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Equal Pay - Material Factor Defence

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The Claimant police officers received less than their male comparator doing like work. The reason was that the men worked shifts involving night work and received a special payment (effectively a bonus) for this, but the women did not work those hours...

Employment Bill Published

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After all the hype, it's finally arrived. The  Employment Bill  was introduced in the House of Lords last week. Key provisions are:   abolition of statutory dismissal and grievance procedures (clauses 1-2) tribunals have a discretion to...

Modified Dismissal Procedure

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The EAT has taken a relatively strict approach to the applicability of the statutory Modified Disciplinary Procedure in O� Neil v. Wooldridge Ecotech Ltd , holding that it did not apply in a situation where the alleged gross misconduct occurred in...

Mutual Trust and Confidence

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Last week the QBD handed down the high-profile decision,  RDF Media Group v Clements . Quite apart from the media interest due to the personalities involved, from a legal perspective it dealt in some detail with the implied term of mutual trust and...

Statutory Dismissal Procedure - Extension of time

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The EAT has, in Royal Bank of Scotland v Bevan , upheld the decision of a tribunal that time for presenting an unfair dismissal claim should be extended where an internal appeal is concluded just five hours before the three-month time limit expires. ...

Tribunal Chairmen to be Abolished

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Okay - a slightly alarming (and inaccurate) headline. It's not the role that is being abolished, but the title which is being changed. From tomorrow (yes, a Saturday!), employment tribunal chairmen become known as  Employment Judges . This change,...

New Practice Direction: Agency Workers

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The President of Employment Tribunals, HHJ Meeran, has issued a Practice Direction staying all agency worker cases. The stay will be lifted once the Court of Appeal gives judgment in James v London Borough of Greenwich. [Thanks to Jonathan Cohen...

Practice Direction - Age Discrimination

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The President of the Employment Tribunals, HHJ Meeran, has handed down a Practice Direction staying all current (and future) tribunal claims which involve an allegation that regulation 30 of the Age Regulations (providing for lawful retirement at or beyond...

Tribunals Service Consultation Paper

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The Tribunals Service has, today, issued a consultation paper entitled Transforming Tribunals. It's not particularly exciting, though. Core points are:-   cross-ticketing between wing members will be allowed (ie employment tribunal wing members...

Statutory Dismissal Procedures

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The EAT has held, in  Venniri v Autodex , that tribunals are obliged to consider whether a dismissal is automatically unfair under the statutory dismissal procedures. It is not necessary for the employee to raise compliance as an issue (see para. 34). ...

TUPE: Objecting to Transfer

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An interesting decision from the Chancery Division, in  New ISG Ltd v Vernon . Five employees objected to a TUPE transfer two days after it had taken place, once they discovered the (previously withheld) identity of the new employer and realised they...

Discrimination against Parliamentary Candidates

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The House of Lords has, today, ended the long-raging battle in  Labour Party v Ahsan . The Labour party did not select Mr Ahsan as its candidate for a parliamentary seat. He claimed this failure to select him was on grounds of race. Considering the...

TUPE: Variation of Contract Terms

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The Court of Appeal has, today, upheld the EAT's decision in  Regent Security Services v Power . The case is a departure from previous TUPE-law, holding that an employee is entitled to elect to rely on changes to terms and conditions of employment...

8 seconds past midnight

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We all thought the 88 second case was amusing, but here's an even closer shave! A second-year law student, charging �150ph to represent the Claimant, hit the 'transmit' button on the ETS website at 1 second before midnight on the last day...

Ministers of Religion and Unfair Dismissal

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The Court of Appeal has upheld the Employment Appeal Tribunal's decision in  New Testament Church of God v Rev. Sylvester Stewart , which held that a Christian minister was an employee of his church. Whilst making it clear that he was not...

Collective Redundancy Consultation

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The EAT has handed down a  very important decision  dealing with collective consultation obligations in redundancy cases. Overturning previously binding authority, the EAT has held that there IS a duty on employers to consult over the reason for...

TUPE

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The Court of Appeal has held, on unusual facts, that TUPE does not confer additional rights so as to improve an employee's situation. Mrs Jackson was employed by CI in 1999. CI's business transferred to Computershare in 2004, and it made Mrs Jackson...

Constructive Dismissal and Grievance Procedures

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The EAT has handed down a very interesting judgment in  GMB Union v Brown . Ms Brown had a grievance against her line manager, a regional secretary of the GMB, flowing largely from the breakdown of their working relationship. She did not want him to...

Maternity Pay Increases Delayed until April 2010

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The Government still has a goal to extend Statutory Maternity Pay [SMP], Maternity Allowance [MA] and Statutory Adoption Pay [SAP] from 39 weeks to 52 weeks and to introduce Additional Paternity Leave and Pay [APL&P] by the end of this Parliament. ...

Retirement and Discrimination

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The ECJ has handed down its opinion in the important case of Palacios v Cortefiel Servicios SA , holding that the EU Equal Treatment Framework Directive does not prohibit member states from introducing mandatory retirement ages. Disagreeing with the...

Dreadlocks, Rastafarians and Religious Belief

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The EAT (Elias P. presiding) has dismissed an appeal in which it was suggested that a Rastafarian who wore his hear in dreadlocks was discriminated against because of his religious beliefs. The case turns largely on its facts (and contains an amusing...

Statutory Dismissal Procedures

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The EAT has held, in  Homeserve v Dixon , that a step 1 letter need not state that the employer is contemplating dismissal. The employer, having caught the employee red-handed in an act of gross misconduct, sent him a letter inviting him to a...

Re-Enagement and Loss of Statutory Rights

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A couple of interesting points crop up in the EAT's decision in  Wolff v Kingston upon Hull City Council . Unreasonable pursuit of re-engagement claim The EAT approved the award of costs against Mr Wolff for unreasonably pursuing a re-engagement...

Statutory Grievance Procedure

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As aficionados of employment law will know, tribunals consistently strain to turn lumps of clay into statutory grievances so that employees are not shut out from bringing tribunal applications. But there is a limit, the EAT has held in  Dick Lovett v...

New Evidence as a Ground of Appeal

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The EAT has handed down a decision confirming the strict approach it takes to allowing an appeal on grounds of fresh evidence. The employer dismissed an employee for trying to poach customers. At the tribunal hearing, the employer had no real evidence of...

Holiday Pay

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In the light of the increased statutory holiday pay, effective today, Acas has issued a new  Advice Leaflet on Holidays and Holiday Pay . For those who need a quick reminder, minimum annual holiday entitlement increases today to 4.8 weeks (and on 1st...

Unfair Dismissal Investigations

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The EAT has handed down judgment in  Corus UK Ltd v Mainwaring , considering various points arising out of a conduct / capability investigation where an employee was accused of malingering. The two key points are:-   there is no obligation to...

Equal Pay

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The Court of Appeal has, today, killed off the argument that the equal pay legislation does not apply where the woman is doing higher rated work than a man (rather than work rated the same). In  Redcar v Cleveland Borough Council , the Court rewrites...

EAT Time Limits

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The EAT has provided  consolidated guidance on the rules relating to the 42-day time limit  for appealing a tribunal decision, including the circumstances when an extension of time will be considered. The guidelines appear at para. 5 of HHJ...

Part-time Tribunal Chair not 'Worker' for PTWR 2000

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On 24th July 2007, I sent out a bulletin about this important case,  Christie v DCA , saying that I would send the link out when the judgment was put on the internet. Well, it's gone up:- http://www.bailii.org/uk/cases/UKEAT/2007/0140_07_2307.html...

New Acas Chair

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Edward Sweeney has, this afternoon, been announced as the new Chair of the Acas (Advisory, Conciliation and Abritration Service) Council. He is deputy General Secretary of AMICUS, and is a past General Secretary of UNIFI and BIFU. He replaces Rita Donaghy...

Data Protection: what is 'personal information'?

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A new 21-page technical guidance note, 'Determining what is personal data', explains and illustrates the Information Commissioner's view of what is 'personal data' for the purposes of the Data Protection Act. The guidance provides many...

When is a shareholder an employee?

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This vexed question tends to crop when the owners of a company claim a statutory redundancy payment from the DTI following the company's insolvency. Underhill J. considers a number of conflicting authorities, the best-known of which, Bottrill, poses the...

Employment Tribunal Statistics

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The Tribunals Service has just published the 2006/07 employment tribunal statistics (some of the headline statistics were included in the ETS annual report in July - these stats are far more detailed). Headline points:   number of cases...

Statutory Dismissal Procedures

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The EAT has decided two interesting points on the statutory dismissal procedure - one on liability, one on quantum - in  Aptuit Ltd v Kennedy . First, it held that the statutory dismissal process does not require notification of the right to appeal to...

Acas e-Learning module on Age Discrimination

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Acas has issued a new e-Learning module on Age Discrimination. You can access it here (free registration is required). I particularly recommend the flowcharts, specimen letters and case studies for retirement dismissals - they're very...

Statutory Procedures: Adjustments to awards

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Almost three years on, and we still haven't had any guidance on when awards should be increased by 10%, 50%, or somewhere in between, for failing to comply with the statutory dismissal procedures. In  Cex Ltd v Lewis , the EAT refused to lay down...

Time-Limits

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he EAT has upheld a decision not to accept an unfair dismissal claim which was presented  88 seconds late . The Claimant tried to present his claim electronically about 15 mins before midnight on the last day for presentation. However, he mistyped the...

Practice Statement on Citing Authorities in the EAT

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The EAT has handed down a short practice statement (unusually, within the body of a judgment) on citing authorities. The EAT reminds litigants and advocates that they should not rely on transcripts of authorities printed off from the internet, when the...

TUPE

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HHJ McMullen has handed down an interesting TUPE decision,  Compass Group v Burke . In it, the EAT reminds practitioners of the principles for establishing whether there has been a TUPE transfer, and whether particular employees were assigned to the...

Agency Workers

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BANG! The sound of another nail in the Dacas coffin. This time, it's the EAT sitting in Scotland, which repeats Elias P.'s comments in recent cases that it will not be necessary to imply an employment contract between worker and end-user...

Dismissals following Bullying Induced Stress Absence

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The Court of Appeal has upheld the EAT's decision in  McAdie v Royal Bank of Scotland  (see bulletin 30/11/06). The case considers the fairness of a dismissal where the employee was on long-term stress-related sick absence, caused by bullying...

Stress at Work

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The Court of Appeal has handed down a decision dealing with contractual liability for stress at work. After 30 years' good employment, the Claimant developed depression after an allegation of sexual harassment was made against him (and the investigation...

GMB v Allen - EAT overturns decision

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Unions will be jumping for joy this morning. The EAT has overturned last summer's employment tribunal decision (see bulletin 9th June 2006) which resulted in many unions withdrawing from negotiations in the North East equal pay litigation. GMB had...

Illegality

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Elias P. has handed down a judgment clarifying (and possibly weakening) the illegality doctrine in the combined cases of  Enfield Technical Services v Payne / Grace v BF Components Ltd .. And about time too - rigid application of the illegality doctrine...

Tribunals, Courts and Enforcement Act

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Boring but important. The Tribunals, Courts and Enforcement Act 2007  received Royal Assent last week. The two points of relevance to employment lawyers are:   tribunal chairmen become 'employment judges' it makes enforcement of...

Failure to Inform and Consult

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It's taken three years, but we have the first award by the EAT for failure by an employer to inform and consult under the  Information and Consultation of Employee Regulations 2004. Macmillan Publishers Ltd. failed to arrange a ballot to elect...

Part-time tribunal chairman not 'worker'

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The EAT (Elias P presiding) has held that a fee-paid, part-time chairman of various social security appeals' tribunals was not a worker, so as to attract the protection of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. ...

Dyslexic Policeman is disabled

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The EAT has held that a senior policeman who was diagnosed with minor dyslexia was disabled within the meaning of the Disability Discrimination Act 1995. After over 15 years in the police force, and promotion to the rank of Chief Inspector, the Claimant...

Victimisation: Burden of Proof

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The EAT has confirmed "with some degree of hesitation and disquiet" (para. 38) that the reversed burden of proof in discrimination claims does not apply to allegations of victimisation. It held that a close examination of s54A of the Race...

Addendum

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Addendum Sophie Buckley, principal legal officer at the EOC, has asked me to point out that the EAT's decision in Oyarce v Cheshire County Council only applies to victimisation on grounds of race (not sex or other forms of prohibited discrimination,...

Equal Pay - Material Factor Defence

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As part of an extensive job evaluation scheme by Middlesbrough Borough Council, a pay protection scheme was introduced to protect those in receipt of higher pay against an immediate and significant reduction in pay. Agreement on the scheme was reached in...

Boring but important

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Last week , the Cabinet Office published the government's draft legislative programme for the forthcoming year. Included is the Employment Simplification Bill , the contents of which cover:   implementation of the Gibbons review...

RIP Wigs and Bands

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The Lord Chief Justice has, this morning, announced the abolition of wigs and bands in civil cases, from 1st January 2008. Gowns will continue to be worn. Court dress remains unchanged in criminal cases....

PILON clauses

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The Inner House of the Court of Session has held that PILON clauses cannot be implied into contracts of employment - i.e. if an employer wants to pay money in lieu of notice without being in breach of contract, there must be an express term allowing it to do...

Weirdest Employment Disputes

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Earlier this week, to celebrate the EAT's 30th anniversary, The Times Online dusted off its archives to search for some of the most colourful employment disputes over the last few years. For tales of witches, dogs and axe-wielding murderers, visit ...

Collective Redundancy Consultation

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17 + 3 = 20, conculdes the EAT in  Optare Group v TGWU . The employer made 17 compulsory redundancies, immediately on the back of 3 voluntary redundancies. The union alleged that the collective consultation requirements were engaged, as the employer...

Commercial Agents

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The House of Lords has handed down its decision in  Lonsdale v Howard & Hallam . This is an important case for those dealing with commercial agents. The Commercial Agents (Council Directive) Regulations 1993 (which, over a decade on, many people...

Equal Pay

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This Court of Appeal has handed down judgment in  South Tyneside Council v Anderson & ors . The appeal relates to the last of a group of equal pay claims brought by female school support staff in the north-east. Each was paid at a rate determined by...

Unfair Dismissal, Age Discrimination and Article 119

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The novel approach of the ECJ in Mangold v Helm (bulletin 24/11/05, [2006] IRLR 143) has been rejected by the EAT in the case of  Lloyd-Briden v Worthing College. Mr Lloyd-Briden's claim had been struck out pursuant to s.109 ERA 1996 (as it then...

Eat Scotland

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The EAT in Scotland has announced it is closing between 2pm Friday (6th July 2007) and Monday 16th July. For information on how to deal with documents that need to be served during the intervening week, please see  this notice ....

Acas to conciliate in EAT cases

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Acas is extending its conciliation services to cover certain categories of EAT cases, at the EAT's invitiation. The type of cases where conciliation may be appropriate will include cases where:   the employment relationship is ongoing a case...

Statutory Grievances - Admissibility of Claims

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The EAT has come up with another clever way of circumventing s31 of the Employment Act 2002 in  Mackay v Blakes Newsagents  (HHJ Serota QC). It held that where an ET1 is presented prematurely (because 28 days from the grievance letter had not...

Increase in Annual Leave

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The draft  Working Time (Amendment) Regulations 2007  are now available. They phase in an increase in the annual leave entitlement from 4 weeks to 5.6 weeks. [Thanks to www.emplaw.co.uk for this information.] ...

Updated Acas Guides

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Acas has updated its website guides on maternity and annual leave. It has also just published two research papers on sexual orientation discrimination....

Unfair Dismissal Compensation - Sick Employees

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The EAT has handed down an important decision,  GAB Robins v Trigg , dealing with the calculation of a compensatory award for a constructively dismissed employee who had been off work sick. The issue, on which there was no direct authority, was whether...

Cheekiest Legal Argument of the Year

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As part of my ongoing quest to find the  cheekiest legal argument of the year  (see bulletin 18/5/07), the second contender is the employer in  Cummings v Scholarest . The Claimant presented an equal pay claim to the employment tribunal with...

Introducing New Claims outside the Limitation Period

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The EAT has handed down judgment in the important case of  TGWU v Safeway Stores . It is authority for the proposition that it will almost always be permissible to amend a Claim Form to introduce a new legal cause of action which relies on already...

New Points on Appeal

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Quite simply, the perfect guidelines on whether new points can be taken on appeal - see paragraph 50 of HHJ McMullen QC's judgment in this  case with a very long name. ...

Without Prejudice Communications

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The Court of Appeal has handed down its decision in Brunel University v Webster & Vaseghi, considering issues of waiver of 'without prejudice' status. The case involved a publication by the employer stating that the employees had demanded...

'Without Prejudice' Communications

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Much like buses, we hear nothing on this subject for years, and then the Court of Appeal hands down two decision in rapid succession (see earlier bulletin on 28/5/07). This time, the Court of Appeal shies away from the unworkable  BNP Paribas v...

Compensation

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An interesting little case in the EAT, worth filing away somewhere, is authority for the proposition that a tribunal should not award loss of earnings in respect of a period after the (successful) Claimant's work permit ran out - even if the Claimant...

Resignation or Dismissal?

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The Court of Appeal has overruled a decision by an employment tribunal (which had been upheld by the EAT), to the effect that at the end 2002 Mr Sandhu had resigned rather than been dismissed from his job with Jan De Rijk Transport. His unfair dismissal...

Statutory Grievance Procedure

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I have decided to launch a  cheekiest legal argument of the year  competition. Nominations happily received, but here's a starter... An employee had trouble writing. The employer, rather than he, made a written note of his grievance for step 1...

Maternity - what is the 'same job'?

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Women who return from maternity leave are normally entitled to return to "the job in which she was employed before her absence". The EAT has handed down the first decision considering what this actually means. The Claimant was a teacher at a...

Statutory Paternity Leave - Consultation

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The DTI has issued a further consultation paper on the implementation of  statutory paternity leave and pay , which is intended to be implemented in two years time. The scheme allows mothers to pass some of their statutory maternity leave (and pay) to...

EAT - reopening conceded points

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The EAT has a discretion to allow argument on points conceded at employment tribunal level, but will only exercise that discretion if there are exceptionally compelling reasons to do so. This case is a complicated example of the EAT allowing points conceded...

Inducing Breach of Contract

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The House of Lords has handed down judgment in three conjoined appeals (one of which was the Michael Douglas v Hello case), dealing with the tort of inducing a breach of contract. This tort is often invoked in restrictive covenant / confidential information...

Failure to perform risk assessment for disabled employees

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Does an employer's failure to make an assessment of a disabled employee of itself amount to a failure to make a "reasonable adjustment"? If the answer is no that is an end of the matter but if it is yes, then the employer is in breach of the...

Statutory Dismissal Procedure

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An accounts clerk was dismissed for fraudulent accounting. The dismissal was automatically unfair, because of failure to follow the statutory dismissal procedure, but the tribunal reduced the basic and compensatory awards by 100%, commenting, "if ever...

Victimisation: House of Lords

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Getting back to Chambers this afternoon, I found 37 Emails waiting for me about this case. 37!!! I'd like to thank everyone individually, but come on... Anyway, the House of Lords has overturned the Court of Appeal in  St Helens Borough Council v...

Age Discrimination - Interviews

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Last month, the Director of the Equality Tribunal in the Republic of Ireland published a decision on age discrimination likely to be relevant in the UK. In the case, the complainant was asked questions about his age at an early stage of the interview...

Discrimination on grounds of Philosophical Belief

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Neil Addison of New Bailey Chambers (the man behind  www.harassmentaw.co.uk ) has emailed me to point out an important amendment to the Employment Equality (Religion or Belief) Regulations 2003, which is due to take effect on 30th April 2007. Section...

Smoking at Work

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The Health Act 2006 means that smoking in all enclosed public spaces and workplaces was outlawed from 2 April 2007 in Wales and will be outlawed from 30 April in Northern Ireland and 1 July 2007 in England. Acas has produced a first-class Q&A sheet for...

Updated Acas Guides

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Acas has published two revised guides today: Smoking at Work and  redundancy payments . As always with Acas guides, well worth reading....

Paying Salary as a Reasonable Adjustment under the DDA

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The Cout of Appeal has handed down its decision in O'Hanlon v HM Revenue & Customs, upholding the EAT's decision that an employer is  not obliged to pay salary to disabled employees pursuant to its duty to make reasonable adjustments...

Agency Workers and Whistleblowing

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The EAT has held that - when constructing the statutory definition of 'worker' for the purposes of the whistleblowing legislation - it is appropriate to adopt a purposive approach. Therefore an individual who supplied his services through a limited...

Bank Holiday Mondays / Part Time Workers

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The Court of Session has affirmed the EAT's decision (see bulletin 19/4/06), holding that an employer who does not give a part-time employee pro rata days off work to reflect Monday bank holidays is not discriminating under the Part Time Workers...

Agency Workers

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The EAT, in two separate judgments (both decisions of HHJ Peter Clark) has deconstructed and emasculated the Court of Appeal's reasoning in Dacas and the other agency worker cases. Hot on the heels of the decisions of Elias P. in James v Greenwich...

The worst case in the world... ever!

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"Mr Khan is by some distance the most obdurate, recalcitrant and openly contemptuous party that any of us have ever had to deal with." (ET decision, quoted at para. 8 of the EAT judgment) For those of us who deal with difficult litigants in...

Statutory Grievance Procedure 2

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What should tribunals do when an ET1 is presented without a grievance letter having been sent (or if the required 28 days has not elapsed)? I understand, anecdotally, that a number of tribunals (including Croydon) are staying such claims, rather than...

Equal Pay

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Yet another EAT decision in the long-running North-East equal pay litigation was handed down last week. In  Bainbridge v Redcar & Cleveland Borough Council (no. 3) , Elias P. held:   employees whose jobs are rated as equivalent under a job...

Statutory Grievance Procedure

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The EAT (Elias P.) has resolved a niggly little point which was causing problems in many tribunal claims. Does the statutory grievance procedure apply when dealing with causes of action other than unfair dismissal, where the essence of the claim is about...

Abolition of Statutory Dispute Resolution Procedures

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The DTI launched a consultation yesterday with a view to abolishing the statutory dismissal and grievance procedures, introduced in 2004. The consultation follows the report from Michael Gibbons on the efficacy of the 2004 Regulations. He commented, "I...

High Court rules Sex Discrimination Laws incompatible with EU Directive

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The High Court has today ruled, in judicial review proceedings brought by the EOC, that the government has failed to implement the European Equal Treatment Directive properly within the Employment Equality (Sex Discrimination) Regulations 2005 so as to...

Whistleblowing: Burden of Proof

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Another important decision continuing the Alexander v Bridgen line of authorities on the impact of s98A(2) of the Employment Rights Act 1996. Langstaff J., wading into the disagreement between Elias P. and HHJ McMullen over the meaning of the phrase...

Statutory Dismissal Procedure

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Another important decision continuing the Alexander v Bridgen line of authorities on the impact of s98A(2) of the Employment Rights Act 1996. Langstaff J., wading into the disagreement between Elias P. and HHJ McMullen over the meaning of the phrase...

Whistleblowing: Kraus v Penna

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The Court of Appeal has handed down a decision overturning the frequently criticised EAT case of Kraus v Penna, which was authority for the proposition that a disclosure is not a 'qualifying disclosure' unless a criminal offence, capable of breach,...

Unions and the BNP

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The ECHR has upheld the right of unions to exclude BNP members from their membership. In ASLEF v UK, the ECHR held that:   Art 11 does not impose an obligation on a union to admit those who do not share their values (para 39); and, the right of...

New ET1 Data Upload Facility

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The Employment Tribunals Service has, today, introduced a data upload facility on its website. The system is designed to handle and process details of large numbers of cases which are being lodged as a group (a multiple) in one submission and has...

Agency Workers

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Hot on the heels of the EAT's decision in James v Greenwich Council (see bulletin 22/12/06) comes another decision on agency workers from a differently constituted division of the EAT. In Craigie v Haringey, Bean J. declines to follow the Court of...

Who is a Worker?

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The EAT has, this morning, handed down a lengthy analysis of the meaning of the word 'worker'. Although the decision is in the context of the minimum wage legislation, it has ramifications for other areas of employment law. Elias P. stated that the...

How not to Inform and Consult

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The CAC has ruled against Macmillan Publishers for failing to respond properly to an employee request for information and consultation. The CAC decision is highly critical of the employer. The case is a salutary lesson in how not to respond to an employee...

Restrictive Covenants

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The Court of Appeal has, this morning, handed down a decision considering the reasonableness of a 12-month post-termination non-competing restrictive covenants for the managing director of an insurance broker. The Court, in a judgment considering many of...

New ET Practice Directions, Scotland

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In 2004, the new procedural rules gave the Presidents of the Employment Tribunals power to issue national Practice Directions. The President in Scotland has recently issued three Practice Directions, available  here  and dealing with: * providing...

Minimum Wage - gas & electricity

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The Court of Appeal has, this morning, handed down its decision in Leisure Employment v HMRC, upholding the decision of the EAT (see bulletin 13/4/06). In a judgment combining policy arguments with a detailed analysis largely lifted from Elias P.'s...

Expired Disciplinary Warnings

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Expired warnings can never be taken into account when deciding whether to dismiss an employee, the EAT has stated in Airbus UK v Webb. Three weeks after a final written warning expired, Mr Webb committed a similar offence (with four colleagues) to that for...

Age Discrimination and Retirement Ages

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The Advocate General has, this morning, delivered his opinion in the Spanish case of Palacios v Cortefiel Servicios SA. In considering whether a national law allowing for compulsory retirement upon reaching a certain age was inconsistent with the EU Equal...

Paying salary as a reasonable adjustment under the DD

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The EAT has handed down a decision confirming that it will not normally be incumbent on employers to pay salary to those on long-term sick, who qualify as disabled, as a reasonable adjustment under the DDA 1995. Reaffirming its earlier decision in...

Working with Cancer

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Cancer is now deemed to be a disability under the DDA 1995. The CIPD, in association with Working with Cancer charity, has produced a superb booklet entitled 'Cancer and working: guidelines for employers, HR and line managers'. It contains guidance...

Statutory Dismissal Procedure

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The EAT has this morning handed down a decision dealing with two matters relating the statutory dismissal procedure:   when there is a concession by the employer that the dismissal is automatically unfair because of failure to comply with the...

When is a contract not a contract?

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The EAT has handed down a useful decision summarising the position as to when a tribunal is entitled to look outside the terms of written documentation to determine the terms of a contract of employment. HHJ Richardson summarised the principles in...

Agency Workers

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The Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill has been introduced in the House of Commons. The Bill:   prohibits direct (but not indirect) discrimination against agency workers, unless objectively justified obliges...

Does Size Really Matter?

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The EAT has handed down judgment in Grant v In 2 Focus, dealing with an ET1 form which was rejected because it was slightly shrunk during the faxing process. The Secretary seemingly concluded that the form was not on 'the prescribed form' due to the...

Contract Variations and TUPE transfers

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The EAT has, today, handed down an interesting decision on contractual variations following a TUPE transfer. The case was decided under TUPE 1981, but the principles remain relevant to TUPE 2006. Elias P. held that the Daddy's Dance Hall principle -...

Polkey: superb summary...

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The EAT has handed down a decision containing a superb summary of the Polkey principle, and its interaction with s98A of the ERA 1996. Importantly, Elias P. (presiding) bangs yet another nail in the coffin of tribunals which avoid making a Polkey reduction...

Sleepy Bus Drivers

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The EAT has handed down a decision dealing with rest breaks for bus drivers (which is of general application for all mobile workers). HHJ Peter Clark held, construing some quite complex provisions of the Working Time Regulations 1998, that:   bus...

Madarassy v Nomura

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The Court of Appeal has, today, handed down its decision in Madarassy v Nomura, dealing with the burden of proof in discrimination cases. Essentially, it upholds the two-stage approach in the House of Lords' judgment in Igen v Wong. To that extent, it...

Unfair Dismissal Time Limits and Citizens Advice Bureaux

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It's been a year or so since this point last cropped up, so we were overdue for another confusing decision... Luckily, though, Lady Smith (sitting in the EAT) has handed down a clear and helpful judgment dealing with whether it is reasonably...

Scope of Unlawful Deductions Claim

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The Court of Appeal has, this morning, handed down an important judgment considering the scope of an unlawful deductions claim. About 600 employees claimed they had not been given adequate bonuses under an implied contractual promise to replicate a share...

Bad Grievances and Constructive Dismissal

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The EAT has handed down a decision dealing with constructive dismissal (in the context of a grievance procedure which was alleged to have been badly conducted). It is authority for two important propositions. First, that the 'range of reasonable...

Increase in Annual Leave Entitlement 2

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Increase in Annual Leave Entitlement 2 Subsequent to my bulletin dated 11th January 2007 (announcing the increase in paid annual leave from 20 days to 28 days), the DTI has now published the consultation paper and the draft Annual Leave (Amendment to Working...

Increase in Annual Leave Entitlement

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The DTI has, this afternoon, announced an increase in minimum holiday entitlement under the Working Time Regulation 1998 from 20 days to 28 days per annum. Some employers currently include the eight bank holidays as part of workers' 20-day annual...

Jealousy Dismissals

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solicitor, in a small practice, dismissed his much younger personal assistant with whom he had been having a sexual relationship. He had become jealous when he discovered she was also having an affair with a University student. The EAT overturned the...

Modified Grievance Procedures

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The EAT has, today, delivered a judgment considering the requirements of the modified grievance procedure. I believe this is the first appellate case dealing with the modified, rather than standard, grievance procedure. HHJ Richardson held that...

£200 fine for non- minimum wage payers

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The DTI has, this morning, published a policy document containing its policy on issuing fines to employers who do not pay the minimum wage. The policy document states that a fine (approx. £207pw for each full time employee) will be levied if the...

SDA Comparators

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Who is the correct comparator when a male manager enters the women’s toilets and shouts at a woman on her break whom he believes to be 'skiving'? The employment tribunal held that when a man enters the women's toilets, that (in itself) is...

Michael Duggan's Case Index

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Michael Duggan of Littleton Chambers has produced the 2006 edition of his annual Case Index. In it, he summarises every important employment law case of 2006 (grouped by subject area), and provides links or references to fuller reports in the ICRs, IRLRs,...