New redundancy law
The EAT has handed down a new judgment ,'Howard v Campbell's Caravans', involving notification to an employee that he will be retired after his 65th Birthday...
The Case involved the dismissal of an employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65. It was said to be unfair and to constitute age discrimination because the employer had failed, in the manner of the prescribed retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996. Specifically it was contented that the employer had failed to specify the retirement date in that the notification had merely said that he would be retired “after” his 65th birthday.
Mr Justice Underhill argued that it does not necessarily constitute a failure to comply with the requirement of the statutory retirement procedure that the employee must be notified of the intended date of his retirement.
It was held that the inclusion of the word “after” did not always mean “on a date later than” and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later)
On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.
http://www.bailii.org/uk/cases/UKEAT/2011/0609_10_1205.html
Thursday, 23 June 2011
Friday, 10 June 2011
The Relevance of 'Burchill' to Capability
In the Edinburgh Appeal Tribunal an appeal against a finding of unfair dismissal was upheld in the case of D B Schenker Rail (UK) Ltd v Doolan Appeal No. UKEATS/0053/09/BI 13 April 2011
The ET had no basis for finding that the employers were not entitled to conclude, on expert evidence that the Claimant was fit to work - they had substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.
The dismissed man was a production manager suffering from stress and depression - a referral to an occupational psychologist was made - eventually he was dismissed on capability grounds.
The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175). A question arose as to whether it was a genuine reason and whether certain expert evidence should have been relied upon by the Respondents.
Para 33 sums up the correct approach when there is a question as to the sufficiency of the reason for dismissal:
'Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.
The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.'
The ET had no basis for finding that the employers were not entitled to conclude, on expert evidence that the Claimant was fit to work - they had substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.
The dismissed man was a production manager suffering from stress and depression - a referral to an occupational psychologist was made - eventually he was dismissed on capability grounds.
The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175). A question arose as to whether it was a genuine reason and whether certain expert evidence should have been relied upon by the Respondents.
Para 33 sums up the correct approach when there is a question as to the sufficiency of the reason for dismissal:
'Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.
The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.'
Thursday, 10 February 2011
Knowledge of the person making the decision to dismiss is what counts!
Knowledge of the person making the decision to dismiss is what counts!
9th February - In the recent case of Orr v Milton Keynes Council, the appellant, had been dismissed following two separate incidents, including rudeness to his line manager, M, both of which his employer found amounted to gross misconduct. The decision maker had been unaware that the second incident had been provoked by the conduct and language of M, which the Tribunal later found amounted to direct race discrimination....
The Defendant won their case at the Employment Appeals Tribunal but the Court of Appeal (the next step up) restored the original decision of the Employment Tribunal. The Court of Appeal thus held by a majority that the tribunal had been correct to conclude that the dismissal remained fair because the decision, on the facts known to the decision maker, was reasonable.
Sedley LJ regarded what was known by the employer and the employees at the time and decided accordingly. Therefore, the moral of the story is that it is what was known by the employer at the time of dismissal is crucial.
9th February - In the recent case of Orr v Milton Keynes Council, the appellant, had been dismissed following two separate incidents, including rudeness to his line manager, M, both of which his employer found amounted to gross misconduct. The decision maker had been unaware that the second incident had been provoked by the conduct and language of M, which the Tribunal later found amounted to direct race discrimination....
The Defendant won their case at the Employment Appeals Tribunal but the Court of Appeal (the next step up) restored the original decision of the Employment Tribunal. The Court of Appeal thus held by a majority that the tribunal had been correct to conclude that the dismissal remained fair because the decision, on the facts known to the decision maker, was reasonable.
Sedley LJ regarded what was known by the employer and the employees at the time and decided accordingly. Therefore, the moral of the story is that it is what was known by the employer at the time of dismissal is crucial.
Useful article on default retirement age
Curtesy of HR Zone and Iain Jenkins Prtner at Lee and Priestly
The recent announcement by the Government that the default retirement age (DRA) will, as expected, be abolished with effect from 1 October has been welcomed by age campaigners.
It does not, however, necessarily spell the end of forced retirement and employers groups, including the CBI, have pointed out. The proposed abolition of the DRA in October 2011 will notprevent private employers from having a compulsory retirementage provided they can objectively justify having it.
To establish objective justification they will need to have a legitimate aim, or aims, for having a DRA and, in relation to those employees to whom it applies, that aim, or those aims, must be consistent with the Government's approach to the UK's DRA of 65 and both the chosen retirement age and the process for implementing it are a proportionate response to those legitimate aims.
That will be for the courts to determine on a case by case basis and, whilst it is likely to be a high hurdle, it will be possible. Recent case law (Seldon v Clarkson Wright & Jakes) has made it easier, in principle, for employers in the private sector to put forward an argument of objective justification and to have a DRA of some kind, although it is probably going to make it more difficult to have one across the board.
Employers should, therefore, look carefully at their need to have a retirement age and then at how to justify and implement it. Iain Jenkins, partner at law firm Lee & Priestley, says that being able to justify having a retirement age after October 2011 will be a high hurdle, but not impossible …
The recent announcement by the Government that the default retirement age (DRA) will, as expected, be abolished with effect from 1 October has been welcomed by age campaigners.
It does not, however, necessarily spell the end of forced retirement and employers groups, including the CBI, have pointed out. The proposed abolition of the DRA in October 2011 will notprevent private employers from having a compulsory retirementage provided they can objectively justify having it.
To establish objective justification they will need to have a legitimate aim, or aims, for having a DRA and, in relation to those employees to whom it applies, that aim, or those aims, must be consistent with the Government's approach to the UK's DRA of 65 and both the chosen retirement age and the process for implementing it are a proportionate response to those legitimate aims.
That will be for the courts to determine on a case by case basis and, whilst it is likely to be a high hurdle, it will be possible. Recent case law (Seldon v Clarkson Wright & Jakes) has made it easier, in principle, for employers in the private sector to put forward an argument of objective justification and to have a DRA of some kind, although it is probably going to make it more difficult to have one across the board.
Employers should, therefore, look carefully at their need to have a retirement age and then at how to justify and implement it. Iain Jenkins, partner at law firm Lee & Priestley, says that being able to justify having a retirement age after October 2011 will be a high hurdle, but not impossible …
Wednesday, 26 January 2011
Minimum wage and 'on call claims'
South Manchester Abbeyfield Society Ltd v Hopkins & Anor UKEAT/0079/10/ZT
Employment Case Update have covered a recent EAT case relating to the above. The Judgment reviews all of the law in this area succinctly and explains when the Minimum Wage Working Time Regulations 1998 and when the National Minimum Wages Act 1998 ("NMWA") and the National Minimum Wage Regulations 1999 become relevant. The judgment considers interesting concepts such as can a Claimant only claim successfully for time when actually awake.
Link
Employment Case Update have covered a recent EAT case relating to the above. The Judgment reviews all of the law in this area succinctly and explains when the Minimum Wage Working Time Regulations 1998 and when the National Minimum Wages Act 1998 ("NMWA") and the National Minimum Wage Regulations 1999 become relevant. The judgment considers interesting concepts such as can a Claimant only claim successfully for time when actually awake.
Link
Tuesday, 25 January 2011
Law Soc guidance on compromise agreements
This guidance is so convoluted that it would be great if someone would test the meaning of the poorly drafted clause in the Equality Act:
Guidance
Guidance
Thursday, 20 January 2011
Help me complete the London Marathon in aid of CLIC Sargent
Hi I am running in the London Marathon this year in aid of
CLIC a charity which helps children and familieswith cancer.
Please help assuage the pain of the run and help me reach my 2500 total by donating
here
CLIC a charity which helps children and familieswith cancer.
Please help assuage the pain of the run and help me reach my 2500 total by donating
here
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