The first wave of implementation of the Equality Act will go ahead to the planned October timetable following the publication of the first commencement order in Parliament next week. This will pave the way for the implementation of landmark provisions to protect disabled people from discrimination and tackle the gender pay gap.
http://www.equalities.gov.uk/media/press_releases/government_equalities_office_s.aspx
Wednesday, 7 July 2010
Thursday, 3 June 2010
Edwards V Chesterfield Royal Hospital NHS - A Benchmark Employment Case?
Mr Edwards, a consultant surgeon for an NHS Trust was dismissed for gross professional and personal misconduct following a disciplinary hearing and was subsequently unable to find employment but how did he bring a separate claim for breach of contract in connection with his dismissal.
The contract under which he was employed provided by clause 8 that either party could terminate it on three months' notice to the other. It also provided by clause 13 that in matters of personal conduct Mr. Edwards would be subject to the hospital's general procedures and that in matters of professional misconduct he would be subject to a procedure agreed by the Local Negotiating Committee in respect of medical practitioners.
In February 2006, following a disciplinary hearing, he was summarily dismissed from his post for gross professional and personal misconduct. He has since been able to obtain work as a locum with another NHS Trust, but has been unable to obtain a permanent consultant post and says that he will not be able to do so in the future because of the finding against him. He says that he has therefore been unable to pursue his medical career in the manner which he would have wished. The Investigating Committee of the General Medical Council later summarily dismissed a complaint against him based on the same allegations.
Mr. Edwards maintained that the Trust failed to follow the contractual disciplinary procedure correctly, in particular, by failing to appoint a person with legal qualifications to chair the panel which considered his case, by failing to appoint as a member of the panel a clinician of the same medical discipline as himself and by refusing to allow him to be legally represented at the hearing. He also maintains that if the procedure had not suffered from those defects no finding of misconduct would have been made against him. Accordingly, on 15th August 2008 he commenced proceedings against the Trust in the Manchester District Registry seeking damages for breach of his contract of employment in the sum of a little under £4.3 million.
For those used to a cap on compensation in tribunal proceedings an eyebrow would be raised at the level of damages he sought for breach of his contract of employment in the sum of under £4.3 million.
At a hearing on 26th March 2009 District Judge Jones accepted the Trust's arguments and granted it a declaration that Mr. Edwards' claim was limited to loss of earnings for the contractual period of three months' notice.
Mr. Edwards' appeal against the District Judge's order was heard by Nicol J. The judge held that if his substantive claim succeeded Mr. Edwards would be entitled to recover loss of earnings in respect of his contractual notice period and also in respect of the period during which he would have remained employed while a disciplinary procedure which complied with the terms of his contract ran its course. He based his conclusion on the decision of this court in Gunton v Richmond-upon-Thames London Borough Council [1980] I.C.R. 755. Accordingly, he allowed the appeal. The order of District Judge Jones was varied accordingly. The present position is summed up in para 7 of the judgment:
'This is a second appeal from an order made under CPR Part 24 to the Court of Appeal. Moreover, it arises on an application by the defendant expressed to be for an order striking out part of the claim (though more properly, since made under Part 24, for summary judgment). Formally, therefore, the issue to be determined is whether Mr. Edwards has any real prospect of recovering after a trial damages in excess of loss of earnings for the contractual period of notice and the period required for contractual disciplinary proceedings. However, since the only issue before the court concerns the measure of damages recoverable in law, Mr. Sutton accepted that the court must proceed on the assumption that Mr. Edwards will succeed in establishing all the allegations made in the particulars of claim. In those circumstances the application has been treated as amounting to the trial of a preliminary issue. The question is whether, if the allegations made on the particulars of claim are established, Mr. Edwards' entitlement to damages is as limited as the Trust contends.'
Johnson v Unisys was distinguished by the Judge with the following words:
The fact is that Johnson v Unisys and Eastwood v Magnox were not concerned with the measure of damages for breach of an express term of the contract but with whether an employee has a cause of action at common law for unfair treatment in connection with his dismissal. (37) The fact is that Johnson v Unisys and Eastwood v Magnox were not concerned with the measure of damages for breach of an express term of the contract but with whether an employee has a cause of action at common law for unfair treatment in connection with his dismissal.
In paragraph 40 of his judgment the judge accepted that 'in the present state of the law,' as represented by Addis v Gramophone Co. Ltd and Johnson v Unisys, damages caused to an employee's reputation by the manner of his dismissal is not usually recoverable. He explained that the reason for this is that, 'the conduct of which he complains does not amount to a breach of contract and damages are not recoverable for personal distress or loss of reputation, 'except in a limited number of cases.. However he continued, the proposition that a breach of contract in the form of a failure to comply with an agreed disciplinary procedure gives rise to a claim is difficult to accept in principle and is difficult to reconcile with the decision in Gunton v Richmond - Upon-Thames.
in para 44 the Judge concluded with the following:
'He can also point to the fact that the failure to carry out the proper disciplinary procedure resulted in the very findings of misconduct that have prevented him from obtaining similar employment elsewhere in the NHS. On the facts that must be assumed in his favour, therefore, wrongful dismissal is not his only cause of action and his claim for damages for failure to carry out proper disciplinary proceedings is not excluded by Johnson v Unisys'.
The Court of Appeal has in effect ruled that any complaint about the dismissal itself must be made under the statutory unfair dismissal procedures under the ERA1996 (where compensation is capped), However where there is an allegation about a separate breach of an express contractual term, such as disciplinary procedures, there is no restriction on a person's ability to bring such a claim.
Copy and paste the following into your browser for a full transcript:
http://www.bailii.org/ew/cases/EWCA/Civ/2010/571.html
The contract under which he was employed provided by clause 8 that either party could terminate it on three months' notice to the other. It also provided by clause 13 that in matters of personal conduct Mr. Edwards would be subject to the hospital's general procedures and that in matters of professional misconduct he would be subject to a procedure agreed by the Local Negotiating Committee in respect of medical practitioners.
In February 2006, following a disciplinary hearing, he was summarily dismissed from his post for gross professional and personal misconduct. He has since been able to obtain work as a locum with another NHS Trust, but has been unable to obtain a permanent consultant post and says that he will not be able to do so in the future because of the finding against him. He says that he has therefore been unable to pursue his medical career in the manner which he would have wished. The Investigating Committee of the General Medical Council later summarily dismissed a complaint against him based on the same allegations.
Mr. Edwards maintained that the Trust failed to follow the contractual disciplinary procedure correctly, in particular, by failing to appoint a person with legal qualifications to chair the panel which considered his case, by failing to appoint as a member of the panel a clinician of the same medical discipline as himself and by refusing to allow him to be legally represented at the hearing. He also maintains that if the procedure had not suffered from those defects no finding of misconduct would have been made against him. Accordingly, on 15th August 2008 he commenced proceedings against the Trust in the Manchester District Registry seeking damages for breach of his contract of employment in the sum of a little under £4.3 million.
For those used to a cap on compensation in tribunal proceedings an eyebrow would be raised at the level of damages he sought for breach of his contract of employment in the sum of under £4.3 million.
At a hearing on 26th March 2009 District Judge Jones accepted the Trust's arguments and granted it a declaration that Mr. Edwards' claim was limited to loss of earnings for the contractual period of three months' notice.
Mr. Edwards' appeal against the District Judge's order was heard by Nicol J. The judge held that if his substantive claim succeeded Mr. Edwards would be entitled to recover loss of earnings in respect of his contractual notice period and also in respect of the period during which he would have remained employed while a disciplinary procedure which complied with the terms of his contract ran its course. He based his conclusion on the decision of this court in Gunton v Richmond-upon-Thames London Borough Council [1980] I.C.R. 755. Accordingly, he allowed the appeal. The order of District Judge Jones was varied accordingly. The present position is summed up in para 7 of the judgment:
'This is a second appeal from an order made under CPR Part 24 to the Court of Appeal. Moreover, it arises on an application by the defendant expressed to be for an order striking out part of the claim (though more properly, since made under Part 24, for summary judgment). Formally, therefore, the issue to be determined is whether Mr. Edwards has any real prospect of recovering after a trial damages in excess of loss of earnings for the contractual period of notice and the period required for contractual disciplinary proceedings. However, since the only issue before the court concerns the measure of damages recoverable in law, Mr. Sutton accepted that the court must proceed on the assumption that Mr. Edwards will succeed in establishing all the allegations made in the particulars of claim. In those circumstances the application has been treated as amounting to the trial of a preliminary issue. The question is whether, if the allegations made on the particulars of claim are established, Mr. Edwards' entitlement to damages is as limited as the Trust contends.'
Johnson v Unisys was distinguished by the Judge with the following words:
The fact is that Johnson v Unisys and Eastwood v Magnox were not concerned with the measure of damages for breach of an express term of the contract but with whether an employee has a cause of action at common law for unfair treatment in connection with his dismissal. (37) The fact is that Johnson v Unisys and Eastwood v Magnox were not concerned with the measure of damages for breach of an express term of the contract but with whether an employee has a cause of action at common law for unfair treatment in connection with his dismissal.
In paragraph 40 of his judgment the judge accepted that 'in the present state of the law,' as represented by Addis v Gramophone Co. Ltd and Johnson v Unisys, damages caused to an employee's reputation by the manner of his dismissal is not usually recoverable. He explained that the reason for this is that, 'the conduct of which he complains does not amount to a breach of contract and damages are not recoverable for personal distress or loss of reputation, 'except in a limited number of cases.. However he continued, the proposition that a breach of contract in the form of a failure to comply with an agreed disciplinary procedure gives rise to a claim is difficult to accept in principle and is difficult to reconcile with the decision in Gunton v Richmond - Upon-Thames.
in para 44 the Judge concluded with the following:
'He can also point to the fact that the failure to carry out the proper disciplinary procedure resulted in the very findings of misconduct that have prevented him from obtaining similar employment elsewhere in the NHS. On the facts that must be assumed in his favour, therefore, wrongful dismissal is not his only cause of action and his claim for damages for failure to carry out proper disciplinary proceedings is not excluded by Johnson v Unisys'.
The Court of Appeal has in effect ruled that any complaint about the dismissal itself must be made under the statutory unfair dismissal procedures under the ERA1996 (where compensation is capped), However where there is an allegation about a separate breach of an express contractual term, such as disciplinary procedures, there is no restriction on a person's ability to bring such a claim.
Copy and paste the following into your browser for a full transcript:
http://www.bailii.org/ew/cases/EWCA/Civ/2010/571.html
Thursday, 27 May 2010
Interesting Article on New Flexible Working Plans
Changes to paternity leave - will they work?
Posted by Cath Everett in Pay & benefits on Wed, 26/05/2010 - 12:24
The new government will face significant challenges in implementing its flexible parental leave proposals given employers’ lukewarm response to existing paternity leave measures today, a leading HR body has warned.
The coalition government is keen for fathers to be able to take six months of paternity leave while their partners return to work. But the suggestion has caused concern among employers over the costs of administering the scheme, not least because of a requirement to monitor spousal entitlement and usage – whether they work for the business or not.
According to the Chartered Institute of Personnel and Development’s (CIPD) quarterly ‘Employee Focus’ survey undertaken among 800 organisations, however, only two out of five businesses are currently offering working fathers two weeks’ pay at or near their full rate. Just under a quarter offer no leave beyond the statutory two week minimum.
Mike Emmott, the CIPD’s employee relations advisor, said: “If flexible parental leave is going to become a reality, we need a step-change in the reward policies of UK organisations that encourages more fathers to take their statutory rights. This is something that will only be achieved through cultural change – and legislation is emphatically not the answer.”
The new government would need to think imaginatively if it wanted to encourage such change, however, he added.
Sarah Bond, head of diversity and employee engagement at management consultancy KPMG, also pointed out that the increasing demands being made on carers were likely to alter both male and female working patterns over the next 10 years. This meant that organisations would need to examine their family support packages to ensure that they matched changing trends.
“There are real incentives for businesses here. More and more talented people with parenting and caring responsibilities – fathers as well as mothers – seek out best practice employers that enable people to balance their work and family lives,” Bond added.
But employers were also concerned about other incoming legislation, the survey showed. Almost three out of ten saw the future Working Time Regulations as the biggest hindrance to doing business effectively, while just over the same number considered the Agency Worker Regulations to be the largest burden. Both new laws are due to come into effect in October 2011. A mere 28% and 13% respectively believed that either would be helpful.
“The CIPD believes that the Working Time Regulations in particular have negligible value in limiting unhealthy workplace behaviour. We are, therefore, calling for its repeal in the context of the review currently being undertaken by the European Commission,” Emmott said.
www.hrzone.co.uk
Posted by Cath Everett in Pay & benefits on Wed, 26/05/2010 - 12:24
The new government will face significant challenges in implementing its flexible parental leave proposals given employers’ lukewarm response to existing paternity leave measures today, a leading HR body has warned.
The coalition government is keen for fathers to be able to take six months of paternity leave while their partners return to work. But the suggestion has caused concern among employers over the costs of administering the scheme, not least because of a requirement to monitor spousal entitlement and usage – whether they work for the business or not.
According to the Chartered Institute of Personnel and Development’s (CIPD) quarterly ‘Employee Focus’ survey undertaken among 800 organisations, however, only two out of five businesses are currently offering working fathers two weeks’ pay at or near their full rate. Just under a quarter offer no leave beyond the statutory two week minimum.
Mike Emmott, the CIPD’s employee relations advisor, said: “If flexible parental leave is going to become a reality, we need a step-change in the reward policies of UK organisations that encourages more fathers to take their statutory rights. This is something that will only be achieved through cultural change – and legislation is emphatically not the answer.”
The new government would need to think imaginatively if it wanted to encourage such change, however, he added.
Sarah Bond, head of diversity and employee engagement at management consultancy KPMG, also pointed out that the increasing demands being made on carers were likely to alter both male and female working patterns over the next 10 years. This meant that organisations would need to examine their family support packages to ensure that they matched changing trends.
“There are real incentives for businesses here. More and more talented people with parenting and caring responsibilities – fathers as well as mothers – seek out best practice employers that enable people to balance their work and family lives,” Bond added.
But employers were also concerned about other incoming legislation, the survey showed. Almost three out of ten saw the future Working Time Regulations as the biggest hindrance to doing business effectively, while just over the same number considered the Agency Worker Regulations to be the largest burden. Both new laws are due to come into effect in October 2011. A mere 28% and 13% respectively believed that either would be helpful.
“The CIPD believes that the Working Time Regulations in particular have negligible value in limiting unhealthy workplace behaviour. We are, therefore, calling for its repeal in the context of the review currently being undertaken by the European Commission,” Emmott said.
www.hrzone.co.uk
Thursday, 20 May 2010
New Coalition Promises Flexible Working for Everyone
Paste this into your browser
http://news.bbc.co.uk/1/hi/uk_politics/8693535.stm
http://news.bbc.co.uk/1/hi/uk_politics/8693535.stm
Wednesday, 12 May 2010
Right to a Fair Trial Defence Applies in Criminal Proceedings but not in an Employment Tribunal
Right to a Fair Trial Defence Applies in Criminal Proceedings but not in an Employment Tribunal
12 may - The Right to challenge your accusers under the ECHR Article 6 does not apply in an employment tribunal...
In Power v Greater Manchester Police Authority EAT 29/04/2010 Mr Power claimed at an employment tribunal that Greater Manchester Police Authority dismissed him because of his spiritual beliefs. the Respondents argued that he was dismissed because of his conduct, namely, the disruptive way in which he practiced his beliefs.
HHJ Mc Mullen said:
'Mr Power does have....a right to a fair trial and in criminal proceedings a right to confront those who accuse him. However in civil proceedings, that is in an employment tribunal determining his rights, when he brings a claim of discrimination the proper approach is decide if it passes the prima facie test in Igen Ltd v Wong [2005] IRLR 258. Then the Respondent is called upon to provide an explanation. The explanation will be the less credible if relevant witnesses are not produced by the Respondent and are not there to support its case and, of course, cannot be cross-examined. That is not, it seems to us, a breach of a convention right nor is there a right to confront any particular witness when he accuses a corporate respondent of discrimination. The Art 6.3(d) right applies to the confrontation of accusers in a criminal process, not as a Claimant in a discrimination case'
http://www.bailii.org/uk/cases/UKEAT/2010/0087_10_2904.html
12 may - The Right to challenge your accusers under the ECHR Article 6 does not apply in an employment tribunal...
In Power v Greater Manchester Police Authority EAT 29/04/2010 Mr Power claimed at an employment tribunal that Greater Manchester Police Authority dismissed him because of his spiritual beliefs. the Respondents argued that he was dismissed because of his conduct, namely, the disruptive way in which he practiced his beliefs.
HHJ Mc Mullen said:
'Mr Power does have....a right to a fair trial and in criminal proceedings a right to confront those who accuse him. However in civil proceedings, that is in an employment tribunal determining his rights, when he brings a claim of discrimination the proper approach is decide if it passes the prima facie test in Igen Ltd v Wong [2005] IRLR 258. Then the Respondent is called upon to provide an explanation. The explanation will be the less credible if relevant witnesses are not produced by the Respondent and are not there to support its case and, of course, cannot be cross-examined. That is not, it seems to us, a breach of a convention right nor is there a right to confront any particular witness when he accuses a corporate respondent of discrimination. The Art 6.3(d) right applies to the confrontation of accusers in a criminal process, not as a Claimant in a discrimination case'
http://www.bailii.org/uk/cases/UKEAT/2010/0087_10_2904.html
Thursday, 6 May 2010
Employment Law and the Differences Between the Parties
If you are still undecided on which party to vote for this article may help from 'The Press and Journal' it explains the differences in policy relating to employment law changes.
The main points are: Labour have obviously introduced the Equality Act 2010 and will increase paid paternity leave to 4 weeks and allow the sharing of paid maternity leave after 6 months.
Increasing the National Minimum wage in line with average earnings and abolishing the retirement age of 65.
The Conservatives will introduce new flexible working rules initially to every parent with a child up to the age of 18. Introducing a new system of flexible parental leave, potentially allowing for 52 weeks’ leave which could be shared between parents (although only mothers could take the first 14 weeks).
Possibly revoking agency worker regs
Possibly abolishing the retirement age.
Pay freeze for public sector workers.
The Lib Dems would extend the right to request flexible working, introduce name blind application forms to tackle discrimination, limit bonuses for bank workers and would introduce equal pay audits for employers with more than 100 employees.
Read more: http://www.pressandjournal.co.uk/Article.aspx/1713681/?UserKey=#ixzz0n8nG6rRZ
The main points are: Labour have obviously introduced the Equality Act 2010 and will increase paid paternity leave to 4 weeks and allow the sharing of paid maternity leave after 6 months.
Increasing the National Minimum wage in line with average earnings and abolishing the retirement age of 65.
The Conservatives will introduce new flexible working rules initially to every parent with a child up to the age of 18. Introducing a new system of flexible parental leave, potentially allowing for 52 weeks’ leave which could be shared between parents (although only mothers could take the first 14 weeks).
Possibly revoking agency worker regs
Possibly abolishing the retirement age.
Pay freeze for public sector workers.
The Lib Dems would extend the right to request flexible working, introduce name blind application forms to tackle discrimination, limit bonuses for bank workers and would introduce equal pay audits for employers with more than 100 employees.
Read more: http://www.pressandjournal.co.uk/Article.aspx/1713681/?UserKey=#ixzz0n8nG6rRZ
Wednesday, 5 May 2010
All You Need to Know on the Equality Act
Try this site which will be updated over the coming months:
www.equalityact.co.uk
www.equalityact.co.uk
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