Wednesday 17 December 2014

Judicial review of fees for employment tribunals dismissed....again!

Lamentably, for impoverished claimants, Unison's judicial review application, challenging the legality of employment tribunal fees, was dismissed this morning by the High Court; the reasons will appear on BAILII today.

www.charlesprice.net

Monday 15 December 2014

Some injury to feelings awards deemed 'taxable'...Will this mean grossing up?

The First Tier Tribunal (Tax Chamber) in Moorthy v Revenue & Customs Commissioners has decided that some injury to feelings awards will be taxable.

Any payment made "directly or indirectly in consideration or in consequence of, or otherwise in connection with" the termination of employment was said to be taxable under s.401 Income Tax (Earnings and Pensions) Act 2003.

The First Tier Tribunal drew a distinction between cases where injury to feelings compensation is paid where it is, or is not, "directly or indirectly in consideration or in consequence of, or otherwise in connection with" the termination of employment.

No doubt this definition of Byzantine complexity will further darken the already murky waters for practitioners when attempting to grope for a settlement whilst trying to work out tax liabilities for their client.

www.charlesprice.net

Monday 8 December 2014

Judge resigns after racist remark about a woman called Patel


An immigration judge has been forced to resign as a district judge after making a racist remark about a crime victim reports The Guardian.

Richard Hollingworth was hearing a case of harassment at Preston magistrates court when he told officials to bring the victim, Deepa Patel, to court because he wanted to complete his sentencing that afternoon.

The prosecutor, Rachel Parker, said she thought it was too short notice and didn’t know whether Patel could get the time off work.

Hollingworth asked where she worked, and Parker said she did not know. The judge replied: “It won’t be a problem. She won’t be working anywhere important where she can’t get the time off. She’ll only be working in a shop or an off-licence.”


However, Hollingworth remains an immigration judge, something that leaves CPS officials “astonished”. That role may be short-lived, as the judge’s outburst is being considered by Lord Justice Gross, the senior presiding judge for England and Wales.

www.charlesprice.net

Friday 5 December 2014

Plumber deemed a worker - Pimlico Plumbers v Smith.

A plumber who wore a 'Pimlico' Plumber's uniform, drove a van and  payment was made to Pimlico was deemed a 'worker and not an employee' in Pimlico Plumbers v Smith.

In upholding the decision that he was not an employee, the EAT held the employment tribunal had been entitled to have regard to the Claimant's financial risk, the degree of autonomy as to quotations and how work was carried out. It was also of significance that both parties acted as though the Claimant was self-employed.


The terms of the agreement between the Claimant and Pimlico as found by the Employment Tribunal, included the following;
1.                  The Claimant was a self employed operative described as an independent contractor of the Company, in business on your own account.  Nothing in this Agreement shall render you an employee, agent or partner of the Company and liable to account for his income tax and value added tax and social security contributions.

2.                  He was required to provide all his own tools, equipment, materials and other items required.

3.                  The Claimant accepted personal liability for work undertaken by him.

4.                  The Claimant was required to provide insurance.

5.                  Normal Working Hours consisted of a 5 day week, with a minimum of 40 hours.

6.                  There was no express provision permitting the Claimant to provide a substitute in respect of services he had agreed to provide.

As a matter of practice Pimlico permitted operatives to transfer work to other operatives but there was no unfettered right to substitute another operative.


The Employment Appeal Tribunal derived the following principles from the authorities;
In considering whether a person is a limb (b) worker the starting point must be the words of the statute and that there is no one formula or characteristic than can be said to be determinative.
1.                  The Court or Tribunal must take a holistic approach and may take account of matters such as the degree of subordination of the worker to the ‘employer’ and the degree of his integration into the ‘employer’s’ business and also whether the contract between employer and ‘worker’ was in essence a contract between two independent business undertakings; the extent to which the ‘worker’ carried out work other than for the ‘employer’ and his right to do so.

2.                  The employer of a person integrated into the employer’s workforce and carrying out work for that employer is in no sense his customer or client.

3.                  If a ‘worker’ carries out work for more than one ‘employer’ he can nonetheless be a limb (b)  worker of one or more such employers if the statutory criteria are met.

In this case the issue of substitution became relevant:


100.   The relevant authorities in determining whether a person was an employee or worker including those of Ready Mixed Concrete and Market Investigations were considered in the Supreme Court by Lord Clarke in Autoclenz [2011] ICR 1157.  At paragraph 19 Lord Clarke stated:
“Three further propositions are not I think contentious:

i) As Stephenson LJ put it in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, 623,

‘There must … be an irreducible minimum of obligation on each side to create a contract of service’.

ii) If a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status: Express & Echo Publications Ltd v Tanton (‘Tanton’) [1999] ICR 693, per Peter Gibson LJ at p 699G.

iii) If a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement: see eg Tanton at p 697G.

The essential question in each case is what were the terms of the agreement.”

The vital paragraph in relation to 'limb b' workers such as the present case deals with the relevance of the right to provide a substitute worker and whether it makes any difference if that right is unfettered or not:

'120.   I apprehend that in this regard the position of putative employees and limb (b) workers is similar; Premier Groundworks was a case involving limb (b) workers rather than employees. Even if the Respondent could establish that the Claimant had a contractual right to delegate his work or to provide a substitute the Claimant would still be considered to be a limb (worker) because his right was not unfettered.'

www.charlesprice.net


Wednesday 3 December 2014

Reasonable adjustments database - examples to be aware of


A Database of 'Reasonable Adjustment' Claims
I have listed some judgments below and the types of reasonable adjustment claims which have worked before in the ET. Contact me if you know of any others......


Reasonable Adjustments:

Paying for private medical treatment to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work.

Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12

Allocating some of the disabled person's duties to another person;

Transferring him to fill an existing vacancy

Returning to work on a phased return/and or in a temp role -   Fareham College Corporation v Walters Appeal No. UKEAT/0396/08/DM UKEAT/0076/09

Altering hours of working or training;
Costco Wholesale UK v Newfield UKEAT/0617/12/KN - reducing hours
and Secretary of State for Work and Pensions v Higgins. Appeal No. UKEAT/0579/12/DM

Assigning him to a different place of work or training;
Newcastle City Council v Spires UKEAT/0334/10/ZT

Allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
working from home - Secretary of State for Work & Pensions v Wilson UKEAT/0289/09/DA

Giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
Acquiring or modifying equipment;
Modifying instructions or reference manuals;
Modifying procedures for testing or assessment; - Burke v The College of Law & Anor [2012] EWCA Civ 37
Providing a reader or interpreter;
Providing supervision or other support.''
Failure to provide psychiatric services - Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12


Dismissal - Fareham College Corporation v Walters (see above).
In this case, the employer laid itself open to criticism and a finding that it failed to
make reasonable adjustments.  Its conduct provides a list of ‘actions to be avoided
at all costs’:  

• The manager dealing with the capability procedure did not have any knowledge
or understanding of the claimant’s underlying condition;
• The respondent did not have up to date medical reports as to the claimant’s
position or prognosis;
• The manager who concluded that it was unlikely that the claimant would be
able to return to her position on a full time basis was unable to explain the
reasoning which led him to that conclusion;
• The respondent failed to consider that allowing the claimant to return using a
phased return or in an alternative role might only be necessary in the short
term, and therefore in dismissing the possibilities due to the difficulties such
steps would have on educational delivery, failed to demonstrate that the
adjustments were not reasonable under s.18B.

Chief Constable of South Yorkshire Police v Jelic UKEAT/0491/09/CEA
chronic anxiety syndrome - 1) he should have been deployed into a non client-facing officer role rather than retired.

Charlesprice.net

Tuesday 25 November 2014

The Shared Parental Leave Regulations 2014 in force 1st December 2014

The final version of the Shared Parental Leave Regulations 2014 are available. They technically come into force on Monday (1st December), but they only work for babies born before April 2015.


Key points:

Employed mothers will continue to be entitled to 52 weeks of Maternity Leave and 39 weeks of statutory maternity pay or maternity allowance.

If they choose to do so, an eligible mother can end her maternity leave early and, with her partner or the child's father, opt for Shared Parental Leave instead of Maternity Leave. If they both meet the qualifying requirements, they will need to decide how they want to divide their Shared Parental Leave and Pay entitlement.

Paid Paternity Leave of two weeks will continue to be available to fathers and a mother's or adopter's partner, however Additional Paternity Leave will be removed (Shared Parental Leave will replace it).
Adopters will have the same rights as other parents to Shared Parental leave and pay.

Shared Parental Leave will enable eligible mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed for adoption. This could mean that the mother or adopter shares some of the leave with her partner, perhaps returning to work for part of the time and then resuming leave at a later date.


Regulations

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Thursday 20 November 2014

ACAS early conciliation leads to limited success

ACAS have published their first six months figures which indicate whether The Government's big idea on conciliation is working.

Over the first six months, it has conciliated in 37,000 cases (of which about 1,000 were multiple claims, covering about 8,000 potential Claimants). The report's preliminary indications show that 18% of early conciliations resulted in a COT3.

ACAS claim that 58% did not progress to a tribunal claim but this must be difficult to monitor as employees will have at least a month to enter a claim. In the cases I have been involved in I have seen no monitoring of what happens after the conciliation period by ACAS.

Report

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Thursday 13 November 2014

Employment tribunal not allowed to make enquires on its own behalf into evidence not volunteered by either party

In East of England Ambulance Service NHS Trust v Sanders the EAT has held that a tribunal committed a procedural error in searching on the internet for evidence that supported a claimant’s case that she was disabled, and in relying on that evidence in its conclusions. The tribunal thereby gave the impression of bias against the respondent employer. This was compounded by the tribunal preventing forensic cross-examination of the witness claiming to be disabled and itself asking leading questions.

As an aside, Mr Justice Langstaff, President of the EAT, went on to raise a seemingly novel procedural issue. He pointed out that the bundle of authorities contained no marking of the passages that were to be relied upon.

Langstaff P warned that, in future, a party who turns up to pursue an appeal wishing to rely upon an unmarked bundle may be required to mark all the bundles before the case begins, and must be prepared to give sufficient time to the other side, especially if a litigant in person, to consider those passages. If this gives rise to a risk of the matter being part-heard or adjourned when it would not otherwise have been, then that party must be prepared to defend any resulting costs application.

EAT judgment

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Monday 10 November 2014

Employment tribunal decides attendance at union meetings is not 'working time'

Xperthr.co.uk reported this week that an employment tribunal found that attendance at union meetings is not "working time". Unfortunately this was not an EAT case but still interesting:


Edwards v Encirc Ltd ET/2412489/2013

Two trade union representatives working night shifts claimed that the time they spent attending union meetings during the day was "working time" and so they were entitled to an 11-hour rest period from the end of the meetings until the start of their next night shift. The employment tribunal rejected this claim.... report

www.charlesprice.net

Tuesday 4 November 2014

Overtime and holiday pay - Bear Scotland v Fulton (and conjoined cases) a filip for beleagured employees


 Employers should be aware that under the Working Time Regulations 1998, every employee is entitled to 20 days paid holiday a year, i.e. 4 weeks. Holiday pay is calculated on the basis of an employees normal working hours. For example, if you work a 35-hour week, then your holiday pay is based on 35 hours. However, if you are guaranteed 5 hours overtime each week, then holiday pay is calculated on the basis that your normal working hours are 40 hours week.
What happens if you work on average 5 hours overtime each week but it is not guaranteed? Up until recently, it would not have counted when calculating holiday pay. The judgment highlighted today has changed this although its auspices to not extend to not the additional 1.6 weeks under regulation 13A of the Working Time Regulations.

In April 2013, the Birmingham Employment Tribunal considered this issue in the case of Neal –v– Freightliner Ltd. It decided that Mr Neal's holiday pay should have been calculated by reference to his normal earnings, which included overtime and shift pay. The Employment Tribunal ordered Freightliner Ltd to pay Mr Neal additional holiday pay based on his overtime and shift pay.
Later in the same month, the Glasgow Employment Tribunal in the case of Fulton & Baxter –v– Bear Scotland Ltd followed the Neal decision

The Employment Appeal Tribunal has, today given judgment in Bear Scotland v Fulton (and conjoined cases).

There was a real fear prior to the promulgation of this judgment that employees may be able to claim there has been a chain of unlawful deductions in relation to EU statutory holiday pay.  That could mean they can claim back-pay going as far back as 1998, potentially including interest as well. Further, employees and ex-employees may attempt to recover back-pay by bringing a breach of contract claim. The issue of back-pay has even led to speculation that some employers may be forced out of business.s reaffirmed that workers are entitled to be paid a sum of money to reflect normal non-guaranteed overtime as part of their annual leave payments. Claims for arrears of holiday pay will be out of time however if there has been a break of more than three months between successive underpayments (subject to the usual 'reasonable practicability test').

In addition travel time payments, which exceed expenses incurred and so amount to additional taxable remuneration, also count when calculating holiday pay.

The government has set up a task force to look into the impact of the ruling on businesses.

www.charlesprice.net


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Monday 3 November 2014

The UK employment laws all UK businesses should know about - guest post


If the Conservatives win the next General Election, David Cameron has promised a referendum over Britain’s future in the European Union by the end of 2017. This has called into question what changes could be made to UK employment law.

If Britain does choose to remain in the EU and Cameron is able to successfully renegotiate the terms of Britain’s inclusion, which laws could be altered?

It is vital that all employers understand the current laws that might be altered, especially smaller businesses without corporate support. Here are a few of the current British employment laws linked to EU regulations.

The Working Time Regulations Act 1998

The Working Time Regulations Act 1998 supports the EU Working Time Directive and is the means by which UK break times and weekly working hours are monitored. The act dictates that:

·         Workers must work no more than 48 hours per week.

·         The mandatory right to annual paid leave is a minimum of 28 days, including public holidays.

·         The right to a minimum rest period of 20 minutes for any shift lasting 6 or more hours.

TUPE (Transfer of Undertakings Protection of Employment) Regulations 2006

TUPE defends employees from changes that could occur when a business is sold or taken over. This protects from changes made by both the outgoing employer and the new employer taking control.

The Part Time Employees Act 2000

The Part Time Employees Regulations act of 2000 exists to assure that all employees working shorter hours are given rights and privileges equivalent to their full time peers.

The Agency Workers Regulations Act 2010

The Agency Workers act is in place to ensure that agency workers employed by UK businesses receive the same treatment as permanently employed staff.

Paid Parental Leave Act 2010

This act ensures that employees taking time out from work for childcare purposes are provided with paid leave, holiday allowances and the right to return to their job when the agreed period is over.

Equal Pay rights under The Equality Act of 2010.

The equality act ensures equal pay is granted to all employees performing the same job. This covers women’s right to earn the same as men, and gives self-employed workers the same rights as corporately employed employees. This law caters for:

·         Full and part-time workers

·         Employees on casual or temporary contracts

·         Apprentices

Various EU laws have caused disagreements between EU member states due to political, social and economic differences. This can be seen in Britain’s numerous attempts to block certain EU employment legislation and delay introduction of these laws.

Conservative plans to alter Britain’s dependence on EU law has led the Trade Union Congress to challenge Tory intentions, alleging they want certain laws to correspond with conservative agenda. The acts most frequently accused of being manipulated are the Agency Workers Regulations and Working Time Regulations acts.

Would you like to see Britain move away from EU employment legislation? Comment and let us know.

This blog was submitted on behalf of Nationwide Employment Lawyers; an expert UK law firm specialising in all areas of employment law. Visit their website for details: http://natemplaw.co.uk
 

 

Please note that whilst every effort is made to maintain accuracy of the content in this article; we cannot take responsibility for any errors. This author is not an Employment Lawyer or HR Specialist and this cannot in any way constitute a substitute for Employment Law advice. All facts should be cross-checked against other sources. Should you require specific Employment Law advice, then we recommend that you contact Nationwide Employment Lawyers.

 

 

Monday 27 October 2014

Equal Pay case tests equal job evaluation in the private sector

Asda are being pursued by the employment lawyers Leigh Day who two years ago won a landmark £1bn supreme court ruling for lower-paid women employed by Birmingham city council.

If pay discrepancies in equal value jobs can be proved, other supermarkets and retailers, such as Tesco, Sainsbury's, Morrisons, Marks & Spencer and John Lewis, could face similar claims. The Asda cases will determine if the supermarket's store staff jobs, which are mainly held by female workers, are of equal value to higher-paid jobs in the company's male-dominated distribution centres. If they win, workers could be entitled to six years' back pay for the difference in earnings.


Until now equal job evaluation has mainly affected local councils, where jobs are assessed and given pay grades. Birmingham alone has so far paid around half of its £1.1bn bill for the back pay settlements to the women – including cleaners, cooks, care workers and school lunch supervisors – who were denied bonuses and attendance allowances given to male road cleaners and refuse collectors.

The Asda parity issue is expected to be heard within the next two months at Manchester employment tribunal. Newman said Leigh Day was representing 414 store staff, most though not all women.

Asda said in a statement: "We are aware of a small number of claims. We pay a fair market rate for the job people do regardless of gender and we don't recognise discrimination in our business."


The precedent for equal pay claims for comparable jobs was set in 1997 when 1,500 Cleveland dinner ladies won a £5m payout.

A national single status agreement was drawn up the same year giving local authorities 10 years to introduce fair and non-discriminatory grading structures. Tens of thousands of mainly female workers in such jobs, however, are still awaiting settlements for back pay. The general and public service unions GMB and Unison said they had 40,000 outstanding cases across the UK, including in Birmingham.

Statistics show 37,400 equal pay cases were brought in 2009-10, 34,600 in 2010-11 and 28,800 in 2011-12.

www.charlesprice.net

Friday 17 October 2014

Claim rejected for non-compliance with early conciliation rules‏ but then allowed in under Rule 13(4)

In Thomas v Nationwide Building Society (Cardiff Employment Tribunal Case No. 1601342/2014) an employment judge has rejected a claim for failure to comply with the early conciliation procedure. One of the first reported cases!

T presented a claim of whistleblowing detriment on 8 August 2014. Such a claim is subject to the early conciliation (EC) procedure established by Ss.18A-18C of the Employment Tribunals Act 1996, by which any would-be claimant must first contact Acas with details of the claim, and receive a certificate confirming completion of the EC procedure, before instituting tribunal proceedings. Failure to do so means that the tribunal has no jurisdiction to hear the claim.

The Claimant argued that she could comply with the procedure retroactively and have the rejection of her claim reconsidered under rule 13(4) of the Employment Tribunal Rules of Procedure 2013, which allows for a rejected claim to be accepted if the rejection was based on a defect that has since been rectified.

Employment Judge Clarke ruled that non-compliance with the EC procedure was a ‘defect’ capable of being rectified so as to allow for reconsideration under rule 13. In the judge’s view, even late compliance with the conciliation procedure would still be ‘pre-claim’, given that the original claim had been rejected. The effect of rule 13 is that the claim can proceed once the defect has been rectified, albeit that it will be treated as having been presented on the date of such rectification. He also rejected the suggestion that T would have to present a fresh ET1 once she had completed the EC procedure.

It must be noted that this was heard only in the ET and therefore we wait to see if it will go upstairs.

Cardiff Employment Tribunal

Charles Price Barrister

Thursday 16 October 2014

Update your employment policies ACAS guidance on shared parental leave and ante-natal appointments


ACAS has published a detailed guidance note on the new shared parental leave rules.

Key Points are listed as follows:


'Employed mothers will continue to be entitled to 52 weeks of Maternity Leave and 39 weeks of statutory maternity pay or maternity allowance
If they choose to do so, an eligible mother can end her maternity leave early and, with her partner or the child's father, will be able to opt for Shared Parental Leave instead of Maternity Leave. If they both meet the qualifying requirements and both qualify, they will need to decide how they divide their total Shared Parental Leave and Pay entitlement between them
Paid Paternity Leave of two weeks will continue to be available to fathers and a mother's or adopter's partners
Adopters will have the same rights as other parents to Shared Parental leave and pay
Intended parents in surrogacy who meet certain criteria will be eligible for statutory adoption leave and pay and Shared Parental Leave and Pay'


Please also remember when updating your Maternity/Paternity policies that From 1 October 2014 expectant fathers, or the partner of a pregnant woman, will be entitled to take unpaid time off work to attend antenatal appointments with their partner. The Department of Business, Innovation and Skills has produced a guide for employers (which works equally well for employees).


Employees accompanying the expectant mother to her ante-natal appointments are entitled to unpaid leave for 1 or 2 appointments. The time off is capped at six and a half hours for each appointment.
The Government is aiming to achieve greater involvement of both of the child’s parents from the earliest stages of pregnancy.

An employer is not entitled to ask for any evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment.
However, an employer is entitled to ask the employee for a declaration stating the date and time of the appointment, that the employee qualifies for the unpaid time off through his or her relationship with the mother or child, and that the time off is for the purpose of attending an ante-natal appointment with the expectant mother that has been made on the advice of a registered medical practitioner, nurse or midwife.


Charles Price is a Direct Access Barrister with 15 years experience 07846692325


Monday 8 September 2014

Labour would 'scrap employment tribunal system'

Speaking live at TUC Congress, Shadow Business Secretary Chuka Umunna is announcing that the next Labour Government will "scrap" the Government’s employment tribunal system and replace it with "a fairer system to ensure that affordability is not a barrier to employees seeking redress in the workplace." Watch this space!

Constructive dismissal of an employee, himself in fundamental breach of contract



Constructive dismissal of an employee, himself in fundamental breach of contract

Atkinson v Community Gateway Association (UKEAT/0457/12/BA)

Researched by Martha Lewis of University West of England



Background

The Appellant, Mr Atkinson, was employed by the Respondent Housing Association as a Director of Resources. An investigation conducted by the Respondent into the Appellant revealed several instances of misconduct on Mr Atkinson's part, including a breach of the Housing Association's email use policy (the Appellant had been sending e-mails of a sexual nature to his lover). Mr Atkinson then resigned before the disciplinary proceedings could be concluded.



Constructive dismissal claim

Mr Atkinson brought several claims against the Housing Association before an Employment Tribunal, including one of constructive dismissal. On this matter the ET ruled in favour of the Respondent holding that, as a matter of law, the claim of constructive dismissal must fail because the employee had himself been in fundamental breach of contract at the time of his resignation.



EAT ruling

The decision of the ET to strike out Mr Atkinson's claim of constructive unfair dismissal was successfully appealed by Mr Atkinson before the Employment Appeal Tribunal. The EAT held that, as a matter of law, there is in fact no absolute bar against a claim of constructive dismissal where the employee himself was in fundamental breach of his employment contract at the time of dismissal.



Authorities

The EAT suggested that the law in this area had been cleared up by the recent  decision of the Court of Session in the Scottish case of Aberdeen City Council v McNeill ([2014] IRLR 114). The Scottish court declared that "... the notion that the principle of mutuality of contract debars the appellant from founding on a claim of constructive dismissal on the basis of the respondents' breach of their obligation of trust and confidence in the conduct of the investigation is erroneous... [T]he respondents' duty of trust and confidence remained, notwithstanding the appellant's breach of contract, and the appellant was entitled to found on the respondent's breach of their duty as amounting to constructive dismissal…"



The EAT in Atkinson v Community Gateway Association declared that the principle laid out in McNeill - despite the fact that this was a Scottish case - did in fact reflect the correct principle in English law.



Implications

The principle laid out in Atkinson v Community Gateway Association is that, it is possible for a party to a contract of employment who is himself in repudiatory breach of said contract to accept a repudiatory breach by the other party, so long as his own breach has not yet been accepted by the other party.



In this case, the principle was applied to support an employee's claim of constructive dismissal. The wording of the EAT's judgment however suggests that the principle could equally apply where an employer, which itself has breached its obligation of trust and confidence, dismisses an employee who has subsequently committed a repudiatory breach.



The judgment in Atkinson v Community Gateway Association appears at first consideration to encourage outcomes which show an unfair bias in favour of the party whose initial breach went unaccepted. A court can however take into account a claimant's original breach at the stage of awarding damages and an employee or employer who has himself breached his contractual obligations may find he only receives minimal compensation.

Monday 18 August 2014

TUPE and consultation with the unrepresented employee

On first blush, the TUPE regs only seem to apply a burden on the employer to appoint reps and consult with reps. This potential lacuna stuck its head above the parapet in the case of Imperial Day Nursery & Ors v Marshall UKEAT/0217/10/CEA.

The respondent argued that the claimant was not entitled to bring a claim under regulation 15 of TUPE which, they claimed, does not offer assistance when an employee respresentative is not engaged. Mrs Justice Slade suggested that the two advocates hadn't  considered the Employment Appeal Tribunal case of Howard v Millrise, which observed that it was unnecessary to decide under which provision of what are now regulations 15(1)(a), (b) or (d), 

The salient facts of 'Imperial' are these:

There was no information or consultation with employee representatives in connection with the transfer, and there were no such representatives. Mr Meredith, on behalf of the employers, contends that the only right by which an individual, such as Ms Marshall, could claim and complain under TUPE of the failure of the employers to inform and consult in relation to the transfer was under regulation 13(11).

The original tribunal judgment reads:

 judgment in which they deal with the claim under TUPE.

Paragraph 4:

"The Tribunal has considered the following provisions:- Regulation 15 and 13(14) of the TUPE Regulations. […]"

Paragraph 6:

"In respect the Claimant's claim for failure to comply with the TUPE Regulations, the Respondents' arguments in this regard are misconceived. The Claimant was patently entitled to bring the claim under both Regulation 13 and Regulation 14, by virtue of Regulation 15(b) when no representative is engaged. The Tribunal had some difficulty trying to understand the Respondents' arguments in this regard."


The Regs say:

The TUPE Regulations

9. Regulation 13(2):

"Long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives of -

(a) the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for it;

(b) the legal, economic and social implications of the transfer for any affected employees;

(c) the measures which he envisages he will, in connection with the transfer, take in relation to any affected employees or, if he envisages that no measures will be so taken, that fact, and

(d) if the employer is the transferor, the measures, in connection with the transfer, which he envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact."

10. Regulation 13(3):

"For the purposes of this regulation the appropriate representatives of any affected employees are -

(a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union; or

(b) in any other case, whichever of the following employee representatives the employer chooses -

(i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this regulation, who (having regard to the purposes for, and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the transfer on their behalf;

(ii) employee representatives elected by any affected employees, for the purposes of this regulation, in an election satisfying the requirements of regulation 14(1)."

Regulation 13(6):

"An employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the relevant transfer, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures."

Regulation 13(11):

"If, after the employer has invited any affected employees to elect representatives, they fail to do so within a reasonable time, he shall give to any affected employees the information set out in paragraph (2)."

Regulation 14 deals with the election of employee representatives and places obligations in that regard on the employer.

Regulation 15(1):

"Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an Employment Tribunal on that ground -

(a) in the case of a failure relating to the election of employee representatives, by any of his employees who are affected employees;

(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related;

(c) in the case of failure relating to representatives of a trade union, by the trade union; and

(d) in any other case, by any of his employees who are affected employees."


The Respondent averred that the claim was made on behalf of the employee under regulations 13(2) and 13(6), and these regulations imposed no obligation on an employer in relation to an individual employee; they impose obligations on the employer in relation to employee representatives. The only obligation on an employer imposed by regulation 13 is that in 13(11) and Mr Meredith contends that there was no 13(11) claim placed before the Employment Tribunal.

Mrs Justice Slade commented that he nor counsel appearing for the employee, nor the Employment Tribunal themselves, appear to have been aware of the case of Howard v Millrise Limited [2005] IRLR 84. In that case the Employment Appeal Tribunal held that an individual employee has standing to pursue a complaint for breach of what is now regulation 13 of TUPE by means of what is now regulation 13(11).

The report summary can be found here


Sunday 3 August 2014

Failure to Make Reasonable Adjustments and a time limit exception Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the Employment Appeal Tribunal ("EAT")


As most wizened employment lawyers will tell you, the time limit for hurling in a tribunal claim for Failure to Make Reasonable Adjustments in the case of omissions under the Equality Act is set out under S.123(3)(4) EqA which says that failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person is to be taken to decide on failure to do something:

When they do an act inconsistent with doing it; or
if they do no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

So unless there is either evidence of when a decision was taken not to make the adjustment or an act of the employer inconsistent with making the adjustment, the normal three month time limit within which to bring a claim will start from when the employer could reasonably have been expected to made the adjustment.

Some ingenious lawyers however, have forced a wedge into this previously closed door. In Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the Employment Appeal Tribunal ("EAT") Ms Jamil became disabled with rheumatoid arthritis which made it difficult for her to get to work since she lived over an hour away. She therefore requested a transfer to an office closer to her home. However, this was refused as there was no vacancy at a closer office. Ms Jamil brought a disability discrimination claim alleging a failure to make a reasonable adjustment but her employer argued that the claim was out of time as more than 3 months had passed since her request had been refused.

Both the Employment Tribunal and the EAT found that the claim was in time on the basis that there was a continuing nature to the duty to make reasonable adjustments in this case. In particular, they took into account that the employer itself maintained a "continuing interest list" on which it recorded employees' interest in transferring to a different office should a vacancy arise, to which they had added Ms Jamil's name, and had also written to her to say that there was a possibility of a review of the decision in the future. This persuaded the EAT that the employer was constantly monitoring the situation and there was therefore no single once and for all refusal - the employer was obliged to consider throughout the remaining period of employment how the duty to make reasonable adjustments should be discharged.

The magic words here are clearly 'no single once and for all refusal'.

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Thursday 17 July 2014

Obesity may constitute a 'disability'


The Advocate General has, today, issued an opinion on this point in Kaltoft v The Municipality of Billund.

The opinion considered whether obesity fell within the definition of a disability.  The Advocate General pointed out the EU definition of disability covers the situation when a physical or mental condition makes "carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing."

He expanded on his initial thoughts:

"cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability."

Watch this space for test cases in UK tribunals.

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Saturday 24 May 2014

Unison fights on with permission to challenge fees



Employment lawyers have welcomed a High Court decision to support recently-introduced employment tribunal and employment appeal tribunal fees.
Trade union Unison challenged the Government’s decision to introduce the fees in court, arguing they would bar workers treated unfairly by employers from accessing justice.
Unison argued that since the fees were introduced, the number of employment cases had fallen sharply. It presented research suggesting Equality Act discrimination claims had fallen by 88% between September 2012 and September 2013. 
In the same period, Unision suggested sex discrimination claims had fallen by 86% and unfair dismissal claims by 81%.
Despite these findings, the High Court ruled it was too soon to judge if the fees would have a negative impact following their introduction in July 2013. 





Wednesday 21 May 2014

A great basic guide to the new compensation rules

See Morton-Fraser's site for a helpful chart setting out the new employment tribunal compensation rules here

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Monday 19 May 2014

High Court Scuppers attack on 1 yr salary compensation cap but there may be round 2

At a permission hearing The High Court has pulled the rug from under an ingenious bid to judicially review the cap which means that the maximum compensatory award a tribunal can make is a year's gross salary (which, today itself, is capped at £76,574).

Alex Monaco said the cap on compensation will disproportionately affect older people, as they are most likely to receive more than a year’s salary in compensation due to difficulty in finding another job.

 Monaco said in the Gazette: ‘We are looking at options and looking at appealing it.’ He said the firm is seeking pro bono help from lawyers to fight the ruling.

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Friday 25 April 2014

A Database of 'Reasonable Adjustment' Claims

I have listed some judgments below and the types of reasonable adjustment claims which have worked before in the ET. Contact me if you know of any others......


Reasonable Adjustments:

Paying for private medical treatment to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work.

Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12

Allocating some of the disabled person's duties to another person;

Transferring him to fill an existing vacancy

Returning to work on a phased return/and or in a temp role -   Fareham College Corporation v Walters Appeal No. UKEAT/0396/08/DM UKEAT/0076/09

Altering hours of working or training;
Costco Wholesale UK v Newfield UKEAT/0617/12/KN - reducing hours
and Secretary of State for Work and Pensions v Higgins. Appeal No. UKEAT/0579/12/DM

Assigning him to a different place of work or training;
Newcastle City Council v Spires UKEAT/0334/10/ZT

Allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
working from home - Secretary of State for Work & Pensions v Wilson UKEAT/0289/09/DA

Giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
Acquiring or modifying equipment;
Modifying instructions or reference manuals;
Modifying procedures for testing or assessment; - Burke v The College of Law & Anor [2012] EWCA Civ 37
Providing a reader or interpreter;
Providing supervision or other support.''
Failure to provide psychiatric services - Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12


Dismissal - Fareham College Corporation v Walters (see above).
In this case, the employer laid itself open to criticism and a finding that it failed to
make reasonable adjustments.  Its conduct provides a list of ‘actions to be avoided
at all costs’:  

• The manager dealing with the capability procedure did not have any knowledge
or understanding of the claimant’s underlying condition;
• The respondent did not have up to date medical reports as to the claimant’s
position or prognosis;
• The manager who concluded that it was unlikely that the claimant would be
able to return to her position on a full time basis was unable to explain the
reasoning which led him to that conclusion;
• The respondent failed to consider that allowing the claimant to return using a
phased return or in an alternative role might only be necessary in the short
term, and therefore in dismissing the possibilities due to the difficulties such
steps would have on educational delivery, failed to demonstrate that the
adjustments were not reasonable under s.18B.

Chief Constable of South Yorkshire Police v Jelic UKEAT/0491/09/CEA
chronic anxiety syndrome - 1) he should have been deployed into a non client-facing officer role rather than retired.

Charlesprice.net

Are tribunal numbers really down?

According to Government sources the number of ET cases submitted have fallen astronomically by 70% since fees were introduced. This seems incredulous when the employment lawyers I talk to say they are just as busy. After all many claimants have union support and those with home contents insurance are covered and can approach Direct Access Barristers and Solicitors for employment claims.

Charlesprice.net