Rather than think that I had insulted my clerks at some point in order to have been sent so far as Inverness for a tribunal I grasped the Opportunity with both hands. On arrival the snow capped mountains welcomed me.
I was representing a large charity who were facing complaints that a manager had bullied and employee and forced her to work in the home of a dangerous 'patient/client'. Prior to the trip I had not had any dealings with Scottish law and my conclusions are as follow:
They are half right in their approach:
Witnesses must give evidence separately to avoid collusion a practice tribunals in England and Wales generally do not follow (although they have the power). This can only be a good thing. Yet tribunals entertain the strange practice of not employing witness statements. This cannot be a good thing as in my humble opinion if the witness deviates from a sworn statement it can demonstrate inconsistency and thus unreliability or the converse.
One other thing you may expect if you end up near the river Ness is a lot of attention. Our case commanded the attention of all the local press and even camera men running after us in the street a very odd feeling!
Tuesday, 30 December 2008
Friday, 27 June 2008
Employment E-Missive No.23 – The Thorny Issues in Redundancy Cases
by Charles Price, LLB.(hons) LLM, barrister No5 Chambers, Birmingham - Bristol - London Telephone 0870 203 5555 www.no5.com
www.charlesprice.net
cp@no5.com
1. Redundancy Pointers – What to Look For in Redundancy Disputes
2. New Case Fails to Clear the Muddy Waters When it Comes to Uplifts
3. Case Watch – An Australian Transvestite Exposes the Law of Discrimination
4. Recommended Expert Witness CVs
A Legal Commentary Email.....
Charles Price specialises in Respondent and Claimant work in England and Wales. This e-mail is for academic purposes only. Legal considerations mustbe looked at in the light of the particular circumstances and it may be wise to seek legal advice.
1) Redundancy Pointers – What to Look For in Redundancy Disputes
Unfortunately, due to the economic slowdown UK Plc is suffering at the moment we are seeing a massive increase in unfair dismissal claims related to redundancy. For this reason I have decided to add a checklist of considerations which often arise in tribunal cases of this type.
When fighting a dismissal for redundancy on behalf of a Claimant the strongest arguments are often procedural as tribunals are often adverse to delving into reasons for selection. Often, the strongest cases involve the question as to whether alternative positions were available at the time of dismissal which the Claimant could have been offered if the employer had actually cared. Cases featuring a lack of consultation can also be meritorious. It is quite possible to run the argument that a lack of consultation meant that the tribunal cannot assess adequately the likelihood that the Claimant would have remained in his or her job if the proper procedures were put in place and there for there should a finding of unfair dismissal and without a reduction of compensation.
The success of this type of case, however will often rely upon thorough preparation. It is imperative that solicitors should ask the other side to produce a list of job vacancies the company had at the pertinent times (before and after the dismissal). This process will involve close scrutiny of the Claimant’s skills and CV. Below is an examination of some of the key features which crop up regularly in redundancy cases.
Points to Remember:
The burden is on the employer - S. 98(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show that the employee was redundant.
What the Respondent Must Show
In unfair dismissal cases the onus of proof is on the employer to show the reason, or, if more than one the principal reason, for dismissing the employee (ERA 1996 s.98(1)). If the employer fails to prove the reason is one of the four reasons set out in ERA 1996 s.98(2) or "some other substantial reason" (ERA 1996 s.98(1)(b)) the dismissal is deemed to be unfair (see Maund v Penwith DC 1984 ICR 143, CA). If the employer does prove that the reason for the dismissal was one of those referred to above, the Employment Tribunal must then decide "in accordance with equity and the substantial merits of the case" whether the dismissal was fair or unfair. There is no onus of proof on either the employer or employee for this purpose - the employment tribunal must simply take into account all the circumstances, including the size and administrative resources of the employer's undertaking (ERA 1996 s.98(4).
The ERA 1996 s.139(1) provides that:
"For the purposes of this Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to -
(a) the fact that his employer has ceased, or intends to cease -
to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business -for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.
If the Respondent can show that there was a redundancy situation, the tribunal should ask the question; Was the dismissal fair in accordance with S98(4) or the ERA and the range of reasonable responses along the tests in Iceland Frozen Foods V Jones (1982) IRLR 439? In deciding whether a dismissal is fair or unfair an employment tribunal must not substitute its own view for that of the employer as to whether it was fair to dismiss the employee but rather must determine whether dismissal was within the range of reasonable responses open to the employer see Midland Bank plc v Madden 2000 ICR 1283 ICR 1283, Court of Appeal.
Prima Facie Fair
One of the most important practical implications of " redundancy" is that a dismissal by reason of redundancy is prima facie fair. Whether such a dismissal is in fact fair or unfair will then turn on whether the Tribunal considers that the employer acted reasonably in treating the redundancy "as a sufficient reason for dismissing the employee" (see ERA 1996 s.98(2)(c))
Information Must be Provided About Alternative Roles but Claimant Must Indicate an Interest
The EAT has held, in Fisher v Hoopoe Finance Ltd., that where there are one or more possibilities of suitable alternative employment available to an employee who is to be made redundant, then the employer should normally inform the employee of the financial prospects of those positions to enable the employee to make an informed choice. A failure to provide such information (unless impractical, for example if the salary has not been set) is likely to make any dismissal unfair and, presumably, likely to render it reasonable for the employee to refuse the offer.
That appears relatively uncontroversial. Of greater interest, is an indication by the EAT (HHJ Birtles presiding) that a failure by an employee to indicate an interest in a particular position and/or to request further information (including financial information) is a factor which the Employment Tribunal may wish to take into account in reducing the basic and compensatory awards on grounds of contributory fault.
Consultation
Failure to consult with an employer about to be made redundant will make it likely that a Tribunal would decide that any resulting dismissal(s) was unfair and in this case discriminatory even though it was genuinely caused by redundancy Alstom Traction Ltd v Birkenhead & ors EAT case 1131/00 10th October 2002.
Consultation must be fair which means that there must be:
"(a) consultation when the proposals are still at a formative stage;
(b) adequate information on which to respond;
(c) adequate time in which to respond;
(d) conscientious consideration by [the employer] of the response to consultation"
(R v British Coal etc ex p Vardy & Ors 1993 ICR 720, QBD).
In the present case consultation was brief did not start at a formative stage and involved no conscientious consideration of the Claimant’s response to the suggestion that the respondent needed a full time member of staff.
Statutory Dismissal Procedures
In a redundancy situation, the statutory dismissal procedure requires an employer to tell an employee of the reason for the redundancy, the selection criteria, his score, but not the threshold (ie the 'break' score beyond which his job is safe) or the scores of other employees. Failure to provide this information renders the dismissal automatically unfair and leads to an increase in the compensatory award.
S98A(2), which partially reverses Polkey v AE Dayton Services, has a wide-ranging effect and cannot be narrowly construed to rescue only employers who fail to comply with formal written procedures over and above the statutory minimum.
In redundancy dismissals, where a matrix system is used, this requires that the employee be told the selection criteria (para. 43) and the scores he has achieved (para. 45). It does not require that the employee be told the threshold score he must achieve to remain in employment, or the scores of other employees (para 46). The Claimant was not told of the selection criteria or given any other details.
In the same case it was decided that, if an employer fails to comply with any procedure which a tribunal feels it ought, in fairness, to have carried out, it is able to avail itself of the new statutory defence in s98A(2). This is not limited to formal procedures, whether written down or not. If the employer's actions are fundamental, then it is likely there will be a breach of the statutory dismissal procedures anyway, in which case s98A(2) does not assist.
Recommended Expert CV
Lars Davidsson, Psychiatrist "I am a consultant general adult psychiatrist who have been employed by the South Essex Partnership Foundation Trust since the beginning of November 2001 in a substantive post. Before that I was a substantive consultant at the University Hospital of Lund, Sweden for about 15 years. I am a member of the Royal College of Psychiatrists as well as an elected member of The Association of European Psychiatrists where I am also a member of a special interest group of transcultural psychiatry. I have during the last six years written about 300 reports both in criminal and civil matters.
I have been working on behalf of the Swedish government in post war Bosnia and I have since then taken a special interest in transcultural psychiatry and trauma psychology. I am usually able to provide an appointment within two weeks and the report can usually be delivered within four weeks after recieving instructions.
I am willing to accept instructions by e-mail lars.davidsson@southessex-trust.nhs or by fax 01702440429. My contact adress is The Taylor Center, Queensway House, Essex Street, Southend on Sea, SS1 2NY. My phone number is 01702440532
2) New Case Fails to Clear the Muddy Waters When it Comes to Uplifts
Since 1 October 2004 employers and employees have had to follow the statutory dispute resolution procedures set out in schedule 2 of the Employment Act 2002 (EA 2002). The applicable procedure in most cases when the employer is contemplating dismissing or taking disciplinary action against an employee is the standard disciplinary and dismissal procedure (SDDP) (regulation 6(1), Employment Act 2002 (Dispute Resolution) Regulations 2004 (the Dispute Resolution Regulations)). This involves (broadly):
The employer giving the employee a written statement of grounds for dismissal or relevant disciplinary action.
A meeting at which both sides may explain their case, following which the employer must inform the employee of the decision and their right of appeal.
An appeal meeting if requested by the employee.
(Schedule 2, EA 2002.) states that employment tribunals must adjust awards by a minimum of 10% (up to a maximum of 50%), either up or down in cases where there has been a failure by employer or employee to abide by the new rules (Emp'tAct 2002 s.31).
If an employer fails to follow the appropriate statutory procedure, and the employee brings a successful tribunal claim in respect of the matter to which the procedure applied, the tribunal must uplift the employee's award by 10% and may, if it considers it just and equitable to do so, increase the award by up to 50% (section 31, EA 2002). In unfair dismissal cases the uplift is applied to the compensatory award only.
There has been little guidance to date on the factors which a tribunal must take into account in deciding the amount of the uplift . In Giles v Geach & another t/a Cornelia Care Homes, ET case no 3100720/05, 25 July 2005 a tribunal awarded a 40% uplift where an employer had failed to respond to an employee's written grievance under the statutory grievance procedures.
A new Scottish case, however threatens to muddy the waters with new guidance on uplifts.
In McKindless Group v McLaughlin (EAT)
The employer admitted breach of the statutory dismissal proceedings. The tribunal awarded a 50% uplift. Overturning this, and substituting a 10% uplift, the EAT stated that:
a tribunal cannot award more than a 10% uplift in the absence of evidence on the reason(s) for breach of the statutory dismissal procedure (para. 13); and,
a tribunal is not entitled to take into account the way in which the employer subsequently conducted the litigation (para. 26)
This guidance flies in the face of the ‘just and equitable’ discretion suggested in section 31, EA 2002. The tribunal should in my opinion be trusted to look at the situation in the whole. As Barrister Daniel Barnett suggested recently:
‘Both of these conclusions are open to question. As to the first, if correct, it would mean an employer who deliberately flouts the procedures and then takes no part in the proceedings could not be subjected to more than a 10% uplift, whereas a well-meaning but ignorant employer who tries to explain his error could be subject to a greater award.’
There is, it seems nothing in the statute which advocates this approach when assessing what level of uplift is 'just and equitable'.
Recommended Expert CV
Dr Kacker
Curriculum Vitae of Dr R Kacker BSc (Dual Sp Hons), M.B.Ch.B. D.F.F.P. D.C.H. D.D.A.M. Post Grad Cert Med Ed. M.R.C.G.P. C.U.E.W. M.E.W.I. M.A.E.
PERSONAL DETAILS
NameRahul
Kacker
Sex
Male
Professional Address
The Claremont Hospital,
401 Sandygate Road,
Sheffield,
S10 5UB
Telephone
0845 895 1058
Fax
0845 644 4394
e-mail
drrkacker@symle.co.uk
web site
www.symle.co.uk
RELEVANT MEDICAL EXPERIENCE & QUALIFICATION
I qualified as a medical practitioner in 1995.
I have practised in the medical specialties: Obstetrics and Gynaecology, Adult Mental Health, Paediatrics, Accident and Emergency Medicine, Adult General Medicine and General Surgery.
I have worked at The Royal London Hospital, London where as a Senior House-Officer in Accident & Emergency medicine one of the country’s major trauma units
I assisted in the treatment of major trauma patients, usually high speed road traffic accidents. I also examined, treated and investigated patients with soft tissue injuries such as ‘slip and trip’, whiplash injuries and joint dislocations.
I am a medical General Practitioner in a partnership which cares for over 11,000 patients. I diagnose, treat and refer where appropriate Musculo-Skeletal and soft tissue injuries or conditions on a daily basis. I have achieved the Membership of the Royal College of General Practitioners (M.R.C.G.P.) by examination.
I hold a Bachelor of Science (BSc Dual Special Honours) degree in Biochemistry and Physiology, in which I studied the chemical reactions and functioning of the human body. I also hold a Bachelor of Medicine and Bachelor of Surgery (M.B.Ch.B) Medical degree.
RELEVANT EXPERIENCE & QUALIFICATIONS TO PROVIDE PERSONAL INJURY MEDICO-LEGAL REPORTS.
I am qualified by examination in the Diploma in Disability Assessment Medicine (D.D.A.M) by the Faculty of Occupational Medicine of the Royal College of Physicians in London. This qualification was introduced for doctors who wish to demonstrate by a combination of training, and then by practical examination, a recognised level of knowledge and competence in disability assessment medicine. It is particularly relevant and unique to practitioners in the fields of rehabilitation and assurance medicine.
I have been trained, accredited and approved by the Chief Medical Advisor on behalf of the Secretary of State for Social Security for Department of Work and Pensions (D.W.P.) to perform medical assessments for the state benefits, Disability Living Allowance and Attendance Allowance. Here, as a Disability Analyst, I would take a statement from the applicant and an examination performed to assess the impairment consequent to the client’s medical condition on their Activities of Daily Living (cooking, cleaning and shopping) as well as Personal Activities of Daily Living. The case mix is varied but predominantly comprises of Musculo-Skeletal Conditions as well as Mental Health and Psychological conditions. A prognosis of the likely duration of the symptoms and their expected, if at all, recovery period is offered as part of the report.
I have been preparing medico-legal reports since September 2002.
I am a Member of the Expert Witness Institute (M.E.W.I.) and Academy of Experts (M.A.E.)
I have successfully completed the training for and been awarded the Cardiff University Bond Solon Expert Witness Certificate (C.U.E W.) held by Bond Solon - legal training consultancy in London.
Recommended Expert CV
Dr Danny Allen
GMC No: 2496814
I work as a Consultant Adult Psychiatrist at Oxfordshire and Buckinghamshire Mental Health Partnership NHS Trust. My qualifications are MB BS LLM (Mental Health Law) MRCGP MRCPsych. I am approved under Section 12(2) of the Mental Health Act 1983, am a Cardiff University accredited Expert Witness and hold the Medico-legal Expert Witness Certificate (Family) from City University and the Inns of Court School of Law. I am a member of the Expert Witness Institute and the Society of Expert Witnesses.
My areas of expertise include mental illness, personality disorder, alcohol and drug misuse and post traumatic stress disorder. I have been in medico-legal practice for 15 years and have been a consultant in High Wycombe for 13 of these. I have been trained in report writing and court work and produce in excess of 100 reports a year for tribunals and courts. In my NHS work I am responsible for a Community Acute Service and an Assertive Outreach Team. I have a private practice in High Wycombe and Maidenhead. I keep up to date in psychiatry and expert work through Continuing Professional Development.
I have published a number of research papers. I am particularly interested in the effects of the workplace on mental health, having seen a lot of people with workplace-related problems in my previous job in a community mental health team and now in the Community Acute Service which treats people in crisis. I have produced quite a few reports for Employment Tribunals over the years and have appeared before them on a number of occasions. I work with a group of psychiatrists and we are acutely aware of the requirements of the tribunal system and of the Legal Services Commission.
I am able to produce reports on time, to pre-agreed prices, in jargon-free language. An example anonymised report is available on request. Allen Associates PO Box 1086 BEACONSFIELD HP9 1WU enquiries@allen-associates.com www.allen-associates.com Tel: 0870 162 1671 Fax: 0870 162 1672
Other Past Articles on Charlesprice.net:
Obtaining a Witness Order - Not as Easy as you Think! http://www.charlesprice.net/emissnn.html
How to Draft Pleadings Under the Protection From Harassment Act
http://www.charlesprice.net/emissiverr.html
Age Discrimination
irenem.ovenstone@ntlworld.com
Recommended Expert Witness
I am Irene Margaret Kinnear Ovenstone. I am an emeritus Consultant Psychiatrist, leaving the NHS in June 2004. Since this time, I continue to attend lectures and meetings to attain my continued professional development to the extent that I obtain my Certificate of Attainment from the Royal College of Psychiatrists yearly. I hold qualifications M.D. (Commendation) and F.R.C.Psych., and am approved for the purpose of Section 12(2) of the Mental Health Act. From 1969 to 1972
I worked as a member of the Scientific Staff and Honorary Lecturer MRC Unit for Epidemiological Studies in Psychiatry in Edinburgh. From 1973 to 1994 I was a clinical teacher and Consultant Psychiatrist specialising in old age psychiatry at Nottingham City Hospital. From 1974 to 1979 I was Secretary and Chairman of the Nottingham Area Psychiatric Division and served on several working parties in relation to nurse education, drug custody and administration on the Nottingham Health Care Planning Team for the Elderly.
I became a member of the Mental Health Tribunals in 1981 until October 2004. I have written several papers on suicidal behaviour, marital neurosis in the British Journal of General Psychiatry and other journals. My areas of expertise are: Anxiety disorders and depression (psychiatry); trauma sequelae (psychiatry, including personal injury); accident victims (psychiatry); post-traumatic stress disorder (psychiatry); stress disorders (psychiatry); mental disorder (psychiatric assessment). Medical legal reporting approximately 50 per year over a 10-year period.
I have been trained by the Bond Solon and have obtained the Cardiff University Certificate of Expert Witness Accreditation. I am currently listed in Debrett’s People of Today. Consulting Rooms 2 Regent Street Nottingham NG1 5BQ Tel: 0115 9474755 Fax: 0115 9508174 email:
For a Free Compromse Agreement Template cut and paste the following into your browser: http://www.charlesprice.net/precedents.html
Recommended Expert Witness
Dr Wise is a consultant for a busy inner city area, responsible for the assessment of over 300 new referrals a year and providing long term care for over 100 patients with severe and enduring mental illnesses. In his private practice Dr Wise sees over 150 new patients a year and coordinates the care of a further 150 patients. With a Masters in Anthropology and trained in Cognitive Behavioural Therapy he is well versed to assist with the varied issues that present in the acutely unwell, or with medically unexplained symptoms. His expertise covers Depression, Anxiety and Post-Trauma states, and Capacity; most commonly applied to discrimination cases, personal injury, coronial enquiries, and capacity issues
Dr Wise is Chair of the British Medical Associations Medico-Legal Committee, sits on its Medical Ethics and Psychiatric Committees, and regularly liaises with the Ministries of Health & Justice. He has authored guidelines on expert witness practice, and acted for the Healthcare Commission and NHS Ombudsman. Having sat on many national committees, including the NICE guideline development group for Anxiety Disorders and the National Implementation Group for the Mental Health Act 2007 he is well versed with policy and practice issues.
He can be contacted via jan@wiserminds.co.uk, and is happy to discuss cases by telephone before instructions are considered (07968125126).
3) Discrimnation Law Skirts Around Transvestite Issue
Luck certainly wasn’t a lady for transvestite, Paul Hurst recently when he was rejected from a casino for being dressed ‘inappropriately’. Last month ‘The Age’ reported from Australia in its article, ‘Stuck Between a Frock and a Card Place’ that transvestite, Paul Hurst or Anne Maree to his friends had been asked to leave a casino because of his appearance. Australian lawyers are now debating whether transvestites are protected in law.
Dressed in one of his best frocks, Mr Hurst was photographed in a glamorous sequined dress partying at the launch of Priscilla, Queen Of The Desert at Star City's Lyric Theatre. A month later he and a friend again donned their dresses for a night out the casino's new spin-off bar, Priscilla's. Unfortunately Mr Hurst found his way barred by 2 bouncers on the night. A security guard had deemed him to be a "man" and "inappropriately dressed" when he was refused entry to the casino at 9.15 on the night of November 1, 2006.
Mr Hurst, of Coogee, filed an action alleging the casino has discriminated against him because of his sexual gender and was refused service and asked to leave. Mr Hurst told the panel of the Administrative Decisions Tribunal (Equal Opportunity Division), that "I have always regarded myself as a woman and lived my life as a woman,"
The casino changed it’s stance at the initial hearing claiming that that Mr Hurst was "wearing an extremely short skirt that barely covered his groin region, white underwear and garters … were visible". Previous evidence provided stated however, that it was Mr Hurst’s friend, "Russell" who was inappropriately dressed in the short red skirt and white pants and garters, and that Mr Hurst had been welcome to stay.
Deputy president of the Administrative Decisions Tribunal, Nancy Hennessy granted an order to obtain a copy of the casino's security video of the incident. The solicitor for the casino told Mr Hurst that under the Anti-Discrimination Act the tribunal can only hear transgender cases.
"The Anti-Discrimination Act does not protect transvestites, it protects transsexuals, but you said you live as a woman," Ms Hennessy said. "Before the tribunal can hear the case what you have to be able to prove to the court is that sexually you are a transsexual."
The parties have been asked to reappear before the tribunal in July to resolve the matters.
In the UK, Discrimination against transsexuals in an employment or vocational context has been unlawful in Britain since 1st May 1999 (under the Sex Discrimination (Gender Reassignment) Regulations 1999, SI 1999/1102).
Discrimination against homosexuals (ie discrimination on grounds of sexual orientation) in an employment or vocational context became unlawful in Britain on 1st December 2003 (under the Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661. Even before May 1999 (for transgender persons) or December 2003 (for homosexuals) a person who had been discriminated against on grounds of change of sex or on grounds of sexual orientation could in appropriate circumstances claim for a breach of human rights under the Human Rights Convention. The Gender Recognition Act 2004. allows people who change sex the right to marry in their acquired gender and be given new birth certificates that recognise the acquired gender.
Although the law has not been tested with regards to transvestites it would seem that they do not fall into either strict category of trans gender or necessarily homosexual.
As Appearing on HRZone
The author, Charles Price is an employment barrister of 8 years call.
This e-missive is distributed to over 2000 employment solicitors in England and Wales. Please Contact me if you have any comments. Any examples of drafting in this or any other bulletin are not intended to be related to real life cases.
To subscribe or unsubscribe please email the author
--------------------------------------------------------------------------------
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by Charles Price, LLB.(hons) LLM, barrister No5 Chambers, Birmingham - Bristol - London Telephone 0870 203 5555 www.no5.com
www.charlesprice.net
cp@no5.com
1. Redundancy Pointers – What to Look For in Redundancy Disputes
2. New Case Fails to Clear the Muddy Waters When it Comes to Uplifts
3. Case Watch – An Australian Transvestite Exposes the Law of Discrimination
4. Recommended Expert Witness CVs
A Legal Commentary Email.....
Charles Price specialises in Respondent and Claimant work in England and Wales. This e-mail is for academic purposes only. Legal considerations mustbe looked at in the light of the particular circumstances and it may be wise to seek legal advice.
1) Redundancy Pointers – What to Look For in Redundancy Disputes
Unfortunately, due to the economic slowdown UK Plc is suffering at the moment we are seeing a massive increase in unfair dismissal claims related to redundancy. For this reason I have decided to add a checklist of considerations which often arise in tribunal cases of this type.
When fighting a dismissal for redundancy on behalf of a Claimant the strongest arguments are often procedural as tribunals are often adverse to delving into reasons for selection. Often, the strongest cases involve the question as to whether alternative positions were available at the time of dismissal which the Claimant could have been offered if the employer had actually cared. Cases featuring a lack of consultation can also be meritorious. It is quite possible to run the argument that a lack of consultation meant that the tribunal cannot assess adequately the likelihood that the Claimant would have remained in his or her job if the proper procedures were put in place and there for there should a finding of unfair dismissal and without a reduction of compensation.
The success of this type of case, however will often rely upon thorough preparation. It is imperative that solicitors should ask the other side to produce a list of job vacancies the company had at the pertinent times (before and after the dismissal). This process will involve close scrutiny of the Claimant’s skills and CV. Below is an examination of some of the key features which crop up regularly in redundancy cases.
Points to Remember:
The burden is on the employer - S. 98(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show that the employee was redundant.
What the Respondent Must Show
In unfair dismissal cases the onus of proof is on the employer to show the reason, or, if more than one the principal reason, for dismissing the employee (ERA 1996 s.98(1)). If the employer fails to prove the reason is one of the four reasons set out in ERA 1996 s.98(2) or "some other substantial reason" (ERA 1996 s.98(1)(b)) the dismissal is deemed to be unfair (see Maund v Penwith DC 1984 ICR 143, CA). If the employer does prove that the reason for the dismissal was one of those referred to above, the Employment Tribunal must then decide "in accordance with equity and the substantial merits of the case" whether the dismissal was fair or unfair. There is no onus of proof on either the employer or employee for this purpose - the employment tribunal must simply take into account all the circumstances, including the size and administrative resources of the employer's undertaking (ERA 1996 s.98(4).
The ERA 1996 s.139(1) provides that:
"For the purposes of this Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to -
(a) the fact that his employer has ceased, or intends to cease -
to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business -for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.
If the Respondent can show that there was a redundancy situation, the tribunal should ask the question; Was the dismissal fair in accordance with S98(4) or the ERA and the range of reasonable responses along the tests in Iceland Frozen Foods V Jones (1982) IRLR 439? In deciding whether a dismissal is fair or unfair an employment tribunal must not substitute its own view for that of the employer as to whether it was fair to dismiss the employee but rather must determine whether dismissal was within the range of reasonable responses open to the employer see Midland Bank plc v Madden 2000 ICR 1283 ICR 1283, Court of Appeal.
Prima Facie Fair
One of the most important practical implications of " redundancy" is that a dismissal by reason of redundancy is prima facie fair. Whether such a dismissal is in fact fair or unfair will then turn on whether the Tribunal considers that the employer acted reasonably in treating the redundancy "as a sufficient reason for dismissing the employee" (see ERA 1996 s.98(2)(c))
Information Must be Provided About Alternative Roles but Claimant Must Indicate an Interest
The EAT has held, in Fisher v Hoopoe Finance Ltd., that where there are one or more possibilities of suitable alternative employment available to an employee who is to be made redundant, then the employer should normally inform the employee of the financial prospects of those positions to enable the employee to make an informed choice. A failure to provide such information (unless impractical, for example if the salary has not been set) is likely to make any dismissal unfair and, presumably, likely to render it reasonable for the employee to refuse the offer.
That appears relatively uncontroversial. Of greater interest, is an indication by the EAT (HHJ Birtles presiding) that a failure by an employee to indicate an interest in a particular position and/or to request further information (including financial information) is a factor which the Employment Tribunal may wish to take into account in reducing the basic and compensatory awards on grounds of contributory fault.
Consultation
Failure to consult with an employer about to be made redundant will make it likely that a Tribunal would decide that any resulting dismissal(s) was unfair and in this case discriminatory even though it was genuinely caused by redundancy Alstom Traction Ltd v Birkenhead & ors EAT case 1131/00 10th October 2002.
Consultation must be fair which means that there must be:
"(a) consultation when the proposals are still at a formative stage;
(b) adequate information on which to respond;
(c) adequate time in which to respond;
(d) conscientious consideration by [the employer] of the response to consultation"
(R v British Coal etc ex p Vardy & Ors 1993 ICR 720, QBD).
In the present case consultation was brief did not start at a formative stage and involved no conscientious consideration of the Claimant’s response to the suggestion that the respondent needed a full time member of staff.
Statutory Dismissal Procedures
In a redundancy situation, the statutory dismissal procedure requires an employer to tell an employee of the reason for the redundancy, the selection criteria, his score, but not the threshold (ie the 'break' score beyond which his job is safe) or the scores of other employees. Failure to provide this information renders the dismissal automatically unfair and leads to an increase in the compensatory award.
S98A(2), which partially reverses Polkey v AE Dayton Services, has a wide-ranging effect and cannot be narrowly construed to rescue only employers who fail to comply with formal written procedures over and above the statutory minimum.
In redundancy dismissals, where a matrix system is used, this requires that the employee be told the selection criteria (para. 43) and the scores he has achieved (para. 45). It does not require that the employee be told the threshold score he must achieve to remain in employment, or the scores of other employees (para 46). The Claimant was not told of the selection criteria or given any other details.
In the same case it was decided that, if an employer fails to comply with any procedure which a tribunal feels it ought, in fairness, to have carried out, it is able to avail itself of the new statutory defence in s98A(2). This is not limited to formal procedures, whether written down or not. If the employer's actions are fundamental, then it is likely there will be a breach of the statutory dismissal procedures anyway, in which case s98A(2) does not assist.
Recommended Expert CV
Lars Davidsson, Psychiatrist "I am a consultant general adult psychiatrist who have been employed by the South Essex Partnership Foundation Trust since the beginning of November 2001 in a substantive post. Before that I was a substantive consultant at the University Hospital of Lund, Sweden for about 15 years. I am a member of the Royal College of Psychiatrists as well as an elected member of The Association of European Psychiatrists where I am also a member of a special interest group of transcultural psychiatry. I have during the last six years written about 300 reports both in criminal and civil matters.
I have been working on behalf of the Swedish government in post war Bosnia and I have since then taken a special interest in transcultural psychiatry and trauma psychology. I am usually able to provide an appointment within two weeks and the report can usually be delivered within four weeks after recieving instructions.
I am willing to accept instructions by e-mail lars.davidsson@southessex-trust.nhs or by fax 01702440429. My contact adress is The Taylor Center, Queensway House, Essex Street, Southend on Sea, SS1 2NY. My phone number is 01702440532
2) New Case Fails to Clear the Muddy Waters When it Comes to Uplifts
Since 1 October 2004 employers and employees have had to follow the statutory dispute resolution procedures set out in schedule 2 of the Employment Act 2002 (EA 2002). The applicable procedure in most cases when the employer is contemplating dismissing or taking disciplinary action against an employee is the standard disciplinary and dismissal procedure (SDDP) (regulation 6(1), Employment Act 2002 (Dispute Resolution) Regulations 2004 (the Dispute Resolution Regulations)). This involves (broadly):
The employer giving the employee a written statement of grounds for dismissal or relevant disciplinary action.
A meeting at which both sides may explain their case, following which the employer must inform the employee of the decision and their right of appeal.
An appeal meeting if requested by the employee.
(Schedule 2, EA 2002.) states that employment tribunals must adjust awards by a minimum of 10% (up to a maximum of 50%), either up or down in cases where there has been a failure by employer or employee to abide by the new rules (Emp'tAct 2002 s.31).
If an employer fails to follow the appropriate statutory procedure, and the employee brings a successful tribunal claim in respect of the matter to which the procedure applied, the tribunal must uplift the employee's award by 10% and may, if it considers it just and equitable to do so, increase the award by up to 50% (section 31, EA 2002). In unfair dismissal cases the uplift is applied to the compensatory award only.
There has been little guidance to date on the factors which a tribunal must take into account in deciding the amount of the uplift . In Giles v Geach & another t/a Cornelia Care Homes, ET case no 3100720/05, 25 July 2005 a tribunal awarded a 40% uplift where an employer had failed to respond to an employee's written grievance under the statutory grievance procedures.
A new Scottish case, however threatens to muddy the waters with new guidance on uplifts.
In McKindless Group v McLaughlin (EAT)
The employer admitted breach of the statutory dismissal proceedings. The tribunal awarded a 50% uplift. Overturning this, and substituting a 10% uplift, the EAT stated that:
a tribunal cannot award more than a 10% uplift in the absence of evidence on the reason(s) for breach of the statutory dismissal procedure (para. 13); and,
a tribunal is not entitled to take into account the way in which the employer subsequently conducted the litigation (para. 26)
This guidance flies in the face of the ‘just and equitable’ discretion suggested in section 31, EA 2002. The tribunal should in my opinion be trusted to look at the situation in the whole. As Barrister Daniel Barnett suggested recently:
‘Both of these conclusions are open to question. As to the first, if correct, it would mean an employer who deliberately flouts the procedures and then takes no part in the proceedings could not be subjected to more than a 10% uplift, whereas a well-meaning but ignorant employer who tries to explain his error could be subject to a greater award.’
There is, it seems nothing in the statute which advocates this approach when assessing what level of uplift is 'just and equitable'.
Recommended Expert CV
Dr Kacker
Curriculum Vitae of Dr R Kacker BSc (Dual Sp Hons), M.B.Ch.B. D.F.F.P. D.C.H. D.D.A.M. Post Grad Cert Med Ed. M.R.C.G.P. C.U.E.W. M.E.W.I. M.A.E.
PERSONAL DETAILS
NameRahul
Kacker
Sex
Male
Professional Address
The Claremont Hospital,
401 Sandygate Road,
Sheffield,
S10 5UB
Telephone
0845 895 1058
Fax
0845 644 4394
drrkacker@symle.co.uk
web site
www.symle.co.uk
RELEVANT MEDICAL EXPERIENCE & QUALIFICATION
I qualified as a medical practitioner in 1995.
I have practised in the medical specialties: Obstetrics and Gynaecology, Adult Mental Health, Paediatrics, Accident and Emergency Medicine, Adult General Medicine and General Surgery.
I have worked at The Royal London Hospital, London where as a Senior House-Officer in Accident & Emergency medicine one of the country’s major trauma units
I assisted in the treatment of major trauma patients, usually high speed road traffic accidents. I also examined, treated and investigated patients with soft tissue injuries such as ‘slip and trip’, whiplash injuries and joint dislocations.
I am a medical General Practitioner in a partnership which cares for over 11,000 patients. I diagnose, treat and refer where appropriate Musculo-Skeletal and soft tissue injuries or conditions on a daily basis. I have achieved the Membership of the Royal College of General Practitioners (M.R.C.G.P.) by examination.
I hold a Bachelor of Science (BSc Dual Special Honours) degree in Biochemistry and Physiology, in which I studied the chemical reactions and functioning of the human body. I also hold a Bachelor of Medicine and Bachelor of Surgery (M.B.Ch.B) Medical degree.
RELEVANT EXPERIENCE & QUALIFICATIONS TO PROVIDE PERSONAL INJURY MEDICO-LEGAL REPORTS.
I am qualified by examination in the Diploma in Disability Assessment Medicine (D.D.A.M) by the Faculty of Occupational Medicine of the Royal College of Physicians in London. This qualification was introduced for doctors who wish to demonstrate by a combination of training, and then by practical examination, a recognised level of knowledge and competence in disability assessment medicine. It is particularly relevant and unique to practitioners in the fields of rehabilitation and assurance medicine.
I have been trained, accredited and approved by the Chief Medical Advisor on behalf of the Secretary of State for Social Security for Department of Work and Pensions (D.W.P.) to perform medical assessments for the state benefits, Disability Living Allowance and Attendance Allowance. Here, as a Disability Analyst, I would take a statement from the applicant and an examination performed to assess the impairment consequent to the client’s medical condition on their Activities of Daily Living (cooking, cleaning and shopping) as well as Personal Activities of Daily Living. The case mix is varied but predominantly comprises of Musculo-Skeletal Conditions as well as Mental Health and Psychological conditions. A prognosis of the likely duration of the symptoms and their expected, if at all, recovery period is offered as part of the report.
I have been preparing medico-legal reports since September 2002.
I am a Member of the Expert Witness Institute (M.E.W.I.) and Academy of Experts (M.A.E.)
I have successfully completed the training for and been awarded the Cardiff University Bond Solon Expert Witness Certificate (C.U.E W.) held by Bond Solon - legal training consultancy in London.
Recommended Expert CV
Dr Danny Allen
GMC No: 2496814
I work as a Consultant Adult Psychiatrist at Oxfordshire and Buckinghamshire Mental Health Partnership NHS Trust. My qualifications are MB BS LLM (Mental Health Law) MRCGP MRCPsych. I am approved under Section 12(2) of the Mental Health Act 1983, am a Cardiff University accredited Expert Witness and hold the Medico-legal Expert Witness Certificate (Family) from City University and the Inns of Court School of Law. I am a member of the Expert Witness Institute and the Society of Expert Witnesses.
My areas of expertise include mental illness, personality disorder, alcohol and drug misuse and post traumatic stress disorder. I have been in medico-legal practice for 15 years and have been a consultant in High Wycombe for 13 of these. I have been trained in report writing and court work and produce in excess of 100 reports a year for tribunals and courts. In my NHS work I am responsible for a Community Acute Service and an Assertive Outreach Team. I have a private practice in High Wycombe and Maidenhead. I keep up to date in psychiatry and expert work through Continuing Professional Development.
I have published a number of research papers. I am particularly interested in the effects of the workplace on mental health, having seen a lot of people with workplace-related problems in my previous job in a community mental health team and now in the Community Acute Service which treats people in crisis. I have produced quite a few reports for Employment Tribunals over the years and have appeared before them on a number of occasions. I work with a group of psychiatrists and we are acutely aware of the requirements of the tribunal system and of the Legal Services Commission.
I am able to produce reports on time, to pre-agreed prices, in jargon-free language. An example anonymised report is available on request. Allen Associates PO Box 1086 BEACONSFIELD HP9 1WU enquiries@allen-associates.com www.allen-associates.com Tel: 0870 162 1671 Fax: 0870 162 1672
Other Past Articles on Charlesprice.net:
Obtaining a Witness Order - Not as Easy as you Think! http://www.charlesprice.net/emissnn.html
How to Draft Pleadings Under the Protection From Harassment Act
http://www.charlesprice.net/emissiverr.html
Age Discrimination
irenem.ovenstone@ntlworld.com
Recommended Expert Witness
I am Irene Margaret Kinnear Ovenstone. I am an emeritus Consultant Psychiatrist, leaving the NHS in June 2004. Since this time, I continue to attend lectures and meetings to attain my continued professional development to the extent that I obtain my Certificate of Attainment from the Royal College of Psychiatrists yearly. I hold qualifications M.D. (Commendation) and F.R.C.Psych., and am approved for the purpose of Section 12(2) of the Mental Health Act. From 1969 to 1972
I worked as a member of the Scientific Staff and Honorary Lecturer MRC Unit for Epidemiological Studies in Psychiatry in Edinburgh. From 1973 to 1994 I was a clinical teacher and Consultant Psychiatrist specialising in old age psychiatry at Nottingham City Hospital. From 1974 to 1979 I was Secretary and Chairman of the Nottingham Area Psychiatric Division and served on several working parties in relation to nurse education, drug custody and administration on the Nottingham Health Care Planning Team for the Elderly.
I became a member of the Mental Health Tribunals in 1981 until October 2004. I have written several papers on suicidal behaviour, marital neurosis in the British Journal of General Psychiatry and other journals. My areas of expertise are: Anxiety disorders and depression (psychiatry); trauma sequelae (psychiatry, including personal injury); accident victims (psychiatry); post-traumatic stress disorder (psychiatry); stress disorders (psychiatry); mental disorder (psychiatric assessment). Medical legal reporting approximately 50 per year over a 10-year period.
I have been trained by the Bond Solon and have obtained the Cardiff University Certificate of Expert Witness Accreditation. I am currently listed in Debrett’s People of Today. Consulting Rooms 2 Regent Street Nottingham NG1 5BQ Tel: 0115 9474755 Fax: 0115 9508174 email:
For a Free Compromse Agreement Template cut and paste the following into your browser: http://www.charlesprice.net/precedents.html
Recommended Expert Witness
Dr Wise is a consultant for a busy inner city area, responsible for the assessment of over 300 new referrals a year and providing long term care for over 100 patients with severe and enduring mental illnesses. In his private practice Dr Wise sees over 150 new patients a year and coordinates the care of a further 150 patients. With a Masters in Anthropology and trained in Cognitive Behavioural Therapy he is well versed to assist with the varied issues that present in the acutely unwell, or with medically unexplained symptoms. His expertise covers Depression, Anxiety and Post-Trauma states, and Capacity; most commonly applied to discrimination cases, personal injury, coronial enquiries, and capacity issues
Dr Wise is Chair of the British Medical Associations Medico-Legal Committee, sits on its Medical Ethics and Psychiatric Committees, and regularly liaises with the Ministries of Health & Justice. He has authored guidelines on expert witness practice, and acted for the Healthcare Commission and NHS Ombudsman. Having sat on many national committees, including the NICE guideline development group for Anxiety Disorders and the National Implementation Group for the Mental Health Act 2007 he is well versed with policy and practice issues.
He can be contacted via jan@wiserminds.co.uk, and is happy to discuss cases by telephone before instructions are considered (07968125126).
3) Discrimnation Law Skirts Around Transvestite Issue
Luck certainly wasn’t a lady for transvestite, Paul Hurst recently when he was rejected from a casino for being dressed ‘inappropriately’. Last month ‘The Age’ reported from Australia in its article, ‘Stuck Between a Frock and a Card Place’ that transvestite, Paul Hurst or Anne Maree to his friends had been asked to leave a casino because of his appearance. Australian lawyers are now debating whether transvestites are protected in law.
Dressed in one of his best frocks, Mr Hurst was photographed in a glamorous sequined dress partying at the launch of Priscilla, Queen Of The Desert at Star City's Lyric Theatre. A month later he and a friend again donned their dresses for a night out the casino's new spin-off bar, Priscilla's. Unfortunately Mr Hurst found his way barred by 2 bouncers on the night. A security guard had deemed him to be a "man" and "inappropriately dressed" when he was refused entry to the casino at 9.15 on the night of November 1, 2006.
Mr Hurst, of Coogee, filed an action alleging the casino has discriminated against him because of his sexual gender and was refused service and asked to leave. Mr Hurst told the panel of the Administrative Decisions Tribunal (Equal Opportunity Division), that "I have always regarded myself as a woman and lived my life as a woman,"
The casino changed it’s stance at the initial hearing claiming that that Mr Hurst was "wearing an extremely short skirt that barely covered his groin region, white underwear and garters … were visible". Previous evidence provided stated however, that it was Mr Hurst’s friend, "Russell" who was inappropriately dressed in the short red skirt and white pants and garters, and that Mr Hurst had been welcome to stay.
Deputy president of the Administrative Decisions Tribunal, Nancy Hennessy granted an order to obtain a copy of the casino's security video of the incident. The solicitor for the casino told Mr Hurst that under the Anti-Discrimination Act the tribunal can only hear transgender cases.
"The Anti-Discrimination Act does not protect transvestites, it protects transsexuals, but you said you live as a woman," Ms Hennessy said. "Before the tribunal can hear the case what you have to be able to prove to the court is that sexually you are a transsexual."
The parties have been asked to reappear before the tribunal in July to resolve the matters.
In the UK, Discrimination against transsexuals in an employment or vocational context has been unlawful in Britain since 1st May 1999 (under the Sex Discrimination (Gender Reassignment) Regulations 1999, SI 1999/1102).
Discrimination against homosexuals (ie discrimination on grounds of sexual orientation) in an employment or vocational context became unlawful in Britain on 1st December 2003 (under the Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661. Even before May 1999 (for transgender persons) or December 2003 (for homosexuals) a person who had been discriminated against on grounds of change of sex or on grounds of sexual orientation could in appropriate circumstances claim for a breach of human rights under the Human Rights Convention. The Gender Recognition Act 2004. allows people who change sex the right to marry in their acquired gender and be given new birth certificates that recognise the acquired gender.
Although the law has not been tested with regards to transvestites it would seem that they do not fall into either strict category of trans gender or necessarily homosexual.
As Appearing on HRZone
The author, Charles Price is an employment barrister of 8 years call.
This e-missive is distributed to over 2000 employment solicitors in England and Wales. Please Contact me if you have any comments. Any examples of drafting in this or any other bulletin are not intended to be related to real life cases.
To subscribe or unsubscribe please email the author
--------------------------------------------------------------------------------
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Wednesday, 5 December 2007
This is my latest email bulletin I hope it is useful - on my site you will find a compromise agreement amongst other useful resources!
Subject: e-missive no.20
Employment E-Missive No.16 - New Law on Age Discrimination and All you Need on Witness Orders
---------------------------------------------------------------------------------------------
by Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555
www.no5.com
www.charlesprice.net
mailto:charlie@mediationsearch.fsnet.co.uk
1. Redundancies and Consultation - Now Consult on the Closure
2. Can an Employer be Forced to Retire at 65? - Latest Position
3. Age Discrimination - Big Pension Case and 'intergenerational unfairness'.
4. Obtaining a Witness Order - Not as Easy as you Think!
A Legal Commentary Email.....
Charles Price specialises in Respondent and Claimant work in England and
Wales. This e-mail is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.
1) New Law - Redundancies and Consultation
------------------------------------------
Traditionally, the law has required employers to consult with employee representatives when 20
or more employees are being made redundant at one establishment within a 90 day period. The
meaning of 'consultation' however has been turned on its head by a new ruling. The EAT ruled
on 22nd October 2007 in 'UK Coal Mining Ltd v National Union of Mineworkers' that in a
business closure context "the obligation to consult over avoiding the proposed redundancies
inevitably involves engaging with the reasons for the dismissals, and that in turn requires
consultation over the reasons for the closure". In the case a coal mine with 300+ employees was
closed suddenly after a flood. The employees successfully complained that there had been no
consultation. An employment tribunal awarded maximum compensation.
Previously it has been the norm, that when it comes to consultation in such circumstances
this does not mean the employer has to consult about the reasons for the closure of a business even
if it is going to lead to redundancies. The traditional view was that this might be required in
continental Europe but not in Great Britain, a view supported by a High Court decision in 1993
(R v British Coal etc ex p Vardy) and generally accepted as correct.
The employer appealed, arguing that there was no duty to consult about the reason for the
dismissals and therefore no liability. The EAT rejected this argument and dismissed the appeal.
In coming to its decision the EAT identified the nexus between the dismissals and the reason for
closure as vital. The tribunal also recognised that under the relevant law it is the proposed
dismissals that must be the subject of consultation, not the closure itself. However if, as was
the case here and indeed would normally be the case, closure of a business and dismissals of staff
are inextricably interlinked then the duty to consult necessarily includes a duty to consult over
the reasons for the closure.
The EAT accepted that there could be cases when this duty to consult about the closure itself
would not arise. If, for example, an employer planned a closure but believed that redundancies
would nonetheless be avoided there would be no need to consult over the closure decision itself.
However, as the EAT said, that "is likely to be a very exceptional case".
2) Can an Employer Force an Employee to Retire at 65? (as appearing on HRZone.co.uk)
---------------------------------------------------------------------------------
The overall effect of the Employment Equality (Age) Regulations 2006 in respect of retirement is
that from 1st October 2006, enforced retirement below age 65 is generally considered as unfair
dismissal. There is a specific exemption which allows enforced retirement at age 65 or over if
correct procedures are followed (contained in the Age Regulations 2006 Regulation 30). The
position is not without complication as Age Concern are in the process of challenging the position
in court.
Until 1st October 2006 the general rule was that there was an absolute bar against an over 65 year
old employee claiming unfair dismissal. From 1st October 2006 the position has been different. The
Employment Rights Act 1996 s.109 has been repealed and the 65 year age limit for unfair dismissal
claims has been abolished but it has been replaced by other rules which mean that enforced retirement
at age 65 or over is generally not unfair dismissal.
The Employment Equality (Age) Regulations 2006 SI 2006/1031 provide for a default retirement age of
65, subject to certain conditions. The conditions include that the employee must be given 6 months'
written notice which must inform him that he has the legal right to require the employer to consider
a request to defer his retirement. If the conditions are not fulfilled then even though retirement
takes place on or after the employee's 65th birthday the employer will be liable to a penalty and
in some cases the enforced retirement can now be unfair dismissal.
The practical effect of the regulations is that the following steps are involved in a retirement on
or after 1st October 2006:
1) 6-12 months before intended retirement date the employer must give the employee written notice
of that date and of the right to request to continue to work after that date;
2) 3-6 months before intended retirement date the employee can make a written request to continue
to work after that date, specifying whether or not this is for a particular period or until a particular
date;
3) if the employee makes a written request as above, a meeting must be held with her to discuss
it unless it is simply granted without question.
4) if the request is granted the employer must remember to put the revised contract terms in writing.
In July 2007 the English High Court settled questions for consideration by the European Court of Justice
following an application by the ‘HeyDay’ organisation (part of Age Concern) challenging the legality of
the 65 year mandatory retirement part of the UK Regulations.
The Employment Equality (Age) Regulations, which came into force on 1 October 2006, contain a number of
important exceptions. ‘Age Concern’ alleged that many of those exceptions are not permitted by the European
Framework Directive on equal treatment. If the European Court of Justice (ECJ) agrees, then the UK government
will have to rewrite the age regulations.
Heyday, part of Age Concern, presses on with its challenge to the Government's default retirement age of 65 -
but it faces an increasingly uphill struggle. The ECJ considered a very similar claim against Spain on 16th
October. In the case of Palacios de la Villa v Cortefiel Servicios SA Señor de la Villa claimed that a Spanish
law allowing compulsory retirement at age 65 was in breach of EU Directive 2000/78 (which is the European
directive behind the UK's 2006 regulations). The ECJ disagreed with him. Such measures in national legislation
could be justified if they seek to achieve a legitimate aim relating to employment policy and the labour market,
and the means are neither inappropriate or unnecessary for the purpose.
It was recently reported that only around 900 cases have been brought to tribunals on the basis of age
discrimination. But if we follow the example of the Irish who have had anti-age discrimination legislation
in place longer than we have, we may well see up to a third of all discrimination claims brought being based on age.
It is important that professional legal advice is sought when drafting policies and dealing with legal disputes.
3) Age Discrimination - Freshfields Bruckhaus Deringer
------------------------------------------------------
This high profile case has seen the thorny issue of 'legitimate aim' brought up in the context of Age Discrimination.
Direct discrimination will be lawful if the treatment in question is shown to be a ‘proportionate means of achieving
a legitimate aim’ Reg 3(1). Proportionate is to be equated with ‘appropriate and necessary’, and involves a
balancing exercise between the discriminatory impact of the treatment in question and the legitimate aim of the
employer, according to the DTI. The guidance states that a balancing exercise must be undertaken between the
discriminatory impact of the treatment in question and the legitimate aim of the employer.
In a potentially multi million pound claim, Peter Bloxham took his former firm, Freshfields Bruckhaus Deringer, to an
employment tribunal. He alleged that the changes to the pension arrangements for partners discriminated against him on
the grounds of age. In its judgment, the ET was with Mr Bloxham in finding that he suffered less favourable treatment
compared with other partners, but still found that the discrimination was justified. Freshfield's
aim was the reform of a costly and unfair pension system - they wanted to try and reduce what the tribunal called
"intergenerational unfairness" (para 117). This was a "wholly legitimate" aim, and Freshfields's approach was justified
as being a proportionate means of achieving it.
Mr Bloxham, it is reported has stated that he is considering an appeal, so watch this space!
4) Obtaining a Witness Order
----------------------------
In the case of, DADA v METAL BOX COMPANY LTD 1974 IRLR 251 the tribunal found that there are only two matters of which
tribunals should be satisfied before they issue a witness order. The first is that the witness prima facie can give
evidence which is relevant to issues in dispute. For that purpose they will no doubt wish to ask the applicant what
evidence can be given by the person who is the proposed subject of the witness order. We do not suggest that the
tribunal should ask the Claimant to give a full proof of that evidence, but applicants should indicate the subject
matter of the evidence and show the extent to which it is relevant. The second is that it is necessary to issue a witness
order.
WILCOX v HUMPHREYS AND GLASGOW LTD QBD 19.5.75 A chairman's refusal of witness order in respect of certain documents
which could affect the result of the case was deemed an error of law. W was summarily dismissed for failing to observe
prescribed safety precautions. He complained that his dismissal was unfair because safety precautions were generally
ignored throughout the company. To argue his case, he applied for a witness order in respect of an official and certain
documents from the Northern Gas Board concerning the respondents' safety record. The Industrial Tribunal (1) after first
granting the request, decided that the documentary evidence was not necessary and refused to order the production of the
documents; The tribunal dismissed the application.
The High Court, to whom W appealed, allowed his appeal. The crucial quote from Philips J was:
'The first question must be whether that evidence, had it been produced, would have been relevant. On the whole I think
it would, because it is not a simple question of finding whether the particular Monday morning safety precaution of
testing for pressure was disregarded by W and, if it was, saying that his dismissal was justified. In a case where it
was to some extent common ground that main safety precautions were from time to time disregarded, where it is common
ground that to some extent what might be called safety 'corners' were being cut, it is plainly the case that it is all
a question of degree, a question of weighing up whether in terms of the Act, against that background, having regard to
equity and the substantial merits of the case, it was reasonable peremptorily to dismiss him. And so, it is impossible
to say that this evidence is irrelevant ...' Philips J
Other Vital Information
-----------------------
Failure to attend the tribunal when under a witness order is a criminal offence. The tribunal has power to order the attendance
of a witness to give evidence or produce documents under Schedule 1, rule 10(2)(c) of the Employment Tribunal (Constitution and
Rules of Procedure) Regulations 2004.
When applying for an order under rule 11(3), you must explain how the order would assist the tribunal in dealing with the
proceedings efficiently and fairly. The letter should therefore state briefly why the witness’s evidence is relevant to the
case. It should not set out all the witness’s proposed evidence, but say just enough for the tribunal to understand why s/he
is needed as a witness.
It is necessary to give the home or work address of the witness. This is where the tribunal will send the order. It is not
sufficient to request an Order on the basis that the witness in question can be cross-examined.
Witness orders will not be issued where a witness is willing to come to the tribunal without one. The letter must therefore
state that the witness is unwilling to come to the tribunal, or at least that s/he is unwilling to come without an order.
--------------------------------------------------------------------------------------------------------------------------------
For a Free Compromse Agreement Template cut and paste the following into your browser:
http://www.charlesprice.net/precedents.html
By Charles Price, barrister No5 Chambers
www.charlesprice.net
The author, Charles Price is an employment barrister of 7 years call.
This e-missive is distributed to over 1500 employment
solicitors in England and Wales. Please Contact me if you have any comments.
Subject: e-missive no.20
Employment E-Missive No.16 - New Law on Age Discrimination and All you Need on Witness Orders
---------------------------------------------------------------------------------------------
by Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555
www.no5.com
www.charlesprice.net
mailto:charlie@mediationsearch.fsnet.co.uk
1. Redundancies and Consultation - Now Consult on the Closure
2. Can an Employer be Forced to Retire at 65? - Latest Position
3. Age Discrimination - Big Pension Case and 'intergenerational unfairness'.
4. Obtaining a Witness Order - Not as Easy as you Think!
A Legal Commentary Email.....
Charles Price specialises in Respondent and Claimant work in England and
Wales. This e-mail is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.
1) New Law - Redundancies and Consultation
------------------------------------------
Traditionally, the law has required employers to consult with employee representatives when 20
or more employees are being made redundant at one establishment within a 90 day period. The
meaning of 'consultation' however has been turned on its head by a new ruling. The EAT ruled
on 22nd October 2007 in 'UK Coal Mining Ltd v National Union of Mineworkers' that in a
business closure context "the obligation to consult over avoiding the proposed redundancies
inevitably involves engaging with the reasons for the dismissals, and that in turn requires
consultation over the reasons for the closure". In the case a coal mine with 300+ employees was
closed suddenly after a flood. The employees successfully complained that there had been no
consultation. An employment tribunal awarded maximum compensation.
Previously it has been the norm, that when it comes to consultation in such circumstances
this does not mean the employer has to consult about the reasons for the closure of a business even
if it is going to lead to redundancies. The traditional view was that this might be required in
continental Europe but not in Great Britain, a view supported by a High Court decision in 1993
(R v British Coal etc ex p Vardy) and generally accepted as correct.
The employer appealed, arguing that there was no duty to consult about the reason for the
dismissals and therefore no liability. The EAT rejected this argument and dismissed the appeal.
In coming to its decision the EAT identified the nexus between the dismissals and the reason for
closure as vital. The tribunal also recognised that under the relevant law it is the proposed
dismissals that must be the subject of consultation, not the closure itself. However if, as was
the case here and indeed would normally be the case, closure of a business and dismissals of staff
are inextricably interlinked then the duty to consult necessarily includes a duty to consult over
the reasons for the closure.
The EAT accepted that there could be cases when this duty to consult about the closure itself
would not arise. If, for example, an employer planned a closure but believed that redundancies
would nonetheless be avoided there would be no need to consult over the closure decision itself.
However, as the EAT said, that "is likely to be a very exceptional case".
2) Can an Employer Force an Employee to Retire at 65? (as appearing on HRZone.co.uk)
---------------------------------------------------------------------------------
The overall effect of the Employment Equality (Age) Regulations 2006 in respect of retirement is
that from 1st October 2006, enforced retirement below age 65 is generally considered as unfair
dismissal. There is a specific exemption which allows enforced retirement at age 65 or over if
correct procedures are followed (contained in the Age Regulations 2006 Regulation 30). The
position is not without complication as Age Concern are in the process of challenging the position
in court.
Until 1st October 2006 the general rule was that there was an absolute bar against an over 65 year
old employee claiming unfair dismissal. From 1st October 2006 the position has been different. The
Employment Rights Act 1996 s.109 has been repealed and the 65 year age limit for unfair dismissal
claims has been abolished but it has been replaced by other rules which mean that enforced retirement
at age 65 or over is generally not unfair dismissal.
The Employment Equality (Age) Regulations 2006 SI 2006/1031 provide for a default retirement age of
65, subject to certain conditions. The conditions include that the employee must be given 6 months'
written notice which must inform him that he has the legal right to require the employer to consider
a request to defer his retirement. If the conditions are not fulfilled then even though retirement
takes place on or after the employee's 65th birthday the employer will be liable to a penalty and
in some cases the enforced retirement can now be unfair dismissal.
The practical effect of the regulations is that the following steps are involved in a retirement on
or after 1st October 2006:
1) 6-12 months before intended retirement date the employer must give the employee written notice
of that date and of the right to request to continue to work after that date;
2) 3-6 months before intended retirement date the employee can make a written request to continue
to work after that date, specifying whether or not this is for a particular period or until a particular
date;
3) if the employee makes a written request as above, a meeting must be held with her to discuss
it unless it is simply granted without question.
4) if the request is granted the employer must remember to put the revised contract terms in writing.
In July 2007 the English High Court settled questions for consideration by the European Court of Justice
following an application by the ‘HeyDay’ organisation (part of Age Concern) challenging the legality of
the 65 year mandatory retirement part of the UK Regulations.
The Employment Equality (Age) Regulations, which came into force on 1 October 2006, contain a number of
important exceptions. ‘Age Concern’ alleged that many of those exceptions are not permitted by the European
Framework Directive on equal treatment. If the European Court of Justice (ECJ) agrees, then the UK government
will have to rewrite the age regulations.
Heyday, part of Age Concern, presses on with its challenge to the Government's default retirement age of 65 -
but it faces an increasingly uphill struggle. The ECJ considered a very similar claim against Spain on 16th
October. In the case of Palacios de la Villa v Cortefiel Servicios SA Señor de la Villa claimed that a Spanish
law allowing compulsory retirement at age 65 was in breach of EU Directive 2000/78 (which is the European
directive behind the UK's 2006 regulations). The ECJ disagreed with him. Such measures in national legislation
could be justified if they seek to achieve a legitimate aim relating to employment policy and the labour market,
and the means are neither inappropriate or unnecessary for the purpose.
It was recently reported that only around 900 cases have been brought to tribunals on the basis of age
discrimination. But if we follow the example of the Irish who have had anti-age discrimination legislation
in place longer than we have, we may well see up to a third of all discrimination claims brought being based on age.
It is important that professional legal advice is sought when drafting policies and dealing with legal disputes.
3) Age Discrimination - Freshfields Bruckhaus Deringer
------------------------------------------------------
This high profile case has seen the thorny issue of 'legitimate aim' brought up in the context of Age Discrimination.
Direct discrimination will be lawful if the treatment in question is shown to be a ‘proportionate means of achieving
a legitimate aim’ Reg 3(1). Proportionate is to be equated with ‘appropriate and necessary’, and involves a
balancing exercise between the discriminatory impact of the treatment in question and the legitimate aim of the
employer, according to the DTI. The guidance states that a balancing exercise must be undertaken between the
discriminatory impact of the treatment in question and the legitimate aim of the employer.
In a potentially multi million pound claim, Peter Bloxham took his former firm, Freshfields Bruckhaus Deringer, to an
employment tribunal. He alleged that the changes to the pension arrangements for partners discriminated against him on
the grounds of age. In its judgment, the ET was with Mr Bloxham in finding that he suffered less favourable treatment
compared with other partners, but still found that the discrimination was justified. Freshfield's
aim was the reform of a costly and unfair pension system - they wanted to try and reduce what the tribunal called
"intergenerational unfairness" (para 117). This was a "wholly legitimate" aim, and Freshfields's approach was justified
as being a proportionate means of achieving it.
Mr Bloxham, it is reported has stated that he is considering an appeal, so watch this space!
4) Obtaining a Witness Order
----------------------------
In the case of, DADA v METAL BOX COMPANY LTD 1974 IRLR 251 the tribunal found that there are only two matters of which
tribunals should be satisfied before they issue a witness order. The first is that the witness prima facie can give
evidence which is relevant to issues in dispute. For that purpose they will no doubt wish to ask the applicant what
evidence can be given by the person who is the proposed subject of the witness order. We do not suggest that the
tribunal should ask the Claimant to give a full proof of that evidence, but applicants should indicate the subject
matter of the evidence and show the extent to which it is relevant. The second is that it is necessary to issue a witness
order.
WILCOX v HUMPHREYS AND GLASGOW LTD QBD 19.5.75 A chairman's refusal of witness order in respect of certain documents
which could affect the result of the case was deemed an error of law. W was summarily dismissed for failing to observe
prescribed safety precautions. He complained that his dismissal was unfair because safety precautions were generally
ignored throughout the company. To argue his case, he applied for a witness order in respect of an official and certain
documents from the Northern Gas Board concerning the respondents' safety record. The Industrial Tribunal (1) after first
granting the request, decided that the documentary evidence was not necessary and refused to order the production of the
documents; The tribunal dismissed the application.
The High Court, to whom W appealed, allowed his appeal. The crucial quote from Philips J was:
'The first question must be whether that evidence, had it been produced, would have been relevant. On the whole I think
it would, because it is not a simple question of finding whether the particular Monday morning safety precaution of
testing for pressure was disregarded by W and, if it was, saying that his dismissal was justified. In a case where it
was to some extent common ground that main safety precautions were from time to time disregarded, where it is common
ground that to some extent what might be called safety 'corners' were being cut, it is plainly the case that it is all
a question of degree, a question of weighing up whether in terms of the Act, against that background, having regard to
equity and the substantial merits of the case, it was reasonable peremptorily to dismiss him. And so, it is impossible
to say that this evidence is irrelevant ...' Philips J
Other Vital Information
-----------------------
Failure to attend the tribunal when under a witness order is a criminal offence. The tribunal has power to order the attendance
of a witness to give evidence or produce documents under Schedule 1, rule 10(2)(c) of the Employment Tribunal (Constitution and
Rules of Procedure) Regulations 2004.
When applying for an order under rule 11(3), you must explain how the order would assist the tribunal in dealing with the
proceedings efficiently and fairly. The letter should therefore state briefly why the witness’s evidence is relevant to the
case. It should not set out all the witness’s proposed evidence, but say just enough for the tribunal to understand why s/he
is needed as a witness.
It is necessary to give the home or work address of the witness. This is where the tribunal will send the order. It is not
sufficient to request an Order on the basis that the witness in question can be cross-examined.
Witness orders will not be issued where a witness is willing to come to the tribunal without one. The letter must therefore
state that the witness is unwilling to come to the tribunal, or at least that s/he is unwilling to come without an order.
--------------------------------------------------------------------------------------------------------------------------------
For a Free Compromse Agreement Template cut and paste the following into your browser:
http://www.charlesprice.net/precedents.html
By Charles Price, barrister No5 Chambers
www.charlesprice.net
The author, Charles Price is an employment barrister of 7 years call.
This e-missive is distributed to over 1500 employment
solicitors in England and Wales. Please Contact me if you have any comments.
Wednesday, 20 December 2006
Majrowski as appearing on HRZone.co.uk
Employers Beware! You Can be Sued for Harassment
Sometimes a case can be decided, which has a silent but significant impact on how employers should conduct themselves. Recently an employee, Mr Majrowski claimed that his departmental manager, Mrs Freeman was rude and abusive to him in front of other staff. It was alleged that she was excessively critical of his time-keeping and work, imposed unrealistic performance targets for him and threatened him with disciplinary action if he failed to meet them. Further, she isolated him by refusing to talk to him. This treatment, he said, was fuelled by homophobia: he is a gay man. On conclusion of an internal investigation by the NHS Trust, it was found that the Claimant had been harassed.
Usually a claim would be brought to a tribunal for harassment within the stipulated 3 months time limit but in the present case the Claim was brought in the County Court some 4 years later. The employee relied upon what was previously perceived as criminal law under the Protection from Harassment Act 1997. Mr Majrowski did not claim against his line manager, Mrs Freeman but his employer, St Thomas’s NHS Trust. The Court of Appeal decided that an employer can be held responsible for harassment committed by one of its employees in the course of his or her employment. Further, that the Protection from Harassment Act 1997 does not only apply to criminal offences.
What Constitutes Harassment Under the New Law?
Other areas of law have a more stringent test for harassment such as, ‘Regulation 6’ of the new Age Discrimination Regulations (introduced in October of this year) which define harassment as:
‘unwanted conduct which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person, where such conduct is done ‘on grounds of age’.
But to succeed in claims under the Protection from Harassment Act 1997 it is necessary to show that the behaviour in question was merely likely to, ‘alarm or cause the claimant distress.’ Employers should be aware that this test looks as if it will not be difficult to satisfy. In the recently well publicised case, involving a woman, Ms Green, who sued her employers under the same law, part of her eventually successful claim, was that her work colleagues ‘went silent on her’ or would blow raspberries when she walked past. She won £800.000. Part of the criteria under the new law is that a tribunal must be satisfied that the alleged offender must have known or ought to have known that he or she was harassing another person.
Employees are more likely to sue their employer under the new law as they enjoy a much more advantageous time limit and do not have to submit a grievance or a complaint. Employees who are bullied or harassed in the workplace are already able to bring a number of claims against their employer as follows:
A personal injury claim in tort, where the employer has breached his duty of care, and this has resulted in a personal injury to the employee.
A breach of contract claim where the employer has breached their employee's employment contract, for example a breach of the implied term of mutual trust and confidence.
A claim for breach of statutory duty where an employer has breached a statutory duty such as a duty to provide a safe place and system of work under the Health and Safety At Work etc Act 1974.
A personal injury claim as part of an unlawful discrimination claim.
Claims under discrimination legislation.
This recent decision, however adds the Protection from Harassment Act claims to the list.
What Employers Should Do
The net result for employers is that they must tackle harassment and bullying at the grass roots.
Introduce harassment training and policies. It must be noted, however that this is not good enough in isolation – all employees in the ‘Green’ case referred to above had received this training.
Make sure that all employees know exactly what type of behaviour is not wanted in the workplace.
Explain what can constitute harassment bearing in mind the test above and law on; age, religion, race, disability and sexual orientation.
Make sure that grievance procedures are in place and that people know who to go to if they feel that they are being bullied or harassed.
Investigate fully any complaints and invoke the disciplinary procedure, allowing the individual accused of harassment to have his/her full say. Try and separate the employees in question if no other solution is found.
ACAS offer a useful guide to types of unwanted behaviour but as yet have not taken into consideration the new law. The guide states that harassment can be an isolated incident but the Protection from Harassment Act prohibits ‘a course of conduct’ amounting to harassment; that is, it takes more than a single act of an employee in the course of his employment to fall foul of the new law.
Protection from Harassment Act 1997
http://www.opsi.gov.uk/acts/acts1997/1997040.htm
ACAS
http://www.acas.org.uk/index.aspx?articleid=797
Other Useful Links
Commission for Racial EqualityTackling racial discrimination and promoting racial equalityTel 020 7939 0000www.cre.gov.uk
Disability Rights CommissionProviding information and advice to disabled people and employers about their rights and dutiesTel 08457 622 633www.drc-gb.org
Equal Opportunities CommissionWorking to eliminate sex discrimination Tel 08456 015 901www.eoc.org.uk
A solicitor should always be consulted in case of a legal problem arising. This article is for academic purposes only.
Charles Price, barrister
No5 Chambers
www.charlesprice.net
Sometimes a case can be decided, which has a silent but significant impact on how employers should conduct themselves. Recently an employee, Mr Majrowski claimed that his departmental manager, Mrs Freeman was rude and abusive to him in front of other staff. It was alleged that she was excessively critical of his time-keeping and work, imposed unrealistic performance targets for him and threatened him with disciplinary action if he failed to meet them. Further, she isolated him by refusing to talk to him. This treatment, he said, was fuelled by homophobia: he is a gay man. On conclusion of an internal investigation by the NHS Trust, it was found that the Claimant had been harassed.
Usually a claim would be brought to a tribunal for harassment within the stipulated 3 months time limit but in the present case the Claim was brought in the County Court some 4 years later. The employee relied upon what was previously perceived as criminal law under the Protection from Harassment Act 1997. Mr Majrowski did not claim against his line manager, Mrs Freeman but his employer, St Thomas’s NHS Trust. The Court of Appeal decided that an employer can be held responsible for harassment committed by one of its employees in the course of his or her employment. Further, that the Protection from Harassment Act 1997 does not only apply to criminal offences.
What Constitutes Harassment Under the New Law?
Other areas of law have a more stringent test for harassment such as, ‘Regulation 6’ of the new Age Discrimination Regulations (introduced in October of this year) which define harassment as:
‘unwanted conduct which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person, where such conduct is done ‘on grounds of age’.
But to succeed in claims under the Protection from Harassment Act 1997 it is necessary to show that the behaviour in question was merely likely to, ‘alarm or cause the claimant distress.’ Employers should be aware that this test looks as if it will not be difficult to satisfy. In the recently well publicised case, involving a woman, Ms Green, who sued her employers under the same law, part of her eventually successful claim, was that her work colleagues ‘went silent on her’ or would blow raspberries when she walked past. She won £800.000. Part of the criteria under the new law is that a tribunal must be satisfied that the alleged offender must have known or ought to have known that he or she was harassing another person.
Employees are more likely to sue their employer under the new law as they enjoy a much more advantageous time limit and do not have to submit a grievance or a complaint. Employees who are bullied or harassed in the workplace are already able to bring a number of claims against their employer as follows:
A personal injury claim in tort, where the employer has breached his duty of care, and this has resulted in a personal injury to the employee.
A breach of contract claim where the employer has breached their employee's employment contract, for example a breach of the implied term of mutual trust and confidence.
A claim for breach of statutory duty where an employer has breached a statutory duty such as a duty to provide a safe place and system of work under the Health and Safety At Work etc Act 1974.
A personal injury claim as part of an unlawful discrimination claim.
Claims under discrimination legislation.
This recent decision, however adds the Protection from Harassment Act claims to the list.
What Employers Should Do
The net result for employers is that they must tackle harassment and bullying at the grass roots.
Introduce harassment training and policies. It must be noted, however that this is not good enough in isolation – all employees in the ‘Green’ case referred to above had received this training.
Make sure that all employees know exactly what type of behaviour is not wanted in the workplace.
Explain what can constitute harassment bearing in mind the test above and law on; age, religion, race, disability and sexual orientation.
Make sure that grievance procedures are in place and that people know who to go to if they feel that they are being bullied or harassed.
Investigate fully any complaints and invoke the disciplinary procedure, allowing the individual accused of harassment to have his/her full say. Try and separate the employees in question if no other solution is found.
ACAS offer a useful guide to types of unwanted behaviour but as yet have not taken into consideration the new law. The guide states that harassment can be an isolated incident but the Protection from Harassment Act prohibits ‘a course of conduct’ amounting to harassment; that is, it takes more than a single act of an employee in the course of his employment to fall foul of the new law.
Protection from Harassment Act 1997
http://www.opsi.gov.uk/acts/acts1997/1997040.htm
ACAS
http://www.acas.org.uk/index.aspx?articleid=797
Other Useful Links
Commission for Racial EqualityTackling racial discrimination and promoting racial equalityTel 020 7939 0000www.cre.gov.uk
Disability Rights CommissionProviding information and advice to disabled people and employers about their rights and dutiesTel 08457 622 633www.drc-gb.org
Equal Opportunities CommissionWorking to eliminate sex discrimination Tel 08456 015 901www.eoc.org.uk
A solicitor should always be consulted in case of a legal problem arising. This article is for academic purposes only.
Charles Price, barrister
No5 Chambers
www.charlesprice.net
1st Blog is a Warning at Christmas
The following article will appear on my website www.charlesprice.net and has been partly written by Louise Westgate of Hugh James solicitors.
Employers Need Not Fear a Nightmare at Christmas
Charles Price, Employment Law Specialist and Barrister with No5 Chambers explains how employers can avoid the Christmas pitfalls.
No employer wants to be seen as Scrooge at Christmas but even the most Epicurean of bosses must be aware that there may be a price to pay for allowing employees to over indulge themselves even outside of work hours. This was most evident when in a recent case, an employer was ordered to pay compensation to an employee who had been dismissed for, fighting and abusing a senior manager after a heavy drinking session at an after hours office party. The employer’s heinous crime was to pay for a tab at a party which took place after working hours. The Tribunal deemed dismissal to be an unreasonably harsh sanction in the circumstances and therefore unfair.
It is not only the employees who do things at Christmas parties they might live to regret later. Employers should be wary of making promises of gargantuan pay rises made after one too many sherries, just in case the eager employer seeks to enforce such an agreement on the first day back in the office.
At alcohol fuelled parties, the chances of employees complaining that they have been harassed are more likely. ‘The Ghost of Christmas Past’ really could return to haunt the complacent employer as new law means that they can be held accountable for the acts of their employees for over four years in the past. For a harassment claim to succeed under the Protection from Harassment Act 1997 it is necessary to show that the behaviour in question was merely likely to, ‘alarm or cause the claimant distress.’ Employers should be aware that this test looks as if it will not be difficult to satisfy. In the recently well publicised case, involving a woman, Ms Green, who sued her employers under the same law, part of her eventually successful claim, was that her work colleagues ‘went silent on her’ and ‘blew raspberries’ at her when she walked past. The employer in that case had to pay £800,000 in compensation after Mrs Green suffered 2 mental breakdowns as a result of the bullying.
Bosses should be aware that employees who are bullied or harassed in the workplace may also bring a number of claims against their employer for: personal injury, breach of contract and under discrimination legislation.
In general, the days of the boss permitting ‘Bob Scratchit’ limited time to leave the office at Christmas are thankfully behind us. Employers are generally lenient with those returning to work after a Christmas lunch but the company position on this should be made clear to all, if employees are to know their boundaries and the Company’s disciplinary policies are not to be dusted off. Furthermore, employers should make sure that all faiths are considered. A Muslim worker successfully argued at an employment tribunal that he had been treated less favourably on racial grounds when he was forbidden to have a day’s holiday to celebrate the festival of Eid. The fact that it was the busiest season for the company involved and the taking of all holidays had been cancelled, was rightfully deemed irrelevant.
It is clear that employers are in a precarious position at Christmas but they should not necessarily dread what others see as, the ‘season to be jolly’. By exercising firm but fair control employers can avoid the festive pitfalls. Employers are advised to introduce training in what constitutes harassment bearing in mind the law on; age, religion, race, disability and sexual orientation. Policies dealing with office bullies and grievances should be put in place and all complaints should be fully investigated. Lastly, sensible drinking should be encouraged bar tabs limited if ‘jingle bells are not to turn into alarm bells’.
By Charles Price , barrister
www.charlesprice.net
No5 Chambers
Birmingham – Bristol - London
Employers Need Not Fear a Nightmare at Christmas
Charles Price, Employment Law Specialist and Barrister with No5 Chambers explains how employers can avoid the Christmas pitfalls.
No employer wants to be seen as Scrooge at Christmas but even the most Epicurean of bosses must be aware that there may be a price to pay for allowing employees to over indulge themselves even outside of work hours. This was most evident when in a recent case, an employer was ordered to pay compensation to an employee who had been dismissed for, fighting and abusing a senior manager after a heavy drinking session at an after hours office party. The employer’s heinous crime was to pay for a tab at a party which took place after working hours. The Tribunal deemed dismissal to be an unreasonably harsh sanction in the circumstances and therefore unfair.
It is not only the employees who do things at Christmas parties they might live to regret later. Employers should be wary of making promises of gargantuan pay rises made after one too many sherries, just in case the eager employer seeks to enforce such an agreement on the first day back in the office.
At alcohol fuelled parties, the chances of employees complaining that they have been harassed are more likely. ‘The Ghost of Christmas Past’ really could return to haunt the complacent employer as new law means that they can be held accountable for the acts of their employees for over four years in the past. For a harassment claim to succeed under the Protection from Harassment Act 1997 it is necessary to show that the behaviour in question was merely likely to, ‘alarm or cause the claimant distress.’ Employers should be aware that this test looks as if it will not be difficult to satisfy. In the recently well publicised case, involving a woman, Ms Green, who sued her employers under the same law, part of her eventually successful claim, was that her work colleagues ‘went silent on her’ and ‘blew raspberries’ at her when she walked past. The employer in that case had to pay £800,000 in compensation after Mrs Green suffered 2 mental breakdowns as a result of the bullying.
Bosses should be aware that employees who are bullied or harassed in the workplace may also bring a number of claims against their employer for: personal injury, breach of contract and under discrimination legislation.
In general, the days of the boss permitting ‘Bob Scratchit’ limited time to leave the office at Christmas are thankfully behind us. Employers are generally lenient with those returning to work after a Christmas lunch but the company position on this should be made clear to all, if employees are to know their boundaries and the Company’s disciplinary policies are not to be dusted off. Furthermore, employers should make sure that all faiths are considered. A Muslim worker successfully argued at an employment tribunal that he had been treated less favourably on racial grounds when he was forbidden to have a day’s holiday to celebrate the festival of Eid. The fact that it was the busiest season for the company involved and the taking of all holidays had been cancelled, was rightfully deemed irrelevant.
It is clear that employers are in a precarious position at Christmas but they should not necessarily dread what others see as, the ‘season to be jolly’. By exercising firm but fair control employers can avoid the festive pitfalls. Employers are advised to introduce training in what constitutes harassment bearing in mind the law on; age, religion, race, disability and sexual orientation. Policies dealing with office bullies and grievances should be put in place and all complaints should be fully investigated. Lastly, sensible drinking should be encouraged bar tabs limited if ‘jingle bells are not to turn into alarm bells’.
By Charles Price , barrister
www.charlesprice.net
No5 Chambers
Birmingham – Bristol - London
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