Archive for June, 2008
By Jenny - Monday, June 30th, 2008
A teenager has taken her claim to the High Court in relation to the right to wear a bangle to school which she says is a symbol of faith.
Sarika Watkins-Singh was excluded from Aberdare Girls’ School in South Wales in November 2007 because she refused to take off the bangle known as the Kara. The school has said that pupils are banned from wearing most jewellery. The hearing will look into whether the school’s decision was justified.
Human rights group Liberty, which is supporting Sarika’s case claims that by refusing to let her wear the Kara Aberdare School has breached race, equality and human rights laws.
The 14 year old is claiming unlawful discrimination. The hearing is set for three days.
Employment practitioners will remember the case of Eweida v British Airways Plc in which an employee brought a claim to the Tribunal after her employers banned her from wearing a small cross with her uniform. The Tribunal actually dismissed the claim and held that BA’s policy did not directly discriminate against Ms Eweida on religious grounds because anyone wearing such a symbol, or indeed jewellery of any kind, would have been treated the same way regardless of their religion. In the end Ms Eweida was allowed to wear a cross as BA reviewed its policy.
Posted in Miscellaneous | No comments »
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By Philip - Friday, June 27th, 2008
……….Or so I learnt when I was growing up. The most controversial measure in the Equality Bill is the proposal to make a limited form of positive discrimination lawful.
The proposal is to allow employers to discriminate in favour of under represented groups where two candidates for selection or promotion are equally well qualified.
Aside from the philisophical point about using discrimination to combat discrimination, employment lawyers can foresee that this proposal will lead to more disputes not fewer. Here are a few problems:
1.Where two female candidates apply for a promotion, one heterosexual one lesbian- will it be permissible to discriminate in favour of the lesbian if the fact or perception is that lesbians are under represented at that particular level? If so will employees game the system by lying about their sexual orientation to get on?
2. If one black and one white employee are tied in a redundancy selection exercise will it be permissible to use race as a tie breaker?
3. If two pupils, one muslim, one christian, are tied in a school entrance exam, say an 11+, will it be permissible for race to be a tie breaker on the basis of under representation?
As you can see this has the potential of opening a huge can of worms and be detrimental to race relations. Surely it’s better to insist that employers recruit, promote and retain on merit regardless of their employees’ gender, orientation or race? Isn’t that the ideal the government should be aspiring to? When will this social engineering end?
Posted in Uncategorized | No comments »
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By Sarah - Friday, June 27th, 2008
Equality minister Harriet Harman has set out her plans for the equality bill. You can watch her speech here.
In summary, the plans are designed to stamp out the pay divide and will be brought about in three ways:
1. In the use of the proposed Equality Bill.
2. By using secondary legislation.
3. By action in by the newly formed Equality and Human Rights Commission.
It would take another 80 years, Harman says, to equalise pay so they are going to make it compulsory for companies to report on equality issues by gender pay for their employees to see in the same way that hospitals and schools publish league tables on waiting lists and exam results.
The plan is to bring equality in five ways. Firstly be using the public procurement process. Presumably this will mean it will be harder for companies to secure public sector contracts unless they are seen to be good role models.
Secondly, they will outlaw clauses in the employment contracts which prohibit employees from talking to one another about their pay. Some employers use these clauses not to allow a gender divide but to stop those in similar positions finding out each others salary to get into a bidding war.
The third measure is to give the Employment Tribunal extended powers to make recommendations not just in relation to the successful complainant but to all affected employees. Whether this will extend their powers in the same way as protective awards remains to be seen.
Next the Equalities and Human Rights Commission is to use its statutory powers of investigation. Harman says that they will start with the financial sector in a bid to outlaw sexism in the city. This is something this firm has seen first hand for one of its employees against a large UK plc (and won I hasten to add!)
The final measure relates to the reporting provisions I have set out above. It therefore appears that we have some important changes to employment legislation on the horizon so watch this space for further updates. We will also be launching our Employment law training programme in early July which will enable you to keep up to date.
Posted in Age Discrimination, Disability Discrimination, Equal Pay, Religion or Belief Discrimination, Sex/Race Discrimination | No comments »
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By Jenny - Thursday, June 26th, 2008
The Ministry of Justice has recently announced that there will be a research based review of ‘no win no fee’ funding arrangements which are used in personal injury claims, employment claims and defamation claims. Justice Minister Bridget Prentice said ‘No win no fee arrangements are vital in helping to give the public a voice in courts. However, we are aware of growing concerns that they may not always be operating in the interest of access to justice.’
Solicitors are currently able to take on Employment Tribunal work on a contingency fee agreement basis (a type of no win no fee). This means that if the Claimant is successful at Tribunal the solicitor will take a percentage of any award they receive. The percentage will vary according to the agreement made between the solicitor and the Claimant. If the Claimant is unsuccessful the solicitor doesn’t get paid. The Respondent will pay for his own legal costs (save for in exceptional circumstances). ‘No win no fee’ arrangements currently provide access to justice for those who cannot afford to pursue litigation paying on a private basis.
We will have to see what the results say (which are due in the Autumn) but I think most people would agree that the removal of contingency fee funding arrangements for employment claims will make it much more difficult for employees to bring claims to the Tribunal. Paying on a private basis simply isn’t an option for a lot of Claimants.
Posted in Government Publications | No comments »
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By Liam - Wednesday, June 25th, 2008
It is a well known fact that the time limit for an unfair dismissal claim is three months from the Effective Date of Termination (EDT).
The Tribunal does have a discretion to extend the time limit in cases where it was not reasonably practicable to present a complaint within the usual three month period.
In London Borough of Islington v Brown the EAT upheld an employer’s appeal against a decision that the Claimant could bring her claim almost 18 months late because she was suffering from depression and because she thought her union had done it.
Case law is clear that a failure by a union or solicitor acting on behalf of a Claimant is to be attributed to the Claimant herself. There was no adequate reason for the union’s failure to present the complaint on time. Two union officials each thought the other had done it. Accordingly the EAT held her complaint was out of time (whether the Claimant has a cause of action against her union in negligence is another matter).
Posted in Employment Tribunal Procedure | No comments »
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By Sarah - Tuesday, June 24th, 2008
As part of the Gibbons review the Government decided to invest additional resources in the ACAS conciliation scheme. We have already seen that the previously fixed periods of conciliation have been removed.
ACAS are currently piloting pre-claim conciliation in Nottingham, Manchester and Newcastle with a view to it being rolled out across the UK from April 2009. It will work in much the same way as post-claim conciliation. However, ACAS will look out for callers that fit the criteria and ask them if they are interested in pre-claim conciliation. We will then hear from ACAS conciliators who will try and settle the claim. If this is unsuccessful then the employee can still issue a claim.
We will as always bring you more developments on this issue as they happen but this may be very useful for unfair dismissal cases where the employee is acting in person.
Posted in Unfair Dismissal | No comments »
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By Philip - Monday, June 23rd, 2008
Rebarbative was the description used by an EAT Judge to describe the statutory procedures. The same adjective could apply to the changes made to Tribunal procedure which happened at the same time.
The case illustrates the mess an employer can get into if unawares. A short service employee was dismissed before the one year qualifying period. He issues two claims to the Tribunal-one for a health and safety related dismissal, the other for sex discrimination. The latter was initially refused by the Tribunal as the employee had failed to lodge a grievance, it is re-presented after a grievance is lodged.
The employer wrongly thinks that the expiry date to present a response is the date 28 days after receiving the second claim. This is understandable as the employer sees one employee bringing a claim to Tribunal and thinks one comprehensive response will cover both claims.
Wrong! As it turns out the Tribunal does not receive a response to the first claim, enters a default judgement and awards a £16k award to the employee at the remedies hearing. The employer is debarred from defending as no response has been submitted.
£16k is quite a sum for a small, 4 employee Company. Needless to say, the employer appeals and wins its appeal.
The message from the case is read Tribunal correspondence very carefully as otherwise the Tribunal can enter default judgement if a deadline is inadvertently missed.
Posted in Employment Tribunal Procedure | No comments »
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