Thursday, 15 December 2011

Fees introduced for employment tribunal claims

The Government has unveiled proposals to introduce fees for employment tribunals in the latest stage of a wider push to overhaul the regime for labour disputes. The details however are hazy with The Government suggesting that low income families will be exempt from the new fee. As the large proportion of workers who apply to a tribunal have been dismissed it is unclear how many claimants will actually have to pay.....

The Ministry of Justice on Wednesday (14 December) unveiled two funding models for consultation. In the first, a fee of £150-£250 would be levied to begin a claim, with an additional cost of £250-£1,250 if the case goes to a hearing and no limit to the maximum award.

Under the second proposal, a single fee of £200-£600 would be charged, limiting the maximum award to £30,000. Those seeking greater compensation would have the option of paying an additional £1,750 fee.

More than 200,000 employment tribunal claims were made in the 2010-11 period, a 44% increase against 2008-09 according to Government figures, costing the taxpayer £84m.

Justice minister Jonathan Djanogly said this expense is "not sustainable", adding: "Our proposed fees will encourage businesses and workers to settle problems earlier, through non-tribunal routes like conciliation or mediation and we want to give businesses - particularly small businesses - the confidence to create new jobs without fear of being dragged into unnecessary actions."

Fee waivers will be available for low-income workers "to protect access to justice".

'Illegal worker' wins wages claim

Okuoimose v City Facilities Management
Appeal No. UKEAT/0192/11/DA

Where an employer attempted to escape his liability to pay wages on the basis that the contract of employment was illegal.

The claimant, who was a Nigerian woman married to a Spanish national, worked as a cleaner for the respondent. She acquired the right to take up employment in the UK as a family member of a European citizen who had the right of residence in a Member State. Her passport stamp said that her right of residence expired on 8 July 2010, at which date the respondent suspended her without pay because, they alleged, the contract of employment was now illegal.

The claimant initiated applied to renew the permit on her passport. The respondent dismissed the claimant on 20 August on the grounds of illegality.

Later the same day the claimant produced a letter, dated 16 August, from the Border Agency which said that until her application had been decided, she would be treated for immigration purposes as being free to work and live in the UK.

The respondent reinstated the claimant but the claimant went off on sick leave and made a claim that she had suffered unlawful deductions from her pay (contrary to s. 13(1) of the Employment Rights Act 1996) during the suspension period .

Employment Tribunal Judgment

The Employment Tribunal considered the fact that the claimant had not produced evidence which showed her entitlement to work in the UK and also the penalties that could have been imposed on the respondent if they had employed an illegal immigrant, and came to the conclusion that the contract of employment was illegal. The claimant appealed.


The EAT accepted the argument of the claimant, who claimed that she had not in fact lost the entitlement to work in the UK simply by reason of her failure to obtain a new stamp in her passport. The claimant had a right to work by reason of her status as a family member of an EU national. This right did not depend upon letters written by the UK Border Agency for she always had the right, irrespective of the expiry of the entry in her passport.

The Employment Judge had erred in that it considered the reasonableness of the employer’s belief that she was not entitled to work, and that it would be exposed to penalties, and these were irrelevant factors.

The Statutory Law

The legislation

5. The legislation arises under treaty obligations. The Claimant's husband is a Spanish national and the Claimant herself is Nigerian, who acquired rights by reason of being a member of Mr Okuoimose's family. The European obligation arises under directive 2004/38/EC, which provides in relevant part as follows:

"Article 23

Related Rights

Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self employment there."

"Article 25

General provisions concerning residence documents

1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents."

6. The Immigration European Economic Area Regulations 2006, seeking to transpose that directive, provide as follows:

"13.— Initial right of residence

(1) […]

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.


"14.— Extended right of residence

(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.


"15.— Permanent right of residence

(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not himself an EEA national butt who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;


7. Separate from those provisions, which deal essentially with the rights of qualified persons, is the Immigration, Asylum and Nationality Act 2006. It is directed at the consequences of immigration control for employers. Regulation 15 sets up a penalty for employing a person without the relevant entitlement to work:

"15 Penalty

(1) It is contrary to this section to employ an adult subject to immigration control if—

(a) he has not been granted leave to enter or remain in the United Kingdom, or

(b) his leave to enter or remain in the United Kingdom—

(i) […]

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise),

Tuesday, 6 December 2011

Important Appeal case looking at causation in Whistleblowing cases

Charles Price, Barrister examines a new appeal case, NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190 which looks at the causation test in whistleblowing cases....

Neutral Citation Number: [2011] EWCA Civ 1190


The employer challenged the EAT's analysis on issues of vicarious liability and the causation test in whistle blowing cases.

First ground, it was submitted that the EAT erred in law in holding that the employer could in principle be vicariously liable for acts of victimisation of its employees in circumstances where the employees had committed no legal wrong.

Answer: The Court of Appeal found that the EAT had erred; the House of Lords in Majrowski unambiguously held that an employer could be vicariously liable only for the legal wrongs of its employees. In Majrowski Lord Nicholls defined vicarious liability as follows (para 7):

"Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. ..The primary liability is that of the employee who committed the wrong."

It followed that, absent any legal wrong, there was no room for the doctrine of vicarious liability to operate. The EAT had followed the case of Cumbria which was wrongly decided.

Second Ground:

Causation - The EAT appears to have concluded that the Employment Tribunal did not apply, or may not have properly applied, the appropriate test in determining whether or not detriments suffered by the claimants were because of the protected disclosures:

i) the reasoning of the Employment Tribunal demonstrated that even if the EAT was correct in concluding that the employer could discharge the burden of proof only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions, that onus was plainly discharged here.

ii) the proper test in this context was not whether the decision was materially (in the sense of more than trivially) influenced by the prescribed reason but, as in unfair dismissal cases, it was whether the prescribed reason was the sole or principal reason for the action taken. Section 48(2) provides that the onus is on the employer to show the ground on which any act, or failure to act, was done:

Mr Linden QC counsel for the employer submitted that the EAT was wrong to draw analogies between the whistle blowing legislation and domestic legislation giving effect to EU law. In the latter context it is incumbent on a court to read the legislation compatibly with EU law and the "no sense whatsoever" test is adopted in EU Directives. But where there is no such requirement, the legislation should be given its domestic meaning even if that means that the same statutory language may be differently interpreted depending upon whether there is an EU context or not: see the observations of Lord Brown of Eaton-under-Heywood in R (Hurst) v London Northern District Coroner [2007] 2 AC 189 para 52, UKHL 13. Accordingly, the EAT was wrong to consider that it was obliged to follow the principles set out in Igen v Wong.

The Court of Appeal agreed with the first submission, saying that the reasoning of the ET demonstrated that they did not think there was any causal connection between the protected act and the respondent's acts or omissions to act. The only proper reading of the ET decision was that the Tribunal accepted that the protected disclosure did not play a part in the decision to re-deploy 2 of the claimants and deny 1 claimant the opportunity to work.

The finding of the ET, that there was no breach of s47B of the ERA, was restored.

Charles is a Direct Access Barrister, which means that he can receive instructions from the public without recourse first to a Solicitor

contact: 07846 692325

Monday, 5 December 2011

Bleak House no more as The EAT moves

From 8 December the Employment Appeals Tribunal will move from the austere building on The Embankment!

The new address from 8 December will be 2nd Floor, Fleetbank House

2-6 Salisbury Square, London, EC4Y 8JX

telephone numbers, fax numbers and email addresses will remain unchanged.

Tuesday, 22 November 2011

Shock horror! H and S goes mad!

I was told today by an employment judge in Bedford that i was not allowed to plug in my laptop unless it had been PAT tested!

Why I thought was that? Perhaps if the machine I had become so reliant on to record evidence self combusted we could all be in huge trouble. Surely PAT tested appliances mean that they will not self combust but usually this protects us from machines burning us alive in our sleep not in broad daylight where if the thing did catch fire there would be several witnesses, a panel and 2 representatives prepared to throw themselves on the inferno??? Blast those technocrats!

Monday, 14 November 2011

Worrying Return to the 80s

In a misguided attempt to perk up the small business sector The Government is unravelling a system which has worked well for over a decade. Firstly, we have been told that an employee has to wait 2 years before he or she can claim unfair dismissal. This may reduce the number of complaints to a tribunal slightly but leaves an employee exposed to bullying. We all know that a demoralized workforce leads to less productivity. Other mechanisms could have been used to decrease the number of complaints such as the imposition of an obligatory deposit to be paid for the losing employee.

The Government, we heard from The Prime Minister's lips, is now set to continue on it's myopic parade by unveiling another elephant trap for the poor employee, the 'confidential employer/employee 'discussion'. We know what the Government is getting at here. At the moment if a boss takes an individual into a dark room 'for a chat' if it relates to a disciplinary matter, an employee is entitled to have a fellow employee or union rep present. There is also a rule that if an employee is told that he might as well leave or is not pulling his weight it is seen as 'a vote of no confidence' by the employer and the employee can leave over it.

Well Mr Cameron in a speech heard last week, seems to be suggesting the usurpation of the tribunal in favour of back room chats. Where are the unions when we actually need them?

Charles Price Barrister

Monday, 3 October 2011

Do your know your rights when it comes to your contract of employment?

A great article kindly printed with permission from writer Abigail Errington

Would you know your rights at work if you suddenly found yourself in the throws of redundancy proceedings, discovered you were pregnant or quite simply thought you were working too many hours or travelling more than you thought you should be?

There have been some big changes to Employment Law this April, which every employee should be aware of, in order to know their statutory employment law rights at work.

Recent legal changes include:
phasing out of the default retirement age of 65
abolition of the statutory retirement procedure
an increase to statutory maternity, paternity and adoption pay
additional paternity leave
In these times of economic instability it is a good idea to review or at least be aware of the terms and conditions of your employment contract, so that you are prepared for any eventuality.

Julie Edmonds, employment litigator at MTA Solicitors outlines the key issues and the pitfalls to look out for:

What Should An Employment Contract Include?
1. It is important to have a contract of employment so that you know on what basis you are working for your Employer/Company. If you have a contract it will be clear whether you are employed, a worker or self employed. This is important when it comes to knowing your rights and what you are entitled to. Ie:
employee (you are entitled to statutory maternity, paternity and adoption leave, right to claim unfair dismissal after years service, statutory redundancy pay)
workers tend to be contract or agency based and subject to certain criteria, workers are entitled to things such as national minimum wage, right not to have deductions made from wage, Statutory Sick Pay, rests and paid holiday under working time regulations
self-employment – a person who works for himself/herself instead of an employer - you will not have a contract and will not have employment rights as such as you provide a service or trade for a fee in your own right. You are more likely to have a contract to provide services or a contract for services
2. Ideally you should always request and/or be given a written contract of employment if you are an employee. If it is not in writing however it will be created by conduct over time. You are entitled to be given a written contract in the first 2 months of employment after you have been employed for 1 month. So if you don’t have anything in writing after this time – don’t be afraid to ask for it. Having a contract in writing makes disputes with Employers less likely as it is clear from the start what both parties intend and agree to.

3. All contracts of employment have an implied term of mutual trust and confidence. This implies respect on both sides of the relationship and means that neither you nor your employer can act completely unreasonably. The ‘terms’ are the legal part of the contract.

4. Ideally the contract will be in writing so the terms are clear but they do not need to be written down to be terms. You must understand what is on your contract and what you are agreeing to at the start so you know what rights and obligations there are on both sides.

5. The principal statement of written employment particulars should include
name and employers name, job title, start date, if employment is not permanent, how long the contract is expected to last for, pay rate and details of pay day, hours of work, holiday entitlement, place of work, sick pay, notice periods, information re disciplinary and grievance procedures - which can refer to an employee handbook for full details so long as this is kept updated and pensions.

Key areas to look out for in your contract of employment
Is your employer going to pay you per hour worked or an annual salary based on a set number of hours per week?
how many hours per week is your employer expecting you to work? Is there a clause that states the number of hours followed by ‘or as required by the business or to satisfy business needs’ – this needs to be clarified
Is there a right to paid overtime or is this covered by the annual salary?
Is your place of work a set location or is there a mobility clause in your contract? Is there a limit on what is considered reasonable mobility under the clause such as distance or travelling time eg max 3 hours per day?
Are you entitled to full pay if you are off sick and if so for how long? If there is nothing in writing then the default position will be SSP
Holidays – are you entitled to carry over holiday from one year to the next? What is the holiday year
(Jan to Dec?). Does your holiday include or exclude bank holidays?
Are there any restrictions in the contract that you will continue to be bound by after you leave and for how long - such as contacting customers or working for competitors? You will need to clarify these areas
Check out any confidentiality clauses
Who owns the intellectual property rights that are created while you are an employee?
Finally, look out for flexibility clauses, especially those that are vaguely worded. Flexibility may be in relation to shift patterns or mobility clauses that can change your place of work. However, a flexibility clause that is too wide and just says that the employer can change your terms from time to time cannot be used to bring in completely unreasonable clauses.

All these aspects of a contract should be considered and understood so that you are in the best position should you get into any kind of dispute with your employer. MTA Solicitors provide expert Employment Law legal advice and services for both Employees and Employers from anywhere in England and Wales. There are offices based in Kent, London and Manchester

Friday, 23 September 2011

How do you vary terms and conditions of employment

Charles Price, Employment Barrister looks at the recent judgment of 'Slade and Ors v TNT (UK) Ltd' where an employer wanted to remove the opportunity to win a bonus from the contracts of his workforce firstly by way of a sum of money and then by dismissal and re-engagement. This case illustrates the legal tests looked at when considering the fairness of the dismissals...

In this case, an employer had sought to change terms of employment and made an offer to “buy out” certain existing terms, but warned that refusal would result in dismissal with an offer of re-engagement on the proposed new terms. The dismissal and redeployment strategy as we all know has been used regularly especially in recent years as employers have been forced to make cuts.

The payment of what was called an EOS bonus had been agreed in 1983 to incentivise the workers at the hubs to complete the sort on time. However, by 2005, the Respondent was negotiating with the union to discontinue the payment of the bonus and to replace it with an attendance bonus which was less advantageous to employees. The outcome of those negotiations was that new starters did not receive the EOS bonus but did receive the attendance bonus, whereas existing employees retained their entitlement to the EOS bonus. The Respondent agreed to “red circle” the bonus structure. Those new arrangements came in to effect from 1 August 2005.

As the company saw profits diminish steadily it sought to discontinue the EOS bonus:

The Tribunal found that the reasoning for this was a combination of:

(a) A belief that it would reduce costs.

(b) The payment of the bonus was divisive because an increasing proportion of employees at the hubs did not receive it despite doing the same work as those who did.

(c) The Respondent believed the effect of the bonus was that the night workers at the hubs were being paid an overall rate which was 26% above market rate for comparable work.

Between 11 February and 7 May 2009 there was a series of meetings between the Respondent and the union and other representatives. Those negotiations included tentative proposals to replace the bonus scheme but mainly centred on proposals to pay a lump sum to those entitled to receive the bonus in return for their agreement to change their terms and conditions. The proposals, as they developed, were the subject of three work force ballots but ultimately no agreement was achieved.

The Tribunal found that when it became clear that matters would not be agreed by negotiation the Respondent made a “final offer” to the work force for the payment of a lump sum in return for agreement to discontinue the bonus. On 12 May 2009 it wrote to the workforce setting out its point of view, making it clear that if the final offer was not accepted in a forthcoming ballot, then employees would be issued with contractual notice to terminate their contracts of employment.

In fact that final offer was revised and, on 22 May 2009, Mr Harper of the Respondent wrote to all affected employees giving details of the revised final offer making clear that if this could not be achieved by agreement then termination of employees contracts would follow. This revised final offer was also rejected.

On 5 June 2009 those employees who were represented in those negotiations and who, by the ballot, had rejected the final offer, received contractual notice terminating their contract of employment.

On 8 June 2009 a number of employees lodged a collective grievance against that termination, but all the affected employees accepted the offer of re-engagement under protest and without prejudice to their right to bring a claim of unfair dismissal in relation to the termination of their contract of employment.

The EAT judgment sets out the approach legally of the tribunal and made no criticism of it :

They first, considered, and made a finding, whether the reason for the dismissal was a substantial reason (reference to one of the fair reasons found for dismissal in the Employment Rights Act 1996) , the burden of proof being on the Respondent.

Second, if the reason for the dismissals was for a sound business reason, or one which the Respondent reasonably believed was a sound business reason, then it would be a substantial reason. (It was not necessary for the action to be the only available action to avert a business disaster, but on the other hand a reason must not be trivial.)

Third, if the Respondent satisfied the Tribunal as to the reason for the dismissal and that it was a reason of substance, the Tribunal must consider whether the dismissal was fair having regard to section 98(4) ERA. The Tribunal said of this,

“In this exercise our focus must be on the reasonableness of the respondent’s conduct. This involves an exercise balancing the advantages to the business of proceeding in the way that the respondent’s did compared with the effects on the claimants.”

Finally they had to consider the question of procedural fairness.

Firstly they looked at the reason for dismissal; they found (para 22) They found that the reason was a business restructuring, namely a change of remuneration structure with a view to reduction of costs and an increase in efficiency to combat falling revenues and an alarming fall in operating profits. They found that the Respondent had not been successful in all it set out to do in terms of cost reduction, but were satisfied they had an honest and reasonable belief that taking the proposed steps would achieve those aims. Those aims were legitimate and necessary and constituted a substantial reason satisfying the provisions of section 98(1). That conclusion was not challenged in the appeal.

One of the main appeal arguments concerning fairness was that:

ii) In determining the issue of fairness the Tribunal applied the wrong legal test in considering the reasonableness or otherwise of the Respondent not mitigating the loss to the employees’ (who did not accept the changes) wages by the payment of a lump sum at least equal to that it identified as affordable during negotiations and which it did pay to employees who accepted settlement agreements. The argument runs that if the Respondent could afford to mitigate the impact of the change on its workforce when it made the final offer, then it must be inequitable for it not to offer that same mitigation when it proceeded, not by way of an agreement but by way of imposition. The Tribunal erred by focussing on the much more limited basis of what the Claimants “legitimate expectations” required.

In other words, fairness required them to undertake a balancing exercise in the event they did not apply that test sufficiently or at all.

In The Hon. Mr Justice Wilkie's judgment, the Tribunal focused on the correct question, which was whether the employer acted reasonably, that is to say within the band of reasonable responses. In so doing, it rejected the contention that the only reasonable response for the Respondent would be to offer re-engagement on terms which included the buy-out sum. We agree with the Respondent that the lump sum had been offered in order to secure a benefit to the Respondent – agreement to the changes it wished. When they were unable to proceed by agreement, there was no obligation upon them as reasonable employer to include that lump sum in the terms of re-engagement they were offering in the aftermath of dismissal where they were not going to achieve any of the benefit of an agreement for which the lump sum had been offered.

Appeal No. UKEAT/0113/11/DA

By Charles Price Barrister No5 Chambers

Charles is a Public Access Barrister which means that he can be instructed by members of the public.

Friday, 5 August 2011

Free employment law app launched!

In what represents a rare incursion by law firms into a popular media, a Scottish law firm has launched an iPhone app which will help employers calculate compensation claims, sections on unfair dismissal, redundancy, maternity and paternity leave and equal pay and discrimination...

The free HR Advisor app includes an interactive unfair dismissal compensation calculator and an interactive redundancy calculator.

Law firm MacRoberts said its app was designed to give employers useful information about UK employment law.

It will also have links to government sites and bodies such as Acas and the Equal Opportunities Commission.

Graham Mitchell, employment law partner at MacRoberts, told the BBC: "We have listened very carefully to our HR clients and have developed a practical, useful and relevant app which addresses the issues HR professionals face every day in an increasingly difficult employment law environment.

"Many of our clients are large employers and they have issues with employment law all the time. It is an area in which reliable information is often needed quickly and it lends itself to an information-based system such as HR Advisor."

Your editor downloaded this app simply by inputting 'HR adviser' (rather than advisor). The app is certainly easy to use and offers information on basic concepts of employment law. HR advisors and practitioners may find the compensation calculator useful. This is one of the first incursions by a law firm into a form media most should be looking to use.

If you know of any other useful legal apps please tell us!

Doctor's dismissal and Right to a Fair Trial

The High Court has rejected a doctor's claim that his dismissal was a determination of his civil rights thus entitling him to an independent and impartial tribunal under Article 6? Mattu v University Hospitals Coventry and Warwickshire NHS Trust.

By an agreement made in writing on 3 February 1998[1] Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust, as a consultant in non-invasive cardiology and general medicine. Mr John Hendy QC on behalf of Dr Mattu argued that important procedural safeguards incorporated, into the agreement were not met enabling the Judge, although not concerned with the underlying merits of the matter, to set aside the dismissal.

Dr Mattu was on sick leave for at least a year from September 2006 and as a result disciplinary proceedings were commenced. The upshot of the disciplinary proceedings was that by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.

Dr Mattu decided to return to work whereupon he was asked to re-skill. Accordingly, reskilling was arranged for Dr Mattu but, unhappily, it is this process which led to Dr Mattu's dismissal in November 2010. In short the parties fell out over the question of reskilling and Dr Mattu declined to sign an action plan in connection with the provision of reskilling. He thought that reskilling should have an additional six months connected to research with the possibility that such six months be spent in the United States of America.

Dr Mattu was dismissed principally for not complying with the re-skilling procedure. Following the dismissal a number of things happened. First, an appeal was made against the dismissal to a panel appointed by the Trust, which panel is empowered to review the dismissal proceedings. That panel met on 9 May 2011 and 13 May 2011. It stands adjourned until 20 September 2011. Second, Dr Mattu has initiated proceedings in an employment tribunal for unfair dismissal, race discrimination, disability discrimination and, what is informally called, whistle blower discrimination. More formally the last mentioned is protective disclosure.

Perhaps, most interestingly, a distinct case was also maintained on the basis of the Human Rights Act 1998. It was said, uncontroversially, that the Trust is a public authority within the Act. Further, it was argued that the process by which Dr Mattu was dismissed and his appeal from it constituted a determination of a civil right possessed by Dr Mattu so as to provide him with the protection given by article 6 of the European Convention on Human Rights as scheduled to the 1998 Act.

High Court proceedings were commenced.

The Trust is a public body to which the Human Rights Act 1998 applies. By article 6 of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 Dr Mattu is entitled in the determination of his civil rights to a hearing before an independent and impartial tribunal. Mr Hendy argued that his dismissal by a public body such as the Trust, which is, in turn, part of the National Health Service, is equivalent to being struck off the medical register and barred from practice in the National Health Service. Consequently, it was argued that the Trust were determining Dr Mattu's civil rights so as to entitle him to an independent and impartial tribunal, which, it is said, he did not enjoy as Mr Hardy cannot be said to be independent of the Trust of which he is chief executive.

The crux of the matter was referred to by Blair J in a case called R (oao Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) accepted that a person's right to practise his profession was a civil right for the purposes of article 6. He recorded (paragraph 21) that it was not in dispute but that a person's right to practise his profession was a civil right for the purpose of Article 6. This is not the same, he said, as that person's right to remain in his current employment.

Thus, The Court disagreed, holding that GMC proceedings would not be affected, and that he could still practise privately, or elsewhere within the NHS. At worst, the Claimant's ability to remain in his current employment was affected. But unlike the right to practise one's profession, doing a particular job is not a civil right, and is not protected by Article 6.

Mr Hendy argues that article 6 is also engaged when an individual's civil right to enjoy a good professional reputation is determined but this was also rejected by Timothy Straker QC (sitting as a Deputy High Court Judge)

'I do not doubt that such dismissal could be described as a blot on Dr Mattu's copy book but I do not consider that Mr Hardy was determining Dr Mattu's reputation.'

The judgment is useful for anyone wanting to know more about the application of Article 6 on public bodies as employers.

NB Interesting similar cases are considered in this judgment such as: Kulkarni v. Milton Keynes Hospital NHS Trust [2010] 1CR 101

Charles Price is a Public Access Barrister and works at No5 Chambers

Thursday, 23 June 2011

New Redundancy Notification Clarification

New redundancy law

The EAT has handed down a new judgment ,'Howard v Campbell's Caravans', involving notification to an employee that he will be retired after his 65th Birthday...

The Case involved the dismissal of an employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65. It was said to be unfair and to constitute age discrimination because the employer had failed, in the manner of the prescribed retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996. Specifically it was contented that the employer had failed to specify the retirement date in that the notification had merely said that he would be retired “after” his 65th birthday.

Mr Justice Underhill argued that it does not necessarily constitute a failure to comply with the requirement of the statutory retirement procedure that the employee must be notified of the intended date of his retirement.

It was held that the inclusion of the word “after” did not always mean “on a date later than” and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later)

On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.

Friday, 10 June 2011

The Relevance of 'Burchill' to Capability

In the Edinburgh Appeal Tribunal an appeal against a finding of unfair dismissal was upheld in the case of D B Schenker Rail (UK) Ltd v Doolan Appeal No. UKEATS/0053/09/BI 13 April 2011

The ET had no basis for finding that the employers were not entitled to conclude, on expert evidence that the Claimant was fit to work - they had substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.

The dismissed man was a production manager suffering from stress and depression - a referral to an occupational psychologist was made - eventually he was dismissed on capability grounds.

The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175). A question arose as to whether it was a genuine reason and whether certain expert evidence should have been relied upon by the Respondents.

Para 33 sums up the correct approach when there is a question as to the sufficiency of the reason for dismissal:

'Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.

The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.'

Thursday, 10 February 2011

Knowledge of the person making the decision to dismiss is what counts!

Knowledge of the person making the decision to dismiss is what counts!

9th February - In the recent case of Orr v Milton Keynes Council, the appellant, had been dismissed following two separate incidents, including rudeness to his line manager, M, both of which his employer found amounted to gross misconduct. The decision maker had been unaware that the second incident had been provoked by the conduct and language of M, which the Tribunal later found amounted to direct race discrimination....

The Defendant won their case at the Employment Appeals Tribunal but the Court of Appeal (the next step up) restored the original decision of the Employment Tribunal. The Court of Appeal thus held by a majority that the tribunal had been correct to conclude that the dismissal remained fair because the decision, on the facts known to the decision maker, was reasonable.

Sedley LJ regarded what was known by the employer and the employees at the time and decided accordingly. Therefore, the moral of the story is that it is what was known by the employer at the time of dismissal is crucial.

Useful article on default retirement age

Curtesy of HR Zone and Iain Jenkins Prtner at Lee and Priestly

The recent announcement by the Government that the default retirement age (DRA) will, as expected, be abolished with effect from 1 October has been welcomed by age campaigners.

It does not, however, necessarily spell the end of forced retirement and employers groups, including the CBI, have pointed out. The proposed abolition of the DRA in October 2011 will notprevent private employers from having a compulsory retirementage provided they can objectively justify having it.

To establish objective justification they will need to have a legitimate aim, or aims, for having a DRA and, in relation to those employees to whom it applies, that aim, or those aims, must be consistent with the Government's approach to the UK's DRA of 65 and both the chosen retirement age and the process for implementing it are a proportionate response to those legitimate aims.

That will be for the courts to determine on a case by case basis and, whilst it is likely to be a high hurdle, it will be possible. Recent case law (Seldon v Clarkson Wright & Jakes) has made it easier, in principle, for employers in the private sector to put forward an argument of objective justification and to have a DRA of some kind, although it is probably going to make it more difficult to have one across the board.

Employers should, therefore, look carefully at their need to have a retirement age and then at how to justify and implement it. Iain Jenkins, partner at law firm Lee & Priestley, says that being able to justify having a retirement age after October 2011 will be a high hurdle, but not impossible …

Wednesday, 26 January 2011

Minimum wage and 'on call claims'

South Manchester Abbeyfield Society Ltd v Hopkins & Anor UKEAT/0079/10/ZT

Employment Case Update have covered a recent EAT case relating to the above. The Judgment reviews all of the law in this area succinctly and explains when the Minimum Wage Working Time Regulations 1998 and when the National Minimum Wages Act 1998 ("NMWA") and the National Minimum Wage Regulations 1999 become relevant. The judgment considers interesting concepts such as can a Claimant only claim successfully for time when actually awake.


Tuesday, 25 January 2011

Law Soc guidance on compromise agreements

This guidance is so convoluted that it would be great if someone would test the meaning of the poorly drafted clause in the Equality Act:


Thursday, 20 January 2011

Help me complete the London Marathon in aid of CLIC Sargent

Hi I am running in the London Marathon this year in aid of
CLIC a charity which helps children and familieswith cancer.

Please help assuage the pain of the run and help me reach my 2500 total by donating

Tuesday, 4 January 2011

Excellent article on compromise agreement muddle

The Law Gazette has produced an excellent article summing up the debate and issues arising out of the dubious draughtsmanship of part of the Equality Act. The only problem is that we still do not have a copper plated solution.

The author here even refers to making compensation payable in installments and of course the old COT3 via ACAS in order to avoid further litigation.

Link: Article