May 9th, 2008 by Liam
In Miles v Linkage Community Trust Limited, the EAT have held that employers do not infringe the Working Time Regulations in failing to give employees a daily rest break of 11 hours duration unless and until the employee objects to the failure to give such a break. Once the employee asserts his right to the break and is declined that right, the employer infringes the Working Time Regulations.
In Miles, the Tribunal held, and the EAT agreed, that it is possible for no award to be made even though a finding of breach of the regulations had been made.
This decision does seem to remove the teeth from the WTR, although as long as the Tribunal has a discretion to make an award (which it does) this should prevent flagrant breaches of the regulations.
Posted in Working Time Regs | No comments »
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May 8th, 2008 by Liam
The EAT have recently heard an appeal from an Appellant that the Tribunal considered to be “delusional” after he claimed that his dismissal was brought about by Jehovah’s Witnesses “spreading rumours about his sexuality; preventing witnesses from assisting him; installing secret cameras in changing rooms and in his room; falsely imprisoning him in a Psychiatric Hospital; and showing the tapes to the then Prime Minister, Tony Blair.”
The Tribunal ordered a report in to the Claimant’s mental capacity to represent himself. The claimant appealed on a number of grounds including that:
- The Tribunal did not have the right to enquire in to his mental health
- The “Chairperson ruled after “PHR” that Respondent pays compensation for allegations they are guilty of. She concluded that we await her order to that effect. Claim was not stayed. Judgment is in total variance to what transpired during the hearing. Therefore a forgery.”
The EAT upheld the appeal relating to the Tribunal’s power to enquire in to his mental health. It held that the Tribunal had no right to so enquire. However, the Claimant’s appeal that the judgment was a forgery and that instead of staying the claim it awarded him compensation failed. There was no evidence to support this contention!
Posted in Funnies | No comments »
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May 7th, 2008 by Emma
Lord Woolf’s report published yesterday which reviewed BAE’s current policies and practices found that there were no ethical standards embedded in the company. BAE is now to appoint an ethics monitor to oversee a new code of conduct at the company.
The report stated that “critically, both the chairman and the chief executive, in discussions with us, acknowledged that the company did not in the past pay sufficient attention to ethical standards and avoid activities that had the potential to give rise to reputational damage”.
It seems pretty shocking that such a huge company has had no code of ethical standards in place up to now and one wonders whether they would be taking the action they are taking had it not been for the recommendation of this report so to do.
For a summary of the report see here.
Posted in Miscellaneous | No comments »
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May 6th, 2008 by Sarah
The BBC has revealed stats to show that 137 employers were caught in March and April this year for employing illegal immigrants. This is double the figure caught in 2007 and double the number of prosecutions than over the past decade. In the past two months over £500,000 has been handed out in fines.
You can read the full story here
We reported back in early March that the laws had changed and that the change could affect HR directors and land companies in hot water. It would seem not everyone reads our blog! If you are worried about your business immigration policy or lack of, give us a call. We also have experience of compliance for what were Home Office audits.
Posted in Business Immigration | No comments »
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May 2nd, 2008 by Sarah
Following the proposed changes to the statutory disciplinary and grievance procedures, ACAS have issued a revised Code of Practice. Consultation opens until 25th July so employers have your say here
Employment Tribunals will be using the final version for guidance so have your say now!
Posted in Statutory Procedures | No comments »
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May 1st, 2008 by Emma
There have been two recent cases, one in the EAT and the other in the Court of Appeal considering various issues about the statutory dispute resolution procedures.
The Court of Appeal case (see here) found for the employee and held that a letter raising a grievance sent within the 3 month period following dismissal amounted to a non-statutory appeal against dismissal and thus extended the limitation period for bringing a claim for unfair dismissal. The Court of Appeal applied a broad definition to the term “grievance” on the basis that an employee will not approach the process with the technical knowledge of an employment lawyer.
The EAT decision (see here) considered the applicability of the modified grievance procedure and the level of detail required in a grievance raised using the modified procedure. Where the modified procedure is used the grievance is dealt with in writing only and the legislation requires the employee not only to set out the grievance but the basis for it (this is more detail that the standard procedure requires). It found (upholding the Employment Tribunal’s decision) that where a grievance under the modified procedure did not identify the basis of the claims which were subsequently lodged with the Tribunal, the Tribunal had no jurisdiction to hear the claims advanced.
Aren’t we pleased that these statutory procedures are going to be dispensed with (even, or perhaps particularly, we employment lawyers ….)?
Posted in Statutory Procedures | No comments »
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April 30th, 2008 by Philip
Just as, so the old joke goes, there is a gap in the performance of the England Football team- Excellent on paper, rubbish on grass, there can sometimes be a gap between what a written contract says and how it is performed, or perceived to be performed.
Differences between written contract terms and actual performance of the contract lies at the heart of the self-employed/ employee debate raging in some quarters of employment law.
If your contract for services (self employed contract) says one party is not obliged to offer the other party work and that party is not obliged to accept any work offered then the absence of mutuality of obligation means no employment status. However if in practice work is given regularly and accepted regularly does this mutate the contract into one of employee/employer?
The Court of Appeal has grappled with the issue and comes down mostly in favour of the written terms rather than the perceived performance. Read it here. What’s in the written contract is therefore vitally important.
Posted in Employment Tribunal Procedure | No comments »
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April 29th, 2008 by Sarah
Following on from my blog last week about employer’s conduct during a hearing this time we have another EAT decision about conduct by an employer.
This time the Claimant was claiming disability discriminination. The Employer again subjected him to abuse and intimidation calculated to deter him from continuing with the case after the initial hearing, which was set to determine whether or not the employee was disabled.
The Claimant sought to raise the complaints as fresh proceedings before the Employment Tribunal. The Chairman sent it back saying that the alleged conduct attracted judicial proceedings immunity. The Claimant appealed to the EAT.
The EAT held that if the conduct was proved it would amount to harassment and it arise out of and be closely connected with the employment relationship thus meaning that it would fall within terms of the DDA and be disability discrimination and the conduct would not attract judicial proceedings immunity.
These cases are quite unusual so to have two in one week is very unusual!
Posted in Disability Discrimination, Employment Tribunal Procedure | No comments »
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April 28th, 2008 by Emma
The TUC is calling on employers to provide better occupational health assistance after it discovered that 175 million days were lost through sickness absence in 2006 (at an estimated cost of £650 per employee). It has published a new educational workbook today on the topic called “Occupational Health: Dealing with the Issues” and plans to train up 15,000 workplace safety representatives to use the workbook and advise employers on how to provide healthier solutions for employees.
See here for more information.
Posted in Sick Pay | No comments »
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April 25th, 2008 by Liam
The EAT have overturned the decision of an Employment Tribunal which made the mistake of substituting its own view for that of the employer. This appears to be a common mistake of Employment Judges. For example here and here.
This time, the Tribunal decided it would have carried out more investigation than the employer, rather than deciding whether the investigation the employer carried out was within the range of objective reasonable responses. The EAT pointed out that the range of reasonable responses test applies as much to investigations as it does to decisions to dismiss. This has been established law since Sainsbury’s Supermarkets Ltd v Hitt.
This confirms that for a dismissal to be unfair by reason of inadequate investigation, it is not sufficient for the Tribunal merely to identify further lines of investigation that the employer could have carried out. The Tribunal must be satisfied that the investigation did not meet the standards that a reasonable employer’s investigation would meet.
Posted in Unfair Dismissal | No comments »
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