Thursday, December 30, 2010

TUPE and Tribunal Compensation - There's No Limit!

The Employment Appeal Tribunal has held that the limit on "a week's pay" that applies for the purposes of, for example, Statutory Redundancy Payments and a Basic Award for Unfair Dismissal does not apply to compensation for failure to inform and consult about a transfer under the Transfer of Undertaking (Protection of Employment) Regulations 2006 ("TUPE.")

Under the Regulations up to 13 weeks' pay can be awarded as compensation to each employee affected by a failure to inform and consult with them about how a transfer will affect them. This is a punitive sanction and the starting point is therefore the full 13 weeks' pay unless the Respondent can show mitigating circumstances to the contrary.

A number of employees of Dorlux were affected by a TUPE transfer when the company went into administration and was sold to Kozee. They claimed damages from Kozee for the failure to inform and consult and their claims succeeded.

They were each awarded 13 weeks' pay but the Tribunal capped the damages at the limit for "a week's pay." This was then £350.00. It is now £380.00 and rises to £400.00 on 1st February.

Having unsuccessfully applied to the Tribunal for a Review of this decision the Claimants appealed to the EAT against the capping.

The EAT upheld their appeal and found that the cap did not apply and that the Claimants were entitled to their full weekly pay. This increased the damages for each of them by between about £6000 and £9000.

The EAT found that although TUPE incorporated the basis of the calculation of a week's pay as set out in the Employment Rights Act (which sets out in detail how the sums are to be done), s.227 of the ERA set out the payments to which the cap related and TUPE compensation was not expressly or impliedly one of them.

This case is a lesson in the importance of reading the legislation carefully and not just assuming that the cap applies to damages based on " a week's pay." It was also a very expensive lesson for this particular Respondent in the importance of complying with the obligation to inform and consult.


The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/10_0312fhwwSBCEA.doc

Friday, December 17, 2010

Discrimination Claims and Compromise Agreements - Solicitor ordered to attend Tribunal Hearing

In March 2010 Mrs Boateng brought an Employment Tribunal claim against her employers for Age and Race Discrimination.

In July 2010 mediation took place to try and resolve the dispute. At the end of a working day of mediating the parties all signed a Compromise Agreement and shook hands after apparently agreeing a deal.

The following day however Mrs Boateng emailed her employer's Solicitors to say that the Agreement was not binding because the employer had signed one of the copies in the wrong place.

Having parted company with the Solicitor who represented her at the mediation she tried to carry on with the case. The employer tried to have the Claims thrown out on the basis that there was a binding settlement.

In response to the strike out application Mrs Boateng abandoned the rather optimistic argument about the signature being in the wrong place and raised the more fundamental point that the agreement was not binding because she had not received the necessary advice from her Solicitor.

The Solicitor vigorously disputed this in correspondence that Mrs Boateng produced to the Tribunal.

As the rules about Compromise Agreements are a safeguard against people signing away their employment rights unless they have been fully and independently advised they are strictly enforced and if Mrs Boateng could prove what she said was true then the Agreement was invalid and the case could continue.

The Respondent applied to summons the Solicitor as a witness as to what went on but the Employment Tribunal refused to make an Order. The Solicitor refused to attend voluntarily on the basis that what had passed between him and his client was priveliged and confidential.

The Respondent appealed to the EAT who granted the Witness Order.

The Solicitor's evidence was clearly relevant to the issue of whether the statutory requirements of a binding Compromise Agreement were met. The Claimant had waived privelige by putting the matter in issue and it would be unfair on the Respondent to have to proceed without the Solicitor's evidence as the format of mediation (a form of "shuttle diplomacy" where the two parties sit in separate rooms and the mediator moves from one to the other until an agreement materialises) meant that the Respondent had no way otherwise of knowing whether what the Claimant said was correct.

The Tribunal encouraged the Solicitor to prepare a summary of his evidence ahead of the Hearing in order to assist the parties but doubted whether it had the power to compel him to do so.

Whilst obviously Mrs Boateng may be able to prove her case at a full hearing of all the evidence, on the face of it she would appear to have a task on her hands given that the Solicitor appears adamant that he gave her the advice and she gave all appearance of being happy with the deal at the time. The Tribunal may take some convincing that this is not the not entirely uncommon scenario of someone thinking better of a settlement after reflection.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/10_0440fhwwSBCEA.doc

Wednesday, December 15, 2010

Unfair Dismissal - Optimistic Postman/Murderer Brings Claim

BBC News reports today that Southampton Employment Tribunal will tomorrow hear an Unfair Dismissal Claim by a convicted murderer.

Roger Kearney is serving a minimum of 15 years after being convicted earlier this year of murdering his married lover.

He was a postman at the time of the offence and now claims Royal Mail unfairly dismissed him.

Whilst one cannot help but wonder whether there is more to this than meets the eye, at face value this does not seem to be the strongest case ever to be presented to an Employment Tribunal.

Although not every offence committed outside of work would justify summary dismissal, murdering your mistress and hiding her body in the boot of a car at a service station is likely (one would hope!) to be found to be conduct that a reasonable employer could potentially regard as gross misconduct (that being the legal test.)

Even if the Claim succeeds (and we must reserve judgement on that) damages are likely to be limited on the basis that clearly the Claimant would not have been earning anything even had he not been dismissed, given his inability to attend work until 2025 at the earliest. It would also be very suprising if the Tribunal did not find committing a murder to be "blameworthy and culpable" conduct justifying a 100% reduction in the Award on the grounds of contributory fault.

It is not clear from the report whether Royal Mail are deploying the alternative argument that the Claimant was not dismissed but instead the contract ended through "frustration." This is when the contract becomes impossible to perform because of an act outside the control of the parties, such as one of them being sent to prison (which is of course in one sense within the Claimant's control, but ultimately is something imposed on him from without by the state.) Tribunals are not keen on the concept of frustration because it ends the contract without the employee being entitled to legal rights like notice and written reasons but if there was ever a case where it might be said to apply then this is surely it.

The BBC report is at:-
http://www.bbc.co.uk/news/uk-england-hampshire-11998785

Watch this space! I shall update this blog when we know the outcome.

Monday, December 13, 2010

Payment In Lieu of Notice and Bonuses - Read the Small Print

Mr Locke was employed by a company involved in the proposed redevelopment of Chelsea Barracks for the Qatari Government, later the subject of an alleged controversial intervention by Prince Charles.

He performed his duties well but after just under a year of employment (before he could accrue the right to claim Unfair Dismissal) his contract was terminated with immediate effect following a disagreement over the company's wish to alter his terms.

The employer had a contractual right to terminate his employment without notice and pay him in lieu of the 6 months' notice to which he was otherwise entitled. They therefore paid him a sum equivalent to 6 months' notice pay.

They did not however pay the annual bonus of £160,000.00 which the Claimant said he would have been entitled to had his employment not been terminated.

The contract said that "You must be employed by the Company in order to receive the bonus."

The Claimant sued, claiming he was entitled to the money. The High Court rejected his Claim. It held that the clause must be taken to mean that he had to be employed by the company at the time the bonus became payable. This was on the basis that the alternative interpretation would have required the company to pay the bonus as well as 6 months' notice to someone who was no longer employed by them, and that there was no basis upon which they would have agreed to something like that which had no obvious benefit for them.

He could not claim the £160,000.00 as damages for breach of contract arising from the termination because the company had the contractual right to terminate the contract summarily.

Mr Locke appealed to the Court of Appeal, which by a 2 to 1 majority dismissed his appeal. They held that to benefit from the annual bonus he had to be employed by the company at the time the bonus became payable, and that as his employment had been lawfully terminated before then he was entitled to the money.

The company had a fairly lucky escape given the split in the Court of Appeal (assuming the matter does not end up in the Supreme Court and a different decision reached.) The message for employers is that it is important that contracts are drafted in such a way that there is no ambiguity - the PILON clause could have made clear only basic pay was payable, or the bonus clause could have made clear that there was no entitlement if the PILON clause was exercised.

Having a PILON clause is not always an unalloyed benefit for employers. If there is such a clause then the notice pay is a contractual debt rather than the damages which would be payable for summary termination otherwise. This means that there is no obligation to mitigate loss and an employee can potentially claim for a full, perhaps lengthy, notice period even if he or she walks straight into another job.

There is a report of the case at http://www.bailii.org/ew/cases/EWCA/Civ/2010/1350.html

Friday, December 10, 2010

Sex Discrimination, Victimisation, and Legal Secretaries Hearing Voices

Yet again a firm of Solicitors find themselves in the EAT, but for once the lawyers cannot be criticised!

Miss Wilson was a legal secretary working for a firm in London. During the course of her employment she made some bizarre allegations against two of the Partners in the firm.

It was conclusively established that the allegations were without foundation and it transpired that Miss Wilson was suffering from a mental illness with symptoms of psychosis. It would appear that she was hearing voices.

Having initially instigated disciplinary proceedings on the basis of her having made malicious allegations, the Firm decided not to go down that route but to terminate Miss Wilson's employment on the basis that the risk of recurrence meant that the relationship of trust and confidence between the parties had been destroyed.

Following a hearing, at which Miss Wilson attended with a representative from MIND, and throughout which she continued to insist the allegations against the Partners were true, she was dismissed with immediate effect.

Miss Wilson brought various claims relating to Disability Discrimination which were rejected by the Employment Tribunal. They found that a non-disabled person who made similar allegations would have been treated the same way. They also found that the obligation to make reasonable adjustments did not in this case extend to continue to employ someone behaving in such a strange way.

There was also a claim that her dismissal amounted to Victimisation (unlawful less favourable treatment) for having done the "protected act" of alleging Sex Discrimination. It was this part of the case which reached the EAT.

The EAT rejected Miss Wilson's Appeal and upheld the original decision to reject the Victimisation claim. The Employment Tribunal had been right to find that the reason for the dismissal was not the fact that Miss Wilson had made the allegations but the risk of future disruption as a result of her doing the same thing again in the future.

It will sometimes be a fine distinction to draw especially as the Tribunal is supposed to consider the reason for the actions rather than the motive and the EAT clearly found it a difficult task to wrestle with, hence the lengthy discussion of the relevant authorities.

An interesting aside relates to the fact that there is no right to claim Victimisation where the allegations are false and made in bad faith. Both parts of that definition have to be satisfied, so even though the allegations were palpably false they were "protected acts" because Miss Wilson genuinely, but psychotically, believed them to be true.

The case is reported at:-


http://www.employmentappeals.gov.uk/Public/Upload/10_0086daoj.doc

Thursday, December 09, 2010

Flexible Working, Indirect Discrimination and the Pool for Comparison - the EAT muddies the waters

The Employment Appeal Tribunal in Scotland has handed down a Judgment that potentially will make it more difficult for women whose flexible working requests are refused to claim indirect sex discrimination.

The statutory right is to request (rather than to be granted) flexible working. Provided that the correct procedure is followed and one of the permissible reasons for refusal is given the employer is entitled to turn down the request.

What women who are unhappy with refusal will often do in this situation is claim indirect Sex Discrimination on the basis that as women are (still) the primary carers for children a requirement to work full time will place women, including the Claimant, at a particular disadvantage.

Tribunals have tended to assume that this is the case. The EAT has made clear that this is not necessarily so.

Mrs Wilson applied for flexible working upon return from maternity leave. Her request was rejected on the basis that all property managers employed by the company had to work full time. She said that she could not comply with this requirement because of her child care commitments and resigned, claiming Unfair Dismissal and indirect Sex Discrimination.

The Employment Tribunal refused her employer's application to strike out the claim as having no reasonable prospect of success, rejecting the suggestion that the "pool" for comparison should be only those who wanted to take advantage of flexible working (and that on basis the policy affected men and women equally.)

The EAT said this was wrong. The appropriate pool was those who would actually have wanted to work flexibly. However, they then went on to reject the employer's submission that it followed from this that the Claim had no prospect of success. The reasons why an application for flexible working would differ and it could not be said that every person who wanted to work flexibly but could not was put at a disadvantage.

The suggestion was that there was potentially a difference between, for example, a woman who made a lifestyle choice to only work part time and someone who had no choice but to do so because she could not afford child care.

This case is in Scotland and therefore only of persuasive authority (i.e. not binding on Employment Tribunals) in England, and there is some suggestion that it may be difficult to reconcile with a Court of Appeal authority on age discrimination. Nevertheless it will inevitably carry some weight.

Employment Tribunals may find themselves in an invidious position when trying to decide who is "disadvantaged" by a requirement to work full time and who just does not like having to work full time.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/EATS.0054.09.BIFINAL.doc

Monday, November 22, 2010

Discrimination, Victimisation and Facebook - Another Thing for Employers to Worry About

A case mentioned on a US Employment Law blog raises an interesting point that shows another possible concern for employers over the use of Social Networking sites in a work context.

An employee and her supervisor were friends on Facebook. Then one day the employee raised a discrimination claim. The supervisor was concerned about what the employee might reveal about the case on Facebook and "unfriended" the employee on Facebook.

The employee then brought a further claim alleging "retaliation" and claimed she was being treated less favourably because she had brought the discrimination claim. She cited the "unfriending" as being an example of this, the suggestion being that it was the online equivalent of being sent to Coventry in the real world.

The equivalent of "retaliation" in English law is "victimisation." If someone does certain "protected acts" including bringing a claim for, appearing as a witness in relation to a claim for, or alleging discrimination, then it is unlawful to subject them to a detriment "because" of that act.

This raises interesting questions:-

a) Is "unfriending" someone on Facebook a "detriment"? This is not clear cut - it is by no means obvious that an Employment Tribunal in this country would consider no longer being friends with someone on Facebook to be analogous to no longer speaking to them in the office.

b) Would the "unfriending" be "because" of the protected act? Until the Equality Act 2010 came into force the legislation made it unlawful to subject someone to a detriment "by reason that" they had done a protected act. This had been interpreted so that where an employer declined to give a reference for the reason that they did not want to prejudice their position in the litigation this was not unlawful. At face value "because" should mean the same thing as "by reason that" but until there is a case on the point we cannot be sure that the test remains the same.

If it does, this would suggest that an English employer would not be found liable for victimisation on the same facts as the US case provided that the reason for the "unfriending" was the concern to protect their position in the litigation and not simply a snub to the employee.

The lesson that one draws from this might well be that people in management positions should be instructed not to be Facebook friends with their subordinates in the first place!

Tuesday, November 16, 2010

Unfair Dismissal - Striking Out (How Not To Do It)

Mr Balls and his wife worked for Downham Market High School. She was the Bursar and he was the groundsman.

An allegation of theft was made against Mrs Balls and both she and her husband were dismissed for gross misconduct. Mr Balls denied doing anything wrong and was never charged with any offence. His wife subsequently went to prison for 18 months after admitting two counts of theft involving a total of £115,000.

Mr Balls claimed Unfair Dismissal and unlawful deduction from wages. He asked the Employment Tribunal to separate his case from that of his wife, but they refused. The cases were stayed by the Tribunal pending the conclusion of the criminal proceedings.

When the criminal case against his wife finished Mr Balls wrote to the Employment Tribunal to say that he wanted the case to carry on. There was then some very unsatisfactory correspondence with the Tribunal in which they accused him of not giving them enough information and warned him that his case could be struck out.

The Respondent applied to have Mr Balls' Claims struck out on the basis that they had no reasonable prospect of success and that he was not actively pursuing them.

The Employment Tribunal struck out his Claims on both grounds. Mr Balls was unable to attend that hearing due to illness.

Not surprisingly he appealed to the Employment Appeal Tribunal, where he was represented by Counsel under a free representation scheme.

The EAT was scathing in its criticism both of the Tribunal for its aggressive letters to Mr Balls and of the Employment Judge for striking out the Claims.

It said it could not possibly be right to strike out the Claim for unlawful deduction from wages when the Respondent had never filed an ET3 Response to it!

Furthermore the Judgment of the Tribunal gave the impression that the Employment Judge had not fully considered the facts or the legal principles to be applied. She seemed to have tarred the Claimant with the same brush as his wife and to have assumed that because she was guilty he also had no reasonable prospect of success - even though he worked in a different department to her and did not have access to School funds.

It was also wrong to say that he had not been actively pursuing the case when he had in fact been trying to no avail to get the Tribunal to get on with it.

The Judgment stresses that strike out is a draconian penalty which deprives a party of the chance to have their case decided on the merits. It is only to be applied in the clearest of cases - where there is no (not just "poor") reasonable prospect of success or where the delay is intentional or has made a fair trial impossible.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/10_0343rjfhSBDM.doc

Thursday, November 11, 2010

Age Discrimination - Serial Litigants Lose Again?

Not for the first time in recent months the Employment Appeal Tribunal has held that an Employment Tribunal was right to strike out or dismiss Age Discrimination claims where the Claimant had no genuine interest in obtaining the jobs which were being advertised.

As in the last reported case on this issue (Keane v Investigo UKEAT/389/09/SM),the Claimant Mr Berry brought a number of Claims based on job advertisements which were said to contain wording that discriminated against older people.

He did not allege that he had personally being placed at any disadvantage by these advertisements. In one of the cases having complained about the wording of the advertisement he failed to apply for the job despite the employer having positively encourage him to do so.

Noticeably the Claimant failed to attend the hearings in any of the 4 cases before the Employment Tribunal and made only written representations to the EAT.

One of the Respondents had in its ET3 response form to the Tribunal alleged that Mr Berry was a serial litigant who had sought to bring numerous proceedings and was using such Claims or the threat of them as a source of income. Whilst the EAT declined to express a concluded view on this allegation without hearing from the Claimant it reiterated its previous view that this was if true a misuse of the Tribunal system and could be expected to result in an Order for Costs against the party to blame.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/10_0190041904200421phapwwSBLA.doc

Thursday, October 21, 2010

Settling through ACAS - it's too late to change your mind!

The Scottish Employment Appeal Tribunal has handed down a ruling which reminds parties that a settlement through ACAS can be binding even though it is never formally put in writing.

Mr Bonner was bringing a claim for Unfair Dismissal.

His Solicitor spoke to his opposite number, who put forward an offer of £1000.00 on behalf of his client. After speaking to Mr Bonner, who confirmed he wanted to accept, the Solicitor rang the ACAS officer in the case. He left a message on the ACAS voicemail accepting the offer.

Both parties then expected that ACAS would assist with finalising a form of wording for a "COT3" ACAS settlement agreement formally recording the terms agreed.

Mr Bonner then changed his mind about settlement and his Solicitor sent the other side a Schedule setting out his alleged losses. In the meantime the parties asked the Tribunal to adjourn the hearing whilst discussions went on about settlement. The Respondent was adamant that there was a binding settlement, the Claimant said that there was not.

The Employment Tribunal decided that as the ACAS Officer had not spoken directly to both parties and as a COT3 would usually contain other provisions (for example for a reference to be given, or about confidentiality) there was not a binding settlement.

The Scottish EAT overturned this. It said that there had been a clear offer and a clear acceptance. The ACAS officer had "taken action" in the case. It was not a requirement of the legislation in order for the settlement to be binding that he had actually brokered the deal or physically spoken to both sides. Whilst COT3s did usually contain other provisions, there was no express agreement here to that effect and the settlement did not need any other terms in order for it to be implemented.

Mr Bonner was therefore stuck with his £1000.00.

The case is a reminder of the often forgotten fact that once a verbal agreement is reached with the assistance of ACAS it is binding and the production or signature thereafter of a COT3 (or the lack of those things) does not mean the case can be reopened. If a deal is subject to a COT3 wording being agreed then this should be specifically stated.

An interesting aside is that the Solicitor who acted for Mr Bonner in relation to the settlement not only represented him at the Employment Tribunal but also gave evidence on his behalf. The EAT expressed considerable surprise not only at the fact that he had done so but also that he did not appear to see any potential issue with this.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/EATS.0060.BIAllmaConstructionvBonnerformattedFINAL1.doc

Friday, October 15, 2010

Unfair Dismissal Time Limits - The Voice is Mightier than the Pen!

The Supreme Court, the highest Court in the land, has confirmed a previous Court of Appeal decision that a dismissal by letter takes effect when the Employee reads the letter, not when they receive it.

Ordinary principles of postal service would deem someone to have received a Court document sent to them by post on the second working day after it was posted by first class post. Contracts of employment will often deem notices to be effective in those circumstances and that time scale is sometimes treated as a rule of thumb for when someone should be expected to have received other documents in the post.

Determining the exact date of dismissal is essential because there is a strict 3-month time limit from the date of dismissal to start an Unfair Dismissal claim. It may also be relevant in some cases where the date of dismissal will determine whether the employee has the necessary 12 months' continuous service to be able to bring a claim in the first place.

Miss Barratt was dismissed from her employment by means of a decision communicated by letter following a disciplinary hearing. She was away from home when the letter was arrived and did not ask anyone to read it down the telephone to her. She read the letter on her arrival home. She presented her Unfair Dismissal claim to the Employment Tribunal within 3 months of the date she read the letter but more than 3 months after it arrived at her home.

If the former was the date of dismissal she could bring her Claim, if it was the latter she was out of time and her Claim would go no further, regardless of the underlying merits.

After reviewing the authorities the Supreme Court decided against importing a strict contractual approach into the test and held that the matter should be determined purely and simply by ascertaining the date on which the letter was read. Somewhat optimistically the Supreme Court thought that this should not be a difficult task in most cases.

The decision leaves open the possibility that where someone has had a reasonable opportunity to read the letter and does not do so the time will start to run against them. This is somewhat at odds with the stated intention of enabling the termination date to be established with certainty but must be right from a practical point of view, otherwise an employee expecting bad news would be able to simply avoid opening the envelope.

Miss Barratt had previously been held not to have gone away with the intention of evading the letter and therefore did not fall foul of this possible exception.

Lesson for employers - tell the employee to their face they are dismissed, even if this means calling them back in for a brief meeting, and then confirm it in writing.

Lesson for employees - do not leave presenting your Claim until the last minute and always assume the earliest possible termination date when calculating the 3 months.

The case is reported at:-
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0157_Judgment.pdf

Friday, October 01, 2010

Equality Act 2010 Comes Into Force

In keeping with the practice of bringing into force new employment laws on 1st April and 1st October only, the majority of the provisions of the Equality Act 2010 come into effect today.

The Act is intended to codify the existing legislation on discrimination and iron out discrepancies that had arisen in relation to the legal treatment of different types of discrimination.

The definition of direct discrimination is altered so that this applies where someone is discriminated against "because" of e.g. sex rather than "on grounds of" it. The Act makes clear that (save in relation to marital/civil partnership status) discriminating against someone because they are perceived to have a protected characteristic (e.g. are wrongly perceived to be gay) or because they are associated with someone with a protected characteristic (e.g. because they are the carer for a disabled person) is unlawful.

One change likely to affect employers on a day to day basis is the restriction on asking questions about health, including disability, before a job offer is made except in specified circumstances. You may need to look at your Job Application forms and the questions you ask at interview to ensure you do not fall foul of this.

The Act also provides for a number of changes that have not yet been brought into force. One is provision for claims based on combinations of discrimination - for example it is now unlawful to treat someone less favourably because they are a black woman (i.e. where a white woman and a black man would have been treated differently.) Whilst this development has been heralded it does seem rather unlikely that it will be one that leads to an explosion in litigation if and when it is introduced.

Perhaps the most controversial provisions that are still "pending" are those which provide for private sector employers to be compelled to carry out gender pay audits and that which permits positive action in very limited circumstances with regards to recruitment and promotion. Neither of these are very "Tory" sounding policies but whether the effect of coalition politics will be to get these into law remains to be seen.

Thursday, September 30, 2010

Unfair Dismissal and Continuous Service - When a summer "break" is not a "break."

The EAT has made an interesting ruling on whether a 7 week break in work for an employer meant that a teacher did not have the 12 months' continuous employment that is required (in most cases) before an employee can bring an Unfair Dismissal claim.

Mr Hussain had a fixed term contract to cover for a teacher who was off sick. This lasted from 26th April to 8th July 2008. By co-incidence the teacher for whom he was covering resigned on 8th July.

As a result on 25th July Mr Hussain was offered a permanent job, replacing the teacher who had resigned. This was to start when the new term began on 5th September.

On 5th June 2009 he was dismissed. If his continuous employment started on 26th April 2008, when he first started at the School, then he could bring an unfair dismissal claim. If his continuous employment began on 5th September 2008, when his current contract began, he could not.

Where an employee is absent from work during any week due to a "temporary cessation of work" that week counts towards their continuous employment.

The Employment Tribunal found that the absence was not because of a "temporary cessation of work." The two contracts were separate and when the first one ended there had been no expectation of Mr Hussain returning. It was "pure chance" that a new contract had been entered into. The suggestion was that it would in some way be "unfair" for Mr Hussain to acquire employment rights in those circumstances.

The Employment Appeal Tribunal rejected this argument. The question was purely and simply whether the break between the two contracts was due to a temporary cessation of work. Whatever the reason for the first contract ending and the second one starting, there had been a temporary cessation. The school closed for the summer in July and re-opened in September, when the work began again.

Whether this was "fair" was beside the point. His Honour Judge McMullen stated "This is not about fairness. It is about construction of the statute." A salutory reminder that us lawyers work in courts of law and not courts of justice!

The EAT was at pains to stress that this was a decision on its specific facts. The fact that Schools tend to have terms and can be predicted to re-open after the summer was clearly a relevant consideration.

The rules about continuous service contain various little quirks and what can appear to be breaks may not be so. If someone works at all during a week it counts, so someone who resigns on a Tuesday and is then taken back on the Friday of the following week will retain their continuous service. It should never be assumed when dismissing someone that because they have not been an employee for every day of the last 12 months they can be dismissed without any risk. It should also be remembered that the statutory notice period of one week will be added onto the length of service even if not worked and as such the qualifying requirement is really 11 months and 3 weeks (ish.)

The case is reported at http://www.employmentappeals.gov.uk/Public/Upload/10_0199fhwwSBSM.doc

Sex Discrimination, Constructive Dismissal and the Office Christmas Party!

Only last week in this Blog I bemoaned the frequency with which Solicitors appear as parties in cases before the Employment Appeal Tribunal (EAT.)

Lo and behold another case is reported today. The facts are quite bizarre and as the EAT delicately put it revolve around "injudicious behaviour at the office Christmas party."

Ms Nixon was in a relationship with a colleague at the firm of Solicitors for which she worked. However at the Christmas party much alcohol was imbibed and she appears to have ended up retiring with the firm's IT manager to a room at the hotel where the party was being held.

Whilst drawing a veil over what then transpired, suffice to say when Ms Nixon discovered she was pregnant shortly thereafter there was much speculation in the office as to whether there were in fact two candidates for the post of father.

Somewhat concerningly from an employment law perspective far from seeking to quell the speculation the HR Manager appears to have been instrumental in spreading it.

Ms Nixon hoped to arrange a move to another office of the firm, at least until her complaint about the HR Manager was resolved.

The senior partner however came to the conclusion that she must return to work at the usual office.

The Claimant resigned, complaining about the failure to deal properly with her complaint about the HR Manager and claimed constructive dismissal and sex discrimination.

At first instance the Tribunal found in her favour on constructive dismissal but rejected her sex discrimination claim. They said that the reason why she objected to the speculation was that it reflected on her behaviour/a relationship with the HR manager at the Christmas party and was not related to pregnancy.

Her damages for unfair dismissal were reduced by 90% to take account of what was said to be her contributory fault, including her conduct at the party and events after the proceedings were commenced, including what the Tribunal felt were inappropriate comments to the press.

Both sides appealed to the EAT.

The finding of constructive dismissal was upheld. The Tribunal had correctly found that the Respondent's handling of the grievance had been inappropriate.

The Tribunal found that the complaint did relate to pregnancy - the speculation was about who had made her pregnant - and therefore substituted a finding of sex discrimination.

The case was remitted to the Tribunal to reconsider the finding on contributory fault and the Tribunal was reminded by the EAT that only conduct preceding the dismissal can be taken into account. The EAT also gave a strong steer that the behaviour at the Christmas party could not be said to have contributed to the fundamental breach by the employer.

The EAT rejected the Respondent's claims that the Tribunal had shown the appearance of bias. The Respondent was also criticised for sending the Employment Judge a copy of a without prejudice offer they had made. A Judge should never see this sort of material before handing down his or her decision.

The report is at http://www.employmentappeals.gov.uk/Public/Upload/10_0108wwfhSBZT.doc

Tuesday, September 28, 2010

Rejection Letters - To Write or Not To Write

In the current economic climate advertisements for job vacancies will typically attract very large numbers of applications. In addition speculative letters enclosing a CV in the hope that there might be something available are becoming increasingly common.

Employers may be tempted to only respond to those applicants who they want to interview, or even not to tell people who come for interview the outcome unless they have got the job.

Setting aside whether this is courteous (there is nothing more annoying than not being contacted again after an interview - I am still waiting for the outcome of an interview I had with a firm in Nottingham in 1991!) is it sensible from a legal perspective?

Whilst there is no legal obligation to write back to someone, failing to do so may if they come from a category of person who can bring a discrimination claim encourage the applicant to think that their letter and CV have not been properly considered- and that this was because of their race, sex or whatever.

Sending a letter explaining that they have been unsuccessful after full consideration will at least make them less likely to read sinister motives into the lack of a response.

The vexed question is then whether you say anything about why the person has not got the job, or why the successful applicant did. On balance it is probably best not to volunteer this information as a matter of course - if you have been unlucky enough to attract the attention of a serial litigant it may just give them information to pore over looking for flaws.

If however someone persists and positively asks for feedback then it is probably best to give them some constructive explanation as to what would have made their application more attractive. It is unlikely to be appropriate to give details about the attributes of the successful candidate (especially if they happen to have been of a different race, sex, age etc.)

Finally, it may be best not to tell unsuccessful applicants that you will keep their CV on file. If they do not get a subsequent job for which they would have been qualified and they find out that someone less obviously suitable got that job then you may once again face allegations of discrimination.

Never forget - damages for discrimination are potentially unlimited, even for someone you have never met!

Thursday, September 23, 2010

Employers' Liability for Bad References - A Cautionary Tale

The Employment Appeal Tribunal has upheld a Judgment of the London Central Employment Tribunal which found a firm of Solicitors and an individual Partner liable for victimisation after a former employee of a predecessor firm was given an unhelpful reference.

The reference made various negative comments but most significantly referred to the fact that the employee had previously made a complaint to the Employment Tribunal of sex discrimination.

The Tribunal found that this comment was gratuitous and could only have been intended to put the recipient on enquiry in relation to those proceedings.

The actual appeal was about whether the Solicitors were liable for the loss of earnings arising from the withdrawal of the job offer resulting from the bad reference. The EAT held that they were. The evidence showed that the new employer had specifically taken into account the mention of the Tribunal proceedings and the Respondents' actions had caused the Claimant's loss.

As such the Respondents were "on the hook" for these losses. The figure will be set later but as we are talking about London Solicitors the amounts will presumably be significant. An award of £7500.00 for hurt feelings was also upheld.

There is (usually) no obligation on an employer to give a reference. Whilst it is an urban myth that you cannot give someone a bad reference (you can if it is fair and accurate and you are not doing so because they have done a protected act like made a claim of discrimination and as long as you do not discriminate on any impermissible ground) why would an employer want to take the risk?

On the other hand there is no point giving someone a good reference that they do not deserve because you can then be liable to a third party who employs them if they were misled!

The safest course is to have a policy of simply providing a basic factual reference giving dates of employment and position held, and making clear to all staff from day one that this is what you will do. It is important to have a blanket policy because if you pick and choose you might be accused of discrimination.

Oh, and unless there is a good reason for doing so, don't volunteer that the employee took you to a Tribunal!

It is a depressing feature of reviewing reported cases in the Employment Appeal Tribunal that firms of Solicitors appear as the losing party with disturbing regularity. Perhaps even more concerning is how often this seems to be in cases relating to discrimination - especially on grounds of sex or disability.

Whilst this is entirely speculative, one does wonder whether this reflects an unwillingness on the part of non-specialist Solicitors to seek advice from Employment lawyers, presumably on the basis that as Solicitors they already assume they know how to do things right. On the other hand they may assume that people will be reluctant to sue Solicitors. If those mindsets are out there then they could prove to be very expensive. It is worth bearing in mind that Employment Tribunal Awards are unlikely to be covered by Professional Indemnity Insurance.


The case is reported in full at http://www.employmentappeals.gov.uk/Public/Upload/10_0189rjfhMSJOJ.doc

Friday, September 17, 2010

Unfair Dismissal - What Did I Do Wrong?

The Employment Appeal Tribunal has reminded employers that they must be careful to ensure that an employee facing a disciplinary hearing knows exactly what they are supposed to have done.

Mrs Celebi worked for a catering company and was based at a Sixth Form College in London. She was responsible for organising the cash collected from the students so that it could be banked. Somewhere along the line from the students to her, the security company and the Bank £3000.00 in cash went missing one day.

Mrs Celebi was suspended and asked to attend a disciplinary hearing. The letter made clear that she was at risk of dismissal for gross misconduct but did not say that the employer suspected that she was guilty of stealing the money.

She was subsequently dismissed and brought an unfair dismissal claim.

At the Employment Tribunal the clear evidence from the manager who dismissed her was that she believed Mrs Celebi had taken the money.

The Tribunal concluded that the employer had reasonable grounds for believing that Mrs Celebi was responsible for "the missing £3000.00" and that it was fair to dismiss her.

The EAT said this was wrong. As the Court of Appeal had made clear in the previous case of Strouthos v London Underground an essential part of a fair procedure is that the employee knows exactly what the allegation is. There is a difference between being to blame because money goes missing (it could be a mistake, lax security, inefficiency) and being guilty of stealing it. If Mrs Celebi was being disciplined for stealing she should have been told this.

Her dismissal was therefore unfair.

The case will now go back to the Employment Tribunal to decide what compensation she should get and whether her damages should be reduced because if she had known the charges against her she might have been fairly dismissed anyway or because she contributed to her own dismissal.

That will apparently be the eighth time the case will have been before the courts (so far.) Bearing in mind that the employer will probably not recover its costs even if it succeeds in reducing the damages award to nil it just shows how much cheaper it is to ensure that you draft the disciplinary letter clearly in the first place.

The case is reported at
http://www.employmentappeals.gov.uk/Public/Upload/10_0032wwfhSBLA.doc

Discrimination Damages - It Wasn't (All) My Fault!

The Employment Appeal Tribunal (EAT) has confirmed that Employment Tribunals can reduce damages for psychiatric illness caused by discrimination if the Employer's actions were not the sole cause.

A previous case had proceeded on the unopposed assumption that this was possible so this if the first definitive ruling in the EAT on the issue.

Miss Thaine succeeded at Tribunal with 2 claims for Sex Discrimination . The employer had tolerated pornographic magazines and posters being displayed by her male colleagues and also the signing-in book being moved into the male changing rooms leading to her suffering sexist abuse when she went to retrieve it.

The Tribunal found that these had been a "material and effective cause" of her subsequent breakdown. They went on however to only award her 40% of the compensation they would otherwise have awarded her for this, on the basis that 60% of the reasons for her breakdown were other factors - including concerns over her mother's health, splitting up with her boyfriend and a history of depressive episodes.

She appealed stating that once the discrimination was found to be a material cause of her breakdown she should receive 100% compensation. The employer cross-appealed stating that the reduction should have been even larger.

The Employment Appeal Tribunal carried out a detailed review of the case law on this topic in the field of personal injury litigation and decided that on balance the Tribunal did have the power to do what it did, on the basis that it was unfair for the employer to be held responsible for the whole of the damage when they were only partly to blame for it.

No doubt this will now lead to Tribunals being asked to scrutinise claims for psychiatric injury in a lot more detail with Claimant's medical notes and personal histories being pored over in detail to look for evidence that there were other causes to the problem.

The simple advice is of course to make sure your male staff are not sitting around reading pornography and making sexist comments in the first place!

The case is reported at http://www.employmentappeals.gov.uk/Public/Upload/10_0144wwfhSBSM.doc

Tuesday, September 14, 2010

Unsuccessful Interviews - Disaster or Discrimination?

A survey for an online job search site has found evidence of some astonishing gaffes by job-seekers at interviews.

A somewhat difficult to believe 13% are said to have failed at interview by answering their mobile phone or sending texts in mid-interview.

Other major faux pas were criticising their current or previous employers, dressing inappropriately or (bizarrely) "providing too much personal information" - the mind boggles!

Anecdotes referred to one candidate keeping a crash helmet on throughout the entire interview, another making an international phone call the moment the interviewer left the room and a third using his fingers to retrieve the remains of a dunked biscuit from inside his hot drink.

Whilst it is (hopefully) obvious why those candidates did not get the job, if someone is unsuccessful without a clear reason they may allege that their race, sex, age, sexual orientation or disability was held against them. If there is no clear audit trail showing why the successful candidate was chosen employers leave themselves vulnerable to this sort of allegation - and the damages can be unlimited even though the Claimant has never worked for you!

Best practice is to have a clear and transparent process, asking each candidate the same non- discriminatory questions (i.e. not asking a woman whether she plans to have children) in the same order and having some objectively measureable means of selecting the successful candidate. Where feedback is requested it will help to avoid creating unnecessary suspicion if this is provided.

Disciplinary Procedures are not academic(al)

The Outer House of the Court of Session, the Scottish equivalent of the High Court, has found that Hamilton Academical FC wrongfully dismissed their assistant manager in 2008 when he was sacked a little over 2 months after being appointed.

John McCormack was appointed to assist the Manager following the club's promotion to the Scottish Premier League. He had a reputation in Scottish football as a "hard man."

Within a short time the Club had come to the conclusion that his managerial style was not to their liking. They were unhappy about him allegedly turning the air blue on the touchline during a pre-season tournament and there was also an allegation that he had reduced a player to tears. It was also alleged that he had made inappropriate comments to and stripped off for the showers in front of a female physiotherapist. On another occasion a chair had been pulled from under someone for a joke during a seminar being given to the players by a nutritionist.

Mr McCormack was confronted and dismissed without notice for gross misconduct.

The Court of Session ruled that if Mr McCormack's conduct as a whole was to be treated as gross misconduct then it was incumbent on the Club to have made clear what was expected of him. After his coaching style was questioned there was no repetition of the behaviour at the tournament. He had apologised to the physiotherapist if he had upset her and the incident had not been repeated. The prank with the chair was no more than that.

Bearing in mind he had been brought in as a "hard man", if they were not expecting him to behave in character then they should have told him this.

The case shows the importance of having a proper "paper trail" even in cases where the employee has less than 12 months' service and cannot bring an Unfair Dismissal claim. The case was worth pursuing here as the employee was on a fixed term contract and therefore his damages were likely to be a lot more substantial than the small amount payable for his notice period in a run of the mill wrongful dismissal claim.

Interestingly the Court found for the Club on the issue of the length of the fixed term contract and found that it was only for one year (in case Hamilton went down) and not the two years that Mr McCormack alleged. This shows the importance of ensuring that the important terms of a contract of employment are in writing, to avoid future disputes.

The case is reported at http://www.scotcourts.gov.uk/opinions/2010CSOH124.html

Thursday, September 02, 2010

Britain's Got Talent - But You Haven't Got a Case!

An Employment Tribunal in London has ruled that an unsuccessful applicant on "Britain's Got Talent" cannot bring proceedings for disability discrimination against the programme's producers Freemantle Media or Simon Cowell's television company Simco.

A Pre-Hearing Review decided that the Claim was brought well outside of the time limts and also that Simon Cowell was not in any event her employer.

Emma Czikai, 54, had alleged that she suffered disability discrimination because the Respondents did not do enough to support her and should not have allowed her audition to be broadcast after she had made them aware of her difficulties. She stated that she suffered from fibromyalgia and also spondylosis of the neck.

The case is a useful reminder that Employment Tribunal time limits are very strictly enforced. For some types of claim, such as Unfair Dismissal and Unlawful Deductions from Wages, the time limit can only be extended if it was "not reasonably practical" to present the claim in time, which is extremely difficult to prove.

In other cases, in particular those relating to discrimination, time can be extended where it is "just and equitable" to do so but even here the higher courts have made clear that any indulgence is the exception rather than the rule.

Although this case failed on its facts it is worth remembering that it is not only employees who can bring discrimination claims. Workers in certain other relationships are among the categories of people who can apply and unsuccessful applicants for jobs are entitled to claim - you could face an expensive damages bill from someone who never works for you! Interestingly the Claimant has said that the Tribunal's Written Reasons accepted that it could have been possible for Simon Cowell to be her employer and she felt this left the door ajar for future contestants.

It seems unlikely Miss Czikai will be auditioning for the programme again as she said she held Simon Cowell personally responsible for what she described as her "public humiliation."

Thursday, August 26, 2010

Roy Hodgson Raises Employment Law Issue Shocker!

The new Liverpool manager Roy Hodgson has accused his predecessor Rafa Benitez of reneging on an agreement that he would not try and "poach" players after his departure earlier this year.

Rafa is now the manager at Italian giants Inter and that club have made offers for Liverpool players Javier Mascherano and Dirt Kuyt, both of which have been rejected. The interest in Mascherano has ended and he is now being linked with a move to Barcelona.

Whilst the details of Benitez's severance agreement with Liverpool are naturally confidential (assuming that there was one and it is more than a "gentleman's agreement") it does raise an interesting employment law issue.

Contracts of employment, mainly but not exclusively those of senior employees, not uncommonly include covenants against seeking to "poach" fellow employees. Usually this consists of a requirement not to offer employment to such people and/or not to encourage them to leave.

Restrictive covenants are a "restraint of trade" and a Court will therefore start from the position that they are likely to be unenforceable. They will only be upheld if they are reasonable in their scope and duration and go no further than protecting a legitimate business interest of the employer.

A well drafted such covenant can survive. This will typically be one which is for a limited period of time (say 6-12 months - or one might say 1 or 2 transfer windows here), cover a limited range of employees and relate to people with whom the person entering into the covenant has actually dealt.

If the whole senior sales team leaves en masse it could hole a company below the waterline. A court is unlikely on the other hand to prevent the office cleaner being poached.

Whether such covenants would work in a football context is an interesting point. Unlike the typical situation a transfer fee would of course be due on the purchase of a player and the value of that fee is likely to adequately compensate the selling club.

There are of course FA and UEFA rules against "tapping up" although in the honourable world of football it would be outrageous to suggest that this ever occurs. It should be stressed that this is not the case here where perfectly open and legitimate bids have been made for the players in question.

Wednesday, August 25, 2010

Holiday Pay - A Victory for Employers (At Last?)

The House of Lords ruled last year that (contrary to the wording of the UK legislation) employees were entitled, as a result of European Law, to carry over holiday they had been unable to take because of illness.

This led to anxiety on the part of employers that they could be faced by large claims for holiday back pay stretching back several years in the case of employees on long-term sick.

The holiday pay rules in the Working Time Regulations state that holiday pay entitlement on termination of employment is limited to the year in which termination takes place.

The House of Lords ruling strictly speaking only applies to "emanations of the State", for example public authorities, but some Employment Tribunals have been creatively interpreting the regulations so as to award holiday pay to private sector employees.

However there has recently been a small victory for employers in the Employment Tribunal case of Khan v Martin McColl . This is only a first instance decision and does not set a binding precedent, at least until it is upheld by a higher court, but it may carry some weight with other Tribunals.

When Mr Khan's employment was terminated after a lengthy sickness absence he was only paid holiday for the current holiday year. He then claimed holiday pay for the 2 previous years.

His claim failed. The Tribunal held that because he had been paid for this holiday year he could not show that there was a deduction or series of deductions from his wages less than 3 months before presenting his claim, and he was therefore out of time.

This suggests that an employer faced with a claim for large amounts of back pay can defeat it simply by paying the holiday pay for the current year, as long as they do it before the Claim is presented and as long as more than 3 months have elapsed since last year's holiday pay was due.

The Tribunal also found that he had not been entitled to carry his holiday forward anyway as he had not been denied the right to take it in the previous years - he had simply not asked to take it.

This latter reason is open to question - the House of Lords case had suggested that an employee who was off sick could not nominate part of their sickness absence as holiday, as the purpose of holiday is to rest from work not to recover from illness. If that is right then Mr Khan could not have asked for the holiday anyway.

Expect to see this or a similar case in the Employment Appeal Tribunal before long.

Tuesday, August 24, 2010

Social Media and the Recruitment Process

With the increasing use of social networking sites like Facebook, and the large amounts of personal information being found on these, it can be increasingly tempting for employers to use these as a tool in the recruitment process.

After all, what could be easier than typing the name of the prospective recruit into a search engine and seeing what comes up?

41% of recruiters in a 2009 survey claimed to have rejected candidates based on their online reputations. Interestingly only 15% of job applicants interviewed felt that information published online could affect their chances of getting a job.

But there are dangers to using this method - suppose the female applicant's Facebook status update is announcing to the world that she is expecting a baby. She does not get the job and alleges this is because of her pregnancy, and that this is unlawful sex discrimination.

If the evidence shows you have looked at her site, you could be facing an unlimited damages bill (including compensation for hurt feelings) from someone who has never worked for you - even if this was not the reason for preferring another candidate. Once a prima facie case of discrimination has been established the onus is on you to disprove it.

Remember that doing a search will create an audit trail on your computer system and that you will be obliged to give disclosure of the relevant records in any proceedings.

There may also be privacy issues - if someone is putting something on an openly accessible part of the world wide web then arguably they can have no expectation of privacy, but if you have to "join" a group in order to access the information then there may be arguments that doing so amounts to an invasion of privacy.

In addition by looking at this information for the purposes of considering whether to employ someone you are almost certainly "processing" data as defined by the Data Protection Act and have a duty to comply with the data protection principles. Although the Information Commissioner's Office has not offered specific guidance on this topic, this is likely to mean that you need to tell applicants that you are doing such a search and what it reveals, and will have to give them a chance to comment on whether the information is accurate (for example, are you looking at the right "John Smith"?)

It is not necessarily the case that a prudent employer will never employ such methods, but caution should be exercised and a policy should be adopted and communicated to all potential recruiters within the organisation to avoid any expensive mistakes.

Friday, August 20, 2010

Substitute Me For Him...

...as The Who would say.

The Employment Appeal Tribunal (EAT) has recently ruled that if a contract provides that someone providing services has the right to substitute someone else to do that work on their behalf they are not a "worker" as defined by the Employment Rights Act 1996.

The Employment Tribunal below had held that a dentist who was entitled to appoint a locum to carry out the work on his behalf was still a "worker" and could therefore pursue an unpaid wages claim.

The EAT said this was wrong because in those circumstances he was not, as required, "obliged to perform personally any work or services" even if it was his obligation to organise the locum.

This may come as something of a surprise. Based on previous case law it was widely considered that whilst someone in this situation would not be an "employee" they would come within the wider definition of a "worker."

Whilst only "employees" have certain rights, such as the right to claim Unfair Dismissal, the trend in more recent legislation has been to give the rights to "workers" - for example in respect of the National Minimum Wage and to holiday pay.

Since a potential effect of the EAT decision would be to reduce the entitlements of what are often called "atypical workers" there may be a temptation for Employment Tribunals to try and find ways of distinguishing it from the cases they hear.

One possible way of doing so will be to hold that a contractual provision which allows for substitution is a "sham" and does not reflect the actual relationship between the parties. Another argument will be that there are "fetters" on the right which mean that it is in fact the case that the worker is expected to do the work personally.

This is highly unlikely to be the last case on the eternally vexed question of employment status.

The case is reported in full at http://www.employmentappeals.gov.uk/Public/Upload/09_0532rjfhSBDA.doc

Thursday, August 12, 2010

Work Until You Drop

The Government has announced that it intends to scrap the default retirement age of 65 with effect from 1st October 2011. This is not entirely a surprise as in a case last year the legislation was somewhat reluctantly upheld on the footing that it was to be reviewed in any event. It was however thought that the policy might be to increase the age to, say, 67, so doing away with it all together is more radical than had been expected.

At present employers can give notice to employees who are approaching (or have past) 65 of the intention to compulsorily retire them. Although the employee has a right to make a request to continue to work beyond 65, provided the employer follows the correct procedure as specified in the applicable Regulations the employee can be compelled to retire (without any reason for the refusal of the request being given) without being liable for unfair dismissal or age discrimination.

It is these provisions that are being scrapped.

The move is being presented as a progressive one – allowing people who are still fit and able to work to maximise their potential rather than being thrown on the scrap heap simply because of their age. A cynic might suggest that given the state of the public finances and an ageing population the Government is merely keen for more of us to work until we drop rather than funding pension provision, and that many people who work on beyond 65 do so out of economic necessity rather than lifestyle choice.

It will still be possible to retire someone compulsorily but this would have to be “objectively justified.” This involves showing that the retirement is an “appropriate” (and, based on the European legislation and case law, “necessary”) means of attaining a legitimate objective.

Whilst establishing a legitimate objective such as ensuring the business performs effectively may not be difficult, deciding whether a retirement is an “appropriate and necessary” means of achieving that objective is always going to be subjective to at least some extent. This change in the law will therefore undoubtedly increase the uncertainty for businesses and might well lead to situations which would previously have been dealt with by way of retirement having to be addressed through capability procedures, which will almost inevitably be more confrontational.

Some possible guidance in this area however may come from the recent Court of Appeal decision in the case of Seldon v Clarkson Wright Jakes. That case confirmed that the compulsory retirement of a partner in a firm of Solicitors at 65 could be “objectively justified.” This was on the basis that it would allow younger partners to come through and take up partnership and that it would facilitate workforce planning.

What could not be used as a justification was that this would avoid older partners having to be performance managed out, as the Court of Appeal said that this was based on a stereotypical assumption that performance (in the workplace!) deteriorates with age.

As an aside, this case is a useful reminder that discrimination legislation applies, albeit sometimes with adjustments, to partners as well as to employees – you may have rights as well as responsibilities!

The detailed legislation has not yet been published but it is anticipated that it will not be possible to give notice of intended retirement at 65 after 6th April 2011 (which is 5 days after the earliest date someone could be given notice to compulsorily retire on 1st October 2011) and that there will be transitional provisions covering notices already given before that date.

Friday, July 16, 2010

Britain - The Sick Man Of Europe

Recent research has revealed that one in five employees in the UK were prepared to admit that their last "sick" day was actually taken for other reasons. The fact that not everyone who has done so would be likely to own up suggests the actual figure for "pulling sickies" will be even higher.

It is suggested that the number of sickies increased during the recent World Cup although one wonders whether this is merely anecdotal bearing in mind only one England game was during normal business hours.

The research went on to find that half of those questions claimed that they would be less inclined to take sickies if they were offered more flexible working arrangements.

If that is true recent Coalition proposals to extend the right to request flexible working to all employees should see a reduction in the number of days lost sick. Perhaps we should not hold our breath.

If people are taking days off sick to care for other family members then this may be unnecessary given the statutory right to reasonable time off for this purpose in certain circumstances. That right is to unpaid leave and if people have entitlements to sick pay then the temptation will of course still remain.

An employer who genuinely believes on reasonable evidence after a proper investigation that someone has falsely claimed to be sick would be entitled to take disciplinary action, possibly including dismissal for gross misconduct. It would however be a brave employer who exercised this right unless there was a pattern of suspicious absences or very clear evidence of wrongdoing.

Friday, May 14, 2010

New Government - New Approach to Employment Law?

With a new Government finally being formed after several days of uncertainty following the inconclusive General Election result it will now be interesting to see how this impacts on Employment Law.

The major piece of legislation which was due to start coming into force in October was the Equality Act. Pre-Election the Conservatives had said that there were only 3 parts of the Act which they did not propose to implement -


  • the requirement for public bodies to consider the socio-economic impact of "strategic decisions"
  • the provision allowing for "positive action" where candidates are of equal merit
  • the power to make regulations requiring gender pay reporting for employers with 250 or more employees

Whether the arrival in office of the first coalition Government since World War II will lead to a change of approach will be interesting to see. Vince Cable is the Minister in charge of the Department for Business Innovation and Skills and whether the Liberal Democrats' views will therefore percolate into law only time will tell.

Perhaps more fundamental to the future than the change in ruling Party is the forthcoming period of austerity. Whoever had won last week it is unlikely that giving employees expensive new rights or increasing funding for Employment Tribunals to enforce rights would have been high up their agenda.

Friday, April 16, 2010

Single-Mother Soldier in "Not Awarded One Million Pounds" Shocker

The Employment Tribunal has today awarded a former soldier £17,016 compensation against the Ministry of Defence in a case which had earlier caused a lot of tabloid foaming at the mouth.

Lurid press reports in the week referred to the Claimant's alleged attempt to recover over £1 Million and included photographs of her wearing vaguely revealing clothing (whilst off duty and therefore hardly a hanging offence.)

The tabloids portrayed the case as being an example of "political correctness gone mad" - a single mother being awarded compensation for being disciplined because the Army expected her to be available around the clock. However this is not a case where the Tribunal treated war as if it was a 9 to 5 job. As always things were considerably less straightforward than that. The Claimant was a single mother who came to the UK from St Vincent to serve in the Army. When her daughter joined her she asked if her sister could come into the country to help with child care. The Army refused to allow this.

The Tribunal found that this was unlawful race discrimination as it disproportionately affected overseas Soldiers and could not be justified. In effect the Tribunal concluded the Army could have done a lot more to help her.

The reason why the final Award was not the career-long financial loss the Claimant was after appears to have been that she was found to have not tried hard enough to get another job since leaving the Army.

There is a report of the case at http://news.bbc.co.uk/1/hi/uk/8625446.stm

Tuesday, March 16, 2010

Local Authority Golden Handshakes Under Fire

The Audit Commission has strongly criticised large pay-offs made to departing highly-paid executives by local authorities.

The report ("By Mutual Agreement") says that good quality people have been permitted to leave with substantial termination payments when they should have been retained. Conversely under-performing employees have been paid significant termination payments when they should have been sacked.

Given that the maximum Compensatory Award at an Employment Tribunal for Unfair Dismissal is £65,300.00 in the absence of any basis for alleging discrimination there should not be any reason for payments well into six figures unless the executive was employed on terms which provided for a very lengthy period of notice.

The Court of Appeal is currently dealing with an appeal by a former Chief Executive of an NHS Trust against a High Court decision that the six-figure termination payment she was due to receive was so far beyond her legal entitlement as to be ultra vires.

With public finances likely to be tight for the foreseeable future expect to see further scrutiny of this issue in the Courts.

There is a link to the Report at http://www.audit-commission.gov.uk/nationalstudies/localgov/mutualagreement/Pages/default.aspx



Thursday, March 11, 2010

Ignorance is not Bliss for Small Employers

Research for the Department of Business, Innovation and Skills has revealed that only 32% of small businesses interviewed felt "confident" in their understanding of employment law.

Astonishingly 34% felt that employment law obligations were "not relevant" to their business and 25% said that they did not keep up to speed with legislative changes.

28% said that they were "vaguely aware" of their legal obligations.

Employment law is a complex and constantly changing area of law where the costs of getting things wrong (because you are only "vaguely aware" of legislation where fine details can make a big difference) can be huge. The law changes at least twice a year (on 1st April and 1st October) and failing to keep on top of changes in the rules about discipline and grievance, discrimination and family friendly rights can be catastrophic.

The best advice - keep up to date with developments, have your Policies and Procedures "health checked" by an employment law expert at least once a year and seek specialist assistance where you are not sure.

There is a link to the BIS news release at http://nds.coi.gov.uk/content/detail.aspx?NewsAreaId=2&ReleaseID=411448&SubjectId=2

Mobile Big Brother Is Watching You

Researchers in Japan have designed a mobile phone which would allow employers to monitor employees every move. The device designed by KDDI Corporation can differentiate between different types of movement.

It would allow an employer to tell whether an employee has been sat at their desk working or walking around talking to colleagues and can even tell whether a cleaner has been scrubbing away at a work surface or standing around reading a magazine.

With advances in technology the issue of monitoring in the workplace has become an increasingly "hot topic." Keeping tabs on, for example, emails and internet use at work can raise issues of privacy and Data Protection.

As a matter of English law monitoring in the workplace which is done openly (for example through having an IT policy which makes clear that computers are provided for work purposes only and anything produced on them is the property of the employer and can be viewed by an overseer accordingly) is likely to be lawful. Anything which is done covertly is more problematic although if it is necessary to prevent serious consequences such as the commission of a crime even this can be allowed.

On the other side, Tribunals have tended to be receptive to evidence which has been covertly recorded by employees if it is relevant (although their disapproval of the method of evidence gathering may be expressed through an Order for costs against the employee) but they have in reported cases drawn the line at attempts to introduce into evidence covert recordings of secret deliberations at discipline and grievance hearings.

Friday, March 05, 2010

Guilty Until Proven Innocent

The Employment Appeal Tribunal has upheld an Employment Tribunal's decision that a public authority could fairly dismiss an employee against whom unproven allegations of child abuse had been made.

The Claimant had been the subject of allegations in Cambodia which had to all intents and purposes resulted in his acquittal. Police in the UK visited his employer and in effect alleged that there were strong grounds for believing in his guilt. Despite his strenuous denials he was dismissed.

The Tribunal and the EAT were impressed with the fact that the employer did not simply uncritically accept the Police allegations and felt that they had acted as a reasonable employer.

The case is a useful reminder that the legal test of a fair misconduct dismissal is genuine belief by the employer in the employee's guilt, based on reasonable grounds after a fair investigation. The actual guilt or innocence of the employee is not the issue.

Interestingly the case also suggests that the employer was entitled to dismiss the Claimant in view of his lack of candour about the fact the allegations had been made in the first place - an illustration of the width of the "range of reasonable responses" open to an employer and the latitude the Tribunals will give them.

As an aside the case also raised some novel issues about the EAT's powers to restrict reporting which might lead to the identification of those involved. The EAT decided that it had the power to impose such restrictions to guarantee the Claimant's right to respect for his family life under Article 8 of the European Convention on Human Rights.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/09_0206rjfhSMmainjudgmentWEBVERSIONOMITTINGCLOSEDSECTION.doc

Friday, February 26, 2010

Maternity Pay Extension backed by MEPs

A committee of the European Parliament has approved draft legislation which if implemented would require employers to pay women on maternity leave full pay for 20 weeks.

The current legislation in England and Wales provides for payment of 90% of normal pay for the first 6 weeks and then Statutory Maternity Pay (which will generally be at a lower sum) for a maximum of a further 33 weeks.

The European Parliament will consider the proposal in early March although doubts have been expressed as to whether it will ever be implemented given the potential for a further financial burden on employers and/or Governments at a time when economic confidence is still very fragile.

The UK Government, the Institute of Directors and the British Chambers of Commerce have already expressed concern about the additional costs which would be involved, especially when UK legislation in this area is already generous by comparison with a lot of other EU countries.

Watch this space!

Tuesday, February 16, 2010

Asda Doesn't Pay the Price!

The Employment Appeal Tribunal has recently upheld an Employment Tribunal decision rejecting 6 test cases by Asda employees complaining of unlawful deduction from wages.

Asda wanted to introduce a unified pay structure and invoked a clause in the Staff Handbook giving them the right to revise its contents. Over 9,000 employees accepted this but some claimed that it was an unlawful unilateral variation of their contracts.

The EAT held that the clause was entirely clear and that it did give Asda the right to unilaterally change even a fundamental term such as one relating to pay.

Asda benefitted from the fact that the Staff Handbook made clear that certain clauses in it were of contractual effect.

The status of terms in Staff Handbooks can be problematic. It is important, particularly if it contains information relating to central issues like pay, hours and holiday entitlement, that it is made clear whether the document is intended to be contractual or simply a note of current procedures and policy. There is a lot to be said for keeping contract terms and Staff Handbooks distinct from each other.

There is a report of the case at:-http://www.employmentappeals.gov.uk/Public/Upload/09_0221rjfhLBZT.doc

Wednesday, February 10, 2010

Serial Litigants - The Worm Turns

The Employment Appeal Tribunal has recently held that an Employment Tribunal was justified in dismissing the Age Discrimination Claim of an applicant who it found had no genuine intention of taking the job if she was offered it.

It appears from the report that the Claimant alleged she was making a point about age discrimination in the job market but from the number of Claims she had pursued and the number of settlements that she had achieved it also seemed to be quite financially lucrative.

The Employment Appeal Tribunal found that the Claimant's Counsel had quite correctly conceded that she could not show the "detriment" required for a discrimination claim if she did not in fact have any real wish to get the job.

There are a small number of serial litigants out there who try and make a living from this sort of Claim. To avoid giving them any opportunity to attack you, ensure that nothing in your job advertisements can be construed as discriminatory and be prepared to demonstrate a documented thought process as to why a particular applicant was rejected or not shortlisted for interview.

There is a report of this case at:-

http://www.employmentappeals.gov.uk/Public/Upload/09_0389phaowwLBSM.doc

Tuesday, February 09, 2010

7 Hours on Maternity Leave

A Headmistress in Wiltshire has made headlines in the national media by returning to work a mere 7 hours after giving birth to her third child.

Dr Helen Wright, 39, wanted to send a message to the pupils at the all-girl school that having a successful work/life balance is not an impossible dream.

Strictly speaking as a matter of law, 2 weeks' maternity leave is compulsory (4 weeks for employees in factories) but when you are the boss (or a "high-flyer") then you can of course make your own rules.

Dr Wright was keen to stress the School's commitment to flexible working, such as allowing teachers to return part-time and fit their teaching duties around their home life - possibly a more orthodox approach to the issue than returning to your desk straight from the Maternity Ward!