Wednesday, 2 September 2009
Tribunal Chaos
Have you had cases adjourned due to a lack of Judges or sat for hours on a 'floating case' ? I have had the dubious honour of suffering both recently at Birmingham tribunal! The idea of stockpiling smaller cases and distributing them amongst a few judges is a good way of saving tax payer's cheese but surely the allocation should be worked out in a better way - get the cases likely to last 5 minutes on first! I know some reps will fib to get on first but surely the best way of dealing with cases expeditiously is to ask the reps how long their case is likely to last and get them dealt with first ! !
Tuesday, 1 September 2009
EAT gets tough on fibbers! A look at costs law!
In the case of DUNEDIN CANMORE HOUSING ASSOCIATION LIMITED (APPELLANT) V MRS MARGARET DONALDSON (DEBARRED) (RESPONDENT)
A Tribunal refused to award expenses where it dismissed claimant's contractual claim. The Respondent had refused to pay certain funds when they found out that the Claimant had breached a confidentiality clause in her compromise agreement. The claim was based on the claimant's assertion that she had not breached the confidentiality clause in a compromise agreement, an assertion repeated by her in evidence before the Tribunal but which was not accepted. In rejecting her evidence it found that, notwithstanding her denials, she had made prohibited disclosures to two separate people.
However, in a 2nd judgment, the Tribunal refused the respondents' application for expenses which was made under Rule 40(2) and (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. It found that the claimant had not acted unreasonably, giving the following explanation for that conclusion in its paragraphs 46 and 47:
46. Did she act unreasonably?
47. In the Tribunal's view she did not. Mr Kennedy contended that she was not guided by or based on logic or good sense. However on the basis that she argued that she had not told Mr Rankeillor or anyone else of the fact or terms of the agreement and bearing in mind the respondent company was adhering to its position of not making a payment the Tribunal is not able to say that the claimant acted unreasonably by requiring the respondent company to prove the allegations that she had breached the terms of the agreement."
The EAT found that In these circumstances the Tribunal was in error in failing to find that the claimant acted unreasonably in bringing and conducting the proceedings and should have made an award of expenses against her. The EAT referred to another lying case:
A Tribunal was asked to make an award of expenses in the case of Daleside Nursing Home Ltd v Mathew UKEAT/0519/08. There, the claimant had alleged that she was the victim of explicit racial abuse during a telephone conversation; she said that she had been called a "black bitch". The Tribunal did not believe her. The respondents applied for costs but the Tribunal refused the application finding that the claimant had not acted unreasonably; she had genuinely felt that she had a claim but was "merely wrong" and lost. On appeal to this Tribunal, that finding was reversed. A costs order should have been made. At paragraph 20, Wilkie J said:
"In our judgment, in a case such as this, where there is such a clear-cut finding that the central allegation of racial abuse was a lie, it is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the heart of the claim does not constitute a person acting unreasonably."
Conclusion:
Thus, the task for the Tribunal is to determine firstly whether the party against whom the award is sought has, in any way, acted as described in Rule 40(3) and if he has, secondly, determine whether or not it is appropriate to make an award of expenses. The amount of any such award is then determined under Rule 41, subject to a current maximum of £10,000.
The new law is pretty lenient on lying litigants - being long in the tooth I remember pre 2004 when the means of a party were not considered when dealing with costs and a fibbing litigant had to sell a house when handed a hefty costs bill!
http://www.bailii.org/uk/cases/UKEAT/2009/0014_09_0807.html
[2009] UKEAT 0014_09_0807 / Appeal No. UKEATS/0014/09
A Tribunal refused to award expenses where it dismissed claimant's contractual claim. The Respondent had refused to pay certain funds when they found out that the Claimant had breached a confidentiality clause in her compromise agreement. The claim was based on the claimant's assertion that she had not breached the confidentiality clause in a compromise agreement, an assertion repeated by her in evidence before the Tribunal but which was not accepted. In rejecting her evidence it found that, notwithstanding her denials, she had made prohibited disclosures to two separate people.
However, in a 2nd judgment, the Tribunal refused the respondents' application for expenses which was made under Rule 40(2) and (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. It found that the claimant had not acted unreasonably, giving the following explanation for that conclusion in its paragraphs 46 and 47:
46. Did she act unreasonably?
47. In the Tribunal's view she did not. Mr Kennedy contended that she was not guided by or based on logic or good sense. However on the basis that she argued that she had not told Mr Rankeillor or anyone else of the fact or terms of the agreement and bearing in mind the respondent company was adhering to its position of not making a payment the Tribunal is not able to say that the claimant acted unreasonably by requiring the respondent company to prove the allegations that she had breached the terms of the agreement."
The EAT found that In these circumstances the Tribunal was in error in failing to find that the claimant acted unreasonably in bringing and conducting the proceedings and should have made an award of expenses against her. The EAT referred to another lying case:
A Tribunal was asked to make an award of expenses in the case of Daleside Nursing Home Ltd v Mathew UKEAT/0519/08. There, the claimant had alleged that she was the victim of explicit racial abuse during a telephone conversation; she said that she had been called a "black bitch". The Tribunal did not believe her. The respondents applied for costs but the Tribunal refused the application finding that the claimant had not acted unreasonably; she had genuinely felt that she had a claim but was "merely wrong" and lost. On appeal to this Tribunal, that finding was reversed. A costs order should have been made. At paragraph 20, Wilkie J said:
"In our judgment, in a case such as this, where there is such a clear-cut finding that the central allegation of racial abuse was a lie, it is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the heart of the claim does not constitute a person acting unreasonably."
Conclusion:
Thus, the task for the Tribunal is to determine firstly whether the party against whom the award is sought has, in any way, acted as described in Rule 40(3) and if he has, secondly, determine whether or not it is appropriate to make an award of expenses. The amount of any such award is then determined under Rule 41, subject to a current maximum of £10,000.
The new law is pretty lenient on lying litigants - being long in the tooth I remember pre 2004 when the means of a party were not considered when dealing with costs and a fibbing litigant had to sell a house when handed a hefty costs bill!
http://www.bailii.org/uk/cases/UKEAT/2009/0014_09_0807.html
[2009] UKEAT 0014_09_0807 / Appeal No. UKEATS/0014/09
Monday, 24 August 2009
Employer's Honest Mistake Cannot be a Fundamental Breach
Case in Point:
Cantor Fitzgerald International v Callaghan and ors, [1999] ICR 639, CA (and [1999] IRLR 234) is a famous authority to the employment hack but easily forgotten when looking for a case where the employee is looking to claim constructive dismissal on the basis that the employer has not paid them (albeit accidentally)
The ET will always look at the circumstances of the case and it is likely that the employer would only become prone to a finding of fundamental breach and thus constructive dismissal if the accident repeated itself. This case can be used as an authority to protect the employer when accidents has happened. Find it for free on the Baillie website! www.bailii.org
In his judgment in the earlier Cantor Fitzgerald case Lord Justice Judge said this:
"In my judgment the question whether non-payment of agreed wages or interference by an employer with a salary package is or is not fundamental to the continued existence of a contract of employment depends on the critical distinction to be drawn between an employer's failure to pay, or to delay in paying, renewed remuneration and his deliberate refusal to do so. Where the failure or delay constitutes a breach of contract, depending on the circumstances this may represent no more than a temporary fault in the employer's technology, an accounting error or simple mistake, or illness, or accident, or unexpected events (see, for example, Adams v Charles Zub Associates Limited [1978] IRLR 551). If so it would be open to the court to conclude that the breach did not go to the root of the contract. On the other hand if the failure or delay in payment were repeated and persistent, perhaps also unexplained, the court might be driven to conclude that the breach or breaches were indeed repudiatory.
Cantor Fitzgerald International v Callaghan and ors, [1999] ICR 639, CA (and [1999] IRLR 234) is a famous authority to the employment hack but easily forgotten when looking for a case where the employee is looking to claim constructive dismissal on the basis that the employer has not paid them (albeit accidentally)
The ET will always look at the circumstances of the case and it is likely that the employer would only become prone to a finding of fundamental breach and thus constructive dismissal if the accident repeated itself. This case can be used as an authority to protect the employer when accidents has happened. Find it for free on the Baillie website! www.bailii.org
In his judgment in the earlier Cantor Fitzgerald case Lord Justice Judge said this:
"In my judgment the question whether non-payment of agreed wages or interference by an employer with a salary package is or is not fundamental to the continued existence of a contract of employment depends on the critical distinction to be drawn between an employer's failure to pay, or to delay in paying, renewed remuneration and his deliberate refusal to do so. Where the failure or delay constitutes a breach of contract, depending on the circumstances this may represent no more than a temporary fault in the employer's technology, an accounting error or simple mistake, or illness, or accident, or unexpected events (see, for example, Adams v Charles Zub Associates Limited [1978] IRLR 551). If so it would be open to the court to conclude that the breach did not go to the root of the contract. On the other hand if the failure or delay in payment were repeated and persistent, perhaps also unexplained, the court might be driven to conclude that the breach or breaches were indeed repudiatory.
Tuesday, 18 August 2009
Dont Seek to Punish with Injury to Feelings Awards!
Case in Point - It has been made clear in recent case law that an injury to feelings award is not punitive. In Vento, Mummery LJ described the kind of matters which can be the subject matter of compensation for injury to feelings:
"Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression" (paragraph 50).
The tribunal in Woodward was influenced by the employer's discriminatory conduct and effectively adopted a punitive approach in assessing the amount of compensation for injury to feelings. The EAT confirmed that an injury to feelings award is not a punitive award Corus Hotels Plc v Woodward & Anor [2006] UKEAT 0536/05/1703, 17 March 2006.
"Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression" (paragraph 50).
The tribunal in Woodward was influenced by the employer's discriminatory conduct and effectively adopted a punitive approach in assessing the amount of compensation for injury to feelings. The EAT confirmed that an injury to feelings award is not a punitive award Corus Hotels Plc v Woodward & Anor [2006] UKEAT 0536/05/1703, 17 March 2006.
Sunday, 16 August 2009
Pension Compensation
Case in Point : Defence v Cannock and others [1994] ICR 918
There are traditionally 2 approaches to pension compensation the 'simplified approach' and 'substantial loss approach'. The guidelines suggest that the substantial loss approach might be used if the claimant is unlikely to ever find another job, or a job with comparable pension benefits (or higher pay which compensates for this). It might also be used if the claimant has not yet found new employment, but is expected to do so.
The employment tribunal then needs to value all losses to retirement and beyond, before reducing the total loss by the percentage chance the claimant would not have continued to retirement in the lost career (under the principles set out in Ministry of Defence v Cannock and others [1994] ICR 918).
There are traditionally 2 approaches to pension compensation the 'simplified approach' and 'substantial loss approach'. The guidelines suggest that the substantial loss approach might be used if the claimant is unlikely to ever find another job, or a job with comparable pension benefits (or higher pay which compensates for this). It might also be used if the claimant has not yet found new employment, but is expected to do so.
The employment tribunal then needs to value all losses to retirement and beyond, before reducing the total loss by the percentage chance the claimant would not have continued to retirement in the lost career (under the principles set out in Ministry of Defence v Cannock and others [1994] ICR 918).
Tuesday, 4 August 2009
Superb 'Emplaw' offering
The most comprehensive aid to the employment lawyer is provided by www.emplaw.co.uk The twice weekly 'updater' email bulletin is simply the best way of keeping updated there is. After meeting the owner Mr Henry Scrope recently, I can see why EAT judges and another 2000 employment lawyers subscribe to this little beauty. All relevant employment law articles and EAT judgments are summarised and served up in a neat little package! Go to Emplaw to find out more!
Working with Redundancy Suppliment to be printed in the Telegraph in early September
As we know redundancy law is more complicated than it first seems - this guide is likely to be printed on 8th September!!!
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