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