Knowledge of the person making the decision to dismiss is what counts!

Knowledge of the person making the decision to dismiss is what counts!

9th February - In the recent case of Orr v Milton Keynes Council, the appellant, had been dismissed following two separate incidents, including rudeness to his line manager, M, both of which his employer found amounted to gross misconduct. The decision maker had been unaware that the second incident had been provoked by the conduct and language of M, which the Tribunal later found amounted to direct race discrimination....

The Defendant won their case at the Employment Appeals Tribunal but the Court of Appeal (the next step up) restored the original decision of the Employment Tribunal. The Court of Appeal thus held by a majority that the tribunal had been correct to conclude that the dismissal remained fair because the decision, on the facts known to the decision maker, was reasonable.

Sedley LJ regarded what was known by the employer and the employees at the time and decided accordingly. Therefore, the moral of the story is that it is what was known by the employer at the time of dismissal is crucial.

Useful article on default retirement age

Curtesy of HR Zone and Iain Jenkins Prtner at Lee and Priestly

The recent announcement by the Government that the default retirement age (DRA) will, as expected, be abolished with effect from 1 October has been welcomed by age campaigners.

It does not, however, necessarily spell the end of forced retirement and employers groups, including the CBI, have pointed out. The proposed abolition of the DRA in October 2011 will notprevent private employers from having a compulsory retirementage provided they can objectively justify having it.

To establish objective justification they will need to have a legitimate aim, or aims, for having a DRA and, in relation to those employees to whom it applies, that aim, or those aims, must be consistent with the Government's approach to the UK's DRA of 65 and both the chosen retirement age and the process for implementing it are a proportionate response to those legitimate aims.

That will be for the courts to determine on a case by case basis and, whilst it is likely to be a high hurdle, it will be possible. Recent case law (Seldon v Clarkson Wright & Jakes) has made it easier, in principle, for employers in the private sector to put forward an argument of objective justification and to have a DRA of some kind, although it is probably going to make it more difficult to have one across the board.

Employers should, therefore, look carefully at their need to have a retirement age and then at how to justify and implement it. Iain Jenkins, partner at law firm Lee & Priestley, says that being able to justify having a retirement age after October 2011 will be a high hurdle, but not impossible …

Minimum wage and 'on call claims'

South Manchester Abbeyfield Society Ltd v Hopkins & Anor UKEAT/0079/10/ZT

Employment Case Update have covered a recent EAT case relating to the above. The Judgment reviews all of the law in this area succinctly and explains when the Minimum Wage Working Time Regulations 1998 and when the National Minimum Wages Act 1998 ("NMWA") and the National Minimum Wage Regulations 1999 become relevant. The judgment considers interesting concepts such as can a Claimant only claim successfully for time when actually awake.

Link

Law Soc guidance on compromise agreements

This guidance is so convoluted that it would be great if someone would test the meaning of the poorly drafted clause in the Equality Act:

Guidance

Help me complete the London Marathon in aid of CLIC Sargent

Hi I am running in the London Marathon this year in aid of
CLIC a charity which helps children and familieswith cancer.

Please help assuage the pain of the run and help me reach my 2500 total by donating
here

Excellent article on compromise agreement muddle

The Law Gazette has produced an excellent article summing up the debate and issues arising out of the dubious draughtsmanship of part of the Equality Act. The only problem is that we still do not have a copper plated solution.

The author here even refers to making compensation payable in installments and of course the old COT3 via ACAS in order to avoid further litigation.

Link: Article

Are you finding your cases are being postponed due to a lack of availability of judges?

Please tell me if this has happened to you recently? Is it just me or is it on the increase?