Archive for July, 2008
By Jenny - Thursday, July 10th, 2008
In the case of Kurzel v Roche Products Ltd the Court of Appeal has given some guidance in respect of the burden of proof in cases where both parties allege different reasons for the dismissal and one of the reasons is an inadmissable reason. In this case the inadmissable reason was that put forward by the employee of protected disclosure (whistleblowing).
Lord Justice Mummery set out the principles:
1. It is for the employer to show that there was a fair reason for the dismissal.
2. There is no burden on the employee to disprove the reason put forward by the employer nor is there a burden to prove another reason, even where the employee is asserting that the dismissal was for an inadmissable reason.
3. However, the employee who asserts that there was a different and admissable reason for the dismissal, such as making a protected disclosure, must produce some sort of evidence supporting the case that there was an inadmissable reason and challenging the evidence produced by the employer.
4. The employer can defeat a claim of an inadmissable reason for dismissal either by proving a different reason or by successfully contesting the reason put forward by the employee.
5. If the Tribunal is not satisfied that the reason for dismissal is that put forward by the employer, it is open to to it to find that it is the reason put forward by the employee, but it does not have to find so.
Posted in Unfair Dismissal | No comments »
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By Jenny - Thursday, July 10th, 2008
The EAT has handed down another decision dealing with the issue of what constitutes a grievance. In the case of Procek v Oakwood Farms Ltd the EAT held that even though the grievance expressly stated that it was informal and did not constitute a grievance it was still a valid grievance under the Employment Act 2002.
The requirements of the legislation are only that the grievance be set out in writing and sent to the employer.
Posted in Statutory Procedures | No comments »
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By Liam - Wednesday, July 9th, 2008
The EAT have considered what evidence is subject to legal privilege and therefore does not have to be disclosed in Howes v Hinckley and Bosworth Borough Council.
Legal advice privilege (the rule that legal advice given by a solicitor in his capacity as a Solictor is privileged and therefore not discloseable) does not apply to advice from employment consultants.
Advice from solicitors who work for employment consultants (for example companies like Peninsula, First Business Support, Citation, Croners, LELC) may not be covered by legal privilege especially where such solicitors do not hold themselves out as solicitors. Advice from unqualified helpline or other staff will almost certainly not be subject to legal privilege.
This could have serious consequences for employers who have taken advice from employment consultants, which the employee then seeks to obtain in the course of disclosure in Tribunal proceedings. The employee could well receive a copy of advice that the employer should not take the action that it in fact took and has become the subject of Tribunal proceedings. If an employee gets hold of this, the chances of getting a cheap settlement are very limited indeed - if an employee knows that their employer knows they are fighting a losing battle, no employee in their right mind will accept a low ball offer!
Here at PJH Law, our clients do not need to worry about such matters. All advice here comes from our team of six fully qualified solicitors who all hold current practicing certificates, comply with the regulatory requirements for solicitors, hold appropriate professional indemnity insurance and hold themselves out as solicitors. As such advice given by us is subject to legal privilege and is not normally discloseable in the course of Tribunal proceedings.
Posted in Employment Tribunal Procedure | No comments »
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