Archive for January, 2008
By Philip - Thursday, January 10th, 2008
As you may be aware Tribunal Chairmen have changed titles, they are now known as Employment Judges, whether anything should be read into the change of titles is a moot point. One interpretation could be that Tribunal proceedings are now very similar to other legal proceedings and therefore the change of title reflects that similarity.
With the possible advent of the requirement to mediate before litigating employment disputes, Employment Judges may be less busy with humdrum cases that will be mediated, and more busy with meatier cases than cannot be mediated.
A case reported here illustrates the point of the similarity between the Tribunal system and the County Court, a claim of race discrimination was struck out at a PHR Stage (ie very early on) without a full hearing of the evidence. This would not have happened 10 years ago but is becoming more frequent as the Tribunal rules, recently introduced, allow for a greater flexing of judicial muscle. Weak cases will and do get thrown out early.
In this case, a job offer, conditional on satisfactory references, was withdrawn when a previous employer, a firm of solicitors as it happened, refused to give a reference. Clearly, or so the Judge hearing the PHR thought, there was no issue of discrimination as the condition of employment had not been met. No reference led to no job offer. There was absolutely no evidence that a white employee would have been treated any differently.
10 years ago this claim would have trundled along to a full hearing, costing everyone a vast amount of time and money, but with the same result.
Employers say that they are frustrated that weak cases aren’t being weeded out early, this case illustrates that the tide has turned, weak cases are being weeded out early, without a long and expensive process (and rightly so.)The key though is that only weak cases where the facts aren’t in dispute can be weeded out early.
Where the facts are in dispute, no one, including an Employment Judge,can determine whether a case is weak or not until all the evidence is heard and the factual disputes resolved.
Posted in Employment Tribunal Procedure | 1 comment »
Similar Posts:
By Liam - Tuesday, January 8th, 2008
PJH Law’s annual Seminar is now only a couple of weeks away (the morning of Thursday 24 January 2007) at the Holiday Inn Peterborough West (formerly the Moat House) in Peterborough. There are still a few places available.
The seminar will cover business immigration (employing non-UK nationals), recent changes in Employment Law and also forthcoming employment law changes including the long awaited repeal of the Statutory Dismissal Procedure.
The cost for the seminar is £25 per person including refreshments and members of the CIPD can use the Seminar in their CPD portfolios.
Call Linda on 0870 350 5805 to reserve your place!
Posted in Training | No comments »
Similar Posts:
By Philip - Monday, January 7th, 2008
A protective award is now something of a misnomer following the Susie Radin case.
Where an employer fails to consult where the employer is proposing to make 20+ or 100+ employees redundant, then a Trade Union, an employee representative, or an employee can apply to a Tribunal for a protective award.
Under section 188 where there are more than twenty redundancies but fewer than 99 redundancies then the obligation to consult arises 30 days before the first proposed dismissal by redundancy.
Under section 188 where there are more than 99 redundancies then the obligation to consult arises no later than 90 days before the first proposed dismissal by redundancy.
If you are logical, an employee who is dismissed without collective consultation (where there are fewer than 99 redundancies in total) has missed out on at most a further 30 days pay as proper consultation collectively would have lasted a maximum of 30 days.
Being EU law, a more nuanced approach is taken where the failure by the employer to consult is looked at rather than the loss to the employee caused by that failure. If the failure to consult is total (ie there was no real attempt to consult collectively) then the starting point is a punitive penalty of 90 days protective award.
In the case reported here the Employment Appeal Tribunal awarded 90 days protective award in a case involving fewer than 99 redundancies, thus, arguably making the affected employees better off financially through their employer’s default. Had proper consultation taken place they would have gained a maximum of a further 30 days pay.
Perhaps the protective award should be re-named the punitive award as this seems to be a closer and more accurate description.
Posted in Redundancy Payment | No comments »
Similar Posts:
By Philip - Friday, January 4th, 2008
Those of you who remember this post will remember that Mr and Mrs Sting lost the case brought by their cook for unfair dismissal and sex discrimination.
The decision was appealed and the appeal is reported here. The outcome of the appeal was that the award remained but some parts of the decision were overturned. Not that the monetary award will make much of a dent in Sting’s bank balance, although, no doubt, certain points of principle were at stake.
The case is a nice reminder that the rule of law is alive and well. Everyone, no matter how rich and famous, is subject to the law of the land (in this case employment law), and that inequality of resources, in terms of buying legal fire power, had, it would appear, very little effect on the outcome of the case.
Posted in Sex/Race Discrimination, Unfair Dismissal | No comments »
Similar Posts:
By Liam - Thursday, January 3rd, 2008
For dismissals occurring on or after 1 February 2008, the maximum compensatory award for Unfair Dismissal is set to increase to £63,000.00 and the cap on a week’s pay (used to calculate Statutory Redundancy Pay and the Basic Award for Unfair Dismissal for those who earn in excess of the cap) is set to increase to £330.00.
Various other limits are also increasing, such as the rate for guarantee pay and the minimum amount for Basic Awards in certain types of case.
Full details can be found here.
Posted in Redundancy, Redundancy Payment, Unfair Dismissal | No comments »
Similar Posts:
By Philip - Wednesday, January 2nd, 2008
To our readers. Well 2008 has certainly started with fireworks down at the EAT.
One query that often arises is whether TUPE applies cross border : ie closing down your UK call centre and opening up one in Bombay.
The EAT has held that TUPE can potentially apply to cross border transfers. Read it here
Posted in TUPE | No comments »
Similar Posts:
