Monday, 6 December 2010

Are you finding your cases are being postponed due to a lack of availability of judges?

Please tell me if this has happened to you recently? Is it just me or is it on the increase?

Are you late for CPD points?

There is a new provider on the scene which is great for quick and easy provision of CPD points in employment law. See They offer the following courses:

Compensation in Discrimination Claims

The New Acas code of Practice on discipline and grievance

Public Interest Disclosure Act

The Right to Flexible Working

and Redundancy

All courses are 2 CPD points at £29.99 each or 10 CPD points for £99 - assessment is done by a simple multiple choice exam!

Book Review - Drafting Employment Contracts

I have been asked to review the latest offering from the Law Society and Gillian Howard

Drafting Employment Contracts' is not just a collection of employment contract precedents as you might imagine but is a vital addition to any employment practitioner's shelves. There is detailed exploration of a plethora of topics the employment contract's architect may have to consider before starting to draft. The chapter on 'Different types of Contract is detailed and involves thorny issues such as, who is an employee and who is an agency worker. In addition all of the usual topics pertinent to an employment contract are covered such as, restrictive covenants and disciplinary/grievance procedures. What sets this book apart is the entertaining manner in which it is written, I particularly liked the chapter on the 'Martini contract':'any time,any place, anywhere.' Gillian Howard's latest offering represents a well overdue guide to the drafting of contracts, which fills a vacuum in this vital subject.

Charles Price, Barrister

No5 Chambers

Wednesday, 10 November 2010

New employment case on redundancy selection

Consultation must involve allowing the Claimant to comment on his selection scores for redundancy...

The EAT (HHJ Ansell) has handed down its decision in County Print v Page, which reinforces the proposition that: fair consultation in a redundancy exercise involves giving an employee an explanation for his scoring and a meaningful chance to comment on the scores.

In the seminal case of R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and Others [1994] IRLR 72 Glidewell LJ said this:

"24. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p19, when he said:

'Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(c) adequate time in which to respond;

(d) conscientious consideration by an authority of the response to consultation.'

The EAT took an opportunity to this and other authorities in this area, and, whilst cautioning against an impermissible "microscopic analysis" of scoring by tribunals, indicated that, particularly with subjective criteria, employees should have sufficient information to understand their scores and an opportunity to challenge them.
His Honour John Ansell commented: 'Had the Respondent been able to challenge the flexibility marking in the way that he sought to do before the Tribunal, those comments could have then been reported back to the markers for their consideration. If they then chose to adhere to their original scores it is difficult to conceive that the Tribunal would seek to interfere with that decision in those circumstances since there had been proper consultation'.

His Honour Justice Ansell further gave guidance on the 'Software' guidance:

(ii) Employers seeking to run a Polkey chance of dismissal in any event argument under Software 2000 must rely on "cogent evidence", rather than simply arguing that there was a percentage chance of dismissal. The Tribunal in this case had found that there was no cogent evidence to enable them to attempt to reconstruct "what might have been" (see Software paragraph 54 (3))On the facts of this case, the EAT observed that it was "completely fallacious" to say that as the Claimant was in a pool of three, there was a one-in-three chance of dismissal, even on similar scores.

Charles Price Barrister

The Equality Act 2010 and compromise agreements

For settlements not made through ACAS, a compromise agreement with the employer is only binding if it is a 'qualifying compromise contract' (s.144(4) EqA). This means the agreement must be duly compliant with certain conditions. One such condition is that the claimant received 'independent legal advice' (s.147 EqA).

A potential conundrum has arisen because of the new Equality Act definition of who can count as an 'independent adviser' so as to make a (non-ACAS) agreement enforceable (s.147 EqA). The literal interpretation of the way this section is currently drafted suggests that a solicitor who was instructed by the employee prior to the production of the final agreement for consideration is precluded from acting any further.
Despite a failure to refer to any departure from the old law in the Explanatory Notes to the Act, Section 147(5)(d) sets out that a complainant’s solicitor is a person “who is acting for a person” who is, per section 147(5)(a) and (b), either “a party to the contract or the complaint” or “connected to” such a person. On that basis section 147 (5)(d) would prohibit them from being an “independent adviser”.
The Government Equalities Office however has stated that 'the situation that existed prior to passage of the Act' remains unchanged and, by implication, that a solicitor who had advised a client in respect of an action would also be able to provide advice on a compromise agreement.

According to their web site, The Law Society has requested an urgent meeting with the Government Equalities Office to consider how this question can be resolved as well as notifying the Home Secretary of their concerns. They intend to produce a practice note soon.

By Charles Price
No5 Chambers

Wednesday, 13 October 2010

2 New important employment judgments

1) Gisda Cyf (Appellant) v Barratt (Respondent)
[2010] UKSC 41


The Claimant must be informed of the event that triggers the start of that period, namely, their dismissal or, at least, he or she must have the chance to find out that that short period has begun. Strict contractual was found not to apply in an employment situation. In this case the Claimant took a few days to read a letter which had been left in her floor.

2) TUPE Failure to Inform and consult - should 13 weeks be the starting point?

Todd v Care Concern, Appeal No. UKEATS/0057/09/BI

A seller of care home business gave some limited information to employees about impending transfer but failed to arrange for election of “appropriate representatives” as required by reg. 14 of Transfer of Undertakings (Protection of Employment) Regulations 2006 and accordingly gave no information to, and did not consult with, any such representatives.

Underhill P ruled that an award of 13 weeks' pay should NOT be the starting point for failure to inform and consult where the employer has done something (albeit not everything) to comply with the statutory obligations.

In this case, the employer gave some information the transferring employees, but not enough. It also failed to elect employee representatives.

Tuesday, 28 September 2010

All You Need to Know on the Equality Act

From the Law society simply copy and paste into your browser:

New Minimum Wage Levels

New rates of National Minimum Wage, due to come into force on 1st October 2010, originally announced in March 2010, have been confirmed as follows:

£5.93 per hour for low paid workers aged 21 and over (a 2.2% increase on the current £5.80 rate);
£4.92 per hour for 18-20 year olds (a 1.9% increase on the current £4.83 rate); and
£3.64 per hour for 16-17 year olds (a 2% increase on the current £3.57 rate).

Tuesday, 21 September 2010

Are you late for CPD points?

There is a new provider on the scene which is great for quick and easy provision of CPD points in employment law. See They offer the following courses:

Compensation in Discrimination Claims

The New Acas code of Practice on discipline and grievance

Public Interest Disclosure Act

The Right to Flexible Working

and Redundancy

All courses are 2 CPD points at £29.99 each or 10 CPD points for £99 - assessment is done by a simple multiple choice exam!

Tuesday, 7 September 2010

My Latest Case Reported in the Birmingham Mail

Jaguar worker allegedly told VIP visitors that Jaguar XF was “a load of s***”

Sep 4 2010

1 2 next
A JAGUAR worker complained he was unfairly sacked – after allegedly using a four-letter word to describe the new executive car to visitors at the plant.

David Potter, of Yardley Wood, Birmingham, told members of the Jaguar Drivers Club that the Jaguar XF was “a load of s***”, an Employment Tribunal preliminary hearing was told.

The club, which is made up of Jag enthusiasts from across the country, had asked Mr Potter what he thought of the car as he worked on the production line.

And Charles Price, representing Jaguar Land Rover, alleged Mr Potter gave the four-letter description in response.

Mr Price said: “Mr Potter did not know who he was speaking to, but his comments were reported to the management and he was dismissed for misconduct after two appeal hearings.”

But Mr Potter, told the tribunal: “I deny using such language – I would never use bad language to members of the public.”

Instead he alleged that the firm had used the incident as an excuse to get rid of him after making a complaint on health and safety grounds.

He said he had objected to the shop floor being painted whilst he was working because the paint had aggravated his asthma. “The investigation into the alleged incident was flawed and there was a conspiracy against me,” he said.

“A final warning would have been more appropriate.”

Mr Potter was seeking permission to go ahead with a full tribunal hearing into his claim for unfair dismissal later this year.

But Mr Price successfully applied to the tribunal to strike out the claim after telling tribunal judge Mr David Dimbylow that Mr Potter had no reasonable prospects of winning his case.

Mr Dimbylow agreed and told Mr Potter his application for a full hearing was rejected.

Mr Potter said that he had been employed by JLR for nearly ten years and said he was now unemployed.

After the hearing, Mr Potter, a 48-year-old grandfather, said: “I am very disappointed with the legal system. I’m going to appeal.”

And when our reporter asked him what he did think of the XF, he said: “It’s Ford with a Jaguar body.

“I don’t think it’s worth the money.

“It’s not a Jaguar in my eyes.”

A JLR spokesman said they could not comment on individual cases.

The Jaguar Drivers Club describes itself as the premier Jaguar club, which has serviced the needs of Jag owners since 1956.

My tip for dealing with Pre Hearing Reviews is understand the tests used by the tribunal when considering a strike out or adding a deposit!

Friday, 30 July 2010

Grossing Up Awards

When drafting a schedule of loss employment lawyers often forget to gross up compensation awards - a new case adds more detail...

In accordance with the principle set out in Shove v Downs Surgical plc [1984] 1 ALL ER 7 an employment tribunal must gross up any award it makes over £30,000 in order to ensure that the Claimant receives the net award made by the Employment Tribunal. For example an employment tribunal makes an award of £36,000. The first £30,000 is tax free but tax is applied to the 6,000 above it.

It is best to consult an accountant when working out this element of the award. Often tribunals will add a flat rate of say 40% when grossing up an award but as the judgment referred to below suggests annual personal allowances should be taken into consideration.

A very recent case of, Yorkshire Housing v Cuerden is an authority for the proposition that personal injury and injury to feelings awards that pre-dates the termination of employment are not taxable and should therefore, not be subject to grossing up.

The same case is also an authority to say that pension loss awards should not simply have the highest tax rate applied to the whole award but rather, marginal tax rates for each element of the award should be taken into account.

Vital law referred to by His Honour Judge Peter Clark in the judgment:

Income Tax (Earnings and Pensions) Act 2003 (ITEPA).

The general rule that termination payments are taxable, subject to the £30,000 threshold (s403), is subject to this exception under s406:

"This chapter does not apply to a payment or other benefit provided –


(b) on account of injury to or disability of, an employee."

HMRC website where it is stated, by reference to the Special Commissioners' decision in Walker v Adams [2003] STC 269, that awards for injury to feelings in respect of pre-termination discrimination are not to be treated as taxable employment income, whereas awards arising on termination of employment are taxable under s401.

BAILII case number: [2010] UKEAT 0397_09_1607

Appeal No. UKEAT/0397/09

This article is for academic purposes only and does not represent formal legal advice

Monday, 26 July 2010

Freshfields Moves to Swell Ranks of Women Partners

27th July - Freshfields has introduced a pilot mentoring scheme for senior female associates in order to boost its ranks of women partners...

Six female senior associates from departments across the firm will take part in the pilot, as part of the "Strategic Excellence Leadership Programme". It should be rolled out more widely if the scheme proves a success.

Billed as focussing on career development and how to be a role model and positive influence, the pilot will include two one day workshops and regular sessions with a senior partner mentor. Senior associates will also take part in monthly hour long coaching sessions with consultancy firm Aspire, which specialises in women's development, according to the Lawyer.

The ECJ ruled in November 1997 that positive sex discrimination in favour of female candidates for job promotion is not necessarily contrary to EC law ( Marschall v Land Nordrhein-Westfalen 2001 ICR 45, ECJ case C-409/95).

Thursday, 15 July 2010

Employers Feel the Bite as Increase in Employment Law Knowledge Sees Rise in Claims

As the effects of the recession tell, recent annual statistics for employment tribunal services show claims submitted reached a record figure this year – up 56% on last year...

The most popular types of claim accepted by the tribunal were for unfair dismissal (57,400), unauthorised deductions from wages (75,000) and breach of contract (42,400). These showed an increase from last year's figures of approximately 8%, 54% and 23% respectively.

The figures come as no surprise to employment lawyers, who have noticed a significant upward trend in litigation against employers in the last 12 to 18 months.

Inevitably the recession has been a factor in this as employees who have little prospect of securing alternative employment feel they have no alternative and nothing to lose by bringing an employment tribunal case against their ex-employer.

The Dickinson Dees Employment Tribunal Trends Index shows that, if the current trend continues, employers will face around 370,000 more tribunal cases in the next three years (years ending 2011 to 2013) than they did in the previous three (years ending 2007 to


With an estimated average cost of £7,000 for every tribunal commenced,2 recession- battered employers will spend around £2.6bn more defending themselves in the coming three years than the previous three – an increase of 46%. James Wilders, an employment partner at Dickinson Dees, which specialises in advising employers, said:

“Since 1998 there has been an almost inexorable rise in the number of employment tribunals, with an average of 20,000 more new cases each year than in the previous one. This has been driven by numerous changes in employment law and regulations, combined with the increased damages available encouraging people, an increased awareness of workers’ rights and no-win-no-fee legal advisers to mount more cases.

Wednesday, 7 July 2010

Employment - More Time Limit Case Law - Will it Ever Stop?

What happens when an employee listens to his employer when he is wrongly told that he had 3 months in which to present an unfair dismissal claim when he only had 6 weeks? I know what you are thinking - would you honestly believe anyone you are about to bring an unfair dismissal against - no is the obvious answer, but some do...

Northamptonshire County Council (Appellant) v Mr D Entwhistle UKEAT/0540/09/ZT

The crucial element in the latest case to come off the conveyor belt is that the Claimant contacted a solicitor, who negligently failed to notice the error. The Claim was subsequently submitted 2 weeks out of time.

It was held allowing the appeal, that it was reasonably practicable for Claimant to present claim in time because if his solicitor had given him advice of the kind he should reasonably have been given the employer’s mistake would have had no effect.

Although widely reported this case does not vary from the general rule seen in Dedman as explained by, Lord Denning MR said: “Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences .

Dedman [1974] ICR 53

Implementation of Equality Act Begins in October..

The first wave of implementation of the Equality Act will go ahead to the planned October timetable following the publication of the first commencement order in Parliament next week. This will pave the way for the implementation of landmark provisions to protect disabled people from discrimination and tackle the gender pay gap.

Thursday, 3 June 2010

Edwards V Chesterfield Royal Hospital NHS - A Benchmark Employment Case?

Mr Edwards, a consultant surgeon for an NHS Trust was dismissed for gross professional and personal misconduct following a disciplinary hearing and was subsequently unable to find employment but how did he bring a separate claim for breach of contract in connection with his dismissal.

The contract under which he was employed provided by clause 8 that either party could terminate it on three months' notice to the other. It also provided by clause 13 that in matters of personal conduct Mr. Edwards would be subject to the hospital's general procedures and that in matters of professional misconduct he would be subject to a procedure agreed by the Local Negotiating Committee in respect of medical practitioners.

In February 2006, following a disciplinary hearing, he was summarily dismissed from his post for gross professional and personal misconduct. He has since been able to obtain work as a locum with another NHS Trust, but has been unable to obtain a permanent consultant post and says that he will not be able to do so in the future because of the finding against him. He says that he has therefore been unable to pursue his medical career in the manner which he would have wished. The Investigating Committee of the General Medical Council later summarily dismissed a complaint against him based on the same allegations.

Mr. Edwards maintained that the Trust failed to follow the contractual disciplinary procedure correctly, in particular, by failing to appoint a person with legal qualifications to chair the panel which considered his case, by failing to appoint as a member of the panel a clinician of the same medical discipline as himself and by refusing to allow him to be legally represented at the hearing. He also maintains that if the procedure had not suffered from those defects no finding of misconduct would have been made against him. Accordingly, on 15th August 2008 he commenced proceedings against the Trust in the Manchester District Registry seeking damages for breach of his contract of employment in the sum of a little under £4.3 million.

For those used to a cap on compensation in tribunal proceedings an eyebrow would be raised at the level of damages he sought for breach of his contract of employment in the sum of under £4.3 million.

At a hearing on 26th March 2009 District Judge Jones accepted the Trust's arguments and granted it a declaration that Mr. Edwards' claim was limited to loss of earnings for the contractual period of three months' notice.

Mr. Edwards' appeal against the District Judge's order was heard by Nicol J. The judge held that if his substantive claim succeeded Mr. Edwards would be entitled to recover loss of earnings in respect of his contractual notice period and also in respect of the period during which he would have remained employed while a disciplinary procedure which complied with the terms of his contract ran its course. He based his conclusion on the decision of this court in Gunton v Richmond-upon-Thames London Borough Council [1980] I.C.R. 755. Accordingly, he allowed the appeal. The order of District Judge Jones was varied accordingly. The present position is summed up in para 7 of the judgment:

'This is a second appeal from an order made under CPR Part 24 to the Court of Appeal. Moreover, it arises on an application by the defendant expressed to be for an order striking out part of the claim (though more properly, since made under Part 24, for summary judgment). Formally, therefore, the issue to be determined is whether Mr. Edwards has any real prospect of recovering after a trial damages in excess of loss of earnings for the contractual period of notice and the period required for contractual disciplinary proceedings. However, since the only issue before the court concerns the measure of damages recoverable in law, Mr. Sutton accepted that the court must proceed on the assumption that Mr. Edwards will succeed in establishing all the allegations made in the particulars of claim. In those circumstances the application has been treated as amounting to the trial of a preliminary issue. The question is whether, if the allegations made on the particulars of claim are established, Mr. Edwards' entitlement to damages is as limited as the Trust contends.'

Johnson v Unisys was distinguished by the Judge with the following words:

The fact is that Johnson v Unisys and Eastwood v Magnox were not concerned with the measure of damages for breach of an express term of the contract but with whether an employee has a cause of action at common law for unfair treatment in connection with his dismissal. (37) The fact is that Johnson v Unisys and Eastwood v Magnox were not concerned with the measure of damages for breach of an express term of the contract but with whether an employee has a cause of action at common law for unfair treatment in connection with his dismissal.

In paragraph 40 of his judgment the judge accepted that 'in the present state of the law,' as represented by Addis v Gramophone Co. Ltd and Johnson v Unisys, damages caused to an employee's reputation by the manner of his dismissal is not usually recoverable. He explained that the reason for this is that, 'the conduct of which he complains does not amount to a breach of contract and damages are not recoverable for personal distress or loss of reputation, 'except in a limited number of cases.. However he continued, the proposition that a breach of contract in the form of a failure to comply with an agreed disciplinary procedure gives rise to a claim is difficult to accept in principle and is difficult to reconcile with the decision in Gunton v Richmond - Upon-Thames.

in para 44 the Judge concluded with the following:

'He can also point to the fact that the failure to carry out the proper disciplinary procedure resulted in the very findings of misconduct that have prevented him from obtaining similar employment elsewhere in the NHS. On the facts that must be assumed in his favour, therefore, wrongful dismissal is not his only cause of action and his claim for damages for failure to carry out proper disciplinary proceedings is not excluded by Johnson v Unisys'.

The Court of Appeal has in effect ruled that any complaint about the dismissal itself must be made under the statutory unfair dismissal procedures under the ERA1996 (where compensation is capped), However where there is an allegation about a separate breach of an express contractual term, such as disciplinary procedures, there is no restriction on a person's ability to bring such a claim.

Copy and paste the following into your browser for a full transcript:

Thursday, 27 May 2010

Interesting Article on New Flexible Working Plans

Changes to paternity leave - will they work?
Posted by Cath Everett in Pay & benefits on Wed, 26/05/2010 - 12:24

The new government will face significant challenges in implementing its flexible parental leave proposals given employers’ lukewarm response to existing paternity leave measures today, a leading HR body has warned.

The coalition government is keen for fathers to be able to take six months of paternity leave while their partners return to work. But the suggestion has caused concern among employers over the costs of administering the scheme, not least because of a requirement to monitor spousal entitlement and usage – whether they work for the business or not.

According to the Chartered Institute of Personnel and Development’s (CIPD) quarterly ‘Employee Focus’ survey undertaken among 800 organisations, however, only two out of five businesses are currently offering working fathers two weeks’ pay at or near their full rate. Just under a quarter offer no leave beyond the statutory two week minimum.

Mike Emmott, the CIPD’s employee relations advisor, said: “If flexible parental leave is going to become a reality, we need a step-change in the reward policies of UK organisations that encourages more fathers to take their statutory rights. This is something that will only be achieved through cultural change – and legislation is emphatically not the answer.”

The new government would need to think imaginatively if it wanted to encourage such change, however, he added.

Sarah Bond, head of diversity and employee engagement at management consultancy KPMG, also pointed out that the increasing demands being made on carers were likely to alter both male and female working patterns over the next 10 years. This meant that organisations would need to examine their family support packages to ensure that they matched changing trends.

“There are real incentives for businesses here. More and more talented people with parenting and caring responsibilities – fathers as well as mothers – seek out best practice employers that enable people to balance their work and family lives,” Bond added.

But employers were also concerned about other incoming legislation, the survey showed. Almost three out of ten saw the future Working Time Regulations as the biggest hindrance to doing business effectively, while just over the same number considered the Agency Worker Regulations to be the largest burden. Both new laws are due to come into effect in October 2011. A mere 28% and 13% respectively believed that either would be helpful.

“The CIPD believes that the Working Time Regulations in particular have negligible value in limiting unhealthy workplace behaviour. We are, therefore, calling for its repeal in the context of the review currently being undertaken by the European Commission,” Emmott said.

Thursday, 20 May 2010

New Coalition Promises Flexible Working for Everyone

Paste this into your browser

Wednesday, 12 May 2010

Right to a Fair Trial Defence Applies in Criminal Proceedings but not in an Employment Tribunal

Right to a Fair Trial Defence Applies in Criminal Proceedings but not in an Employment Tribunal

12 may - The Right to challenge your accusers under the ECHR Article 6 does not apply in an employment tribunal...

In Power v Greater Manchester Police Authority EAT 29/04/2010 Mr Power claimed at an employment tribunal that Greater Manchester Police Authority dismissed him because of his spiritual beliefs. the Respondents argued that he was dismissed because of his conduct, namely, the disruptive way in which he practiced his beliefs.

HHJ Mc Mullen said:

'Mr Power does have....a right to a fair trial and in criminal proceedings a right to confront those who accuse him. However in civil proceedings, that is in an employment tribunal determining his rights, when he brings a claim of discrimination the proper approach is decide if it passes the prima facie test in Igen Ltd v Wong [2005] IRLR 258. Then the Respondent is called upon to provide an explanation. The explanation will be the less credible if relevant witnesses are not produced by the Respondent and are not there to support its case and, of course, cannot be cross-examined. That is not, it seems to us, a breach of a convention right nor is there a right to confront any particular witness when he accuses a corporate respondent of discrimination. The Art 6.3(d) right applies to the confrontation of accusers in a criminal process, not as a Claimant in a discrimination case'

Thursday, 6 May 2010

Employment Law and the Differences Between the Parties

If you are still undecided on which party to vote for this article may help from 'The Press and Journal' it explains the differences in policy relating to employment law changes.

The main points are: Labour have obviously introduced the Equality Act 2010 and will increase paid paternity leave to 4 weeks and allow the sharing of paid maternity leave after 6 months.

Increasing the National Minimum wage in line with average earnings and abolishing the retirement age of 65.

The Conservatives will introduce new flexible working rules initially to every parent with a child up to the age of 18. Introducing a new system of flexible parental leave, potentially allowing for 52 weeks’ leave which could be shared between parents (although only mothers could take the first 14 weeks).

Possibly revoking agency worker regs

Possibly abolishing the retirement age.

Pay freeze for public sector workers.

The Lib Dems would extend the right to request flexible working, introduce name blind application forms to tackle discrimination, limit bonuses for bank workers and would introduce equal pay audits for employers with more than 100 employees.

Read more:

Wednesday, 5 May 2010

All You Need to Know on the Equality Act

Try this site which will be updated over the coming months:

Friday, 30 April 2010

Requirement of Holding a Degree Not Age Discrimination

In the first case involving Age Discrimination has been considered in a substantive appeal in the higher court, The Court of Appeal has handed down its decision that requiring an employee to hold a degree in order to qualify for a higher pay grade did not amount to indirect age discrimination...

in Homer v Chief Constable of West Yorkshire Police, the requirement that an employee to have a degree in order to qualify for a higher pay grade was deemed not amount to indirect age discrimination. The argument put forward by the Appellant was in essence that an older employee would not have time to obtain such a qualification before retirement. This was on the basis that the particular disadvantage to the employee flowed from the fact of his imminent retirement rather than his age.

On consideration of the law below, Lord Justice Maurice Kay stated: 'The appellant's case is not one of a particular disadvantage but one of a claim for more favourable treatment on account of age'.

This case, however involved a question of law - the case did not present factual evidence to show that the employee's age group would be less likely to have a law degree, or would find it harder to reach that requirement.

The relevant domestic law is to be found in the Employment Equality (Age) Regulations 2006. Regulation 3 provides:

"(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if –

(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances are the same, or not materially different, in the other.

(3) In this regulation –

(a) 'age group' means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages … "

Thus, Regulation 3(1)(a) prohibits direct discrimination and Regulation 3(1)(b) prohibits unjustified, that is disproportionate, indirect discrimination. The approach is similar, but not identical, to the approach in other domestic anti-discrimination legislation.

[2010] EWCA Civ 419 Case No: A2/2008/2793

Wednesday, 28 April 2010

New Case Shows Importance of 'Reasonable Belief' in Whistleblowing Cases

In the recent EAT case of, Goode v Marks & Spencer Appeal No. UKEAT/0442/09/DM, the fact that protected disclosures have to be subject of a 'reasonable belief' was explored.

As we know the protected disclosures fall under:

Section 43B(1),ERA (a-f)

In order to be afforded protection under PIDA the disclosure must relate to one of six categories of subject matter:

That a criminal offence has occurred or is likely to occur

A person has failed or is likely to fail to comply with a legal obligation;

A miscarriage of justice has occurred or is likely to occur;

The health and safety of an individual has been or is likely to be endangered;

Environmental Damage;

Or information tending to show one of the above has been or is likely to be deliberately concealed.

The leading case in this area is that of Babula v Waltham Forest College. Court of Appeal, 2007 EWCA Civ 174. Lord Justice Wall, giving the judgment said that, In each of the instances identified in S.43B(1)(a)-(f), the whistleblower has to establish a reasonable belief that the information being disclosed ‘tends to show’ one or more of the situations in (a)-(f). However, nothing in that section requires a whistleblower to be right. Provided his or her belief is held by the tribunal to be objectively reasonable, neither the fact that the belief turns out to be wrong nor the fact that the information which the claimant believed to be true does not in law show, for example, that a criminal offence is likely to be committed or that a person is likely to be in breach of a legal obligation, is sufficient of itself to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.

The recently reported case of, Goode V Marks And Spencer, the Appellant's expression of an opinion about an employer's proposal, after consultation, to change a discretionary enhanced redundancy scheme does not amount to a qualifying or protected disclosure. The EAT supported the ET who could not see that the Claimant could have a reasonable belief looking at the facts that he had been dismissed because of a 'sham' redundancy scheme.

The Appellant had taken a number of steps, including complaining to his line manager, contacting the Times and completing a survey, which he sought to argue were protected disclosures - all in relation to the detail of a proposed redundancy scheme - which should entitle him to the protection of section 103A ERA and render his subsequent dismissal automatically unfair. Such information as the Appellant sought to rely on to establish that protected disclosures had been made was not enough to be the subject of a reasonable belief that it tended to show that the Respondent was likely to fail to comply with any legal obligation to which it was subject. The appeal was dismissed.

The case is a reminder that when defending against whistleblowing cases it is often worth arguing why the protected disclosure could not possibly be based on a reasonable belief...of course whether the disclosure is made in 'good faith' or not is an entirely different but essential chapter.

Saturday, 24 April 2010

DLA Piper Survey Gives Thumbs Down to Positive Discrimination

A survey commissioned by DLA Piper gives positive discrimination the thumbs down!

A survey of 545 senior UK business figures has revealed overwhelming opposition to legislative intervention to encourage under-represented minorities in UK companies.

More than four fifths (81%) of respondents to DLA Piper’s General Election Survey 2010, interviewed online by YouGovStone, said that they opposed ‘positive action’ to give priority to candidates for employment or promotion from under-represented minorities, as a power contained in the Equality Bill, which will become law later this year. Only 13% of respondents were in favour of such action.

There was also a high level of opposition to any change in the law in the next Parliament that would allow companies to introduce quotas for female managers if they wished, with 77% of the sample saying that they would not support such measures. There was even more opposition to any new legislation with the express purpose of increasing the number of women on the boards of UK companies, with 86% of respondents coming out against any new laws, and only one in ten (10%) in favour. Anonymous comments submitted on the survey reveal the strength of feeling that any personnel decisions should be based purely on merit; for example, "Companies must be able to choose the best people available for all jobs", and, "Implementation of quotas…will inevitably lead to the hiring of less able people" were indicative of the overall responses.

On the subject of the compulsory retirement age in the UK, nearly one in three (30%) of those questioned were in favour of the next Government scrapping it entirely. Half (51%) felt that the age should be kept as it is, while 13% wanted to see it increased and 5% supported a reduction. With Britain’s ageing population and the growing burden of financing old age pensions, there is clearly a recognition that people will need to work for longer to fund their retirement, and that older employees, who still have much to offer their organisations, should have a greater degree of choice in their retirement age.

Elsewhere, the question of whether people approaching retirement age should be forced to take out insurance to pay for future care divided the survey group, with 46% opposed to the idea, and 48% in favour of it, either universally (19%) or subject to a means test (29%).

Jonathan Exten-Wright, employment partner at DLA Piper London, said: "The high level of opposition to any legislative change by the Government in recruitment and promotion appears to reflect a broader distaste for any further legal burden on UK companies, and the importance placed on individuals being rewarded on merit and no other factors. Clearly, everybody would like to see UK companies operate in a meritocratic manner, and the system is currently far from perfect – however, the clear message from this research is that direct legislative intervention would face significant opposition from some in the business community. The survey's respondents do not disagree with the objective of greater representation, but many object to the proposed methods which seek to ensure it in a way which they perceive as unfair. Any incoming Government will be faced with the dilemma of campaigners arguing best practice has not gone far enough and business resisting what it sees as unworkable red tape."

Vote in the Lawyers General Election Poll! are running a lawyer's general election poll.

They ask amusingly who would you like to represent you in court Cameron, Clegg or Brown?

Friday, 26 March 2010

Employee who was Sick for a Year Entitled to Rely on Unfair deductions to Obtain Holiday Pay

In the light of the ECJ and House of Lords judgment in Stringer & ors v HMRC [2009] ICR 985 an employment tribunal at Sheffield has now held that an employee who was off work sick for the whole of a holiday year was entitled to holiday pay as a wrongful deduction from wages.

There is now available on the emplaw web-site a transcript of the Sheffield Employment Tribunal's January 2010 judgment in Rawlings v The Direct Garage Door Company Ltd.

Thursday, 25 March 2010

Chamber of Commerce Wants ACAS to Vet ET1s

The British Chambers of Commerce, with the help of employment lawyers at Brabners Chaffe Street, have produced a report entitled "Employment Regulation: up to the job? with the aim of improving the process of going to an employment tribunal.

The main purpose of the report is to present "a number of ways that employment legislation and the Tribunal system can be rebalanced, resulting in reduced costs, less bureaucracy and improving the competitiveness of the UK economy".

Out of the lengthy report one of the proposals would be that:

Any claimant who has not received professional advice would be obliged to go through their ET1 form with Acas before submitting their claim. The idea is that this would prevent claims with no real chance of success getting into the tribunal system at all, thus saving time and money for both the employer and the Tribunal service.

This ill conceived plan in my view relies heavily on untrained lawyers to give legal advice. We all know that trained lawyers come with varying degrees of competency but to expect ACAS mediators to know the law and take responsibility for what is in essence, legal advice seems like an onerous burden to lay at their feet.

The report also suggests an enforced mediation with ACAS in some cases with the penalty of a longer wait before being heard at tribunal for those uninterested. This fast track ACAS conciliation system would be applicable for employees claiming less than £3,000.

Again, this enforced mediation forgets that the process of employment litigation already has the ACAS grievance and dismissal/disciplinary procedures in place which holds the threat of financial penalties for those not adhering to mediation rules.

Stangely, the report also states that employers should not have the same health and safety responsibilities towards remote workers and lone workers as they do towards office based staff. If this latter proposal alone were to be introduced it would have to overturn entrenched principles found in law and would certainly require legislation in order to introduce it soundly.

Wednesday, 24 March 2010

New Legal News Site Launched is an online legal community and offers something fresh to all those with an interest in law. Not only firm news is covered but also legal developments in a range of areas. There is also training news and a novel section of MP4 videos offered by law firms.

Monday, 15 March 2010

The Equality Act and New Law to Protect the Disabled

It is likely that this huge piece of legislation will soon become law. The 3rd and final reading of the Equality Bill is scheduled for March 2010. Large parts of the Act are likely to come into effect in autumn 2010, 5 years after the Discrimination Law Review launched in 2005.

The Act repeals and replaces 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. At first blush this should make discrimination law far more concise and easy to navigate.

The Act is more ambitious however, than a simple piece of legislation aimed at consolidating preceding material; new legal concepts such as 'perceived discrimination and 'Protected Characteristics' emerge for the first time.

There will be increased support for disabled people in the Equality Act

Enquiries About Health - Pre-Employment

The Act is likely to include a new clause 40 on pre-employment enquiries about disability and health, which should diminish the likelihood of disabled not reaching the interview stage.

If an applicant claims that a potential employer has enquired about his or her health before making 'a relevant decision', the new clause 40 shifts the burden of proof onto the employer so that, in the absence of any other explanation, the tribunal must hold that a contravention has occurred. A relevant decision is one that determines progression to the next round of the application process or a decision on who gets the job.
Employers can ask some questions relating to disability before employment however, the section will not apply to questions which are necessary to establish whether;
a duty to make reasonable adjustments arises;
to monitor diversity in applicants;
to enable an employer to take positive action;
or, if the employer requires a potential employee to have a particular disability, the questions necessary to establish this.

This will soon form part of a CPD course found on

Sunday, 7 March 2010

Counter Claim Confusion

Counter claims are a useful tactic for putting pressure on a Claimant if nothing else but remember under the ERA that you can only add a counter claim as a Respondent if the Claim is for a contractual breach.

Wednesday, 24 February 2010

Shifting the Burden of Proof in Discrimination Claims

Where an employee claims unlawful racial discrimination it is not enough to show that conduct is unreasonable or unfair for the burden of proof to be shifted to the employer to demonstrate that there was no racially motivated reason for the action complained of. For the burden of proof to shift it must be shown that there was some racial motivation.

In the case of, Commisioner of Police of The Metropolis & Anor v Osinaike EAT on 22nd February 2010On 3rd June 2009 the London South employment tribunal dismissed most of the harassment claims of Ms Osinaike claims save one. The tribunal found in her favour that her complaint of racial harassment was well founded in that she was told in June 2007 by the Senior Management Team that she needed to see a psychiatrist. The tribunal concluded that had Ms Osinaike been white, the Police "would have readily understood the difficulties of her continued placement within Southwark and addressed those matters as opposed to seeing her as irrational and in need of psychiatric intervention".

At the EAT The Respondents were successful with their appeal:

The EAT said that simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof. There was no evidence to suggest any racial element in the actions taken by the Police, which would be a pre-requisite for transferring the burden of proof to make the Police liable unless they showed a non-discriminatory explanation for what happened. In this case it was "notable that the Tribunal nowhere considered the reasons why the [police] acted as they did. The only finding made was the acceptance of [the police occupational health adviser's] view that this was an example of an occasion on which the [Police] 'found it more convenient to medicalise the situation and refer the Claimant to Occupational Health'. This on the face of it has nothing to do with race."

In short, if one is considering an appeal the findings of fact made by the ET must point to a discriminatory motive before the burden is shifted to the employer under the Igen V Wong principles.

Tuesday, 16 February 2010

Request to Remove Cross did Not amount to Religious Discrimination

BA's 'no visible jewellery' policy not discriminatory

In Eweida v British Airways Plc, Ms Eweida has lost before the Court of Appeal in her challenge to the EAT's decision that BA's uniform policy, which required E to remove or conceal her cross, did not amount to indirect religious discrimination. In dismissing the appeal, the Court of Appeal noted that where an employer is faced with conflicting responses to a provision, criterion or practice from people of different beliefs, a blanket ban may sometimes be the only fair solution.

E, a practising Christian, worked for BA as a member of check-in staff. For most of the time she was employed, BA's uniform policy permitted employees to wear any jewellery they wished provided it was not visible. Items deemed to be a mandatory religious requirement which could not be concealed could be permitted by management. After refusing to conceal a silver cross she wore on a necklace, E was sent home without pay. She brought a number of claims against BA, including direct and indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660.

The tribunal dismissed all of E's claims. The indirect discrimination claim failed as BA's policy did not put E at a particular disadvantage when compared to others. However, the tribunal went on to note that if BA's policy was indirectly discriminatory, it would not have been justified as a proportionate response to the legitimate aim of achieving brand uniformity. On appeal, the EAT (Brief 867) held that in order for an indirect discrimination claim to succeed there must be evidence of group disadvantage. Given that the tribunal had found that no one but E felt disadvantaged by BA's policy, her claim must fail. BA's appeal against the tribunal's finding on justification also failed. Both BA and E appealed. E argued that BA's policy was indirectly discriminatory even if only she was disadvantaged by it.

The Court of Appeal observed that, for an indirect discrimination claim to be successful, there must be a provision, criterion or practice (PCP), applied to all employees, which puts 'or would put' persons who share the claimant's religion or belief at a disadvantage compared to other persons. In the Court of Appeal's view, there was no reason to depart from the natural reading of 'persons' in Reg 3(1)(b)(i). There was nothing in the EU Equal Treatment Framework Directive (No.2000/78) to suggest that its use of the word 'persons' was intended to include solitary disadvantage within the scope of an indirect discrimination claim. The Court therefore endorsed the EAT's statement that, in order to establish indirect discrimination, it must be possible to make some 'general statements' about a religious group such than an employer ought reasonably be able to appreciate that a PCP may have a disparate adverse impact on that group. The use of 'would put' in Reg 3(1)(b)(i) could not be read so as to require the tribunal to create a hypothetical peer group who suffer the same disadvantage from the PCP as E. The tribunal's finding was that the disadvantage suffered by E was suffered by her alone: neither evidentially nor inferentially was anyone else similarly disadvantaged. This meant her claim had to fail.

The Court also rejected E's argument based on Article 9 of the European Convention on Human Rights. Cases such as Kalac v Turkey 1997 27 EHRR 552 showed that Article 9 does not protect every act motivated by religion or belief.

As to justification, the majority of the Court of Appeal indicated that, had the point arisen for consideration, it would have been inclined to allow BA's appeal and overturn the tribunal's finding that the policy could not be justified. When considered on the footing that the indirect discrimination claim was advanced in the Court of Appeal - the disadvantage to a single individual stemming from the policy - the tribunal's finding of facts showed that the policy was a proportionate means of achieving a legitimate aim. Furthermore, Lord Justice Sedley indicated that he would have had difficulty with the tribunal's decision even on the alternative basis that the policy disadvantaged Christians as a group.

This report is from IDS Employment Law Brief.

Further information:

Monday, 15 February 2010

Shocking Statistics on Violence Suffered in the Workplace

The HSE has today published the ‘Violence in the Workplace’ report, which interrogates Home Office ‘British Crime Survey’ results and presents findings on work related violence.
HSE publishes this report as part of its responsibility for developing and implementing policy on work-related violence.

Estimates from the 2006 Fit3 employee survey suggest that 16% of workers have been subject to abuse or violence in the last three months. For 67% of these victims this happened more than once and 66% of victims knew the person who was abusive or violent towards them.

Wednesday, 20 January 2010

New CPD Site Launched!

A new website has just been accredited by the SRA to provide online employment law CPD courses.

I should know as I have written the first course:

'Compensation in Discrimination Cases'

There will soon be lots more to follow and in MP3 format!

Earthquake Donation Details

To donate to the Red Cross Earthquake fund please donate to:

Thursday, 7 January 2010

Case in Point: 'Milton Keynes' and The Burden of Proof in Discrimination Claims

In considering a discrimination claim a tribunal will generally go through 2 stages: the first stage is to ensure that the claimant establishes facts from which in the absence of an adequate explanation it can be concluded that unlawful discrimination for which the respondent is responsible has taken place. Thus, the employee must make out a 'prima facie' case. If but only if the employee achieves that the second, subsequent, stage is engaged (see Appiah & Anor v Bishop Douglass Roman Catholic High School CA 2007 IRLR 264). The burden of proof then shifts to the employer to demonstrate if he can, on the balance of probabilities, that there was an adequate "non-discrimination" explanation for what took place. If he fails to demonstrate this then the tribunal is required to assume that he is "guilty".

This test is encapsulated by statue see: Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, SI 2001/2660 inserting s.63A into the Sex Discrimination Act 1975.

The 'reverse burden of proof' applies to cases of direct discrimination on grounds of colour (as well as on grounds of race, national or ethnic origin) see Race Relations Act 1976 (Amendment) Regulations 2003 SI 2003/1626 reg 41 (nserting a new s.54A into the Race Relations Act 1976 effective from 19th July 2003):

2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.".

A new development however, was the EAT's recent conclusion on the burden of proof in cases where the direct race discrimination was on grounds of colour. The employment tribunal had directed itself that the "reverse burden of proof" in Race Relations Act 1976 sec 54A applied to discrimination on grounds of race, national or ethnic origin but not to discrimination on grounds of colour until the contrapuntal case of Milton Keynes General Hospital NHS Trust (1) Punchard (2) v Maruziva EAT - 09/10/2009

Tuesday, 5 January 2010

The Must Know Cases When it Comes to Apprentices!

Apprentices should be treated with care when it comes to employment disputes. An apprentice certainly has more protection when it comes to dismissal and especially redundancy. It must be remembered that once a year has past he/she is entitled to a minimum wage and even before one year has past he is protected by all of the usual discrimination legislation afforded to a worker.

Dunk V George Waller & Son Ltd [1970] Authority for the proposition:

An apprentice is not terminable for misconduct.

Different principles apply to assess damages in the case of an apprentice

Wallace V CA Roofing Services Ltd [1996] IRLR 43
5 Authority for the proposition:

An apprentice can only be terminated on grounds of redundancy on rare occasions - 'closure or a fundamental change in the character of the employer's enterprise.
The contract expires on a fixed term and is not terminable at will.

Whiteley v Marton Electrical Ltd [2003] IRLR 197.

Apprenticeship agreements prevail over Ts and Cs of a contract.