It may be reassuring to know that in this period of cold weather and economic gloom at least the Department for Work and Pensions is keeping a eye on its energy consumption.
I recently came across the case of Sawyer v. The Secretary of State for the Department for Work and Pensions, a decision from of the EAT from last August, but not one to make it into the pages of the IRLRs. Mr Sawyer's claim for disability discrimination was dismissed in the tribunal on the grounds that he was not disabled. His claimed disability was, in a nutshell, that he could not tolerate temperature's below 27 degrees. Problematic, one might think in view of the typical British climate. He claimed that the Respondent had, for a time, provided him with a portable heater, but then this was taken away from him.
Mr Sawyer said that when the temperature dropped he experienced reoccurrent colds and chest infections, which, in the EAT's view "by definition, come and go". While those of us who have had to suffer endless colds over the winter might well have ssympathy with the EAT's view (and little sympathy with Mr Sawyer perhaps), might there actually be something in this claim?
HIs Honour Judge McMullen QC commented, "that he develops a cold or a chest infection when the room temperature drops seems to me not to be an impairment or at least not an impairment within the meaning of the statute". Is that necessarily correct in ever case? Will it not vary with the severity or frequency of the infections?
Whatever the answer, for now we had better all put another layer on because they'll be no more coal on the fire Mr Cratchit.
Friday, 30 January 2009
Wednesday, 28 January 2009
The right notes but not in the right order.........
The Team hope to have their notes for the last seminar up on the 12 College Place website in the next week or two (see link below). We are hoping that the whole pack will be saved as one pdf but you may find that each set of notes is saved as a separate pdf. Sorry for any inconvenience this might cause. As Eric Morecambe might have said, all the right notes but necessarily in the right order!
http://www.12collegeplace.co.uk/seminars/
Peter D
http://www.12collegeplace.co.uk/seminars/
Peter D
Tuesday, 27 January 2009
Is this your case madam?
Local practitioners may have noticed that our tribunal in Southampton has for some time now been pinning down Claimants and Respondents as to exactly what their case is at PHRs. This serves a very useful function as it concentrates the parties minds on exactly what is required in the way of discovery and witness evidence. It also helps parties to evaluate their respective positions which inevitably leads to more settlement and less cost for both sides.
My own experience is that if you don’t raise it at the PHR then you will face an uphill struggle raising it at the final hearing.
Well you knew that Croydon was going to be mentioned again. I am in the middle of a case at the moment the details of which I will not bore you with. Anyway on the first day of the hearing the Judge asked the Claimant to identify what actions/inactions she alleged amounted to a breach of her contract. Her Claim Form read like a witness statement covering numerous possible breaches over a 3 year period. This lead to her Counsel producing a two page document headed particulars. The particulars failed to mention one of the last straws, a matter incidentally that featured in her resignation letter.
So we heard the Claimant’s evidence and went off for our Christmas holidays. On the morning of the resumed hearing Counsel for the Claimant indicated that a mistake had been made and this matter should have been included in the particulars. I of course said that it was a bit late in the day etc.
The Judge hearing the matter gave a preliminary view that she would allow the matter to be added to the particulars and indicated that the addition would go to creditability. In short having asked the Claimant what her case was on day one she was intending to allow the Claimant to add to it after her evidence had been completed.
The problem is that the Judge was probably right as the particulars were not the pleaded case and the original last straw was included along with the kitchen sink in the original Claim Form. So this was not an amendment it was a clarification of her case or perhaps a withdrawal of a concession that her case was as per the particulars. I am presently working on an estoppel/abuse of process argument, although I do not hold out much hope.
In future I will ensure that whenever someone says that is my case I get a clear undertaking that all other matters are withdrawn or are simply background. The Tribunal in Southampton do this whilst Croydon don’t. So when in Croydon ensure that when your opponent clarifies the case you make a good note and ask the Judge to make the necessary ruling.
As a post script I thought you would like to know that Croydon are still allocating inadequate time for cases to be heard. In another case that I heard about recently both sides had told the Tribunal that 3 days was too little to hear a case with 14 witnesses. Guess what the case was listed for 3 days anyway and went part heard for another 5 days.
Happy days........
Peter D
My own experience is that if you don’t raise it at the PHR then you will face an uphill struggle raising it at the final hearing.
Well you knew that Croydon was going to be mentioned again. I am in the middle of a case at the moment the details of which I will not bore you with. Anyway on the first day of the hearing the Judge asked the Claimant to identify what actions/inactions she alleged amounted to a breach of her contract. Her Claim Form read like a witness statement covering numerous possible breaches over a 3 year period. This lead to her Counsel producing a two page document headed particulars. The particulars failed to mention one of the last straws, a matter incidentally that featured in her resignation letter.
So we heard the Claimant’s evidence and went off for our Christmas holidays. On the morning of the resumed hearing Counsel for the Claimant indicated that a mistake had been made and this matter should have been included in the particulars. I of course said that it was a bit late in the day etc.
The Judge hearing the matter gave a preliminary view that she would allow the matter to be added to the particulars and indicated that the addition would go to creditability. In short having asked the Claimant what her case was on day one she was intending to allow the Claimant to add to it after her evidence had been completed.
The problem is that the Judge was probably right as the particulars were not the pleaded case and the original last straw was included along with the kitchen sink in the original Claim Form. So this was not an amendment it was a clarification of her case or perhaps a withdrawal of a concession that her case was as per the particulars. I am presently working on an estoppel/abuse of process argument, although I do not hold out much hope.
In future I will ensure that whenever someone says that is my case I get a clear undertaking that all other matters are withdrawn or are simply background. The Tribunal in Southampton do this whilst Croydon don’t. So when in Croydon ensure that when your opponent clarifies the case you make a good note and ask the Judge to make the necessary ruling.
As a post script I thought you would like to know that Croydon are still allocating inadequate time for cases to be heard. In another case that I heard about recently both sides had told the Tribunal that 3 days was too little to hear a case with 14 witnesses. Guess what the case was listed for 3 days anyway and went part heard for another 5 days.
Happy days........
Peter D
Tuesday, 20 January 2009
Schrödinger's cat and the ECJ
This concept has always caused my head to hurt. It involves an experiment where only by observation can one know the outcome. In quantum theory it is apparently called a superposition. A superposition is where something can be both things at once. In the case of the cat it is in a position of being both alive and dead at the same time!
If you want to know more go to http://www.mtnmath.com/faq/meas-qm-3.html.
What the ECJ have decided in relation to holidays and sick pay is that there is no superposition (see Mrs C. Stringer & Others v Her Majesty’s Revenue and Customs C -520/06). You cannot be both sick and on holiday. This means that during any period of sick leave your entitlement to holiday continues to accrue. On your return you can either take the holiday or if your employment is terminated then you are paid money in lieu.
May be not an entirely unexpected outcome bearing in mind the problems of being in two states of existence at once but certainly troubling for employers. What this would appear to mean is that someone who is unable to work may go away for a break (a frequent occurrence with someone who is recuperating after an operation) but this will not count towards their holiday.
This also raises issues as to the affordability for small firms who having had to cover for long term sickness find themselves having to pay notice pay and all untaken holiday in the form of pay to a departing employee.
Entitlement to holiday pay is meant to be about breaks and rest. So employers will I think find it somewhat surprising that people on the sick can get money in lieu of holidays even though they never return from sick leave!
Peter D
What the ECJ have decided in relation to holidays and sick pay is that there is no superposition (see Mrs C. Stringer & Others v Her Majesty’s Revenue and Customs C -520/06). You cannot be both sick and on holiday. This means that during any period of sick leave your entitlement to holiday continues to accrue. On your return you can either take the holiday or if your employment is terminated then you are paid money in lieu.
May be not an entirely unexpected outcome bearing in mind the problems of being in two states of existence at once but certainly troubling for employers. What this would appear to mean is that someone who is unable to work may go away for a break (a frequent occurrence with someone who is recuperating after an operation) but this will not count towards their holiday.
This also raises issues as to the affordability for small firms who having had to cover for long term sickness find themselves having to pay notice pay and all untaken holiday in the form of pay to a departing employee.
Entitlement to holiday pay is meant to be about breaks and rest. So employers will I think find it somewhat surprising that people on the sick can get money in lieu of holidays even though they never return from sick leave!
Peter D
Friday, 16 January 2009
That's all folks........
Thank you for turning out for our second go at the Employment Updater 2008 seminar on Thursday. The turn-out was smaller but it made for a more comfortable 3 hours. It is clear that our maximum capacity for a comfortable afternoon is around 25 people.
Having spoken to a number of solicitors recently about what we should deal with next it is clear that a guide to redundancy pitfalls would be welcome in these difficult times. We have decided to combine this with a talk on the regime replacing the Disciplinary and Grievance Regulations. We have pencilled the seminar in for Friday 13th March 2009 at 2.00 pm. Please check our website for details closer to the time. The seminar will last for about 2 hrs and will of course be cpd accredited.
Peter D
Having spoken to a number of solicitors recently about what we should deal with next it is clear that a guide to redundancy pitfalls would be welcome in these difficult times. We have decided to combine this with a talk on the regime replacing the Disciplinary and Grievance Regulations. We have pencilled the seminar in for Friday 13th March 2009 at 2.00 pm. Please check our website for details closer to the time. The seminar will last for about 2 hrs and will of course be cpd accredited.
Peter D
Thursday, 15 January 2009
That will probably never happen...............
Every so often you come across a statement of the law and you think that might work in Lincoln’s Inn but not on a wet Thursday afternoon in Croydon!
As I was reading my IRLRs this month I came across the case of SCA Packaging Limited v Boyle [2008] NICA 48 (link below). This case dealt with the question of whether a disability was likely to have a substantial effect. On the question of what did ‘likely’ mean in this context the Court of Appeal came up with this gem:
“The meaning of likelihood under the DDA
[18] What is meant by the words "likely to have a substantial adverse effect" is not entirely clear. The word "likely" may mean probable but the dictionary definition includes "such as might well happen". The meaning to be given to the word when it is used in a statute will depend upon the statutory context. Thus, for example, in Three Rivers District Council v Bank of England (No 4) [2002] 4 All ER 881 in the context of an application under CPR 31.17.(3)(c) relating to disclosure of documents against a non-party on the grounds that the documents were likely to support the case of the applicant or adversely affect the case of one of the other parties, the Court of Appeal held that the word "likely" under the relevant rules meant "may well" rather than "more probable than not". Having regard to the intention of the Civil Procedure Rules a high test requiring proof on a balance of probabilities would be both undesirable and unnecessary. The word 'likely' connoted a rather higher threshold than 'more than fanciful' but a prospect could be more than merely fanciful without reaching the threshold of more probable than not. In Transport Ministry v Simmons [1973] 1 NZLR 359 at 363 McMullin J said:
"An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen. But it must be more than a mere possibility."
[19] The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word "likely" is used in the sense of "could well happen".”
The observations of Michael Rubenstein in the IRLRs as to the origins of this particular meaning of likely were helpful. Nevertheless it left me feeling uncertain as to what this means for the Claimant or the Respondent in the Employment Tribunal. It is relatively easy for a Tribunal to grasp the happening of an event being more likely than not. This is a familiar concept to a Tribunal but what level of proof is required to demonstrate that something ‘could well happen’? In percentage terms is it 30 or 40 or perhaps 45.5?
The matter is made more uncertain as the guidance on the meaning of ‘likely’ in the 2006 DDA Guidance clearly sets out that ‘likely’, in the context of long term, means more probable than not (see DDA Guidance C2).
So the Court of Appeal decision not only conflicts with the Guidance but also sets an uncertain test, which brings me back to the rainy Thursday afternoon in Croydon. You are for the Claimant and you are trying to explain to a Tribunal that although they thought they knew what ‘likely’ means in fact it means something different in the context of this particular matter because………………
Good luck!
Peter D
http://www.bailii.org/nie/cases/NICA/2008/48.html
As I was reading my IRLRs this month I came across the case of SCA Packaging Limited v Boyle [2008] NICA 48 (link below). This case dealt with the question of whether a disability was likely to have a substantial effect. On the question of what did ‘likely’ mean in this context the Court of Appeal came up with this gem:
“The meaning of likelihood under the DDA
[18] What is meant by the words "likely to have a substantial adverse effect" is not entirely clear. The word "likely" may mean probable but the dictionary definition includes "such as might well happen". The meaning to be given to the word when it is used in a statute will depend upon the statutory context. Thus, for example, in Three Rivers District Council v Bank of England (No 4) [2002] 4 All ER 881 in the context of an application under CPR 31.17.(3)(c) relating to disclosure of documents against a non-party on the grounds that the documents were likely to support the case of the applicant or adversely affect the case of one of the other parties, the Court of Appeal held that the word "likely" under the relevant rules meant "may well" rather than "more probable than not". Having regard to the intention of the Civil Procedure Rules a high test requiring proof on a balance of probabilities would be both undesirable and unnecessary. The word 'likely' connoted a rather higher threshold than 'more than fanciful' but a prospect could be more than merely fanciful without reaching the threshold of more probable than not. In Transport Ministry v Simmons [1973] 1 NZLR 359 at 363 McMullin J said:
"An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen. But it must be more than a mere possibility."
[19] The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word "likely" is used in the sense of "could well happen".”
The observations of Michael Rubenstein in the IRLRs as to the origins of this particular meaning of likely were helpful. Nevertheless it left me feeling uncertain as to what this means for the Claimant or the Respondent in the Employment Tribunal. It is relatively easy for a Tribunal to grasp the happening of an event being more likely than not. This is a familiar concept to a Tribunal but what level of proof is required to demonstrate that something ‘could well happen’? In percentage terms is it 30 or 40 or perhaps 45.5?
The matter is made more uncertain as the guidance on the meaning of ‘likely’ in the 2006 DDA Guidance clearly sets out that ‘likely’, in the context of long term, means more probable than not (see DDA Guidance C2).
So the Court of Appeal decision not only conflicts with the Guidance but also sets an uncertain test, which brings me back to the rainy Thursday afternoon in Croydon. You are for the Claimant and you are trying to explain to a Tribunal that although they thought they knew what ‘likely’ means in fact it means something different in the context of this particular matter because………………
Good luck!
Peter D
http://www.bailii.org/nie/cases/NICA/2008/48.html
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