Wright, Johnston & Mackenzie Solicitors

More money for successful claimants

From 1 February 2008, The Employment Rights (Increase of Limits) Order 2007 comes into effect. The main changes are:

  An increase to the limit on a week’s pay from ?310 to ?330 ? this is the maximum amount which can be taken into account for basic and additional awards in unfair dismissal cases, for statutory redundancy payment calculations and for government guarantee arrangements where there is an insolvency.

  The maximum compensatory award will rise from ?60,600 to ?63,000. The maximum possible award in straightforward unfair dismissal cases therefore increases from ?69,900 to ?72,900 (ie ?63,000 plus 30 x ?330).

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The heat is on for employers

The TUC have released a seasonal statement calling on employers to ensure that heating is turned back on at factories and offices before employees return to work after the Christmas and New Year break. They state that most workplaces should be kept to at least 16 degrees centigrade, the TUC reminds employers that it may take time for heating to have an impact, so while it does so employers may be breaking the law.

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Extension of time and territorial jurisdiction of employment tribunals

In the recent case of Bleuse v MBT Transport and anor, the EAT took the ?overriding objective? into account to overrule a tribunal?s decision to refuse to extend the time limit for making a claim, which was almost a month out of time. The claimant did not speak English and had instructed a legal representative. The EAT generously interpreted the ?not reasonably practicable? requirement and remitted this question for reconsideration by a fresh tribunal.

With regard to territorial jurisdiction, the claimant worked as a lorry driver for a company registered in England under an employment contract providing that it was governed by English law. The claimant worked mainly in Austria and Germany, but never in the UK. The tribunal held that, following the House of Lords ruling in Serco Ltd v Lawson, the UK Employment Tribunals had no jurisdiction to hear the claims. The claimant appealed.

The EAT allowed the appeal in part. It highlighted that the decision in Serco Ltd v Lawson related to statutory claims, so this decision only applied in relation to the claims of unfair dismissal and unlawful deductions from wages. The EAT held that the original tribunal?s decision had been correct, there was no jurisdiction to consider these claims. However, the position was different in respect of the claim for breach of contract. That was not a statutory claim and so the rule from the Serco case did not apply. Further, the position could be differentiated in respect of the claim for non-payment of holiday pay. That claim, unlike the claims for unfair dismissal and unlawful deduction from wages, could be founded on a directly effective and assertable right conferred by EU law (and enforced in the UK through the Working Time Regulations)

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A sting in the tale?

In the recent case of Lake House Ltd v Martin, widely reported in the press under its better-known title of ?Sting and wife sack chef?, the claimant became pregnant in 2004. At the same time, the claimant developed gastro-enteritis. The resulting absences from work were not well received by the employers. The claimant was dismissed in 2006. She claimed unfair dismissal and sex discrimination and won. The employers appealed. One of the grounds for appeal was that remarks by the Tribunal concerning the employers’ accountant, described as a ?minion? and a ?gopher? by the Tribunal, demonstrated bias.

The EAT dismissed the appeal on that point, holding that the Tribunal’s rather injudicious remarks were made after the evidence had been heard and they reflected views from the evidence. It was wrong to suggest that the remarks showed prejudice or bias.

Practical implications

Once all the evidence has been heard by a tribunal, if the tribunal then makes critical comments about a party, there would appear to be no recourse for the offended party.

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Reasonableness of dismissal and amount of award

In the recently decided case of The Governing Body of Hastingbury School v Clarke, the claimant was a newly qualified school teacher, who exhibited strange behaviour on several occasions. This behaviour included telling a student he had been taken over by aliens and that terrorists were coming to kill the students. In addition, various female students complained about his conduct. Staff raised concerns as to the claimants? ability to do his job and of the potential risk to both students and staff.

The claimant was suspended and dismissed. He claimed unfair dismissal and was successful at a tribunal on the basis that he were suffering from an illness and no referral to Occupational Health had been made. The suspension would have been sufficient to protect the children. The claimant was awarded in excess of ?26,000. The employer appealed.

The EAT dismissed the employer?s appeal regarding liability but allowed the appeal against the remedy awarded. It substituted an award of basic award plus ten weeks’ net pay, totalling ?4,360 on the basis that in light of ? the psychiatric evidence before the Tribunal, the only possible conclusion was that the dismissal would have occurred in any event, even had the referral been made?, but that there would have been a delay of some ten weeks.

Practical implications

The EAT pointed out that the tribunal in the first instance should have considered the Polkey principle. This is an authoritative case, which in which consideration was given to the chances of dismissal occurring in any event and at what stage (notwithstanding whether or not the dismissal was unfair). It is therefore essential that, in cases where dismissal may or would have occurred in any event, the Polkey case is kept in mind.

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When is a dismissal not a dismissal?

In the recent case of Tom Findlay & Co Ltd v Devlin, the claimant resigned and gave twelve week?s notice. The employment contract, however, only required that 4 weeks? notice be given. On giving notice, the claimant stated that their employment would end on 25 November 2005, unless an earlier date suited the employer. The employer found a replacement and wrote to the claimant, advising that the claimant would be paid until 25 November, but that they could finish work as of 21 October 2005. The claimant claimed unfair dismissal and won, with the employer appealing to the EAT.

The EAT allowed the employer?s appeal. It pointed out that the claimant had no right to withdraw the resignation once it had been tendered. The claimant was asserting a right - this was not simply an offer that had to be accepted before it could be effective. Although the claimant was prepared to be flexible about the actual date, the contract of employment in fact ended on 25 November 2005. This occurred solely due to the resignation. All the letter from the employer did was remove any obligation for the claimant to attend work. It did not terminate the contract of employment (all other obligations remained in place) and so there was no dismissal.

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The overseas application of TUPE

The EAT has held, in Hollis Metal Industries v GMB, that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) has the potential to apply to transfers of businesses outside the UK (and, indeed, outside the EU). This is the first case to consider this issue.

Factual Background

The original employer was a curtain-making business based in England. Some parts of their operations were transferred from a factory in England to a new employer in Israel, which is outside the EU. None of the employees were transferred.

The EAT held that TUPE potentially applied to transfers outside the UK, notwithstanding that enforcing tribunal awards might prove difficult. Such a decision upheld the policy of TUPE and did not offend the principle that legislation should not normally be regarded as having extra-territorial jurisdiction, since the requirement that the business originally be based within the UK provided sufficient connection with the UK to give jurisdiction to UK courts.

Practical implications

The decision in this case could have far-reaching effects for employers in the UK. Any business seeking to transfer their undertakings to an entity out-with the UK will require to adhere to the principles of the TUPE Regulations. Despite the fact that enforcement of awards may be difficult in another jurisdiction, it is likely that there will be more cases to follow on this matter.

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Another late claim permitted

Regular readers of the Employment Briefing will note that there has been a rash of cases dealing with time extensions of late (pardon the pun) and yet another case on this matter has recently been decided upon by the EAT.

In Ashcroft v Haberdasher?s Askes? Boys School, an extension of time for an unfair dismissal claims was sought. The claimant/employee awaited the outcome of an internal appeal, and the appeal had been dismissed very near to the end of the three-month limitation period.

Factual background

The employer dismissed the claimant?s appeal against dismissal at 6pm on the last day of the three-month period. The effect of this was that, when the limitation period expired six hours later, there was no pending appeal and therefore the time limit was not automatically extended by a further three months.

The EAT held that Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (which allows the time limit to be extended for three months) effectively repealed the rule in Palmer & Saunders v Southend-on-Sea Borough Council (1984). This rule was that the existence of an appeal does not mean it is ‘not reasonably practicable’ to bring a tribunal claim within time. Where the employee reasonably believes that statutory dismissal procedures are being followed, they will be protected by Regulation 15.

The EAT stated in this case that the claimant had the protection of Regulation 15 up until 6pm on the last day of the limitation period. In this case, given the purpose of the statutory disciplinary and grievance procedures was to discourage tribunal proceedings before an internal appeal was dealt with, it was not reasonably practicable to lodge tribunal proceedings within the normal three-month period.

Regular readers may notice the similarity between this case and the case of Royal Bank of Scotland v Bevan, which was outlined in last month?s Employment Briefing. Interestingly, the Bevan case was not considered by the tribunal in the Ashcroft case, yet the same outcome was reached.

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Further Information

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

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