Wright, Johnston & Mackenzie Solicitors

Increases to statutory maternity pay and statutory sick pay

The draft Social Security Benefits Up-rating Order 2008 has been published. From 6th April 2008, SMP increases to ?117.18 per week (from ?112.75), and SSP increases to ?75.40 per week (from ?72.55).

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Tribunal is under no duty to ensure that Claimant pursues each and every possible allegation contained in claim

In the case of Hyde-Walsh v (1) Ashby (2) Fitch (t/a Anderson Stockley) the claimant brought claims in an employment tribunal, winning some and losing others. At the appeal the claimant raised a new issue, claiming that a report referred to in the original tribunal claim was a protected disclosure under the Employment Rights Act.

The question was, could the claimant run an argument before the EAT based on facts pleaded in the original claim form but which were not advanced before the original tribunal because they did not know at that time that the argument existed? The EAT said “no” and dismissed the appeal.

It is always good practice for an employment tribunal to try to establish exactly what is being claimed. However, no duty is incumbent on the tribunal, of its own accord, to ensure that every allegation in a claim form is dealt with, even where a Claimant does not put forward evidence or arguments in support of it. In this case, there were no exceptional circumstances that would allow this new point of law to be argued now in the EAT. It was not raised before, it did not go to jurisdiction, and a further hearing with fresh evidence would be required were the appeal to then succeed.

Practical implications

This decision reaffirms the earlier authority of Mensah v East Hertfordshire NHS Trust to the effect that in an appeal from an employment tribunal decision, matters not raised at the original tribunal cannot be brought up at the appeal. This has important implications for both claimants and respondents to raise all matters that they think may be relevant in the original tribunal in order for them to be relied upon.

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Tribunal must not simply adopt employer's conclusion, but must satisfy itself that conduct amounts to gross misconduct

In the recent case of Harlington Hospice Association v Mitchell the respondent dismissed the claimant for calling managers liars in front of colleagues and clients. An employment tribunal found the dismissal unfair due to numerous procedural shortcomings. However, it dismissed a claim for wrongful dismissal since it found that the claimant?s actions were gross misconduct, and that summary dismissal was within the range of reasonable responses. Both parties appealed ? the respondent against the outcome and the claimant against the finding of gross misconduct.

The EAT dismissed the respondent?s appeal - the tribunal was quite entitled to reach the conclusions about procedures that it did.

However, it allowed the claimant?s cross-appeal. The EAT judge pointed out that “in determining whether or not the conduct was gross misconduct…the Tribunal does not, of course, simply concern itself with whether a reasonable employer could properly have reached the conclusion that the misconduct justified dismissal or even summary dismissal. The Tribunal has to decide for itself, in the light of the evidence before it, whether there was or was not a breach of contract of such gravity as to amount to gross misconduct.” It was not clear that the tribunal had done so. The case was remitted to it so that it could reconsider that question - and make clear that it had done so.

Practical implications

This has important implications for employment tribunals and upholds the principle that whilst tribunals have wide discretion, they have to decide on the evidence presented, that gross misconduct arose and not simply hold that a reasonable employer could have reasonably reached the same conclusion.

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Fasttrack for Tribunal claims

The UK Government has announced that it proposes to introduce system whereby tribunal claims involving simple monetary issues will be fast-tracked.

The government proposes to develop the fast-track system for four main areas, which are:

Unlawful deductions from wages claims;
Breach of contract claims;
Redundancy pay claims; and
Minimum wage claims.

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Employer found liable for employees suicide where this was not a forseeable consequence of a breach

In the case of Corr v IBC Vehicles Ltd, an employer was held liable for the employee?s suicide where it was shown that it led from depression caused by a workplace accident. Mr Corr was employed by IBC Vehicles Ltd as a maintenance engineer. In 1996 while working on car panelling the machine he was working with unexpectedly moved a panel towards his head. This would have decapitated him had he not moved his head instinctively. He was struck on the side of his head and most of his right ear was severed from his head. This lead to extensive surgery and permanent disfigurement. He also suffered from post traumatic disorder and serious depression. In 2002 Mr Corr committed suicide. His widow brought a claim under the Fatal Accidents Act 1976 to recover financial loss attributable to Mr Corr?s suicide. The court rejected her claim. On appeal the Court of Appeal allowed her appeal. The issue that was key was forseeability of type of harm, not the outcome. As the harm that was foreseeable was depression the court held that as this was the sole cause of the suicide then this showed a causal link and held that the claim under the 1976 Act should succeed.

On IBC?s appeal the House of Lords upheld the Court of Appeal dismissed IBC?s appeal. A majority of the Law Lords suggested that, due to the death being one of suicide, this should be seen as contributory responsibility, which would lead to a reduction in compensation.

Practical Implications

This case shows the potential for far reaching possibilities of accidents at work. The employer will now be liable for death of an employee however unforeseeable that death is, if it resulted from some foreseeable damage caused by and accident at work. Employers should note that the Fatal Accidents Act only applies in England.

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High-profile case on religious expression in the work place is resolved in favour of BA

In the case of Ewieda v British Airways plc an employment tribunal held that BA had not discriminated against a customer-facing employee who refused to conceal beneath her clothes a necklace bearing a cross. The employee, E, was asked to comply with BA policy ? that employees facing customers must not wear any sort of adornment. On a number of occasions she complied with the request, but on a third occasion she refused and was sent home and her pay deducted. She brought a number of claims regarding religious discrimination and unlawful deduction of wages.

The tribunal held that she was not discriminated against on the grounds of religion. The tribunal stated that such a necklace could not be compared to other religious adornment such as a Sikh bangle or a head covering. These are mandatory by their religions where as wearing a cross on a necklace is not for a Christian. Where possible if they can be concealed, such as a bangle, then it is asked that they be concealed. The tribunal held that anybody (Christian, other religious grouping or no faith) wearing a necklace with a cross or other insignia or no insignia would have been treated the same as E ? they would have been asked to conceal it. This request was held not to put Christians at a disadvantage as none of the Christians who gave evidence felt that such an expression was a requirement of Christians. Indeed E confirmed this as she believed that wearing such a necklace was an individual expression of her faith.

Practical Implications

Although the employer was not found liable, this case brings to the fore the issue of religious expression in the work place, and the diversity of such practice in the multi cultural society of the UK, particularly if the employer has uniformed employees. The tribunal stated that if justification had been asked to be considered they felt that the BA policy was not proportionate to their aim of uniformity of appearance among their staff, as it failed to distinguish between jewellery and other items that were an expression of a person?s core identity.

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UK Government increases minimum wage

As of October 2008 the national minimum wage is to be raised to ?5.73 per hour for those over 21 and to ?4.77 per hour for those aged 18-21. To enforce the application of the minimum wage, the government will make the maximum penalty payable an unlimited fine.

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New rules for employing foreign workers

On Friday February 29th, part of the Immigration, Asylum and Nationality Act came into force. Employers will have to understand and verify a number of different types and forms of identification including 27 European Union Member States Passports when employing a foreign worker. If an employer employs or has employed an illegal worker after this date then they can be liable to a fine of up to ?10,000. If an employer employs or has employed an illegal worker knowingly, they can be subject to an unlimited fine and / or a maximum of two years imprisonment.

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Discrimination claims must be considered on information and ability at time of alleged infringement

In the Court of Appeal case of Richmond Adult Community College v McDougal, the court held that events after an alleged discrimination are not to be used as evidence in a tribunal.

In April 2005 an offer of employment was made by the college under condition that M was given health clearance and references. Three and half years earlier she had been sectioned under the Mental Health Act 1983 for a period of four months. The college withdrew its offer because an occupational health report stated that M was not fit to work. M responded by making a discrimination claim at a tribunal. After the claim was made, M relapsed into her mental health condition and was again sectioned in December 2005.

Disability is defined in the Disability Discrimination Act 1995 as ?a physical or mental impairment, which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities?. ?Long Term? is defined, as an impairment that has lasted at least 12 months, is likely to last at lease 12 months or for the rest of the person?s life. The initial tribunal held that M was not disabled at the time of the alleged act. She then appealed to the EAT who held that the relapse was relevant and applied the ?Bwllfa? principle ? where the court held that on making a decision for an award of damages the court should take into account all available information at the time of the award ? and held that M was indeed disabled.

On appeal the Court of Appeal decided that the initial tribunal had been incorrect and they upheld the College?s appeal arguing that, as the DDA is to apply to employers and decisions they make, assessment of these decisions must be made on what information was available when the alleged discrimination took place.

Practical Implications

This decision clarifies the law and gives protection to the employer when making decisions regarding its employees, as it removes the possibility of having to consider possible future events or facts.

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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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