Archive for November, 2007
By Philip - Thursday, November 15th, 2007
As we have blogged on before, costs awards in Tribunals are extremely rare events, but they are events that are becoming more common rather than less common.
Costs awards against representatives based on the representative’s conduct of the case are as rare as hens teeth. However in the case recently reported by the EAT, the firm of Solicitors was ordered to pay part of the opposing side’s legal costs based on:
1. Lack of preparation: A statement of one key witness ran to 4 sentences.
2. Lack of disclosure: Relevant documents were not disclosed.
3. Cross examination: This was described as “prolix” (which did have me reaching for my dictionary)but means long winded and verbose. In particular the Tribunal took exception to a robust and overly aggressive cross examination of the Claimant’s alleged promiscuity and attention disorder.
This case should make employment lawyers pause to think. Ensuring your case is well prepared not only ensures your client’s position is well served, it also protects your own position and that of the firm you work for. Sound preparation saves hearing time. Poor preparation lengthens the hearing. Hearings cost public money and if the cost is one representative’s fault then it does seem logical that that firm should pay.
Anyway the case reported here illustrates the maxim of the 5Ps rather well.
Posted in Employment Tribunal Procedure | No comments »
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By Philip - Wednesday, November 14th, 2007
Well it’s a very light news day today. The only point of interest is that the DTI (or the more snappily titled Department for Business Enterprise and Regulatory Reform or BERR for the acronym minded) is running a series of regional roadshows and awareness campaigns, targeting low paid industry sectors. The aim of the initiative is to remind employees of their rights and employers of their responsibilities. The right and responsibility in question is the right to be paid the national minimum wage (or NMW for acronym collectors).
Coupled with this awareness campaign is a coded warning that the enforcement teams will be baring their teeth a little longer and stronger in future. Scrooge employers out there you have been warned.
The enforcement teams could do worse than get out to the fields and factories of the fens, where our east european comrades are breaking their backs and busting their b**ls for wages as low as £2.00 per hour ( or so plenty of clients tell me.)Whether that £2.00 per hour is the genuine free market rate for the job in hand or Rachman-like exploitation by the employer, you the reader can comment on in the comments section below.
Posted in National Minimum Wage | No comments »
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By Philip - Tuesday, November 13th, 2007
How much does the personal style of your hair dresser or barber affect your decision to use their services?
Back in the days when my hair style meant more to me than it does today, I would say that the personal style of a hair dresser or barber was important when exercising my choice as a potential customer. I would not have chosen to have my hair cut by someone sporting a Bobby Charlton comb over or a Michael Bolton mullet for example. Call me vain, if you will!
Without wishing to sound sexist, it is probably a more important consideration for women than men. Based on personal experience, women spend more time and money on their hair than men. No male employee at PJH Law has taken an afternoon off to have their cut although a female employee has. (Are you reading this Rona?)
Furthermore female hairdressers are more likely to have funky hairdoes than their male barber counterparts, who quite often, ironically, are as tonsorially challenged as Right Said Fred
That’s a very long introduction to the case reported here about a claim of Religious Discrimination brought by a Muslim Hairdresser who keeps her hair hidden behind a veil.
As a part of the service sector, a hairdresser is selling the service of a hair cut. Why would you buy a hair cut from someone who places no value on having their hair on open display?No doubt some of the questions the Central London Tribunal has to grapple with in January. It is indeed an irony that issues of personal appearance are taking up more and more of the Tribunals’ time, when the issues usually relate not to dressing in a fashionable way in the style of a celebrity but in dressing to observe one’s particular religion.We’ll keep you posted.
Posted in Religion or Belief Discrimination | No comments »
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By Philip - Monday, November 12th, 2007
Well the first finding of Age Discrimination has been made and it involves a 20 year old, apparently fired for being too young to handle client complaints. The employee worked at a private members club in London called the 8 members club which has 800 members. Read about it here
It’s a salutary reminder to all employers that just because an employee has less than a year’s service, does not mean that he or she can’t come back and bite, particularly where any performance short comings have not been documented.
The ray of hope for the employer is that the award is likely to be low as the employee mitigated her losses pretty quickly, finding a new job, paying more, shortly after she was fired. It’s not a nice first though for the employer, being the first employer to discriminate on grounds of age (or at least the first to be caught)!
Posted in Age Discrimination | No comments »
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By Sarah - Friday, November 9th, 2007
As reported on Wednesday by Liam the Queen’s speech contained a number of proposals for employment law. One of these was that the Government promised to bring forward proposals to help people achieve a better balance between work and family life.
Imelda Walsh, HR Director at Sainsburys, has been tasked by the Government to review how the current right to request to work flexibly can be extended and she will lead the independent review on this issue. The Government’s plan is to extend the right to those with children up to the age of 17. The review is set to report back in the spring of 2008 and then there will formal consultation on the issue. Watch this space for more updates on this and other employment law topics.
Posted in Family Friendly | No comments »
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By Liam - Thursday, November 8th, 2007
The EAT has handed down an interesting judgmenton the subject of rolled up holiday pay. Although the DTI, or BERR to use their new name, say rolled up holiday pay is unlawful (based on a case in the ECJ last year - see http://www.dti.gov.uk/employment/employment-legislation/working-time-regs/rolled-up/page29030.html) the EAT have held that if rolled up holiday pay is paid (which it recognises it shouldn’t be), the amount paid can be offset against any other holiday pay that may be due so the rolled up holiday pay could completely extinguish any right to holiday pay at the time holiday is taken.
It should be noted that rolled up holiday pay can only be offset against other entitlements where there is a mutual agreement for ”genuine payment for holidays representing a true addition to the contractual rate of pay for time worked.” In other words, there must be evidence of a transparent agreement whereby the employee receives an addition to his basic pay for each period worked - for example, £X per hour plus £Y holiday pay or £X per hour of which Y% is holiday pay. It will not be sufficient to take basic pay and say that it includes an element of holiday pay - the holiday pay must be extra.
Posted in Holidays | No comments »
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By Liam - Wednesday, November 7th, 2007
The Queen made her annual speech yesterday, marking the opening of the new Parliamentary Session.
The Speech gives us some hints as to legislative changes that may be made in the near future and that may have implications in the workplace.
The key areas for change include:
- A reform of the law regarding apprenticeships
- Bringing forward proposals to help staff achieve work/life balance
- Imposing a duty on employers to contribute to a good quality workplace pension for employees
The speech does not give any more detail than the above.Watch this Blog for further updates! You can receive updates from this Blog via RSS feed by clicking on the RSS feed button below.
The full speech can be found here.
Posted in Government Publications | No comments »
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By Philip - Tuesday, November 6th, 2007
The case reported here concerns the question of whether an employer can be held vicariously liable for the actions of a third party and thereby constructively dismiss an employee by those actions.
The case involves an employee who worked at her employer’s MD’s home. The employer was a MCA Consulting Limited whose owner and MD was a Mrs Mackenzie. Mr Mackenzie was not employed by MCA Consulting Limited but obviously he did use the Mackenzie family home, which as previously stated, also doubled up as MCA Consulting Limited’s business premises.
In a nutshell Mr Mackenzie did not behave in a polite way towards the Claimant and an example of his behaviour, so the Tribunal found, was when he shouted at her, jabbing his finger, telling her not to smoke at his house.
The answer as to whether the actions of a third party non-employee could give grounds for a constructive dismissal case lay in considering whether the employer could have done anything to stop the acts in question. There was also an implied duty to create a suitable working environment to perform contractual duties. That duty was breached.
Interesting case particularly for smaller, owner managed SME’s where the owner’s partner could be sticking his or her nose in. Could also have implications for larger companies who have employees working on and at customer’s sites.
The moral of the story is manners maketh man, manners and courtesy don’t cost anything, and the lack of them here cost the company an unfair dismissal case.
Posted in Unfair Dismissal | No comments »
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By Liam - Monday, November 5th, 2007
An entrepreneurial second year law student has recently felt the wrath of the EAT here.
The student was charging a client £120.00 per hour to represent him at Tribunal. In typical student fashion, he left things to the last minute. I am not just talking about his assignments. He left his client’s ET1 until the last minute too. Not just the last minute, but the last second before midnight on the last day for presenting the claim. It arrived 9 seconds late. The Tribunal rejected the claim as it was out of time and so did the EAT.
But it didn’t end there for the poor (or not so poor at £120 per hour) law student. Under the Compensation Act 2006 non lawyers charging for their services in Employment Tribunals have to be registered and regulated by the Regulated Claims Management Service. The Law Student was not and has been reported to the Rt Hon Jack Straw MP, Secretary of State for Justice and could face a jail term of up to two years! How’s that for being late with your homework!
Posted in Employment Tribunal Procedure | 1 comment »
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By Philip - Thursday, November 1st, 2007
Some of our readers may have been reading in their newspapers about an attempted rape victim suing a lottery winner for damages for a crime he committed on her 16 years ago. The detail is here. The possible implications for employers are not readily apparent but there are potentially serious consequences, depending on the outcome.
The case is before the House of Lords who have to decide whether to allow the case to hearing as it is 10 years outside the 6 year limitation period to bring claims for damages.
If the House of Lords allow the case and disapply the 6 year limitation period, then employers may need to be careful about keeping records for employees who left more than 6 years ago as, second guessing the decision I know,ex-employees might have the right to bring claims for breach of contract or personal injury outside the 6 year limitation period.
Sticking my neck out, it is for this very reason, I think the House of Lords will find in favour of the criminal rather than the victim. The limitation period is there for a reason. It allows parties to draw a line. If that line shifts then there is considerable scope for uncertainty. The law is there partly to provide certainty. The decision will stick in the craw as the criminal will not have to pay reparation to the victim, despite having the means to do so. The key point is that during the limitation period he did not have the means and was not worth suing. Watch this space
Posted in Breach of Contract | 1 comment »
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