[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.
Wednesday, 27 April 2011
Tuesday, 26 April 2011
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.
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.
Friday, 15 April 2011
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:
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.
Thursday, 14 April 2011
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).
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).
Tuesday, 12 April 2011
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.
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.
Monday, 11 April 2011
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.
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.
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.
Friday, 8 April 2011
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:
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.
Thursday, 7 April 2011
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:-
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
Tuesday, 5 April 2011
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.
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.
Monday, 28 March 2011
Judicial Proceedings Immunity
[Thanks to Anna Thomas of Devereux Chambers for preparing this case summary]
The EAT (Underhill P) has handed down its decision in Parmer v East Leicester Medical Practice, which is authority for the proposition that judicial proceedings immunity applies to all kinds of discrimination, including victimisation.
Mr Justice Underhill (President) dismissed an appeal brought on the basis that the ratio in Heath v Commissioner of Metropolitan Police did not apply to victimisation claims. Heath (Court of Appeal) made it clear that judicial proceedings immunity (i.e. immunity from any action brought on the basis that evidence is false or careless) extended to claims under the discrimination legislation. Dismissing the appeal brought by a Claimant seeking to argue that false witness statements had been made for the reason that he had brought proceedings, Underhill P held:
The EAT (Underhill P) has handed down its decision in Parmer v East Leicester Medical Practice, which is authority for the proposition that judicial proceedings immunity applies to all kinds of discrimination, including victimisation.
Mr Justice Underhill (President) dismissed an appeal brought on the basis that the ratio in Heath v Commissioner of Metropolitan Police did not apply to victimisation claims. Heath (Court of Appeal) made it clear that judicial proceedings immunity (i.e. immunity from any action brought on the basis that evidence is false or careless) extended to claims under the discrimination legislation. Dismissing the appeal brought by a Claimant seeking to argue that false witness statements had been made for the reason that he had brought proceedings, Underhill P held:
- it is not right that different rules apply to claims of primary discrimination as to claims of discrimination by way of victimisation, all the more so since victimisation is proscribed essentially in order to protect that primary right
- there is no question of an EU-derived right being treated differently from a domestic right
- there is no conflict with underlying EU principles; and
- there is no inconsistency with the jurisdiction to award aggravated damages which can be seen as falling outside the judicial immunity rule
Saturday, 26 March 2011
CPD Webinars - CPD Made Easy
As well as my practise as a barrister, I am also involved with a company called CPD Webinars which provides online video training in personal injury and employment law. We are now celebrating our fourth year and have decided to make available all our back content for FREE to all subscribers. This means that for £795+VAT a whole office can receive access to 60 CPD hours by some of the country's leading lawyers. For more information click here. To receive a FREE webinar which will give two CPD hours, click here.
Wednesday, 23 March 2011
Arbitration Clause Offends Contracting Out Provisions
[Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary]
The High Court (Slade J) has given judgment in Clyde & Co LLP v van Winkelhof concerning the enforceability of arbitration clauses in employment contracts.
Ms van Winkelhof was a partner at Clyde & Co. She brought discrimination and whistleblowing claims in the employment tribunal after she was expelled from the partnership. Clyde & Co applied for a mandatory injunction in the High Court requiring Ms van Winkelhof to apply for, or consent to, a stay of her employment claims pending compliance with the Dispute Resolution procedure set out in her Members' Agreement. This procedure gave Clyde & Co an unfettered right to refer Ms van Winkelhof's complaints to arbitration, which would be a 'final resolution' of her complaint and therefore prevent the continuation of her claims before the ET.
The High Court held that the provision for binding arbitration was void by operation of s.203 Employment Rights Act 1996. Further, on its proper construction s.144(1) Equality Act 2010 rendered unenforceable an agreement to preclude or limit the continuation of sex discrimination proceedings unless reached in accordance with section 144(4). Accordingly Clyde & Co's application for an injunction was dismissed.
The High Court (Slade J) has given judgment in Clyde & Co LLP v van Winkelhof concerning the enforceability of arbitration clauses in employment contracts.
Ms van Winkelhof was a partner at Clyde & Co. She brought discrimination and whistleblowing claims in the employment tribunal after she was expelled from the partnership. Clyde & Co applied for a mandatory injunction in the High Court requiring Ms van Winkelhof to apply for, or consent to, a stay of her employment claims pending compliance with the Dispute Resolution procedure set out in her Members' Agreement. This procedure gave Clyde & Co an unfettered right to refer Ms van Winkelhof's complaints to arbitration, which would be a 'final resolution' of her complaint and therefore prevent the continuation of her claims before the ET.
The High Court held that the provision for binding arbitration was void by operation of s.203 Employment Rights Act 1996. Further, on its proper construction s.144(1) Equality Act 2010 rendered unenforceable an agreement to preclude or limit the continuation of sex discrimination proceedings unless reached in accordance with section 144(4). Accordingly Clyde & Co's application for an injunction was dismissed.
Tuesday, 22 March 2011
Equal Pay
[Thanks to Emma Price of Temple Garden Chambers for preparing this case summary]
The EAT (Underhill P) has handed down its decision in The Audit Commission v Haq, which is authority for the proposition that:
The EAT (Underhill P) has handed down its decision in The Audit Commission v Haq, which is authority for the proposition that:
- An ET is not entitled to find a prima facie case of indirect sex discrimination where a pay protection policy is applied on the amalgamation of two job roles. The pay protection policy does not put women at a particular disadvantage when compared to men and statistics can only establish that one of two roles that were amalgamated was subject to gender stereotyping; and
- Protecting the pay of employees affected by a re-structuring is in principle a legitimate aim and is justified provided the policy is a proportionate means of achieving that aim.
Both roles fell within the same pay grade, which incorporated a points system to determine the exact level of pay. The pay protection policy applied on amalgamation of the roles allowed employees to retain their previous pay point. The EAT noted that the policy may have led to a situation where a man and a woman doing work of equal value were receiving different amounts, but that was because of the different rates which they were (non-discriminatorily) paid previously and had nothing to do with their gender.
Monday, 21 March 2011
Employment Status
[Thanks to David Campion of EAD Solicitors for preparing this case summary]
The EAT (Silber J) has handed down its decision in Knight v BCCP, which reaffirms the position that without mutual obligations to accept and offer work, there can be no employment relationship under the Employment Rights Act 1996 ("ERA 1996").
The Claimant, a taxi driver engaged by a taxi firm for just over six weeks, did not receive any holiday pay, sick pay or overtime. He worked under the taxi firm's control to a degree and only received wages for the occasions he actually worked.
Following termination, the Claimant claimed statutory notice pay under s.86 ERA 1996. Although the ET originally found that the Claimant was a 'worker' under s.230(3), the Claimant failed to establish that he was an 'employee' under s.230(1). Whilst workers are entitled to some rights under ERA 1996, only employees are able to claim statutory notice pay. As the ET found that the Claimant was under no obligation to accept work and the taxi firm under no obligation to offer work to the Claimant, it held that the Claimant was not an employee, a decision in turn upheld by the EAT.
As there was no contractual documentation in this case, the EAT considered the ET's decision that there was no mutuality of obligation to be a 'question of fact'. The EAT therefore held that the ET's decision could only be overturned if found to be a decision which no reasonable Tribunal could have reached, which it was determined not to be.
The EAT (Silber J) has handed down its decision in Knight v BCCP, which reaffirms the position that without mutual obligations to accept and offer work, there can be no employment relationship under the Employment Rights Act 1996 ("ERA 1996").
The Claimant, a taxi driver engaged by a taxi firm for just over six weeks, did not receive any holiday pay, sick pay or overtime. He worked under the taxi firm's control to a degree and only received wages for the occasions he actually worked.
Following termination, the Claimant claimed statutory notice pay under s.86 ERA 1996. Although the ET originally found that the Claimant was a 'worker' under s.230(3), the Claimant failed to establish that he was an 'employee' under s.230(1). Whilst workers are entitled to some rights under ERA 1996, only employees are able to claim statutory notice pay. As the ET found that the Claimant was under no obligation to accept work and the taxi firm under no obligation to offer work to the Claimant, it held that the Claimant was not an employee, a decision in turn upheld by the EAT.
As there was no contractual documentation in this case, the EAT considered the ET's decision that there was no mutuality of obligation to be a 'question of fact'. The EAT therefore held that the ET's decision could only be overturned if found to be a decision which no reasonable Tribunal could have reached, which it was determined not to be.
SOSR Dismissals
[Thanks to David Campion of EAD Solicitors for preparing this case summary]
The EAT (Keith J) has handed down its decision in Ezsias v North Glamorgan NHS Trust, which is authority for the proposition that the reason for dismissal is not conduct - and thus an employer need not follow its conduct dismissal procedures - where the dismissal is primarily because of a breakdown in trust and confidence caused by the employee's conduct.
The Claimant, a Consultant Surgeon claimed he had been automatically unfairly dismissed due to making protected disclosures (whistleblowing).
An investigation found that the Claimant's conduct had led to the breakdown of relationships and that many of the Claimant's colleagues would not be happy to work with him again. The ET found that the Claimant's alleged protected disclosures were not made in good faith and that dismissal was not due to the disclosures, but rather due to the breakdown in trust and confidence.
The Claimant appealed on the basis that the NHS trust had failed to implement disciplinary procedures under the nationally agreed Whitley Council terms. It was held that these disciplinary procedures were not applicable as the allegation did not relate to the Claimant's conduct. The decision to dismiss was upheld as being fair for some other substantial reason, as dismissal was due to the breakdown in trust and confidence, not the Claimant's conduct by contributing to that breakdown.
The EAT (Keith J) has handed down its decision in Ezsias v North Glamorgan NHS Trust, which is authority for the proposition that the reason for dismissal is not conduct - and thus an employer need not follow its conduct dismissal procedures - where the dismissal is primarily because of a breakdown in trust and confidence caused by the employee's conduct.
The Claimant, a Consultant Surgeon claimed he had been automatically unfairly dismissed due to making protected disclosures (whistleblowing).
An investigation found that the Claimant's conduct had led to the breakdown of relationships and that many of the Claimant's colleagues would not be happy to work with him again. The ET found that the Claimant's alleged protected disclosures were not made in good faith and that dismissal was not due to the disclosures, but rather due to the breakdown in trust and confidence.
The Claimant appealed on the basis that the NHS trust had failed to implement disciplinary procedures under the nationally agreed Whitley Council terms. It was held that these disciplinary procedures were not applicable as the allegation did not relate to the Claimant's conduct. The decision to dismiss was upheld as being fair for some other substantial reason, as dismissal was due to the breakdown in trust and confidence, not the Claimant's conduct by contributing to that breakdown.
Friday, 18 March 2011
Issue Estoppel
[Thanks to Ed McFarlane of EEF for preparing this case summary]
The EAT (Silber J) has handed down its decision in Foster v Bon Groundwork, which is authority for the propositions that:
The Unfair Dismissal element of the second claim was struck out as an abuse of process, relying on the dismissal of the previous claim for redundancy pay.
The employee's appeal succeeded, the second claim was not res judicata since the first claim for redundancy pay was not a necessary ingredient of the Unfair Dismissal complaint, and in any event as the first claim was premature, so the lack of jurisdiction prevented an estoppel, and the Claimant's conduct was not, on the facts, abusive or oppressive under Henderson v Henderson.
The Judgment contains a lucid review of various authorities dealing with estoppel and abuse of process.
The EAT (Silber J) has handed down its decision in Foster v Bon Groundwork, which is authority for the propositions that:
- The res judicata doctrine, creating an estoppel barring multiple claims from the same cause of action does not apply if a finding in the first claim determined is not a necessary ingredient of a subsequent claim.
- A finding made when a Tribunal has no jurisdiction to hear a claim will not create an estoppel against subsequent claims.
- The rule in Henderson v Henderson "a safeguard against abuse of process that requires parties to put their whole case forward in one claim" is not engaged where there is no oppressive or abusive conduct by a party failing to do so.
The Unfair Dismissal element of the second claim was struck out as an abuse of process, relying on the dismissal of the previous claim for redundancy pay.
The employee's appeal succeeded, the second claim was not res judicata since the first claim for redundancy pay was not a necessary ingredient of the Unfair Dismissal complaint, and in any event as the first claim was premature, so the lack of jurisdiction prevented an estoppel, and the Claimant's conduct was not, on the facts, abusive or oppressive under Henderson v Henderson.
The Judgment contains a lucid review of various authorities dealing with estoppel and abuse of process.
Reasonable Adjustments / Aggravated Damages
[Thanks to Natasha Sethi of Henderson Chambers for preparing this case summary]
The EAT (Underhill P) has handed down its decision in Tameside Hospital NHS Foundation Trust v Mr Mylott, which is authority for the proposition that a Tribunal is not entitled to find that section 4A of the Disability Discrimination Act 1995 gives rise to a duty on the employer of a disabled employee to take steps to facilitate an application for ill health retirement. Reasonable adjustments involve steps to enable the employee to stay in employment, not to compensate him for having to leave it. The EAT found that offering ill-health retirement, therefore, does not fall within the scope of "reasonable adjustments".
In quashing the Tribunal's decision to make an award of aggravated damages, the EAT warned that a finding of malice against a manager is a serious finding, which is not to be made lightly and which must be fully supported if made. The Tribunal had found that the Deputy Director of Finance had acted in a brusque and insensitive manner towards the employee and that in giving evidence she was both dismissive and evasive. However, the EAT held that none of those observations were capable of supporting a finding of aggravated damages.
The EAT (Underhill P) has handed down its decision in Tameside Hospital NHS Foundation Trust v Mr Mylott, which is authority for the proposition that a Tribunal is not entitled to find that section 4A of the Disability Discrimination Act 1995 gives rise to a duty on the employer of a disabled employee to take steps to facilitate an application for ill health retirement. Reasonable adjustments involve steps to enable the employee to stay in employment, not to compensate him for having to leave it. The EAT found that offering ill-health retirement, therefore, does not fall within the scope of "reasonable adjustments".
In quashing the Tribunal's decision to make an award of aggravated damages, the EAT warned that a finding of malice against a manager is a serious finding, which is not to be made lightly and which must be fully supported if made. The Tribunal had found that the Deputy Director of Finance had acted in a brusque and insensitive manner towards the employee and that in giving evidence she was both dismissive and evasive. However, the EAT held that none of those observations were capable of supporting a finding of aggravated damages.
Wednesday, 16 March 2011
Ministers of Religion
[Thanks to Robert Dickason of Outer Temple Chambers for preparing this case summary]
The EAT (Underhill P) has handed down its decision in Moore v Methodist Church, which is authority for the proposition that, in light of the decision of the House of Lords in Percy v Board of National Mission of the Church in Scotland, a minister of the Methodist Church may be employed under a contract of service notwithstanding the conclusion of the Court of Appeal in Methodist Church v Parfitt on materially identical facts.
The Tribunal had considered itself bound by Parfitt on the facts, if not the law, and so found that the Claimant minister had not been employed under a contract of service. The EAT provided a helpful overview of the authorities in this area and concluded that the reasoning in Parfitt as applied to the facts of that case could not stand in light of Percy. Hence the Tribunal was wrong to follow Parfitt on the very similar facts of this case.
The EAT (Underhill P) has handed down its decision in Moore v Methodist Church, which is authority for the proposition that, in light of the decision of the House of Lords in Percy v Board of National Mission of the Church in Scotland, a minister of the Methodist Church may be employed under a contract of service notwithstanding the conclusion of the Court of Appeal in Methodist Church v Parfitt on materially identical facts.
The Tribunal had considered itself bound by Parfitt on the facts, if not the law, and so found that the Claimant minister had not been employed under a contract of service. The EAT provided a helpful overview of the authorities in this area and concluded that the reasoning in Parfitt as applied to the facts of that case could not stand in light of Percy. Hence the Tribunal was wrong to follow Parfitt on the very similar facts of this case.
Termination Payments
[Thanks to Simon Steen of Steen & Co for this information]
On 6th April 2011, the Income Tax (Pay As You Earn) (Amendment) Regulations 2011 come into force.
At present, when a payment is made to a departed employee after their P45 has been produced, income tax is deducted at basic rate only (and they are responsible for any additional tax) using a 'BR' tax code. After 6th April 2011, tax at the full 20%, 40% or 50% rates must be deducted from post-termination payments (using the '0T' tax code).
On 6th April 2011, the Income Tax (Pay As You Earn) (Amendment) Regulations 2011 come into force.
At present, when a payment is made to a departed employee after their P45 has been produced, income tax is deducted at basic rate only (and they are responsible for any additional tax) using a 'BR' tax code. After 6th April 2011, tax at the full 20%, 40% or 50% rates must be deducted from post-termination payments (using the '0T' tax code).
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