Archive for March, 2008
By Liam - Monday, March 31st, 2008
ACAS has announced that as from tomorrow it will offer conciliation services even after the end of the fixed conciliation period that applies to certain types of claim under the Employment Act 2002.
Fixed conciliation periods were introduced at the same time as the Statutory Grievance Procedure (SGP) and Statutory Disciplinary Procedure (SDP) under the Employment Act 2002. How long will it be before the SGP and SDP go the same way as fixed conciliation periods?
Posted in Statutory Procedures | No comments »
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By Philip - Friday, March 28th, 2008
This case is a reminder that Tribunals do have a costs stick and when it is used it can cause quite a blow to the losing party’s finances.
In this case the employee lost her case of Race Discrimination and ended up with a costs award against her as she had conducted herself unreasonably and parts of the case were misconceived.
In the 2004 rules a Tribunal does have discretion to take account a person’s means in determining whether a costs award should be made and the amount.
In this case the wininng party’s legal costs were £67000.00, the losing party’s declared capital was £40,000.00. The award of £67,000 was still made subject to assessment by a costs judge. So losing that case potentially, subject to a further exercise of discretion, has wiped out the employee’s capital.
Ouch indeed!
Posted in Employment Tribunal Procedure | 2 comments »
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By Sarah - Thursday, March 27th, 2008
One of the tail tail signs of problems with the economy is a rise in redundancies. At PJH Law we have seen a slight increase lately in employees seeking advice following redundancy situations and a slight rise in our employers cost cutting and reducing their head count in certain areas.
This is in line with the CIPD Labour Market Survey which said that this quarter 2 out of 5 employers planned to make redundancies, which was up 8% on the final quarter of 2007. Certainly some companies are experiencing the credit crunch in real terms but as to what is around the corner, there is a conflict as to views on whether we are heading for a recession or not? Watch this space!
Posted in Redundancy | 1 comment »
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By Sarah - Wednesday, March 26th, 2008
I had a case recently where the employer was asking the employee to disclose correspondence between her and the union rep. My first thought was one of horror and that this must be covered by legal privilege. I was wrong and reminded myself of an old case New Victoria Hospital and Ryan from 1993. This is not new law but saves as an important reminder to employers out there who use the services of non-solicitors to obtain legal advice.
In the case Mrs Ryan sought disclosure of correspondence between her employer and a firm of personnel consultants containing confidential legal advice concerning her dismissal and discipline. The EAT held that this was not covered by legal professional privilege as this was restricted to advice between a solicitor or barrister and their client and could not extend to cover personnel consultants.
Thinking it through this case can have quite horrific consequences for employers using the services of personnel consultants who are not solicitors in obtaining employment law advice. I think about the phone calls from employers saying I want to get rid of X what are my options and if this was disclosed in a Tribunal. Of course my conversations with clients are covered by legal privilege, as are those of all my colleagues at PJH Law. The same cannot be said for all those who offer employment law services, as their advice is often given by non-solicitors and employers should stop and think about the consequences of them giving instructions or seeking advice when the contents are not protected.
Now there’s a reason if ever I heard one to seek advice from employment law specialists who are solicitors just like PJH Law rather than other employment law service providers. That is not to mention the personal service and commercial advice etc etc etc you get with us!
Posted in Confidentiality, Employment Tribunal Procedure | 2 comments »
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By Liam - Tuesday, March 25th, 2008
The EAT has considered reasonable adjustments under the Disability Discrimination Act 1995 in The Chief Constable of Lincolnshire Police v Mr Weaver. The EAT held:
1. In assessing the question of reasonable adjustments, the Tribunal should take into account both the effect the adjustment would have on other non-disabled employees and other disabled employees. This was a factor that was taken to consideration in O’Hanlon v Inland Revenue which held that paying disabled employees full pay while off sick was not a reasonable adjustment.
2. The fact that the Employer had adopted deliberately a Provision Criteria or Practice which operated to the disadvantage of disabled people was irrelevant to the question of whether a reasonable adjustment could be made. This must be correct, as there would be no need to consider reasonable adjustments if there was not a Provision, Criterion or Practice (PCP) that put disabled people to a substantial disadvantage, as without such a PCP, there is nothing for which adjustments need to be made!
Posted in Disability Discrimination | 1 comment »
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By Philip - Thursday, March 20th, 2008
This case is for you if you are interested in the intricacies of how the Sex Discrimination Act works and its interplay with the Equal Pay Act.
Involving the long running (and local authority budget sapping) equal pay cases and the indefatigable Stefan Cross , the point in question was whether a section 77 claim under the Sex Discrimination Act could run in parallel with an Equal Pay claim in Tribunal.
For historians of the discrimination legislation, the judgement gives a concise potted history of the relevant law and considers the impact of the 1986 Sex Discrimination Act.
In essence section 77 allows a party to a contract to have it declared void if one of its terms is discriminatory. The contract in question was a collective agreement and the Trade Unions were a party to the litigation.
The EAT allowed the Tribunal to run the Sex Discrimination claim to run in parallel with the Equal Pay claim.
Posted in Sex/Race Discrimination, Uncategorized | 1 comment »
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By Sarah - Wednesday, March 19th, 2008
A survey by an employment service provider (not us) has found that 88% of the 2,266 employers surveyed had at some stage given the job to the most attractive candidate! A similar percentage stated that appearance could affect their decision to offer the job. Whilst ensuring that those who are being interviewed for a office position have turned up dressed appropriately, this approach could land employers in hot water.
This attitude is quite suprising given the anti-discrimination legilsation in place. A person’s looks could be based on their race or gender which would of course be discriminatory. Giving a young female the job for her “sex appeal” over a male applicant could amount to sex discrimination and not choosing the older candidate could be discriminatory on the grounds of age.
When I was applying for training contracts a lot of the City firms asked for a passport photo with the application form. What is that about, if this is not selecting a prospective candidate on looks? Does this still go on?
Posted in Age Discrimination, Religion or Belief Discrimination, Sex/Race Discrimination | No comments »
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By Liam - Tuesday, March 18th, 2008
In Millbrook v Jefferson, the EAT give detailed consideration to an employers investigation in a claim of unfair dismissal of an employee with 20 years’ service following two remarks which were alleged to be racist and bring the company in to disrepute.
The employee admitted making the remarks and claimed that the remarks were flippant - not racist. As the employee admitted the remarks, the employer did not interview all relevant witnesses that were present when the remarks were made. The Tribunal decided the employer should have interviewed all the witnesses to the remarks and in not doing so failed to carry out a proper investigation. The EAT accepted that if the employer took the view that the remarks were made flippantly, as this was admitted by the employee there was nothing to be gained from interviewing the witnesses. However, if the employer took the view the remarks were not made flippantly, it should have interviewed the witnesses in order to gain relevant evidence as to the context of the remarks. The EAT also added that the employer might impose a lesser sanction if the remarks were made flippantly rather than with racist intent and it was therefore relevant as to whether the remarks were flippant or racist.
The lesson from this case is that unless an employer receives a full admission that completely fits in with its belief as to what happened, all relevant witnesses should be interviewed to avoid a finding that the investigation was inadequate.
Posted in Unfair Dismissal | No comments »
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By Philip - Monday, March 17th, 2008
The Deputy Prime Minister has announced that the Government is considering a law to allow race and/or gender to be a factor in employers’ decision making if two candidates are equally qualified. Under the proposal the employer can lawfully choose a woman or the candidate from an ethnic minority if they are equally qualified over the white or male candidate.
Besides the issue as to whether this proposal will assist or harm race relations, there is also the very real, practical issue of the circumstances in which two candidates will be equally qualified.
Many of our larger, employer clients have sophisticated recruitment mechanisms involving the use of assessment centres. How often are candidates tied on the same score? At PJH law we recruit using a scoring system and we have yet to have a tie. It may well be that in practice this permissable tie breaker may not be used, given the infrequency of the tied score.
It is also slightly irksome that the government is proposing this. One of the most insidious ways that discrimination (on grounds of sex or race) manifests itself is appointment by cronyism.
Given that the PM is not limited to choosing mps when drawing up a cabinet (he can choose people who are not mps), it is surprising how many cabinet members are related: Ed Balls and Yvette Cooper, Ed and David Milliband, Wendy and David Alexander for a start. This proposal may be another example of do as I say not as I do. Employers may be more positive about this proposal if the Government led by example, starting with the cabinet.
Posted in Uncategorized | No comments »
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By Philip - Friday, March 14th, 2008
A husband and wife who both work for Strathclyde police are taking their employer to Tribunal alleging that they have been subjected to a detriment on grounds of religion.
The detriment in question was having their personnel record changed from married to married/civil partnership.The change followed the introduction of civil partnerships.
This change of categorisation was offensive to their Catholicism (or so they say) as it equated marital status between man and woman to civil partnership between two people of the same sex. The couple say that there is no comparison.Lumping their marital status in the same category as a civil partnership caused injury to feeling.
We watch this case with interest as the employer’s defence is that if they separate out the categories the employer would (in effect) be disclosing an employee’s particular sexual orientation, which some employees may want keeping confidential.
Another case demonstrating that many new workplace rights may involve the employer managing a balancing exercise between competing employee rights - in this case the right not to be subjected to a detriment on grounds of sexual orientation ( the need to keep it confidential) and the right not to be subject to a detriment on grounds of religious belief .
The case does beg one question: why the employer (other than its pension scheme) needs to know (and retain) the information on marital status /civil partnership in the first place.
Posted in Religion or Belief Discrimination, Sex/Race Discrimination | No comments »
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