Wright, Johnston & Mackenzie Solicitors

The end of Tribunal Chairmen

From 1 December, Employment Tribunal Chairmen became known as Employment Judges. The Tribunals, Courts and Enforcement Act 2007 brings into force this new title. When addressing an Employment Judge, the appropriate etiquette is to refer to them as “Sir” or “Madam”.

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Working 9 to 5? Not any more

The Department for Business, Enterprise and Regulatory Reform has commissioned a study into current work-life balance trends and discovered that 95% of workplaces offer some form of flexible working for staff. The number of workplaces providing childcare facilities or other arrangements to help parents combine work with family commitments, has more than doubled since 2003, from 8% to 18%. Recent research also shows more men than ever are keen to work flexibly, making up 43% of employees who requested a change to working patterns in the past two years.

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Employers cannot use TUPE to avoid being bound by new terms agreed with the transferring employees

The Court of Appeal in Regent Security Services Limited v Power upheld the earlier decision of the Employment Appeal Tribunal (EAT) and confirmed that employees who transfer under TUPE cannot be deprived of their existing rights that transfer with them. However, this does not mean that the transferee can rely on TUPE to avoid being bound by any new terms agreed with the employee. The Court of Appeal confirmed that transferred employees can choose between enforcing the rights that transferred with them under TUPE or relying on any new rights granted by the transferee.

In this case, the employee had agreed to change his retirement age from 60 to 65. When the business transferred to a new owner, the new employer wanted him to retire at 60. The employer tried to argue that the agreement the employee had made with the previous employer was void. In the first instance, the tribunal agreed with this. This decision was, however, later reversed by the Employment Appeal Tribunal and the Court of Appeal.

While the Employment Appeal Tribunal suggested that employees “may have to give up any benefits obtained under the varied contract” when they enforce their original terms, this was only a comment by the Employment Appeal Tribunal and not part of its findings and each case will turn on its own particular facts.

Practical implications
New employers making changes to employees’ terms following a transfer of undertakings must take care to ensure that employees do not have the benefit of the new, more advantageous terms, if they want to rely also on their original terms. Although the employee will be able to pick and choose those of the changes they wish to accept, the employer will not be afforded this luxury.

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Capping of compensation for unfair dismissal as a result of a subsequent event

In Ros and Angel (t/a Cherry Tree Day Nursery) v Fanstone, the EAT held that the existing principles outlined in Gover and others v Property Care Limited in relation to capping the compensatory award for unfair dismissal (where the employee would or could have been dismissed fairly) could be extended to circumstances where the employment could have terminated in other ways. In this case, the employee had already given notice and her employment was due to terminate a mere ten minutes after her dismissal. The EAT held therefore that her losses should stop at that point.

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New issues raised at the Hearing ? how a Tribunal should properly deal with these

In the recent case of Ladbrokes Racing Ltd v Traynor, the EAT overturned a Tribunal’s decision to allow a Claimant to amend his unfair dismissal claim in the course of the Hearing. The Claimant wanted to add an allegation that the dismissal was unfair on procedural grounds. The fact that the Respondent “should have seen it coming” was, in the EAT’s view, not a relevant consideration. The EAT gave guidance on how Tribunals should deal with applications to amend. The other party should be given notice of the actual wording of the proposed amendment and given the opportunity to respond. In addition, the EAT noted that a decision to allow an amendment is not an “order” but a “judgment”, and so the Tribunal must give reasons for its decision.

In this case, the claimant was represented by his wife, who was herself employed by the respondents and claimed to be well-versed in employment proceedings. However, she had only observed Tribunals previously and had no idea how to complete a claim form. She was unaware that she would be unable to expand on the claim at a later stage. The Tribunal allowed a line of cross-examination that had not been mentioned at all in the claim form. This was not submitted as a formal amendment and the respondents were given no chance to respond.

Practical implications
If during the course of a Tribunal hearing, a party wishes to amend a claim or a response to include details erroneously omitted, they must formally request the opportunity to do so giving a full explanation of why they were not included at the time the application or response was prepared. This allows the other party the chance to respond. The Tribunal must then make a reasoned judgement. It is therefore important, where possible, to have all relevant details in a Tribunal application prior to commencing an action or to respond fully at the outset so that the above situation can be avoided.

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Duty to consult over reasons for redundancies

It was held by the EAT in the recent case of UK Coal Mining v National Union of Mineworkers (Northumberland Area) that, where the closure of a workplace involves making employees redundant, the employer is obliged to consult over the reasons for closure as part of the collective redundancy obligations. This is in line with the EC Collective Redundancies Directive. In this case, a colliery had to close down due to damage caused by severe flooding and the employer maintained that there was no obligation to consult. The workers? union representatives disagreed and raised a tribunal action.

Legal Background
Under the provisions of section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, an employer must consult with appropriate representatives of the employees if 20 or more employees are to be made redundant at one workplace within 90 days or less. If 100 or more employees are to be made redundant, at least 90 days notice must be given before the first dismissal takes effect.

Practical Implications
It had previously been thought that the obligation to consult covered only the question of how a redundancy programme would be carried out and that it did not impose an obligation to consult on whether redundancies should or should not take place.

This approach was, in this case, held to be no longer good law in light of the statutory developments in this area. Legal commentators have stated that whilst, for commercial reasons, the employer in this instance did not take the matter to the Court of Appeal, that this issue will no doubt arise again in the future.

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Party?s expert permitted to challenge methodology of independent expert

It was held by the EAT in the recent case of Middlesbrough Borough Council v Surtees and others that a party in a Tribunal was allowed to call its own expert to challenge the methodology of an independent expert (IE) appointed by the tribunal. The IE was asked to produce a report on whether a claimant and comparator performed work of equal value. However, the party?s expert evidence will not be admissible insofar as it challenges facts already found by the Tribunal or agreed between the parties.

Legal background
Where an IE is appointed by a tribunal to report on an issue of equal value, a party is permitted by rule 11(4) of Schedule 6 to the Employment Tribunal Regulations 2004 to call another expert provided the evidence adduced does not challenge the facts.

Practical implications
This case has clearly laid out exactly what evidence can be given by an expert instructed by a party. The EAT found that “what the party can give evidence about must exclude the facts which are not to be challenged and which represent a sacrosanct position following findings or agreement at an earlier stage in the proceedings”.

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When is a late claim not too late?

In the recent EAT case of Royal Bank of Scotland v Bevan the claimant had been dismissed and waited for the result of an internal appeal before commencing unfair dismissal proceedings in the Employment Tribunal. The claimant was only informed of the outcome of the internal proceedings 5 hours before the expiry of the 3-month time limit. The Tribunal allowed the claim since it was not reasonably practicable to present it before the expiry of the 3-month limit. The respondent appealed this decision but was unsuccessful.

Legal background
An internal right of appeal is on the whole considered to be irrelevant to the question of whether it is reasonably practicable to bring a complaint in time. However, Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 allows for an extension to the time limit where an employee reasonably believes that statutory dismissal procedures are being followed. There exists a 6-month absolute time limit on this, with the purpose of encouraging claimants not to start Tribunal proceedings until internal procedures are complete. The claimant in this instance had reasonably held the belief that statutory dismissal procedures were being adhered to. The Tribunal was therefore entitled to conclude that “if the employer suddenly and without warning completes the appeal procedure just before the expiry of the 3 month period, it is not reasonably practicable for the employee to commence proceedings in time”.

Practical implications
This judgement could have a far-reaching effect on the way in which companies go about internal discipline procedures. The conclusion must be reached that internal procedures must be completed timeously to give employees adequate recourse to the appropriate legal channels.

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Further developments expected in 2008

New fines for illegal working ? February 2008 The Government published new measures on 22 November 2007 to prevent illegal working, following an earlier consultation. The new system, which will come into force in February 2008, will result in employers, who negligently hire illegal workers, facing a fine of up to ?10,000 for each offence. Those who knowingly hire illegal workers face an unlimited fine and a prison sentence.

Over the coming year, the Government will also introduce a new points-based system to ensure only workers with the skills to benefit the economy come into the UK. Employers and colleges will require a licence to sponsor overseas nationals’ visa applications. The Government has published a statement of intent setting out its new approach for licensing those who wish to sponsor such visa applications.

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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

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For information on our HR Services, please contact:

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For information on Praesidium Employment Law Protection, please contact:

Geraldine Leonard .(JavaScript must be enabled to view this email address) 0141 248 3434

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