Archive for the ‘Unfair Dismissal’ Category
By Liam - Thursday, January 3rd, 2008
For dismissals occurring on or after 1 February 2008, the maximum compensatory award for Unfair Dismissal is set to increase to £63,000.00 and the cap on a week’s pay (used to calculate Statutory Redundancy Pay and the Basic Award for Unfair Dismissal for those who earn in excess of the cap) is set to increase to £330.00.
Various other limits are also increasing, such as the rate for guarantee pay and the minimum amount for Basic Awards in certain types of case.
Full details can be found here.
Posted in Redundancy, Redundancy Payment, Unfair Dismissal | No comments »
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By Sarah - Tuesday, December 11th, 2007
Those of you who read our Blog regularly will be familiar with the consultation which took place earlier this year concerning the statutory dismissal procedure.
Well the Employment Bill is currently before the House of Lords. You can read the full text here. The bill is not an Act of Parliament yet but if passed will repeal the statutory dispute resolution procedures. It will also repeal s98A of the ERA 1996 concerning procedural fairness. Instead, it will insert a new section 207A into the Trade Union and Labour Relations (Consolidation) Act 1992 which deals with a failure to follow the Codes. Those familiar with the Act will be aware that this is a reference to the ACAS Codes and any issued by the Secretary of State.
The proposed wording of s207A permits an uplift of upto 25% to awards for failure by the employer to follow the relevant Codes of Practice if the Tribunal considers it just and equitable to do so. Like the statutory dispute reolutuion procedure there is the same permitted percentage reduction if the employee is at fault. Now where have I heard that before!
The Bill also deals with enforcement of the national minimum wage.
Posted in Statutory Procedures, Unfair Dismissal | No comments »
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By Philip - Friday, December 7th, 2007
I don’t want to sound like a grumpy, old man or a Daily Mail reader spluttering into my cornflakes but based on the facts of this case I do wonder about the state of the nation.
The facts put briefly are these:
Bus driver subject to racial abuse by “boorish, yobbish” young passengers. Youths got off the bus. Driver heard loud bangs, stopped the bus to investigate. Bus driver gets out. Bus driver racially abused by youths and punched. Bus driver punched one of his attackers in self defence. Bus driver spat at by said youths. Bus driver trips up one youth when he starts to run away and punches another who is about to hit him.
The police are called and the bus driver is arrested (although no legal charges are brought.)
The bus driver is dismissed for assaulting the “customers.”
WTF! As some might say.
The offence to most people’s notion of justice is firstly the fact that the bus driver is arrested (not the racist, boorish youths) and secondly that the bus driver is dismissed (rather than being congratulated and promoted.)
Thankfully the Tribunal (and the EAT) correct the injustice of dismissal by finding an unfair dismissal.An act of self defence did not warrant summary dismissal. The driver (harshly in my view) was found 40% to blame for his dismissal, though, in over-stepping the self-defence boundary.
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By Sarah - Wednesday, December 5th, 2007
The EU vote today on whether to give temporary workers the same rights in employment law as employees. This includes the right to claim Unfair Dismissal. We will update you on this subject as news comes through. The idea has however been met with a great deal of concern in the business community. The point of paying a premium for such staff is often because they are temporary and do not have the same employment rights as permanent staff in many areas.
Posted in Unfair Dismissal, Who is an Employee? | No comments »
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By Sarah - Tuesday, November 27th, 2007
Liam was before the EAT earlier this month and the Judgment has been published today. Unfortunately, the appeal which Liam was opposing was successful in part and will be remitted back to the Employment Tribunal.
The issues surrounded public interest disclosure, which does not come up frequently in practice. The EAT hearing was an example of the work the firm does pro-bono. You can read the full Judgment here but there are a few errors such as Liam is not Lian nor is he Counsel for those of you who spot the error.
When such errors occur in Judgments, we need to notify the EAT/Tribunal and get the same corrected so the record is straight. Errors occasionally occur in the main body of the Judgment but this is infrequent.
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By Liam - Friday, November 23rd, 2007
The EAT have handed down their judgment in Dalia Ros & Daniel Angel T/A Cherry Tree Day Nursery v Fanstone. The case concerns compensation for Unfair Dismissal where the employee was unfairly dismissed 10 minutes before the expiry of her notice following her resignation.
The Tribunal awarded a £5,000.00 compensatory award. The EAT found this to be incorrect. This is no great surprise - it stands to reason that any losses should be limited to the time the resignation was to take effect because even without the dismissal, any losses after the time of the resignation would still have occurred. Such losses therefore can not be said to flow from the dismissal and therefore are not recoverable in an unfair dismissal claim.
One does wonder what possessed the employer to dismiss 10 minutes before the expiry of the employee’s resignation - for the sake of getting shot of the employee 10 minutes earlier, the employer has had to fork out £1,740.00 for a basic award. For a longer serving employee, this basic award could have been up to £9,300.00 - a lot of money for the sake of 10 minutes!
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By Philip - Thursday, November 22nd, 2007
A 34 year old GMB worker, with learning difficulties, has won a record half a million pounds in disability discrimination compensation at Croydon Employment Tribunal.
In a case brought by 24 GMB union members, following a round of redundancies amongst gardeners, the Tribunal made a total award of £1.3 million for various claims including the one above and others for unfair dismissal.
The Tribunal found that the employer, Serviceteam, had not consulted properly, had breached its own equal opportunities policy, and had applied its own redundancy selection criteria in an arbitrary way.
Posted in Disability Discrimination, Unfair Dismissal | No comments »
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By Sarah - Wednesday, November 21st, 2007
In the period between August 2006 and 31st July 2007, public sector employment tribunals had risen to account for 37% of employment tribunal claims. This was up from 30% the year before. This is despite the fact that the public sector only employ about 20% of the UK workforce.
These stats come as no suprise to us at PJH Law. Personally more than 1/3 of my employee tribunals have recently been for public sector employees. One explanation given for the increase is that the sector is heavily unionised. This does not tie in with our experience as to why they have risen.
Traditionally the public sector did not dismiss employees, you had a job for life but now when they do dismiss they do it badly. Whilst this may be a generalisation, typical failures are not following the statutory dismissal procedure, issues with whistleblowing, not allowing representatives of choice to disciplinary meetings or just bad decisions. When they do get it wrong they get it wrong big time, as the awards tend to be high due to the loss of a final salary pension scheme which is irreplaceable in the public sector.
Posted in Unfair Dismissal | 1 comment »
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By Philip - Tuesday, November 6th, 2007
The case reported here concerns the question of whether an employer can be held vicariously liable for the actions of a third party and thereby constructively dismiss an employee by those actions.
The case involves an employee who worked at her employer’s MD’s home. The employer was a MCA Consulting Limited whose owner and MD was a Mrs Mackenzie. Mr Mackenzie was not employed by MCA Consulting Limited but obviously he did use the Mackenzie family home, which as previously stated, also doubled up as MCA Consulting Limited’s business premises.
In a nutshell Mr Mackenzie did not behave in a polite way towards the Claimant and an example of his behaviour, so the Tribunal found, was when he shouted at her, jabbing his finger, telling her not to smoke at his house.
The answer as to whether the actions of a third party non-employee could give grounds for a constructive dismissal case lay in considering whether the employer could have done anything to stop the acts in question. There was also an implied duty to create a suitable working environment to perform contractual duties. That duty was breached.
Interesting case particularly for smaller, owner managed SME’s where the owner’s partner could be sticking his or her nose in. Could also have implications for larger companies who have employees working on and at customer’s sites.
The moral of the story is manners maketh man, manners and courtesy don’t cost anything, and the lack of them here cost the company an unfair dismissal case.
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By Philip - Tuesday, October 30th, 2007
The application of employment law in the workplace can often be reduced to a series of steps or processes. In a redundancy , an employer needs to consult properly, ensure pooling and selection is carried out correctly, and take steps to ensure the issue of alternative employment is addressed, as well as following the statutory dismissal procedure.
In the case reported here, the Scottish EAT upheld a decision not to award compensation in a case concerning an unfair redundancy dismissal. The Tribunal found the dismissal unfair for failing to follow the statutory dismissal procedure but awarded no compensation on the basis his employment was bound to have ended had a proper procedure been followed.
Central to the finding of no compensation was the fact that the Claimant, prior to being dismissed, had been offered alternative employment albeit at a lower salary and with a probationary period.
As the contract on which the Claimant was working had come to an end, the conclusion was inevitable.
In cases where there is a clear need for redundancies, and no issue of selection, then the issue of alternative employment is at centre stage.
Where the employer can show, as in this case, that they had addressed their mind to the problem of alternative employment and come up with an offer, then the employee’s prospects of being awarded substantial compensation are slim as effectively by declining the offer they have elected to leave employment.
There is scope for confusion as the issue of alternative employment can become conflated with the issue of suitable alternative employment. Where the employee unreasonably rejects suitable alternative employment, his right to a redundancy payment may evaporate. That issue is different to the employer’s need in unfair dismissal cases of bringing to the affected employee’s attention any alternative employment. If alternative employment has not been addressed either at all or adequately a Tribunal can then make a finding that there was, say, a 50% chance of retaining employment, and the compensatory award is predicated on that basis.
Making an offer of alternative employment can close down the Tribunal’s options as the Tribunal will know that such an offer was made and rejected.
In the case under discussion,as the offer of alternative employment made by the employer was crucial in the Tribunal’s determination of zero compensation, the question remains, why do so few employers make offers of alternative employment to redundant employees when redundancies are made?
Posted in Redundancy Payment, Unfair Dismissal | No comments »
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