27th July - Freshfields has introduced a pilot mentoring scheme for senior female associates in order to boost its ranks of women partners...
Six female senior associates from departments across the firm will take part in the pilot, as part of the "Strategic Excellence Leadership Programme". It should be rolled out more widely if the scheme proves a success.
Billed as focussing on career development and how to be a role model and positive influence, the pilot will include two one day workshops and regular sessions with a senior partner mentor. Senior associates will also take part in monthly hour long coaching sessions with consultancy firm Aspire, which specialises in women's development, according to the Lawyer.
The ECJ ruled in November 1997 that positive sex discrimination in favour of female candidates for job promotion is not necessarily contrary to EC law ( Marschall v Land Nordrhein-Westfalen 2001 ICR 45, ECJ case C-409/95).
Monday, 26 July 2010
Thursday, 15 July 2010
Employers Feel the Bite as Increase in Employment Law Knowledge Sees Rise in Claims
As the effects of the recession tell, recent annual statistics for employment tribunal services show claims submitted reached a record figure this year – up 56% on last year...
The most popular types of claim accepted by the tribunal were for unfair dismissal (57,400), unauthorised deductions from wages (75,000) and breach of contract (42,400). These showed an increase from last year's figures of approximately 8%, 54% and 23% respectively.
The figures come as no surprise to employment lawyers, who have noticed a significant upward trend in litigation against employers in the last 12 to 18 months.
Inevitably the recession has been a factor in this as employees who have little prospect of securing alternative employment feel they have no alternative and nothing to lose by bringing an employment tribunal case against their ex-employer.
The Dickinson Dees Employment Tribunal Trends Index shows that, if the current trend continues, employers will face around 370,000 more tribunal cases in the next three years (years ending 2011 to 2013) than they did in the previous three (years ending 2007 to
2009).
With an estimated average cost of £7,000 for every tribunal commenced,2 recession- battered employers will spend around £2.6bn more defending themselves in the coming three years than the previous three – an increase of 46%. James Wilders, an employment partner at Dickinson Dees, which specialises in advising employers, said:
“Since 1998 there has been an almost inexorable rise in the number of employment tribunals, with an average of 20,000 more new cases each year than in the previous one. This has been driven by numerous changes in employment law and regulations, combined with the increased damages available encouraging people, an increased awareness of workers’ rights and no-win-no-fee legal advisers to mount more cases.
The most popular types of claim accepted by the tribunal were for unfair dismissal (57,400), unauthorised deductions from wages (75,000) and breach of contract (42,400). These showed an increase from last year's figures of approximately 8%, 54% and 23% respectively.
The figures come as no surprise to employment lawyers, who have noticed a significant upward trend in litigation against employers in the last 12 to 18 months.
Inevitably the recession has been a factor in this as employees who have little prospect of securing alternative employment feel they have no alternative and nothing to lose by bringing an employment tribunal case against their ex-employer.
The Dickinson Dees Employment Tribunal Trends Index shows that, if the current trend continues, employers will face around 370,000 more tribunal cases in the next three years (years ending 2011 to 2013) than they did in the previous three (years ending 2007 to
2009).
With an estimated average cost of £7,000 for every tribunal commenced,2 recession- battered employers will spend around £2.6bn more defending themselves in the coming three years than the previous three – an increase of 46%. James Wilders, an employment partner at Dickinson Dees, which specialises in advising employers, said:
“Since 1998 there has been an almost inexorable rise in the number of employment tribunals, with an average of 20,000 more new cases each year than in the previous one. This has been driven by numerous changes in employment law and regulations, combined with the increased damages available encouraging people, an increased awareness of workers’ rights and no-win-no-fee legal advisers to mount more cases.
Wednesday, 7 July 2010
Employment - More Time Limit Case Law - Will it Ever Stop?
What happens when an employee listens to his employer when he is wrongly told that he had 3 months in which to present an unfair dismissal claim when he only had 6 weeks? I know what you are thinking - would you honestly believe anyone you are about to bring an unfair dismissal against - no is the obvious answer, but some do...
Northamptonshire County Council (Appellant) v Mr D Entwhistle UKEAT/0540/09/ZT
The crucial element in the latest case to come off the conveyor belt is that the Claimant contacted a solicitor, who negligently failed to notice the error. The Claim was subsequently submitted 2 weeks out of time.
It was held allowing the appeal, that it was reasonably practicable for Claimant to present claim in time because if his solicitor had given him advice of the kind he should reasonably have been given the employer’s mistake would have had no effect.
Although widely reported this case does not vary from the general rule seen in Dedman as explained by, Lord Denning MR said: “Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences .
Dedman [1974] ICR 53
Northamptonshire County Council (Appellant) v Mr D Entwhistle UKEAT/0540/09/ZT
The crucial element in the latest case to come off the conveyor belt is that the Claimant contacted a solicitor, who negligently failed to notice the error. The Claim was subsequently submitted 2 weeks out of time.
It was held allowing the appeal, that it was reasonably practicable for Claimant to present claim in time because if his solicitor had given him advice of the kind he should reasonably have been given the employer’s mistake would have had no effect.
Although widely reported this case does not vary from the general rule seen in Dedman as explained by, Lord Denning MR said: “Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences .
Dedman [1974] ICR 53
Implementation of Equality Act Begins in October..
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
http://www.equalities.gov.uk/media/press_releases/government_equalities_office_s.aspx
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
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