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31 May 2013 0 Comments Posted in Employment, Opinion

Employment News Update – Enterprise and Regulatory Reform Act 2013

Posted by , Partner

BIS has issued a press release with commencement dates for some of the changes introduced by the Enterprise and Regulatory Reform Act 2013.

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Employment News Legal – EAT Fees Order 2013

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The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 has now been released.

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26 April 2013 0 Comments Posted in Employment, Opinion

Too old to work, too young to retire?

Posted by , Partner

Have local authorities learnt anything from the recent high profile age discrimination cases?

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18 April 2013 0 Comments Posted in Employment

Redundancy existed even though replacement already appointed

Posted by , Partner

If an employer employs one person to effectively do the job of another and then sacks that other, is it a genuine redundancy?

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Dismissal of football club employees not an ETO reason

Posted by , Partner

In Kavanagh and others v Crystal Palace FC (2000) Limited and others, the EAT has held that a Tribunal was wrong to conclude that the dismissals of the employees by the club’s administrator before the business was sold, and which were clearly connected to the sale, were not automatically unfair because they were carried out for an ETO reason entailing changes in the workforce.

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Where SOSR is not established

Posted by , Partner

The case of Handshake Limited v Summers highlights that the “catch all” reason for dismissal of “some other substantial reason” (SOSR to employment professionals) cannot be relied upon as a fallback fair reason for dismissal where there is no other obvious factor for the termination. The EAT has upheld a Tribunal decision that an employee was not dismissed for SOSR (some other substantial reason) where the employer and the employee disagreed over the level of profit share and the failure to agree terms of employment. The employee claimed to have lost all trust and confidence in the employer and was threatening constructive dismissal but neither side acted as if the relationship had broken down. The Tribunal, endorsed by the EAT, held that this was really a power struggle over pay and contractual terms and could not be classed as SOSR.

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Discriminatory exclusion from voluntary severance scheme elicits full payment

Posted by , Partner

In HM Land Registry v McGlue, the EAT found that an employee who was excluded from a voluntary severance scheme on grounds which were found to be discriminatory, and remained in employment, was nonetheless entitled to receive the full compensation for the amount of the severance package which she would have received had she not been discriminated against. It also held that there should be no deduction for the fact that she remained in post. Her evidence was that, had she been selected, she would have taken the payment and found another job with an equal salary so would have remained working, so therefore there was no basis on which to off-set any financial benefit gained by her for remaining in employment with the Respondent.

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Internal disciplinary proceedings

Posted by , Partner

The horrifying story of Baby P raises its head again in the context of the recent Court of Appeal decision in the appeal brought by the employees who were dismissed as a result of what happened. [read more] The high profile case of Christou v London Borough of Haringay arose out of the circumstances of the Baby P case. The Claimants were social workers who were disciplined following the death of Baby P under the council’s disciplinary procedures and given written warnings. However, following the extensive publicity, the original disciplinary proceedings were revisited, found to be unsafe, and fresh disciplinary proceedings were commenced, as a result of which the Claimants were dismissed.

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Redundancy selection and competency assessment

Posted by , Partner

The case in this section gives some interesting guidance to employers carrying out a redundancy process and operating selection criteria. Purely objective criteria may not, in isolation, always be the most appropriate ones to use. [read more] In Mental Health Care (UK) Limited v Biluan and another, the EAT has held that it is not necessarily fair to carry out a redundancy selection exercise based purely on competency tests at the time, especially if no consideration has been given to past performance.

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Covert recordings are admissible

Posted by , Partner

In a case which will cause some consternation for employers, the EAT has declared that covert recordings made by employees without the knowledge of the employer are admissible in evidence in tribunal claims. In Vaughan v London Borough of Lewisham and others, the EAT has overturned an Employment Judge’s decision to refuse the application of a Claimant to submit in evidence 39 hours of covert recordings which she had made using a dictaphone, of discussions between herself and her managers and colleagues. She claimed that these would show that the Respondent’s notes were inaccurate or wrong.

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Post termination victimisation not covered under Equality Act

Posted by , Partner

Currently, the Equality Act provides no remedy for employees for acts of victimisation done by an employer once the employee’s employment has ended. As a result of the case in this section, the law may well be changed. In Rowstock Limited v Jessemey, the EAT has upheld an Employment Tribunal decision that a Claimant who was dismissed in breach of the then statutory retirement procedures and who then issued a claim, was subsequently victimised for bringing the claim when the employer gave him an unfavourable reference. Consequently he brought a victimisation claim. However both the Tribunal and the EAT found that the Equality Act did not provide a remedy for post termination victimisation. The Equality and Human Rights commission intervened in the appeal to the EAT and all the parties accepted that, if this was correct, it would not be compatible with the Equal Treatment Directive. The EAT considered it would exceed its judicial remit if it construed into the relevant section wording which was directly opposite to what was expressly stated. Consequently there was no remedy available for the Claimant for the act of victimisation.

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Treating vulnerable people badly was not discrimination

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In Taiwo v Olaigbe, the EAT has upheld a Tribunal decision that the Claimant, who is Nigerian and was engaged as a domestic with the Respondent, had been treated appallingly badly, but not on the grounds of direct or indirect race discrimination. This was found to be the case, even though the Tribunal had found that the cause of the treatment was strongly associated with her vulnerability caused by lack of English and dependence on her employers to remain in the UK. Other factors which caused her vulnerability, such as low socio-economic status and the imbalance of power between the employer and the employee, meant that the factual cause of the unfavourable treatment was not inevitably linked to her immigration status.

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