Sunday, 20 December 2009

Compensation Maximum Falls!

The annual review of compensation limits has resulted in a reduction to the maximum compensatory award limit.

From 1st February 2010, the maximum compensatory award drops from £66,200 to £65,300.

Thursday, 26 November 2009

Cardiff Tribunals Starting Late

A new pilot scheme means that The Cardiff tribunal will remain open for simple hearings one day a week between 6 and 8 pm. Over time rates come to mind !

Thursday, 12 November 2009

The Test for Escaping Reasonable Adjustment Obligations

Secretary of State For the Department for Work and Pensions V Alam [2009] UKEAT (9 Nov 2009)

The Tribunal was required to consider whether the provisions of section 4A(3) and 4A(3)(b) of the DDA applied so as to show that the Respondent was not under any duty to make reasonable adjustments.

They provide:

"(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not be reasonably expected to know.–

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

as a matter of statutory interpretation and giving the language of those provisions their ordinary meaning, that to ascertain whether the exemption from the obligation to make reasonable adjustments provided for by section 4A(3) and 4A(3)(b) applies, two questions arise. They are:

1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: "no" then there is a second question, namely,
2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?
If the answer to that second question is: "no", then the section does not impose any duty to make reasonable adjustments. Thus, the employer will qualify for the exemption from any duty to make reasonable adjustments if both those questions are answered in the negative. That interpretation takes proper account not only of the use, twice, of the word "and" but also of the comma after "know" in the second line of section 4A(3).

Section 4A(1) of the DDA provides:
"(1) Where –
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled , it is the duty of the employer to take such steps as it is reasonable , in all the circumstances of the case, for him to have to take in order to prevent the provision , criterion or practice , or feature , having that effect."

Wednesday, 4 November 2009

Environmental Crusader 'Possibly' Protected Under Employment Equality (Religion and Belief) Regulations 2003

Yesterday I happened to be in the same court room at the EAT when Mr Justice Burton handed down a judgment, which had journos running for the phone.

Mr Nicholson has claimed that his dismissal n the grounds of redundancy was an act of discrimination on grounds of 'philosophical belief'. The belief his barrister argued fell under the definition of Employment Equality (Religion and Belief) Regulations 2003 SI 2003/1660 (as amended by Equality Act 2006 s.77) as "any religious or philosophical belief".

Tim Nicholson, 42, of Oxford, was made redundant in 2008 by Grainger Plc in Didcot, as head of sustainability.
He said his beliefs had contributed to his dismissal and in March a judge at a preliminary hearing ruled that he could use employment equality laws to claim it was unfair. Grainger appealed against this as it believed his views were political.

The BBC reports the facts in its news story including a quote from Grainger:

'Grainger corporate affairs director Dave Butler said:

"This decision merely confirms that views on the importance of environmental protection are capable of amounting to a philosophical belief.
"Grainger absolutely maintains, as it has done from the very outset of these proceedings, that Mr Nicholson's redundancy was driven solely by the operational needs of the company during a period of extraordinary market turbulence, which also required other structural changes to be made within the company.'

John Bowers QC for Grainger argued that Mr Nicholson was describing a scientific view rather than a philosophical belief, which themselves, 'are not capable of scientific proof'.

The EAT (Burton J. sitting alone) has changed but not overruled, the employment judge's decision and has agreed that the case can go to trial on the basis that “the asserted belief held by the Claimant upon which he bases his claim of discrimination is capable of being a belief for the purposes of” the 2003 Regulations.

Emplaw reports: Mr Nicholson will need to provide (i) evidence directed to the genuineness of his belief; (ii) evidence that it is a belief rather than "an opinion or viewpoint based on the present state of information available" and (iii) evidence from which the Tribunal could conclude that his dismissal was on the grounds of that belief.


The Regs:

Wednesday, 30 September 2009

No of Tribunal Cases Down on Last Year

The no of ET cases has fallen - there are some interesting stats here such as 32% of cases are conciliated via ACAS.

Tuesday, 29 September 2009

Hot off the Press - At Last Vento Guidelines Uplift!

The Employment Appeal Tribunal has, yesterday, handed down its judgment in the case of Da'Bell v NSPCC.

HHJ McMullen QC, presiding, has held that Vento damages (for injury to feelings in discrimination cases) should be increased to reflect inflation as follows:-
lower band: £ 5,000 to increase to £ 6,000
middle band: £ 15,000 to increase to £ 18,000
upper band: £ 25,000 to increase to £ 30,000

Injury to feelings awards are not punitive but represent suffering. Exemplary damages are available if public servants are involved and aggravated damages if a party has pursued a case unfairly and aggressively.

Monday, 28 September 2009

Breach of grievance procedure uplifts paid on what?

The EAT has given judgment in the case of Tim Arrow & Sons v Olney, which is authority for the proposition that where a Tribunal award includes an uplift, if the respondent pays the claimant a sum to cover the award before Judgment, the uplift is calculated on the outstanding sum due, rather than the total amount of the award.

The Learned Judge was not happy with the result:

'Certainly it goes against all instinct to allow a party to get away from the statutory uplift merely by paying the sum due at the last possible moment before the award is made. But we are stuck with the words of Section 33(3):
"It must, subject to subsection four, increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all circumstances to do so, increase it by a further amount, not so as to make it a total increase of more than 50%."'

Monday, 14 September 2009

Labour to Extend Parental Leave

The government has dropped plans to improve maternity leave but in 2011 all fathers will be entitled to 6 months parental leave.

Currently fathers can only take two weeks' paternity leave. Under the new arrangements parents will have to give employers at least eight weeks' notice as to whether it will be the mother or father who will take leave.

Friday, 11 September 2009

Postal Strikes Continue

More strikes are on the way - Part of the problem the Union's dislike of plans to employ more part time workers

Wednesday, 9 September 2009

'Where did he kiss you?'

It was highlighted in no uncertain terms the other day that you must plan your questions with sufficient detail when cross examining. In the case in question, a Claimant from Pakistan had to meet his truelove covertly for fear of persecution. The opposing advocate attempted to ask the Claimant where this location was but actually phrased it as; 'where did he kiss you?' The Judge cracked a smile fearing the worst.


A WOMAN HAS BEEN SACKED FOR USING CAPITALS IN HER EMAILS - I am glad to say that this lunacy originated in New Zealand and that she was found to be unfairly dismissed!

When is a Partner not an Employee?

A useful new article focussing on tax as a factor.

Thursday, 3 September 2009

So Long Stratford ET

No more trips to Stratford.

From 30th September 2009, the London (East) tribunal moves to new premises in London E14 (Docklands, near Canary Wharf). The old hearing centre closes for business on 24th September.

Wednesday, 2 September 2009

Tribunal Chaos

Have you had cases adjourned due to a lack of Judges or sat for hours on a 'floating case' ? I have had the dubious honour of suffering both recently at Birmingham tribunal! The idea of stockpiling smaller cases and distributing them amongst a few judges is a good way of saving tax payer's cheese but surely the allocation should be worked out in a better way - get the cases likely to last 5 minutes on first! I know some reps will fib to get on first but surely the best way of dealing with cases expeditiously is to ask the reps how long their case is likely to last and get them dealt with first ! !

Tuesday, 1 September 2009

EAT gets tough on fibbers! A look at costs law!


A Tribunal refused to award expenses where it dismissed claimant's contractual claim. The Respondent had refused to pay certain funds when they found out that the Claimant had breached a confidentiality clause in her compromise agreement. The claim was based on the claimant's assertion that she had not breached the confidentiality clause in a compromise agreement, an assertion repeated by her in evidence before the Tribunal but which was not accepted. In rejecting her evidence it found that, notwithstanding her denials, she had made prohibited disclosures to two separate people.

However, in a 2nd judgment, the Tribunal refused the respondents' application for expenses which was made under Rule 40(2) and (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. It found that the claimant had not acted unreasonably, giving the following explanation for that conclusion in its paragraphs 46 and 47:

46. Did she act unreasonably?
47. In the Tribunal's view she did not. Mr Kennedy contended that she was not guided by or based on logic or good sense. However on the basis that she argued that she had not told Mr Rankeillor or anyone else of the fact or terms of the agreement and bearing in mind the respondent company was adhering to its position of not making a payment the Tribunal is not able to say that the claimant acted unreasonably by requiring the respondent company to prove the allegations that she had breached the terms of the agreement."

The EAT found that In these circumstances the Tribunal was in error in failing to find that the claimant acted unreasonably in bringing and conducting the proceedings and should have made an award of expenses against her. The EAT referred to another lying case:

A Tribunal was asked to make an award of expenses in the case of Daleside Nursing Home Ltd v Mathew UKEAT/0519/08. There, the claimant had alleged that she was the victim of explicit racial abuse during a telephone conversation; she said that she had been called a "black bitch". The Tribunal did not believe her. The respondents applied for costs but the Tribunal refused the application finding that the claimant had not acted unreasonably; she had genuinely felt that she had a claim but was "merely wrong" and lost. On appeal to this Tribunal, that finding was reversed. A costs order should have been made. At paragraph 20, Wilkie J said:
"In our judgment, in a case such as this, where there is such a clear-cut finding that the central allegation of racial abuse was a lie, it is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the heart of the claim does not constitute a person acting unreasonably."


Thus, the task for the Tribunal is to determine firstly whether the party against whom the award is sought has, in any way, acted as described in Rule 40(3) and if he has, secondly, determine whether or not it is appropriate to make an award of expenses. The amount of any such award is then determined under Rule 41, subject to a current maximum of £10,000.

The new law is pretty lenient on lying litigants - being long in the tooth I remember pre 2004 when the means of a party were not considered when dealing with costs and a fibbing litigant had to sell a house when handed a hefty costs bill!

[2009] UKEAT 0014_09_0807 / Appeal No. UKEATS/0014/09

Monday, 24 August 2009

Employer's Honest Mistake Cannot be a Fundamental Breach

Case in Point:

Cantor Fitzgerald International v Callaghan and ors, [1999] ICR 639, CA (and [1999] IRLR 234) is a famous authority to the employment hack but easily forgotten when looking for a case where the employee is looking to claim constructive dismissal on the basis that the employer has not paid them (albeit accidentally)

The ET will always look at the circumstances of the case and it is likely that the employer would only become prone to a finding of fundamental breach and thus constructive dismissal if the accident repeated itself. This case can be used as an authority to protect the employer when accidents has happened. Find it for free on the Baillie website!

In his judgment in the earlier Cantor Fitzgerald case Lord Justice Judge said this:
"In my judgment the question whether non-payment of agreed wages or interference by an employer with a salary package is or is not fundamental to the continued existence of a contract of employment depends on the critical distinction to be drawn between an employer's failure to pay, or to delay in paying, renewed remuneration and his deliberate refusal to do so. Where the failure or delay constitutes a breach of contract, depending on the circumstances this may represent no more than a temporary fault in the employer's technology, an accounting error or simple mistake, or illness, or accident, or unexpected events (see, for example, Adams v Charles Zub Associates Limited [1978] IRLR 551). If so it would be open to the court to conclude that the breach did not go to the root of the contract. On the other hand if the failure or delay in payment were repeated and persistent, perhaps also unexplained, the court might be driven to conclude that the breach or breaches were indeed repudiatory.

Tuesday, 18 August 2009

Dont Seek to Punish with Injury to Feelings Awards!

Case in Point - It has been made clear in recent case law that an injury to feelings award is not punitive. In Vento, Mummery LJ described the kind of matters which can be the subject matter of compensation for injury to feelings:
"Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression" (paragraph 50).

The tribunal in Woodward was influenced by the employer's discriminatory conduct and effectively adopted a punitive approach in assessing the amount of compensation for injury to feelings. The EAT confirmed that an injury to feelings award is not a punitive award Corus Hotels Plc v Woodward & Anor [2006] UKEAT 0536/05/1703, 17 March 2006.

Sunday, 16 August 2009

Pension Compensation

Case in Point : Defence v Cannock and others [1994] ICR 918

There are traditionally 2 approaches to pension compensation the 'simplified approach' and 'substantial loss approach'. The guidelines suggest that the substantial loss approach might be used if the claimant is unlikely to ever find another job, or a job with comparable pension benefits (or higher pay which compensates for this). It might also be used if the claimant has not yet found new employment, but is expected to do so.

The employment tribunal then needs to value all losses to retirement and beyond, before reducing the total loss by the percentage chance the claimant would not have continued to retirement in the lost career (under the principles set out in Ministry of Defence v Cannock and others [1994] ICR 918).

Tuesday, 4 August 2009

Superb 'Emplaw' offering

The most comprehensive aid to the employment lawyer is provided by The twice weekly 'updater' email bulletin is simply the best way of keeping updated there is. After meeting the owner Mr Henry Scrope recently, I can see why EAT judges and another 2000 employment lawyers subscribe to this little beauty. All relevant employment law articles and EAT judgments are summarised and served up in a neat little package! Go to Emplaw to find out more!

Working with Redundancy Suppliment to be printed in the Telegraph in early September

As we know redundancy law is more complicated than it first seems - this guide is likely to be printed on 8th September!!!

Thursday, 30 July 2009

Is a Claimant Laid off or Redundant?

For the first time ever this week I had a case involving Lay off law, which rarely raises its ugly head in a tribunal.

A lay off is a type of suspension with pay usually adopted by the employer in quiet times.

The law is clear on whether an employer has the right to lay a worker off. It depends on the employee's contract (inc. a collective agreement).


If an employee has finished 2 years continuous employment and is laid off for at least 4 consecutive weeks (or six non consecutive weeks in a 13 week period) he will be entitled to claim redundancy pay. Remember a week's notice is required.

Monday, 20 July 2009

England's cricket league plan falls foul of employment law.

The UK's version of the IPL cricket league has run into employment problems due to the requirement that each team is to have only one Indian player. This type of problem has raised its head before to some extent with the Bosman ruling.

The Times reported today that:

A document circulated for discussion at Wednesday’s meeting states: “The premise that Indian players could be centrally contracted with a requirement for one Indian player in each Division 1 team and assigned in a form of draft pick structure could be challengeable under the Race Discrimination Act/Restraint of Trade.

Thursday, 16 July 2009

When do the old grievance procedures apply?

Either the standard grievance procedure or the modified grievance procedure would apply and the action on which the grievance is based:

occurs entirely before 6 April 2009; or

begins on or before 5 April 2009 and continues beyond that date and the employee presents a complaint to an employment tribunal or submits a valid written grievance:

on or before 4 July 2009 for claims with a three-month time limit;

on or before 4 October 2009 for claims with a six-month time limit (claims for equal pay, statutory redundancy pay, and anything to which section 238 of TULRCA applies).

(Schedule to the Employment Act 2008 (Commencement No. 1, Transitional Provisions and Savings) Order 2008 (SI 2008/3232).)

Wednesday, 15 July 2009

More Time Limit Law - This Time Equal Pay and Tupe

Equal Pay fused with TUPE any lawyer's nightmare!

Thanks to Daniel Barnett's bulletin we see the news that:

The Court of Appeal has today handed down its decision in Gutridge v Sodexo , a case involving equal pay rights in the event of women being subject to a TUPE transfer .

By a majority, the Court of Appeal upholds Elias P.'s decision in the EAT, namely that:-

claims for equal pay losses, which have accumulated during employment up to the date of transfer of the undertaking to the transferee, must be brought against the transferee within 6 months of the date of the transfer (and will otherwise be barred by limitation rules); but,

claims for losses after the date of the transfer are able to proceed against the new (transferee) employer for up to 6 years' losses from the date of the claim. Claims must be pursued within 6 months of the termination of that employment.

Barnett states:
'Employers taking over public sector service contracts will therefore continue to be liable for equal pay claims long after the transfer has taken place for so long as those transferred remain employed, based on the earnings of comparators employed by the public authority before the transfer occurred'.

Of course there was law relating to deduction of wages and time limits earlier this month.

'Geek Lawyer' Blog Hits the Mark

Geek Lawyer Blog is an eye arresting, random law story generator

Leaked report suggests gangmaster laws to be extended to cut deaths in construction industry

It is likely that the net result of a Governmant inquiry into deaths in the construction industry means that Directors will be legally forced to ensure good health and safety management and gangmaster licensing will be extended to the construction industry.

'The Guardian' reports: 'The long-awaited 96-page report from Rita Donaghy, former head of the conciliation service Acas, also calls for the appointment of a full-time minister of construction and measures to make it easier to prosecute directors'.

Full article:

Thursday, 9 July 2009

Free Redundancy Calculator

Tuesday, 7 July 2009

Gov May Clamp Down on No Win No Fee in Employment Cases

Have a look at this paper!

Thursday, 2 July 2009

Proud to Feature in Onrec's Mag!

Harassment Article

SCA Packaging - New Case on Definition of 'Likely' in DDA

Judgments - SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland) [2009] UKHL 37

In order to decide whether an illness hoarseness caused by nodes on the vocal chords qualified as a disability for the purposes of the DDA 1995, the Court had to consider meaning of the word 'likely'! Under the DDA the word, likely appears 4 times but this case was concerned with 2 applications:

"Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out day-to-day activities, it is to be treated as having that effect if that effect is likely to recur."
(Paragraph 2(2), Schedule 1, DDA.)

Paragraph 6(1) – "an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect"

the House of Lords rejected a previous authority that 'likely' in the context of the DDA 1995 was taken to mean a 51% chance. The courts should apply the possibly lower standard of, 'could well happen'.

NB The other mention of 'likely' appears;

Paragraph 8(1) – where a person has a progressive condition "he shall be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in his having such an impairment"

Paragraph 2(1) – "the effect of an impairment is a long-term effect where… the period for which it lasts is likely to be at least 12 months; or it is likely to last for the rest of the life of the person affected"

Saturday, 27 June 2009

Useful website on Apprentices

If you are not sick of Alan Sugar there is a great new website which tells you all you need to know about this strange horse.

There is a useful FAQ feature which offers gems such as: 'If you wondered whether the minimum wage is applicable all employed apprentices must receive a wage of no less than £80 per week and this will rise to £95 from August 2009'.

Thursday, 25 June 2009

Equal Pay Decision

The case of South Tyneside v McAvoy has been resolved by the EAT. Contingent male claims may be issued prior to the resolution of their female comparators' claims. Thousands of male claims are currently stayed awaiting determination in this area. Contingent male claims are also entitled to claim arrears on pay for the whole period in respect of which their female comparators have been awarded arrears.

The Councils will appeal to the Court of Appeal.

New Referral Group for Employment Lawyers

Try registering with and look for:

'Employment Lawyers Networking & Referral Group' this allows you to send your news and jobs to approx.600 employment lawyers!

Tuesday, 16 June 2009

Can an employee have legal reps at a disciplinary hearing?

There is no general right under UK law for an employee to have a qualified legal representative at a disciplinary hearing. In Kulkarni v Milton Keynes Hospital NHS Trust [2008] IRLR 949 (QBD) the High Court refused to grant a declaration that a doctor was entitled to be represented by a lawyer at a disciplinary hearing.
However, employees may have a right to legal representation at the hearing in a few limited circumstances as a result of the Human Rights Act 1998 (HRA) and article 6 of the European Convention on Human Rights.

In R (on the application of G) v The Governors of X School & another [2009] EWHC 504 a teacher was held to be entitled to legal representation at a disciplinary hearing because of the seriousness of the allegations which, if upheld, would have led to his employer reporting him to the Secretary of State as being unfit to work with children.

Sunday, 14 June 2009

Working Time Regs breaches can now be pursued under deduction of wages claims

The House of Lords has decided in favour of the workers in in Stringer v HMRC, overturning the Court of Appeal.

This means that a worker can claim for a breach (under Regs 13,16 and 14) past the old 3 months aslong as the underpayments were part of a series under a deduction of wages claim rather than as well as under the Working Time Regulations.

Deducions of Wages claims are a great tool for the employment lawyer as it is one of the few grounds of action where you do not need a month's service to rely upon them.

The Regs:

Tuesday, 9 June 2009

BNP Election Twist

Interestingly, the Guardian today picked up on a nuance in the BNP election story. The party, now elected to the European Parliament would have to employ staff which can only be selected pursuant to equality laws. We all know the terms of the RRA S.4:

4. F1 ...applicants and employees.— (1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another—
(a)in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b)in the terms on which he offers him that employment; or
(c)by refusing or deliberately omitting to offer him that employment.
The Personal Data Guardianship Code was published jointly by the British Computer Society and the Information Security Awareness Forum (ISAF). The Personal Data Guardianship Code was published jointly by the British Computer Society and the Information Security Awareness Forum (ISAF) in response to the number of high profile data breaches in recent years.

The emphasis is on the data controller notifying the individual that their information is processed aswell as when it is collected.

Monday, 8 June 2009

The Best Employment Jobs Section Has Arrived!!!

In an attempt to offer the employment lawyer coming to this site everything they need I have added a Best Jobs button on the home page - Here you will find the juciest looking roles advertised in the week!!!!

Saturday, 6 June 2009

Employers often dont know they have free legal advice and representation

A recent survey showed that many employers who are used to shelling out a packet to lawyers are unaware of the fact that they are entitled to free legal advice and representation through their company insurance. However it is sometimes worth hiring a lawyer or HR pro who can give a 2nd opinion. I have known it for insurers to refuse a company support on the basis that they had no case of worth when the opposite was in fact true.

Monday, 25 May 2009

Circus Manager in Trouble

Thanks to Mr Robert Morton for the following dire gag:

A circus manager was found to be in breach of company disciplinary rules - he was dismissed on the basis of 'funfair dismissal'!

Saturday, 23 May 2009

Case in Point - Timing of Assessment of Disability Vital

The Employment Appeal Tribunal (EAT) has held that the proper time for assessing whether the complainant has a disability under the Disability Discrimination Act 1995 (1995 Act) is the time when the alleged act of discrimination took place, and not the time of the tribunal hearing.

Cruickshank v VAW Motorcast Ltd [2002] IRLR 24.

Thanks to my Secret Admirer

Thanks to the hidden employment lawyer wirting her blog for the following reference - (flattery will get you everywhere, well at least another mention)

Barrister Charles price likes me! I think he's an Adonis. Mmmm.

Tuesday, 19 May 2009

Today's Rolls Royce Judgment - Age Discrim?

Rolls Royce were allowed to use as a redundancy criteria the longest serving!

The managers at Rolls Royce, scored each worker under threat of redundancy against five categories – achievement, self-motivation, expertise, versatility and personal contribution. The scores would then be used to select redundancies with lower scorers facing redundancy first. A final score of 1 point was added to those who had worked there the longest.

This factor if used alone may well lead to age discrimination shouts!

Monday, 18 May 2009

How to Add a Legal Filter to Rambling ET1s

A useful way to create further particulars when trying to particularize a saga of misdemeanours (normally the stories going back years are connected with discrimination or constructive dismissal) without legal reference was suggested today: Simply set in columns:

1) Date
2)Facts alleged by Claimant
3)Respondent's answer to those facts
4) Type of breach/discrimination
5)R's legal defence
6)Comparator hypothetical/real if relevant
7)Respondents response to comparator

Not the most exciting of tasks but a necessary one!

Panel Members

Panel members shock horror! will soon be able to move from tribunal to tribunal cutting down on congestion hopefully.

Sunday, 17 May 2009

Accurist Watches Case Saves Time!

When considering an application to extend time, the Claimant and the Respondent are usually called to give evidence. For example, if it is being argued that the Claimant was late submitting an ET1 because he thought that internal procedures were being followed (a defence under the Employment Act 2002) then the Claimant must give evidence that he thought that matters could still be resolved and at least that he was engaging in an internal procedure. In the same way, The Respondent's Appeal Officer may be called and cross-examined with a view to proving that an internal procedure was being pursued.

This may well take a few hours and even a day to sew up. A new judgment however means that need not be in any particular form, thus saving time. The parties may deal with the matter by submissions if they wish!

Tuesday, 12 May 2009

Employers are to be banned from using tips and service charges to "top up" staff pay to meet the minimum wage from October, the government says!

Monday, 11 May 2009

The Equalty Bill

The enormous and long awaited Equality Bill was published on 27th April 2009.

If and when it becomes law, it will replace the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, much of the Equality Act 2006, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, and the Equality Act (Sexual Orientation) Regulations 2007 (all as subsequently amended), plus other ancillary pieces of legislation.

Perhaps the most controversial proposal is allowing positive discrimination in favour of disadvantaged groups in certain circumstances, notably in recruitment and promotion if candidates are otherwise equally qualified.

This 'equally qualified' condition is so subjective I can see it providing bread and butter for lawyers for years to come if introduced.

Great Quote from Mr Justice Elias on Old Procedures

The 2004 Dispute Resolution Regs were a disaster creating huge piles of litigation, something the government apparently failed to foresee.

In the words of Mr Justice Elias, the President of the EAT in Suffolk Mental Health Partnership NHS Trust v Hurst and ors, EAT 2008

"Rarely can legislation have been so counter-productive. Provisions designed to reduce tribunal disputes have spawned satellite litigation in which arcane and complex points of law have been argued, frequently so remote from reality that they would surprise even the most desiccated Chancery lawyer conjured up by the imagination of a Charles Dickens". have a great section on the new procedures!

Friday, 8 May 2009

UK Wins Working Time Opt Out

Personnnel Today have reproted that: 'Talks on the European legislation broke down without agreement for the final time in Brussels last night, meaning employees will be able to continue to work more than 48-hours a week if they choose.'

Tuesday, 5 May 2009

Irreverent Twittering Employment Law Blog

I like the post : 'The Heyday case is rubbish'

Tuesday, 28 April 2009

Bored of reading about the new ACAS changes watch this useful vid from Personnel Today!

Wednesday, 22 April 2009

Amidst the gloom Alastair Darling, the Chancellor of the Exchequer, has announced that the maximum of a week's pay for statutory redundancy payment purposes will increase from £350 to £380.

Accordingly, the maximum statutory redundancy payment will rise from £10,500 to £11,400. no mention of when this will happen however!

Thursday, 16 April 2009

Apparent Differences Between New ACAS Procedure on Disciplinary and Grievance Procedures

Briefly, the folowing seem to be the main differences with the new ACAS Code:

Failure to comply 25% adjustment only

Failure to raise grievance will not prevent claim being submitted

No extension of primary limitation period by raising grievance

Issuing of warnings must be handled in the same way as dismissals

New requirement that the employer must set out what action they will undertake as a result of the grievance procedure.

Employees must be informed of the right to be accompanied during disciplinary hearings.

Friday, 10 April 2009

A clever way to obtain more in a settlement for the Claimant

It was suggested to me recently that a great way to squeeze more out of a Respondent when negotiating on behalf of a Claimant is to get the Respondent to agree to pay the legal fees of the Claimant directly plus VAT divorced from the actual compensation figure.

The fees are payable directly to the Claimant's solicitors whilst the compensation is payable to the Claimant. Accordingly, the Respondent Company can then claim back the VAT back on the fees saving the Claimant being burdened by the VAT payment he would have to pay his solicitor on the fees. I have not checked out the legalities of this but a tax accountant friend said that seemed a legitimate way of doing things.

Wednesday, 11 February 2009

Pre Hearing Review Prep / clairvoyants

When defending in a PHR remember that no witness evidence is called. As the whole procedure has the aim of placing a financial deposit of up to £500 on the Claimant with a weak case you will often be up against an unrepresented Claimant who has not pushed their case through a legal filter of a Solicitor.

Remember to produce a counter argument for every point raised in the ET1 and know your case inside and out as the unrepresented Claimant is likely to add new evidence at the last minute or refer to something not brought up in the ET1.

Remember lastly your main purpose is to tell the judge why the Claimant has little prospects of success at a full tribunal.

Recently I had to explain why a skiving worker was likely to be held fairly dismissed at a full tribunal after he was found moonlighting when a company employed a PI to follow him. Srangely he was working as clairvoyant and crystal ball reader but hadn't seen it coming!!!

Tuesday, 27 January 2009

Cardiff Listing Congestion

Today in Cardiff my full hearing was listed for June - I would like to know what happened to the campaign to introduce an ET in Swansea!!!!!

Friday, 23 January 2009

CPD What Would You Like?

I am working on providing a CPD course in employment law. There is a real lack of employment related CPD on the Net. I would be grateful to hear from you whether you like videos, exams and what sort of price you expect to pay. Further, any topic ideas would be appreciated!