Employment Law Bulletin – Issue 103 – 21 June 2011

Tuesday 21 June 2011

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David and Goliath?

The battle lines appear to be drawn in what has been billed as the "biggest strike for 100 years" over public sector pensions. An estimated 750,000 workers will take part in strikes in a fight to secure their pensions. Click here to read the news story.

Cuts equals bullying?

Harsh budget cuts implemented by the Government in response to the economic downturn are said to be fuelling the increase of bullying in the work place. According to Unison one in four of their members taking part in a survey reported an increase of bullying related to staff cutbacks. Click here for more details.

Have your say

There is still time to register your comments in relation to the Government's continued consultation into the Equality Act 2010 - the deadline is 30 June 2011. Concern has been expressed by interest groups that what lies at the heart of this consultation exercise may be a desire by the government to remove or water-down some of the provisions within the Act. Click here to take part in the consultation.


Court of Appeal

Summary dismissal & Effective Date of Termination (EDT)

Societe Generale, London Branch v Geys [2011] EWCA Civ 307
An employment contract can be terminated with immediate effect by a clause allowing the employer to make a payment in lieu of notice (PILON). So the Court of Appeal held in deciding that a contract can (when clearly drafted) be terminated by a PILON even if the employee was not aware that a payment had been made into his account. Click here to read the judgment.

Calculation of future loss

Wardle v Credit Agricole Corporate and Investment Bank [2011] EWCA Civ 545

The Court of Appeal held it would rarely be appropriate for compensation to be assessed over a career lifetime. The usual approach would be to assess loss up to the point where the employee would be likely to get an equivalent job. A tribunal's estimate as to when someone will get a new job is inevitably imprecise and may turn out to be over pessimistic or over optimistic. That uncertainty is built into the estimate. Click here to read the full decision.

Employment Appeal Tribunal

Redundancy: Collective consultation and information

Phillips v Xteria Communications Ltd [2011] UKEAT 0244_10_1706 (17 June 2011)

The EAT considered the meaning of the words "election" and "elected" in the Trade Union & Labour Relations (Consolidation) Act 1992 sections 188 and 188A. In this case, the number of candidates precisely matched the number of available places for elected employee representatives. The employer treated them as 'elected'. The Tribunal approved the approach adopted by the employer and rejected a claim for a protected award under section 189. The EAT upheld the Tribunal decision, stating that despite the absence of a ballot, the representatives were 'elected' as they were the only nominees and filled all the available places. The statute did not require a ballot in an uncontested election. Click here to read the full judgment.

Wasted costs

Jackson v Cambridgeshire County Council & Ors [2011] UKEAT 0402_09_0806 (8 June 2011)

The EAT held that the tribunal was wrong to make a wasted costs order in circumstances where it did not properly address the Appellant's case that he was not acting in pursuit of profit within the meaning of rule 48 (4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The EAT observed that tribunals must be sure to adopt a fair procedure in relation to the issue of wasted costs and in certain circumstances that may necessitate an adjournment so that the party against whom the application is made, can properly defend it. Click here to read the judgment.

Practice and Procedure: Review following judgment

Hiero v Changework Now Ltd [2011] UKEAT 0424_10_1905 (19 May 2011)

The Tribunal had erred by considering the application for review only in terms of new evidence pursuant to rule 34(3)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The EAT held that although the application for review could not have succeeded on the basis of new evidence, the interests of justice were also engaged and the Tribunal should have considered the application for review on that wider basis. Click here to read the judgment.

Race discrimination: acts by a third party

Sheffield City Council v Norouzi [2011] UKEAT 0497_10_1406 (14 April 2011)

The Tribunal was correct in finding that the Appellant council were responsible for the acts of harassment and indirect discrimination on the grounds of race, despite there being no employment or agency relationship between the council and the perpetrator of the acts alleged but where there was a continuing course of offensive conduct of which the council was aware. Click here to read the judgment.

Notices and Forthcoming Events

The Discrimination Law Association will be hosting the following events in the coming weeks. A lecture by Robin Allen QC on Age Discrimination to be held at 6.15pm on 29 June 2011 and another by Louise Whitfield entitled "Using Judicial Review to challenge breach of public sector equality duty in the public sector" at 6pm on 27 July 2011. Both events will be held at the London offices of Russell Jones and Walker and are open to members. Click here to go to the DLA home page and log in for further details.

The All Party Parliamentary Group (APPG) on Legal Aid has invited Legal Aid Minister, Jonathan Djanogly MP, to a meeting on Wednesday, 29 June at 3:00-4:30pm to speak on the Government's proposals on legal aid. For further details click here.

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