Archive for April, 2007
By Liam - Monday, April 30th, 2007
Under the Data Protection Act 1998 (DPA) there is a transitional period for manual (i.e. non computerised) data. The exemption exempts data from:
- the Frist Principle except Part II, Schedule I, paragraphs 2 and 3 of the fair processing requirements of the Act (3.1.7.1)
- the Second Principle (3.2 - processing for specified and lawful purposes)
- the Third Principle (3.3 - processing not to be excessive),
- the Fourth Principle 3.4 - data to be up to date and accurate)
- the Fifth Principle (3.5 - data not to be kept for excessive time)
- section 14 subsections (1) to (3) (court orders to deal with inaccurate data)
(the references in brackets are to paragraphs in the ICO guide)
This exemption ends on 23 October 2007. Until that date, manual data that was in manual system before 24 October 1998 is exempt from the above provisions of the DPA. Data added on or after 24 October 1998 is not (and never has been) exempt, and neither is data where the way in which the data is processed has changed since October 1998.
What does this mean? We recommend that you firstly identify what data you hold that is subject to the DPA. Once you have done this, check whether you can comply with all aspects of the DPA (in particular the 8 principles) and within the necessary time limits (e.g. 40 days for Subject Access Requests). If you can comply with the 8 principles using manual filing systems, we cannot see a problem with this. However, very large manual systems may have problems complying with certain provisions such as time limits or security requirements.
Posted in Data Protection | No comments »
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By Liam - Friday, April 27th, 2007
The EAT have held in BLACKFORD FARMS LTD v MR C MULQUEENEY that a failure to pay the NMW can be brought as a breach of contract claim or as a deduction from wages claim. This confirms that employers’ liability for such claims could date back as far as 6 years rather than the three months that would apply to most Tribunal claims (subject to time extensions in specific circumstances).
The EAT also emphasised that ET1 forms should make it clear under what cause of action a claim is brought (deductions or breach of contract). In this case, the claim was held to have been brought as a deductions claim as the Claimant had not made it clear that it was intended to be a breach of contract claim. The claim was therefore out of time.
Posted in Breach of Contract, Employment Tribunal Procedure, National Minimum Wage | No comments »
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By Philip - Thursday, April 26th, 2007
The statutory dismissal procedure has been in force for a couple of years now. It lays down a three step minimum procedure that must be followed for almost all dismissals, with limited exceptions.
Most employers have little difficulty in meeting the requirements of the statutory procedure. Smaller employers find it more difficult, mainly because they are unaware of it. A small employer in dismissing an employee may, normally by accident, follow 2/3rds of the statutory procedure. By not following 3/3rds they have automatically unfairly dismissed the employee under section 98A.
For employment law anoraks ( I hope there are some reading)this is where it gets interesting. Sections 98A to 105 of the Employment Rights Act provide for a number of categories of automatically unfair dismissal. For example it is automatically unfair dismissal to dismiss an employee (or select him for redundancy)on grounds of his or her complaints about health and safety.
If you fail to follow the statutory dismissal procedure the dismissal is automatically unfair under section 98A. As it is automatically unfair a Tribunal has no need to consider whether the employer had a fair reason for dismissal or acted reasonably under section 98 (4). The interesting thing here though is that for all other categories of automatically unfair dismissal a Tribunal has to find a reason for dismissal which is unlawful ie dismissing an employee for working time reasons, or selecting him or her for redundancy for those reasons. Section 98A (the section dealing with statutory dismissal procedure) does not require the Tribunal to consider the reason for dismissal. The dismissal is automatically unfair for failure to follow the statutory dismissal procedure.Full stop.
Arriving at the key point (at last!) as the Tribunal does not have to find a reason for dismissal in cases where the statutory dismissal procedure has not been followed, is the Tribunal allowed to offset a redundancy payment against the basic award? On a strict reading of section 122 (4) the Tribunal cannot offset any redundancy payment against the basic award as there will be no reason for dismissal found.
Am I right or am I guilty of over analysis? Your thoughts please.
Posted in Employment Tribunal Procedure | 1 comment »
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By Liam - Wednesday, April 25th, 2007
The EAT have handed down their Judgment in Ingram v Bristol Street Parts in which it was held (although technically not binding on other Courts and Tribunals) that even if an employee has been automatically unfairly dismissed by virtue of the employer’s failure to follow the statutory dismissal procedure, it is still possible for the compensatory award to be decreased by up to 100% due to the employee’s contributory conduct (in this case concealing theft of money for which the employee was responsible).
Posted in Unfair Dismissal | No comments »
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By Liam - Tuesday, April 24th, 2007
In what must be the first predictable decision on the Statutory Dismissal and Grievance Procedures, the EAT in JONES v D W THOMSON & L M THOMSON t/a PROPERTY IMPROVEMENTS has held that employees are not entitled to a time limit extension for Unfair Dismissal claims if they have raised a grievance. Although there is a lot of ambiguity surrounding the procedures, what is clear is that the extension rules for dismissals are totally separate and distinct from the extension rules for grievances. The two must not be conflated, and raising a grievance does not give an extension of time for Unfair Dismissal claims.
The same case also considers whether a letter of dismissal is sufficiently clear and unambiguous to dismiss properly an employee on a date specified in the letter. The letter read:
“I now write formally to confirm that you have been selected for redundancy and will leave our employment on 06.09.05. You are entitled to five weeks’ notice, which will be paid in lieu.”
The employee was sent a P45 some time after this letter, which specified a latter termination date (at the end of the period over which the PILON payment was made). The EAT held that it was irrelevant what the P45 said, because the letter should be read objectively as it would be by an ordinary reasonable employee when the letter was sent - not with the benefit of other documents such as the P45 which was sent some time later. Despite the contradictory reference to notice and PILON, the EAT held it was clear the employee would leave on the date specified in the letter.
Notwithstanding this case, we would still recommend that dismissal letters do not confuse the issue of notice and PILON. For example “We write to confirm that you will be dismissed with effect from today, and will be paid in lieu of notice. Your last day of employment will therefore be X.”
Posted in Statutory Procedures, Unfair Dismissal | No comments »
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By Liam - Monday, April 23rd, 2007
Back in January 2007, this Blog posted about a TUPE case that held only post Transfer changes that are detrimental to the employee are void - changes that are beneficial to the employee are allowed (see here).
The DTI has now issued a guide for Employers, Employees and Representatives which reflects this new case. As one might expect for something TUPE related, the guide is not short but is nonetheless helpful background reading.
If you would like to know more about TUPE 2006, why not listen to our podcast
Posted in TUPE | 4 comments »
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By Sarah - Friday, April 20th, 2007
It has always been the case that using the “some other substantial reason” for a dismissal smacks a little of desperation and a when all else fails approach. It is of course high risk for employers and there are few examples where relying on this form of dismissal is a good idea. A recent case at the Employment Appeal Tribunal involved an employee who was dismissed for refusing to accept changes to her terms and conditions. The employer argued that the dismissal was for some other substantial reason and the employee won her unfair dismissal case. As always it is fact sensitive but a reminder that using this reason for dismissal leaves you with an uphill struggle!
Posted in Unfair Dismissal | No comments »
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By Philip - Thursday, April 19th, 2007
Liam takes part in a podcast at http://charonqc.wordpress.com/ Click the bottom of the post. He is bowled some difficult balls by CharonQC but manages to acquit himself well. We promise not to let the fame go to Liam’s head. The interview was conducted over the phone but sounds as if Liam is in a studio, so hats off to CharonQC ’s technical wizadry.
As we have not met CharonQC we will have to make do with visualising him. My own vision of Charon QC, extracted from his mellifulous tones, is as follows: distinguished looking, grey hair, glasses on the end of the nose, the occasional raised eye brow (Roger Moore style), with glass of red in one hand and silk cut in the other. Probably slightly eccentric with a streak of anti-authority about him. Anyone who knows him or have met him, am I close?
Posted in PJH Law News | 2 comments »
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By Liam - Wednesday, April 18th, 2007
A decision by the European Court of Justice in Copeland v UK earlier this month confirms that employers can not behave like the Spooks on the BBC TV show. Bugging offices, monitoring offices and eavesdropping on phone lines without warning is a breach of Article 8 of the European Convention on Human Rights.
The case highlights the importance of Internet and E-mail Acceptable Use Policies (AUPs) which inform employees that their internet, e-mail and telephone use may be monitored. A lot of employers will also choose not to allow personal use of its resources at all to eliminate any privacy issues.
Posted in Confidentiality | 1 comment »
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By Sarah - Tuesday, April 17th, 2007
Another decision of the Employment Appeal Tribunal upheld an appeal on the Employment Tribunal’s interpretation of the Dispute Resolution Regulations. The Claimant had issued a Claim for Disability Discrimination and Unfair Dismissal but had not raised a grievance in respect of the disability. Rather than make the Claimant issue a fresh claim once the statutory procedure had been complied with but instead obviously in a moment of kindness the ET stayed the Claim pending compliance. The EAT upheld the employer’s appeal on this issue. You can read the full decision here. This is yet another decision concerning the statutory procedures and the wierd and wacky interpretations we have to work with. Of course those of you who read our blog regularly will have seen that consultation is underway about the procedures and the possibility that they will be repealed.
Posted in Statutory Procedures | No comments »
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