Employment Law Bulletin - Issue 109 - 7 September 2011

Wednesday 7 September 2011

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Employment Law News

Agency workers watch out?

The Government has commissioned legal advice into whether they can reduce some of the protection offered by the EU Directive on Agency Workers. Statistics gathered in the past have shown that a disproportionate percentage of agency workers are women or from an ethnic minority as compared with the rest of the UK workforce. The concern therefore is that any erosion of the protection afforded to such workers, may well hit sections of the work force who are in greater need of protection. For more details, click here.

Employment Case Law

Employment Appeal Tribunal

Practice and procedure - Costs

Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd [2011] UKEAT 0608_10_3108 (31 August 2011)
The Appellant firm represented the claimant under a contingency fee arrangement. Under the terms of the arrangement, the Appellant would not represent the client at hearing but would require to be put in funds to instruct counsel. The client was unable and unwilling to put the Appellant in funds to instruct counsel. The employment tribunal found, after hearing evidence from the claimant and solicitor (both were cross-examined) that the Appellant failed to advise the claimant in good time that there was no prospect of settlement; and that when the claimant gave instructions to withdraw, failed to implement those instructions until a few days before the full hearing. The tribunal therefore ordered the Appellant to pay the employer's wasted costs as from the date at which the claimant would, if properly advised in good time, have withdrawn. The tribunal also refused to allow the Appellant to produce the case file for the first time at the hearing for the purpose of demonstrating that the claimant had in fact been properly advised.

In dismissing the appeal, the EAT gave general guidance to tribunals when considering applications of this type. First, save in all but the most straightforward of cases, the tribunal should make reference to relevant authorities, in particular the guidance given by the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205. Second it is essential that the party against whom the order is sought has an opportunity to make representations, even if such a course necessitates an adjournment. For the full judgment click here.

National Minimum Wage/Part time Workers Regulations - worker or employee

Baxter v Titan Aviation Ltd [2011] UKEAT 0355_10_3008 (30 August 2011)
The EAT upheld the decision of the tribunal to dismiss the claims made by the Appellant under Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, as the Appellant was not an employee and so could not compare his situation with that of a "comparable full-time employee". Further, the Appellant's appeal against the dismissal of his claim in the tribunal below under the National Minimum Wage Regulations 1999 and the Working Time Regulations 1998 failed as he could not properly be described as either "working" or at his employer's "disposal" during his "lay-over" periods. For the full judgment click here.

Disability discrimination - failure to make reasonable adjustments (DDA ss4A and 18B)

Salford NHS Primary Care Trust v Smith [2011] UKEAT 0507_10_2608 (26 August 2011)
In upholding the Appellant's appeal the EAT held that reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer. Matters such as consultations and trials, exploratory investigations and the like do not qualify as reasonable adjustments. They are procedural steps an employer might take to determine what reasonable adjustments are required in order to avoid treating an employee in a way that may be deemed to place them at a substantial disadvantage as compared with the rest of the workforce. For the full judgment click here.

Employment Law Events

Gender Diversity in the Boardroom
19 September 2011 08:00 to 10:00

The Employment Lawyers Association is holding a breakfast session at the offices of Reynolds Porter Chamberlain, Tower Bridge House, St Katharine's Way, London, E1W 1AA. The speakers are Rachel Short and Jane Anderson, YSC (global, business psychology consultancy) and Patrick Brodie, Reynolds Porter Chamberlain. For further details click here.

Industrial Law Society 2011 Annual Oxford Conference
16 to 18 September 2011

This annual conference is being held at a cost of £365 to members and £415 for non-members. Speakers include Trevor Phillips, Chair of the EHRC, Thomas Linden QC of Matrix Chambers and Arpit Dutt from Russell Jones & Walker. For further details click here.


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