Second time unlucky!

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

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

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

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?

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............

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

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