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Entries matching label employment-tribunal:

Delay caused by Tribunal Service results in claim being struck out

11 Sep 2013, 15:41 by Priya Bakshi

Labels: appeal, barrister, employment-law, employment-tribunal, lawyer, unfair-dismissal

The Employment Appeal Tribunal in the case of Elliott v The Joseph Whitworth Centre Ltd. [2013] UKEAT 0030_13_1507 held that the claim was permissibly struck out by the Employment Judge because a fair hearing was impossible. A two year delay in dealing with the Claimant's claim form, by the Tribunal Service in not serving the ET1 and the failure of the Claimant's representatives to chase up the case, was "inordinate and inexcusable". 

Mr Elliot presented his claim for unfair dismissal on 30 April 2010. The Tribunal Service then failed to take action in respect of the claim form due to administrative difficulties. However the Claimant's representatives also did nothing to chase the matter up. It was only in February 2012 that the Claimant's representatives finally made enquiries, and the claim form was then served on the Respondent.

As a result, the Respondent applied to have the matter struck out under rule 18(7)(f) on the ground that it was no longer possible to have a fair hearing in these proceedings. They argued that memories would have faded and so would be prejudiced if the case were to be heard. 

The Employment Judge considered the claim form and the submissions made by the parties. No evidence was given at the hearing. The Tribunal agreed with the Respondent and struck out the claim.

Mr Elliot appealed on the basis that as the Employment Judge had not heard evidence, it could not be concluded that memories had faded.


The EAT dismissed the appeal. Whether it was possible to have a fair hearing was a question of fact. Mr Elliot had kept notes of meetings however as the Respondent had not, or notes were no longer available, much depended on the memory of the relevant officers. Fading memory is a reason why there cannot be a fair trial. The EAT held that the relevant materials had been considered and agreed that the delay was inordinate
and inexcusable. The decision concerning where the prejudice lay was also
permissible. The practical consequence of this is that Mr Elliot's remedy
likely lay elsewhere.  

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Failure to Comply with the ACAS Code of Practice

24 May 2013, 10:00 by Priya Bakshi

Labels: acas-code, barrister, complensation, employment-appeal-tribunal, employment-law, employment-tribunal, lawyer, solicitor

The Employment Appeal Tribunal (EAT) held in the case of Lund v St Edmund's School that the increase in compensation due to a breach of the ACAS Code of Practice applies to "some other substantial reason" dismissals.

Mr Lund was a school teacher and was dismissed as the school had lost confidence in him, through alienating his colleagues and affecting morale. The Employment Tribunal (ET) found that his dismissal was for "some other substantial reason," but was procedurally and substantively unfair; thus failing to act in accordance with the ACAS Code.

Mr Lund was awarded compensation but this was reduced on ground of contributory fault. However the ET made no uplift for the breach of the ACAS Code under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 for two reasons: Mr Lund's dismissal had been for "some other substantial reason", and he had "contributed so substantially to his own dismissal". Mr Lund appealed on this point.

On appeal, the EAT held that Mr Lund should not have been denied an uplift on his compensation award. Firstly, the employee's claim did concern conduct on his part, namely the effect of his conduct on others. This is what led to his dismissal and so, the ACAS Code applied. Secondly, when considering whether to make an uplift on the compensation award for an employer failing to comply with the ACAS Code, the ET should not have taken into account contributory fault. Mr Lund may have contributed to his dismissal but he did not contribute to his employer's failure to act in accordance with the ACAS Code. To deny him an uplift on the remainder of his compensatory award amounted to him being penalised twice over.

 

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Direct Access: Compromise Agreements

03 Nov 2008, 10:48 by Robert Rees

Labels: compromise-agreements, contract, direct-access, employee, employment, employment-tribunal, lawyers

  As the recession looms there will be many employers wishing to relieve themselves of staff to save costs. Many will prefer their employees to leave voluntarily and to sign compromise agreements. These when properly made lawfully prevent employees going to employment tribunals to  contest the circumstances of their leaving. Employers will sweeten the pill by agreeing to pay and ex-gratia lump sum. Barristers through the direct access scheme are amongst qualified lawyers who are allowed to sign these agreements to make them lawful as preventing employees from going to employment tribunals.

In case an employee has in fact been guilty of some behaviour which would otherwise have entitled the employer to dismiss, prudent employers can include a clause or warranty to the effect that the money payable under the compromise agreement will not in fact be paid if it is discovered that indeed the employee has been guilty of something which would have given the employer the right to dismiss. Such a clause can be termed a warranty along these lines, the employee agreeing as follows:

"You warrant as a strict condition of this agreement that there are no circumstances of which you are aware or of which you ought reasonably to be aware which would constitute a repudiatory breach on your part of your contract of employment which would entitle or have entitled the company to terminate your employment without notice."

In Collidge v Freeport plc [2008] IRLR 697 an employee was found to have been guilty of financial impropriety prior to a payment of £445k, under a compromise agreement and so no payment was made by the employer. The Court of Appeal upheld the judge's unsurprising finding that such a clause was a condition precedent for payment under the compromise agreement and the employer did not have to make the payment. Mr C's warranty was a condition, a sina qua non, of the employer's obligations to pay. The warranty was a pre-condition of the employers liability to perform its obligations under the contract.

Writen by Robert Rees, Barrister at New Walk Chambers, specialising in direct access, employment law and compromise agreements.

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Rise in minimum pay for Apprentices

24 Sep 2008, 17:28 by Joseph Neville

Labels: employee, employer, employment-law, employment-tribunal, national-minimum-wage

 The government has announced that the minimum pay for apprentices will rise to £95 per week. The increase will mainly benefit low-paid sectors such as care and hairdressing, described by the government as employing more women, rather than construction where apprentice wages are on average already higher than this.

This minimum is not under the auspices of the national minimum wage legislation, from which apprentices under the age of 19 or in their first year are exempt, but instead is a contractual rate between employers and the Learning & Skills Council. The government has however amended the Low Pay Commission's terms of reference to consider the future of the exemption, bearing in mind that by the time the school leaving age is raised to 18 in 2013 it is intended there will be around 500,000 apprentices in the UK.

Written by Joseph Neville, Barrister at New Walk Chambers, specialising in Employment law.

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Discrimination Law London Borough of Lewisham v Malcolm

03 Jul 2008, 13:36 by Joseph Neville

Labels: disability, discrimination, employees, employment-law, employment-tribunal, legal-profession

The House of Lords has published an important decision on disability discrimination law, Lewisham v Malcolm [2008] UKHL 43, that turns much previous authority on its head. The particular case concerned housing: Malcolm was a secure tenant of the local authority, but he left his flat and subletted it. This had the legal effect of cancelling his security of tenure and converting his tenancy to a contractual one. The local authority served notice and brought a possession claim. Under normal circumstances, since the subletting was a breach of the tenancy, the local authority would be successful.

Malcolm's defence was that he had breached his tenancy agreement as a result of his schizophrenia, and that he was disabled within the meaning of the Disability Discrimination Act 1995. Section 22(3)(c) of the 1995 Act provides that evicting a person from housing is unlawful if in doing so the landlord discriminates. Section 24 the provides that discrimination will exist if "(a) for a reason which relates to the disabled person's disability, [the landlord] treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) [the landlord] cannot show that the treatment is justified."

This statutory wording has been the subject of much dispute over the years - if Malcolm's case is right then the council cannot evict him for unlawfully subletting his flat. Nor could they (or any other landlord) evict a tenant for falling into arrears if this was due to a disability.

The House of Lords addressed the following issues:

  • Does the reason for the eviction "relate" to the tenant's disability?

To determine this question the Lords followed the usual practice of looking for the non-disabled comparator. In this case, the correct comparator was a person without a disability who had nonetheless sublet the flat and moved out. Since the local authority would have treated this person in exactly the same way, it could not be said to be treating Malcolm "less favourably" such as to give rise to a claim of disability discrimination.

  • Is it relevant whether the landlord knew of the tenant's disability?

The Lords' view was robust- the local authority must have knowledge (or imputed knowledge) of the disability before it can be said to have discriminated. This ruling resolves a considerable a number of conflicting authorities.

This is an important judgment, as it relates not only to housing, but to employment law, education, transport and goods and services.

Written by Joseph Neville, Barrister at New Walk Chambers specialising in Employment Law.

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