12CP EMPLOYMENT TEAM

Second time unlucky!

2011-08-05T01:33:00.000-07:00

A few years ago now (I had tried to blank the events from my memory) I appeared in the Employment Appeal Tribunal in a protected disclosure case (PAS Limited v Burrows UKEAT/0489/06 – link below). My opponent and I had agreed at the Tribunal hearing that the correct test for drawing an inference was Igen v Wong as this area of law was akin to victimisation in discrimination cases. Imagine our surprise when we turn up at the EAT only to be told a few days earlier HHJ Peter Clarke had heard a similar appeal and ruled that this was not the correct approach. Not surprisingly the appeal was remitted for the matter to be reconsidered applying the correct test. It was I think one of the quickest appeals in Employment Appeal Tribunal history!

Kuzel v Roche Products Limited [2008] EWCA Civ 380 (link below) went on to the Court of Appeal and established that the test was different for protected disclosures. The key of course being that a Tribunal may draw a conclusion when a Respondent’s explanation has been rejected rather than must. This in most cases makes no difference to the outcome but in some limited cases it has proved crucial.

Imagine my surprise (yes again!) as I prepare another appeal to the Employment Appeal Tribunal some years later to find that the Employment Appeal Tribunal have now caught up with what now appears to have been the enlightened thoughts of two Counsel clearly looking beyond the envelope (my exaggeration).

In Fecitt & Others v NHS Manchester [2011] IRLR 111 (link below) the Employment Appeal Tribunal decided that: What amounts to causation in cases of victimisation in discrimination claims is the same as that applicable to victimisation for whistle-blowing and to other forms of discrimination.

This unfortunate turn of events whilst satisfying for me is I am afraid unlikely to help the appeal as the Tribunal decision predates the decision in Fecitt! Perhaps I may be about to set a new Employment Appeal Tribunal hearing record again!

PAS: http://www.bailii.org/uk/cases/UKEAT/2007/0489_06_0603.html

Kuzel: http://www.bailii.org/ew/cases/EWCA/Civ/2008/380.html

Fecitt: http://www.bailii.org/uk/cases/UKEAT/2010/0150_10_2311.html

Situation Vacant

2011-08-03T03:10:00.000-07:00

In these turbulent times at the Bar our team has found itself requiring a new recruit at the junior end as Alice Missions is moving away from the area. At a time when the Junior Bar is under pressure and work is difficult to come by this is a unique opportunity for someone starting out at the Bar who wants to end up as a specialist employment practitioner. If you are interested please contact Mark our senior clerk for more information.

Seminars

2011-08-03T03:05:00.000-07:00

Last month we had an afternoon seminar on the upcoming Agency Worker Regulations (link to notes below). The session was well attended and we will be taking the seminar in house to local authority clients over the next few months. We are also putting together a Tribunal training package for decision makers. A problem that has been identified for schools and other organisations is the lack of practical training for volunteer governors who do not have HR experience. The Training will address this as well as giving them an insight into the impact the way the decision was reached has when a case goes to a Tribunal.

http://www.12cp.co.uk/seminars/resource-centre/

Mediation

2011-08-03T02:53:00.000-07:00

I thought it might be worth giving you my own personal take on mediation as I have been involved in two mediations in the last couple of months. One was paid for by the parties and the other was through the Tribunal service.

I found that the mediator was assisted by a comprehensive position statement in the private mediation. When you have a number of issues in play it is essential that you have a position on each at the start. This does not mean that you will not change your position but it does mean that you have actually gone through the issue with the client and established their starting position. I found the lack of a position statement in the judicial mediation meant that much time was spent at the outset finding out the parties respective positions.

One of the real advantages in the mediation setting is the ability to tell it how it is without the niceties and the restrictions associated with ‘open’ discussions. You can also share things with the mediator which you do not want shared with the other party. This can work to your advantage when the mediator knows your limits and can help move the other party within those limits.

The major disadvantage is the mid-afternoon moment. In both recent mediations there came a point in the mid-afternoon that the parties started to move their respective positions. Some observers of mediation call this the ‘mediation moment’. My own view is that this is what happens when people are being pressurised to make concessions over a lengthy period of time. They start to move not because they really want to but because the situation has continued for a period of time and they feel they need to do something. This is the most dangerous time for your client and it is essential that they understand that their movement may not be based on sound thinking.

Two tactics I have learned in the last two mediations is the reasonable last minute offer and the telling the mediator your top limit to settle but not actually making that offer to the other party.

The last minute offer if pitched at the right level is an effective way of causing the resolve of the other party to collapse. Faced with lengthy and expensive litigation and being tired at the end of the day puts very real pressure on the party to accept the offer. Beware the late offer!

Telling the mediator your bottom line without reaching it can be a two edged sword as it means that the mediator will put you under pressure to settle on that figure however conversely consciously or sub-consciously the mediator will try and move the other party towards your bottom line. So if you keep your nerve then the tactic is successful. It certainly worked for me.

My last observation is that judicial mediation is in its infancy and certainly requires some work but I have high hopes that this can be rolled out to cover any multi-day case within its jurisdiction as it is certainly cheaper than a full blown tribunal hearing.

Listing not floating?

2011-03-16T07:31:00.000-07:00

Having recently returned from a holiday in Mexico it is only now that I have found the time to blog again. I have put the links to my holiday videos at the bottom. They are mostly of mummy Grey Whales with their calves plus some Sea Lions (if you are interested – please excuse the commentary).

I attended the recent users meeting in Southampton and the news in relation to administration especially listing does not look good. The phone still appears to be going unanswered and the use of floating is set to increase. It is not surprising that the use of mediation is on the rise as the lack of resources is effectively leading to the privatisation of the Tribunal system by the backdoor.

My subject today is listing related and is an increasingly common problem. This happened in Croydon but my experience is that this happens in the Southern Region as well. My four day case that was due to start yesterday has been postponed (remember when this never happened to multiday cases). The circumstances were that the listing office contacted my 'oppo' on the morning before to inform him that they could only guarantee three days hearing time.

The date was set last July and the likelihood of getting another slot before the end of the summer is very small. A delay of perhaps another 6 months is on the cards due to the Tribunals inability to manage the four day slot. This means a further wait for justice/resolution.

In a case I had in Reading just after Christmas the parties were informed that although we had a 9 day slot in December 2011, this fixture could not be guaranteed and there was a chance that it might be moved. It beggars belief that the parties have to wait this long and risk not getting on. I could go on about the 6 day case I had in Southampton in September of last year which was finally heard last week.

The point is the situation is getting worse and no matter what representations the users make the need for the Tribunals to meet their targets appears to take precedence over justice for individuals. This is the problem of having a macro approach to the issues. It makes little difference to the party whose case is delayed a further 6 months whether or not the Tribunal met its target for that quarter; he or she just wanted to get their case heard within a reasonable time!

Peter D

http://www.youtube.com/watch?v=WvGx9LSnB9o&feature=BF&list=ULZpCtt8gYpPQ&index=4

Oh Matron............

2011-02-03T06:12:00.001-08:00

Before I take a break away from the blog for a month I thought I would leave you with this recent decision of the Court of Appeal in Bowater v North West London Hospitals NHS Trust.

The nurse in this case whilst trying to restrain a naked patient found she had to climb onto the trolley to assist. This meant that she ended up straddling the naked patient’s genitals. She then came out with the line, “It's been a few months since I have been in this position with a man underneath me."

There are certainly some people who might regard this behaviour as unacceptable (the NHS Trust being such a person) but for me this touch of comic genius (it is all in the timing!) did not deserve a gross misconduct dismissal.

Fortunately for Ms Bowater the Trust's lack of humour has been overturned on appeal by the Court of Appeal (see link below).

http://www.bailii.org/ew/cases/EWCA/Civ/2011/63.htm

On the facts it is absolutely clear that this was the correct decision. Whilst not wanting to turn the clock back to ‘Carry On’ humour, it would be a very sad for this country if a nurse could not come out with such a comment for fear of being dismissed. After all the patient was not listening, she was only laughing at herself and at the end of a 12 hour shift it is generally very difficult to raise a smile!

"Dr please, I want to be wooed" (Hattie Jacques)

"You can be as wude as you like matron." (Kenneth Williams)

Peter D

Justified and Ancient

2011-02-02T07:47:00.000-08:00

The case of Ole Andersen v Region Syddanmark. ECJ, 12.10.10 (C-499/08) was reported shortly before Christmas. This case is of interest as it is an ECJ decision that applies the principles of justification under EU law.

Under Danish Law an employee qualifies for a one off severance payment if they have 12 years+ continuous service with one employer. The payment is to help support the older worker who is looking for work. The rules excluded an employee who had been a member of the employer’s pension scheme since at least the age of 50 if, upon dismissal, he or she became entitled to receive a pension under that scheme.

The exclusion was clearly to prevent a ‘windfall’ in the form of a severance payment when the payment was not needed as the employee was going to be claiming a pension rather than looking for work! What the rules did not allow for was someone who although entitled to claim a pension wanted to continue to work.

ECJ found that the aim was legitimate but went beyond what was ‘appropriate and necessary’ as there was no need to have a blanket rule covering all persons age 50 + who would become entitled to their pension. The rule could have been restricted to those who actually claimed their pension rather than those who went back into the labour market seeking to work longer rather than claim their pension.

I like this decision as it is an clear case to start from when trying to work out how whether or not what the employer has done is justified.

Peter D

Toupee

2011-01-31T13:32:00.000-08:00

From now on my preferred pronunciation of TUPE will be 'toupee' as this appears to be the accepted way that non-lawyers wish to pronounce it. Perhaps this is simply my way of trying to inject some humour into what is otherwise a very dry and complex area of employment law.

I recently had cause to delve into the regulations and was struck yet again how lacking in justice the rules can sometimes turn out to be. At the end of the hearing the Judge was apologetic as to the outcome which saw a Claimant lose because he had objected prior to the transfer and found himself unable to show that the proposed changes amounted to a substantial enough change and also did not fundamentally breach his contract of employment.

The operation of Reg 4 and in particular 4(7) - (9) creates real risk for an employee who thinks his job might change. If he does want to object he must be sure what the changes are, so that when he does leave he is not left without a remedy by virtue of Reg 4(8).

What can we learn from this? If you are advising a client pre-transfer you need to be certain that any changes are substantial. The best advice, if you are not sure, is to recommend they hang on until after the transfer and see how things work out. This would have been good advice for the Claimant who received an apology from the Judge but no compensation.

Peter D

Baby Boomers Have It All?

2011-01-13T03:11:00.000-08:00

Need I say any more? The government have decided to plough on with removing the default retirement age.

http://www.bis.gov.uk/assets/biscore/employment-matters/docs/p/11-536-phasing-out-default-retirement-age-government-response.pdf

From an employment lawyers point of view this looks to me to be more fertile territory for work in the coming 12 months. No upper limit will mean that older workers will be managed out of the business. These workers tend to be higher earners, have more service and on average are more likely to have health issues (disability). From a government who said they wanted to simplify Employment Law (see link below) this move is surprising and not welcomed by business. For the older worker this is a life line as many people carry on working not because they want to but because they have no choice and need the money to make ends meet. My own view for what it is worth is that this is one way to help support an ageing population but I fear that this is being done at the expense of the next generation who will now have less opportunity to get on the jobs ladder.

http://www.personneltoday.com/articles/2010/11/01/56855/changing-unfair-dismissal-rights-would-be-regressive.html

Peter D

Beauty Before Age?

2011-01-12T07:56:00.000-08:00

Having left for work a bit later this morning I sat in the bath listening to Radio 5 Live's phone in. Today's topic was age discrimination at the BBC prompted by the case of Miriam O'Reilly who was sacked from her job as presenter of Country File. For the full story follow the link:

http://www.telegraph.co.uk/culture/tvandradio/bbc/8252309/Miriam-OReilly-set-to-return-to-BBC-after-winning-tribunal-case.html

What struck me was that amongst the normal banter including one man's view that Sue Barker is no longer sexy (when did that happen) someone came up with a very good comment: Aren't television presenters performers? Put another way is it a genuine occupational requirement that a presenter is 'easy on the eye' or is there more to it than that? Are we entering a new era where each time a presenter is replaced by a younger model the cry goes up discrimination? Some people might say that this is in fact a case of an ageing presenter having her cake and eating it. May be what we are in fact seeing is a sea change in how society views age in much the same way as British society began to embrace the problems of sex and race discrimination in the mid-70s?

I just have a feeling that this will be a very busy year in age discrimination.

Peter D

Bad Dog No Biscuit

2011-01-12T07:51:00.000-08:00

I find myself somewhat shamefully returning to the blog having neglected it for many months. So my New Year's resolution is try to blog at least twice a month!

Peter D

Summer Seminar

2010-04-23T02:01:00.001-07:00

The Team are delivering a Seminar on 11th June 2010. I will talking about the new Employment Agency rules that are being introduced next year. If you have a topic you want covered please contact Mark who is coordinating things in Chambers.

Peter D

Bye Bye Baby ........

2010-04-20T05:00:00.000-07:00

In these difficult financial times women who are taking periods of maternity leave are returning to find that their jobs have disappeared. I have come across this in two different contexts in the last few weeks with one lady finding that her sales territory had doubled whilst she was on additional maternity leave (AML) and the other who was simply made redundant after her AML ended.

It seems to me that a lot is made of the special position of women returning to work in the press but surely there is not a lot you can do as a woman returning to work when your job has disappeared? Or is there?

It is a relatively painless economy not to cover work during an employee’s maternity leave but what happens when the employee wants to come back to work. The employer will be faced with trying to take the employee back where there is in reality no job.

Extra caution has to be exercised as what looks like a cut and dried redundancy for the returnee is in fact an act of discrimination. There is a substantial risk that the reason for the employee not having a job is because that employee was on maternity leave. The employer has not bothered with following a redundancy selection procedure as the returnee self selected by not being on site. A Tribunal is going to look long and hard at where the work has gone and if other employees have taken on the work.

An added difficulty arises where a vacancy which might have been appropriate has been filled during the AML as the regulations make it clear that the returnee has priority over other employees.

If the previous job has disappeared then the returnee is entitled to be offered a suitable vacancy. Bear in mind that this offer must take into account that the returnee has a new baby and the offer should be as near as possible to the job that she left.

In short an employer’s use of maternity leave as an economy is in many cases short sighted and stores up problems for the business. If there is a redundancy situation whilst the employee is away on maternity leave then this should be addressed at the time and not left to be cleared up when the employee returns. The risks are obvious and more importantly it may prove impossible to undo the situation on the employee’s return!

I have set out below Reg 10 of Maternity and Parental Leave etc Regulations 1999. I have also inserted a link to the case Blundell v St Andrews Primary School in the Employment Appeal Tribunal in 2007 a case dealing with offers of alternative employment to a returnee from AML.

10 Redundancy during maternity leave

(1) This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

(3) The new contract of employment must be such that—

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

Blundell v St Andrews Primary School:

http://www.bailii.org/uk/cases/UKEAT/2007/0329_06_1005.html

Peter D

The Queen's Shilling

2010-03-23T07:53:00.000-07:00

The days of press gangs are passed but it seems to me that the rules governing service in the Armed Services are ripe for an update.

An officer is commissioned to serve the Crown pursuant to the Royal Prerogative. Officers of Her Majesty's forces do not have any contractual relationship with the Crown. This principle which was approved in Leaman v R [1920] 3 K.B. 663 is that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract.

The extent of the Royal Prerogative in modern days has been the subject of judicial analysis by the House of Lords in 1985 who expressed the view that the concept of an ‘irresistible and absolute’ prerogative was old fashion. In the light of the more recent changes to UK law as a result of the Human Rights Act (HRA) and the Equal Treatment Directive it has become clear that the prerogative is not absolute. The armed forces can be challenged where the individual can bring his or herself within the Human Rights Act or the Equal Treatment Directive.

The question of a contract between the officer and the Crown has recently been looked at in Newell v Ministry of Defence [2002] EWHC 1006 where Elias J restated the applicable law concluding that there is no contract between the officer and the Crown.

The issue of an unfair dismissal claim was considered by the Court of Appeal in Melbourne v Ministry of Defence [2002] EWCA Civ 754. The Court approved the reasoning of the Employment Appeal Tribunal in Melbourne v Ministry of Defence [2002] EAT/522/00.

The Employment Appeal Tribunal reviewed the state of the law and concluded that a member of the armed forces could not bring a claim for unfair dismissal (see para 2 – 4). The Employment Rights Act 1996 (ERA) does make provision at S 192 ERA for this but the section has not yet been made into law. The present position remains that members of the armed services cannot bring claims under the ERA.

The Court of Appeal looked at the application of the HRA. The conclusion was the same. Article 6 of the HRA was not breached. There is a detailed analysis of the point in para 17 – 20. In should be noted that one attack was on the non-implementation of S 192 ERA but this failed (see para 20).

A serving officer is allowed to seek redress and does so utilising the Redress of Individual Grievances: Service Complaints. Note this procedure must be completed prior to any action being launched for race or sex discrimination in the Employment Tribunal.

There is no external appeal in respect other ‘employment type’ claims other than Judicial Review. This route is available as Taylor LJ pointed out in R v Army Board of the Defence Council [1991] ICR 537 at 550 that as the complaints procedure is the only means of addressing fundamental statutory rights for members of the armed forces the complaints procedure needs to be operated with a high degree of fairness.

In short once you have accepted the Queen's Shilling you are at her command with no right to claim a breach of contract, non-payment of wages, unfair dismissal or many other forms of redress which arise out of the regular employment relationship.

Peter D

Kangaroo Court!

2010-03-17T03:39:00.000-07:00

I have been asked by one of my Direct Public Access clients whether she could ask for her case to be heard by another Judge as she was convinced the Judge was biased and prejudiced against her.

This was something that I had not looked at for awhile. My last foray into bias involved allegations of Masonic conspiracies in a local authority who were in cahoots with the local judiciary. You can imagine how far that took me in front the Employment Appeal Tribunal! The approach here was slightly different as this was not an appeal but was simply a request for someone else to hear the case.

The most recent case of recusal (withdrawal) in the Tribunal was Ansar v Lloyds TSB Bank plc [2006] EWCA Civ 1462 which involved a former member of my Chambers who now sits full time in the Employment Tribunal. The complaint made by Mr Ansar was that the Judge was biased. There was a litany of complaints involving decisions in favour of the Respondent and against the Claimant in relation to a hearing that lasted 5 weeks. The Claimant had then launched another set of proceedings which came in front of the same Judge for a PHR. The Claimant having appealed on the grounds of bias attempted to have the Judge recused.

The following quote was cited with approval by the Court of Appeal at paragraph 17:

“It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course, because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant - whether it be a represented litigant or a litigant in person - criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases, simply by criticising all the judges they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised - whether that criticism was justified or not.” (Chadwick LJ in Dobbs v Theodos Bank NB [2005] EWCA Civ 468)

This tells us that recusal cannot be triggered simply because a complaint has been made there has to be more. The Court of Appeal considered that for any application for recusal to be successful the Judge or the Regional Judge will have to be persuaded that his or her continued involvement in the case would lead a fair-minded and informed observer, having considered the facts, to conclude that there was a real possibility that the Judge was biased.

So the Judge should be considering the nature of the complaint, whether this might lead the bystander to presume that his ability to make a fair decision would be effected by the complaint and of course whether the complaint was in fact true.

All in all then the test is the familiar bias test found in Porter v. Magill [2002] 2 AC 359, paragraph 103, per Lord Hope of Craighead. What is different is that it is the Judge who is initially applying the bias test to himself rather than a third party. The reality is that most applications will eventually find their way to a third party, the Regional Judge, who then makes a decision applying the principles set out above.

In short it is never going to be easy to persuade a Judge to recuse himself from having any continued involvement in your case!

Dobbs v Theodos Bank NB [2005] EWCA Civ 468:

http://www.bailii.org/ew/cases/EWCA/Civ/2006/1462.html

Ansar v Lloyds TSB Bank plc [2006] EWCA Civ 1462:

http://www.bailii.org/ew/cases/EWCA/Civ/2005/468.html

Porter v. Magill [2002] 2 AC 359:

http://www.bailii.org/uk/cases/UKHL/2001/67.html

Peter D

Where do you live?

2010-01-19T02:39:00.000-08:00

Well we are nearly three weeks into the New Year so I thought it was about time that I got back to the blog.

I was up in the EAT last week doing a rule 3(10) hearing. The main issue was what was meant by the phrase ‘ordinarily resident’ under the Age and Disability Discrimination laws (see S 68(2A)(c) DDA 1995 & R 10(2)(c) EEAR 2006). This raised one of those rather interesting arguments as to the meaning of words.

There are no authorities directly on the meaning of these particular words in the context of discrimination. As you might expect the phrase is not a new one having found itself into other legislation over the years

There are a large number of tax authorities dealing with its meaning. I found the authority of The Commissioners for Her Majesty’s Revenue & Customs v Lyle Dicker Grace [2008] EWHC 2708 (link below) provided a very good summary of the Common Law (see paragraph 3 of the Judgment).

It may come as some surprise to employment lawyers that someone can in fact be ‘ordinarily resident’ in more than one place at the same time and that the approach should not be to try and ascertain someone’s base/real home.

The use of the phrase ‘ordinarily resident’ is not universal in employment legislation with the territorial jurisdiction test varying from statute to statute. The conclusions of Serco have limited application when looking at disability/age discrimination jurisdiction issues. It is perhaps Serco that lead the Judge in this case to draw what was possibly the wrong conclusion from the evidence.

Anyway this case has been rated as Category A and so will be heard sooner rather than later. I suspect there should be a decision later this year shedding some light on what is meant by ‘ordinarily resident’.

http://www.bailii.org/ew/cases/EWHC/Ch/2008/2708.html

Peter D

Lecture Notes

2010-01-19T02:31:00.000-08:00

We had a good turn out before Christmas at the Team's seminar. Some of the notes are now up on the website covering legal representation and advanced CRB checks as well as length of service.

http://www.12cp.co.uk/furniture/cms/documents/Legal%20Representation%20at%20Disciplinary%20Hearings.pdf

http://www.12cp.co.uk/furniture/cms/documents/The%20End%20of%20Length%20of%20Service.pdf

Peter D

Administrative Inefficiency

2009-12-03T03:39:00.000-08:00

I was very busy last month spending a lot of time both in the Tribunal and coping with the fall out caused by Tribunal administration. It is about time that something was done about the present state of the administration.

I suppose it all started a number of months ago when the Tribunal would not accept the word of my instructing solicitor when he said that one of our key witnesses was not available. In the end it took a last minute begging application draft by me to get the matter adjourned.

Then a Tribunal decided to list a matter on dates when our main witness was away (we had completed the listing matrix and sent it off months before). Despite repeated requests for an adjournment it was only given on the first day of a 4 day hearing.

Next I had a 3 day case with witnesses having booked accommodation and arranged travel up to Manchester being postponed at 3 pm on the Friday before the hearing. No judge was available.

I have had repeated complaints from solicitors that correspondence is not being answered promptly or at all and some cases our simply dropping off the radar with no hearing date or directions being issued.

In short the system appears to be breaking under the increasing workload and we can expect little in the way of improvement in 2010. These failures are now impacting on the advice I give my clients. When the client can see the incompetence of the administrative staff it does not fill them with much confidence and this added to the costs of undertaking litigation means that settlement becomes the overriding objective for most employers.

Whatever happened to the overriding objective of the Tribunal?

Peter D

The Long March

2009-10-29T07:49:00.000-07:00

Wilson v HSE has now found its way back into the English Courts some seven years after Mrs Wilson started her challenge to service related pay. The Court of Appeal has now in my view removed any doubt that such provisions are open to challenge. All that now remains is the rebuttable presumption that people who do a job for longer tend to be better at it and can be rewarded accordingly (service related pay).

What the Court of Appeal held was that the ‘serious doubts’ test handed down by the ECJ did not add a further hurdle to the Equal Treatment Directive and that the burden of proof remained the same as for any other challenge namely that “the Claimant has established facts from which it may be presumed that there has been direct or indirect discrimination....”

So it seems to me that the ‘serious doubts’ side step adopted by the ECJ has for the moment been downgraded. The test is now what is described as the lower test by Lady Justice Arden namely that the Claimant has to adduce evidence or point to evidence that is capable of establishing credible reasons for doubting the applicability of the general rule that service related pay is ‘automatically’ justified.

It should also be noted that Dinah Rose QC also succeeded on a new appeal point which in effect bypassed the Directive altogether. She argued that as service related pay was not specifically excluded by the 1970 & 1975 Acts the normal equal pay rules applied. This is probably the most important part of the judgment as it effectively removes Danfoss and Cadman from the reckoning and leaves the Claimant with a straightforward claim under the Equal Pay Act.

Why service related pay has become such a sacred cow is beyond me? If the employee deserves a different rate of pay from his female comparator then justify it. Things would be so much easier and Mrs Wilson would have won her case first time round 7 years ago!

http://www.bailii.org/ew/cases/EWCA/Civ/2009/1074.html

Peter D

What is a catering service?

2009-09-28T03:29:00.000-07:00

There is not a simple answer to this as was discovered by Mrs Jones and Miss Ciliza. They brought a case against the transferee of a catering contract claiming that the TUPE Regs applied.

In this particular case a catering contract had been transferred because the old contract was losing money. The old service was described as a full canteen service involving the Claimants cooking as well as service. The transferee changed the service from being canteen based to being kiosk based with the Claimants simply selling pre-made sandwiches with some service. The question of course arose as to whether the same ‘activities’ were carried out by the new contractor?

The EAT upheld the Tribunals decision that there was no transfer and carried out a useful review of the service change provisions. The emphasis was as one might expect upon the activities not the fact that a grouping of employees has transferred.

This was decided relatively recently by HHJ Burke in Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08:

“The issue before the Tribunal can be simply expressed, namely, was there a relevant transfer under regulation 3(1) (b) of TUPE 2006. In the circumstances of this case two questions arose, namely were there activities which ceased to be carried out by CD on behalf of a client (MH) which were carried out instead by a subsequent contractor (MRL) on behalf of MH and were the conditions referred to in regulation 3(3) satisfied?”

The question then is simply a matter of fact for the Tribunal as to what similarities there are between the two activities; the important task for a Tribunal being a before and after snap shot of the activity in question.

It was also clear that simply labelling an activity in this case as ‘catering’ was not good enough. A more detailed analysis was required of the pre and post transfer activities. In this particular case the service had gone from being a full canteen service to a sales service of pre-packed foods which the Tribunal found was a wholly different operation.

What does this tell us? It helps us with how we should approach the service transfer provisions but is also demonstrates that there are limits to what is a ‘service’. Generalised labelling will not be sufficient for a service activity to survive a transfer. Tribunals will be looking at the specifics.

Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08
http://www.employmentappeals.gov.uk/Public/Upload/08_0286rjfhwwRN.doc

OCS GROUP UK LTD v JONES & CILIZA [2009] UKEAT/0038/09
http://www.employmentappeals.gov.uk/Public/Upload/09_0038fhwwCEA.doc

Peter D

Lecture Notes Part Two

2009-09-12T01:14:00.000-07:00

The lecture notes on Disability Discrimination and Equal Pay have now been uploaded to the Chambers website. Please click on the link below.

Peter D

http://www.12cp.co.uk/furniture/cms/documents/Disability%20Discrimination%20.pdf

The transfer window has closed

2009-09-10T04:28:00.000-07:00

I suppose with the transfer window having just closed I should try and make some kind of tenuous link between the start of the football season proper and the Court of Appeal decision in Gutridge & ors v Sodexo & anor [2009] EWCA Civ 729. However I can’t think of one so I will move quickly onto the Court of Appeals decision in this case.

The important bit is that the Court has confirmed that equal pay claims against transferees begin to run from the date of the transfer. This is a practical solution to what was potentially a very difficult issue for a transferee especially in relation to local government contracts where there are many thousands of potential claims arising out of single status. The problem was that many years after a transfer a transferee could have been faced with an equal pay claim which arose before the transfer and about which the transferee would have little or no knowledge (see Elias’s judgment in the EAT).

Although this is a practical solution Lady Smith’s dissenting judgment should be read. Although she saw the problem she came down on the employee's side. In fact the Equal Pay Act allows exactly that when you stay with the same employer it is simply the arrears that are limited by the six year time limit.The argument is persuasive as the Equal Pay Act is all about implying an equality clause into the contract and as the contract is transferred it is difficult to see why time should run from the transfer.

I believe what this case really comes down to is the application of the House of Lords judgment in Powerhouse Retail Limited v Burroughs and others [2006] UKHL 13. This is why it is unlikely that this is the end of the matter so watch out for a further appeal to the House of Lords or perhaps even an ECJ reference.

Peter D

http://www.bailii.org/ew/cases/EWCA/Civ/2009/729.rtf

http://www.bailii.org/uk/cases/UKHL/2006/13.html

Lecture Notes

2009-09-09T06:59:00.001-07:00

I gave a lecture at the end of August covering Disability Discrimination and Equal Pay. Why is it that the Bar Council only allow you double the the delivery time as preparation time for CPD purposes? This lecture took me nearly 3 full days to research and write!

I am hoping to have the notes uploaded to the Chambers website in the next week or so. When it is done I will put the link up on the blog. The notes cover some old ground but also look at the the meaning of 'likely' in some more depth as well as a quick round up of recent equal pay decisions in the long running single status litigation.

Peter D

The Establishment

2009-09-09T06:41:00.000-07:00

There are at present many thousands of equal pay claims being brought up and down the country against the NHS and local authorities. In the case below the key question that arose related to who the predominantly female school based staff could compare themselves with across the Council. In the end the question was what did ‘establishment' mean?

Dumfries & Galloway Council v North & Others UKEAT/0047/08 (see link at the end) concerned equal pay claims being brought by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at depots and at a swimming pool, and employed as road workers, grounds men, refuse collectors, refuse drivers and a leisure attendant. There were also male manual workers employed by the local authority at schools (i.e. the same establishments as them), as caretakers, but the claimants did not seek to compare themselves with them.

The key issue in this case was whether or not the claimants and their chosen comparators were in the same employment for the purposes of section 1(2) (c) of the Equal Pay Act 1970. It was found that the Claimants and comparators were not in the same employment.

This is a useful judgment as it reviews the most recent and important decisions on the meaning of ‘establishment’ under S 1(6) Equal Pay Act 1970.

At paragraph 20 Lady Smith set out two propositions namely that:

It should not be assumed that a woman employed at one establishment is in the same employment as a man employed in another just because they are employed by the same or associated employers.
For a woman to compare herself to a man employed at a different establishment there must be such uniformity or commonality between the two employment regimes to make it a fair comparison.

This can be shown in two different ways:

a) A Claimant may demonstrate common terms and conditions (usually the same collective agreement)

b) A Clamant may show that the women doing her class of job at establishment A are employed there on common terms and conditions and that men doing her comparator’s class of job at establishment B and any man actually employed or who would be employed to do that class of job at establishment A are, or would be, employed on terms and conditions that are common to them (although different from the women’s terms and conditions).

The North case falls into the second category of cases. What Claimants in the second category of cases have to show is that the male comparators could have been employed to do their job at the School.

What this meant was that as schools do not collect refuse or employ leisure attendants many of the comparators fell away as they could never hypothetically have been employed at schools! It is also worth noting that importance was placed on the schools requirement of advanced CRB checking of staff which did not apply to most of the comparators and the management of work by the Headteacher.

Peter D

http://www.employmentappeals.gov.uk/Public/Upload/EATS.0047.08.BIDumfriesGallowayvNorthFINALShowingAMENDMENTS(corrections).doc

The Pool

2009-08-05T09:01:00.000-07:00

Seems to me that we have been sweating over nothing and all our clever arguments over what Rutherford may or may not have said about pools don’t amount to a hill of beans. Yet again someone has noticed that Baroness Hales might actually know what she is talking about when it comes to discrimination!

The Court of Appeal have revisited the question of what the relevant pool should be in an indirect discrimination claim. Somerset County Council v Pike [2009] EWCA Civ 808 is helpful as it explains Rutherford (no mean feat you may think). What Kay LJ explains is that lawyers keep on misreading the majority decision of the House of Lords Rutherford. He identifies that Judge McMullen had it right when he refers to Baroness Hale’s reasoning in Rutherford as this was approved by the majority.

"76 … it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. The people who want the protection are the people who are still in the workforce at the age of 65 …

77 … in my view we should not be bringing into the comparison people who have no interest in the advantage in question.

78. This approach, defining advantage and disadvantage by reference to what people want, chimes with [Canadian authority] …

82. The common feature is that all these people are in the pool who want the benefit – or not to suffer the disadvantage – and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question … "

So we are back to a pool that suitably tests the particular type of discrimination complained of. Helpful?

Probably as it least sets boundary markers even if it does not tells us exactly where the boundary is. Perhaps the only people who have really had any doubts are lawyers representing Respondents who as in the present case knew that they were down on disparate impact if the correct pool was adopted.

Peter D

Somerset County Council v Pike [2009] EWCA Civ 808:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/808.html

An Unlikely Reversal of Fortune

2009-07-15T07:38:00.000-07:00

There has not been much of late to shout about if you are a disabled employee. At times it appears that the whole world is out to get you. However karma and balance will eventually be restored and Mrs Boyle would appear to be the first beneficiary.

Baroness Hale is as usual at the forefront of making things easier for the disabled employees. Her judgment is easily comprehensible. Is she the only Law Lord who really understands why we have protection for disabled employees?

Anyway she goes through the law and then says at paragraph 67, “In this House we start with a clean slate”. What follows is a very important change in the burden of showing something is likely under the Disability Discrimination Act 1995. Gone is the 51% and in comes the “could well happen” test.

Lord Rodger gives a very good explanation of what could well happen means at paragraph 41:

“In their everyday practice doctors do not usually need to consider whether a patient’s condition would “probably” recur if he did not continue to take some drug or follow a particular exercise or other treatment regime. On the one hand, a doctor does not prescribe a continuing course of treatment if it is unnecessary - in other words, where she considers that the condition or its symptoms will not recur if the patient stops the treatment. But, equally, unless perhaps the side-effects are particularly unpleasant or the cost of the drug is prohibitive, a doctor does not prescribe a continuing course of drug or other treatment only where she considers that there is more than a 50% chance of the condition or symptoms recurring. She does so when she considers that there is a significant risk of that happening - when “it could well happen", to use Girvan LJ’s phrase, and when, accordingly, it is worthwhile to continue the treatment.”

In short it is now easier to demonstrate that something is likely to happen. The impact of this decision is far reaching as it will reduce the Richmond effect (see earlier posts on recurrence) that has lead to so many cases falling at the ‘likely to last 12 month hurdle’. I have succeeded twice in the last year for Respondent’s on this point and doubt whether I would get the same result after Mrs Boyle. Conversely I have had to advise a Claimant to drop part of her disability claim because of the 51% test then being applied by Tribunals.

The balance has now shifted back in favour of disabled employees and it is likely to swing further in the next 12 months. Perhaps we can now get back to focusing on the factual namely justification defences rather than legal barriers erected by clever lawyers!

Am I happier? Well being a lawyer I find the concept of 'could well happen' a bit more difficult than 51% but I am sure I will get used to it.

Peter D

SCA Packaging Limited v Boyle [2009] UKHL 37

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090701/sca-1.htm

Richmond Adult Comunity College v Mcdougall [2008] EWCA Civ 4

Keeping up

2009-07-09T03:46:00.000-07:00

Sorry the blog has been left throughout June but I do have the excuse of a holiday and other more pressing work matters.

I will try and do better!

Peter D

Beyond employment law?

2009-07-09T03:43:00.000-07:00

Like buses interesting problems seem to come along in three’s. My second issue arose when I was asked to give some guidance on the dividing line between an employee and partner. I realised that although I knew the basic principles as to employed/self-employed I did not actually know how it had been applied to partners.

To my aid came the recent EAT case of Kovats. This is interesting because it sets up a two stage test in determining employment status. The first stage is to ask whether the person is or is not a partner (note no direct comparison with employment status or any other status – see Section 4(4) of the Limited Liability Partnerships Act 2000. Only once it has been determined that the person is not a partner do you then go on to decide what that person’s status is applying the usual Ready Mix Concrete test.

Spending one’s whole working life looking at employment law does sometimes lead you to believe that all areas of law are subject to the same jurisprudence and subservient to what must be the right way, the employment law way. This case is a timely reminder that there is more law out there!

I shall deal with the third case in a few weeks time – it will deal with the ‘likely’ issue (see earlier posts) which has now been determined by the House of Lords!

Peter D

KOVATS V TIFO MANAGEMENT LLP & THE FAMILY GROUP OF COMPANIES UKEAT 0357/08

http://www.employmentappeals.gov.uk/Public/Upload/08_0357rjfhLBZT.doc

Oops!

2009-07-09T03:38:00.000-07:00

Age discrimination is we are told going to be a growth area of discrimination in the future. One area where no growth was expected was recruitment over the NRA (normal retirement age) because there is a cut off of not having to recruit people who are above NRA (see ADR Regs 7( 1)(a) + (c) & (4)).

What many people have not realised is that if you actually recruit someone who is over your NRA and then try to dismiss them you ARE going to face problems. You could of course go down the retirement route of giving notice but this takes time. But what if you recruited someone by mistake not realising that they were over your normal age of retirement?

This is the problem facing one of my clients and I am not sure there is an easy answer. It seems to me that the dismissal will need to be justified and simply stating that the employee is over your NRA may not be enough. This may not be a problem that is likely to arise on a regular basis but it is a conundrum that I am presently working on and I have not yet found a wholly satisfactory answer for the employer.

Peter D

More?

2009-05-29T07:46:00.000-07:00

As always it is only in a downturn that you actually find yourself looking through the Insolvency Act 1986. In my particular case the reason being was to double check what is counted as a preferred debt for employees. If you interested you will find all the information set out in Schedule 6 Category 5 Debts paragraphs 9 – 12. What is worth noting is that there is an upper limit for preferential employment debts of £ 800 (see Insolvency Proceedings (Monetary Limits) Order 1986/1996).

My instructing solicitor asked me, does this £ 800 include holiday pay? My initial reaction was of course however on closer reading of paragraph 10 it became clear that the limit found on paragraphs 9 & 12 was not to be found in paragraphs 10 & 11. This is somewhat puzzling as the books and guidance appear to take it as read that the limit applies to the totality of the employment debt.

In my particular case there was a sizeable sum outstanding in relation to holiday pay which incidentally does not appear to be defined or limited to a week’s pay or statutory entitlement as with claims to the Insolvency Service. It seems to me that the insolvency practitioner in this particular case is going to get a nasty surprise on Monday morning when he sees the size of the claim in respect of holiday pay. Mind you I do not think the administrator will take this lying down so expect a further chapter on this later this year.

You might also be interested to know a failure to pay a protective award made under TULRA S 188 & 189 can be a provable debt in an insolvency situation (see Haine & another v Day [2008] IRLR 642).

Peter D

Listing?

2009-05-21T08:14:00.000-07:00

I have been caught up in another listing issue this time closer to home in Reading.

In this particular case the Respondent had requested a PHR to deal with the merits of what was on the papers a weak claim. This application was refused and then without recourse to the parties the matter was simply listed for two days with standard directions. This was on 16th April 2009.

Those instructing me asked for a postponement and gave dates to avoid. The Claimant did not bother to reply to the application. The Tribunal took the best part of 3 weeks to deal with the application; by which time the trial date was about a week away. The postponement was denied. Those instructing me had to make a further urgent application and the case was eventually vacated and a PHR listed.

As I understand the situation the listing of a matter is important for Tribunals statistics so clearly the earlier the listing the better the statistics. I can accept this but, and it is a big but, this is meant to be a service for the litigants. When a case is listed without recourse to either party’s availability, it should be the Tribunals practice to vacate the dates if asked to do so long as alternative dates are provided. It should be enough for a party to write in and say the dates are not convenient so long as the other party is either in agreement or is silent. This is what a service is about.

More importantly it should not take the Tribunal 3 weeks to tell you that your application for a postponement has been rejected. The idea that a simple application for a postponement should take more than a couple of working days to deal with is inexplicable.

I make a simple heartfelt plea from a Tribunal user: Please remember that at the end of the day the people using the Tribunal are your customers, please treat them as such.

Peter D

Complete Control.....

2009-05-07T08:41:00.000-07:00

I have recently been advising a client in relation to a TUPE+ transfer. It was accepted that TUPE applied and that this meant the terms and conditions of the employees had to be maintained. The employees were transferring over from the public sector and part of their terms and conditions made reference to collective agreements negotiated from time to time.

Now I had thought that after Werhof v Freeway Traffic Systems GmbH and Co KG [2006] IRLR 400 any collective agreements entered into after the transfer that the transferee was not a party to would not bind the transferee. In layman’s terms you get the knowns not the unknowns. All very sensible and a good for employee/employer relations and freedom of association.

Then along comes Alemo-Herron and ors v Parkwood Leisure Ltd. [2009] IRLR 322. This case involved a TUPE transfer from public to private sector with the transferring employees having the ‘collective agreement term as negotiated from time to time’ clause in their contracts. The problem is that the private sector transferee would not be a party to any future collective agreements. The Tribunal followed Werhof adopting a practical and European approach to the decision.

The EAT allowed the appeal based on the UK regulations rather than the EC directive. The EAT decided that the case turned on the wording of the contract but also on the fact that collective pay bargaining UK style was different from that used on the continent. The EAT saw no problem with a clause that entitled the employee to have his wages set by some external benchmark arrived at by collective bargaining. The EAT accepted that so long as the NJC was in existence then the pay levels set by the NJC would apply even though the transferee had not and more importantly could not take part in the negotiation.

This will have far reaching implications for private sector bidding for public sector work as this clause is commonly found in local authority contracts of employment. This decision effectively takes negotiations in relation to important terms as to pay and conditions outside of the control of the new employer. No wonder leave to appeal has been granted!

Peter D

Back in from the Novacold............

2009-04-28T08:18:00.000-07:00

Just a short note to say goodbye and good riddance to Malcolm (follow the link to my seminar notes for more detail on the House of Lords decision in Malcolm):

http://www.12cp.co.uk/furniture/cms/documents/Disability%20Discrimination%20Update.pdf

I have just had a brief scan of the new Equality Bill. It tidies up a few things and brings some much needed consistency across the various types of actionable discrimination. For all the detail go here:

http://www.equalities.gov.uk/equality_bill.aspx

I think I might have a look at some of these proposals next month; for the moment I thought I would briefly outline a few of the more important disability related changes:

- The Bill proposes that the comparator ‘for reason relating to discrimination’ revert back to the Clark v Novacold comparator.
- The Bill removes the list of capacities from the definition of disability although it is likely that they will still prove useful in guiding tribunals.
- The threshold that gives rise to the duty to make reasonable adjustments for disabled people in other areas has now been brought in line with the ‘substantial disadvantage’ test laid down in the employment provisions.

All in all a pretty good outcome for the disabled rights campaigners and more importantly those with disabilities both in and out of employment. My one concern is when, or perhaps if, this Bill is going to make it onto the statute book.

Peter D

PS I am really sorry about the strap line at the top - much as I have tried to summon up the will to get rid of it it makes me smile.........

Not bl**dy likely!

2009-04-23T03:07:00.000-07:00

Is it my imagination or are there more reasonable adjustment cases coming through on appeal at the moment? One case recently caught my eye.

The case looked at the application of the exemption found in S 4A(3)(b) of the DDA. This case involved a job applicant who had flagged up her disability but not made any mention of adjustments that she might require at interview. The employer ran lack of knowledge as a defence.

The EAT explained that the words in the statute had to be read together. The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:-

(a) does not know that the disabled person has a disability;
(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
(c) could not reasonably be expected to know that the disabled person had a disability; and
(d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

May be not an unsurprising conclusion due to the use of 'and' throughout the section. However for me this was not the most interesting part of the decision. Tucked away in the judgment was another look at the meaning of ‘likely’ (see previous post). The EAT felt that because the words 'might' and 'may' were used elsewhere in the statute that the draftsman must have meant the meaning to be different. The EAT concluded that ‘likely’ in this context did mean something different but did not say what the meaning was.

Sorry to bang on about it but someone is going to come badly unstuck in a higher court in the near future over the meaning of 'likely' in the context of the DDA!

Peter D

The Greasy Pole

2009-03-27T03:36:00.000-07:00

Experience related pay has been the focus of complaints from female employees for sometime now. The difficulty is that as more women than men tend to take career breaks or start careers later, when they return to or in fact enter the labour market they find that they have fallen behind men in seniority and pay. A lot of women never catch up and find themselves always a few steps behind their male peers.

Bernadette Cadman's complaint was that time served provisions in relation to pay were indirectly discriminatory. She took her case all the way to the ECJ. In Cadman v Health & Safety Executive [2006] IRLR 969 the ECJ made it pretty clear that establishing that a seniority based system of reward is discriminatory will always be a hard nut to crack for a Claimant. This is based on the ECJ decision in Danfoss [1989] IRLR 532 which held that as experience usually improves performance time served can be used to justify pay differentials.

Cadman emphasised that for an employee to succeed the employee must show that the employer has stepped well beyond the margins that are afforded employers when applying such a criteria.

Now the UK courts have had their first look at Cadman in Wilson v Health and Safety Executive EAT/0050/08. Mrs Wilson was again challenging pay based on length of service. The EAT held that such a challenge is possible where an employee has raised serious doubts over the appropriateness of the criteria.

The test is set out in paragraph 44 of the Judgment:

“We think that the tribunal would have to be satisfied that in the light of the evidence adduced by the claimant there is real reason to suspect that the employer has stepped beyond the margins which can properly be afforded to employers when considering whether added experience typically improves job performance.”

The door is now a little further open but without wanting to stretch a metaphor too far it will be difficult for most women to squeeze through the gap.

Peter D

Ivory Towers Prt 2

2009-03-20T05:37:00.000-07:00

Another quick update Chambers has finally got a separate DPA page up and running. I am also getting a short article published in the Southampton Echo to inform people about this relatively new method for accessing a barrister.

http://www.12collegeplace.co.uk/direct-public-access

Peter D

Notes Online

2009-03-20T05:32:00.000-07:00

Just a quick update. I have finally had the notes for the DDA update uploaded to the website. I have also uploaded my redundancy seminar notes from last week. Please follow the links below to copies of the seminar notes:

http://www.12collegeplace.co.uk/furniture/cms/documents/Disability%20Discrimination%20Update.pdf

http://www.12collegeplace.co.uk/furniture/cms/documents/Redundancy%20Issues.pdf

Peter D

All change please........

2009-03-19T01:54:00.000-07:00

Every so often your sense of certainty is shaken. For most people this usually involves profound life changing experiences but for lawyers who don’t get out much this usually comes in the form of appeal court decisions. Such a decision is Home Office v Evans [2008] IRLR 59 (Evans). I found this authority whilst preparing the notes that have kept me away from my blog over the last few weeks.

Evans involved the use of an express mobility clause to avoid making the employee redundant. This clause permitted the Home Office to transfer the employee to any civil service post whether in the UK or abroad. This case involved the proposed redeployment of immigration officers from Waterloo to Heathrow when the international station closed.

The question for the Court of Appeal was how redundancy interacts with a mobility clause. The Court took a practical approach and found that where such a clause existed, the activation of the clause to avoid redundancy was permissible. This decision appears to be an unwelcome return to the contract test. After all there was no longer a requirement for immigration officers at Waterloo as the terminal was going to close.

Added to this is the Court of Appeals apparent failure to take account of High Table Ltd v Horst [1997] IRLR 513 a case where the employer was not permitted to use a mobility clause to avoid paying a redundancy payment to an employee who had always worked at the site which was being closed.

As Lord Justice Peter Gibson remarked at paragraph 22:

“It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims.”

Evans may best be explained on its particular facts nevertheless this case does raise the obvious question. If the definition of redundancy is so simple as explained by Lord Irvine in Murray v Foyle Meats [1999] IRLR 562 then why did the Court of Appeal find it so hard to apply it in this case?

Peter D

The old ones are always the best

2009-03-18T08:42:00.000-07:00

Having spent much of my free time over the last few weeks putting my seminar notes together I have been neglecting the blog.

Whilst doing the research for my notes I remembered how important some cases are despite their age. The case in question is Williams v Compair Maxim Limited [1982] IRLR 83 which was decided over 25 years ago. Unlike many cases decided in the late 70s and early 80s the jurisprudence in this case has stood the test of time and is as relevant today as it was all those years ago.

The facts of the case are not that important what are important are the principles that Browne-Wilkinson J summarised in paragraph 19 of the judgment:

“1.The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

These principles should be departed from only where some good reason is shown to justify such departure.”

I am not sure there is much more I can say on the matter. So instead what I shall do is direct you to paragraph 18 of the same judgment! Where the analysis of S 98(4) as it is now and how it works in a redundancy situation makes us realise that sometimes the old ones are in fact still the best.

‘... there are only two relevant principles of law arising from that subsection [now S 98(4). First, that it is not the function of the industrial tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy “as a sufficient reason for dismissing the employee”, i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal.’

Peter D

Moving out of the ivory tower............

2009-02-25T02:55:00.000-08:00

Barristers have over the years managed to build up an air of superiority over the rest of the legal profession. This is reflected in the question most often asked by a lay client about becoming a barrister, 'how many more years did you have to train to become a barrister after you had qualified as a solicitor?' In truth I probably had 6 months less training than a comparable solicitor.

Clear divisions within the legal profession between advocate/specialist barrister and generalist solicitor are now blurred. More and more solicitors are doing what barristers used to do and barristers are moving into areas previously reserved for solicitors. The major obstacle for solicitors has been the right to appear in higher courts whilst the obstacle for barristers has been the requirement for an instructing solicitor.

High Court Solicitor Advocates are now a fact of life and access to the Bar from the general public has been in place since 2004. Things started to change for the Bar in the late 80s.

In 1989 the Bar Council allowed Barristers to accept work directly from approved professionals for the first time. This was known as Direct Professional Access. This went through a number guises turning into ‘Bardirect’ and finally becoming known as Licensed Access.

This opened up the possibility for some professionals to be able to instruct barristers directly. This was used primarily by surveyors and accountants. The major drawback for the professional was that if their professional body was not approved then the individual or company had to register with the Bar Council.

In July 2004 it became possible for members of the public to instruct barristers directly. This was a major change for our profession and was for those of us who became involved in providing this service a steep learning curve.

I know a number of colleagues who believe that this erosion of difference will inevitably lead to a fused profession culminating in the end of the Bar as we know it. I am not so sure. The Bar has expanded massively over the last 20 years whilst these changes have been implemented. I do not think the changes will be the end of the Bar far from it in these difficult times the changes will help the Bar to survive!

Peter D

A home away from home..........

2009-02-16T07:04:00.000-08:00

Do you know how far away Norwich is? Well I didn't and so it was a surprise to me to find myself 5 hours into a train journey and still not 'nearly there yet'. The journey by train is one of nostalgia as you pull out of Liverpool Street in old Inter City rolling stock with slam doors! Mind you I have to say the seats give you a bit more space and are certainly more comfy than the new rolling stock on South West Trains.

I stayed over night at the very pleasant Oaklands Hotel and arrived albeit a few minutes late due to adverse weather at the Tribunal in Ber Street. At this point you are beginning to wonder what the important legal point is or perhaps the incite into procedure over there in the flat lands? Sorry to disappoint, that is not what this weeks entry is about.

This week I am simply giving praise to Norwich Employment Tribunal. The staff are friendly, the Tribunal were thorough and the day was not too long (we finished at just after 4 pm each day). Add to this the very good cafe just across the road from the Tribunal and I must admit to having had two very pleasant days in Norwich. The decision was reserved so before you even think it - I do not know if we won or lost.

Perhaps the key to success in Norwich is a small hearing centre with good friendly staff who knew what they were doing and more importantly took pride in it. It makes such a difference for the parties when everyone is treated properly by the staff and in the hearing.

Thank You Norwich.

Peter D

Another coal on the fire, Mr Scrooge?

2009-01-30T06:25:00.000-08:00

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.

The right notes but not in the right order.........

2009-01-28T03:42:00.000-08:00

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

Is this your case madam?

2009-01-27T03:35:00.000-08:00

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

Schrödinger's cat and the ECJ

2009-01-20T07:52:00.000-08:00

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

That's all folks........

2009-01-16T08:55:00.000-08:00

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

That will probably never happen...............

2009-01-15T02:14:00.000-08:00

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

That is so gay........

2008-12-24T03:27:00.000-08:00

As I enter middle age I find it more and more difficult to understand the language of the young. In particular is the use of the word ‘gay’ as a form of abuse. For more on this go to:

http://news.bbc.co.uk/1/hi/magazine/7289390.stm

Now it would appear that directing homophobic abuse at a straight employee in the workplace is likely to lead to problems for the employer. The Court of Appeal has held that ‘on the grounds of sexual orientation’ can cover straight employees who are subjected to homophobic abuse (English v Thomas Sanderson Limited – citation below).

Perhaps in reality the abuse says more about the abuser than the abused. I remember talking to a Sri Lankan who came home one evening to find a ‘Paki go home’ note pinned to his door. He was upset but he couldn’t help wondering whether this person actually realised that the two countries are about 1,500 miles apart and the inhabitants probably had less in common than the abuser had with someone from Pakistan!

http://www.bailii.org/ew/cases/EWCA/Civ/2008/1421.html

Peter D

ELAAS

2008-12-23T04:13:00.000-08:00

I remember watching the Simpsons and seeing Homer go through the Kübler-Ross stages of grief. Unlike the normal person Homer went from denial, to anger, to bargaining, to depression and finally to acceptance in the space of about 5 seconds.

Every time I find myself on the ELAAS rota I think my client’s go through much the same stages of emotion. For those who don’t know ELAAS was set up a number of years ago to provide free representation for people in the Employment Appeal Tribunal. This very successful scheme now encompasses full hearings as well as the usual Rule 3(10) leave hearings and PHs.

Now I am not sure that this analogy works but here goes......

The client believes that because I am an experienced barrister I can waive a wand making it all better and then immediately goes into denial when I tell the client that I may not be able to fix it. The client then starts getting angry because the person who is meant to be helping them isn’t! The bargaining commences when we start talking about what I will and won’t say on their behalf (you don’t make bad points in front of the Judge). The depression follows shortly afterwards when it is finally decided what parts of the appeal I am going to deal with. Acceptance arrives as we walk in to the Court.

Is it worth it? Yes because you can make a difference (see Dell Care home v Owen UKEAT/0035/08) in particular paragraph 3 of HHJ Serota QC judgment:

“I would interpolate, at this stage, how grateful the judges and members of the Employment Appeal Tribunal are to members of ELAAS, who give up their time and provide the greatest assistance to litigants in person. I have already observed during the course of submissions, and I repeat, that but for the assistance of Mr Doughty this appeal would almost certainly never have proceeded beyond the Rule 3 stage.”

If you would like to know more about ELAAS or perhaps even sign up then contact Oscar Osigbesan at the Employment Appeal Tribunal.

Peter D

Have a good Christmas break as I have a feeling that we are all going to be very busy next year!

The grass is not greener........

2008-12-14T05:08:00.000-08:00

I have had a busy time of it over the last week or so and have fallen behind on the blog. As I explained to those of you who attended the seminar last Wednesday one of the purposes of this blog is to keep people informed of the conditions on the ground at Tribunals.

I have recently been instructed to act for a large employer who has a number of claims running at Croydon. The experience has not been a good one. Croydon unlike Southampton do not appear to actively manage cases.

Time estimates are based upon what the Tribunal think rather than asking the parties. Croydon are also issuing basic case directions with tight time limits in relation to Schedules of Loss and exchange of documents. The directions do not include the usual Southampton orders in respect of agreed bundles and then witness statements. The net result is that witness statements are produced prior to the bundle. You should also note that the Respondent has to prepare the bundle unlike most other Tribunals.

I would advise anyone who has a case at Croydon to try and get proper directions as to the preparation of the bundle and exchange. The directions should make it clear that the bundles come before the statements and the statements are cross referenced with the bundle. In the end this saves the client money as the hearing goes more smoothly.

Finally unless you can persuade the other side that the time estimate is wrong the Tribunal will plough on regardless of what you say to the contrary. In order to get the case properly prepared you need to cooperate with the other side to create a united front when dealing with this Tribunal.

You may also be interested to know that very few people turned up to the last users meeting at Croydon. We usually get a good turnout at Southampton and it appears to me that if we continue to show an interest in our local Tribunal we can avoid our Tribunal becoming like Croydon.

Peter D

Another bite of the cherry

2008-12-14T04:40:00.000-08:00

We had a great turn out at our seminar last Wednesday. Thank-you to all those who turned up and put up with the Team for 3 hours!

For those of you who were unable to make this seminar we have decided to repeat the seminar on 15th January 2009. There are still a few spaces left for this date.

Details can be found at http://www.12collegeplace.co.uk/seminars/

Peter D

Holidays

2008-12-03T05:24:00.000-08:00

Having just come back from a few days holiday (unpaid), I was interested to see that the whole ‘Does holiday pay count as wages?’ issue is still rolling on. Ever since ‘Ainsworth’ (now on appeal to the ECJ as HM Revenue and Customs v Stringer & Others) the question of whether holiday pay can be claimed as a deduction from wages has been up in the air.

This does not matter where it is a one off but where there have been a series of non-payments a worker cannot join the dots as he can under the deduction from wages provisions. This means that at present people are having to make repeated claims for unpaid holiday pay due to the time limit running from each holiday taken but not paid.

This arose out of the Court of Appeal's decision in Ainsworth, where they decided that non-payment of sums in respect of holiday pay can only be claimed under the Working Time Regulations 1998 (WTR) and not as deductions from wages under the Employment Rights Act 1996 (ERA).

There is as yet no solution to this issue although a worker can now at least protect his position if he has missed the time limit under the WTR pending the outcome of the appeal (see Berta v Hummus Brothers Limited).

The practical way forward for the Claimant is to make a claim under both the WTR and the ERA. The Claimant’s ERA claim will then be stayed to the extent that the WTR claim is time barred.

HM Revenue and Customs v Stringer & Others C-520/06. The Advocate General’s Opinion is at: http://www.bailii.org/eu/cases/EUECJ/2008/C52006_O.html

Commissioners of Inland Revenue v Ainsworth & Others [2005] EWCA 441:
http://www.bailii.org/ew/cases/EWCA/Civ/2005/441.html

Berta v Hummus Brothers Limited UKEAT/0184/08:
http://www.employmentappeals.gov.uk/Public/Upload/08_0184fhLBRN.doc

Peter D

Reduced Fees Scheme For Claimants

2008-11-18T02:14:00.000-08:00

One of the hardest things for anyone contemplating employment litigation is the prospect of paying lots of money to lawyers. The lack of legal aid in the Employment Tribunal can often restrict access to proper redress and so a number of years ago our Team took steps to try and address these issues.

Barristers here will represent claimants with limited means for a fixed rate of £350 plus VAT per day and will also conduct a free conference with the client. Having run this scheme for a number of years we have found that it opens up the prospect of litigation for potential clients and has also given us the the opportunity of increasing the volume of work here whilst exposing our more junior practitioners to the Tribunal system.

As a Clerk it is vitally important, as it is for any business, to identify these gaps in the market and then try to come up with innovative ways to address the problem. As marketing exercises go this was one of the most successful that we have attempted - if anyone has any other ideas we would be very interested indeed.

For further details on this scheme please follow the link below.

http://www.12collegeplace.co.uk/furniture/cms/documents/Low%20Fees%202007.pdf

Mark The Clerk

When I'm gone........

2008-11-17T03:58:00.000-08:00

Will I miss the statutory procedures? These procedures have given rise to a large amount of so called pre-litigation. The lawyers have had a field day with their clever arguments on the construction of the rules and what an employer might reasonably understand from the contents of a written grievance. These preliminary points have led to countless appeals with Judges saying how unjust the procedures are and academics debating the finer points of the difference between the modified and ordinary grievance procedures.

So as a lawyer who enjoys the cut and thrust of argument I will miss the passing of the procedures. But believe it or not these procedures were not put in place to keep lawyers happy, the procedures were designed to foster a more collaborative approach to dispute resolution. I do not know whether the procedures actually did this I will leave that to academics who have more time for reflection on these matters. However what in effect happened was that many Claimants with perfectly legitimate claims were defeated by procedures designed, at least in part, to help them.

It will only be after these procedures have gone that we will see just how large an impact they had in restricting the flow of work to the Employment Tribunals. My totally unscientific and allegorical figures would indicate to me that the Tribunals should expect a 10% increase in business after April 2008.

I could end the analysis here but as time has gone by I have noticed a gradual change in the way grievances are handled as well as disciplinary matters. The procedures have changed the attitudes of both employers and employees in dispute situations. Perhaps it is this change that has led the Government down the uplift rather than the prohibition route for the replacement code due to come into force in April 2008. The old procedures did have unfair consequences for Claimant’s but a softening of the sanction away from complete prohibition is I hope the answer even if it does mean less interesting times for lawyers.

For more information on the changes and the new code I suggest a visit to BERR. You might also be interested to compare your experiences of the procedure with the impact analysis carried out by the Government.

http://www.berr.gov.uk/whatwedo/employment/employment-legislation/employment-bill/index.html

Peter D

Employment Team Seminar

2008-11-12T02:23:00.001-08:00

Don't forget that there is an afternoon seminar on Wednesday 10th December 2008 in Chambers covering Disability Discrimination, Equal Pay and TUPE. You will get 3 hours CPD and a chance to meet the Team. This seminar is open to solicitors and human resources professionals. Numbers will be limited so book early to avoid disappointment.

For information about this seminar and what we do please go to our website.

http://www.12collegeplace.co.uk/

Dear John

2008-11-11T09:19:00.000-08:00

I have always believed in the usefulness of the IDS Brief as a reference tool. It is after all what the Tribunals read and with the recently updated Redundancy handbook they have not disappointed. I have a feeling that I will be using it a lot over the next 12 months.

Redundancy advice is back and the principles are always worth brushing up on. I thought what might be quite useful this week would be to look at a few selection criteria that have probably had their day in their old form.

Length of service and other service related point scoring criteria are likely to give rise to age discrimination issues. The problem with anything that may prove to be age discriminatory is that you need to have worked out what your defence might be should the criteria be challenged. I have no idea how long it takes to become a rocket scientist but the idea that a packer needs more than a few years experience as a general statement of common sense must be correct.

So all those companies who are thinking of using length of service ask yourself why you believe that time counts for the job in question? It is probably not the length of service that you want to count at all but the skills that come with longer service and experience!

The other popular criterion is sickness absence. In the past it was accepted practice that sickness absence was a legitimate objective criterion. Not however in this age of disability discrimination. It is not the direct/reason relating to discrimination that is of concern here (see One Step Forwards Two Steps Back below). It is the duty to make adjustments which would include the possibility of discounting or weighting disability absences.

From this a more sophisticated analysis of absence has arisen. No longer the scoring of 1 – 10 on how many days off in the last 2 years, now absence requires proper analysis with due care being taken over someone who has had time off in respect of a disability. There are no hard and fast rules on this but it would be a very brave employer who counted a disability absence where it was unlikely to recur in the future as a means of deciding who should stay and who should go.

As always there is a wealth of information on the Internet. I would suggest that you start at the ACAS website where you can download useful guidance as well as find links to other government websites for more information.

http://www.acas.org.uk/index.aspx?articleid=1611

Peter D

Update 09/12/08

In Rolls Royce plc v Unite the Union [2008] EWHC 2420 the High Court looked at LIFO as one of a number of criteria for selection. The Court held that although discriminatory the use of the criteria was justified. Note this is a first instance decision and leave has been given to appeal to the Court of Appeal. Best practice must still be to avoid reliance on age as a selection criteria to avoid expensive legal challenges.

http://www.bailii.org/ew/cases/EWHC/QB/2008/2420.html

Religion, belief and early mornings.

2008-11-07T08:51:00.000-08:00

For most of us, particularly if based outside of London, traipsing into the city on a cold wet Saturday in November is no one's idea of fun. Lets face it, it requires a healthy dose of CPD point motivation to convince us that it is worth the train fare and the early morning.

I am pleased to say that this year's Bar Conference was worth it, and the Employment Law Bar Association and the Discrimination Law Association are to be thanked and applauded for putting together a lively discussion entitled 'Religion and Belief – what is it all about?'. The question for the whole panel was, what are we protecting and should we be protecting it?

Robin Allen QC opened the talk and questioned whether we could really reconcile cases such as R. (on the application of Playfoot) v. Governing Body of Millais School [2007] EWHC 1698 (Admin) and R. (on the application of Watkins-Singh) v. Aberdare Girls' High School Governors [2008] EWHC 1865 (Admin). In the later case the school's uniform policy which prohibited the wearing of the Sikh religious bangle, the Kara, was held to be unlawful. Whereas in the earlier case, the act of wearing a purity ring was not found to be intimately linked to a believe in chastity before marriage and therefore not a manifestation of a belief.

These cases also raise the issue of distinguishing between the religion or belief itself and manifestations of it. The distinction is of course important as it may answer the question of whether the discrimination is considered direct or indirect and therefore whether it can be justified. Maqbool Javaid, solicitor and Human Rights Advocate, questioned whether the case law drew the correct line in this respect or whether certain manifestations should in fact be regarded as the religion itself.

Hanne Stinson, executive director of the British Humanist Association, took the opportunity to remind the audience that those who do not have a religion are also protected by the legislation and this should be reflected in the practice of employers and policy makers.

Finally, John Wadham from the Commission for Equality and Human Rights queried whether the underlining approach to religious discrimination was correct. The dawning of the Equality Bill offers the opportunity to reconsider our approach to discrimination law. Are we in fact carrying out a balancing exercise between conflicting rights and should this be reflected in the legislation?

Certainly, the talk raised many more questions than it answered, but they are questions worth asking. They are also questions that justified the train fare and the early morning.

A change is as good as.........

2008-11-05T04:29:00.000-08:00

This week I thought I would continue with the Disability Discrimination theme having just got back from an all day conference on the DDA in London.

The speakers certainly backed up the view that until the law is amended the scope for ‘reason relating to’ discrimination is going to be very narrow. It is now important for employees and employers alike to concentrate on the question of reasonable adjustments because the Tribunals certainly will be.

As always the temptation to leave these all day seminars a little early is very high! If I had gone off to do some shopping I would have missed Dr Margaret Samuel’s very good presentation on stress management. Dr Samuel is the Chief Medical Officer at EDF Energy.

I certainly can’t cover all she said in this blog. Her talk focussed on prevention rather than cure. EDF had put in place an action plan to deal with stress including a self referral scheme for those persons who felt stressed. Prior to the plan being implemented in 2003 over half of their employees identified their stress as being work related. Four years later this had been halved with only 24% of the employees identifying work as being work related.

Of most concern to employers should be the fact that EDF identified change and change management as a major cause of work related issues. Having identified change as a problem EDF then set about doing something about it. Part of their strategy was what was described as a resilience enhancement program. This better equipped the workers and managers to deal with change and lead to a fall in change related stress.

In these times of change it would serve employers well to take a closer look at what can be done in relation to stress management. A good starting point is the HSE website (see link below).

http://www.hse.gov.uk/stress/index.htm

Peter D

Two steps back.......

2008-10-28T03:44:00.000-07:00

I have been turning my mind to the Employment Team seminar in December. This year I believe the seminar should deal at least in part with the changes in the area of disability discrimination that occurred in 2008.

It is now clear that Archibald v Fife Council was the judicial high point for the disabled Claimant and since then the law has been in retreat. Two cases this year London Borough of Lewisham v Malcolm & Others and Richmond Adult Community College v McDougall have made it much more difficult for the Claimant to succeed.

Malcolm changes the comparator to a point where an incidence of the disability is separated from the disability itself. A simple example would be disability sick days. Prior to Malcolm such sick days would be related to the disability as someone who was not suffering the disability would not be suffering the sick days. Now disability sick days are to be compared with someone who is also suffering time off due to illness (but not a disability). This will make it quite permissible to dismiss someone for sickness absence and so long as it is a fair dismissal. There will be no need to justify the dismissal.

Richmond meanwhile makes it more difficult to establish that a disability is long term when the act complained of occurs only a few months into an illness. The likeliness of a disability lasting for 12 months or more is to be judged at the time of the alleged less favourable treatment. For many disabilities it is simply impossible to say whether they will last for 12 months or more in the first few months of illness.

Richmond appears to go further so as to prevent the Claimant from relying on medical evidence at the disability hearing. The Tribunal are to ask themselves what could an employer have reasonably known at the time?

This may come as a relief for smaller employers who discover at trial that the person who had only been sick for a few months was in fact disabled. Nevertheless people who previously did have claims will now not get over the first hurdle of establishing a disability.

What does this mean for disabled employees and job applicants? I think we will see a reduction in disability claims based on stress/depression and a very substantial fall off in success in reason relating to disability claims.

Peter D

Cases Cited

Clark v TDG Ltd (t/a Novacold) [1999] EWCA Civ 1091

Archibald v. Fife Council [2004] UKHL 32

Richmond Adult Community College v McDougall [2008] EWCA Civ 4

London Borough of Lewisham v Malcolm [2008] UKHL 43

Know your route

2008-10-23T08:02:00.000-07:00

I was recently made aware of the perils of blindly following maps to employment tribunals found on the http://www.employmenttribunals.gov.uk/ website.

Normally I check where a tribunal or court is in relation to car parking or the train station by using a map service such as multimap or streetmap but I was kindly provided with a map for Bedford Tribunal printed off the employment tribunal website.

Easy I thought so I didn’t bother to check it. Bad mistake. The map bears little or no resemblance to the actual streets and pedestrian areas between the train station and the tribunal. I walked for 10 minutes to find I was in a pedestrian area that was not on the map. There were no signs to the tribunal. I was lost. I then found a taxi and gave him my map. Bad mistake. It confused him so much it took over 5 minutes for us to start our journey and that was only after he scratched his head in bemusement and asked a fellow taxi driver for directions (he was told the map was rubbish).

The route we took was not shown on the map at all and none of the roads were marked. It cost £5 and yet when I walked the return journey (the most direct route I could take from memory which did go through a pedestrian area) it took me a little over 5 minutes.

So if you are going to Bedford check out your route on a more reliable and accurate map site.
Amy K

Foreign Planes

2008-10-21T03:30:00.000-07:00

I have always struggled with the concept of forum or in lay man’s terms where do I sue? I had believed that Serco Limited v Lawson [2006] UKHL 3 had settled the matter at least for pilots based in this country.

Then I came across a novel attempt by an employer to get around the age discrimination legislation and my sense of doubt returned. In short in order to claim unfair dismissal under the retirement provisions of the Employment Rights Act 1996 you have to be protected by the Age Discrimination Regulations (ADR). If you are excluded by the regulations then you do not get any retirement related protection.

Under Reg 10 there is what appears to be an exclusion at Reg 10(3) which on the face of it prevents those employed on a foreign registered aircraft from claiming protection under the ADR. Taken to its logical conclusion it would appear all an aircraft operator has to do is to register the aircraft abroad and hey presto no protection.

In fact this is a bogus argument and I had no need to panic. If you read the whole of Reg 10 it soon becomes clear that far from restricting an employee’s rights Reg 10(3) broadens the scope of the ADR to cover those persons employed on British aircraft irrespective of whether the employee qualifies under any other part of the ADR.

So in short pilots who operate foreign registered aircraft but who carry out some of their work in this country will be able to claim protection under the ADR and so the right not to be unfairly retired.

Peter D

Update (24/10/08)

The ET in Watford have just handed down a decision holding that Reg 10(3) does in fact exclude employees working on foreign aircraft but who work for at least part of their time in Britain. This matter needs urgent judicial examination in a higher Court as this ruling effectively prevents acts of discrimination carried out within the UK from being considered by an employment tribunal. Watch this space!

You don't always get what you want.......

2008-10-15T03:26:00.000-07:00

I recently had a difficulty with the part-time worker regulations (PTW). There is a tension between the PTW and the fixed terms worker regulations (FTW) created when the PTWR were amended to allow direct comparison between workers on fixed term part time contracts and those on permanent full time contracts.

In my particular case the Tribunal were happy to find that the fixed term contract had been lawfully terminated but would not allow the termination of the fixed term contract to be used to justify less favourable treatment based on the workers part time status. Now I can understand that certain factual situations will mean that justification on the basis of being engaged on a fixed term contract won't work. Nevertheless it came as quite a shock to have the Tribunal find against my client and say that in no circumstances could the fact of someones fixed term status be relied on as justification. This is despite there being clear government guidance to the contrary.

So with a sense of pique and with the client needing to clarify the matter we went off to the Employment Appeal Tribunal. It was Monday, the sun was shining and the Judge was making all the right noises and appeared to understand the importance of the point. I should have realised when the Appeal Tribunal had been out for over 30 minutes that things were not looking good.

Sure enough back come the Appeal Tribunal who then launch into a judgment that asks more questions than it answers. Yes we think the original Tribunal was wrong but no we don't see how this would have changed the decision and we are not setting down any guidance on this matter. Appeal dismissed!

So what do I now advise client's who have employed people on fixed term part-time contracts? It is back to the usual, 'this matter is not free from doubt and is likely to be determined on the facts of each case'. The type of advice a client does not want to hear and certainly not the advice that I thought I would be giving after the appeal!

Peter D

Update (29/10/08)

The appeal on this one has been lodged with the Court of Appeal and the client is presently considering its options.