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
Friday 20 March 2009
Ivory Towers Prt 2
Another quick update Chambers has finally got a separate DPA page up and running. I am also getting a short article published in the Southampton Echo to inform people about this relatively new method for accessing a barrister.
http://www.12collegeplace.co.uk/direct-public-access
Peter D
http://www.12collegeplace.co.uk/direct-public-access
Peter D
Thursday 19 March 2009
All change please........
Every so often your sense of certainty is shaken. For most people this usually involves profound life changing experiences but for lawyers who don’t get out much this usually comes in the form of appeal court decisions. Such a decision is Home Office v Evans [2008] IRLR 59 (Evans). I found this authority whilst preparing the notes that have kept me away from my blog over the last few weeks.
Evans involved the use of an express mobility clause to avoid making the employee redundant. This clause permitted the Home Office to transfer the employee to any civil service post whether in the UK or abroad. This case involved the proposed redeployment of immigration officers from Waterloo to Heathrow when the international station closed.
The question for the Court of Appeal was how redundancy interacts with a mobility clause. The Court took a practical approach and found that where such a clause existed, the activation of the clause to avoid redundancy was permissible. This decision appears to be an unwelcome return to the contract test. After all there was no longer a requirement for immigration officers at Waterloo as the terminal had closed.
Added to this is the Court of Appeals apparent failure to take account of High Table Ltd v Horst [1997] IRLR 513 a case where the employer was not permitted to use a mobility clause to avoid paying a redundancy payment to an employee who had always worked at the site which was being closed.
As Lord Justice Peter Gibson remarked at paragraph 22:
“It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims.”
Evans may best be explained on its particular facts nevertheless this case does raise the obvious question. If the definition of redundancy is so simple as explained by Lord Irvine in Murray v Foyle Meats [1999] IRLR 562 then why did the Court of Appeal find it so hard to apply it in this case?
Peter D
Evans involved the use of an express mobility clause to avoid making the employee redundant. This clause permitted the Home Office to transfer the employee to any civil service post whether in the UK or abroad. This case involved the proposed redeployment of immigration officers from Waterloo to Heathrow when the international station closed.
The question for the Court of Appeal was how redundancy interacts with a mobility clause. The Court took a practical approach and found that where such a clause existed, the activation of the clause to avoid redundancy was permissible. This decision appears to be an unwelcome return to the contract test. After all there was no longer a requirement for immigration officers at Waterloo as the terminal had closed.
Added to this is the Court of Appeals apparent failure to take account of High Table Ltd v Horst [1997] IRLR 513 a case where the employer was not permitted to use a mobility clause to avoid paying a redundancy payment to an employee who had always worked at the site which was being closed.
As Lord Justice Peter Gibson remarked at paragraph 22:
“It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims.”
Evans may best be explained on its particular facts nevertheless this case does raise the obvious question. If the definition of redundancy is so simple as explained by Lord Irvine in Murray v Foyle Meats [1999] IRLR 562 then why did the Court of Appeal find it so hard to apply it in this case?
Peter D
Wednesday 18 March 2009
The old ones are always the best
Having spent much of my free time over the last few weeks putting my seminar notes together I have been neglecting the blog.
Whilst doing the research for my notes I remembered how important some cases are despite their age. The case in question is Williams v Compair Maxim Limited [1982] IRLR 83 which was decided over 25 years ago. Unlike many cases decided in the late 70s and early 80s the jurisprudence in this case has stood the test of time and is as relevant today as it was all those years ago.
The facts of the case are not that important what are important are the principles that Browne-Wilkinson J summarised in paragraph 19 of the judgment:
“1.The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.
These principles should be departed from only where some good reason is shown to justify such departure.”
I am not sure there is much more I can say on the matter. So instead what I shall do is direct you to paragraph 18 of the same judgment! Where the analysis of S 98(4) as it is now and how it works in a redundancy situation makes us realise that sometimes the old ones are in fact the best.
‘... there are only two relevant principles of law arising from that subsection [now S 98(4). First, that it is not the function of the industrial tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy “as a sufficient reason for dismissing the employee”, i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal.’
Peter D
Whilst doing the research for my notes I remembered how important some cases are despite their age. The case in question is Williams v Compair Maxim Limited [1982] IRLR 83 which was decided over 25 years ago. Unlike many cases decided in the late 70s and early 80s the jurisprudence in this case has stood the test of time and is as relevant today as it was all those years ago.
The facts of the case are not that important what are important are the principles that Browne-Wilkinson J summarised in paragraph 19 of the judgment:
“1.The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.
These principles should be departed from only where some good reason is shown to justify such departure.”
I am not sure there is much more I can say on the matter. So instead what I shall do is direct you to paragraph 18 of the same judgment! Where the analysis of S 98(4) as it is now and how it works in a redundancy situation makes us realise that sometimes the old ones are in fact the best.
‘... there are only two relevant principles of law arising from that subsection [now S 98(4). First, that it is not the function of the industrial tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy “as a sufficient reason for dismissing the employee”, i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal.’
Peter D
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