Archive for August, 2007
By Liam - Friday, August 31st, 2007
Once again the litigation reducing Statutory Dismissal Procedure has starred in the EAT.
In Wolverhampton University v Dr I Elbeltagi the EAT was asked to consider whether a claim that was presented two days outside the normal three month limitation period was out of time.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 provide for a time extension of a further three months where the Statutory Dismissal procedure (including the outcome of any appeal) had not been completed at the expiry of the normal three month time limit.
In Elbeltagi the Claimant was sent notification of the outcome of his appeal three days before the expiry of the normal limitation period. Under the Dispute Resolution Regulations the time extension therefore did not apply.
The Tribunal failed to consider whether it was reasonably practicable for the Claimant to present his complaint in those three days. It would only be if it was not reasonably practicable for the claim to be presented within these three days that the Claimant’s claim could be allowed to proceed. The EAT remitted the matter to the Tribunal to consider this point.
Posted in Statutory Procedures | No comments »
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By Liam - Thursday, August 30th, 2007
The statutory dismissal procedure calls for employees to be informed of their right of appeal against dismissal. However, the right need not be communicated in writing.
The decision of a recent Employment Appeal Tribunal in London chaired by the Honourable Lady Smith set aside the judgment at first instance which held that an employee had been automatically unfairly dismissed as she had not been informed of her right to appeal in writing despite admitting in evidence that she was aware of such a right .
Whilst the statutory procedure may not call for the right of appeal to be communicated in writing we believe it is safer to put it in writing, if only for evidential purposes.
Who wants to get to the tribunal door and not have incontrovertible evidence that the employee has been informed of a right of appeal ?
In the same case an uplift of the award at first instance due to the large size of the employer, a lack of consultation and the “shoddy” manner in which the employee had been treated was overturned as such factors were considered irrelevant despite a tribunal not being restricted by legislation from considering all the circumstances of the case.
We think there is a strong possibility that the Employment Appeal Tribunal will be reconsidering the criteria for uplifts of awards in the not too distant future.
Posted in Statutory Procedures | No comments »
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By Liam - Wednesday, August 29th, 2007
Just when we were beginning to think industrial action was in the main consigned to history, up has jumped the Prison Officers’ Association.
Whilst this is unlikely to herald a return to the “winter of discontent”as in the early 1970s it has raised an issue of potential illegality or so says the Government in the persona of Mr Straw who has been successful in obtaining a High Court injunction to stop the strike.
A spokesman for the Ministry of Justice has said the walkout is in breach of the industrial relations legislation though as far as we are aware no specifics have been publicised. The strike is unlikely to be held illegal due to the absence of a ballot as a ballot has taken place with a responce of 87% of members of the P.O.A.
What about the “no strike Agreement”, which the P.O.A. appear to have pulled out of? No strike agreements have been hailed as a “new and realistic approach to industrial relations”, however on this occasion the agreement has been given short shrift. It comes as no surprise that no strike agreements were introduced under the Conservative Government in 1994 and repealed by Labour with the objective of “improving industrial reations”!
It would seem that the Prison Officers Association gave notice of their intention to breach the no strike agreement in June of this year which is something short of the 12 months required.
The legality of the P.O.A.’s actions came under the watchful eye of Mr Justice Ramsey earlier today and the injunction was granted with the words”The administration of the prison service as part of the administration of justice in the country requires the grant of the injunction”. If the prison officers fail to heed the orders coming out of the High Court then contempt proceedings may follow which could result in prison officers seeing the other side of the cell doors!
Posted in Trade Unions | No comments »
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By Sarah - Tuesday, August 28th, 2007
New research has found that nearly a third of British workers admit to moonlighting. Of these around 47% say they do it for the money, 25% as their talents are not recognised in their day job and 20% to broaden their horizons.
According to the survey, most workers keep their employers in the dark about their behaviour with 70% saying that their main employer was unaware of their other jobs. Of those surveyed 43% stated that holding multiple jobs was forbidden by their main employer.
It is not uncommon for there to be such clauses in contracts of employments, which require employees to devote their whole time to the main employer and not to hold other employment. Working a few hours in a bar at the weekend may not cause many employers too much of a problem but an issue can arise however in a number of ways.
The first way, is where the second job starts to impact on the first job. Ways we have seen this occur are with nightclub doormen or other moonlighting which is just that. The employee then finds it difficult to get to work on time or pulls false sickness etc to rest. These are of course matters of conduct which could land an employee in disciplinary proceedings.
The second way this can impact on the first job, is where the employee is working for a competitor or in a way which which may be detrimental to the business. Where the contract expressly forbids such action, this again may be a disciplinary matter. The other issue is where the employee is not taking sufficient rest periods between jobs which can impact on their health and safety.
The issue of moonlighting can be a difficult one to manage. Share your experiences with us.
Posted in Breach of Contract, Health and Safety | 1 comment »
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By Liam - Friday, August 24th, 2007
Birthday’s at PJH Law come in pairs. Philip and Sarah are both another year older and another year wiser tomorrow.
Happy Birthday to both of them for tomorrow!
Posted in PJH Law News | 1 comment »
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By Liam - Thursday, August 23rd, 2007
Company owners by definition hold at least one share in the Company and if they work for the benefit of the company they could be construed as employees.
If a shareholder works day to day for the Company (under a contract of service) they may be an employee.
This interesting observation becomes relevant when complying with the Health and Safety at Work Act 1974 to produce an appropriate policy. Take a small company with 2 shareholders that work for the company each day and 4 employees. On face value the exemption of fewer than 5 employees may appear to apply, as many owner-employees do not see themselves as employees. However, in reality it will not as the shareholders who work for the Company may be, in law, employees and therefore a policy will be required.
Beware all you owners of small Companies! Remember to count yourself!
Posted in Miscellaneous | 1 comment »
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By Sarah - Wednesday, August 22nd, 2007
An executive was dismissed four months before the transfer of undertaking took place. The male brought a claim for unfair dismissal and race discrimination and the Tribunal held that the dismissal was in anticipation of the transfer! It held the transferee liable both for automatic unfair dismissal and for the transferor’s pre-transfer discrimination.
The first issue for the EAT was whether the transferor had the right to appeal notwithstanding the Tribunal’s ruling that the transferee was liable. The EAT ruled on this preliminary point that it did have the right, since if the Tribunal’s decision was overturned liability would revert back to the transferor. You can read the full decision here.
You may wonder why the transferor would wish to get involved since the transferee was the one against whom the award was made. Well I suspect it related to indemnities given by the transferor to the transferee relating to such conduct matters pre-transfer. The case is interesting from the angle of time between dismissal and transfer and a reminder of the importance of effective indemnities.
Posted in Sex/Race Discrimination, TUPE, Unfair Dismissal | No comments »
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By Liam - Tuesday, August 21st, 2007
Back in March, this blog reported the EAT decision in Mercy v Northgate HR Ltd (see http://www.pjhlaw.co.uk/blog/individuals-can-not-bring-a-claim-for-a-protective-award/).
Leave to appeal this important decision has been granted by the Court of Appeal.
Will the Court of Appeal overturn the decision of the EAT and hold that an individual (as well as a union or elected representatives) can bring a claim for a protective award in redundancy cases because of a failure (that affected the individual) to consult with representatives in accordance with TULR(C)A 1992?
The case should be heard before the Court of Appeal later this year or early in 2008 - watch this space for more news!
Posted in Redundancy | No comments »
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By Sarah - Monday, August 20th, 2007
The controversial statutory dismissal procedures remain in force but there has been little case law to assist practitioners with whether the uplift for failing to follow the procedures should be 10%, 50% or somewhere in between. When acting for employers in either procedure we always plead 50% reduction for employees failure and likewise when acting for employees when we say 50% uplift for employers failure. In the cases we have seen before the Tribunal the amount of the uplift/reduction varies wildly.
There has now been a case before the Employment Appeal Tribunal on the issue of uplift and Polkey deductions. You can read it here. The Tribunal in this case only applied an uplift of 10% which was appealed but the Employment Appeal Tribunal said that the Tribunal has a broad discretion and the Court would be reluctant to interfere with that discretion. What is your experience of the awards?
Posted in Employment Tribunal Procedure, Unfair Dismissal | No comments »
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By Sarah - Friday, August 17th, 2007
This Appeal makes for some interesting reading particularly if you are considering bringing a case to Tribunal. It emphasises the need for the Claimant to raise all or any grievances promptly before issuing a claim in relation to their case rather than halfway through the hearing process. The law is nothing new but perhaps a reminder of the employee’s obligations. A grievance must be raised promptly, cover all the issues and be issued before the Claim form is.
As the Employment Appeal Tribunal outlined, the ET1 is where the opportunity should be taken to refer, in as much detail, to any actual allegations you wish to bring to the Tribunal. Simply ticking the box which best describes your situation, which in this case was ‘discrimination’ is not enough as the employer needs more detail in order to respond. If you have not raised a grievance first then allegations of discrmination should not be accepted.
Posted in Age Discrimination, Employment Tribunal Procedure, Religion or Belief Discrimination, Sex/Race Discrimination, Statutory Procedures | No comments »
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