Archive for July, 2009
By Sarah - Friday, July 31st, 2009
We have already seen a case in the last few months R v Governors of X School [2009] where a teacher was in a disciplinary for allegedly kissing a 15 year old. The disciplinary policy provided that employees were allowed the usual statutory right to be accompanied. In that case the High Court held that a disciplinary procedure does not amount to proceedings in respect of a criminal charge to bring it under the ambit of Article 6 (3) of the European Convention for Human Rights.
However, the High Court held that the gravity of the allegations and the impact on his future life (his dismissal could be reported to the Secretary of State to prohibit him working with children) was such that he was entitled to legal representation at the hearing. The decision turned on the facts of the case. We were discussing this case in house just this week and were aware of a similar challenge by a doctor.
The Court of Appeal has now ruled in the doctor’s case of Kulkarni v Milton Keynes Hopsital NHS Trust to the effect that doctors and dentists employed by the health service are entitled to legal representation in cases where the individual faced a charge which if proven could prevent them from practising in their profession. So this is likely to be charges of GM which will result in a case before the GMC for example. Watch this space to see how far this decision will be taken, as it could also apply to our profession where the charges may result in the solicitor being struck off and other similar professions.
Posted in Statutory Procedures | No comments »
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By Practice Administration Team - Friday, July 31st, 2009
Amazing!! This young boy was featured on TV last night and to think that he is only six years old is incredible. And best of all he comes from Norfolk …. like a lot of wonderful people!
Posted in Uncategorized | 2 comments »
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By Sarah - Thursday, July 30th, 2009
We have had some interesting cases over the last few weeks concerning availability for hearings. Tribunal hearings can either be fixed by the Tribunal of its own making or following the parties providing their availability. If it is the later and there is then a problem, a postponement is near on impossible.
Even where the Tribunal fixes the hearing without consultation, it is often difficult to get a postponement especially when it is the representative who is unavailable. This can cause the client anxiety when there is a change of representative. In one such case recently the postponement was refused as they said Counsel could be instructed. Given the hearing had been postponed once before by another party and the solicitor had done all the prep this seemed particularly harsh and meant the client having to incur extra costs which did not seem to sit well with the overriding objective.
Contrast that with the handful of cases we have had this year which have been postponed by the Tribunal on the eve of the hearing due to a lack of judges. You will have read recently the Tribunal system is trying to redress this in its latest recruitment drive for additional judges. However understandable the postponement might be, it can cause long delays (sometimes more than 6 months) in getting another listing.
There are often time limits in applying for a postponement depending on the grounds so parties need to act quickly. We even had a request recently for representation in two working days but it is not possible (especially at this time of year) to prepare a case that quickly from scratch. Have you had similar postponement experiences…
Posted in Employment Tribunal Procedure | 2 comments »
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By Olivia - Thursday, July 30th, 2009
In a recent blog, Liam alerted you to the forthcoming changes to statutory redundancy pay. There are more changes to keep us on our toes in the forthcoming months.
Starting with this Saturday, 1 August. Weekly working time limits for doctors in training will be reduced to 48 hours (although for certain categories of doctors in training this will be 52 hours until July 2011.)
Jumping ahead to 1 October. Employers prevented from including tips in the minimum wage (currently employers can count service charges and gratuities processed through the payroll towards their obligation to pay the minimum wage). Increase in rate of the national minimum wage. The main rate rises from £5.73 per hour to £5.80 per hour and the development rate from £4.77 per hour to £4.83 per hour. The rate for workers aged 16 to 17 increases from £3.53 to £3.57 per hour.
12 October. Centralised vetting system for people working with children and vulnerable adults comes into force. Employers will be able to make checks online. There will be fines of £5,000 for employers who knowingly employe individuals on the list or fail to make the relevant check.
We are still awaiting dates for the introduction of the right to request time off for training, extension of the right to time off for public duties and extension of paid maternity leave to 12 months as well as the extension of paternity leave and pay.
Posted in Miscellaneous | No comments »
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By Practice Administration Team - Thursday, July 30th, 2009
You are never too old to use modern technology as this lovely lady demonstrates!
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By Sarah - Wednesday, July 29th, 2009
ACAS have now published their annual report for 2008/2009. Whilst it is largely about the work of ACAS there are some interesting statistics concerning the types of cases they have conciliated over and the types of calls that they are getting into the helpline.
The report shows that in 2008/2009 they conciliated over 236,116 claims up from 227,782 in the previous year. The majority related to unfair dismissal at 23% with equal pay coming a close second at 20%. These figures does not apparently include the NHS equal pay claims, so it seems higher than I would have expected. 3rd and 4th place go to Wages Act claims and Breach of contract respectively. Rather interestingly ACAS conciliated in 49,675 cases where no claim had yet been presented to the Tribunal.
With regards to the helpline the number of calls actually dropped this year to 726,306. It will come as no shock that 28% of the calls were about redundancies, lay-offs and business transfers. In second place came calls about discipline, dismissal and grievances at 27% followed by contracts at 17% and holidays and working time at 12%.
Posted in ACAS Code of Practice 1 | No comments »
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By Olivia - Wednesday, July 29th, 2009
The EAT case of Queen Victoria Seamen’s Rest Ltd v Mrs D Ward highlights the ongoing difficulty Tribunals encounter in determining causation in discrimination cases. As Lord Nicholls observed back in 2001, causation is ‘a slippery word’. This case also serves as a useful reminder of the general position.
QVSR employed Mrs Ward as an Operations Manager. She became pregnant and submitted a grievance in relation to her treatment. Considering this was not investigated properly she resigned, alleging ‘intolerable behaviour’ from her employers. She complained to the Tribunal of automatic unfair dismissal by reason of her pregnancy and less favourable treatement on the ground of her pregnancy.
QVSR appealed on the basis that the tribunal had applied the wrong test when considering whether there was discrimination on the ground of pregnancy. It claimed the tribunal had applied the test that ‘but for’ the failures identified, the subsequent acts of discrimination would not have occured. They claimed the tribunal should have asked ‘the reason why’ the treatment afforded to Mrs Ward had occured and then it would have found the reason was not her pregnancy.
The EAT have confirmed that in deciding whether events or actions are on the ‘grounds of pregnancy’ (as required by the Sex Discrimination Act 1975) a Tribunal should simply ask itself ‘why’ did they occur? They found in this case that in reality this is what the Tribunal had done. The confusion arose because of the Tribunals use of the words ‘but for’ in their judgment. The EAT also reiterated that no comparator is required in pregnancy cases.
So, really a reminder to us of the correct test to be used in pregnancy related discrimination cases. And a reminder to Tribunals of being careful as to the words they use in judgments as otherwise, like in this case, a claim can end up in the EAT when really there should have been no debate in law entitling QVSR to appeal.
Posted in Maternity, Sex/Race Discrimination, Unfair Dismissal | No comments »
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By Liam - Wednesday, July 29th, 2009
As providers of employment law e-learning courses, it is interesting to deal with cases where one can see where an audit trail for training features in an employer’s defence. Often an employer would like to be argue that employees were trained fully and therefore the employer complied with their legal obligations. E-learning enables employers to run this line of argument with confidence the Learner Management System (a tracking system on which SCORM compliant e-learning courses operate) will track the amount of time learners spend on the course and record the answers they give to assessments in the course. These can be retrieved and printed off with the press of the button and put in a bundle to defend a Tribunal!
If you would like to discuss how you could exploit this technology for your business, give us a call on 0844 850 5805.
Posted in e-learning | No comments »
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By Liam - Tuesday, July 28th, 2009
From 1 October 2009, Redundancy pay will go up from the current £350 per week to £380 per week.
Readers of our blog and attendees at our annual employment law seminar will know that a year or two ago amendments were made to authorise a one off increase to the rate of redundancy pay unrelated to the rate of inflation (as distinct from the normal annual increase in the rate of redundancy pay which kicks in every February).
This blog reported the increase to £380 here, but we now know the increase will take place on 1 October 2009 and there won’t be an annual increase in February 2010. The rate will therefore remain at £380 per week until February 2011.
This change will only benefit those who are paid more than £18.2k per year and even after the change those earning £19,760.00 per year will still only receive redundancy pay based on a capped week’s pay rather than a real week’s pay.
Posted in Categories, Redundancy Payment | 3 comments »
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By Sarah - Tuesday, July 28th, 2009
We are often asked the question as to what can an employer do if it is later discovered that the employee has not disclosed medical history which may affect their ability to do the role. The answer could be it is Gross Misconduct and a breach of trust and confidence. If this is discovered in the first year of employment it is easier but you need to be careful if the disability discrimination act is involved.
I came across the case of Cheltenham Borough Council v Laird [2009] today which is a High Court case. In this case the High Court rejected the employer’s claims that the employee’s failure to mention her history of stress related depression amounted to a fraudulent or negligent misrepresentations which induced the Council to enter into her employment contract. The job offer was subject to medical clearance and the employee completed a medical questionnaire in which she failed to mention any stress or depression nor did she reveal she was taking anti-depressants.
The Court held that the statements she made were not false and therefore were not misrepresentations. The answers she gave were not incorrect so the answers were not false or misleading. The Court felt that the questionnaire was poorly drafted and the outcome may have been different if the medical questionnaire had been better drafted so it was less ambigious. However, the Court did say that even if the answers had been false they would not have been negligent or fraudulent if she had believed them.
Posted in Disability Discrimination | 1 comment »
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