Thursday, 25 February 2016

No5 Chambers Barristers challenge earning threshold to bring over a non-EU spouse

UK nationals must earn more than £18,600 to bring over a non-EU spouse

UK nationals must earn more than £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child who does not have British citizenship, and by an additional £2,400 for each subsequent child.

Seven supreme court justices including the court’s deputy president, Lady Hale, will decide after a three-day hearing whether the rules contravene article 8 of the European convention on human rights, covering respect for private and family life.

Wednesday, 24 February 2016

Employment Tribunal Fees may not have brought a better service

To the chagrin of many Claimants they now have to pay fees in order to progress their claims. I hear arguments that the new regime prevents the spurious claim and rewards the tax payer. All of these arguments I understand and appreciate, however, the one consistent feature one would hope would have remained in situ after the imposition of the fees would be the streamlined service provided by the employment tribunal service.

To my clients' horror in the last few months ET1s have been submitted only for the responses to not reach the Claimant for a few weeks after they arrived at the tribunal. Even worse one Claimant found that her ET1 despite being submitted online had not been sent to the Respondent until a month after the initial submission.

This can bring stress and anxiety to a Claimant who is perhaps submitting a claim for the first time and often already suffering with depression due to the discriminatory or callous acts of an employer. I hope that these experiences are the exception and not the rule but if not it should be brought to the attention of the wider media and the powers that be as soon as possible.

Monday, 22 February 2016

Breaking News Lock v British Gas 'Commission to be included as Holiday Pay'

Should commission and other payments be encompassed by the definition of 'Holiday Pay'?  A key defining factor has been the decision in Lock v British Gas, both in the ECJ and in the EAT decision, which determined that employers may include commission and other types of variable pay in holiday pay calculations but left open major practical points about how the calculation should work. The resultant legal uncertainty and fear of significant back pay claims has left many employers paralysed over how to address the issue, pending further clarification. British Gas appealed the decision which rumour has it is out today.

Firstly British Gas argues that previous cases dealing with overtime should be distinguished as commission needs to be dealt with in a different way. Second, more fundamentally they say that the changes dictated by ECJ case law are incompatible with local law, so that it is not possible to interpret the Working Time Regulations in a way which complies with European law.

It is unlikely however that there will be rafts of cases pursued by hungry lawyers for backpay as if it's necessary to introduce new legislation then any changes will only take effect going forward from the date the change was made.

Thursday, 18 February 2016

Employment Tribunal Discrimination Claims May Not be Brought Against Police Misconduct Boards

However they may against an individual police officer! The Court of Appeal upheld the decisions of the EAT and employment tribunal in  P v The Commissioner of Police for the Metropolis.

The ET had accepted (paragraph 15) that the Metropolitan Police Misconduct Board was a judicial body which enjoys immunity from suit. Employment Judge Etherington concluded:
"25… These proceedings are no mere action in the nature of an appeal. The claimant is not simply saying to the panel 'you got this wrong', which is within the normal and accepted experience of those exercising judicial functions, but asserts that [the] decision and the process whereby that decision was reached constitute the statutory tort of unlawful discrimination. How can that be said not to impugn the integrity of the panel? Were this matter to continue to a Hearing and a Tribunal to find in favour of the Claimant the members of the panel would stand guilty of discrimination for merely exercising their judicial function in an appropriate way. There is here no suggestion that the outcome of the case before the panel was tainted by malice. This action is no mere challenge to the correctness of the decision but indicts the Board as perpetrators of discrimination."

Tuesday, 16 February 2016

Employment Lawyers Do Not Serve EAT papers via 'Dropbox'!

In Majekodunmi v City Facilities Management UK Ltd and ors, the EAT has held that an appeal was not validly lodged by an e-mail that included a link to Dropbox instead of attaching the relevant appeal documents.

The ET1s and ET3s were later provided in an acceptable form on 4 and 6 March, whereupon the EAT confirmed that the appeal had been formally presented 10 days out of time. On 11 March, O attempted to submit a second notice of appeal, arguing that this was in time on the basis that the 42-day period began running when the certificate of correction was sent out. The EAT Registrar did not accept this second appeal, stating that the EAT would treat O as having made an application for an extension of time. The Registrar went on to rule that no valid appeal had been instituted in time. O challenged that decision.

The EAT dismissed the appeal against the Registrar’s decision. HHJ Eady QC rejected O’s argument that the certificate of correction reset the 42-day period for appealing. It was clear from the EAT’s judgment in Aziz-Mir v Sainsbury's Supermarkets plc EAT 0537/06 that it is only where a correction is issued by way of a fresh judgment that time starts to run from the date that the corrected judgment was issued. Here, the certificate of correction merely corrected a typographical error and made clear that the original time limit still applied. As for the attempted lodging of appeal documents via Dropbox, HHJ Eady QC rejected O’s argument that the documents had been properly provided in a zipped format, as the guidance allows. The files were hosted on a cloud storage website and the e-mail recipient would have to have internet access in order to be able to access them. The EAT’s guidance made clear that this did not amount to valid service.

Thanks to The ELA for finding this.

Friday, 12 February 2016

Employment Tribunal 'allowed' advancement of new evidence at a reconsideration

An interesting procedural issue has arisen in the case of Dundee City Council v Malcolm UKEATS/0019/15/SM

The EAT dismissed appeals challenging a decision where a Claimant had been allowed to advance evidence relevant to compensation at a reconsideration hearing despite the Claimant not advancing the same evidence at the substantive hearing.

The Claimant worked as a Lab Technician for 16 years. Performance issues arose and she was offered and accepted a demotion. She subsequently resigned her employment in 2002, claiming constructive unfair dismissal and sexual harassment, which caused her to suffer a nervous breakdown. The tribunal determined that the Respondent was liable and that the Claimant was entitled to compensation for psychiatric injury, injury to feelings and loss of earnings.

The problems arose in working out that compensation. A first decision as to remedy was successfully appealed to the EAT, which concluded that she was entitled to wage loss for the period from 2002 to 2007. The matter was remitted to the Tribunal to determine "what work the Claimant would have done… had she been fit; what wages she would have made; and what loss she sustained". The Tribunal declined to accept the Claimant's case that she would have worked as a Lab Technician throughout this period because she failed to produce sufficient evidence.

The Claimant argued no other case before the Tribunal.

Noting that she had never previously been out of work and that she had for five years held a part-time, supplementary role at Asda, the Tribunal ITSELF concluded that, in the absence of anything else, she would have taken a full-time role at Asda after a period of 3 years and assessed loss of earnings on that basis.

The Respondent sought a reconsideration, on the ground that it had no chance to meet the "full-time Asda" case in evidence or submissions since the Claimant had never specifically advanced it.

The Tribunal granted the reconsideration, at which it confirmed its earlier decision, but in doing so allowed the Claimant to advance evidence as to a "full-time Asda" case, which she had not advanced previously.

The Respondent appealed the initial decision on the basis that the Tribunal had impermissibly made a case for the Claimant she had not made for herself, that the decision was speculative and that there was insufficient proof of loss. It further appealed the decision to hold a reconsideration because by doing so the Claimant was allowed to advance evidence not previously advanced and that she therefore was given a "second bite of the cherry". The Claimant appealed on the ground that the Tribunal had imposed too high a burden of proof, requiring evidence of probabilities rather than of chances.

The EAT dismissed all three appeals. Perhaps the important one was set out in para. 12 of the Judgment

'By a Notice of Appeal of 17 February 2015, Dundee argued that the Tribunal erred in law in awarding the Claimant compensation on the basis of the likelihood of her being employed full-time by ASDA, since that compensation was not claimed by the Claimant, there was no evidence that ASDA had a vacancy, or that the Claimant would actually have sought such a position, and the award was expressly recognised by the Tribunal itself to be speculative. Since the Respondent had not been invited to argue whether the Claimant would have enjoyed such a job with ASDA it had been deprived of any opportunity of testing the hypothesis upon which the Tribunal based its decision or of leading any contrary evidence. The Tribunal was making a case of its own motion which the Claimant had not made.'

The EAT reminded itself that a tribunal can not 'step into a litigants' shoes':

'18. A second principle is that it is not for a tribunal to make a case for a litigant. However much a tribunal feels that a litigant is not making the best case that litigant could, given the facts as they appear to the tribunal, it cannot step into the shoes of the litigant and make for itself any case which it appears could have been advanced successfully in the light of that material. To do so would be to enter the arena. It would be to abandon impartiality. It would run counter to the very essence of the accusatorial procedure. Although litigants who are not lawyers might not know what precise legal label might categorise their cases, they will know what it is that they are complaining about. The line between making a case which is not being advanced by a party, on the one hand, and helping that party to articulate clearly that which they are complaining about on the other may be fine, but it is critical. A tribunal's duty to be fair to both sides means it cannot enter the contest on behalf of either one. It must listen to the cases made for each, and must not substitute a case of its own. As Lord Justice Mummery said at paragraph 26 in MacNicol v Balfour Beatty Maintenance Ltd [2002] EWCA Civ 1074 (a case in which what was in issue was whether the Claimant had suffered an impairment which could begin to satisfy the statutory definition of disability) the role of the tribunal'.

and at 19:

 ' doing so is to permit further evidence to be led by a party which could have been led earlier, and which would not be admitted if the rule in Ladd v Marshall (the principles of which are expressed above) were applied. This principle is clear from a number of authorities. In Flint v Eastern Electricity Board 1975 ICR 395 Philips J declared that it was in the public interest that proceedings should be as final as possible, and that it should only be in unusual cases that an applicant before a tribunal was able to have a second bite at the cherry: thus, where information which a party wished to put before a tribunal at a second hearing had been in both the applicant's possession and in his mind during the whole time of the first hearing a review of the decision reached at that hearing (as reconsideration was then termed) should not be held. The same point was emphasised in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, CA in which at paragraph 18 Peter Gibson LJ cited with approval the words of Sir Hugh Griffiths giving the judgment of the court in Craig v British Railways (Scottish Region) [1973] 8 ITR 636, 637:'

Although the Claimant had not advanced her claim on a "full-time Asda" basis, the Tribunal was entitled to investigate the matter remitted to it and there was sufficient evidence for the Tribunal to assess loss of earnings as it did.

It was concluded that there was an exception to the rule (the judgment itself should be read as this is a brief summary)

'34. Thus it must follow that where a complaint is pleaded in very general terms but only some aspects of it are advanced in detail, then although a Tribunal has no duty to enquire as to other aspects of the same general complaint which have not been the subject of specific evidence or submission, it may do so. It is not in error of law if it does. All the more must this be the case where the matter is not merely one of pleading but is the very issue remitted by the Appeal Tribunal.

35. Accordingly, in my view, the Tribunal was entitled to ask itself here what the evidence showed as to the issue it had to resolve – as to the likely loss of earnings, assessed in accord with the principles identified above, neither over nor under-compensating. In short, I reject the argument that once the Claimant failed to bring forward sufficient evidence to show that she had some realistic chance of being appointed a Lab Technician at the University her future loss of earnings was necessarily to be assessed at nil (part-time earnings at Asda aside).

Thursday, 11 February 2016

Bedford Employment Tribunal Contact Details

For those looking to contact Bedford employment tribunal it is now administered via Huntingden

 Tel: 014 8041 5600

Tuesday, 9 February 2016

Employment Law Guidance: Legitimate Scope of Role For HR During a Disciplinary Procedure 'Ramphal case'

In Ramphal v Department for Transport, the Employment Appeal Tribunal (EAT) provides clear guidance on the extent of the role that human resources (HR) departments may legitimately perform during a disciplinary procedure.

In this case, The respondent appointed Goodchild, a manager (not HR) to investigate possible misconduct in relation to the expenses the claimant, Ramphal, had claimed and his use of hire cars. In the first draft of the investigation report Goodchild made several findings in Ramphal's favour, including that the misuse of hire cars was "not deliberate” and that the explanations given by the claimant in respect of expenditure on petrol were "plausible”. Goodchild went on to suggest the level of culpability and appropriate sanction applicable. Goodchild's first report concluded that Ramphal was guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct.

No further evidence was uncovered but following meetings with HR however, the findings Goodchild made in Ramphal's favour were removed from the report. Conversely, the final report concluded that Ramphal had knowingly misused his employer's credit card and was guilty of gross misconduct. Goodchild decided Ramphal should be summarily dismissed on the basis of his final report.
The employment tribunal ultimately concluded that Goodchild had taken the decision himself rather than HR and that the dismissal was fair.

On appeal to the EAT, Mr Ramphal relied upon the Supreme Court's decision in West London Mental Health NHS Trust v Chhabra[2013] UKSC 80, which held that there was an implied contractual right to a fair disciplinary process, and that — while HR could provide advice on questions of procedure, including ensuring that all necessary matters have been addressed in a manner which achieves clarity — "the report had to be the product of the case investigator”.
The EAT and Judge Serota QC allowed the appeal on the basis that there appeared to be a strong case that HR had significantly overstepped the permitted boundaries of its involvement, and in doing so gave the following important guidance:

para 55:

'In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency.  It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.'
To conclude an investigating officer is entitled to call for advice from HR, but HR must limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability. HR could also give advice in respect of consistency of previous decisions in similar cases. If the integrity of the decision to dismiss has been influenced by persons outside the procedure it will be unfair, especially if the claimant has no knowledge of it and has thus been unable to comment on it.

Employment Law Barrister Wins Dyslexia Case

The BBC has reported that an ex-employee of 'Starbucks' the coffee chain as won her disability discrimination battle. Employers should be aware that dyslexia is covered under the Equality Act 2010. The relevant law is as follows:

A disabled person is defined as having "a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities." Substantial is defined as ‘more than trivial’.

"In some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment." [Paragraph B10, Guidance to the Definitions of Disability, Equality Act.]

Charles Price Employment Law Barrister