Regents Blogspot

On 03 August 2011 13:27 Daniel Barnett reports

 Where an employer is a public prosecutor is a decision to prosecute an employee something that can be challenged in the Employment Tribunal? Not according to Mr Justice Keith in LB of Waltham Forest v Martin

 The Claimant was employed as a Bus Driver and was also a local resident receiving benefits. When he received a bonus he failed to report this to the benefits department and subsequently the Council decided to prosecute him for benefit fraud. The Claimant alleged that the decision to prosecute rather than imposing an administrative penalty was racially motivated and brought Employment Tribunal proceedings under the Race Relations Act.

 The EAT held that the decision to prosecute Mr Martin even if racially motivated was a decision made by the council in its role of public prosecutor and not employer therefore any claim of racial discrimination had to be brought in the County Court. The EAT noted that the same principle applied to any public authority whose decisions cannot be challenged in the ET merely because they happen to affect an employee

 On 04 August 2011 Daniel Barnett reports HM Revenue & Customs have updated their guidance on employer-supported childcare.

 Guidance and FAQ documents are available for both employers (http://www.hmrc.gov.uk/thelibrary/employer-qa.pdf) and employees http://www.hmrc.gov.uk/thelibrary/employee-qa.pdf.

 On 28 July 2011 Daniel Barnett reports that the Court of Appeal has delivered a robust, compelling and bold defence of the employment tribunal and judicial system.

 Lord Justice Mummery (who is a past president of the EAT) delivered the following comments when dismissing the appeal in Gayle v Sandwell & West Birmingham NHS Trust

 9.    Before I turn to the detailed submissions on Ms Gayle’s appeal I should address the topic of procedural justice and efficiency in the ETs. In the final paragraph of the EAT judgment given by Mrs Justice Slade it is said that:-

                  “33.It is a matter of great regret that so much public money and time has been spent on this matter.”

 10.   I agree. Similar comments have been made in recent public discussions and consultations about the workings of the ET system generally. Some of the criticisms are justified, others need correction and all of them must be seen in their proper perspective.

 1.   The ETs are under enormous pressure in these difficult economic times. Their caseload has increased by over 50% in one year, which comes as no surprise at a time of high unemployment. The cases have become more complex with the legislative expansion of employment protection since the tribunal system was first established. They take longer to process. It is not proper for me to comment on proposed reforms of substantive employment law. That is a controversial policy area for public debate and Parliamentary action. Procedural efficiency and justice are, however, of direct concern to the judiciary: the courts and the tribunals are equipped with wide discretionary powers to ensure that cases are dealt with justly.

 On 10 August 2011 Daniel Barnett Reports:  

A new statutory instrument, the Agency Workers (Amendment) Regulations 2011 has been made by the government, correcting some drafting errors in the original Agency Workers Regulations 2010.

The Regulations, which come into force on 1 October 2011, provide that agency workers (ie temps) will have the same rights to pay, benefits, rest periods and holidays as someone recruited directly by the hirer (including the hirer’s own directly recruited temp workers and employees).

There is a 12 week qualifying period, so genuine short-term agency temps will not qualify for this right. The 12 weeks do not have to be continuous; there can be breaks between assignments and absences on grounds of eg sickness or jury service.

 If you need help with any issues surrounding the Agency Worker Regulations, please contact Regents Solicitors

Reported 13 August 2011  Gay partner of dead TV presenter has “no prospect of success” in removing executors

In a ruling by the Court of Appeal the partner of eccentric TV presenter and personality, Timothy Hadcock-Mackay, lost his battle to have the executors of his estate removed.  Alexander Torquil Mackenzie-Buist argued that the executors had “eroded” the value of the estate.

Mr Hadcock-Mackay, a well known presenter on Channel 4 and hotel entrepreneur, committed suicide in July 2006 leaving an estate worth approximately £2million. The couple never entered into a civil partnership. However, they did live together at Mr Hadcock-Mackay’s £1.2 million mansion. In his Will he made Mr Mackenzie-Buist a substantial beneficiary of the estate. However, Mr Mackenzie-Buist’s lawyers argued that the property portfolio left behind by Mr Hadcock-Mackay ought to be treated as belonging to their client. Their argument being that he had contributed more to their purchase price than Mr Hadcock-Mackay in whose name they were registered.

Jas Chhotu, acting for Mr Mackenzie-Buist explained “The value of Mr Buist’s contribution to the purchase price of the properties registered in the deceased’s name far exceeded any contribution made by the deceased himself.”

The executors argued that Mr Hadcock-Mackay was labouring under a “fundamental misconception” of his entitlements under the Will and they had to take into account the position of the other beneficiaries.

Sir Robin Jacob refused Mr Mackenzie-Buist permission to take his claim further and urged the parties to reach a settlement. Following the judgement his lawyer, Mr Chhotu, commented “If this was a man and a woman case, this would never have happened. The courts would have bent over backwards to protect the woman.

Daniel Barnett reports on 21 June 2011  

 The High Court has handed down its decision in SG v St Gregory’s Catholic Science College, where Collins J found that a uniform policy of prohibiting a cornrows hairstyle for all pupils – without exception – can result in indirect race discrimination, but not sex discrimination.

Collins J found that there was evidence that there are those of African-Caribbean ethnicity who do for reasons based on their culture and ethnicity regard the cutting of their hair to be wrong, so that they need their hair to be kept in cornrows. As such, there was a group who could be at particular disadvantage by a blanket policy that refused to allow cornrows. The School’s arguments that a blanket policy could be justified were rejected.

On sex discrimination, Collins J referred to the Court of Appeal’s decision in Smith v Safeway [1996] ICR 868 and the guidance that rules concerning appearances that enforce a common principle of smartness or conventionality will not be discriminatory; a policy looked at as a whole that allowed cornrows for girls, but not boys, did not amount to unlawful sex discrimination.

The facts of this case had arisen in September 2009, and the question of whether there had been an unlawful refusal to accept the claimant in cornrows will depend on the determination of what the School knew or ought to have known at the time.

Daniel Barnett reports on 18 June

The EAT (HHJ Serota) has handed down its decision in Independent Insurance v Aspinall , which is authority for the proposition that in a complaint for a Protective Award under S188-189 TURLCA 1992, an award in favour of an individual claimant cannot extend to other claimants.

 The Respondent insurance company went into provisional liquidation, failing to comply with its collective consultation obligations over the ensuing redundancies, and there was no recognised Union, nor employee representatives. 

An individual Claimant, Mr Aspinall, won his claim for a Protective Award of 90 days pay, and the employment tribunal made the award for the benefit of Mr Aspinall and 350 of his redundant colleagues, who were not party to his claim.

On appeal, the EAT limited the award to Mr Aspinall, holding that where an individual employee claims a Protective Award, only that employee has the benefit of it. The representative rights to claim for a Protective Award only relate to claims by Trades Union or elected representatives for their ‘constituencies’.

Daniel Barnett  reports on 17 June 2011

The EAT has handed down its decision in two costs cases, which are authority for the propositions that: 

*     A tribunal did not err in making a costs order without taking into account a paying party’s ability to pay, when a Claimant had left the hearing -but not the tribunal building- being represented by a relative, and her conduct of proceedings overall had been ‘outrageous’. The tribunal has a wide ambit of discretion on costs, including whether it takes into account a party’s means. The EAT approved the approach of a previous EAT in Jilley.  

*     An employment tribunal has no power to make a preparation time order in favour of a non-legally represented party for time spent in attendance at a hearing. The clear wording of Rule 42 (3) does not allow for preparation time to be awarded for time spent at any hearing. The Judgment suggests that preparation time might cover time spent outside of tribunal rooms, during or between days of hearings.

Daniel Barnett reports on 20 June 2011

 The EAT (Jan Luba QC) has handed down its decision in Phillips v Xtera Communications Ltd , which is authority for the proposition that an ‘election’ takes place for employee representatives in redundancy collective consultations under TULRCA 1992 where the number of nominations equals the number of representatives’ positions, even if there is no ballot.

The redundant Claimant argued that he was entitled to a protective award due to his employer’s failure to hold an ‘election’ for employee representatives when the number of nominations matched the number of representatives, the employment tribunal disagreed.

The EAT dismissed the appeal, observing that there were sufficient safeguards for employees as the statute requires that the employer makes ’such arrangements as are reasonably practicable’ to ensure that an election is fair, and an employee concerned about an employer ‘rigging’ the nomination process can trigger a ballot by standing themselves or nominating another candidate.

Daniel Barnett reports on 17 June 2011

The Supreme Court has handed down its judgment in Parkwood Leisure Ltd v Alemo-Herron and others , holding that the question whether Article 3.1 of the Acquired Rights Directive precludes national courts from giving a dynamic interpretation to Regulation 5 of TUPE 1981 (now TUPE 2006 Reg 4) was not acte claire and should be referred to the ECJ for a preliminary ruling. 

In the Court of Appeal it had been held that, following the ECJ decision in Werhof v Freeway Traffic Systems GmbH & Co KG [2006] ECR1-2397 on the scope of article 3.1 of the ARD, Regulation 5 should be read as meaning that the transferee was not bound by any collective agreement made after the expiry of an agreement that was in force at the point of the transfer if the employer was not party to the collective bargaining machinery concerned. This is the so-called “static” interpretation. The contrary, “dynamic”, interpretation, would mean that a transferee would be bound to give effect to collective agreements negotiated by a third party from time to time as long as the original contract of employment provided for this. UK case law, including Whent v Cartledge Ltd [1997] IRLR 153, supported this “dynamic” interpretation. The CA held that Whent could not stand in the light of Werhof.

Therefore the question of whether national courts may give a more generous, “dynamic”, interpretation of TUPE, notwithstanding the view in Werhof about the scope of Article 3.1, was referred  to the CJEU.