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

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

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

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

Every so often you come across a statement of the law and you think that might work in Lincoln’s Inn but not on a wet Thursday afternoon in Croydon!

As I was reading my IRLRs this month I came across the case of SCA Packaging Limited v Boyle [2008] NICA 48 (link below). This case dealt with the question of whether a disability was likely to have a substantial effect. On the question of what did ‘likely’ mean in this context the Court of Appeal came up with this gem:

“The meaning of likelihood under the DDA

[18] What is meant by the words "likely to have a substantial adverse effect" is not entirely clear. The word "likely" may mean probable but the dictionary definition includes "such as might well happen". The meaning to be given to the word when it is used in a statute will depend upon the statutory context. Thus, for example, in Three Rivers District Council v Bank of England (No 4) [2002] 4 All ER 881 in the context of an application under CPR 31.17.(3)(c) relating to disclosure of documents against a non-party on the grounds that the documents were likely to support the case of the applicant or adversely affect the case of one of the other parties, the Court of Appeal held that the word "likely" under the relevant rules meant "may well" rather than "more probable than not". Having regard to the intention of the Civil Procedure Rules a high test requiring proof on a balance of probabilities would be both undesirable and unnecessary. The word 'likely' connoted a rather higher threshold than 'more than fanciful' but a prospect could be more than merely fanciful without reaching the threshold of more probable than not. In Transport Ministry v Simmons [1973] 1 NZLR 359 at 363 McMullin J said:"An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen. But it must be more than a mere possibility.

[19] The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word "likely" is used in the sense of "could well happen".”

The observations of Michael Rubenstein in the IRLRs as to the origins of this particular meaning of likely were helpful. Nevertheless it left me feeling uncertain as to what this means for the Claimant or the Respondent in the Employment Tribunal. It is relatively easy for a Tribunal to grasp the happening of an event being more likely than not. This is a familiar concept to a Tribunal but what level of proof is required to demonstrate that something ‘could well happen’? In percentage terms is it 30 or 40 or perhaps 45.5?

The matter is made more uncertain as the guidance on the meaning of ‘likely’ in the 2006 DDA Guidance clearly sets out that ‘likely’, in the context of long term, means more probable than not (see DDA Guidance C2).

So the Court of Appeal decision not only conflicts with the Guidance but also sets an uncertain test, which brings me back to the rainy Thursday afternoon in Croydon. You are for the Claimant and you are trying to explain to a Tribunal that although they thought they knew what ‘likely’ means in fact it means something different in the context of this particular matter because………………

Good luck!

Peter D

http://www.bailii.org/nie/cases/NICA/2008/48.html

Schrödinger's cat and the ECJ

This concept has always caused my head to hurt. It involves an experiment where only by observation can one know the outcome. In quantum theory it is apparently called a superposition. A superposition is where something can be both things at once. In the case of the cat it is in a position of being both alive and dead at the same time!

If you want to know more go to http://www.mtnmath.com/faq/meas-qm-3.html.

What the ECJ have decided in relation to holidays and sick pay is that there is no superposition (see Mrs C. Stringer & Others v Her Majesty’s Revenue and Customs C -520/06). You cannot be both sick and on holiday. This means that during any period of sick leave your entitlement to holiday continues to accrue. On your return you can either take the holiday or if your employment is terminated then you are paid money in lieu.

May be not an entirely unexpected outcome bearing in mind the problems of being in two states of existence at once but certainly troubling for employers. What this would appear to mean is that someone who is unable to work may go away for a break (a frequent occurrence with 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?

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

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?

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

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........

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........

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

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

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.........

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

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