Tuesday, 29 May 2012

Save time with the employment claims toolkit

Bath Publishing, the publishers of Employment Cases Update, have created a program which could save employment lawyers a huge amount of time. The 'Employment Claims Toolkit' is a ‘smart' program which produces a schedule of loss at the click of a button.

At first you fill in a template with the names of the parties, type of claim (unfair dismissal, wrongful dismissal, discrimination, TUPE, protective awards etc), date of dismissal etc but the cleverness of the device is not apparent until you click the schedule. After all we have all filled in computerised forms in order to change currency or even to work out redundancy payments or to turn gross to net see here. However this program is far more complex. For example once you have filled in the forms the Toolkit works out all of the maths and then if needed can adjust to take into consideration a change of hearing date or the date the claimant gets a new equivalent job.

But it is even cleverer than that: it will for example, adjust the maths and restrict the sum to the present Compensatory Award cap. It applies the correct weekly limit on gross pay where applicable, including the Basic Award. There is also the ability to reduce the compensation schedule for contributory fault and Polkey. It also grosses up awards and calculates the prescribed element. It even calculates the interest on discrimination awards.

For those who need their memories refreshing there is a resources section which gives useful help with minimum wage rates to compensation limits. There is also an incredibly useful 'Help' section which gives you all of the law you need when putting together a schedule of loss. Below is an extract:

'Adjustments to the Compensatory Award'

The Toolkit is designed to enable users to make any necessary adjustments to the compensatory award in the appropriate order (Digital Equipment Co Ltd v Clements (No 2) [1998] IRLR 134).

The order adopted by the Toolkit is as follows: a) A deduction in respect of any payment in lieu or ex gratia payment which has been made to the employee as compensation for the dismissal (Digital Equipment Co Ltd v Clements (No 2) [1998] IRLR 134.

The Toolkit will automatically make this deduction.

 b) A deduction of earnings which have mitigated the claimant’s loss or a sum which reflects any failure by the claimant’s failure to mitigate his/her loss (ERA s123(4)). The Toolkit will automatically make this deduction.

 c) A ‘Polkey’ deduction to reflect the chance that the claimant would have been dismissed in any event and that the employer’s procedural errors accordingly made no difference to the outcome (Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL)). It is for the user to enter the appropriate percentage.

 d) A percentage increase or reduction up to a maximum of 25% to reflect a failure by the employer or employee to comply with the ACAS disciplinary code (s207A TULR(C)A). It is for the user to enter the appropriate percentage.

 e) An increase for any failure by the employer to provide written particulars of employment (s38 EA 2002). This figure is to be entered on the ‘statutory rights’ tab. It is for the user to enter the appropriate sum between 2 and 4 weeks gross pay.

 f) A percentage reduction for any contributory fault on the part of the employee (s123(6) ERA 1996). It is for the user to enter the appropriate percentage remembering that this percentage does not have to be same as any deduction for contributory fault for the Basic Award.

 g) A deduction of any enhanced redundancy payment to the extent that it exceeds the basic award (s123(7) ERA 1996). The Toolkit will automatically make this deduction using the total redundancy pay figure entered by the user on the core data screen or on the compensation (immediate loss of earnings) tab.

 h) A deduction for accelerated payment of compensation in respect of future loss (See Bentwood Bros (Manchester) Ltd v Shepherd [2003] IRLR 364). It is for the user to enter the appropriate percentage.

 i) Interest on Compensatory Award (discrimination cases only) (The Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996). Interest on compensation other than an award for injury to feelings runs from the ‘mid-point’ date to the date of calculation. The mid-point is calculated as the date halfway between the discriminatory act and ending on the calculation date (usually the judgment date). Interest accrues from day to day and is simple rather than compound. It is for the user to enter the date of calculation and the interest rate to be applied. A table of interest rates can be found under the Tables and Resources tab.

The Toolkit's usability is helpful and you can store your finished schedules or works in progress with ease, or even save the schedules as Word documents. This tool will be incredibly useful for the Solicitor or Barrister handling many cases, simply for reasons of ease of management.

A useful small video is available and should be watched just to show the user how many tricks the program has up its sleeve. Although this program is only as good as the individual inputting the figures, it will doubtless save inordinate amounts of time. For those fed up with being handed messy, sometimes handwritten schedules of loss, the final product from the Toolkit is smart enough to be put before an Employment Judge.

Finally, the price is a snip at £120 for a year or £35 for a month. In a world where legal resources are often nearer the £1000 mark this represents a bargain.

To subscribe or see prices click here.

To see a video or a sample schedule see here.

 By Charles Price, A Direct Access Barrister

Monday, 21 May 2012

Government 'to drop no fault dismissal'

This week LNUK reported that Vince Cable's Department seemed to be lobbying against a Government proposal to introduce 'no fault dismissal'. The good news it seems is that the Government is to back track on a plan Cable is reported to have called, 'Bonkers' in private. A lack of support from business leaders and a furious backlash from Cable, who has warned ministers that the proposal would leave a "dead hand of fear" hanging over employees, is expected to persuade No 10 that the proposal should be quietly dropped later this summer. Damian Collins, a Conservative MP who has edited a report called the Growth Factory, told the World at One: "I think businesses and people out of work would want us to consider any policies that might encourage small businesses to take on more staff … Lord Oakeshott should let some of his colleagues read the report and talk to businesses in their constituencies and see what they think." The prime minister gave no indication of a climbdown on Sunday night when he said he was still interested in the Beecroft proposal that employers should be allowed to sack unproductive staff without explanation, known as no-fault dismissal. "On the issue of no-fault dismissal and other proposals like that, I am interested in anything that makes it easier for one person to say to another person: 'Come and work for me,' because we need to make our economies flexible," the prime minister said in Chicago. Oakeshott the former Liberal Democrat Treasury spokesman, who is an adviser to Cabletold Radio 4's The World at One: "It would be bonkers – a sack-on-the-spot mentality … All Liberal Democrats are against a sack-on-the-spot mentality and it won't happen." Hopefully, The Guardian is correct when it says that the Conservatives will be persuaded to drop the much maligned policy. By Charles Price, Barrister

Thursday, 17 May 2012

Supreme Court backs Homer in Important age discrimination judgment

HR Departments may scramble to alter their policies on promotion in light of this judgment. This case concerns the scope of indirect discrimination on the ground of age. It was heard alongside the case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16 which concerned the scope for justification of direct discrimination on the ground of age. The Supreme Court has agreed with arguments on behalf of Mr Homer The question was whether it was reasonably necessary to demand that candidates should posess a law degree in order to achieve the legitimate aims of the scheme to deny the benefit of promotion to people in his position. The appeal concerns the proper interpretation of “particular disadvantage” in Regulation 3(1)(b)(i) of the Employment Equality (Age) Regulations 2006 (“the Regulations”). Mr Homer began working for the Police National Legal Database (PNLD) as a legal advisor in 1995 at the age of 51. When he was appointed the role did not require a law degree or equivalent if the post-holder had exceptional experience or skills in criminal law combined with a lesser qualification in law. Mr Homer fell within this latter category. PNLD began to experience problems in attracting suitable people for the role of legal advisor. In 2005 the organisation introduced a new grading structure to improve career progression and offer more competitive salaries. The new structure provided for three promotion “thresholds” above the starting grade, the third and final of which requiring a law degree. In 2006 Mr Homer was graded under the new system as reaching the first and second thresholds but not the third. Because of his previous skills and experience he was, under the old grading structure, effectively at the top grade. In order to reach the third and highest threshold under the new structure Mr Homer would have been required to study for a law degree part-time alongside his work. This would take four years to complete. At this time Mr Homer was 62 years old and, being due to retire at 65, would have been unable to reach or benefit from being at the third threshold before leaving the employment. His various internal appeals and grievances were dismissed and, in April 2007, he issued proceedings under the Employment Equality (Age) Regulations 2006, SI 2006/1031 (“the Age Regulations”) which came into force in October 2006. Regulation 7 of the Age Regulations (which have since been repealed but substantially re-enacted under the Equality Act 2010) makes it unlawful for an employer to discriminate against employees such as Mr Homer in respect of, amongst other things, opportunities for promotion or receiving of other benefits. Regulation 3 provides that indirect discrimination occurs when a person (‘A’) applies to another person (‘B’) “… a provision, criterion or practice which he applies… to persons not of the same age group as B, but which puts… persons of the same age group as B at a particular disadvantage when compared with other persons, and which puts B at that disadvantage and A cannot show the . . . provision, criterion or practice to be a proportionate means of achieving a legitimate aim.” In contrast to the Seldon case, it was accepted that regulation 3 had properly transposed article 2(2)(b) of Council Directive 2000/78/EC on equal treatment in employment and occupation into UK law in cases of indirect age discrimination. In January 2008 the Employment Tribunal found that the appropriate age group was employees aged between 60 and 65 as these persons would have been unable to obtain any real benefit from obtaining a law degree before retiring. It went on to hold that Mr Homer had been indirectly discriminated against on the ground of age and that this was not objectively justifiable on the facts. The Employment Appeal Tribunal held that there had been no indirect discrimination, but that if there had been then it would not be objectively justified. The Court of Appeal dismissed Mr Homer’s appeal against the first finding, and dismissed the Respondent’s cross- appeal against the second finding. Both findings were then appealed to the Supreme Court. JUDGMENT The Supreme Court unanimously allows Mr Homer’s appeal on the first issue, finding that he was indirectly discriminated against by the Respondent. The Court remits the case to the Employment Tribunal to reconsider the issue of justification. Lady Hale gives the lead judgment with which all other members of the Court agree. Lord Hope and Lord Mance add some comments of their own. REASONS FOR THE JUDGMENT References in square brackets are to paragraphs in the judgment The Employment Appeal Tribunal and the Court of Appeal had been persuaded by the argument that Mr Homer was put at a disadvantage, not by his age but by his impending retirement [12]. It was accepted that his retirement was what prevented him from gaining any real benefit from acquiring a law degree. What “put B” at a particular disadvantage was not his age as such but the fact that he was due to leave employment within four years, his position being comparable with any other employees nearing the end of their employment for whatever reason. The Supreme Court disagrees with that analysis. Its flaw is to ignore the fact that persons in the position of Mr Homer were disadvantaged because of a reason (retirement) that directly related to their age. Persons similarly disadvantaged for reasons not related to their age would not fall within the scope of the Age Regulations and were not the intended recipients of its protection [13]. The form of words used under the Age Regulations was intended to make it more straightforward to establish claims of indirect discrimination with claimants simply having to establish that they in particular, and persons of their age group in general, were, in fact, disadvantaged when compared with other persons [14]. In any event, there are material differences between leaving work because of impending retirement and other reasons for doing so [15]. The law on indirect discrimination “…is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic.” [17]. As to justification, the issue is to be remitted to the Employment Tribunal for consideration in the light of the Supreme Court’s findings. The range of aims capable of justifying indirect discrimination is greater that those available in the context of direct discrimination (see Seldon v Clarkson Wright and Jakes [2012] UKSC 16) [19]. In particular, a real business need on the part of the employer alone may be sufficient. In addition to pursuing a legitimate aim, the treatment must be proportionate which means it is “…both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.” [22]. It is the criterion itself that must be justified as opposed to its discriminatory effects on the individual [23]; however part of that assessment includes comparing the likely impact of the criterion on the affected group as against the importance of the aim to the employer [24]. It is noted that Mr Homer was not dismissed or downgraded for not having a law degree, but was simply denied the additional benefits attaching to the newly introduced third threshold. The question was whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position [24]. It was not clear whether the Employment Tribunal had been suggesting a specific exception for Mr Homer alone: that was not an appropriate response to a discrimination claim. There has to be some way of modifying the criterion for everyone adversely affected but without introducing discrimination against another group [16, 25]. Lord Hope addresses the argument made that exempting Mr Homer from the third threshold requirements would unfairly advantage persons of Mr Homer’s age group. He does not accept that discrimination on grounds of age can be regarded as justified simply because eliminating it would put others at a disadvantage which is not related to their age [30]. Lord Mance however expresses some concern about the possibility of making an exemption for Mr Homer personally or for all those persons in the same age group as him, on the basis that it might unjustifiably discriminate against younger employees on the ground of their age [36]. HR Departments may now scramble to consider and change policies and grading criteria in light of the finding. Charles Price is a Direct Access Barrister at No5 Chambers Homer (Appellant) v Chief Constable of West Yorkshire Police (Respondent) [2012] UKSC 15 On appeal from the Court of Appeal [2010] EWCA Civ 419

Government warns against its own employment reform proposal

The Department for Business Inovation and Skills has produced a report which suggests that Government plans for 'compensated no fault dismissal' may be detrimental to the economy. The introduction to the report states that: 'Though the UK has a competitive employment framework by international standards, the Government believes that steps can be taken to improve it. Through the Employment Law Review, the Government is pursuing an ambitious programme of reforms to develop the framework to encourage firms to take on staff and grow. As part of this work, BIS recently issued a call for evidence seeking views on the issue of dismissing staff. The call seeks views in particular on the concept of ‘compensated no-fault dismissal’ for businesses with fewer than 10 employees, which would allow these employers to dismiss an employee where no fault is identified, provided a set amount of compensation is paid. The aim of such a reform would be to allow small businesses to have the right number of people at the right time. Uninformed economic reform, however, can have adverse and unintended consequences. The Government is therefore seeking to understand the potential economic impact, including the wider impact on both employer and employee confidence, of no-fault dismissal. Bearing this in mind, BIS undertook a study of international labour market regulation. Following an initial assessment of international data BIS identified three countries with particularly relevant features to the no-fault dismissal proposal: Germany, Australia and Spain.' The report goes on look at interesting case studies from other countires which seem to suggest that such a change is not desirable.