Wednesday, 5 December 2007

This is my latest email bulletin I hope it is useful - on my site you will find a compromise agreement amongst other useful resources!

Subject: e-missive no.20

Employment E-Missive No.16 - New Law on Age Discrimination and All you Need on Witness Orders


by Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555

1. Redundancies and Consultation - Now Consult on the Closure
2. Can an Employer be Forced to Retire at 65? - Latest Position
3. Age Discrimination - Big Pension Case and 'intergenerational unfairness'.
4. Obtaining a Witness Order - Not as Easy as you Think!

A Legal Commentary Email.....
Charles Price specialises in Respondent and Claimant work in England and
Wales. This e-mail is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.

1) New Law - Redundancies and Consultation

Traditionally, the law has required employers to consult with employee representatives when 20
or more employees are being made redundant at one establishment within a 90 day period. The
meaning of 'consultation' however has been turned on its head by a new ruling. The EAT ruled
on 22nd October 2007 in 'UK Coal Mining Ltd v National Union of Mineworkers' that in a
business closure context "the obligation to consult over avoiding the proposed redundancies
inevitably involves engaging with the reasons for the dismissals, and that in turn requires
consultation over the reasons for the closure". In the case a coal mine with 300+ employees was
closed suddenly after a flood. The employees successfully complained that there had been no
consultation. An employment tribunal awarded maximum compensation.

Previously it has been the norm, that when it comes to consultation in such circumstances
this does not mean the employer has to consult about the reasons for the closure of a business even
if it is going to lead to redundancies. The traditional view was that this might be required in
continental Europe but not in Great Britain, a view supported by a High Court decision in 1993
(R v British Coal etc ex p Vardy) and generally accepted as correct.

The employer appealed, arguing that there was no duty to consult about the reason for the
dismissals and therefore no liability. The EAT rejected this argument and dismissed the appeal.

In coming to its decision the EAT identified the nexus between the dismissals and the reason for
closure as vital. The tribunal also recognised that under the relevant law it is the proposed
dismissals that must be the subject of consultation, not the closure itself. However if, as was
the case here and indeed would normally be the case, closure of a business and dismissals of staff
are inextricably interlinked then the duty to consult necessarily includes a duty to consult over
the reasons for the closure.

The EAT accepted that there could be cases when this duty to consult about the closure itself
would not arise. If, for example, an employer planned a closure but believed that redundancies
would nonetheless be avoided there would be no need to consult over the closure decision itself.
However, as the EAT said, that "is likely to be a very exceptional case".

2) Can an Employer Force an Employee to Retire at 65? (as appearing on

The overall effect of the Employment Equality (Age) Regulations 2006 in respect of retirement is
that from 1st October 2006, enforced retirement below age 65 is generally considered as unfair
dismissal. There is a specific exemption which allows enforced retirement at age 65 or over if
correct procedures are followed (contained in the Age Regulations 2006 Regulation 30). The
position is not without complication as Age Concern are in the process of challenging the position
in court.

Until 1st October 2006 the general rule was that there was an absolute bar against an over 65 year
old employee claiming unfair dismissal. From 1st October 2006 the position has been different. The
Employment Rights Act 1996 s.109 has been repealed and the 65 year age limit for unfair dismissal
claims has been abolished but it has been replaced by other rules which mean that enforced retirement
at age 65 or over is generally not unfair dismissal.

The Employment Equality (Age) Regulations 2006 SI 2006/1031 provide for a default retirement age of
65, subject to certain conditions. The conditions include that the employee must be given 6 months'
written notice which must inform him that he has the legal right to require the employer to consider
a request to defer his retirement. If the conditions are not fulfilled then even though retirement
takes place on or after the employee's 65th birthday the employer will be liable to a penalty and
in some cases the enforced retirement can now be unfair dismissal.

The practical effect of the regulations is that the following steps are involved in a retirement on
or after 1st October 2006:

1) 6-12 months before intended retirement date the employer must give the employee written notice
of that date and of the right to request to continue to work after that date;

2) 3-6 months before intended retirement date the employee can make a written request to continue
to work after that date, specifying whether or not this is for a particular period or until a particular

3) if the employee makes a written request as above, a meeting must be held with her to discuss
it unless it is simply granted without question.

4) if the request is granted the employer must remember to put the revised contract terms in writing.

In July 2007 the English High Court settled questions for consideration by the European Court of Justice
following an application by the ‘HeyDay’ organisation (part of Age Concern) challenging the legality of
the 65 year mandatory retirement part of the UK Regulations.

The Employment Equality (Age) Regulations, which came into force on 1 October 2006, contain a number of
important exceptions. ‘Age Concern’ alleged that many of those exceptions are not permitted by the European
Framework Directive on equal treatment. If the European Court of Justice (ECJ) agrees, then the UK government
will have to rewrite the age regulations.

Heyday, part of Age Concern, presses on with its challenge to the Government's default retirement age of 65 -
but it faces an increasingly uphill struggle. The ECJ considered a very similar claim against Spain on 16th
October. In the case of Palacios de la Villa v Cortefiel Servicios SA SeƱor de la Villa claimed that a Spanish
law allowing compulsory retirement at age 65 was in breach of EU Directive 2000/78 (which is the European
directive behind the UK's 2006 regulations). The ECJ disagreed with him. Such measures in national legislation
could be justified if they seek to achieve a legitimate aim relating to employment policy and the labour market,
and the means are neither inappropriate or unnecessary for the purpose.

It was recently reported that only around 900 cases have been brought to tribunals on the basis of age
discrimination. But if we follow the example of the Irish who have had anti-age discrimination legislation
in place longer than we have, we may well see up to a third of all discrimination claims brought being based on age.

It is important that professional legal advice is sought when drafting policies and dealing with legal disputes.

3) Age Discrimination - Freshfields Bruckhaus Deringer

This high profile case has seen the thorny issue of 'legitimate aim' brought up in the context of Age Discrimination.
Direct discrimination will be lawful if the treatment in question is shown to be a ‘proportionate means of achieving
a legitimate aim’ Reg 3(1). Proportionate is to be equated with ‘appropriate and necessary’, and involves a
balancing exercise between the discriminatory impact of the treatment in question and the legitimate aim of the
employer, according to the DTI. The guidance states that a balancing exercise must be undertaken between the
discriminatory impact of the treatment in question and the legitimate aim of the employer.

In a potentially multi million pound claim, Peter Bloxham took his former firm, Freshfields Bruckhaus Deringer, to an
employment tribunal. He alleged that the changes to the pension arrangements for partners discriminated against him on
the grounds of age. In its judgment, the ET was with Mr Bloxham in finding that he suffered less favourable treatment
compared with other partners, but still found that the discrimination was justified. Freshfield's
aim was the reform of a costly and unfair pension system - they wanted to try and reduce what the tribunal called
"intergenerational unfairness" (para 117). This was a "wholly legitimate" aim, and Freshfields's approach was justified
as being a proportionate means of achieving it.

Mr Bloxham, it is reported has stated that he is considering an appeal, so watch this space!

4) Obtaining a Witness Order

In the case of, DADA v METAL BOX COMPANY LTD 1974 IRLR 251 the tribunal found that there are only two matters of which
tribunals should be satisfied before they issue a witness order. The first is that the witness prima facie can give
evidence which is relevant to issues in dispute. For that purpose they will no doubt wish to ask the applicant what
evidence can be given by the person who is the proposed subject of the witness order. We do not suggest that the
tribunal should ask the Claimant to give a full proof of that evidence, but applicants should indicate the subject
matter of the evidence and show the extent to which it is relevant. The second is that it is necessary to issue a witness

WILCOX v HUMPHREYS AND GLASGOW LTD QBD 19.5.75 A chairman's refusal of witness order in respect of certain documents
which could affect the result of the case was deemed an error of law. W was summarily dismissed for failing to observe
prescribed safety precautions. He complained that his dismissal was unfair because safety precautions were generally
ignored throughout the company. To argue his case, he applied for a witness order in respect of an official and certain
documents from the Northern Gas Board concerning the respondents' safety record. The Industrial Tribunal (1) after first
granting the request, decided that the documentary evidence was not necessary and refused to order the production of the
documents; The tribunal dismissed the application.

The High Court, to whom W appealed, allowed his appeal. The crucial quote from Philips J was:

'The first question must be whether that evidence, had it been produced, would have been relevant. On the whole I think
it would, because it is not a simple question of finding whether the particular Monday morning safety precaution of
testing for pressure was disregarded by W and, if it was, saying that his dismissal was justified. In a case where it
was to some extent common ground that main safety precautions were from time to time disregarded, where it is common
ground that to some extent what might be called safety 'corners' were being cut, it is plainly the case that it is all
a question of degree, a question of weighing up whether in terms of the Act, against that background, having regard to
equity and the substantial merits of the case, it was reasonable peremptorily to dismiss him. And so, it is impossible
to say that this evidence is irrelevant ...' Philips J

Other Vital Information

Failure to attend the tribunal when under a witness order is a criminal offence. The tribunal has power to order the attendance
of a witness to give evidence or produce documents under Schedule 1, rule 10(2)(c) of the Employment Tribunal (Constitution and
Rules of Procedure) Regulations 2004.

When applying for an order under rule 11(3), you must explain how the order would assist the tribunal in dealing with the
proceedings efficiently and fairly. The letter should therefore state briefly why the witness’s evidence is relevant to the
case. It should not set out all the witness’s proposed evidence, but say just enough for the tribunal to understand why s/he
is needed as a witness.

It is necessary to give the home or work address of the witness. This is where the tribunal will send the order. It is not
sufficient to request an Order on the basis that the witness in question can be cross-examined.

Witness orders will not be issued where a witness is willing to come to the tribunal without one. The letter must therefore
state that the witness is unwilling to come to the tribunal, or at least that s/he is unwilling to come without an order.


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By Charles Price, barrister No5 Chambers

The author, Charles Price is an employment barrister of 7 years call.
This e-missive is distributed to over 1500 employment
solicitors in England and Wales. Please Contact me if you have any comments.

1 comment:

Unknown said...

I read with interest your blog on witness orders. Could a company challenge the appropriate nature of such witnesses and if so how. Especially if the company believes that the witness would have no bearing on the claimants case and would add significant cost to the company.