Employment Law Bulletin - Issue 115 - 29 November 2011

Tuesday 29 November 2011

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Employment News

Government plans to transform Tribunal system revealed

More than seven months after the consultation on "Resolving Working Disputes" closed, the government has published its response to the consultation, at the same time widening the range of measures which it proposed to introduce. It is a total package of changes, which, if successfully implemented, would represent perhaps the most dramatic transformation of employment law since the introduction of protection against unfair dismissal in 1971. The government now proposes:

In secondary legislation, by April 2012:

  • To extend the qualification period for unfair dismissal to two years
  • To double the amounts that Judge can order in deposit orders (from £500 to £1000) and in costs applications (from £10,000 to £20,000)
  • To change the Employment Tribunal rules so that witness statements will ordinarily be read
  • To remove the present facility for the payment of Tribunal witnesses
  • To introduce a new default rule that unfair dismissal cases will be heard by a single Judge rather than a full panel
  • To remove lay panellists from the EAT save in cases where a Judge directs that they should be present

In primary legislation, by a date to be determined:

  • To facilitate settlements by clarifying the lacuna in s.147 of the Equality Act, and by amending section 203(3)(b) of the Employment Rights Act 1996 so that settlement agreements can cover future claims

To ask Mr Justice Underhill, the outgoing President of the EAT, to rewrite the Tribunal rules; the changes which he is asked to oversee include:

  • To require claimants to lodge their claims with Acas in advance of issuing the Tribunal, triggering a one month period in which Acas may attempt to settle their case, after which the claimant will be able to lodge their claim
  • To introduce "rapid resolution" (i.e. determination on the papers, or at a hearing but within three months of issuing the claim) of simple claims (it is unclear whether some unfair dismissals would come within this category or whether it would be limited to wages claims); and
  • To give Judges a discretion to fine employers between £100 and £5,000 for breaches of employment law (the fines to be payable to the Exchequer, not claimants)

The government also now proposes:

  • To consult on introducing, and introduce, a scheme of "protected conversations" between employers and employees akin to the protected conversations between lawyers involved in litigation
  • To consult on introducing, and introduce, payments for issuing claims in the Tribunal and for progressing with a claim to an actual hearing

As a concession to its critics, the government has withdrawn proposals to introduce an employment equivalent of Part 36 of the CPR. For more details, click here.

Separately, the government is calling for evidence as to whether to amend the TUPE Regulations. For more details, click here.

The government is calling for evidence as to whether to reduce the minimum period of collective consultation when an employer proposes to make large numbers of redundancies. For more details, click here.

The government has also begun to present to the press intended proposals to enable businesses employing fewer than 10 workers to dismiss workers on a compensated but no-fault basis. For more details, click here.

Rajeev Thacker of Garden Court's Employment, Discrimination and Professional Regulation Team has commented on the proposals here.

Employment Case Law

Privy Council

Constructive dismissal

Saint Aubin Limitee v Alain Jean Francois Doger de Speville [2011] UKPC 42
As a matter of common law, a constructive dismissal occurs if an employer imposes on an employee without the employee's consent a substantial modification of the original contract conditions. The employee is entitled to treat such a change so imposed as a constructive dismissal. Unusually, the Privy Council has considered the case of a manager who dismissed in response to being forcibly moved to a new role which was at least as senior, and in some respects more senior, than his old role. The Privy Council held that even if the benefits and conditions attaching to the new post would have been as good as or the long-term prospects even better than in the old role, "no-one is obliged to have glory thrust upon them", and the worker was entitled to prefer to retain his familiar contractual post and to treat the compulsory move as a dismissal. For the full judgment, click here.

Court of Appeal


Dean & Dean Solicitors v Dionissiou-Moussaoui [2011] EWCA Civ 1332
Rule 40 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 provides that the Tribunal may award costs where a party has acted unreasonably in bringing proceedings. Here, the Court of Appeal considered whether a Tribunal had erred in law in declining to order costs where a Claimant had made allegations of sexual misconduct which the employer said were scandalous and salacious and which were struck out for being out of time or by reason of non-compliance with the Dispute Resolution Regulations (i.e. without factual determination). The Court held that the Tribunal had not erred; there was no basis under which the Tribunal could have found that the allegations were unreasonably brought without having heard witness evidence that they were untrue. For the full judgment, click here.

Employment Appeal Tribunal

Lists of issues

Price v Surrey County Council & Anor [2011] EAT 0450/10
In a judgment on the merits of a claim of unfair dismissal for making a protected disclosure, the Employment Appeal Tribunal has given helpful advice to parties and their representatives on what should be in an agreed list of issues. The EAT has held that a Judge has a discretion to disregard such lists where they fail to guide the Tribunal towards the matters which are really in dispute between the parties, and has deprecated the habit of providing long lists of particulars of detriment, where the lists fail to direct the parties towards the matters which are really of significance. The EAT in particular criticised a list which gave no greater priority to the Claimant's claim of unfair dismissal than it did to particulars such as that at a meeting she had been told she was "a lone voice". The EAT has also, albeit indirectly, criticised government plans to reduce access to legal aid in employment law, saying that the case "seems to us to provide a vivid illustration of the difficulties faced by litigants in person, and the importance of competent legal advice at the right stage." For the full judgment, click here.

Fax submission of claim form

Yellow Pages Sales Ltd v Davie [2011] EAT 0017/11
Rule 1 of the Employment Tribunal Rules of Procedure, provides that a claim shall be brought before an Employment Tribunal by the Claimant presenting to an Employment Tribunal Office the details of the claim in writing. What happens where a fax is sent, the data received in the Tribunal's system in time, and a successful transmission report is received by the sender; but due to a technical error in the host system the data is lost and no printout made? The answer, the EAT has held, is that the claim should be treated as having been brought in time. For the full judgment, click here.

Notices and Events

The Discrimination Law Association will be holding an evening Practitioner Group Meeting on Disability Discrimination on 7 December 2011 at 50-52 Chancery Lane. For more information go to the DLA website and log on.


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