Archive for July, 2008
By Philip - Thursday, July 31st, 2008
………Or in this case the postman.
The EAT in a robust decision rejected two appeal for being late. The time limit for lodging an appeal is 42 days from the date the Tribunal decision was sent to the parties.
The EAT have limited bandwidth to accept late claims.
In both appeals the Appellants’ representatives had sent the appeal papers by post before the time limit had expired.
One had sent it two days before expiry. The postal service was such that the appeal arrived late.
The second appeal was sent originally to the Tribunal office that had made the decision. As the Simpsons may say: Doh! and was sent with an incorrect case number-double doh!
Both parties representatives had to appear on oath at the EAT and be cross examined by the judge to explain their actions.
Needless to say both appeals were out of time.
Points arising:
- The EAT was less than impressed by the fact that one representative had sat on his thumbs for the first five weeks of the 42 limitation period.
- The EAT was less than impressed by the fact that once the appeal was committed to the post, both representatives sat on their “laurels” and did nothing to check that the appeal had arrived.
Learning points:
- Do not leave claims or Appeals to the last moment.
- Do not use the post, unless you use guarenteed next day delivery.
- Check that the office you have sent the claim or appeal to has received it.
Pretty basic stuff but many representatives seem to be hardwired to leave everything until the last moment.
Posted in Employment Tribunal Procedure | 4 comments »
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By Jenny - Wednesday, July 30th, 2008
The Times Newspaper has today reported that there has been an increase in redundancies due to downsizing by the construction, financial and property sectors.
An increase in redundancies won’t be news to Employment Solicitors. We can definitely say that here at PJH Law we have seen a notable increase in employers requesting advice on handling a restructure. Many employers are now preferring to use compromise agreements to terminate employment. The employee essentially signs away their rights to bring a claim to the Tribunal meaning the employer can sleep better at night.
The Office of National Statistics has reported that in the three months to May, 118,000 people were made redundant which is 10,000 more than the previous quarter. There is debate whether we are heading for a full on recession but lets face it the signs aren’t looking too good.
Posted in Categories, Redundancy | No comments »
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By Nicky - Monday, July 28th, 2008
A research project by Unite union has shown that it costs employers around £14 billion each year for their failure to address the issue of workplace bullying, which equates to approximately 33.5 million days being lost due to absenteeism! Those that are most at risk of being the targets of bullying are black, minority and ethnic workers.
Therefore, it would appear to be in everyone’s best interests to eliminate workplace bullying. Afterall, a happy workforce will be a productive and efficient workforce, which is a winner for both the employees and the employers!
In order to avoid employees suffering unnecessarily, and employers suffering financially, both parties should be made aware of the dignity at work ethics that are encouraged within the workplace. Where bullying is as a result of a discriminatory reason then this can land the employer in hot water for conduct of employees and third parties in this respect. Employers should ensure that they train their staff on dignity at work. For further information on face to face training or our e-learning on Dignity at Work contact us.
Posted in Age Discrimination, Disability Discrimination, Religion or Belief Discrimination, Sex/Race Discrimination, Sexual Orientation Discrimination | No comments »
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By Liam - Thursday, July 24th, 2008
The Court of Appeal have overuled the EAT in Selvarajan v Wilmot. The case considers whether “unreasonable delay” in dealing with a step under the statutory procedures makes a dismissal automatically unfair where the statutory procedure is nonetheless completed (albeit with unreasonable delay - in Selvarajan the alleged unreasonable delay was 4 months in dealing with an appeal).
Paragraph 12 of Schedule 2 of the Employment Act 2002 requires each step under any of the statutory procedures to be taken “without unreasonable delay”.
If an employer fails to complete a step of the statutory dismissal procedure, the dismissal will be automatically unfair.
If an employer does not comply with the requirement to complete a step in the procedure without unreasonable delay, even though the step is completed with unreasonable delay, does this make the dismissal automatically unfair?
The Court of Appeal held that it does not. Whether there was unreasonable delay was not relevant to the question of whether the statutory procedure was completed. If the procedure was completed, no matter how unreasobly delayed, the dismissal is not automatically unfair.
This leaves employees with a tactical decision to make - if an employer delays unreasonably in complying with a step in the statutory procedure, do they refuse to attend a meeting thus meaning the procedure has not been complied with and rely on the employer’s unreasonable delay as the reason for non completion of the procedure (which would make the dismissal automatically unfair and result in up to 50% extra award) or do they attend the meeting, allow the procedure to be completed and miss out on the uplift but at least know there won’t be a reduction if the delay is found by the Tribunal to be reasonable?
It is important to remember that the above only deals with automatic unfairness. A long delay could still potentially contribute to a dismissal being unfair under the normal fairness test in s. 98(4) ERA 1996.
Posted in Statutory Procedures | No comments »
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By Philip - Wednesday, July 23rd, 2008
This particular case turns on its facts. ICI have a contractual enhanced redundancy scheme. The scheme expressly provides the following:
(1) An employee of up to the age of 35 is paid 58.33% of relevant pay.
(2) An employee aged 40 receives 97.22% of relevant pay.
(3) An employee aged 45 receives 136.11% of relevant pay.
(4) Employees aged between 50 and 57 are paid 175% of relevant pay.
(5) The figures reduce between the ages of 57 and 61 until an employee who is aged over 61 years and 4 months is paid only 50% of relevant pay.
The EAT have allowed a limited appeal on Age Discrimination as the issue of justification was not dealt with properly. In summary justification succeeds where the scheme was a proportionate means of achieving a legitimate aim.
Whilst the Tribunal found the aim to be legitimate (compensating those older employees who may find it hard in the jobs marketplace, the ones at 57 + had the Company pension cushion). The Tribunal did not adequately consider the issue of proportionality, which in this case meant looking at the impact of the discrimination on the particular employee, who in this case was 35, and therefore a good 40% worse off than someone 5 years older.
The Tribunal is re-considering that point. The case probably has limited effect as not many enhanced redundancy payment schemes expressly refer to age and have such a variance in percentages.
Posted in Redundancy Payment | No comments »
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By Philip - Tuesday, July 22nd, 2008
As you may know Employment Tribunals comes under the Tribunal Service Department. Each year they produce a report.
Alongside the normal stuff about KPIs being met-90% of calls being answered after 6 rings (was an unnamed Tribunal in London included we wonder!), 85% of claims being heard within 26 weeks, MPs letters answered within 10 days etc etc.
I was interested to note that members of the Tribunal Service are eligible to join the Civil Service Pension scheme (which is unfunded ie paid for out of general taxation.)
Befitting a large organisation, there are a number of different types of final salary scheme. Employees who join the pension scheme do get remarkable value for money. If they contribute the princely sum of 1.5% of pensionable earnings, their pension accrues at the rate of 1/80th of salary per year of service, together with a lump sum of 3 time final pension.
If members want to contribute 3% their pension accrues at the rate of 1/60th of final salary.
Assuming an employee has a salary of £120k (and certainly the chief executive is in that range) for an annual contribution of £3600.00 the employee is gaining an annual index linked pension of £2,000.00. So put in £3.6k once, and get out an index linked £2k pension for each year of retirement. That return on an income basis equates to 55%.
It surely can’t be right that tax payers, alot of whom cannot afford to contribute to their own pension, are making such a substantial contribution to other people’s. But hey ho, where does fairness come into it.
Posted in Miscellaneous | 2 comments »
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By Philip - Monday, July 21st, 2008
Whether a worker supplied by an employment agency can become an employee of the end user is one of employment law’s hot topics.
In this case there was an employment agency. That employment agency had a contract for services with a worker. The employment agency also had a contract for services with an end user. End user is an ugly description, but that’s what users of employment agencies are now being called in Tribunals. Hey I guess most end users would rather be called that than employer.
The agency had a contract to supply labour to the end user.
Contract law is relatively straightforward. There cannot be an implied term if there is already an express term that covers the same point. An implied term will only be implied out of necessity, in the absence of an express term. It is this necessity factor that is likely to impale most claims for implied employment status. The necessity for most end users in contracting with employment agencies is to avoid employment status. There is therefore no necessity to imply an employee contract! Particularly in cases where there is an express contract between the worker and the agency.
In this case, as there was an express contract between agency and worker there was no necessity to imply a contract between worker and end user.
In this case therefore the worker was not employed either by the agency or the end user and had no right to claim unfair dismissal as that was contingent on being an employee.
Posted in Unfair Dismissal, Who is an Employee? | No comments »
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