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26 June 2013 0 Comments Posted in Employment, Opinion

Dismissal procedure and legal representation

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In  Ministry of Justice v Parry the EAT overturned a Tribunal decision which held that the dismissal of a District Probate Registrar created a legal barrier to her working in her profession and that, as such, Article 6 of the European Convention on Human Rights was engaged in the dismissal procedure. The EAT went on to hold that even if Article 6 was engaged, failure to allow legal representation does not automatically mean that the dismissal would be unfair; the key question was whether, overall, the procedure in dismissal was fair.

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Unfair dismissal compensation and set-off

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An interesting point arose in the case of Optimum Group Services Plc v Muir.

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Dismissal within range of reasonable responses

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This is something which is quite often discussed when employers are considering dismissals following disciplinary proceedings.

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Whistle blowers protected after employment has ended

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In a case which may have quite a significant impact, the EAT has held, in Onyango v Berkeley t/a Berkeleys Solicitors that employees are protected from less favourable treatment for whistle blowing even where the whistle blowing allegation is made after the employment is ended.

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Employment News Update – Tribunal fees

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From Monday 29th July 2013 fees will become payable in the Employment and Employment Appeal Tribunals. 

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31 May 2013 0 Comments Posted in Employment

Interpretation of Confidentiality Agreement

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Unusually, the Court of Appeal has given judgment on the interpretation of a confidentiality agreement.

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Appropriate representatives for collective consultation

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In Kelly and another v Hesley Group, the EAT held that the Tribunal was wrong to conclude that members of a pre-existing consultative body were “appropriate representatives” for the purposes of a collective redundancy consultation. The tribunal should have considered whether the representatives had authority from the relevant employees to be consulted about the dismissals. In particular, the tribunal did not consider the purpose for which the body had originally been set up, or the fact that some of the members of the body were co-opted rather than elected. Furthermore the body was expressly stated as being “non-negotiating”. The case was remitted to the Tribunal for further fact finding and consideration.

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Contributory conduct

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In Ladrick Lemonious v Church Comissioners, the EAT reviewed the correct approach to assessing contributory fault and the extent to which this can reduce any award which may be made if the employee is found to have been unfairly dismissed.

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Vague complaints of discrimination insufficient to constitute victimisation

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In Durrani v London Borough of Ealing,  the EAT has held that a non-specific complaint of “discrimination”, meaning unfair treatment, but which is not linked to a protected characteristic, was not a protected act for the purposes of victimisation claim.

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Pension contributions are not “wages”

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In Somerset County Council v Chambers, the EAT has held that pension contributions paid by the employer do not count as wages within the definition of section 27(1)(a) of the Employment Rights Act. This is not withstanding the fact that the definition is stated as being “any sums payable to the worker in connection with his employment”. The reason for this is that the contributions are paid to the pension provider on the employee’s behalf and not directly to the employee.

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TUPE – Affected employees

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In I LAB Facilities v Metcalfe and others, the EAT has held that there is no obligation to consult employees under regulation 13 of TUPE where part of the business is subject to a transfer and those employees transfer, and the employees who do not transfer lose their jobs when the remainder of the business closes down. The non-transferring employees were held not to be “affected employees” within the meaning of regulation 13(1) of TUPE.

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Protective Award for failure to provide information

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In UNISON v London Borough of Barnet and another the Tribunal made a protective award of 60 days pay in respect of redundant employees and awards of 40 and 50 days pay in respect of employees affected by TUPE transfers. Both were because of the employer’s failure to provide the recognised trade union with sufficient information on agency workers for the purpose of consulting over both the proposed redundancies and two separate TUPE transfers.

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