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!!!