Archive for the ‘Uncategorized’ Category
By Philip - Monday, June 2nd, 2008
If you telephone in to PJH Law you will hear some new voices. Two new solicitors have recently joined, Emma and Jenny. To enable you to put a face to a name here’s a photo of Jenny and Emma, Jenny being on the right and Emma on the left. Emma has joined us from a City firm and Jenny has moved from a Manchester firm, having recently qualified. Both have experience of employment law, with Emma also having extensive experience of business immigration.
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By Philip - Tuesday, April 15th, 2008
As Sarah’s post yesterday highlighted, gone are the days when a claimant can flout a Tribunal’s order with impunity. Tribunals seem to be flexing their muscles in respect of striking out claims not only because they are weak but also because an order has not been complied with.
Another running theme in Tribunal procedure is the greater use of costs orders. These used to be as common as teeth on a hen, you were more likely to find Elvis in the local chip shop than have a costs order made.
Times are changing and costs orders are more frequently being made. Last week we reported a £60k costs order, this week the EAT have heard a case involving a 10k costs order against a Claimant who had not impressed the Tribunal with the accuracy and honesty of his evidence. The EAT did not interfere with the order.
If the doom mongers are right and recession is just round the corner, those advising employees will be advising against a backdrop of Tribunals being more willing to make costs orders. Those ancient enough to remember the last recession will remember that mass redundancies were the norm. ITV news even had a weekly slot at the end of the news showing how many mass redundancies had been declared that week.
With mass redundancies came multiple Tribunal claims from those dismissed as redundant. Some of the leading case law in redundancy was made during recession - BAE v Green being a good example where the Court of Appeal gave clear guidance of the Tribunal’s role in judging (or not judging) employer’s selection criteria and their application.
Even in 1995 most of my employer case load was made up of Tribunal claims from redundant employees. The question is now that the law on selection criteria and their application is more settled, will employees in mass redundancy situation still bring claims if they know that a misconceived claim could swallow up some or all of their redundancy payment in a costs order?
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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.
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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.
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By Philip - Tuesday, February 26th, 2008
Given the spate of evil and unsavoury characters that have been sent to prison in the last week, the EAT have had to wrestle with the issue as to whether a prisoner on day release from prison to do work at a local employer under a scheme designed to re-habilitate and re-settle offenders accrues employment rights?
The answer was that no employment rights accrue during day release, so the prisoner in that case could not claim unfair dismissal. Even though he was taken on by the employer after his release, the service when he was on a day release did not count as continuous service therefore he could not claim as he did not have one year’s qualifying service.
Despite getting a chance after being released, he was dismissed for unreliability which is rather disheartening as unemployment will no doubt increase the chances of his recidivism.
As two of the three monsters above have been sentenced to whole of life sentences, the chances of any of them ever getting anywhere near another employer is remote, other than shovelling coal in the fires of hell.
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By Philip - Tuesday, February 19th, 2008
Nothing like a controversial headline to stir debate.
There was an investigation into Massey Ferguson in Coventry in 1982 by the CRE, which found having informal recruitment mechanisms, via word of mouth, led to a homogenous workforce.Employees told their friends and family of vacancies. They then wrote in and got the job. As friends and family were usually of the same race, the workforce at Massey Ferguson replicated itself. Because of the informal recruitment processes the workforce was overwhelmingly white, whilst Coventry was and still is an ethnically mixed area. The record label Two Tone came out of Coventry, the workforce at Massey Ferguson could not be described as Two Tone, more like Vanilla Ice
The informal recruitment mechanism was found to be indirectly racially discriminatory.
Back to the point. If MPs are recruiting friends and family by informal recruitment mechanisms might they be inadvertently replicating the ethnic make up of the Commons? Could this be contrary to the Race Relations Act? Given that this is public money involved and some of this taxing work could be fitted around a full time degree course (and rumour has it a very active social life) , why can’t mps when they come to recruit office staff at least try to operate by a Code of Practice on Recruitment?
Guidance for how employers should recruit is being forever issued by various statutory bodies. Surely MPs don’t want to be accused of “Do as I say not do as I do!” do they?
I appreciate that the argument is more nuanced than the one advanced as there can be sound reasons for some philandering mps to have their spouse as secretary so that a watchful eye can be kept.
That pragmatic point aside, given that it is public money shouldn’t there be a transparent appointment mechanism?
Makes you think, dunnit?
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By Philip - Monday, February 18th, 2008
Yes I know it’s not a piece of legislation any of our readers (and indeed the writer) will be intimate with, even at a distance.
It was considered at the case reported here
The facts of the case are that a charity concerned with the blind in Blackpool and Fylde unfairly dismissed and discriminated on grounds of disability a blind employee.
You are forgiven if, in reading the last paragraph, you have had to suppress a wry grin at the mention of a charity looking after disabled people discriminating against a disabled employee.
The upshot was that the employee was found to be 40% to blame for his dismissal and his unfair dismissal compensation was reduced accordingly.His compensation overall , including the discrimination award, was £87k.
The Tribunal at first instance made no deduction of compensation for disability discrimination under the above act. The EAT lays open the possibility that awards for discrimination in Tribunals could have percentage deductions if there is contributory negligence. As the argument was not raised at the first tribunal the EAT dismissed the appeal as a new point, which should have been raised at the remedy hearing.
Those of you facing a disability case should ensure that your representatives go armed with the above Act, as the discrimination legislation talks about making an award on the basis of the tort of discrimination and the EAT observed that there is some logic in reading the discrimination legislation in line with the above Act, although it has taken some 30 years to be raised.
The logic goes negligence is a tort, as is discrimination, if an employee has contributed by his conduct to the discrimination then a deduction should be made for contributory negligence.
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By Philip - Tuesday, February 12th, 2008
Well news just in states that a recent survey of Companies found that Companies were questioning the value of HR departments.
HR Managers have been called “the unemployable in pursuit of the unsackable”, through to “Almost Human …Resources Managers.” I wouldn’t be that mean.
From an employment law perspective the employers that come in with the truely unwinnable Employment Tribunal cases are, 9 times out of 10, those employers with no HR or Personnel function.
At an operational level we see daily the value add of an HR team through the management and mitigation of employment law risk. Mitigation of risk is not a particularly visible or high profile activity. Not getting into employment law disputes takes some management expertise and skill, particularly in these fast moving, high staff turnover times.
At a strategic level recruiting and retaining highly skilled and motivated employees and workers does not happen by accident. HR is normally in the thick of strategy creation and implementation.
Methinks the participants in this survey have not appreciated the value an HR team can add at an operational and strategic level. Enough ingratiation for one day, I’m off!
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By Philip - Friday, February 8th, 2008
With news that the Archbishop of Canterbury is suggesting that a system of Sharia law could run alongside the common law in areas such as family law, could Sharia law work for employment law?
I do not know how far, if at all, Sharia law impacts on workplace law.I would assume (very dangerous I know) that countries that adopt Sharia law do not have well advanced and well honed employment legislation. I may be wrong.
Looking at the question in an abstract way I cannot see a system of Sharia law working where muslims and non muslims are working side by side with different rules subsisting.
In workplaces that only employ Muslims I could see room for opting out of say unfair dismissal law and having the local Muslim council decide disputes. There is currently scope, for example, for national agreements between a trade union and an employer to opt out of unfair dismissal law and have disputes dealt with by independent, non-judicial panels. I see no reason, in principle, why a similar sort of system could not be applied to muslim only workplaces.
This is a very contentious area, does anyone have any views?
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By Philip - Friday, February 1st, 2008
Well I’ve been practising employment law since 1992, acting for both employers and employees, with that amount of experience I’ve seen and heard it all. For example cases I have been involved in include:
- Someone dismissed for cr**ping in a colleague’s lunch box and then leaving that lunch box in his colleague’s desk drawer.
- Someone dismissed for smearing the gent’s toilet walls with the same stuff that hits fans.
- Every shade and degree of allegations of sexual and racial harassment, including video footage of an “excited” male “appendage” being sent by phone to a female employee.
- Cases involving as many variations on the fiddled expense claim/timesheet as is humanly imaginable.
- The hearing that started with a call from the Chairman saying he’d gone to the wrong venue (50 miles away) and would be with us by lunchtime.
- The Chairman who started a case involving smoking illegal substances at work, with the line, “In my day a man could be discharged for passing the port the wrong way at dinner.”
And so on, I could (and probably do) bore you for hours with tales from the employment coal face, gathered over the years. I am pretty much unshockable. If an employee is accused of a serious criminal offence at work, I raise an eyebrow but am no longer surprised. People are fallible and dishonest, that’s part of the human condition.
Well today when opening the post, I was thinking business as usual, as I ran my finger under an envelope bearing the Central London Employment Tribunal post stamp - given its weight and A4 size, it must be a decision I assumed.
Well that assumption certainly made a kicking mule out of me, as lo and behold , what did we have but an ET1 against PJH Law Solicitors. Well that caused not one but two eyebrows to be raised.
Before you jump to any conclusions, this claim isn’t from a disgruntled employee or ex-employee of PJH Law but from a person (I’m tempted to call him serial litigant but couldn’t possibly, but you may wish to draw that inference) who brought a claim against an employer client of ours. That resulted in a costs award being made against the claimant, let’s call him Mr U. Those of you lucky enough to hear Sarah’s session at our update seminar last week, will have heard an outline of that case’s details.
Anyway the claim against PJH Law is because Mr U now believes PJH law victimised him in our (or should I say Sarah’s) robust defence of our client against Mr U’s vexatious claim and the aftermath.
It gets better not only has Mr U brought a claim against PJH Law, he has also brought a claim against the barrister PJH Law engaged at the costs application hearing. When I rang the Barrister to tell him about this claim, he did ask what Mr U was now complaining about, I won’t tell you what I said in full but the edited highlights are that I said in my opinion the claim was a big pile of b*****ks.
Some good has come from this though already, as I now know how it feels like to have a completely unmeritorious claim made, my employer empathy tank has been re-plenished.
Rest assured dear readers we will keep you posted as this one unfolds.
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