In what represents a rare incursion by law firms into a popular media, a Scottish law firm has launched an iPhone app which will help employers calculate compensation claims, sections on unfair dismissal, redundancy, maternity and paternity leave and equal pay and discrimination...
The free HR Advisor app includes an interactive unfair dismissal compensation calculator and an interactive redundancy calculator.
Law firm MacRoberts said its app was designed to give employers useful information about UK employment law.
It will also have links to government sites and bodies such as Acas and the Equal Opportunities Commission.
Graham Mitchell, employment law partner at MacRoberts, told the BBC: "We have listened very carefully to our HR clients and have developed a practical, useful and relevant app which addresses the issues HR professionals face every day in an increasingly difficult employment law environment.
"Many of our clients are large employers and they have issues with employment law all the time. It is an area in which reliable information is often needed quickly and it lends itself to an information-based system such as HR Advisor."
Your editor downloaded this app simply by inputting 'HR adviser' (rather than advisor). The app is certainly easy to use and offers information on basic concepts of employment law. HR advisors and practitioners may find the compensation calculator useful. This is one of the first incursions by a law firm into a form media most should be looking to use.
If you know of any other useful legal apps please tell us!
Friday, 5 August 2011
Doctor's dismissal and Right to a Fair Trial
The High Court has rejected a doctor's claim that his dismissal was a determination of his civil rights thus entitling him to an independent and impartial tribunal under Article 6? Mattu v University Hospitals Coventry and Warwickshire NHS Trust.
By an agreement made in writing on 3 February 1998[1] Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust, as a consultant in non-invasive cardiology and general medicine. Mr John Hendy QC on behalf of Dr Mattu argued that important procedural safeguards incorporated, into the agreement were not met enabling the Judge, although not concerned with the underlying merits of the matter, to set aside the dismissal.
Dr Mattu was on sick leave for at least a year from September 2006 and as a result disciplinary proceedings were commenced. The upshot of the disciplinary proceedings was that by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.
Dr Mattu decided to return to work whereupon he was asked to re-skill. Accordingly, reskilling was arranged for Dr Mattu but, unhappily, it is this process which led to Dr Mattu's dismissal in November 2010. In short the parties fell out over the question of reskilling and Dr Mattu declined to sign an action plan in connection with the provision of reskilling. He thought that reskilling should have an additional six months connected to research with the possibility that such six months be spent in the United States of America.
Dr Mattu was dismissed principally for not complying with the re-skilling procedure. Following the dismissal a number of things happened. First, an appeal was made against the dismissal to a panel appointed by the Trust, which panel is empowered to review the dismissal proceedings. That panel met on 9 May 2011 and 13 May 2011. It stands adjourned until 20 September 2011. Second, Dr Mattu has initiated proceedings in an employment tribunal for unfair dismissal, race discrimination, disability discrimination and, what is informally called, whistle blower discrimination. More formally the last mentioned is protective disclosure.
Perhaps, most interestingly, a distinct case was also maintained on the basis of the Human Rights Act 1998. It was said, uncontroversially, that the Trust is a public authority within the Act. Further, it was argued that the process by which Dr Mattu was dismissed and his appeal from it constituted a determination of a civil right possessed by Dr Mattu so as to provide him with the protection given by article 6 of the European Convention on Human Rights as scheduled to the 1998 Act.
High Court proceedings were commenced.
The Trust is a public body to which the Human Rights Act 1998 applies. By article 6 of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 Dr Mattu is entitled in the determination of his civil rights to a hearing before an independent and impartial tribunal. Mr Hendy argued that his dismissal by a public body such as the Trust, which is, in turn, part of the National Health Service, is equivalent to being struck off the medical register and barred from practice in the National Health Service. Consequently, it was argued that the Trust were determining Dr Mattu's civil rights so as to entitle him to an independent and impartial tribunal, which, it is said, he did not enjoy as Mr Hardy cannot be said to be independent of the Trust of which he is chief executive.
The crux of the matter was referred to by Blair J in a case called R (oao Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) accepted that a person's right to practise his profession was a civil right for the purposes of article 6. He recorded (paragraph 21) that it was not in dispute but that a person's right to practise his profession was a civil right for the purpose of Article 6. This is not the same, he said, as that person's right to remain in his current employment.
Thus, The Court disagreed, holding that GMC proceedings would not be affected, and that he could still practise privately, or elsewhere within the NHS. At worst, the Claimant's ability to remain in his current employment was affected. But unlike the right to practise one's profession, doing a particular job is not a civil right, and is not protected by Article 6.
Mr Hendy argues that article 6 is also engaged when an individual's civil right to enjoy a good professional reputation is determined but this was also rejected by Timothy Straker QC (sitting as a Deputy High Court Judge)
'I do not doubt that such dismissal could be described as a blot on Dr Mattu's copy book but I do not consider that Mr Hardy was determining Dr Mattu's reputation.'
The judgment is useful for anyone wanting to know more about the application of Article 6 on public bodies as employers.
NB Interesting similar cases are considered in this judgment such as: Kulkarni v. Milton Keynes Hospital NHS Trust [2010] 1CR 101
Charles Price is a Public Access Barrister and works at No5 Chambers
cp@no5.com
By an agreement made in writing on 3 February 1998[1] Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust, as a consultant in non-invasive cardiology and general medicine. Mr John Hendy QC on behalf of Dr Mattu argued that important procedural safeguards incorporated, into the agreement were not met enabling the Judge, although not concerned with the underlying merits of the matter, to set aside the dismissal.
Dr Mattu was on sick leave for at least a year from September 2006 and as a result disciplinary proceedings were commenced. The upshot of the disciplinary proceedings was that by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.
Dr Mattu decided to return to work whereupon he was asked to re-skill. Accordingly, reskilling was arranged for Dr Mattu but, unhappily, it is this process which led to Dr Mattu's dismissal in November 2010. In short the parties fell out over the question of reskilling and Dr Mattu declined to sign an action plan in connection with the provision of reskilling. He thought that reskilling should have an additional six months connected to research with the possibility that such six months be spent in the United States of America.
Dr Mattu was dismissed principally for not complying with the re-skilling procedure. Following the dismissal a number of things happened. First, an appeal was made against the dismissal to a panel appointed by the Trust, which panel is empowered to review the dismissal proceedings. That panel met on 9 May 2011 and 13 May 2011. It stands adjourned until 20 September 2011. Second, Dr Mattu has initiated proceedings in an employment tribunal for unfair dismissal, race discrimination, disability discrimination and, what is informally called, whistle blower discrimination. More formally the last mentioned is protective disclosure.
Perhaps, most interestingly, a distinct case was also maintained on the basis of the Human Rights Act 1998. It was said, uncontroversially, that the Trust is a public authority within the Act. Further, it was argued that the process by which Dr Mattu was dismissed and his appeal from it constituted a determination of a civil right possessed by Dr Mattu so as to provide him with the protection given by article 6 of the European Convention on Human Rights as scheduled to the 1998 Act.
High Court proceedings were commenced.
The Trust is a public body to which the Human Rights Act 1998 applies. By article 6 of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 Dr Mattu is entitled in the determination of his civil rights to a hearing before an independent and impartial tribunal. Mr Hendy argued that his dismissal by a public body such as the Trust, which is, in turn, part of the National Health Service, is equivalent to being struck off the medical register and barred from practice in the National Health Service. Consequently, it was argued that the Trust were determining Dr Mattu's civil rights so as to entitle him to an independent and impartial tribunal, which, it is said, he did not enjoy as Mr Hardy cannot be said to be independent of the Trust of which he is chief executive.
The crux of the matter was referred to by Blair J in a case called R (oao Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) accepted that a person's right to practise his profession was a civil right for the purposes of article 6. He recorded (paragraph 21) that it was not in dispute but that a person's right to practise his profession was a civil right for the purpose of Article 6. This is not the same, he said, as that person's right to remain in his current employment.
Thus, The Court disagreed, holding that GMC proceedings would not be affected, and that he could still practise privately, or elsewhere within the NHS. At worst, the Claimant's ability to remain in his current employment was affected. But unlike the right to practise one's profession, doing a particular job is not a civil right, and is not protected by Article 6.
Mr Hendy argues that article 6 is also engaged when an individual's civil right to enjoy a good professional reputation is determined but this was also rejected by Timothy Straker QC (sitting as a Deputy High Court Judge)
'I do not doubt that such dismissal could be described as a blot on Dr Mattu's copy book but I do not consider that Mr Hardy was determining Dr Mattu's reputation.'
The judgment is useful for anyone wanting to know more about the application of Article 6 on public bodies as employers.
NB Interesting similar cases are considered in this judgment such as: Kulkarni v. Milton Keynes Hospital NHS Trust [2010] 1CR 101
Charles Price is a Public Access Barrister and works at No5 Chambers
cp@no5.com
Thursday, 23 June 2011
New Redundancy Notification Clarification
New redundancy law
The EAT has handed down a new judgment ,'Howard v Campbell's Caravans', involving notification to an employee that he will be retired after his 65th Birthday...
The Case involved the dismissal of an employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65. It was said to be unfair and to constitute age discrimination because the employer had failed, in the manner of the prescribed retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996. Specifically it was contented that the employer had failed to specify the retirement date in that the notification had merely said that he would be retired “after” his 65th birthday.
Mr Justice Underhill argued that it does not necessarily constitute a failure to comply with the requirement of the statutory retirement procedure that the employee must be notified of the intended date of his retirement.
It was held that the inclusion of the word “after” did not always mean “on a date later than” and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later)
On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.
http://www.bailii.org/uk/cases/UKEAT/2011/0609_10_1205.html
The EAT has handed down a new judgment ,'Howard v Campbell's Caravans', involving notification to an employee that he will be retired after his 65th Birthday...
The Case involved the dismissal of an employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65. It was said to be unfair and to constitute age discrimination because the employer had failed, in the manner of the prescribed retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996. Specifically it was contented that the employer had failed to specify the retirement date in that the notification had merely said that he would be retired “after” his 65th birthday.
Mr Justice Underhill argued that it does not necessarily constitute a failure to comply with the requirement of the statutory retirement procedure that the employee must be notified of the intended date of his retirement.
It was held that the inclusion of the word “after” did not always mean “on a date later than” and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later)
On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.
http://www.bailii.org/uk/cases/UKEAT/2011/0609_10_1205.html
Friday, 10 June 2011
The Relevance of 'Burchill' to Capability
In the Edinburgh Appeal Tribunal an appeal against a finding of unfair dismissal was upheld in the case of D B Schenker Rail (UK) Ltd v Doolan Appeal No. UKEATS/0053/09/BI 13 April 2011
The ET had no basis for finding that the employers were not entitled to conclude, on expert evidence that the Claimant was fit to work - they had substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.
The dismissed man was a production manager suffering from stress and depression - a referral to an occupational psychologist was made - eventually he was dismissed on capability grounds.
The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175). A question arose as to whether it was a genuine reason and whether certain expert evidence should have been relied upon by the Respondents.
Para 33 sums up the correct approach when there is a question as to the sufficiency of the reason for dismissal:
'Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.
The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.'
The ET had no basis for finding that the employers were not entitled to conclude, on expert evidence that the Claimant was fit to work - they had substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.
The dismissed man was a production manager suffering from stress and depression - a referral to an occupational psychologist was made - eventually he was dismissed on capability grounds.
The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175). A question arose as to whether it was a genuine reason and whether certain expert evidence should have been relied upon by the Respondents.
Para 33 sums up the correct approach when there is a question as to the sufficiency of the reason for dismissal:
'Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.
The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.'
Thursday, 10 February 2011
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.
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 …
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 …
Wednesday, 26 January 2011
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
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
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