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Entries matching label unfair-dismissal:

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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Pre-termination negotiations to remain confidential

13 Jul 2013, 09:04 by Priya Bakshi

Labels: breach-of-contract, compromise-agreements, contract, discriminaton, employee, employer, employment-contract, employment-rights-act, unfair-dismissal

From 29 July 2013 section 111A of the Employment Rights Act 1996 will come into force. Employers will be able to negotiate and agree with the employee terms to end the employment contract without these conversations being admissible in a subsequent unfair dismissal claim. Such negotiations will therefore remain confidential. These compromise agreements, a legally binding contract, will be renamed ‘settlement agreements'.

However the change in the law, namely the confidentiality provisions, is conditional and will not apply to the following types of claims: 

  • Automatic unfair dismissals, such as whistleblowing, trade union membership or asserting a statutory right.
  • Claims of discrimination, harassment, victimisationbreach of contract or wrongful dismissal.

The ACAS Code of Practice on Settlement Agreements is set out to assist and guide both employers and employees with regards to this law reform. In particular, it sets out that confidentiality provisions will only apply where there is no "improper behaviour" by either of the parties. Where there is improper behaviour, confidentiality will only attach to evidence to the extent that the tribunal considers just. Examples of what constitutes "improper behaviour" have been provided in the ACAS Code of Practice.

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Paul McGrath wins Leicester University LLM Employment Law prize

08 May 2013, 16:36 by John Snell

Labels: compensation, direct-access, employment-appeal, employment-barrister, employment-law, employment-lawyer, employment-solicitor, getting-the-sack, public-access, sacked, unfair-dismissal

Paul McGrath is the winner of the Leicester University distance learning LLM Employment Law New Walk Chambers Prize. His dissertation was described by his supervisor as a "highly commendable piece of work". It was titled 'Band on the Run' and it related to the law of unfair dismissal. Paul McGrath is an associate with McDermott, Will & Emery in London.

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Employment Tribunal Claims

08 May 2008, 10:31 by Robert Rees

Labels: direct-access, discrimination, employment, public-access, tribunal, unfair-dismissal, unfair-terms

Chambers' employment barristers act and advise in all employment tribunal matters in Leicester, Nottingham, Birmingham and further afield including disability discrimination, holiday pay, breach of contract and unfair dismissal cases.

 Many employment tribunal claims concern constructive dismissal claims where an employee can resign because of an employers serious breach of contract towards him. In legal parlance he can accept the employer's repudiation of the contract. For this, the employee can rely upon the employer's breach the implied term in the contract of mutual trust and confidence. However employers should be alert to a defence they may have if the employee has first broken the employment contract. If so, the employee is not entitled to claim unfair constructive dismissal by claiming a repudiation by the employer because he has first destroyed the employment relationship. This happened in the recently reported case of RDF Media Group Plc V Clements [2008] IRLR 207 in fact a High Court case, which of course New Walk Chambers employment barrister cover as well.

 There Mr Clements had agreed a 3 - year non-competitive agreement with his employers RDF Media Group which he wished to get out of. The agreement provided that the 3 year period would be reduced to 2 years if the employers unlawfully dismissed him. Clements alleged that the employers had breached the implied term of trust and confidence by inter alia going to the the press with unflattering remarks (that Mr Clements was a "phenomenal egomaniac" and other information. The High Court held that the employer had indeed overstepped the mark by going to the press [other comments made internally that Mr Clements was "a bit dim" did not breach the term] and these were in breach of contract as being a serious attack on his character. However Mr Clements could not rely on the employer's breaches because he himself had been earlier in breach of contract by contacting a competitor of the employer and disclosing confidential information: Mr Clements himself had been disloyal and in breach of his own duty of fidelity.

The result was that Mr Clements had not been unlawfully dismissed by the employer and thus was bound by the full 3 year period of his non-competition agreement with the employer.

Wait for the new direct public access employment barrister's website which will be out soon. New Walk Chambers employment barristers as well as offering their services for employment tribunal claims can now in certain cases offer their services direct to the public.

This applies to employment tribunal claims for both Claimants and Respondents in all areas of employment law.

Written by Robert Rees, Barrister at New Walk Chambers, specialising in Employment Law.

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TUPE and Administration

23 Apr 2008, 13:15 by Joseph Neville

Labels: administration, court-of-appeal, employment, insolvency, machinations, tupe, unfair-dismissal

  The recent Court of Appeal case of Dynamex Friction Ltd & Anor v Amicus & Ors is a fascinating look at the impact upon employees where a company enters administration and the business subsequently passes to a phoenix company. In many cases the owners and controllers of the phoenix are the same individuals who drove the original company into administration in the first place.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 are designed to provide rights to employees where their employment transfers from one person or company to another. It provides that employees will have a claim of unfair dismissal if they were dismissed in consequence of the transfer. If the business had simply been sold on without the intervening administration, then the employees' employment would have transferred with it.

In this case however, when the company went into administration, the administrator decided that there wasn't enough money in the company to pay the employees so dismissed them all. He then sold on the business to a company which fell into the eventual control of the original director. Here the reason for the dismissal was not a transfer, it was because the administrator couldn't afford the wage bill.

The employees contended that their dismissal was the consequence of the transfer, as they alleged the overall process was a result of the ‘machinations' of the previous director and that he had planned it all along. Had this argument been successful it would have struck an important blow for the many employees who find themselves in this situation. The Court of Appeal however, by a majority, found that once it was established the dismissing officer made his decision independently, and for a particular reason, it was impossible to look behind that reason at any surrounding context or scheming.

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

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