismissal ran from the date of the rejection of their appeal. This was because the employee's solicitor should have known the limitation date (which ran from the date of dismissal) and filed the claim in time.
Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53 and Marks & Spencer PLC v Williams-Ryan [2008] ICR 193 were correct. Unless the adviser was misled as to the correct limitation date by inaccurate information from the employer, the employee's only remedy was to claim damages in negligence from his adviser.
The EAT (Underhill P) has handed down its decision in Northamptonshire County Council v Entwhistle , which is authority for the proposition that it remains reasonably practicable for the employee to file their unfair dismissal claim within the usual time allowed (now three months from the effective date of termination), even though their employer has mistakenly advised them that the time limit for claiming unfair dismissal ran from the date of the rejection of their appeal. This was because the employee's solicitor should have known the limitation date (which ran from the date of dismissal) and filed the claim in time.
Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53 and Marks & Spencer PLC v Williams-Ryan [2008] ICR 193 were correct. Unless the adviser was misled as to the correct limitation date by inaccurate information from the employer, the employee's only remedy was to claim damages in negligence from his adviser.
Wednesday, 23 June 2010
Employment Consultants and Litigation Privilege
[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]
The EAT (HHJ McMullen) has handed down its decision in Scotthorne v Four Seasons, which is authority for the proposition that advice given by employment consultants about how to deal with an alleged act of gross misconduct does not have to be disclosed because it is protected by litigation privilege. The reason for following a disciplinary procedure is to avoid litigation and so the dominant purpose for seeking the advice was litigation and it did not matter that the consultants were not legally qualified.
The suggestion that advice from non-qualified advisers at an earlier stage would attract legal advice privilege was said to be "fraught with difficulty" but it was found on the facts that it was not required to be disclosed in this case because it was not relevant to the claim as pleaded. Although it had been alleged that the dismissal had been concocted in response to earlier events, this was supported by no more than bare assertion.
The EAT (HHJ McMullen) has handed down its decision in Scotthorne v Four Seasons, which is authority for the proposition that advice given by employment consultants about how to deal with an alleged act of gross misconduct does not have to be disclosed because it is protected by litigation privilege. The reason for following a disciplinary procedure is to avoid litigation and so the dominant purpose for seeking the advice was litigation and it did not matter that the consultants were not legally qualified.
The suggestion that advice from non-qualified advisers at an earlier stage would attract legal advice privilege was said to be "fraught with difficulty" but it was found on the facts that it was not required to be disclosed in this case because it was not relevant to the claim as pleaded. Although it had been alleged that the dismissal had been concocted in response to earlier events, this was supported by no more than bare assertion.
Disability Discrimination
[Thanks to Anna Thomas of Devereux Chambers for providing this case summary]
The case of Aitken v Commissioner of Police of the Metropolis is authority for the proposition that treatment on the basis of a mistaken perception that an employee is suffering from a particular disability does not fall within the definition of direct disability or disability-related discrimination.
In this case a police officer (who suffered from OCD) contended that, following the ECJ's reasoning in Attridge Law LLP v Coleman, s3 Disability Discrimination Act should be interpreted so as to include discrimination on the grounds of perceived disability. The EAT disagreed. Slade J held:
The case of Aitken v Commissioner of Police of the Metropolis is authority for the proposition that treatment on the basis of a mistaken perception that an employee is suffering from a particular disability does not fall within the definition of direct disability or disability-related discrimination.
In this case a police officer (who suffered from OCD) contended that, following the ECJ's reasoning in Attridge Law LLP v Coleman, s3 Disability Discrimination Act should be interpreted so as to include discrimination on the grounds of perceived disability. The EAT disagreed. Slade J held:
- the case was not one in which the Respondent acted on the basis of an assumption that the claimant had a dangerous mental illness; rather the Respondent acted on the basis of how the Claimant presented himself
- in any event the words of section s3 DDA ['...the disabled person's disability '] are distinguishable from those used in other discrimination statutes which do not relate the relevant characteristic to the complainant
- DDA requires an actual disability albeit, since Coleman, the actual disability of a person related to the complainant
Tuesday, 22 June 2010
Equality Act 2010 - implementation
Q. How do you make the switchboard at the Government Equalities Office go mad?
A. Send out a bulletin pointing out that the implementation date for the Equality Act 2010 has been removed from the GEO website.
Apparently the GEO has been inundated with requests for more information. And they've helpfully provided it. Deidre Wright, professional support lawyer at Shepherd and Wedderburn LLP, tells me that the GEO has announced, on its Latest News
page, that:
"The provisions in the Equality Act will come into force at different times to allow time for the people and organisations affected by the new laws to prepare for them. The Government is currently considering how the different provisions will be commenced so that the Act is implemented in an effective and proportionate way. In the meantime, the Government Equalities Office continues to work on the basis of the previously announced timetable, which envisaged commencement of the Act's core provisions in October 2010."
Daniel Barnett
Daniel Barnett
Statutory Grievance Procedure
[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]
The EAT (Cox J) has handed down its decision in Reddy v Bedfordshire NHS Trust , which is authority for the proposition that the requirement in regulation 9(1)(a) of the Dispute Resolution Regulations 2004 that a person who is an appropriate representative of the employee having the grievance has "written to the employer setting out the grievance" was satisfied where the grievance was not sent directly to the employer but was forwarded on by a third party.
The Claimants' union representative sought to raise a collective grievance regarding equal pay. The union representative sent the grievance by email to Bedfordshire County Council, but in error did not succeed in sending it to the employer (Bedfordshire and Luton Partnership NHS Trust) although she had sought to copy the employer in to the email.
The Council forwarded the grievance to the Trust. The tribunal concluded that regulation 9(1)(a) required the Claimants' representative to send the grievance to the employer, and it was not sufficient that the employer had received the grievance indirectly.
The EAT, stressing the importance of focusing on substance rather than technicality, concluded that the tribunal had erred in requiring that regulation 9(1)(a) demanded that the grievance should have been sent to the employer directly, in circumstances where the employer had in fact received the grievance.
The EAT (Cox J) has handed down its decision in Reddy v Bedfordshire NHS Trust , which is authority for the proposition that the requirement in regulation 9(1)(a) of the Dispute Resolution Regulations 2004 that a person who is an appropriate representative of the employee having the grievance has "written to the employer setting out the grievance" was satisfied where the grievance was not sent directly to the employer but was forwarded on by a third party.
The Claimants' union representative sought to raise a collective grievance regarding equal pay. The union representative sent the grievance by email to Bedfordshire County Council, but in error did not succeed in sending it to the employer (Bedfordshire and Luton Partnership NHS Trust) although she had sought to copy the employer in to the email.
The Council forwarded the grievance to the Trust. The tribunal concluded that regulation 9(1)(a) required the Claimants' representative to send the grievance to the employer, and it was not sufficient that the employer had received the grievance indirectly.
The EAT, stressing the importance of focusing on substance rather than technicality, concluded that the tribunal had erred in requiring that regulation 9(1)(a) demanded that the grievance should have been sent to the employer directly, in circumstances where the employer had in fact received the grievance.
Thursday, 17 June 2010
Equality Act 2010 - implementation
Damian McCarthy of Cloisters has pointed out that the Government Equality Office has removed the implementation dates for the Equality Act 2010 from its website.
It may be that parts of the Act are no longer being implemented in October as anticipated, or that the Act is being put out to pasture. Or we could all be reading too much into it!
It may be that parts of the Act are no longer being implemented in October as anticipated, or that the Act is being put out to pasture. Or we could all be reading too much into it!
Definition of Disability
[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]
The EAT (Underhill P presiding) has handed down judgment in J v DLA Piper UK LLP, where the EAT had to consider closely the definition of 'disability' for mental impairments within the meaning of the DDA. It stated:-
The EAT (Underhill P presiding) has handed down judgment in J v DLA Piper UK LLP, where the EAT had to consider closely the definition of 'disability' for mental impairments within the meaning of the DDA. It stated:-
- A GP is fully qualified to express an opinion on whether a patient is suffering from depression;
- it remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it); but
- the tribunal should not proceed by rigid consecutive stages; if there is a dispute about the existence of an impairment, it will make sense to start with the question of whether a claimant's ability to carry out normal day-to-day activities is adversely affected.
Tuesday, 15 June 2010
Conditional Resignations
[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]
The EAT (HHJ Pugsley) has handed down its decision in Heaven v Whitbread Group, which is authority for the proposition that, as the effective date of termination is a statutory construct, the date of termination in a 'conditional resignation' claim depends on what happened between the parties. Their wishes, or subsequent agreement as to a different date, are irrelevant (applying Fitzgerald v University of Kent [2004] EWCA Civ 143).
Thus, even though the Claimant had later stated that his resignation should be effective from the date of his conditional letter of resignation, the statutory date of termination still ran from when he confirmed his intention to resign several days later. This meant that the Tribunal had erred in finding that his claim had been brought out of time.
The EAT (HHJ Pugsley) has handed down its decision in Heaven v Whitbread Group, which is authority for the proposition that, as the effective date of termination is a statutory construct, the date of termination in a 'conditional resignation' claim depends on what happened between the parties. Their wishes, or subsequent agreement as to a different date, are irrelevant (applying Fitzgerald v University of Kent [2004] EWCA Civ 143).
Thus, even though the Claimant had later stated that his resignation should be effective from the date of his conditional letter of resignation, the statutory date of termination still ran from when he confirmed his intention to resign several days later. This meant that the Tribunal had erred in finding that his claim had been brought out of time.
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