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