I was told today by an employment judge in Bedford that i was not allowed to plug in my laptop unless it had been PAT tested!
Why I thought was that? Perhaps if the machine I had become so reliant on to record evidence self combusted we could all be in huge trouble. Surely PAT tested appliances mean that they will not self combust but usually this protects us from machines burning us alive in our sleep not in broad daylight where if the thing did catch fire there would be several witnesses, a panel and 2 representatives prepared to throw themselves on the inferno??? Blast those technocrats!
Tuesday, 22 November 2011
Monday, 14 November 2011
Worrying Return to the 80s
In a misguided attempt to perk up the small business sector The Government is unravelling a system which has worked well for over a decade. Firstly, we have been told that an employee has to wait 2 years before he or she can claim unfair dismissal. This may reduce the number of complaints to a tribunal slightly but leaves an employee exposed to bullying. We all know that a demoralized workforce leads to less productivity. Other mechanisms could have been used to decrease the number of complaints such as the imposition of an obligatory deposit to be paid for the losing employee.
The Government, we heard from The Prime Minister's lips, is now set to continue on it's myopic parade by unveiling another elephant trap for the poor employee, the 'confidential employer/employee 'discussion'. We know what the Government is getting at here. At the moment if a boss takes an individual into a dark room 'for a chat' if it relates to a disciplinary matter, an employee is entitled to have a fellow employee or union rep present. There is also a rule that if an employee is told that he might as well leave or is not pulling his weight it is seen as 'a vote of no confidence' by the employer and the employee can leave over it.
Well Mr Cameron in a speech heard last week, seems to be suggesting the usurpation of the tribunal in favour of back room chats. Where are the unions when we actually need them?
Charles Price Barrister
cp@no5.com
The Government, we heard from The Prime Minister's lips, is now set to continue on it's myopic parade by unveiling another elephant trap for the poor employee, the 'confidential employer/employee 'discussion'. We know what the Government is getting at here. At the moment if a boss takes an individual into a dark room 'for a chat' if it relates to a disciplinary matter, an employee is entitled to have a fellow employee or union rep present. There is also a rule that if an employee is told that he might as well leave or is not pulling his weight it is seen as 'a vote of no confidence' by the employer and the employee can leave over it.
Well Mr Cameron in a speech heard last week, seems to be suggesting the usurpation of the tribunal in favour of back room chats. Where are the unions when we actually need them?
Charles Price Barrister
cp@no5.com
Monday, 3 October 2011
Do your know your rights when it comes to your contract of employment?
A great article kindly printed with permission from writer Abigail Errington
Would you know your rights at work if you suddenly found yourself in the throws of redundancy proceedings, discovered you were pregnant or quite simply thought you were working too many hours or travelling more than you thought you should be?
There have been some big changes to Employment Law this April, which every employee should be aware of, in order to know their statutory employment law rights at work.
Recent legal changes include:
phasing out of the default retirement age of 65
abolition of the statutory retirement procedure
an increase to statutory maternity, paternity and adoption pay
additional paternity leave
In these times of economic instability it is a good idea to review or at least be aware of the terms and conditions of your employment contract, so that you are prepared for any eventuality.
Julie Edmonds, employment litigator at MTA Solicitors outlines the key issues and the pitfalls to look out for:
What Should An Employment Contract Include?
1. It is important to have a contract of employment so that you know on what basis you are working for your Employer/Company. If you have a contract it will be clear whether you are employed, a worker or self employed. This is important when it comes to knowing your rights and what you are entitled to. Ie:
employee (you are entitled to statutory maternity, paternity and adoption leave, right to claim unfair dismissal after years service, statutory redundancy pay)
workers tend to be contract or agency based and subject to certain criteria, workers are entitled to things such as national minimum wage, right not to have deductions made from wage, Statutory Sick Pay, rests and paid holiday under working time regulations
self-employment – a person who works for himself/herself instead of an employer - you will not have a contract and will not have employment rights as such as you provide a service or trade for a fee in your own right. You are more likely to have a contract to provide services or a contract for services
2. Ideally you should always request and/or be given a written contract of employment if you are an employee. If it is not in writing however it will be created by conduct over time. You are entitled to be given a written contract in the first 2 months of employment after you have been employed for 1 month. So if you don’t have anything in writing after this time – don’t be afraid to ask for it. Having a contract in writing makes disputes with Employers less likely as it is clear from the start what both parties intend and agree to.
3. All contracts of employment have an implied term of mutual trust and confidence. This implies respect on both sides of the relationship and means that neither you nor your employer can act completely unreasonably. The ‘terms’ are the legal part of the contract.
4. Ideally the contract will be in writing so the terms are clear but they do not need to be written down to be terms. You must understand what is on your contract and what you are agreeing to at the start so you know what rights and obligations there are on both sides.
5. The principal statement of written employment particulars should include
name and employers name, job title, start date, if employment is not permanent, how long the contract is expected to last for, pay rate and details of pay day, hours of work, holiday entitlement, place of work, sick pay, notice periods, information re disciplinary and grievance procedures - which can refer to an employee handbook for full details so long as this is kept updated and pensions.
Key areas to look out for in your contract of employment
Is your employer going to pay you per hour worked or an annual salary based on a set number of hours per week?
how many hours per week is your employer expecting you to work? Is there a clause that states the number of hours followed by ‘or as required by the business or to satisfy business needs’ – this needs to be clarified
Is there a right to paid overtime or is this covered by the annual salary?
Is your place of work a set location or is there a mobility clause in your contract? Is there a limit on what is considered reasonable mobility under the clause such as distance or travelling time eg max 3 hours per day?
Are you entitled to full pay if you are off sick and if so for how long? If there is nothing in writing then the default position will be SSP
Holidays – are you entitled to carry over holiday from one year to the next? What is the holiday year
(Jan to Dec?). Does your holiday include or exclude bank holidays?
Are there any restrictions in the contract that you will continue to be bound by after you leave and for how long - such as contacting customers or working for competitors? You will need to clarify these areas
Check out any confidentiality clauses
Who owns the intellectual property rights that are created while you are an employee?
Finally, look out for flexibility clauses, especially those that are vaguely worded. Flexibility may be in relation to shift patterns or mobility clauses that can change your place of work. However, a flexibility clause that is too wide and just says that the employer can change your terms from time to time cannot be used to bring in completely unreasonable clauses.
All these aspects of a contract should be considered and understood so that you are in the best position should you get into any kind of dispute with your employer. MTA Solicitors provide expert Employment Law legal advice and services for both Employees and Employers from anywhere in England and Wales. There are offices based in Kent, London and Manchester
Would you know your rights at work if you suddenly found yourself in the throws of redundancy proceedings, discovered you were pregnant or quite simply thought you were working too many hours or travelling more than you thought you should be?
There have been some big changes to Employment Law this April, which every employee should be aware of, in order to know their statutory employment law rights at work.
Recent legal changes include:
phasing out of the default retirement age of 65
abolition of the statutory retirement procedure
an increase to statutory maternity, paternity and adoption pay
additional paternity leave
In these times of economic instability it is a good idea to review or at least be aware of the terms and conditions of your employment contract, so that you are prepared for any eventuality.
Julie Edmonds, employment litigator at MTA Solicitors outlines the key issues and the pitfalls to look out for:
What Should An Employment Contract Include?
1. It is important to have a contract of employment so that you know on what basis you are working for your Employer/Company. If you have a contract it will be clear whether you are employed, a worker or self employed. This is important when it comes to knowing your rights and what you are entitled to. Ie:
employee (you are entitled to statutory maternity, paternity and adoption leave, right to claim unfair dismissal after years service, statutory redundancy pay)
workers tend to be contract or agency based and subject to certain criteria, workers are entitled to things such as national minimum wage, right not to have deductions made from wage, Statutory Sick Pay, rests and paid holiday under working time regulations
self-employment – a person who works for himself/herself instead of an employer - you will not have a contract and will not have employment rights as such as you provide a service or trade for a fee in your own right. You are more likely to have a contract to provide services or a contract for services
2. Ideally you should always request and/or be given a written contract of employment if you are an employee. If it is not in writing however it will be created by conduct over time. You are entitled to be given a written contract in the first 2 months of employment after you have been employed for 1 month. So if you don’t have anything in writing after this time – don’t be afraid to ask for it. Having a contract in writing makes disputes with Employers less likely as it is clear from the start what both parties intend and agree to.
3. All contracts of employment have an implied term of mutual trust and confidence. This implies respect on both sides of the relationship and means that neither you nor your employer can act completely unreasonably. The ‘terms’ are the legal part of the contract.
4. Ideally the contract will be in writing so the terms are clear but they do not need to be written down to be terms. You must understand what is on your contract and what you are agreeing to at the start so you know what rights and obligations there are on both sides.
5. The principal statement of written employment particulars should include
name and employers name, job title, start date, if employment is not permanent, how long the contract is expected to last for, pay rate and details of pay day, hours of work, holiday entitlement, place of work, sick pay, notice periods, information re disciplinary and grievance procedures - which can refer to an employee handbook for full details so long as this is kept updated and pensions.
Key areas to look out for in your contract of employment
Is your employer going to pay you per hour worked or an annual salary based on a set number of hours per week?
how many hours per week is your employer expecting you to work? Is there a clause that states the number of hours followed by ‘or as required by the business or to satisfy business needs’ – this needs to be clarified
Is there a right to paid overtime or is this covered by the annual salary?
Is your place of work a set location or is there a mobility clause in your contract? Is there a limit on what is considered reasonable mobility under the clause such as distance or travelling time eg max 3 hours per day?
Are you entitled to full pay if you are off sick and if so for how long? If there is nothing in writing then the default position will be SSP
Holidays – are you entitled to carry over holiday from one year to the next? What is the holiday year
(Jan to Dec?). Does your holiday include or exclude bank holidays?
Are there any restrictions in the contract that you will continue to be bound by after you leave and for how long - such as contacting customers or working for competitors? You will need to clarify these areas
Check out any confidentiality clauses
Who owns the intellectual property rights that are created while you are an employee?
Finally, look out for flexibility clauses, especially those that are vaguely worded. Flexibility may be in relation to shift patterns or mobility clauses that can change your place of work. However, a flexibility clause that is too wide and just says that the employer can change your terms from time to time cannot be used to bring in completely unreasonable clauses.
All these aspects of a contract should be considered and understood so that you are in the best position should you get into any kind of dispute with your employer. MTA Solicitors provide expert Employment Law legal advice and services for both Employees and Employers from anywhere in England and Wales. There are offices based in Kent, London and Manchester
Friday, 23 September 2011
How do you vary terms and conditions of employment
Charles Price, Employment Barrister looks at the recent judgment of 'Slade and Ors v TNT (UK) Ltd' where an employer wanted to remove the opportunity to win a bonus from the contracts of his workforce firstly by way of a sum of money and then by dismissal and re-engagement. This case illustrates the legal tests looked at when considering the fairness of the dismissals...
In this case, an employer had sought to change terms of employment and made an offer to “buy out” certain existing terms, but warned that refusal would result in dismissal with an offer of re-engagement on the proposed new terms. The dismissal and redeployment strategy as we all know has been used regularly especially in recent years as employers have been forced to make cuts.
The payment of what was called an EOS bonus had been agreed in 1983 to incentivise the workers at the hubs to complete the sort on time. However, by 2005, the Respondent was negotiating with the union to discontinue the payment of the bonus and to replace it with an attendance bonus which was less advantageous to employees. The outcome of those negotiations was that new starters did not receive the EOS bonus but did receive the attendance bonus, whereas existing employees retained their entitlement to the EOS bonus. The Respondent agreed to “red circle” the bonus structure. Those new arrangements came in to effect from 1 August 2005.
As the company saw profits diminish steadily it sought to discontinue the EOS bonus:
The Tribunal found that the reasoning for this was a combination of:
(a) A belief that it would reduce costs.
(b) The payment of the bonus was divisive because an increasing proportion of employees at the hubs did not receive it despite doing the same work as those who did.
(c) The Respondent believed the effect of the bonus was that the night workers at the hubs were being paid an overall rate which was 26% above market rate for comparable work.
Between 11 February and 7 May 2009 there was a series of meetings between the Respondent and the union and other representatives. Those negotiations included tentative proposals to replace the bonus scheme but mainly centred on proposals to pay a lump sum to those entitled to receive the bonus in return for their agreement to change their terms and conditions. The proposals, as they developed, were the subject of three work force ballots but ultimately no agreement was achieved.
The Tribunal found that when it became clear that matters would not be agreed by negotiation the Respondent made a “final offer” to the work force for the payment of a lump sum in return for agreement to discontinue the bonus. On 12 May 2009 it wrote to the workforce setting out its point of view, making it clear that if the final offer was not accepted in a forthcoming ballot, then employees would be issued with contractual notice to terminate their contracts of employment.
In fact that final offer was revised and, on 22 May 2009, Mr Harper of the Respondent wrote to all affected employees giving details of the revised final offer making clear that if this could not be achieved by agreement then termination of employees contracts would follow. This revised final offer was also rejected.
On 5 June 2009 those employees who were represented in those negotiations and who, by the ballot, had rejected the final offer, received contractual notice terminating their contract of employment.
On 8 June 2009 a number of employees lodged a collective grievance against that termination, but all the affected employees accepted the offer of re-engagement under protest and without prejudice to their right to bring a claim of unfair dismissal in relation to the termination of their contract of employment.
The EAT judgment sets out the approach legally of the tribunal and made no criticism of it :
They first, considered, and made a finding, whether the reason for the dismissal was a substantial reason (reference to one of the fair reasons found for dismissal in the Employment Rights Act 1996) , the burden of proof being on the Respondent.
Second, if the reason for the dismissals was for a sound business reason, or one which the Respondent reasonably believed was a sound business reason, then it would be a substantial reason. (It was not necessary for the action to be the only available action to avert a business disaster, but on the other hand a reason must not be trivial.)
Third, if the Respondent satisfied the Tribunal as to the reason for the dismissal and that it was a reason of substance, the Tribunal must consider whether the dismissal was fair having regard to section 98(4) ERA. The Tribunal said of this,
“In this exercise our focus must be on the reasonableness of the respondent’s conduct. This involves an exercise balancing the advantages to the business of proceeding in the way that the respondent’s did compared with the effects on the claimants.”
Finally they had to consider the question of procedural fairness.
Firstly they looked at the reason for dismissal; they found (para 22) They found that the reason was a business restructuring, namely a change of remuneration structure with a view to reduction of costs and an increase in efficiency to combat falling revenues and an alarming fall in operating profits. They found that the Respondent had not been successful in all it set out to do in terms of cost reduction, but were satisfied they had an honest and reasonable belief that taking the proposed steps would achieve those aims. Those aims were legitimate and necessary and constituted a substantial reason satisfying the provisions of section 98(1). That conclusion was not challenged in the appeal.
One of the main appeal arguments concerning fairness was that:
ii) In determining the issue of fairness the Tribunal applied the wrong legal test in considering the reasonableness or otherwise of the Respondent not mitigating the loss to the employees’ (who did not accept the changes) wages by the payment of a lump sum at least equal to that it identified as affordable during negotiations and which it did pay to employees who accepted settlement agreements. The argument runs that if the Respondent could afford to mitigate the impact of the change on its workforce when it made the final offer, then it must be inequitable for it not to offer that same mitigation when it proceeded, not by way of an agreement but by way of imposition. The Tribunal erred by focussing on the much more limited basis of what the Claimants “legitimate expectations” required.
In other words, fairness required them to undertake a balancing exercise in the event they did not apply that test sufficiently or at all.
In The Hon. Mr Justice Wilkie's judgment, the Tribunal focused on the correct question, which was whether the employer acted reasonably, that is to say within the band of reasonable responses. In so doing, it rejected the contention that the only reasonable response for the Respondent would be to offer re-engagement on terms which included the buy-out sum. We agree with the Respondent that the lump sum had been offered in order to secure a benefit to the Respondent – agreement to the changes it wished. When they were unable to proceed by agreement, there was no obligation upon them as reasonable employer to include that lump sum in the terms of re-engagement they were offering in the aftermath of dismissal where they were not going to achieve any of the benefit of an agreement for which the lump sum had been offered.
Appeal No. UKEAT/0113/11/DA
By Charles Price Barrister No5 Chambers
cp@no5.com
Charles is a Public Access Barrister which means that he can be instructed by members of the public.
In this case, an employer had sought to change terms of employment and made an offer to “buy out” certain existing terms, but warned that refusal would result in dismissal with an offer of re-engagement on the proposed new terms. The dismissal and redeployment strategy as we all know has been used regularly especially in recent years as employers have been forced to make cuts.
The payment of what was called an EOS bonus had been agreed in 1983 to incentivise the workers at the hubs to complete the sort on time. However, by 2005, the Respondent was negotiating with the union to discontinue the payment of the bonus and to replace it with an attendance bonus which was less advantageous to employees. The outcome of those negotiations was that new starters did not receive the EOS bonus but did receive the attendance bonus, whereas existing employees retained their entitlement to the EOS bonus. The Respondent agreed to “red circle” the bonus structure. Those new arrangements came in to effect from 1 August 2005.
As the company saw profits diminish steadily it sought to discontinue the EOS bonus:
The Tribunal found that the reasoning for this was a combination of:
(a) A belief that it would reduce costs.
(b) The payment of the bonus was divisive because an increasing proportion of employees at the hubs did not receive it despite doing the same work as those who did.
(c) The Respondent believed the effect of the bonus was that the night workers at the hubs were being paid an overall rate which was 26% above market rate for comparable work.
Between 11 February and 7 May 2009 there was a series of meetings between the Respondent and the union and other representatives. Those negotiations included tentative proposals to replace the bonus scheme but mainly centred on proposals to pay a lump sum to those entitled to receive the bonus in return for their agreement to change their terms and conditions. The proposals, as they developed, were the subject of three work force ballots but ultimately no agreement was achieved.
The Tribunal found that when it became clear that matters would not be agreed by negotiation the Respondent made a “final offer” to the work force for the payment of a lump sum in return for agreement to discontinue the bonus. On 12 May 2009 it wrote to the workforce setting out its point of view, making it clear that if the final offer was not accepted in a forthcoming ballot, then employees would be issued with contractual notice to terminate their contracts of employment.
In fact that final offer was revised and, on 22 May 2009, Mr Harper of the Respondent wrote to all affected employees giving details of the revised final offer making clear that if this could not be achieved by agreement then termination of employees contracts would follow. This revised final offer was also rejected.
On 5 June 2009 those employees who were represented in those negotiations and who, by the ballot, had rejected the final offer, received contractual notice terminating their contract of employment.
On 8 June 2009 a number of employees lodged a collective grievance against that termination, but all the affected employees accepted the offer of re-engagement under protest and without prejudice to their right to bring a claim of unfair dismissal in relation to the termination of their contract of employment.
The EAT judgment sets out the approach legally of the tribunal and made no criticism of it :
They first, considered, and made a finding, whether the reason for the dismissal was a substantial reason (reference to one of the fair reasons found for dismissal in the Employment Rights Act 1996) , the burden of proof being on the Respondent.
Second, if the reason for the dismissals was for a sound business reason, or one which the Respondent reasonably believed was a sound business reason, then it would be a substantial reason. (It was not necessary for the action to be the only available action to avert a business disaster, but on the other hand a reason must not be trivial.)
Third, if the Respondent satisfied the Tribunal as to the reason for the dismissal and that it was a reason of substance, the Tribunal must consider whether the dismissal was fair having regard to section 98(4) ERA. The Tribunal said of this,
“In this exercise our focus must be on the reasonableness of the respondent’s conduct. This involves an exercise balancing the advantages to the business of proceeding in the way that the respondent’s did compared with the effects on the claimants.”
Finally they had to consider the question of procedural fairness.
Firstly they looked at the reason for dismissal; they found (para 22) They found that the reason was a business restructuring, namely a change of remuneration structure with a view to reduction of costs and an increase in efficiency to combat falling revenues and an alarming fall in operating profits. They found that the Respondent had not been successful in all it set out to do in terms of cost reduction, but were satisfied they had an honest and reasonable belief that taking the proposed steps would achieve those aims. Those aims were legitimate and necessary and constituted a substantial reason satisfying the provisions of section 98(1). That conclusion was not challenged in the appeal.
One of the main appeal arguments concerning fairness was that:
ii) In determining the issue of fairness the Tribunal applied the wrong legal test in considering the reasonableness or otherwise of the Respondent not mitigating the loss to the employees’ (who did not accept the changes) wages by the payment of a lump sum at least equal to that it identified as affordable during negotiations and which it did pay to employees who accepted settlement agreements. The argument runs that if the Respondent could afford to mitigate the impact of the change on its workforce when it made the final offer, then it must be inequitable for it not to offer that same mitigation when it proceeded, not by way of an agreement but by way of imposition. The Tribunal erred by focussing on the much more limited basis of what the Claimants “legitimate expectations” required.
In other words, fairness required them to undertake a balancing exercise in the event they did not apply that test sufficiently or at all.
In The Hon. Mr Justice Wilkie's judgment, the Tribunal focused on the correct question, which was whether the employer acted reasonably, that is to say within the band of reasonable responses. In so doing, it rejected the contention that the only reasonable response for the Respondent would be to offer re-engagement on terms which included the buy-out sum. We agree with the Respondent that the lump sum had been offered in order to secure a benefit to the Respondent – agreement to the changes it wished. When they were unable to proceed by agreement, there was no obligation upon them as reasonable employer to include that lump sum in the terms of re-engagement they were offering in the aftermath of dismissal where they were not going to achieve any of the benefit of an agreement for which the lump sum had been offered.
Appeal No. UKEAT/0113/11/DA
By Charles Price Barrister No5 Chambers
cp@no5.com
Charles is a Public Access Barrister which means that he can be instructed by members of the public.
Friday, 5 August 2011
Free employment law app launched!
In what represents a rare incursion by law firms into a popular media, a Scottish law firm has launched an iPhone app which will help employers calculate compensation claims, sections on unfair dismissal, redundancy, maternity and paternity leave and equal pay and discrimination...
The free HR Advisor app includes an interactive unfair dismissal compensation calculator and an interactive redundancy calculator.
Law firm MacRoberts said its app was designed to give employers useful information about UK employment law.
It will also have links to government sites and bodies such as Acas and the Equal Opportunities Commission.
Graham Mitchell, employment law partner at MacRoberts, told the BBC: "We have listened very carefully to our HR clients and have developed a practical, useful and relevant app which addresses the issues HR professionals face every day in an increasingly difficult employment law environment.
"Many of our clients are large employers and they have issues with employment law all the time. It is an area in which reliable information is often needed quickly and it lends itself to an information-based system such as HR Advisor."
Your editor downloaded this app simply by inputting 'HR adviser' (rather than advisor). The app is certainly easy to use and offers information on basic concepts of employment law. HR advisors and practitioners may find the compensation calculator useful. This is one of the first incursions by a law firm into a form media most should be looking to use.
If you know of any other useful legal apps please tell us!
The free HR Advisor app includes an interactive unfair dismissal compensation calculator and an interactive redundancy calculator.
Law firm MacRoberts said its app was designed to give employers useful information about UK employment law.
It will also have links to government sites and bodies such as Acas and the Equal Opportunities Commission.
Graham Mitchell, employment law partner at MacRoberts, told the BBC: "We have listened very carefully to our HR clients and have developed a practical, useful and relevant app which addresses the issues HR professionals face every day in an increasingly difficult employment law environment.
"Many of our clients are large employers and they have issues with employment law all the time. It is an area in which reliable information is often needed quickly and it lends itself to an information-based system such as HR Advisor."
Your editor downloaded this app simply by inputting 'HR adviser' (rather than advisor). The app is certainly easy to use and offers information on basic concepts of employment law. HR advisors and practitioners may find the compensation calculator useful. This is one of the first incursions by a law firm into a form media most should be looking to use.
If you know of any other useful legal apps please tell us!
Doctor's dismissal and Right to a Fair Trial
The High Court has rejected a doctor's claim that his dismissal was a determination of his civil rights thus entitling him to an independent and impartial tribunal under Article 6? Mattu v University Hospitals Coventry and Warwickshire NHS Trust.
By an agreement made in writing on 3 February 1998[1] Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust, as a consultant in non-invasive cardiology and general medicine. Mr John Hendy QC on behalf of Dr Mattu argued that important procedural safeguards incorporated, into the agreement were not met enabling the Judge, although not concerned with the underlying merits of the matter, to set aside the dismissal.
Dr Mattu was on sick leave for at least a year from September 2006 and as a result disciplinary proceedings were commenced. The upshot of the disciplinary proceedings was that by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.
Dr Mattu decided to return to work whereupon he was asked to re-skill. Accordingly, reskilling was arranged for Dr Mattu but, unhappily, it is this process which led to Dr Mattu's dismissal in November 2010. In short the parties fell out over the question of reskilling and Dr Mattu declined to sign an action plan in connection with the provision of reskilling. He thought that reskilling should have an additional six months connected to research with the possibility that such six months be spent in the United States of America.
Dr Mattu was dismissed principally for not complying with the re-skilling procedure. Following the dismissal a number of things happened. First, an appeal was made against the dismissal to a panel appointed by the Trust, which panel is empowered to review the dismissal proceedings. That panel met on 9 May 2011 and 13 May 2011. It stands adjourned until 20 September 2011. Second, Dr Mattu has initiated proceedings in an employment tribunal for unfair dismissal, race discrimination, disability discrimination and, what is informally called, whistle blower discrimination. More formally the last mentioned is protective disclosure.
Perhaps, most interestingly, a distinct case was also maintained on the basis of the Human Rights Act 1998. It was said, uncontroversially, that the Trust is a public authority within the Act. Further, it was argued that the process by which Dr Mattu was dismissed and his appeal from it constituted a determination of a civil right possessed by Dr Mattu so as to provide him with the protection given by article 6 of the European Convention on Human Rights as scheduled to the 1998 Act.
High Court proceedings were commenced.
The Trust is a public body to which the Human Rights Act 1998 applies. By article 6 of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 Dr Mattu is entitled in the determination of his civil rights to a hearing before an independent and impartial tribunal. Mr Hendy argued that his dismissal by a public body such as the Trust, which is, in turn, part of the National Health Service, is equivalent to being struck off the medical register and barred from practice in the National Health Service. Consequently, it was argued that the Trust were determining Dr Mattu's civil rights so as to entitle him to an independent and impartial tribunal, which, it is said, he did not enjoy as Mr Hardy cannot be said to be independent of the Trust of which he is chief executive.
The crux of the matter was referred to by Blair J in a case called R (oao Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) accepted that a person's right to practise his profession was a civil right for the purposes of article 6. He recorded (paragraph 21) that it was not in dispute but that a person's right to practise his profession was a civil right for the purpose of Article 6. This is not the same, he said, as that person's right to remain in his current employment.
Thus, The Court disagreed, holding that GMC proceedings would not be affected, and that he could still practise privately, or elsewhere within the NHS. At worst, the Claimant's ability to remain in his current employment was affected. But unlike the right to practise one's profession, doing a particular job is not a civil right, and is not protected by Article 6.
Mr Hendy argues that article 6 is also engaged when an individual's civil right to enjoy a good professional reputation is determined but this was also rejected by Timothy Straker QC (sitting as a Deputy High Court Judge)
'I do not doubt that such dismissal could be described as a blot on Dr Mattu's copy book but I do not consider that Mr Hardy was determining Dr Mattu's reputation.'
The judgment is useful for anyone wanting to know more about the application of Article 6 on public bodies as employers.
NB Interesting similar cases are considered in this judgment such as: Kulkarni v. Milton Keynes Hospital NHS Trust [2010] 1CR 101
Charles Price is a Public Access Barrister and works at No5 Chambers
cp@no5.com
By an agreement made in writing on 3 February 1998[1] Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust, as a consultant in non-invasive cardiology and general medicine. Mr John Hendy QC on behalf of Dr Mattu argued that important procedural safeguards incorporated, into the agreement were not met enabling the Judge, although not concerned with the underlying merits of the matter, to set aside the dismissal.
Dr Mattu was on sick leave for at least a year from September 2006 and as a result disciplinary proceedings were commenced. The upshot of the disciplinary proceedings was that by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.
Dr Mattu decided to return to work whereupon he was asked to re-skill. Accordingly, reskilling was arranged for Dr Mattu but, unhappily, it is this process which led to Dr Mattu's dismissal in November 2010. In short the parties fell out over the question of reskilling and Dr Mattu declined to sign an action plan in connection with the provision of reskilling. He thought that reskilling should have an additional six months connected to research with the possibility that such six months be spent in the United States of America.
Dr Mattu was dismissed principally for not complying with the re-skilling procedure. Following the dismissal a number of things happened. First, an appeal was made against the dismissal to a panel appointed by the Trust, which panel is empowered to review the dismissal proceedings. That panel met on 9 May 2011 and 13 May 2011. It stands adjourned until 20 September 2011. Second, Dr Mattu has initiated proceedings in an employment tribunal for unfair dismissal, race discrimination, disability discrimination and, what is informally called, whistle blower discrimination. More formally the last mentioned is protective disclosure.
Perhaps, most interestingly, a distinct case was also maintained on the basis of the Human Rights Act 1998. It was said, uncontroversially, that the Trust is a public authority within the Act. Further, it was argued that the process by which Dr Mattu was dismissed and his appeal from it constituted a determination of a civil right possessed by Dr Mattu so as to provide him with the protection given by article 6 of the European Convention on Human Rights as scheduled to the 1998 Act.
High Court proceedings were commenced.
The Trust is a public body to which the Human Rights Act 1998 applies. By article 6 of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 Dr Mattu is entitled in the determination of his civil rights to a hearing before an independent and impartial tribunal. Mr Hendy argued that his dismissal by a public body such as the Trust, which is, in turn, part of the National Health Service, is equivalent to being struck off the medical register and barred from practice in the National Health Service. Consequently, it was argued that the Trust were determining Dr Mattu's civil rights so as to entitle him to an independent and impartial tribunal, which, it is said, he did not enjoy as Mr Hardy cannot be said to be independent of the Trust of which he is chief executive.
The crux of the matter was referred to by Blair J in a case called R (oao Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) accepted that a person's right to practise his profession was a civil right for the purposes of article 6. He recorded (paragraph 21) that it was not in dispute but that a person's right to practise his profession was a civil right for the purpose of Article 6. This is not the same, he said, as that person's right to remain in his current employment.
Thus, The Court disagreed, holding that GMC proceedings would not be affected, and that he could still practise privately, or elsewhere within the NHS. At worst, the Claimant's ability to remain in his current employment was affected. But unlike the right to practise one's profession, doing a particular job is not a civil right, and is not protected by Article 6.
Mr Hendy argues that article 6 is also engaged when an individual's civil right to enjoy a good professional reputation is determined but this was also rejected by Timothy Straker QC (sitting as a Deputy High Court Judge)
'I do not doubt that such dismissal could be described as a blot on Dr Mattu's copy book but I do not consider that Mr Hardy was determining Dr Mattu's reputation.'
The judgment is useful for anyone wanting to know more about the application of Article 6 on public bodies as employers.
NB Interesting similar cases are considered in this judgment such as: Kulkarni v. Milton Keynes Hospital NHS Trust [2010] 1CR 101
Charles Price is a Public Access Barrister and works at No5 Chambers
cp@no5.com
Thursday, 23 June 2011
New Redundancy Notification Clarification
New redundancy law
The EAT has handed down a new judgment ,'Howard v Campbell's Caravans', involving notification to an employee that he will be retired after his 65th Birthday...
The Case involved the dismissal of an employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65. It was said to be unfair and to constitute age discrimination because the employer had failed, in the manner of the prescribed retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996. Specifically it was contented that the employer had failed to specify the retirement date in that the notification had merely said that he would be retired “after” his 65th birthday.
Mr Justice Underhill argued that it does not necessarily constitute a failure to comply with the requirement of the statutory retirement procedure that the employee must be notified of the intended date of his retirement.
It was held that the inclusion of the word “after” did not always mean “on a date later than” and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later)
On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.
http://www.bailii.org/uk/cases/UKEAT/2011/0609_10_1205.html
The EAT has handed down a new judgment ,'Howard v Campbell's Caravans', involving notification to an employee that he will be retired after his 65th Birthday...
The Case involved the dismissal of an employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65. It was said to be unfair and to constitute age discrimination because the employer had failed, in the manner of the prescribed retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996. Specifically it was contented that the employer had failed to specify the retirement date in that the notification had merely said that he would be retired “after” his 65th birthday.
Mr Justice Underhill argued that it does not necessarily constitute a failure to comply with the requirement of the statutory retirement procedure that the employee must be notified of the intended date of his retirement.
It was held that the inclusion of the word “after” did not always mean “on a date later than” and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later)
On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.
http://www.bailii.org/uk/cases/UKEAT/2011/0609_10_1205.html
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