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!
Tuesday 23 December 2008
Monday 15 December 2008
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
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
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
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
Monday 17 November 2008
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
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
Wednesday 12 November 2008
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/
http://www.12collegeplace.co.uk/
Tuesday 11 November 2008
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
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
Wednesday 5 November 2008
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
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
Tuesday 21 October 2008
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/.
You don't always get what you want.......
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!
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
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!
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!
Tuesday 14 October 2008
My First Blog
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.
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.
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