Our blog is being transferred and can now be found on our new Direct Public Access website from 1st November 2013:
http://12cpbarristers.co.uk/employment-law
Monday 21 October 2013
Thursday 9 July 2009
Bye for now
I am finding it difficult to post in two places. You will find all my more recent postings at:
http://12cpemploymentteam.blogspot.com/
Once I have decided which one I want to continue in the longterm I shall transfer everything to one blog and close the other.
Peter D
http://12cpemploymentteam.blogspot.com/
Once I have decided which one I want to continue in the longterm I shall transfer everything to one blog and close the other.
Peter D
Tuesday 28 April 2009
Back in from the Novacold............
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):
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:
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.........
Thursday 23 April 2009
Not bl**dy likely!
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 (follow link below) 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!
http://www.employmentappeals.gov.uk/Public/Upload/08_0454rjfhLBRN.doc
Peter D
The case (follow link below) 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!
http://www.employmentappeals.gov.uk/Public/Upload/08_0454rjfhLBRN.doc
Peter D
Wednesday 1 April 2009
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.
This was the position that Bernadette Cadman found herself. 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 made it clear that for an employee to succeed the employee must show that the employer has stepped 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
This was the position that Bernadette Cadman found herself. 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 made it clear that for an employee to succeed the employee must show that the employer has stepped 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
Friday 20 March 2009
Notes Online
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
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
Ivory Towers Prt 2
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
http://www.12collegeplace.co.uk/direct-public-access
Peter D
Thursday 19 March 2009
All change please........
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 had closed.
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
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 had closed.
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
Wednesday 18 March 2009
The old ones are always the best
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 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
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 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
Wednesday 25 February 2009
Down from my ivory tower...........
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.I
n 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
Monday 16 February 2009
A home away from home..........
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
Thursday 29 January 2009
My own domain
This a little off topic but I was interested to find out that http://www.peterdoughty.co.uk/ was available as a domain name. At the moment Active 24 are trying to work out how to redirect to this blog from this domain. What did surprise me is how many domain names related to the law are still available having recently snapped up http://www.employment-barrister-direct.co.uk/ and other similar web addresses.
If you click on this link you are immediately sent to the employment team page on the 12 College Place website. Try it, it is like magic but more importantly for our business it will mean more hits on our website and hopefully more work.
I hope to have my own website up and running sometime this year. This website will be directed towards the public at large not just professionals so that I can take advantage of direct public access in the employment field.
For those who don't know about direct public access follow this link to the Bar Councils website: http://www.barcouncil.org.uk/guidance/publicaccessinformationforlayclients/
I am a convert. Any business that fails to make its mark on the Internet will be seriously damaged in the long term.
Peter D
If you click on this link you are immediately sent to the employment team page on the 12 College Place website. Try it, it is like magic but more importantly for our business it will mean more hits on our website and hopefully more work.
I hope to have my own website up and running sometime this year. This website will be directed towards the public at large not just professionals so that I can take advantage of direct public access in the employment field.
For those who don't know about direct public access follow this link to the Bar Councils website: http://www.barcouncil.org.uk/guidance/publicaccessinformationforlayclients/
I am a convert. Any business that fails to make its mark on the Internet will be seriously damaged in the long term.
Peter D
Wednesday 28 January 2009
Posting a deux
Have just done another bulk posting from January's Employment Team postings. Sorry for the delay. Will do better next time!
Peter D
Peter D
That is so gay........
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
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
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