Conciliation in Appeals

ACAS is extending its conciliation services to cover some cases at the Employment Appeal Tribunal, to include cases where:

the employment relationship is ongoing

there is a possibility of the case being referred back to the employment tribunal

the appeal covers monetary awards

WJM are acting for clients in what is believed to be the first referral from the EAT to ACAS.

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What?s the Plan, Prime Minister?

The government’s draft legislative programme for the forthcoming year has been published which outlines draft legislation that is likely be put before Parliament. It includes the interestingly named Employment Simplification Bill which will implement the terms of the Gibbons Review. This Review was mentioned in an earlier Briefing and it concluded that the vexed Statutory Dispute Resolution Procedures should be repealed. It is likely that this will now happen and the procedures will be replaced by ?other measures? which are not yet specified. A consultation on this topic has just closed and we will bring you news of the outcome in future Briefings.

The Bill will also deal with clarification and enhancement of the enforcement regime for the National Minimum Wage and the regulation of Employment Agencies

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Say No To PILONs!

In the case of Morrish v NTL Group, the Court of Session has held that pay in lieu of notice (PILON) clauses cannot be implied into contracts of employment. This means that, if an employer wants to pay money in lieu of notice without breaching the contract, there must be an express term allowing it to do so.

In this case, a financial director?s contract expressly stated he was entitled to 12 months’ written notice but the contract was terminated by the company without notice.

The company argued that the contract was subject to an implied term entitling them to payment in lieu. However, the court disagreed and stated that such an implied term would be contrary to the express right to receive twelve months’ notice.

What does this decision mean for employers?

With lower level contracts, there is not much to worry about except you should ensure that a PILON clause includes compensation for car use and other benefits.

However, with executive contracts bonus entitlements may be affected an employee could bring a claim based on failure to pay bonus or loss of entitlements. There may be an adverse effect on accrual of pension rights (beyond the loss of premiums) if the notice period is sufficiently lengthy. Restrictive covenants may be rendered inoperable in accordance with the mutuality rule ie an employer may be precluded from enforcing a restrictive covenant where it has breached the contract by paying in lieu of notice in the absence of an express provision allowing it to do so.
Other “In event of breach” clauses may be triggered.

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Collective Redundancies

The Employment Appeal Tribunal has held that, where an employer makes 17 compulsory redundancies, immediately following 3 voluntary redundancies, that employer is taken to have made 20 people redundant within a 90-day period.

The employer in this case, Optare Group v TGWU, argued that the initial 3 voluntary redundancies should not be taken into account because the employer did not ?propose? to dismiss them.

Unfortunately for the employers, this argument was not accepted by the EAT, nor the earlier ET. The collective consultation provisions applied in this case and so a protective award could be made.

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Holiday!

The Government has published a response to the further consultation regarding the changes to holiday entitlement:

www.dti.gov.uk/employment/holidays/index.html

The link above takes you to a good summary of the main parts of the consultation on the DTI website. It may be of use to note paragraph 11 of page 9 of the response, which relates to payment in lieu of holidays and says:

“The Government recognises the wish on the part of some employers to
provide payment in lieu of the additional holiday, and the concern expressed
by individuals and unions that the ability to make such payment would be
open to coercion and abuse. As stated in the Government response to the
initial consultation, the Government does not intend to enable payment
in lieu of the additional holiday entitlement. However, the Government also
notes the concern expressed by some respondents, particularly from the
care sector, about the ability to provide the staff cover required by statute,
for the periods of additional holiday and the difficulties that some sectors
face in recruiting suitable staff. The Government therefore proposes to
allow payment in lieu of the additional holiday entitlement until 1 April
2009, a transitional period to enable required staff to be recruited and
trained. This transitional period may also help employers to align the
increase in actual leave taken by staff with their own particular leave year.”

In short, this means that payment in lieu of holidays can be made for additional holidays (i.e. over the statutory minimum, currently 4 weeks) but only until April 2009.

Remember that employees will be entitled to 24 days? holiday per year from this October, and then 28 days from April 2009.

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Introducing New Claims outside the Limitation Period

In the recent case of TGWU v Safeway Stores it was held that it will usually be competent to amend a claim form / ET1 to introduce a new legal cause of action which relies on the facts which have already been included. This is possible even if the new cause of action is intriduced out of time.

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The Burden of Proof in Victimisation Cases

In the case of Oyarce v Cheshire County Council the EAT has confirmed that the reversed burden of proof in race discrimination claims does not apply to allegations of victimisation.

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A Sting to the Bank Balance

An Employment Tribunal has made an award in the sex discrimination case involving Sting and his wife Trudie Styler.

The Tribunal stung the Stings by finding that they had wrongfully dismissed their chef after learning that she was pregnant. It held that the chef has been sexually discriminated against and awarded her ?24,944.

The chef had been employed for eight years and was earning around ?26,900 per year.

It is thought that Mr & Mrs Sting will appeal the decision. We will keep you updated!

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Statutory Grievance Procedures ? Further Confusion

Although the statutory grievance procedures provide that employees must raise grievances in cases of race discrimination, employees are not required to raise a grievance where the act of discrimination is dismissal.

The recent case of Otaiku v Rotherham Primary Care NHS Trust involved a race discrimination complaint and a dismissal. The grievance procedure was not complied with. The Tribunal only allowed her claim to proceed in respect of the dismissal, but not for the other complaints.

However, on appeal, the EAT held that this decision was wrong and that the grievance procedures should be interpreted widely. No grievance was necessary.

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Disability Discrimination covers Dyslexia

In the case of Patterson v Commissioner of Police for the Metropolis, a senior policeman learned that he was dyslexic after serving in the force for 15 years. When this case was first heard the Tribunal stressed that a diagnosis did not infer a disability and that it was important to have regard to what the Claimant could do rather than what he was unable to do. The Tribunal concluded that the dyslexia had a minor impact upon the Claimant’s day-to-day life and that he was not disabled within the meaning of the Disability Discrimination Act 1995.

However, on appeal, the EAT disagreed and held that the policeman was disabled. It held that the earlier Tribunal had compared the performance of the employee with an average person and this was the wrong approach. Instead, it should have compared what the individual could actually do with what he would be able to do but for the impairment

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Long-term Sick Leave and Unfair Dismissal

The case of GAB Robins v Trigg involved a claimant who had been absent from work due to illness for four months and then subsequently claimed constructive dismissal.

The Employment Appeal Tribunal had to consider the calculation of the compensatory award and in particular, whether the employee’s loss of earnings has been caused by the constructive dismissal.

The EAT distinguished an actual dismissal, where loss of earnings might not be awarded, from a constructive dismissal. In the latter case, it is likely that the dismissal covered a series of events and not only the final straw. This applied in this case, where the constructive dismissal followed the failure by the employer to deal with a grievance, which involved allegations of bullying, causing the sickness absence.

The EAT held that the course of conduct by the employer was a breach of the implied term of trust and confidence and that it resulted in the constructive dismissal. Accordingly, the Claimant?s ill health was treated as a result of the dismissal, which in turn led to the loss of earnings.

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Further Information

For further information on these or any other employment issues please contact:

Martin Stephen .(JavaScript must be enabled to view this email address), 0141 248 3434

Andrew Wilson .(JavaScript must be enabled to view this email address) or 0131 221 5560

Liam Entwistle .(JavaScript must be enabled to view this email address). 0141 248 3434

Geraldine Leonard (Praesidium) .(JavaScript must be enabled to view this email address) 0141 248 3434 or 07876 330 156

Julia MacDonald (Human Resources) .(JavaScript must be enabled to view this email address) 0141 248 3434

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