My Employment Law

Bye for now

2009-07-09T11:50:00.004+01:00

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

Notes Online Part 2

2009-04-28T16:52:00.007+01:00

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

2009-04-28T16:45:00.004+01:00

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!

2009-04-23T11:11:00.002+01:00

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 (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

2009-04-01T09:24:00.002+01:00

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.

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

Notes Online

2009-03-20T12:45:00.001Z

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

Ivory Towers Prt 2

2009-03-20T12:44:00.001Z

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

All change please........

2009-03-19T09:00:00.002Z

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

The old ones are always the best

2009-03-18T15:47:00.001Z

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

Down from my ivory tower...........

2009-02-25T11:56:00.003Z

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

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

2009-02-16T15:37:00.003Z

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

My own domain

2009-01-29T16:31:00.000Z

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

Posting a deux

2009-01-28T17:39:00.000Z

Have just done another bulk posting from January's Employment Team postings. Sorry for the delay. Will do better next time!

Peter D

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

2009-01-28T17:37:00.000Z

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

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

2009-01-28T17:32:00.000Z

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

Schrödinger's cat and the ECJ

2009-01-28T17:30:00.000Z

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 people are recuperating after operations) 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

Is that your case madam?

2009-01-28T17:25:00.001Z

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

ELAAS

2008-12-23T15:27:00.000Z

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!

How is it going Pete?

2008-12-15T11:07:00.000Z

I keep on forgetting to blog on both my personal as well as the Team blog. So whilst I will try and keep this blog up to date you will find all my recent blogging at:

http://12cpemploymentteam.blogspot.com/

Peter D

Holidays

2008-12-15T11:03:00.000Z

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

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

2008-12-15T11:02:00.000Z

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

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

2008-11-17T12:03:00.000Z

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

Employment Seminar

2008-11-12T11:25:00.000Z

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 for free 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

2008-11-11T17:26:00.000Z

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 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

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

2008-11-05T16:33:00.001Z

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

Employment Team@12CP

2008-10-21T12:36:00.000+01:00

I am also publishing my thoughts alongwith other lawyers on another blog run by our Employment Team it is at http://12cpemploymentteam.blogspot.com/.

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

2008-10-21T12:31:00.000+01:00

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 someone’s fixed term status be relied on as justification. This is despite there being clear government guidance to the contrary.

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.

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!

Foreign Planes

2008-10-21T12:30:00.001+01:00

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 protection in respect retirement.

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.

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!

My First Blog

2008-10-14T14:38:00.000+01:00

It seems to me that even barristers need to bring themselves into the 21st century and today is the day that I make the leap. These are my ramblings on recent employment law issues that I think are important to ordinary people not just lawyers.

One step forwards two steps back.................

I lately found myself questioning where we are going when it comes to disability discrimination. It is now clear that Archibald v Fife Council was probably the 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 disabled Claimant to win.

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 reason relating to disability claims.

Is this a bad thing? In the long run I hope not because the law will be changed and perhaps improved upon to give more comprehensive rights to the disabled. In the meantime there will be many people missing out who previously would have succeed in their claims under the Disability Discrimination Act 1995.